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Farm Credit Administration.
Final rule.
The Farm Credit Administration (FCA, our, or we) issues this final rule governing the Federal Agricultural Mortgage Corporation (Farmer Mac or the Corporation) in the areas of non-program investments and liquidity. The intent of the rule is to ensure that Farmer Mac continues to hold high-quality, liquid investments to maintain a sufficient liquidity reserve, invest surplus funds, and manage interest-rate risk, while maintaining non-program investments at appropriate levels considering Farmer Mac's status as a Government-sponsored enterprise.
This regulation will be effective 30 days after publication in the
Joseph T. Connor, Associate Director for Policy and Analysis, Office of Secondary Market Oversight, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4364; TTY (703) 883-4434; or Jennifer A. Cohn, Senior Attorney, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY (703) 883-4020.
Farmer Mac's long-term liquidity is dependent on its ability to obtain funding from the securities markets. To aid in assuring market access, sources of liquid and low-risk investments are needed to provide liquidity in the short-term in the event of market disruptions or aberrations. The primary objectives of the final rule are to ensure the safety and soundness and continuity of Farmer Mac operations by:
• Establishing minimum liquidity standards that would require Farmer Mac to hold sufficient high-quality, marketable investments to provide adequate liquidity to fund maturing obligations, interest expense, and operating expenses for a minimum of 60 days;
• Specifying the type, quality, and maximum amount (or limit) of non-program investments
• Establishing diversification requirements, including portfolio limits on specific types of investments and counterparty exposure limits; and
• Requiring Farmer Mac's board of directors to approve liquidity and non-program investment management policies and implement appropriate internal controls to oversee the investment and liquidity management of the Corporation.
Another objective of this proposal is to better organize current regulatory sections pertaining to Farmer Mac, details of which are discussed in section V. below.
On June 14, 2004, we published a proposed regulation for public comment.
We received four comment letters on the proposed rule; two from Farmer Mac, and one each from the Farm Credit Bank of Texas (FCBT) and AgFirst Farm Credit Bank (AgFirst). In general, the comments consider the proposed rule's provisions to be inappropriately detailed, specific, and restrictive. Specific comments are discussed in the next section of this supplementary information.
We begin by summarizing and responding to general comments on the proposed rule and then provide a section-by-section summary of provisions of the final rule. This summary includes a discussion of the comments on the proposed rule and FCA's responses to the comments.
Farmer Mac and AgFirst commented that, in general, policies and procedures for investments, liquidity and the management of interest rate risk are best left to the Corporation's board of directors, with FCA oversight through the examination process. FCBT echoed this general view, adding that any regulations should be flexible enough to
In responding to these concerns we note that a primary objective of the rule is to establish a regulatory framework governing non-program investments and liquidity. This framework includes several quantitative limits on which the liquidity policies of the Corporation are to be based. We intend this regulatory framework to provide management with an enhanced level of guidance with which to structure the Corporation's internal policies on liquidity and non-program investments as well as to establish FCA standards of acceptability through quantitative limits on these measurements.
One specific requirement, the minimum liquidity reserve requirement (Farmer Mac must hold liquid investments sufficient to fund at least 60 days of maturing obligations, interest expense, and operating expenses)
We believe the provisions of the final rule achieve greater clarity of FCA guidance and expectations on internal policymaking for Farmer Mac while both avoiding an excessive level of specificity and minimizing the potential for imposing unnecessary constraints that could adversely impact Farmer Mac's operations.
In their comments, Farmer Mac and FCBT expressed a preference for a regulatory approach similar to that in place for Farm Credit System (FCS) banks' investments and liquidity. We note that the approaches are similar in areas such as investment categories, category limits, obligor limits, and discounts, because we believe certain regulatory approaches and quantitative limits on liquidity and investments are reasonably applied to a wide variety of types of financial institutions. However, there are valid reasons to adopt differing regulatory approaches in certain areas because of the differences in the types of business conducted by the regulated institutions (
In response to the commenters' contention that FCA should exercise its oversight authority over non-program and liquidity management through its examinations rather than through regulation, we state that while examinations are an integral component of our oversight, it is inappropriate for FCA to rely solely on examinations. Regulations are another oversight tool; they enhance the examination process by establishing clearly understood requirements in advance, thus enabling the reduction of potential problems that might become examination findings absent those regulations.
This section provides the user with a basic understanding of the contents and purpose of this subpart. The purpose of this subpart is to ensure safety and soundness, continuity of funding, and appropriate use of non-program investments considering Farmer Mac's status as a GSE. It also highlights responsibilities of Farmer Mac's board of directors and management. No comments specific to this section were received and none of its provisions were changed in the final rule.
This section alphabetically lists words or phrases that are applicable to this subpart and will help the user more fully understand the subpart and our requirements. Most of the definitions are self-explanatory, but one definition will benefit from explanation.
The definition of “Government-sponsored agency” includes Government-sponsored enterprises such as Fannie Mae and the Federal Home Loan Mortgage Corporation (Freddie Mac), as well as Federal agencies, such as the Tennessee Valley Authority, that issue obligations that are not explicitly guaranteed by the Government of the United States' full faith and credit. The definition in the final rule is slightly different from that in our proposal, although the meaning is the same; we have clarified that the term includes corporations, as well as agencies or instrumentalities, that are chartered or established to serve public purposes specified by Congress, and also that it includes GSEs. This information was provided in the supplementary information to the proposed rule but was not explicitly stated in the rule itself.
No comments specific to this section were received but several of its provisions were changed for clarity in the final rule in response to comments on other sections. Specifically, we are adding definitions for “program assets” and “program obligations” and are substituting “regulatory capital” for “total capital.”
This section requires Farmer Mac to establish and follow certain fundamental practices to effectively manage risks in its investment portfolio. An effective risk management process for investments requires financial institutions to establish: (1) Policies; (2) risk limits; (3) a mechanism for identifying, measuring, and reporting risk exposures; and (4) a strong system of internal controls. Accordingly, § 652.10 requires Farmer Mac's board of directors to adopt written policies that establish risk limits and guide the decisions of investment managers. More specifically, board policies must establish objective criteria so investment managers can prudently manage credit, market, liquidity, and operational risks. Additionally, § 652.10 establishes other controls that are consistent with sound business practices, such as:
(1) Clear delegation of responsibilities and authorities to investment managers;
(2) Separation of duties;
(3) Timely and effective securities valuation practices; and
(4) Routine reports on investment performance.
Both Farmer Mac and FCBT objected to the proposed rule's pre-purchase and pre-sale securities valuation requirements for non-program investments, found in § 652.10(f). Farmer Mac commented generally that because its board has established and monitors policies and procedures governing the valuation process for securities purchased and internal controls of investment management, there is no need for FCA to adopt a regulation prescribing the details of such policies and procedures.
We agree that Farmer Mac should have flexibility in establishing its policies and procedures governing securities valuation. However, because of the potentially serious consequences of valuation errors, our regulations set forth basic requirements for Farmer Mac's policies and procedures. We believe, in general, that proposed § 652.10(f) permits sufficient flexibility for Farmer Mac. Accordingly, the final rule retains the general structure of the
Section 652.10(f)(1) of the proposed regulation required Farmer Mac to evaluate a security's credit quality prior to purchase. In the supplementary information explaining this proposed provision, we stated that Farmer Mac:
Farmer Mac commented that the proposed regulation, as interpreted by the supplementary information, effectively required Farmer Mac to “second guess” the NRSROs and would not be practical. The FCBT made a similar comment. Farmer Mac was concerned that its practice of routinely monitoring rating watch lists and news reports for recent events that could indicate stress in individual businesses and industry sectors might not be sufficient to satisfy FCA.
We reiterate that, because of potential lags before NRSRO ratings reflect adverse events, Farmer Mac must evaluate a security's risk subsequent to its most recent rating. Section 652.10(f)(1) does not, however, require a particular method of evaluating a security's risk. Farmer Mac may use any reliable approach to monitoring this risk. As a good business practice, Farmer Mac should retain documentation of its evaluation.
Section 652.10(f)(1) of the proposed rule required Farmer Mac, among other things, to “verify the value of a security that [it] plan[s] to purchase, other than a new issue, with a source that is independent of the broker, dealer, counterparty, or other intermediary of the transaction.” Farmer Mac commented that no benefit would be provided by requiring alternative price quotes because it would not necessarily afford Farmer Mac the opportunity to purchase the investment at the same or a better price.
FCA makes no change to this pre-purchase independent valuation verification requirement in the final rule. Accurate securities valuation is essential to measuring risk and monitoring compliance with Farmer Mac's objectives and risk parameters. Such valuation practices by the Corporation enable managers to better understand the risks and cashflow characteristics of their investments.
In addition, we note that, as stated in the supplementary information to the proposed rule, independent verification of price can be as simple as obtaining a price from an industry-recognized information provider. Farmer Mac may satisfy this requirement by independently verifying the price of a security with an online market reporting service such as Bloomberg, Telerate, or Reuters. We believe the benefits of this provision exceed any added burden on Farmer Mac.
Section 652.10(f)(1) of the proposed rule also would have required Farmer Mac, before it purchases a security, to document the size and liquidity of the secondary market for the security. The supplementary information stated that we expected Farmer Mac to monitor and update this information as market conditions change. Farmer Mac commented that this requirement is vague and difficult to accomplish, would be unduly time consuming, and would lead to missed investment opportunities. The FCBT commented that the requirement is not necessary for certain types of very high quality securities commonly known to trade in active secondary markets, such as agency-issued mortgage-backed securities. The FCBT also pointed out that the regulation does not specify what form the documentation should take.
We agree that satisfying this documentation requirement could present a challenge in some instances and have removed this documentation requirement from the rule. We affirm the Agency's view that such documentation is a good business practice.
Section 652.10(c)(2) of the proposed rule required Farmer Mac to evaluate how individual instruments and the investment portfolio as a whole affect the Corporation's overall interest rate profile. We have removed this requirement in the final rule. We believe that the limitations on the investment portfolio in § 652.35 of this rule, combined with our oversight of Farmer Mac's internal procedures on interest rate risk management, warrant this removal.
Section 652.10(c)(1)(ii) of the proposed rule provided that Farmer Mac's board must approve any changes to securities firms. Farmer Mac commented that, although it may be appropriate for the board to establish criteria for the selection of securities firms, the selection or removal of firms meeting the criteria is properly a function of management, with oversight by the board for compliance with board policy. We agree with this comment and have revised the provision to require pre-change notification to the board, or a designated subcommittee of the board, instead of board approval of the change.
We emphasize that the selection of securities firms is an important aspect of effective management of counterparty credit risk. A satisfactory approval process includes a review of each firm's financial statements and an evaluation of its ability to honor its commitments, including an inquiry into the general reputation of the securities firm. We expect Farmer Mac to review information from Federal or state securities regulators and industry self-regulatory organizations, such as the National Association of Securities Dealers, concerning any formal enforcement actions against the securities firm, its affiliates, or associated personnel.
Because interest rate risk management is such an important part of investment management, § 652.15 establishes certain responsibilities of Farmer Mac's board of directors and management as well as policy requirements to address the management of interest rate risk exposure. The regulations outline our minimum expectations for the management of interest rate risk exposure.
The potentially adverse effect that interest rate risk may have on net interest income and the market value of Farmer Mac's equity is of particular importance. Unless properly measured and managed, interest rate changes can have significant adverse effects on Farmer Mac's ability to generate earnings, build net worth, and maintain liquidity. We received no comments specific to this section. Other than two self-explanatory, minor clarifications, we made no changes to this provision in the final rule.
This section sets forth the minimum daily liquidity reserve requirement (i.e., the minimum days-of-liquidity), provides guidance on how that calculation is to be made, including specifying the discounts to be applied to various investments, and explains board responsibilities, required policies, and reporting requirements.
Section 652.20(a) provides that, within 24 months of this rule's effective date, and thereafter, Farmer Mac must hold cash, eligible non-program investments, and/or on-balance sheet
AgFirst commented that the proposed minimum days-of-liquidity requirement should be increased to 90 days from 60 days, consistent with the self-imposed policy of the FCS, which was implemented after discussions with several NRSROs.
Farmer Mac commented that the proposed rule's requirement, in § 652.20(a), that days-of-liquidity be calculated and documented daily was an overly burdensome time interval and recommended changing the interval to monthly. In the final rule, this time interval is revised to monthly with the added specification that the Corporation must have systems in place that provide it the ability to make this calculation daily, and must maintain liquidity greater than 60 days at all times. Prudent business practice dictates that, if circumstances warrant, Farmer Mac may need to calculate its days-of-liquidity more often than the regulation requires. Such circumstances could include management decisions relative to debt issuance, asset-liability management, and investment purchases, all of which must be made with knowledge of the institution's liquidity position. We expect Farmer Mac's liquidity management practices to be monitored by Farmer Mac's internal audit function.
FCBT commented that, rather than specifying specific discount amounts, FCA's regulations should require Farmer Mac to apply discounts that are appropriate under prevailing market practices and expectations concerning liquidity. We believe it is appropriate for FCA to prescribe the discounts to ensure that an acceptable level of conservatism is applied to the Corporation's estimates of the liquidity of these instruments. As with other required calculations in this rule, we believe these discounts improve the clarity of the Agency's expectations on this subject to Farmer Mac and are best provided formally through rulemaking and in advance of the examination process. However, we have clarified in § 652.20(a) that discounts are to be applied to liquid asset values that have been marked to market, and in § 652.20(c)(3) and (c)(5) that discounts also apply to preferred stock investments.
Farmer Mac and FCBT commented that the discounts applied in § 652.20(c) to non-program assets for purposes of the days-of-liquidity calculation in the proposed rule are too great at 5 percent on money market instruments and floating rate debt securities and 10 percent on fixed rate debt securities. Farmer Mac supported this comment on the basis of the lower discounts applied by the Federal Reserve Discount Window (Fed) and the New York Stock Exchange (NYSE) for pledged assets. Farmer Mac's comment noted that the two examples they offer are not exactly analogous to the discounts applied in the proposed rule, but the Corporation requested consideration of these alternatives as potentially more appropriate benchmarks for discounts.
We acknowledge that the Fed discount window and NYSE discounts on margin collateral are lower but, with one exception, we have kept the discounts in this rule as proposed. The cited Fed discounts by their nature are applied to transactions with a very short-time horizon on average, typically overnight for the majority of the Fed discount window volume.
However, the term difference between Farmer Mac and the Fed Discount Window is not always the case, for example with Farmer Mac's use of overnight and very short-term money market investments. In recognition of this, we have partially accommodated the comment by reducing the discount on money market instruments with maturities of 5-business days or less from 5 percent to 3 percent, in § 652.20(c)(2).
As discussed below, § 652.20(c)(7) of the rule reserves FCA's authority to modify or determine the appropriate discount for an investment if the otherwise applicable discount does not accurately reflect the investment's liquidity. FCA's Office of Secondary Market Oversight (OSMO) will consider any request Farmer Mac submits for a revised discount on particular items in its investment portfolio.
Farmer Mac commented that the proposed rule's 50-percent discount of securities backed by portions of Farmer Mac program assets (loans) guaranteed by the USDA (the Farmer Mac II portfolio or USDA-Guaranteed Portions) in § 652.20(c)(5)
We agree with the comment that a 50-percent discount of the Farmer Mac II portfolio is too conservative an estimate of its liquidity. It is inherently difficult to evaluate precisely the depth of the market for USDA-Guaranteed Portions because they are traded through a broker market. However, FCA believes there is reasonable evidence pointing to greater liquidity of these instruments. Accordingly, the final rule decreases the discount to 25 percent of the on-balance sheet portion of the Farmer Mac II portfolio. In other words, the calculation now includes 75 percent of on-balance sheet Farmer Mac II assets as liquid investments, as a conservative estimate of the liquidity of the Farmer Mac II portfolio.
As discussed in section G. below, we have made a corresponding change in
As explained in greater detail in section G. below, recognition of on-balance sheet Farmer Mac II assets as liquid investments could create a disincentive for Farmer Mac to sell these assets to investors, an incentive that FCA does not intend but which is unavoidable if the Agency intends, as it does, to make that recognition. Therefore, one reason why the 25-percent discount is not even smaller is due to concerns related to any potential disincentive to sell these securities that could be created through recognition of such a high percentage of the on-balance sheet Farmer Mac II portfolio in the days-of-liquidity calculation.
We note that the referenced FCA Informational Memorandum does not expressly encourage these investments and did not factor into FCA's decision to change the percentage. The Informational Memorandum highlights these instruments as an option available to FCS institutions to make mission-related investments but does not express or imply any position on the relative liquidity of these assets.
Farmer Mac commented on proposed § 652.20(c)(6),
Commenting on the same section, FCBT noted that the provision is too general and could lead to arbitrary action on the part of FCA. The comment suggested FCA establish “market-based” criteria to guide FCA staff in making such determinations. We anticipate we would most likely exercise this provision if an adverse credit event or other adverse event caused an eligible investment to exhibit less liquidity. In such cases, we might increase the discount associated with that investment. Information related to such an event would be expected to be generally available to the public and readily verifiable.
Accordingly, the final rule reserves FCA's authority to modify or determine the appropriate discount for any investment used to meet the minimum liquidity reserve requirement if the otherwise applicable discount does not accurately reflect the liquidity of that investment or if the investment does not fit wholly within one of the specified investment categories. In addition, it provides that in making any modification or determination, we will consider the liquidity of the investment as well as any other relevant factors. We will provide at least 20 business days notice before any modified discounts will take effect.
Farmer Mac commented that the proposed rule's requirement that any breach of the minimum days-of-liquidity requirement in § 652.20(g) be reported “immediately” to FCA was not sufficiently clear in terms of its time requirement and suggested it be revised to read “as soon as reasonably possible, but no later than 3 business days after Farmer Mac determines (or should have determined) the breach.” Further, Farmer Mac suggested an additional grace period of 5 business days for the cure of any such breach if Farmer Mac is taking action to achieve compliance.
As discussed above, the final rule requires Farmer Mac to calculate its days-of-liquidity monthly, and we expect more frequent calculation if circumstances warrant it. We have revised the reporting requirement to require Farmer Mac to report a breach to FCA no later than the business day following Farmer Mac's discovery of the breach. This revision provides an objective time period for Farmer Mac to submit its report to FCA. In addition, we clarified that the regulation requires the report to be made in writing (which includes e-mail) to OSMO. In order to keep an objective standard for the reporting time frame, we did not include “should have discovered” language, as suggested by Farmer Mac. We did not include the requested grace period to cure any breach. Any cure of a breach in the minimum days-of-liquidity will be addressed as a part of the FCA's supervisory oversight of Farmer Mac. FCA adds no grace period in the final rule as any standing grace period could imply that the established minimum is less than a firm minimum. However, as affirmed in § 652.30 of the final rule, FCA would consider modifications under unusual circumstances if requested by Farmer Mac.
FCBT commented that it is unduly burdensome to require Farmer Mac to report to FCA whenever it breaches its regulatory liquidity reserve requirements, as the proposed rule required. Since the final rule requires Farmer Mac to calculate its days-of-liquidity monthly rather than daily, and to report a breach when it is discovered rather than when it occurs, any burden the proposed rule might have caused has been significantly reduced in the final rule.
FCBT also commented that the provision in § 652.20(g) of the proposed rule that required Farmer Mac to report to FCA when it discovers noncompliance with its own board policy requirements is inappropriate and constitutes “micro-management” that is inconsistent with the role of an arms-length regulator. FCA proposed this requirement so that it may learn in advance if liquidity is decreasing to a point where it might violate our regulatory minimum. However, so long as Farmer Mac's Board is aware of breaches of the Corporation's internal policy, we have determined that OSMO is well-positioned to track breaches of the policy and management's corrective actions through the examination process. We have, therefore, removed the provision from the final rule.
This section lists authorized purposes for Farmer Mac non-program investments and imposes a limitation on those investments. The rule seeks to reasonably relate investments made by Farmer Mac to its statutory purpose as set forth in section 701 of the Agricultural Credit Act of 1987
Section 652.25(b)(1) of the proposed rule would have limited non-program investments to the greater of $1.5 billion or the aggregate of 30 percent of total assets and “a reasonable estimate of off-balance sheet loans covered by guarantees or commitments that Farmer
Farmer Mac and FCBT commented that this formula is overly restrictive and could result in adverse effects on the Corporation. Farmer Mac also commented that the proposed policy is a departure “from the undertaking requested by FCA and given by Farmer Mac in 1999, to limit non-program investments to the greater of $1.5 billion and 30 percent of all guarantees and commitments outstanding.” Farmer Mac further suggested that the proposed policy is inconsistent with investment limitations contained in FCA regulations governing FCS banks. Finally, Farmer Mac commented that the proposed rule's treatment of off-balance sheet obligations both fails to respond to concerns raised by Congress and creates a disincentive for Farmer Mac to sell agricultural mortgage-backed securities. Instead of the proposal, Farmer Mac requested that FCA adopt the Corporation's currently existing investment limit, based on its 1999 communications with FCA, of the greater of $1.5 billion and 30 percent of the aggregate of Farmer Mac's on-balance sheet program assets and off-balance sheet program obligations.
This rule is the first application of a regulatory maximum non-program investment level to a secondary market institution. FCA has applied caution to minimize the possibility of imposing unnecessary constraints. With this framework established, the rule's quantitative limits can be refined in future rulemaking if necessary. Accordingly, we have modified the formula in the final rule to respond to Farmer Mac's comments, as detailed below.
The final rule limits Farmer Mac's non-program investments to the greater of $1.5 billion or 35 percent of all program volume, excluding 75 percent of the on-balance sheet program assets that are guaranteed by the United States Department of Agriculture as described in section 8.9(9)(B) of the Farm Credit Act of 1971, as amended.
With this change, we have responded to Farmer Mac's request to adopt the general approach taken in our 1999 guidance to Farmer Mac. As Farmer Mac requested, we have generally based the formula for maximum non-program investments on a percentage of both on- and off-balance program investments, with one exclusion. The formula excludes from program investments 75 percent of the Farmer Mac II portfolio because, as discussed in the previous section of this supplementary information, that portion is recognized as a liquid investment in the minimum liquidity reserve calculation required by § 652.20(a). Thus, the rule maintains logical consistency in its recognition (in both § 652.20(a) and § 652.25(b)) of 75 percent of the on-balance sheet Farmer Mac II program assets as a source of liquidity rather than as less-liquid assets against whose funding obligations liquidity investments are held.
This exclusion would generally result in a lower maximum non-program investment limit, which was not the intent of the exclusion. Therefore, to compensate for this exclusion and to add regulatory flexibility generally to the final rule, we increased the limitation from 30 to 35 percent of the included assets. The new formula is consistent with the objective of establishing a regulatory framework that minimizes the potential of establishing unnecessary constraints on management's ability to respond to unforeseen circumstances.
We believe the changes to this provision in the final rule should satisfy the concerns raised by Farmer Mac and the FCBT that the proposed provision was overly restrictive. Nevertheless, we respond to Farmer Mac's specific comments on the proposed rule below.
Farmer Mac stated that the proposed rule failed to address concerns expressed at hearings of the Agriculture Committee of the U.S. House of Representatives (June 4, 2004), at which members raised questions about the adequacy of provisions for risks associated with off-balance sheet exposures. The concerns raised at this hearing were related to a General Accounting Office (GAO)
In addition, Farmer Mac commented that the proposed rule, through its inclusion of 15 percent (at most) of off-balance sheet obligations in the maximum non-program investments formula, created a disincentive for it to sell AMBS to investors. As mentioned above in section F. with regard to changes made to the days-of-liquidity calculation, by including all off-balance sheet program obligations in the calculation of maximum non-program investments, the final rule largely removes any disincentive to sell program assets to investors. A small disincentive arguably remains related to the recognition of 75 percent of the on-balance sheet Farmer Mac II portfolio as a liquid investment (described in section F. above). However, this disincentive is at least partially offset by a corresponding reduction in the same proportion (75 percent) of the on-balance sheet Farmer Mac II portfolio that is excluded from the maximum non-program investments calculation.
Farmer Mac also commented that the proposed rule's maximum non-program investment formula is inconsistent with FCA's 1993 rule governing FCS banks. We note that the provisions of this final rule, through the inclusion of off-balance sheet obligations in the calculation, are much closer to the structure established in the 1993 regulation governing FCS banks on this maximum limit.
Finally on this section, in the supplementary information to our proposed rule, we specifically sought comment on whether we should consider in this section other issues pertinent to Farmer Mac's non-program investment needs or practices such as its “debt issuance strategy.” Farmer Mac commented that it would not be appropriate to impose regulations governing debt issuance strategies. Without agreeing or disagreeing with the comment, we note that no provision related to the strategy has been added to the final rule. Also, in response to this request for comment, FCBT said, “given our view that portfolio limits should be flexible based on an institution's market environment, we do not believe that the regulation should fail to consider or preclude consideration of any factor that presents Farmer Mac with an actual need for liquidity, income stabilization, or diversification.” We believe the regulation adequately considers these factors through the flexibility specifically inserted in the rule,
This section provides that the FCA may waive or modify restrictions on Farmer Mac's liquidity reserve and/or may modify the amount, qualities, and types of eligible investments during times of economic stress, financial stress, or other extraordinary situations. As waivers or modifications are
Examples of extraordinary situations include, but are not necessarily limited to: (1) Disrupted access to capital markets due to financial, economic, agricultural, or national defense crises; and (2) situations specific to Farmer Mac that necessitate modified liquidity reserves, other investments, or other measures for continued market access. No comments specific to this section were received but clarifications were added to its provisions in the final rule to note FCA's willingness in extraordinary circumstances to consider waivers of the rule's provisions related to ineligible asset quality and type.
This section permits Farmer Mac to invest, within limits, in an array of eligible high-quality, liquid investments while providing a regulatory framework that can readily accommodate innovations in financial products and analytical tools.
Farmer Mac may purchase and hold the eligible non-program investments listed in § 652.35(a)
We note that the final rule authorizes investment in shares of any investment company that is registered under section 8 of the Investment Company Act of 1940, 15 U.S.C. 80a-8, as long as the investment company's portfolio consists solely of investments that are authorized by § 652.35. Prior to investing in a particular investment company, Farmer Mac would be required to evaluate the investment company's risk and return objectives. As part of this evaluation, Farmer Mac should determine whether the investment company's use of derivatives is consistent with FCA guidance and Farmer Mac's investment policies.
Farmer Mac must maintain appropriate documentation on each investment, including a prospectus and analysis, so its investment and selection process can be independently and objectively verified. If Farmer Mac's shares in each investment company comprise 10 percent or less of Farmer Mac's total investment portfolio, no maximum portfolio limits are triggered. However, if Farmer Mac's shares in a particular investment company comprise more than 10 percent of Farmer Mac's total investment portfolio, then the pro rata interest in an asset class of security in an investment company must be added to the same asset class of Farmer Mac's other investments to determine investment portfolio limits. For example, if Farmer Mac has 12 percent of its total investment portfolio (
FCBT commented that FCA should reconsider its overall approach with respect to fixed percentage limits on the classes or types of investments that may be included in Farmer Mac's portfolio to allow Farmer Mac more flexibility to respond to changing market conditions. FCBT suggests that, rather than specifying investment limits, the regulation should require Farmer Mac to establish and justify appropriate limits. Limits on classes and types of investments are a prudent managerial practice. It is not clear from the comment how changing market conditions might warrant a degree of flexibility that is not already provided for in the regulation. However, as detailed later in this section, the final rule does make an adjustment to the obligor limits from 20 to 25 percent of regulatory capital. In addition, we note that the final rule clarifies that the temporary waivers under § 652.30(b) could extend to asset quality and types, as well as amounts. In general, the regulation enhances guidance on OSMO's minimum expectations with regard to investment management policies and procedures related to concentration risk within Farmer Mac's investment portfolio.
Farmer Mac commented that the 20-percent investment category concentration limits in the proposed regulation are generally too restrictive and that a 33-percent limitation would be more appropriate. No analytical support was provided to support a 33-percent limitation rather than a 20-percent limitation. We have made a change to two categories detailed below.
Farmer Mac commented specifically that the proposed 20-percent limit on investments in corporate debt securities (§ 652.35(a)(8)) should be increased to 33 percent. The Corporation further objected to the proposed rule's requirement that corporate debt securities with maturities of less than 4 years, contending that an A rating is appropriate for such investments.
To support its request for a minimum A rating for securities with maturities of 4 years or less, Farmer Mac cites to NRSRO data that, the Corporation contends, demonstrates that A-rated bonds represent very high asset quality, with only a slightly higher historical rate of default than AA bonds. We agree that shorter-term holdings inherently have less risk, and the final rule therefore permits investments in corporate debt securities that are rated at least A by an NRSRO as long as their maturities are 3 years or less. We did not extend the A-rating accommodation to securities with maturities of between 3 and 4 years, as Farmer Mac requested, in recognition of their higher level of risk.
Farmer Mac objects to § 652.35(d), which limits investments issued by any single entity, issue, or obligor to 20 percent of Farmer Mac's capital, with the exception of Government agency or Government-sponsored agency obligors. Farmer Mac suggests a limitation of 25 percent of capital is more appropriate. We agree with the comment and have changed the limitation to 25 percent in the final rule. For example, if Farmer Mac had $250 million in capital, the change would permit obligor limits to rise from $50 million to $62.5 million.
Farmer Mac also objects to the § 652.35(d)(2) requirement that it must count securities that it holds through an investment company toward the 20-percent obligor limit unless the investment company's holdings of the securities of any one issuer do not exceed 5 percent of the investment company's total portfolio. Farmer Mac contends that this requirement is unnecessary because concentration risks are balanced by diversity in the portfolio. Farmer Mac also states that tracking portions of individual investments held within a diversified investment would be difficult and unduly time consuming.
We believe that the Corporation's net exposure to a single obligor, when the portion found in diversified investment funds is significant, is important to consider regardless of the diversification benefits of the funds. When an obligor defaults, Farmer Mac absorbs the full financial impact of its net exposure to that obligor, even if a portion of that impact is realized in a lower return from an investment fund. For that reason, we believe the benefits of prudent obligor limits exceed the additional labor cost involved in tracking total obligor exposures. Therefore, we make no change to this provision in the final rule.
Farmer Mac commented that the proposed rules' collateral restrictions on asset-backed securities (ABS) should be eliminated and that any AAA-rated ABS should be permitted. Farmer Mac did not identify additional ABS-collateralized groups in which it wishes to invest or suggest criteria for determining the suitability of new types of ABS that financial markets may create. Without more compelling evidence of the practical impact on Farmer Mac's operations, the final rule makes no change to this provision. We note that § 652.35(e) of the final rule permits Farmer Mac to purchase non-program investments not listed in § 652.35(a) with our prior approval.
Farmer Mac commented that rather than using the term “total capital,” as we do in § 652.35(d)(1) of the proposed rule, we should use either the term “core capital” or the term “regulatory capital,” both of which are defined in Farmer Mac's statute. We agree that using an already-defined term would provide consistent regulatory treatment. Accordingly, § 652.35(d)(1) of the final rule uses the term “regulatory capital” as defined in section 8.31(5) of the Act.
Finally, on this section, Farmer Mac commented that investments in Farmer's Notes should be deemed an eligible non-program investment under § 652.35 if the FCA's currently pending proposed rule on Investments in Farmer's Notes becomes effective as proposed. However, as FCA did not propose such treatment of Farmer's Notes in its proposed rule on non-program investments and liquidity, we would have to propose it in another rulemaking process in order to consider this change. Therefore, the most practical process for Farmer Mac to obtain this treatment for Farmer's Notes would be to seek approval to invest in Farmer's Notes as provided for under § 652.35(e).
Stress testing is essential when the cashflows from investments or assets of financial institutions change in response to fluctuations in market interest rates. For example, although credit risk on highly rated mortgage securities is low, mortgage securities may expose investors to significant interest rate risk. Since borrowers may prepay their mortgages, investors may not receive the expected cashflows and returns on these securities. Prepayments on these securities are affected by the spread between market rates and the actual interest rates of mortgages in the pool, the path of interest rates, and the unpaid balances and remaining terms to maturity on the mortgage collateral. The price behavior of a mortgage security also depends on whether the security was purchased at a premium or at a discount.
To better control and manage these factors, this section requires that Farmer Mac employ appropriate analytical techniques and methodologies to measure and evaluate interest rate risk inherent in mortgage securities. More specifically, prudent risk management practices require Farmer Mac to examine the performance of each mortgage security under a wide array of possible interest rate scenarios. No comments specific to this section were received and none of its provisions were changed in the final rule.
This section requires an ineligible non-program investment or security to be divested within 6 months, unless FCA approves, in writing, a plan that authorizes the investment or its divesture over a longer period of time.
Farmer Mac also commented that any investments it owns prior to the effective date of this rule should be deemed eligible until they mature or are sold in the normal course of business. In response, we emphasize that
In this final rule, we move some existing regulatory sections that pertain specifically to Farmer Mac to a centralized location in our regulations so they can be more easily located and used. The following table provides details of our proposal and shows where this final rule will be located.
Farmer Mac has assets and annual income in excess of the amounts that would qualify it as a small entity. Therefore, Farmer Mac is not a “small entity” as defined in the Regulatory Flexibility Act. Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Accounting, Agriculture, Banks, Banking, Reporting and recordkeeping requirements, Rural areas.
Accounting, Agriculture, Banks, Banking, Penalties, Reporting and recordkeeping requirements, Rural areas.
Agriculture, Banks, Banking, Conflicts of interest, Rural areas.
Agriculture, Banks, Banking, Conflicts of interest, Rural areas.
Agriculture, Banks, Banking, Rural areas, Investments, Capital.
Accounting, Agriculture, Banks, Banking, Accounting and reporting requirements, Disclosure and reporting requirements, Rural areas.
Sec. 8.11 of the Farm Credit Act (12 U.S.C. 2279aa-11).
Secs. 5.17, 5.19, 8.11 of the Farm Credit Act (12 U.S.C. 2252, 2254, 2279aa-11); sec. 424 of Pub. L. 100-233, 101 Stat. 1568, 1656.
Secs. 5.17, 8.11 of the Farm Credit Act (12 U.S.C. 2252, 2279aa-11).
Secs. 4.12, 5.9, 5.17, 8.11, 8.31, 8.32, 8.33, 8.34, 8.35, 8.36, 8.37, 8.41 of the Farm Credit Act (12 U.S.C. 2183, 2243, 2252, 2279aa-11, 2279bb, 2279bb-1, 2279bb-2, 2279bb-3, 2279bb-4, 2279bb-5, 2279bb-6, 2279cc); sec. 514 of Pub. L. 102-552, 106 Stat. 4102; sec. 118 of Pub. L. 104-105, 110 Stat. 168.
Secs. 4.12, 5.9, 5.17, 8.11, 8.31, 8.32, 8.33, 8.34, 8.35, 8.36, 8.37, 8.41 of the Farm Credit Act (12 U.S.C. 2183, 2243, 2252, 2279aa-11, 2279bb, 2279bb-1, 2279bb-2, 2279bb-3, 2279bb-4, 2279bb-5, 2279bb-6, 2279cc); sec. 514 of Pub. L. 102-552, 106 Stat. 4102; sec. 118 of Pub. L. 104-105, 110 Stat. 168.
This subpart contains the Farm Credit Administration's (FCA) rules for governing liquidity and non-program investments held by the Federal Agricultural Mortgage Corporation (Farmer Mac). The purpose of this subpart is to ensure safety and soundness, continuity of funding, and appropriate use of non-program investments considering Farmer Mac's special status as a Government-sponsored enterprise (GSE). The subpart contains requirements for Farmer Mac's board of directors to adopt policies covering such areas as investment management, interest rate risk, and liquidity reserves. The subpart also requires Farmer Mac to comply with various reporting requirements.
For purposes of this subpart, the following definitions will apply:
(1) The full faith and credit obligations of a state, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, or a political subdivision thereof that possesses general powers of taxation, including property taxation; or
(2) An obligation that is unconditionally guaranteed by an obligor possessing general powers of taxation, including property taxation.
(1) Pass-through securities or participation certificates that represent ownership of a fractional undivided interest in a specified pool of residential (excluding home equity loans), multifamily or commercial mortgages, or
(2) A multiclass security (including collateralized mortgage obligations and real estate mortgage investment conduits) that is backed by a pool of residential, multifamily or commercial real estate mortgages, pass-through mortgage securities, or other multiclass mortgage securities.
(3) This definition does not include agricultural mortgage-backed securities guaranteed by Farmer Mac itself.
(1) “Qualified loans” as defined in section 8.0(9) of the Farm Credit Act of 1971, as amended; or
(2) Securities collateralized by “qualified loans.”
(a)
(b)
(c)
(1)
(i) Credit quality standards, limits on counterparty risk, and risk diversification standards that limit concentrations based on a single or related counterparty(ies), a geographical area, industries or obligations with similar characteristics.
(ii) Criteria for selecting brokers, dealers, and investment bankers (collectively, securities firms). You must buy and sell eligible investments with more than one securities firm. As part of your annual review of your investment policies, your board of directors, or a designated subcommittee of the board, must review the criteria for selecting securities firms. Any changes to the criteria must be approved by the board. Also, as part of your annual review, the board, or a designated subcommittee of the board, must review existing relationships with securities firms. In addition, the board, or a designated subcommittee of the board, must be notified before any changes to securities firms are made.
(iii) Collateral margin requirements on repurchase agreements. You must regularly mark the collateral to market and ensure appropriate controls are maintained over collateral held.
(2)
(3)
(4)
(d)
(e)
(1) Establish appropriate internal controls to detect and prevent loss, fraud, embezzlement, conflicts of interest, and unauthorized investments.
(2) Establish and maintain a separation of duties and supervision between personnel who execute investment transactions and personnel who approve, revaluate, and oversee investments.
(3) Maintain records and management information systems that are appropriate for the level and complexity of your investment activities.
(f)
(2) At least monthly, you must determine the fair market value of each security in your portfolio and the fair market value of your whole investment portfolio. In doing so you must also evaluate the credit quality and price sensitivity to the change in market interest rates of each security in your portfolio and your whole investment portfolio.
(3) Before you sell a security, you must verify its value with a source that is independent of the broker, dealer, counterparty, or other intermediary to the transaction.
(g)
(1) On the performance and risk of each class of investments and the entire investment portfolio;
(2) All gains and losses that you incur during the quarter on individual securities that you sold before maturity and why they were liquidated;
(3) Potential risk exposure to changes in market interest rates and any other factors that may affect the value of your investment holdings;
(4) How investments affect your overall financial condition;
(5) Whether the performance of the investment portfolio effectively achieves the board's objectives; and
(6) Any deviations from the board's policies. These deviations must be
(a) The board of directors of Farmer Mac must provide effective oversight (direction, controls, and supervision) to the interest rate risk management program and must be knowledgeable of the nature and level of interest rate risk taken by Farmer Mac.
(b) The management of Farmer Mac must ensure that interest rate risk is properly managed on both a long-range and a day-to-day basis.
(c) The board of directors of Farmer Mac must adopt an interest rate risk management policy that establishes appropriate interest rate risk exposure limits based on the Corporation's risk-bearing capacity and reporting requirements in accordance with paragraphs (d) and (e) of this section. At least annually, the board of directors, or a designated subcommittee of the board, must review the policy. Any changes to the policy must be approved by the board of directors. You must report any changes to the policy to FCA's Office of Secondary Market Oversight within 10 business days of adoption.
(d) The interest rate risk management policy must, at a minimum:
(1) Address the purpose and objectives of interest rate risk management;
(2) Identify and analyze the causes of interest rate risks within Farmer Mac's existing balance sheet structure;
(3) Require Farmer Mac to measure the potential impact of these risks on projected earnings and market values by conducting interest rate shock tests and simulations of multiple economic scenarios at least quarterly;
(4) Describe and implement actions needed to obtain Farmer Mac's desired risk management objectives;
(5) Document the objectives that Farmer Mac is attempting to achieve by purchasing eligible investments that are authorized by § 652.35 of this subpart;
(6) Require Farmer Mac to evaluate and document, at least quarterly, whether these investments have actually met the objectives stated under paragraph (d)(4) of this section;
(7) Identify exception parameters and post approvals needed for any exceptions to the policy's requirements;
(8) Describe delegations of authority; and
(9) Describe reporting requirements, including exceptions to policy limits.
(e) At least quarterly, Farmer Mac's management must report to the Corporation's board of directors, or a designated subcommittee of the board, describing the nature and level of interest rate risk exposure. Any deviations from the board's policy on interest rate risk must be specifically identified in the report and approved by the board, or a designated subcommittee of the board.
(a)
(b)
(c)
(1) For cash and overnight investments, multiply the cash and investments by 100 percent;
(2) For money market instruments with maturities of 5 business days or less, multiply the instruments by 97 percent of market value;
(3) For money market instruments with maturities greater than 5 business days and floating rate debt and preferred stock securities, multiply the instruments and securities by 95 percent of market value;
(4) For diversified investment funds, multiply the individual securities in the funds by the discounts that would apply to the securities if held separately;
(5) For fixed rate debt and preferred stock securities, multiply the securities by 90 percent of market value;
(6) For securities backed by Farmer Mac program assets (loans) guaranteed by the United States Department of Agriculture as described in section 8.0(9)(B) of the Act, multiply the securities by 75 percent; and
(7) We reserve the authority to modify or determine the appropriate discount for any investment used to meet the minimum liquidity reserve requirement if the otherwise applicable discount does not accurately reflect the liquidity of that investment or if the investment does not fit wholly within one of the specified investment categories. In making any modification or determination, we will consider the liquidity of the investment as well as any other relevant factors. We will provide notice of at least 20 business days before any modified discounts will take effect.
(d)
(e)
(1) The purpose and objectives of liquidity reserves;
(2) A listing of specific assets, debt, and arrangements that can be used to meet liquidity objectives;
(3) Diversification requirements of your liquidity reserve portfolio;
(4) Maturity limits and credit quality standards for non-program investments used to meet the minimum liquidity reserve requirement of paragraph (a) of this section;
(5) The minimum and target (or optimum) amounts of liquidity that the board believes are appropriate for Farmer Mac;
(6) The maximum amount of non-program investments that can be held for meeting Farmer Mac's liquidity needs, as expressed as a percentage of program assets and program obligations;
(7) Exception parameters and post approvals needed;
(8) Delegations of authority; and
(9) Reporting requirements.
(f)
(g)
(a) Farmer Mac is authorized to hold eligible non-program investments listed under § 652.35 for the purposes of complying with the interest rate risk requirements of § 652.15, complying with the liquidity reserve requirements of § 652.20, and managing surplus short-term funds.
(b) Non-program investments cannot exceed the greater of $1.5 billion or thirty-five (35) percent of program assets and program obligations, excluding 75 percent of the program assets that are guaranteed by the United States Department of Agriculture as described in section 8.0(9)(B) of the Farm Credit Act of 1971, as amended.
Whenever the FCA determines that an extraordinary situation exists that necessitates a temporary regulatory waiver or modification, the FCA may, in its sole discretion:
(a) Modify or waive the minimum liquidity reserve requirement in § 652.20 of this subpart; and/or
(b) Modify the amount, qualities, and types of eligible investments that you are authorized to hold pursuant to § 652.25 of this subpart.
(a) You may hold only the types, quantities, and qualities of non-program investments listed in the following Non-Program Investment Eligibility Criteria Table. These investments must be denominated in United States dollars.
(b)
(c)
(d)
(2)
(e)
(2) Your request for our approval must explain the risk characteristics of the investment and your purpose and objectives for making the investment.
(a) You must perform stress tests to determine how interest rate changes will affect the cashflow and price of each mortgage security that you purchase and hold, except for adjustable rate mortgage securities that reprice at intervals of 12 months or less and are tied to an index. You must also use stress tests to gauge how interest rate fluctuations on mortgage securities affect your capital and earnings. The stress tests must be able to measure the price sensitivity of mortgage instruments over different interest rate/yield curve scenarios and be consistent with any asset liability management and interest rate risk policies. The methodology that you use to analyze mortgage securities must be appropriate for the complexity of the instrument's structure and cashflows. Prior to purchase and each quarter thereafter, you must use the stress tests to determine that the risk in the mortgage securities is within the risk limits of your board's investment policies. The stress tests must enable you to determine at the time of purchase and each subsequent quarter that the mortgage security does not expose your capital or earnings to excessive risks.
(b) You must rely on verifiable information to support all your assumptions, including prepayment and interest rate volatility assumptions. You must document the basis for all assumptions that you use to evaluate the security and its underlying mortgages. You must also document all subsequent changes in your assumptions. If at any time after purchase, a mortgage security no longer complies with requirements in this section, Farmer Mac's management must report to the Corporation's board of directors in accordance with § 652.10(g).
(a)
(2)
(b)
Secs. 4.12, 5.9, 5.17, 8.11, 8.31, 8.32, 8.33, 8.34, 8.35, 8.36, 8.37, 8.41 of the Farm Credit Act (12 U.S.C. 2183, 2243, 2252, 2279aa-11, 2279bb, 2279bb-1, 2279bb-2, 2279bb-3, 2279bb-4, 2279bb-5, 2279bb-6, 2279cc); sec. 514 of Pub. L. 102-552, 106 Stat. 4102; sec. 118 of Pub. L. 104-105, 110 Stat. 168.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is superseding an existing airworthiness directive (AD), which applies to certain McDonnell Douglas transport category airplanes. That AD currently requires implementation of a program of structural inspections to detect and correct fatigue cracking in order to ensure the continued airworthiness of these airplanes as they approach the manufacturer's original fatigue design life goal. This new AD requires implementation of a program of structural inspections of baseline structure to detect and correct fatigue cracking in order to ensure the continued airworthiness of these airplanes as they approach the manufacturer's original fatigue design life goal. This AD is prompted by a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. We are issuing this AD to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes.
This AD becomes effective August 18, 2005.
The incorporation by reference of Boeing Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume I, Revision 6, dated February 2002; and McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume II Revision 8, dated November 2003; as listed in the AD, is approved by the Director of the Federal Register as of August 18, 2005.
On January 2, 1996, (60 FR 61649, December 1, 1995), the Director of the Federal Register approved the incorporation by reference of certain publications, as listed in the regulations.
On November 24, 1993 (58 FR 54949, October 25, 1993), the Director of the Federal Register approved the incorporation of a certain other publication, as listed in the regulations.
For service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). You can examine this information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Ron Atmur, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5224; fax (562) 627-5210.
The FAA proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with an AD to supersede AD 95-23-09, amendment 39-9429 (60 FR 61649, December 1, 1995). The existing AD applies to certain McDonnell Douglas transport category airplanes. The proposed AD was published in the
We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.
One commenter, an operator, advises that it has no objection to the proposed AD.
One commenter, an operator, requests that, for airplanes approaching
We agree that the grace period specified in paragraph (j)(1) of the AD may be extended to “within 60 months after the effective date of the AD,” and have revised paragraph (j)(1) of the final rule accordingly. We consider that extension of the grace period will not
One commenter states that the proposed AD introduces a more complicated compliance “procedure” than that in the existing AD. The commenter also states that the “new procedure” leaves questions of interpretation.
The FAA agrees that some clarification is needed. The concept of the SID inspections has resulted in some confusion since the beginning of the DC-10 SID program more than 15 years ago. The original intent of the SID program was that operators would perform the principal structural element (PSE) inspections at or near the threshold (N
One commenter notes that, if a discrepancy is found, the compliance time in paragraph (k) of the proposed AD could ground an airplane while approval of a repair from the Manager, Los Angeles Aircraft Certification Office (ACO), is obtained. Another commenter, the manufacturer, points out that, in some instances, a repair is installed after the approved inspection is accomplished and is not discovered until the next required inspection is attempted, which would effectively ground the airplane. The manufacturer suggests that we continue to require inspection after detection of a discrepancy before (N
We agree that a “grace period” may be added to paragraph (k) of the AD. We have determined that allowing an 18-month grace period for repairs that have met the static strength requirement provides an acceptable level of safety. We have revised paragraph (k) of the final rule accordingly.
One commenter, the manufacturer, requests that Model MD-10 airplanes be removed from the applicability of the proposed AD. The commenter notes that Model MD-10 airplanes have an Airworthiness Limitations Instructions (ALI) document that references the Model DC-10 SID. The commenter believes that confusion may result if the Model MD-10 airplanes are included in the applicability of the proposed AD.
We agree that Model MD-10 airplanes may be removed from the applicability of this AD. The Model MD-10 airplanes have an ALI document that is based on a previous Model DC-10 SID, which was a 100% inspection program at the threshold. However, since rulemaking is necessary to ensure that the Model MD-10 ALI is revised with the latest revision, we may engage in separate rulemaking for those airplanes. We have removed reference to the MD-10 airplanes in the applicability of this AD.
One commenter, the manufacturer, requests that the FAA reference the SID definition of “discrepant PSE” or specify the SID definition verbatim. The commenter advises that making the definition of “discrepant PSE” the same as the SID may prevent any possible confusion.
We agree that clarification is necessary. We have revised paragraph (k) of the final rule to more clearly correlate the definition of “discrepancy” with the definition provided in the SID.
One commenter, the manufacturer, requests that paragraph (r) of the proposed AD be revised to limit the acceptable AMOCs to repairs and inspections accomplished using previous alternative inspection procedures. (Paragraph (r) of the proposed AD addresses AMOCs approved previously in accordance with AD 95-23-09.) The commenter explains that this will help clarify the change to the SID program that occurred with Boeing Report No. L26-012, Volume I, Revision 6, dated February 2002.
We agree with the commenter and have revised paragraph (r)(2) of the final rule accordingly.
Several commenters disagree with the statement in the “Costs of Compliance” section of the proposed AD that “there is no additional economic burden on affected operators to perform any additional recurrent inspections.” The commenters state that the inspection schedule used in AD 95-23-09 is based on fleet sampling, and the new SID program and the proposed AD would change this requirement to a 100% sampling program. The commenters state that the change in the requirement would result in a significant increase in the average labor hours per aircraft in operators' fleets. One commenter also notes that, in the same section of the proposed AD, in the phrase “* * * takes about 1,290 work hours per airplane,” the correct reference should be “per operator” rather than “per airplane.” Additionally, the commenter points out that no costs were stated in the proposed AD for the hours necessary for access to perform the inspections.
We do agree that the correct reference in the phrase “ * * * takes about 1,290 work hours per airplane” should be “per operator,” and we have revised the final rule accordingly. We do not agree with the commenter that AD 95-23-09 is based on fleet sampling. As specified in paragraph (g)(1) of the AD, which is part of the “Restatement of Certain Requirements of AD 95-23-09,” all PSEs are required to be inspected before the fatigue life threshold (N
One commenter, the manufacturer, requests that paragraph (o) of the proposed AD be revised to reference previous ADs rather than previous service information. The commenter states that all inspections accomplished per any previous revision of the DC-10 SID should be satisfactory to meet the requirements of paragraph (j) of the proposed AD.
We do not agree with the commenter. Paragraph (o) of the AD simply specifies certain revisions of the DC-10 SID that are acceptable for compliance with the inspection requirements of paragraph (j) of this AD. That information may be helpful for operators who may have performed certain inspections previously in accordance with the specified revisions. No change to the final rule is necessary in this regard.
One commenter, the manufacturer, requests that the AD explain why certain requirements of AD 95-23-09 are included in the proposed AD.
Including a restatement in an AD of certain requirements of a superseded AD is a standard and common method of ensuring that certain actions are continued until the compliance times of “new” requirements are effective. Otherwise, there would be a gap between the two ADs when operators would be subject to the requirements of neither. In the preamble of the proposed AD, under the heading “Change to Existing AD,” we identified the specific requirements of AD 95-23-09 that would be retained with the requirements of this AD. In this case, those “certain requirements” continue to be required until the new requirements of paragraph (i) of this AD are accomplished. No change to the final rule is necessary in this regard.
One commenter requests that we clarify paragraphs (m)(2) and (m)(3) to ensure that the thresholds specified in those paragraphs refer to the repair threshold, not the PSE threshold.
We agree that clarification is necessary, and we have revised those paragraphs in this final rule accordingly.
One commenter, the manufacturer, requests that paragraph (p) of the proposed AD also reference paragraph (j) of the proposed AD. (Paragraph (p) of the proposed AD specifies that McDonnell Douglas Report No. MDC 91K0264, “DC-10/KC-10 Aging Aircraft Repair Assessment Program Document,” Revision 1, dated October 2000, provides inspection/replacement programs for certain repairs to the fuselage pressure shell.) The commenter states that the document should also be considered as an acceptable method of compliance with the requirements of paragraph (j) of the proposed AD.
We do not agree. Paragraph (j) of the AD requires NDI inspections for fatigue cracking of each PSE at certain specified times, and does not specify repair requirements. Paragraph (p) of the AD specifies that certain repairs and inspection/replacement programs are acceptable for compliance with certain requirements of paragraphs (h) and (m) of the AD for repairs that are subject to that document. No change to the final rule is necessary in this regard.
Several commenters note that the references in paragraphs (m)(2) and (m)(3) of the proposed AD should refer to paragraph (m)(1) instead of (j)(1) of the proposed AD.
We agree that the correct reference is paragraph (m)(1) and have revised the final rule accordingly.
One commenter requests a definition of the word “you” in paragraph (e) of the proposed AD. We have recently revised the paragraph with the heading, “Compliance,” in our ADs. We use the word “you” as part of our “plain language” effort to make ADs easier to understand. In this case, “you” means whoever is responsible for the certificated operation of an aircraft,
Boeing has received a Delegation Option Authorization (DOA). We have revised this final rule add a delegation of authority to approve an alternative method of compliance for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization.
We noticed that in paragraph (l) of the proposed AD, there is reference to “paragraph (o)” of the proposed AD. The correct reference should be to paragraph (j) or (o) of the AD, and we have revised paragraph (l) of the final rule accordingly. Additionally, we note that, in paragraph (g) of the proposed AD, we inadvertently specified December 1, 1995, as the effective date of AD 95-23-09. The effective date of AD 95-23-09 is January 2, 1996, and we have revised the final rule accordingly.
We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.
This is considered to be interim action. We are currently considering requiring damage tolerance-based inspections and procedures that include all major structural repairs, alterations, and modifications (RAMs), which may result in additional rulemaking. That rulemaking may include appropriate recommendations from the previously mentioned FAA team and a public meeting on how to address RAMs.
There are about 419 McDonnell Douglas transport category airplanes worldwide of the affected design. This AD will affect about 249 airplanes of U.S. registry and 13 U.S. operators.
The incorporation of the SID program into an operator's maintenance program, as required by AD 95-23-09, and retained in this AD takes about 1,290 work hours per operator, at an average labor rate of $65 per work hour. Based on these figures, the cost to the 13 affected U.S. operators to incorporate the SID program is estimated to be $1,090,050.
The recurring inspection costs, as required by AD 95-23-09, are estimated to be 365 work hours per airplane, per year, at an average labor rate of $65 per work hour. Based on these figures, the recurring inspection costs required by AD 95-23-09 are estimated to be $23,725 per airplane, per year, or $5,907,525 for the affected U.S. fleet per year.
Since no new recurring inspection procedures have been added to the program by this new AD, there is no additional economic burden on affected operators to perform any additional recurrent inspections.
Additionally, the number of required work hours for each inspection (and the
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective August 18, 2005.
(b) This AD supersedes AD 95-23-09, amendment 39-9429.
(c) This AD applies to all McDonnell Douglas Model DC-10-10 and DC-10-10F airplanes; Model DC-10-15 airplanes; Model DC-10-30 and DC-10-30F (KC-10A and KDC-10) airplanes; and Model DC-10-40 and DC-10-40F airplanes; certificated in any category.
(d) This AD was prompted by a significant number of these airplanes approaching or exceeding the design service goal on which the initial type certification approval was predicated. We are issuing this AD to detect and correct fatigue cracking that could compromise the structural integrity of these airplanes.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 6 months after November 24, 1993 (the effective date of AD 93-17-09, amendment 39-8680), incorporate a revision into the FAA-approved maintenance inspection program which provides for inspection(s) of the Principal Structural Elements (PSEs) defined in Section 2 of Volume I of McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Revision 3, dated December 1992, in accordance with Section 2 of Volume III-92, dated October 1992, of the SID. The non-destructive inspection (NDI) techniques set forth in Section 2 and Section 4 of Volume II, Revision 3, dated December 1992, of the SID provide acceptable methods for accomplishing the inspections required by this paragraph. All inspection results (negative or positive) must be reported to McDonnell Douglas, in accordance with the instructions contained in Section 2 of Volume III-92, dated October 1992, of the SID. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(1) For those Fleet Leader Operator Sampling (FLOS) PSEs that do not have a Normal Maintenance Visual Inspection specified in Section 4 of Volume II, Revision 3, dated December 1992, of the SID, the procedure for general visual inspection is as follows: Perform an inspection of the general PSE area for cleanliness, presence of foreign objects, security of parts, cracks, corrosion, and damage.
(2) For PSEs 53.10.031E/.032E, 53.10.047E/.048E, and 57.10.029E/.030E: The ENDDATE for these PSEs is October 1993. (For these PSEs, disregard the June 1993 ENDDATE specified in Section 2 of Volume III-92, dated October 1992, of the SID.)
(g) Within 6 months after January 2, 1996 (the effective date of AD 95-23-09, amendment 39-9429), replace the revision of the FAA-approved maintenance inspection program required by paragraph (f) of this AD with a revision that provides for inspection(s) of the PSEs defined in Section 2 of Volume I of McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Revision 5, dated October 1994, in accordance with Section 2 of Volume III-94, dated November 1994, of the SID. The NDI techniques set forth in Section 2 of Volume II, Revision 5, dated October 1994, of the SID provide acceptable methods for accomplishing the inspections required by this paragraph.
(1) Prior to reaching the threshold (N
(2) This AD does not require visual inspections of FLOS PSEs on airplanes listed in Volume III-94, dated November 1994, of the SID planning data at least once during the specified inspection interval, in accordance with Section 2 of Volume III-94, dated November 1994, of the SID.
(3) For PSEs 53.10.055/.056E, 55.10.013/.014B, 53.10.005/.006E, 53.10.031/.032E, 53.10.047/.048E, 57.10.029/.030E: The EDATE for these PSEs is June 1998. (For these PSEs, disregard the June 1996 EDATE specified in Section 2, of Volume III-94, dated November 1994, of the SID.)
(4) All inspection results (negative or positive) must be reported to McDonnell Douglas in accordance with the instructions contained in Section 2 of Volume III-94, dated November 1994, of the SID. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(h) Any cracked structure detected during the inspections required by paragraph (f) or (g) of this AD must be repaired before further flight, in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA.
Requests for approval of any PSE repair that would affect the FAA-approved maintenance inspection program required by this AD should include a damage tolerance assessment for that PSE repair.
(i) Within 12 months after the effective date of this AD, incorporate a revision into the FAA-approved maintenance inspection program that provides for inspection(s) of the PSEs, in accordance with Boeing Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume I, Revision 6, dated February 2002.” Unless otherwise specified, all further references in this AD to the “SID” are to Revision 6, dated February 2002.
(j) For all PSEs listed in Section 2 of Volume I of the SID, perform an NDI for fatigue cracking of each PSE in accordance with the NDI procedures specified in Section 2 of Volume II, Revision 8, dated November 2003, of the SID, at the times specified in paragraph (j)(1), (j)(2), or (j)(3) of this AD, as applicable.
(1) For airplanes that have less than three quarters of the fatigue life threshold (
(i) Perform an initial NDI no earlier than one-half of the threshold (
(ii) Repeat the NDI no earlier than (
The SID and this AD refer to the repetitive inspection interval as ΔNDI/2. However, the headings of the tables in Section 4 of Volume I of the SID refer to the repetitive inspection interval of NDI/2. The values listed under NDI/2 in the tables in Section 4 of Volume I of the SID are the repetitive inspection intervals, ΔNDI/2.
(2) For airplanes that have reached or exceeded three-quarters of the fatigue life threshold (
(3) For airplanes that have reached or exceeded the fatigue life threshold (N
(k) If any discrepancy (
(1) If a discrepancy is detected during any inspection performed prior to
(2) If a discrepancy is detected during any inspection performed after N
(l) All negative, positive, or discrepant findings (examples of discrepant findings are described in paragraph (k) of this AD) of the inspections accomplished under paragraphs (j) or (o) of this AD must be reported to Boeing, at the times specified in, and in accordance with the instructions contained in, Section 4 of Volume I of the SID. Information collection requirements contained in this regulation have been approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
(m) Any cracked structure of a PSE detected during any inspection required by paragraph (j) of this AD must be repaired before further flight in accordance with a method approved by the Manager, Los Angles ACO or in accordance with data meeting the certification basis of the airplane approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization who has been authorized by the Manager, Los Angeles Aircraft Certification Office (ACO), to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Accomplish the follow-on actions described in paragraphs (m)(1), (m)(2), and (m)(3) of this AD, at the times specified.
(1) Within 18 months after repair, perform a damage tolerance assessment (DTA) that defines the threshold for inspection of the repair and submit the assessment for approval.
(2) Before reaching 75% of the repair threshold as determined in paragraph (m)(1) of this AD, submit the inspection methods and repetitive inspection intervals for the repair for approval.
(3) Before the repair threshold, as determined in paragraph (m)(1) of this AD, incorporate the inspection method and repetitive inspection intervals into the FAA-approved structural maintenance or inspection program for the airplane.
For the purposes of this AD, we anticipate that submissions of the DTA of the repair, if acceptable, should be approved within six months after submission.
Advisory Circular (AC) 25.1529-1, “Instructions for Continued Airworthiness of Structural Repairs on Transport Airplanes,” dated August 1, 1991, is considered to be additional guidance concerning the approval of repairs to PSEs.
(n) Before any airplane that has exceeded the fatigue life threshold (N
(1) For airplanes that have been inspected in accordance with this AD, the inspection of each PSE must be accomplished by the new operator in accordance with the previous operator's schedule and inspection method, or the new operator's schedule and inspection method, at whichever time would result in the earlier accomplishment date for that PSE inspection. The compliance time for accomplishment of this inspection must be measured from the last inspection accomplished by the previous operator. After each inspection has been performed once, each subsequent inspection must be performed in accordance with the new operator's schedule and inspection method.
(2) For airplanes that have not been inspected in accordance with this AD, the inspection of each PSE required by this AD must be accomplished either prior to adding the airplane to the air carrier's operations specification, or in accordance with a schedule and an inspection method approved by the Manager, Los Angeles ACO. After each inspection has been performed once, each subsequent inspection must be performed in accordance with the new operator's schedule.
(o) Inspections accomplished before the effective date of this AD in accordance with McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume I, Revision 4, dated June
(p) McDonnell Douglas Report No. MDC 91K0264, “DC-10/KC-10 Aging Aircraft Repair Assessment Program Document,” Revision 1, dated October 2000, provides inspection/replacement programs for certain repairs to the fuselage pressure shell. These repairs and inspection/replacement programs are considered acceptable for compliance with the requirements of paragraphs (h) and (m) of this AD for repairs subject to that document.
(q) The Manager, Los Angles ACO, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(r)(1) Inspection procedures accomplished and approved previously as AMOCs prior to the effective date of this AD as alternative inspection procedures in accordance with AD 95-23-09, amendment 39-9429; AD 93-17-09, amendment 39-8680; AD 92-02-08, amendment 39-8144; or AD 89-22-10, amendment 39-6330; are approved as AMOCs with the actions required by paragraph (j) of this AD.
(2) Repairs accomplished and approved previously as AMOCs in accordance with AD 95-23-09, amendment 39-9429; AD 93-17-09, amendment 39-8680; AD 92-02-08, amendment 39-8144; or AD 89-22-10, amendment 39-6330; are approved as AMOCs with the actions required by paragraph (h) or (m) of this AD.
(s) You must use the service information that is specified in Table 1 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise.
(1) The incorporation by reference of Boeing Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume I, including Appendices A and B, Revision 6, dated February 2002; and McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID)” Volume II, Revision 8, dated November 2003; is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. (Only the title, Record of Revision, and List of Effective pages identify Boeing Report No. L26-012, Volume I, as Revision 6. Only page 3.1 of Section 3 and pages B-1 through B-4 of Appendix B of Volume I, Revision 6, contain the Boeing Report No., L26-012. Only the title, Record of Revision, and Table of Contents pages identify McDonnell Douglas Report No. L26-012, Volume II, as Revision 8. Only the title page of Volume II, Revision 8, contains the McDonnell Douglas Report No., L26-012.)
(2) The incorporation by reference of McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume II, Revision 5, dated October 1994; and McDonnell Douglas Report No. L26-012, Volume III-94, dated November 1994; was approved previously by the Director of the Federal Register as of January 2, 1996 (60 FR 61649, December 1, 1995).
(3) The incorporation by reference of McDonnell Douglas Report No. L26-012, “DC-10 Supplemental Inspection Document (SID),” Volume III-92, dated October 1992, was approved previously by the Director of the Federal Register as of November 24, 1993 (58 FR 54949, October 25, 1993).
(4) To get copies of the service information, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024). To view the AD docket, go to the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., room PL-401, Nassif Building, Washington, DC. To review copies of this service information, go to the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call (202) 741-6030, or go to
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for Hartzell Propeller Inc. models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B3MN-3, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, HC-B4MP-3, HC-B4MP-5, and HC-B5MP-3 propellers, installed with propeller mounting bolts, part number (P/N) B-3339. This AD requires initial and repetitive visual inspections and torque checks of certain manufacture lot numbers of propeller mounting bolts, P/N B-3339, and eventual removal from service of those bolts. This AD results from the discovery during routine
This AD becomes effective July 29, 2005. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of July 29, 2005.
We must receive any comments on this AD by September 12, 2005.
Use one of the following addresses to comment on this AD:
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Contact Hartzell Propeller Inc. Technical Publications Department, One Propeller Place, Piqua, OH 45356; telephone (937) 778-4200; fax (937) 778-4391, for the service information referenced in this AD.
Tim Smyth, Aerospace Engineer, Chicago Aircraft Certification Office, FAA, Small Airplane Directorate, 2300 East Devon Avenue, Des Plaines, IL 60018; telephone: (847) 294-7132; fax: (847) 294-7834.
Hartzell Propeller Inc. has informed us that recently during routine installation of a steel hub propeller, one of the propeller mounting bolts, P/N B-3339, did not properly absorb the installation torque. The suspect bolt was removed and examined. Hartzell Propeller Inc., found that the bolt does not have the proper material hardness as specified by the propeller type design requirements. That bolt was identified as part of LFC Manufacturing Lot No. 56. Hartzell Propeller Inc., examined their inventory of bolts and found two other Lot No. 56 bolts also below proper material hardness. During this investigation, Hartzell Propeller Inc. also discovered a quantity of bolts, P/N B-3339, from LFC Manufacturing Lot No. 12, with material surface pitting underneath the anti-corrosion coating. These pitted bolts also do not meet the propeller type design requirements. This condition, if not corrected, could result in propeller mounting bolt failures or improperly secured propellers, which could lead to separation of the propeller from the airplane.
We have reviewed and approved the technical contents of Hartzell Propeller Inc. Alert Service Bulletin (ASB) No. HC-ASB-61-279, Revision 2, dated May 6, 2005, that describes procedures to visually inspect, torque check, and replace the affected bolts.
The unsafe condition described previously is likely to exist or develop on other Hartzell Propeller Inc. models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B3MN-3, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, HC-B4MP-3, HC-B4MP-5, and HC-B5MP-3 propellers of the same type design, installed with propeller mounting bolts, P/N B-3339. For that reason, we are issuing this AD to prevent propeller mounting bolt failures or improperly secured propellers, which could lead to separation of the propeller from the airplane. This AD requires:
• Initial visual inspection and torque check of all eight mounting flange bolts when P/N B-3339 bolts from LFC manufacturing Lot No. 12 or Lot No. 56 are present, within 50 hours time-in-service (TIS) or 12 months after the effective date of the AD, whichever occurs first; and
• Thereafter, for all airplanes except Aerospatiale (Nord) Model 262(A) airplanes modified by STC SA2369SW, repetitive torque checks on all eight mounting flange bolts when P/N B-3339 bolts from LFC Manufacturing Lot No. 12 or Lot No. 56 are present, within 120 hours TIS since-last-inspection; and
• Thereafter, for Aerospatiale (Nord) Model 262(A) airplanes modified by STC SA2369SW, repetitive torque checks on all eight mounting flange bolts when P/N B-3339 bolts from LFC Manufacturing Lot No. 12 or Lot No. 56 are present, within 100 hours TIS since-last-inspection; and
• If any bolt fails the torque check, replacement of all eight bolts with P/N B-3339 bolts that are not from LFC Manufacturing Lot No. 12 or Lot No. 56, or with FAA-approved equivalent part number bolts.
• As mandatory terminating action to the repetitive visual inspections and torque checks required by this AD, replacement of all P/N B-3339, LFC Manufacturing Lot No. 12 and Lot No. 56 bolts with P/N B-3339 bolts that are not from LFC Manufacturing Lot No. 12 or Lot No. 56, or with FAA-approved equivalent part number bolts, within 12 months after the effective date of this AD.
You must use the service information described previously to perform the visual inspections, torque checks, and bolt replacements required by this AD.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the AD, any comments
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective July 29, 2005.
(b) None.
(c) This AD applies to Hartzell Propeller Inc. models HC-B3TN-2, HC-B3TN-3, HC-B3TN-5, HC-B3MN-3, HC-B4TN-3, HC-B4TN-5, HC-B4MN-5, HC-B4MP-3, HC-B4MP-5, and HC-B5MP-3 propellers installed with propeller mounting bolts, part number (P/N) B-3339. These propellers are installed on, but not limited to, the airplanes listed in the following Table 1:
(d) This AD results from the discovery during routine propeller installation that a bolt from a certain manufacture lot did not properly absorb the installation torque. This AD also results from the discovery that other bolts of the same part number from a different certain manufacture lot had material surface pitting. We are issuing this AD to prevent propeller mounting bolt failures or improperly secured propellers, which could lead to separation of the propeller from the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done.
(f) Perform initial visual inspection and torque check of all eight mounting flange bolts when P/N B-3339 bolts from LFC manufacturing Lot No. 12 or Lot No. 56 are present, within 50 hours time-in-service (TIS) or 12 months after the effective date of the AD, whichever occurs first. For the location of bolt identification marks, see Figure 1 of Hartzell Propeller Inc. Alert Service Bulletin (ASB) No. HC-ASB-61-279, Revision 2, dated May 6, 2005.
(g) Thereafter, for all airplanes except Aerospatiale (Nord) Model 262(A) airplanes modified by STC SA2369SW, perform repetitive torque checks on all eight mounting flange bolts when P/N B-3339 bolts from LFC Manufacturing Lot No. 12 or Lot No. 56 are present, within 120 hours TIS since-last-inspection.
(h) Thereafter, for Aerospatiale (Nord) Model 262(A) airplanes modified by STC SA2369SW, perform repetitive torque checks on all eight mounting flange bolts when P/N B-3339 bolts from LFC Manufacturing Lot No. 12 or Lot No. 56 are present, within 100 hours TIS since-last-inspection.
(i) If any bolt fails the torque check, replace all eight bolts with P/N B-3339 bolts that are not from LFC Manufacturing Lot No. 12 or Lot No. 56, or with FAA-approved equivalent part number bolts.
(j) Perform the actions specified in paragraphs (f), (g), (h), and (i) of this AD, using paragraphs 3.A through 3.B.(5) of the Accomplishment Instructions of Hartzell Propeller Inc. ASB No. HC-ASB-61-279, Revision 2, dated May 6, 2005.
(k) As mandatory terminating action to the repetitive visual inspections and torque checks required by this AD, replace all P/N B-3339, LFC Manufacturing Lot No. 12 and Lot No. 56 bolts with P/N B-3339 bolts that are not from LFC Manufacturing Lot No. 12 or Lot No. 56, or with FAA-approved equivalent part number bolts, within 12 months after the effective date of this AD. Use paragraph 3.C of Accomplishment Instructions of Hartzell Propeller Inc. ASB No. HC-ASB-61-279, Revision 2, dated May 6, 2005, to do the bolt replacement.
(l) The Manager, Chicago Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(m) AD 2004-21-01, Amendment 39-13822 (69 FR 60952) also pertains to the subject of this AD.
(n) You must use Hartzell Propeller Inc. Alert Service Bulletin No. HC-ASB-61-279, and Alert Service Bulletin Appendix No. HC-ASBA-61-279, Revision 2, dated May 6, 2005, to perform the initial and repetitive visual inspections, torque checks, and bolt replacements required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Hartzell Propeller Inc. Technical Publications Department, One Propeller Place, Piqua, OH 45356; telephone (937) 778-4200; fax (937) 778-4391, for a copy of this service information.
You may review copies at the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001, on the internet at
Bureau of Indian Affairs, Interior.
Final rule.
This rule implements provisions of the American Indian Trust Fund Management Reform Act of 1994 by revising the regulations governing proceeds from public lands withdrawn for Native selection under the Alaska Native Claims Settlement Act.
This rule is effective on July 14, 2005.
Assistant Director, Office of Trust Regulations, Policies and Procedures, by telephone at (505) 816-1086, or by facsimile transmission at (505) 816-1377.
This rule is published by the authority of the Secretary, granted under 43 U.S.C. 1601
The Alaska Native Claims Settlement Act (ANCSA) was created to address the need for a fair and just settlement of all claims by Natives and Native groups of Alaska, based upon aboriginal land claims. It allows certain Alaskan Natives and Native Corporations to select lands to be withdrawn from public lands. Until proper title can be conveyed, the proceeds derived from contracts, leases, permits, and rights of way or easements pertaining to the affected lands will be escrowed. This regulation provides contact information to be used by all Departments and Agencies, the State of Alaska, and any other interested parties for deposit information. This regulation is published by the Assistant Secretary—Indian Affairs in consultation with the Special Trustee for American Indians under the provisions of the American Indian Trust Fund Management Reform Act of 1994.
The Department of the Interior has determined that the public notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not apply because of the good cause exception under 5 U.S.C. 553(b)(3)(B), which allows the agency to suspend the notice and public procedure when the agency finds for good cause that those requirements are impractical, unnecessary and contrary to the public interest. This rule updates references to Department of the Interior offices and simplifies and clarifies language; it makes no substantive changes. For these reasons public comments are unnecessary and good cause exists for publishing this change as a final rule effective immediately.
In accordance with the criteria in Executive Order 12866, this rule is not a significant regulatory action because:
(a) This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. This regulation merely provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
(b) This rule will not create inconsistencies with other Agencies' actions. This regulation merely provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
(c) This rule will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. This regulation merely provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
(d) This rule will not raise novel legal or policy issues. This regulation merely provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more. The deposit of proceeds for a one year period do not add up to $100 million.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This regulation provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
(a) This rule will not “significantly or uniquely” affect small governments. A Small Government Agency Plan is not required. This regulation provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
(b) This rule will not produce a Federal mandate of $100 million or greater in any year,
This rule does not have significant takings implications. A takings implication assessment is not required. The purpose of this regulation is to provide contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
This rule does not have significant Federalism effects. A Federalism assessment is not required. This regulation does not contain federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). The proposed regulations do not change any aspect of Federal-State relations already provided for in the current version of the rule.
The Office of the Solicitor has determined that the rule does not unduly burden the judicial system and does not meet the requirements of sections 3(a) and 3(b)(2) of the Order. The proposed regulation does not involve court action, nor does it provide significant use of enforcement or judicial action.
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Office has analyzed this rule in accordance with the criteria of the National Environmental Policy Act and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement is not required. This regulation provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments,” Executive Order 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects. The purpose of this regulation is to provide contact information to be used by all Departments and Agencies and the State of Alaska for deposit information. The regulation pertains to funds that may belong to specific Native groups. No other Indian tribes or Native groups are affected by this regulation.
In accordance with Executive Order 13211, this regulation does not have a significant effect on the nation's energy supply, distribution, or use. This regulation provides contact information to be used by all Departments and Agencies and the State of Alaska for deposit information. There are no energy issues involved.
Alaska Natives, Indians, Trust.
43 U.S.C. 1601
This part provides contact information on depositing proceeds from contracts, leases, permits, rights-of-way, or easements pertaining to lands withdrawn for Native selection under the Alaska Native Claims Settlement Act. All Federal agencies and the State of Alaska must use this part when making deposits of this type.
When a Federal agency or the State of Alaska receives proceeds covered by this part, it must deposit the proceeds to the credit of the United States Department of the Interior, Office of the Special Trustee for American Indians. For further information including depositing instructions, contact: Office of the Special Trustee for American Indians, Attention: Division of Trust Funds Accounting, 4400 Masthead Street NE., Albuquerque, New Mexico 87109.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations relating to the allocation and apportionment of the deduction for charitable contributions allowed under sections 170, 873(b)(2), and 882(c)(1)(B) and the deduction for charitable contributions allowed under an income tax treaty. These regulations apportion the deduction for charitable contributions on the basis of income from sources within the United States. These regulations affect individuals and corporations that make contributions to charitable organizations and that have foreign source income and calculate their foreign tax credit limitations under section 904.
Teresa Burridge Hughes at (202) 622-3850 (not a toll-free call).
This document contains amendments to 26 CFR part 1. Section 1.861-8(e)(9)(iv) (the 1977 regulations) provided that deductions for charitable contributions generally were not definitely related to any gross income and therefore were ratably apportioned to the statutory and residual groupings on the basis of gross income. In 1991, the Treasury Department and the IRS issued proposed regulations (the 1991 proposed regulations) that would have changed the ratable apportionment rule of the 1977 regulations to a rule that, assuming certain requirements were met, generally would have apportioned the deduction for a charitable contribution based on where the contribution would have been used. Prop. Treas. Reg. § 1.861-8(e)(12), 56 FR 10,395.
On July 28, 2004, the Treasury Department and the IRS issued temporary regulations (T.D. 9143, 2004-36 I.R.B. 442) relating to the allocation and apportionment of the deduction for charitable contributions allowed under sections 170, 873(b)(2), and 882(c)(1)(B) of the Internal Revenue Code. A notice of proposed rulemaking by cross reference to the temporary regulations (REG-208246-90, 2004-36 I.R.B. 450) was also published in the
These final regulations adopt the rules of the temporary and proposed regulations, which provide that the deduction for charitable contributions allowed under sections 170, 873(b)(2), and 882(c)(1)(B) is definitely related and allocable to all of the taxpayer's gross income and is apportioned between the statutory grouping (or among the statutory groupings) of gross income and the residual grouping on the basis of the relative amounts of gross income from sources in the United States in each grouping. The corresponding temporary regulations are removed.
One written comment responding to the temporary and proposed regulations was received. The comment requested that taxpayers be permitted to elect to apply the new allocation and apportionment rules to deductions for charitable contributions previously claimed on timely filed tax returns for all open tax years. After consideration, the Treasury Department and the IRS concluded that adoption of the comment's suggestion is not appropriate. The new allocation and apportionment rules apply to charitable contributions made on or after July 28, 2004. Although the temporary regulations permit taxpayers to apply the new rules to charitable contributions made before July 28, 2004, this election applies only to charitable contributions made in a taxable year that ends on or after July 28, 2004. The purpose of this election is to allow taxpayers to apply only one set of allocation and apportionment rules to charitable contributions made in the same taxable year. To permit taxpayers to apply the new rules to all open tax years would not provide such simplification and would raise concerns regarding fairness and administration.
The regulations also adopt, as proposed, the rules with respect to deductions for charitable contributions that are allowed under an income tax treaty (rather than by sections 170, 873(b)(2), and 882(c)(1)(B)). The regulations make one change to the effective date in the proposed regulations. As with the deduction for charitable contributions allowed under sections 170, 873(b)(2), and 882(c)(1)(B), the regulations give taxpayers the opportunity to apply the new rules for all charitable contributions made during the taxable year. Accordingly, the rule for the deduction for charitable contributions allowed under an income tax treaty is effective for taxable years beginning on or after July 14, 2005, with an election to apply the rule to contributions made before July 14, 2005, but during a taxable year that ends on or after July 14, 2005.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses.
The principal author of these regulations is Teresa Burridge Hughes, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The revision reads as follows:
(e) * * * (1) * * *
(12)
(ii)
(iii)
(iv)
(B) The rules of paragraphs (e)(12)(ii) of this section shall apply to charitable contributions made on or after July 14, 2005. Taxpayers may apply the provisions of paragraph (e)(12)(ii) of this section to charitable contributions made before July 14, 2005, but during the taxable year ending on or after July 14, 2005.
The revision reads as follows:
(h) * * * However, see §§ 1.861-8(e)(12)(iv) and 1.861-14(e)(6) for rules concerning the allocation and apportionment of deductions for charitable contributions. * * *
(d)(3) through (e)(5) [Reserved]. For further guidance, see § 1.861-14T(d)(3) through (e)(5).
(e)(6)
(ii)
(B) The rules of this paragraph shall apply to charitable contributions subject to § 1.861-8(e)(12)(ii) that are made on or after July 14, 2005, and, for taxpayers applying the second sentence of § 1.861-8(e)(12)(iv)(B), to charitable contributions made during the taxable year ending on or after July 14, 2005.
(f) through (j) [Reserved]. For further guidance, see § 1.861-14T(f) through (j).
Internal Revenue Service (IRS), Treasury.
Final regulation.
This document contains final regulations that describe the proper basis for determining the source of compensation for labor or personal services performed partly within and partly without the United States. These final regulations will affect individuals who earn compensation for labor or personal services performed partly within and partly without the United States and are needed to provide appropriate guidance regarding the determination of the proper source of that compensation.
David Bergkuist, (202) 622-3850 (not a toll-free number).
The collections of information contained in these final regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1900.
The collections of information in these final regulations are in § 1.861-4(b)(2) (ii)(C)(
An agency may not conduct or sponsor, and a person is not required to
Books or records relating to a collection of information must be retained as long as their contents might become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains amendments to 26 CFR part 1. On August 6, 2004, proposed revisions to the regulations (REG-208254-90) under section 861 of the Internal Revenue Code (Code) relating to the source of compensation for labor or personal services were published in the
These final regulations, as proposed in the notice of proposed rulemaking, retain the facts and circumstances basis as the general rule for determining the source of compensation for labor or personal services performed partly within and partly without the United States received by persons other than individuals and by individuals who are not employees. As proposed, the final regulations provide two general bases for determining the proper source of compensation that an individual receives as an employee for such labor or personal services. Under the first general basis of § 1.861-4(b)(2)(ii)(A), an individual will source compensation, other than compensation in the form of certain fringe benefits, on a time basis, as defined in § 1.861-4(b)(2)(ii)(E).
Under the second general basis of § 1.861-4(b)(2)(ii)(B) and (D), an individual will source compensation in the form of fringe benefits, as described in § 1.861-4(b)(2) (ii)(D)(1) through (
Comments were received that proposed several changes with regard to the fringe benefits described in § 1.861-4(b)(2)(ii)(D)(
The Treasury Department and the IRS considered the various comments regarding the approach, scope, and detail of the identified fringe benefits under the proposed regulations. In response to the comments, the final regulations modify the definition of education fringe benefit to include education expenses of the type described in section 530(b)(4)(A)(i) regardless of whether the education expenses are incurred in connection with enrollment or attendance at a school. The final regulations do not incorporate the suggestion for allowances based on estimated expenses because the Treasury Department and the IRS continue to believe that substantiation of relevant items is the more appropriate approach. Regarding the other proposed changes to the identified fringe benefits, the Treasury Department and the IRS believe that the regulations provide an appropriate scope of benefits, a reasonable manner of determining the appropriate amount of fringe benefit to be sourced geographically, and a reasonable limit to the amount of an individual's compensation that may be sourced under the exception to the general time basis rule of § 1.861-4(b)(2)(ii)(E). As noted in the preamble to the proposed regulations, the Treasury Department and the IRS intend to keep the list and descriptions of identified fringe benefits current and continue to invite comments on whether the identified fringe benefits are appropriately defined and whether other fringe benefits should be identified and sourced on a specific geographic basis.
Furthermore, the final regulations retain the proposed provision that permits an employee to use an alternative basis, based upon the facts and circumstances, to source such compensation if he or she establishes to the satisfaction of the Commissioner that such an alternative basis more properly determines the source of the compensation. An individual seeking to use an alternative basis need not obtain the satisfaction of the Commissioner prior to filing his or her return. To obtain the satisfaction of the Commissioner, an individual who uses an alternative basis must retain in his or her records documentation setting forth why the alternative basis more properly determines the source of the compensation than the basis for determining source of compensation described in § 1.861-4(b)(2)(ii)(A) or (B). One comment requested that substantiation by the individual's employer be accepted as substantiation by the employee, particularly where the alternative method is used by a group of employees. Whether an alternative basis more properly determines the source of an individual's compensation is based on the facts and circumstances of the individual's specific case. As a result, it is the individual employee, rather than the employer, who must demonstrate that the alternative basis more properly determines the source of the compensation than the basis for determining source of compensation described in § 1.861-4(b)(2)(ii)(A) or (B). It is expected, however, that the
Another comment requested relief from any penalties that might arise from inaccurate reporting or withholding if an alternative method is determined not to be acceptable or if the Commissioner determines that a method other than the two general methods determines the source of compensation in a more reasonable manner. The Treasury Department and the IRS believe that the existing standards of penalty administration, including applicable justifications, adequately address this matter.
Section 1.861-4(b)(2)(ii)(C)(
The proposed regulations at § 1.861-4(b)(2)(ii)(C)(
Proposed § 1.861-4(b)(2)(ii)(F) provided that the source of multi-year compensation of an employee is generally determined on a time basis over the applicable period to which the compensation is attributable. Determination of the applicable period to which the compensation is attributable (including whether the compensation relates to more than one taxable year) is based upon the facts and circumstances of the particular case. Comments requested additional guidance in the area of equity based compensation, particularly with respect to stock options, that relate to services performed over a period of more than one year. These comments requested guidance related to pre-grant sourcing, sourcing based upon exercise date, and non-conventional equity compensation awards. Because under the regulations the applicable period is determined based on the facts and circumstances of the particular case, and a taxpayer may assert an alternative method to source such compensation income pursuant to § 1.861-4(b)(2)(ii)(C)(1)(i), the Treasury Department and the IRS concluded that § 1.861-4(b)(2)(ii)(F), as proposed, was reasonable in its scope and the rules were not modified in the final regulations.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It is hereby certified that the collections of information contained in these regulations will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required. This certification is based upon that fact that the Treasury Department and the IRS believe that a time basis generally is the most appropriate method for determining the source of an individual employee's compensation for labor or personal services performed partly within and partly without the United States. The information necessary to apply the time basis should be readily available to employers and employees. For example, Form 2555, “Foreign Earned Income”, requires an individual who claims the foreign earned income exclusion to provide the IRS with information relating to the number of business days spent within the United States and any fringe benefits received. In addition, if an employee wishes to use an alternative method to source compensation, it is the employee that must document such alternative method. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these final regulations is David Bergkuist of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
The revisions and addition read as follows:
(a)
(b)
(ii)
Corp X, a domestic corporation, receives compensation of $150,000 under a contract for services to be performed concurrently in the United States and in several foreign countries by numerous Corp X employees. Each Corp X employee performing services under this contract performs his or her services exclusively in one jurisdiction. Although the number of employees (and hours spent by employees) performing services under the contract within the United States equals the number of employees (and hours spent by employees) performing services under the contract without the United States, the compensation paid to employees performing services under the contract within the United States is higher because of the more sophisticated nature of the services performed by the employees within the United States. Accordingly, the payroll cost for employees performing services under the contract within the United States is $20,000 out of a total contract payroll cost of $30,000. Under these facts and circumstances, a determination based upon relative payroll costs would be the basis that most correctly reflects the proper source of the income received under the contract. Thus, of the $150,000 of compensation included in Corp X's gross income, $100,000 ($150,000 × $20,000/$30,000) is attributable to the labor or personal services performed within the United States and $50,000 ($150,000 × $10,000/$30,000) is attributable to the labor or personal services performed without the United States.
(2)
(ii)
(B)
(C)
(
(
(
(D)
(
(
(
(
(
(
(E)
(F)
(G)
B, a nonresident alien individual, was employed by Corp M, a domestic corporation, from March 1 to December 25 of the taxable year, a total of 300 days, for which B received compensation in the amount of $80,000. Under B's employment contract with Corp M, B was subject to call at all times by Corp M and was in a payment status on a 7-day week basis. Pursuant to that contract, B performed services (or was available to perform services) within the United States for 180 days and performed services (or was available to perform services) without the United States for 120 days. None of B's $80,000 compensation was for fringe benefits as identified in paragraph (b)(2)(ii)(D) of this section. B determined the amount of compensation that is attributable to his labor or personal services performed within the United States on a time basis under paragraph (b)(2)(ii)(A) and (E) of this section. B did not assert, pursuant to paragraph (b)(2)(ii)(C)(
(i) Same facts as in
(ii) On audit, B argues that because he failed to substantiate the education fringe benefit in accordance with paragraph (b)(2)(ii)(D) of this section, his entire employment compensation from Corp M is sourced on a time basis pursuant to paragraph (b)(2)(ii)(A) of this section. The Commissioner, after reviewing Corp M's fringe benefit arrangement, determines, pursuant to paragraph (b)(2)(ii)(C)(
(i) A, a United States citizen, is employed by Corp N, a domestic corporation. A's principal place of work is in the United States. A earns an annual salary of $100,000. During the first quarter of the calendar year (which is also A's taxable year), A performed services entirely within the United States. At the beginning of the second quarter of the calendar year, A was transferred to Country X for the remainder of the year and received, in addition to her annual salary, $30,000 in fringe benefits that are attributable to her new principal place of work in Country X. Corp N paid these fringe benefits separately from A's annual salary. Corp N supplied A with a statement detailing that $25,000 of the fringe benefit was paid for housing, as defined in paragraph (b)(2)(ii)(D)(
(ii) A determined the source of all of her compensation from Corp N pursuant to paragraphs (b)(2)(ii)(A), (B), and (D)(
Same facts as in
(i) During 2006 and 2007, Corp P, a domestic corporation, employed four United States citizens, E, F, G, and H to work in its manufacturing plant in Country V. As part of his or her compensation package, each employee arranged for local transportation unrelated to Corp P's business needs. None of the local transportation fringe benefit is excluded from the employee's gross income as a qualified transportation fringe benefit under section 132(a)(5) and (f).
(ii) Under the terms of the compensation package that E negotiated with Corp P, Corp P permitted E to use an automobile owned by Corp P. In addition, Corp P agreed to reimburse E for all expenses incurred by E in maintaining and operating the automobile, including gas and parking. Provided that the local transportation fringe benefit meets the requirements of paragraph (b)(2)(ii)(D)(
(iii) Under the terms of the compensation package that F negotiated with Corp P, Corp P let F use an automobile owned by Corp P. However, Corp P did not agree to reimburse F for any expenses incurred by F in maintaining and operating the automobile. Provided that the local transportation fringe benefit meets the requirements of paragraph (b)(2)(ii)(D)(
(iv) Under the terms of the compensation package that G negotiated with Corp P, Corp P agreed to reimburse G for the purchase price of an automobile that G purchased in Country V. Corp P did not agree to reimburse G for any expenses incurred by G in maintaining and operating the automobile. Because the cost to purchase an automobile is not a local transportation fringe benefit as defined in paragraph (b)(2)(ii)(D)(
(v) Under the terms of the compensation package that H negotiated with Corp P, Corp P agreed to reimburse H for the expenses that H incurred in maintaining and operating an automobile, including gas and parking, which H purchased in Country V. Provided that the local transportation fringe benefit meets the requirements of paragraph (b)(2)(ii)(D)(
(i) On January 1, 2006, Company Q compensates employee J with a grant of options to which section 421 does not apply that do not have a readily ascertainable fair market value when granted. The stock options permit J to purchase 100 shares of Company Q stock for $5 per share. The stock options do not become exercisable unless and until J performs services for Company Q (or a related company) for 5 years. J works for Company Q for the 5 years required by the stock option grant. In years 2006-08, J performs all of his services for Company Q within the United States. In 2009, J performs
(ii) Under the facts and circumstances, the applicable period is the 5-year period between the date of grant (January 1, 2006) and the date the stock options become exercisable (December 31, 2010). On the date the stock options become exercisable, J performs all services necessary to obtain the compensation from Company Q. Accordingly, the services performed after the date the stock options become exercisable are not taken into account in sourcing the compensation from the stock options. Therefore, pursuant to paragraph (b)(2)(ii)(A), since J performs 3
(d)
26 U.S.C. 7805.
(b) * * *
Internal Revenue Service (IRS), Treasury.
Final regulation.
This document contains final regulations that amend regulations under section 6343 of the Internal Revenue Code (Code) relating to the return of property in certain cases. The regulations reflect changes made to section 6343 of the Code by the Taxpayer Bill of Rights 2. The regulations also reflect changes affecting levies enacted by the Internal Revenue Service Restructuring and Reform Act of 1998. The regulations affect taxpayers seeking the return of levied property from the Internal Revenue Service (IRS).
Kevin B. Connelly, (202) 622-3630 (not a toll-free number).
This document contains amendments to the Procedure and Administration Regulations (26 CFR part 301) relating to the return of property under section 6343 of the Code. Section 501(b) of the Taxpayer Bill of Rights 2 (TBOR2), Public Law 104-168 (110 Stat. 1452), amended section 6343 to authorize the IRS to return levied property in certain cases. The purpose of this provision is, to the extent possible, to return the taxpayer to the position the taxpayer would have been in had the levy not been issued. No interest shall be paid with respect to property returned to the taxpayer under this provision. These final regulations reflect the amendments made by section 501(b) of TBOR2.
These regulations also reflect amendments made by the Internal Revenue Service Restructuring and Reform Act (RRA 1998), Public Law 105-206 (112 Stat. 685), which added new sections 6331(i) and (j) to the Code to provide that no levy may be made during the pendency of proceedings for refund of divisible taxes or prior to completion of an investigation of the status of property that is to be sold under section 6335. RRA 1998 also added section 6331(k) to the Code, which provides that no levy may be made during the period an offer-in-compromise or an installment agreement is pending or in effect. In addition, RRA 1998 added section 6330, which provides in certain circumstances for notice and an opportunity for a hearing before a levy can be made.
On February 14, 2001, a notice of proposed rulemaking (REG-101520-97) reflecting these changes was published in the
None.
None.
It has been determined that this final regulation is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, the preceding notice of proposed rulemaking was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal author of these regulations is Kevin B. Connelly, Office of Associate Chief Counsel (Procedure and Administration), Collection Bankruptcy & Summons Division, CC:PA:CBS, IRS.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
(a)
(1) An amount of money equal to the amount of money levied upon;
(2) An amount of money equal to the amount of money received by the United States from a sale of the property; or
(3) The specific property levied upon and purchased by the United States.
(b)
(c)
(1)
(2)
(3)
(4)
(ii)
(5)
A owes $1,000 in Federal income taxes. The IRS levies on a broker with respect to a money market account belonging to the taxpayer and receives payment from the broker which it applies to the taxpayer's outstanding liability. However, the IRS failed to follow procedure provided by the Internal Revenue Manual (but not required by statute) with regard to managerial approval prior to the making of the levy. The Commissioner may return an amount of money equal to the amount of money the IRS levied upon and applied toward the taxpayer's tax liability.
B owes $1,000 in Federal income taxes. The IRS levies on a bank with respect to a savings account belonging to the taxpayer and receives funds from the bank, which it applies to the taxpayer's liability. Subsequent to the levy, B enters into an installment agreement, under which B will pay timely installments to satisfy the entire liability. The installment agreement does not by its terms preclude the return of levied upon property. The revenue officer verifies that B is financially capable of paying the entire liability, including accruals, in the agreed-upon installment payments. The Commissioner may return an amount of money equal to the amount of money levied upon and applied toward the taxpayer's liability.
C owns a house that is deteriorating and in unsalable condition. C is in the process of renovating the house for sale when the IRS levies upon C's bank account for the payment of a $20,000 outstanding Federal tax liability and receives funds in the amount of $3,000, which it applies toward C's liability. A notice of federal tax lien is the only lien encumbrancing the house. C requests that an amount of money equal to the amount seized from the bank account be returned so that C can complete the renovations on the house. Without the funds, C will be unable to complete the renovations and sell the house. Upon examination, the Commissioner determines that the IRS will be able to collect the entire tax liability if C's house is restored to salable condition. If the National Taxpayer Advocate, or the Commissioner in lieu of the National Taxpayer Advocate, determines that the return of the seized money is in the taxpayer's best interest, the Commissioner may return an amount of money equal to the amount seized from the bank account, in the best interest of the taxpayer and the United States.
(d)
(i) Without giving the requisite thirty-day notice of the right to a hearing under section 6330;
(ii) During the pendency of a proceeding for refund of divisible tax in violation of section 6331(i);
(iii) Before investigation of the status of levied upon property in violation of section 6331(j);
(iv) During the pendency of an offer-in-compromise in violation of section 6331(k)(1); or
(v) During the period an offer to enter into an installment agreement is pending (or for 30 days following the rejection of an offer, or, if the rejection is timely appealed, during the period that the appeal is pending) or during the period an installment agreement is in effect (or during the 30 days following a termination or, if a timely appeal of termination is filed, during the period the appeal is pending) in violation of section 6331(k)(2).
(2)
(e)
(f)
(g)
(h)
(2)
(i) The name, current address, and taxpayer identification number of the person requesting the return of money (or property purchased by the United States);
(ii) A description of the property levied upon;
(iii) The date of the levy; and
(iv) A statement of the grounds upon which the return of money is being requested (or property purchased by the United States).
(i)
(j)
(k)
Environmental Protection Agency (EPA).
Final rule; amendments.
EPA is amending the national emission standards for hazardous air pollutants (NESHAP) for primary copper smelting to correct the monitoring requirements for control systems other than baghouses and venturi wet scrubbers.
Effective July 14, 2005.
The EPA has established a docket for this action under Docket ID No. OAR-2003-0185. All documents in the docket are listed in the EDOCKET index at
Mr. Steve Fruh, Emission Standards Division (C439-02), Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, NC 27711, telephone number (919) 541-2837, e-mail address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 63.1441 of the NESHAP for primary copper smelting. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding
We promulgated the NESHAP for primary copper smelting (40 CFR 63, subpart QQQ) on June 12, 2002 (68 FR 40478). The final rule establishes emissions limitations and work practice standards for primary copper smelters that use batch copper converters and are a major source of hazardous air pollutant (HAP) emissions. We received a petition (included in the docket for today's final amendments) asking us to review the requirements for specific operating parameters that must be monitored when an owner or operator uses a control device other than a baghouse (fabric filter) or a venturi wet scrubber to comply with the rule. Upon review of the monitoring requirements in subpart QQQ, we discovered an error in the regulatory language for the final rule that references the operating parameters to be monitored when a control device other than a baghouse or a venturi wet scrubber is used.
If an owner or operator of a primary copper smelter elects to use a control device other than a baghouse or venturi wet scrubber for an emissions source subject to a particulate emissions limit under the final rule (
Under the monitoring requirements for control devices other than baghouses or venturi wet scrubbers in 40 CFR 63.1452(d) and 40 CFR 63.1453(e), language referencing the operating parameters for venturi wet scrubbers (
Today's amendments correct our error by revising the language in 40 CFR 63.1452(d) and 40 CFR 63.1453(e) to reference the appropriate set of control device operating parameters. For cases when a control device other than a baghouse or venturi wet scrubber is used to comply with subpart QQQ, the owner or operator must continuously monitor and record the selected operating parameters appropriate for the control device design according the requirements in the final rule.
Section 553(b) of the Administrative Procedure Act (APA) provides that, when any agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. Similarly, under section 553(d) of the APA, an agency may find that there is good cause to make the rule effective upon publication in the
We have determined that there is good cause for making today's amendments final without prior proposal and opportunity for public comment because we are merely correcting an error in the existing rule. This error conflicted with the approach we had taken and explained in the proposed rule. The final rule published on June 12, 2002, gave no explanation that this approach was being changed. In fact, the error resulted in adopting monitoring requirements that have no practical application.
Today's amendments are necessary to establish a monitoring requirement that is applicable to the control option and consistent with the rule as proposed. Notice and public comment on the correcting amendments are unnecessary due to their noncontroversial nature and because they do not substantively change the rule requirements, but rather correct the rule so that it is promulgated as we intended and explained to the public in the original rulemaking process. Therefore, we find that this constitutes good cause under 5 U.S.C. 553(b)(B). We also find, for the same reasons, that good cause exists under APA section 553(d)(3) to make the amendments effective upon publication in the
Under Executive Order 12866, this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), or to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28344, May 22, 2001). This action does not impose any new information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act (CRA), 5 U.S.C.801
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(d)
(e) * * *
(2) Inspect and maintain each CPMS operated according to § 63.1452(d) and record all information needed to document conformance with these requirements; and
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations that relates to the withholding of income tax under sections 1441 and 1442 on certain U.S. source income paid to foreign persons and related requirements governing collection, deposit, refunds, and credits of withheld amounts under sections 1461 through 1463.
The public hearing originally scheduled for July 20, 2005, at 10 a.m., is cancelled.
Robin R. Jones of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at (202) 622-7180 (not a toll-free number).
A notice of proposed rulemaking and notice of public hearing that appeared in the
The notice of proposed rulemaking and notice of public hearing, instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Thursday, July 07, 2005, no one has requested to speak. Therefore, the public hearing scheduled for July 20, 2005, is cancelled.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and notice of public hearing.
This document contains proposed regulations that would provide guidance on the use of electronic media to provide certain notices to recipients or to transmit participant and beneficiary elections or consents with respect to employee benefit arrangements. In general, these proposed regulations would affect sponsors of, and participants and beneficiaries in, certain employee benefit arrangements. This document also provides a notice of public hearing on these proposed regulations.
Written or electronic comments must be received by October 12, 2005. Requests to speak (with outlines of oral comments to be discussed) at the public hearing scheduled for November 2, 2005, must be received by October 12, 2005.
Send submissions to: CC:PA:LPD:PR (REG-138362-04), room 5203, Internal Revenue Service, POB 7604, Ben Franklin Station, Washington DC 20044. Submissions may be hand delivered Monday through Friday, between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-138362-04), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Alternatively, taxpayers may submit comments electronically via the IRS Internet site at
Concerning the proposed regulations, Pamela R. Kinard at (202) 622-6060; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst, (202) 622-7180 (not toll-free numbers).
The collections of information referenced in this notice of proposed rulemaking were previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1632, in conjunction with the Treasury Decision (TD 8873), relating to New Technologies in Retirement Plans, published on February 8, 2000, in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any Internal Revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
This document contains proposed amendments to the regulations under section 401 of the Internal Revenue Code (Code) and to other sections of the Code relating to employee benefit arrangements. These proposed amendments, when finalized, will set forth rules regarding the use of electronic media to provide notices to plan participants and beneficiaries or to transmit elections or consents relating to employee benefit arrangements. These regulations also reflect the provisions of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (114 Stat. 464 (2000)) (E-SIGN).
The Code and regulations thereunder, and the parallel provisions of the Employee Retirement Income Security Act of 1974 (ERISA), include a number of rules that require certain retirement plan notices, elections, or consents to be written or in writing.
• Under sections 401(k)(12)(D) and 401(m)(11), a written notice is required to be given to each employee eligible to participate in a cash or deferred arrangement under section 401(k) in order for the plan to be permitted to use a safe harbor in lieu of the actual deferral percentage test or actual contribution percentage test to ensure that the plan satisfies certain nondiscrimination requirements.
• Under section 402(f), a plan is required to provide a distributee, within a reasonable period of time before an eligible rollover distribution is made, a written explanation of the distributee's rollover rights and the tax and other potential consequences of the distribution or rollover.
• Under section 411(a)(11) (and the parallel provision in section 203(e) of ERISA) and § 1.411(a)-11(f)(2), a participant cannot be cashed out of a plan before the later of normal retirement age or age 62 without the participant's written consent if the value of the participant's nonforfeitable accrued benefit exceeds $5,000.
• Under section 417 (and the parallel provision in section 205 of ERISA) and the regulations thereunder, a plan must provide to each participant a written explanation of the terms and conditions of a qualified joint and survivor annuity, the participant's right to make an election to waive the qualified joint and survivor annuity, the right to revoke such an election, and the rights of the participant's spouse. Under section 417(a)(2), an election to waive a qualified joint and survivor annuity can generally go into effect only if the participant's spouse consents to the election in writing and that consent is witnessed by either a plan representative or a notary public.
• Under section 3405(e)(10)(B) and § 34.3405-1, A-d-35, a payor is required to provide written notice to a payee regarding the payee's right to elect not to have Federal income tax withheld from a periodic payment (as defined in section 3405(e)(2)).
• Under section 4980F (and the parallel provision in section 204(h) of ERISA) and § 54.4980F-1, A-13, a plan must provide written notice (section 204(h) notice) of an amendment to an applicable pension plan that either provides for a significant reduction in the rate of future benefit accrual or that eliminates or significantly reduces an early retirement benefit or retirement-type subsidy.
Section 1510 of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 1068) (TRA '97), provides for the Secretary of the Treasury to issue guidance designed to interpret the notice, election, consent, disclosure, and timing requirements (include related recordkeeping requirements) under the Code and ERISA relating to retirement plans as applied to the use of new technologies by plan sponsors and administrators. Section 1510 of TRA '97 further provides that the guidance should maintain the protection of the rights of participants and beneficiaries. Pursuant to the mandate of section 1510 of TRA '97, final regulations (TD 8873) relating to the use of electronic media for transmissions of notices and consents under sections 402(f), 411(a)(11), and 3405(e)(10)(B) were published in the
E-SIGN, signed into law on June 30, 2000, generally provides that electronic documents and signatures are given the same legal effect as their paper counterparts. Section 101(a) of E-SIGN provides that, notwithstanding any statute, regulation, or rule of law relating to a transaction in or affecting interstate or foreign commerce, a signature, contract, or other record may not be denied legal effect, validity, or enforceability solely because it is in electronic form.
Section 101(b)(1) provides that E-SIGN does not limit, alter, or otherwise affect any requirement imposed by a statute, regulation, or rule of law relating to a person's rights or obligations under any statute, regulation, or rule of law except with respect to a requirement that contracts be written, signed, or in non-electronic form. Section 101(b)(2) provides that E-SIGN does not require any person to agree to use or accept electronic signatures or records, other than a governmental agency with respect to a record other than a contract to which it is a party.
Section 101(c) of E-SIGN sets forth special protections for consumers that apply when a statute, regulation, or other rule of law requires that consumer information relating to a transaction be provided or made available in writing.
Section 104(b)(1) of E-SIGN generally provides that a Federal or state agency that is responsible for rulemaking under a statute has interpretative authority to issue guidance interpreting section 101
Section 104(d)(1) of E-SIGN authorizes a Federal regulatory agency to exempt, without condition, a specified category or type of record from the consent requirements in section 101(c). The exemption may be issued only if the exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers.
Subsequent to the enactment of E-SIGN, Congress amended section 204(h) of ERISA and enacted a corresponding provision in section 4980F of the Code. Under ERISA section 204(h)(7) and Code section 4980F(g), the Secretary of the Treasury may, by regulations, allow any section 204(h) notice to be provided by using new technologies.
Following the enactment of section 1510 of TRA ’97, the Treasury Department and IRS issued several items of guidance relating to the use of electronic media with respect to employee benefit arrangements. Notice 99-1 (1999-1 C.B. 269) provides guidance relating to qualified retirement plans permitting the use of electronic media for plan participants or beneficiaries conducting certain account transactions for which there is no specific writing requirement, such as plan enrollments, direct rollover elections, beneficiary designations, investment change allocations, elective and after-tax contribution designations, and general plan or specific account inquiries.
The 2000 regulations relating to the use of electronic media for transmissions of notices and consents required to be in writing under sections 402(f), 411(a)(11), and 3405(e)(10)(B) set forth standards for the electronic transmission of certain notices and consents required in connection with distributions from retirement plans. These regulations provide that a plan may provide a notice required under section 402(f), 411(a)(11), or 3405(e)(10)(B) either on a written paper document or through an electronic medium that is reasonably accessible to the participant. The system must be reasonably designed to provide the notice in a manner no less understandable to the participant than a written paper document. In addition, the participant must be advised of the right to request and receive a paper copy of the written paper document at no charge, and, upon request, the document must be provided to the participant without charge.
The 2000 regulations permit an electronic system to satisfy the requirement that a participant provide written consent to a distribution if certain requirements are satisfied. First, the electronic medium must be reasonably accessible to the participant. Second, the electronic system must be reasonably designed to preclude anyone other than the participant from giving the consent. Third, the system must provide the participant with a reasonable opportunity to review and to confirm, modify, or rescind the terms of the consent before it becomes effective. Fourth, the system must provide the participant, within a reasonable time after the consent is given, a confirmation of the terms (including the form) of the distribution through either a written paper document or in an electronic format that satisfies the requirements for providing applicable notices. Thus, the participant must be advised of the right to request and to receive a confirmation copy of the consent on a written paper document without charge.
Subsequent to the issuance of the 2000 regulations, the Treasury Department and IRS have applied the standards set forth in those regulations in other situations. For example, § 1.7476-2(c)(2) provides that a notice to an interested party
In 2003, final regulations (TD 9052) under section 4980F were published in the
In addition, the regulations under section 4980F provide a safe harbor method for delivering a section 204(h) notice electronically. Under the safe harbor, which is substantially the same as the consumer consent rules of E-SIGN, consent must be made
The Department of Labor (DOL) and the Pension Benefit Guaranty Corporation (PBGC) have also issued regulations relating to the use of electronic media to furnish notices, reports, statements, disclosures, and other documents to participants, beneficiaries, and other individuals under titles I and IV of ERISA.
The proposed regulations would coordinate the existing notice and election rules under the Code and regulations relating to certain employee benefit arrangements with the requirements of E-SIGN and set forth the exclusive rules relating to the use of electronic media to satisfy any requirement under the Code that a communication to or from a participant, with respect to the participant's rights under the employee benefit arrangement be in writing or in written form. The standards set forth in the proposed regulations would also function as a safe harbor when an electronic medium is used for any communication that is not required to be in writing or in written form.
The proposed regulations would apply to any notice, election, or similar communication provided to or made by a participant or beneficiary under a qualified plan, an annuity contract described in section 403(a) or 403(b), a simplified employee pension (SEP) under section 408(k), a simple retirement plan under section 408(p), or an eligible governmental plan under section 457(b). Thus, for example, the proposed regulations would apply to a section 402(f) notice, a section 411(a)(11) notice, and a section 204(h) notice.
In addition, the proposed regulations would apply to any notice, election, or similar communication provided to or made by a participant or beneficiary under an accident and health plan or an arrangement under section 104(a)(3) or 105, a cafeteria plan under section 125, an educational assistance program under section 127, a qualified transportation fringe program under section 132, an Archer Medical Savings Account under section 220, or a health savings account under section 223.
However, the proposed regulations would not apply to any notice, election, consent, or disclosure required under the provisions of title I or IV of ERISA over which the DOL or the PBGC has interpretative and regulatory authority. For example, the rules in § 2520.104b-1 of the Labor Regulations apply with respect to an employee benefit plan furnishing disclosure documents, such as a summary plan description or a summary annual report. The proposed regulations would also not apply to Code section 411(a)(3)(B) (relating to suspension of benefits), Code section 4980B(f)(6) (relating to an individual's COBRA rights), or any other Code provision over which DOL and the PBGC have similar interpretative authority. In addition, the rules in these proposed regulations apply only with respect to notices and elections relating to a participant's rights under an employee benefit arrangement; thus they do not apply with respect to other requirements under the Code, such as requirements relating to tax reporting, tax records,
These proposed regulations would require that any communication that is provided using an electronic medium satisfy all the otherwise applicable requirements (including the applicable timing and content rules) relating to that communication. In addition, these regulations would require that the content of the notice and the medium through which it is delivered be reasonably designed to provide the information to a recipient in a manner no less understandable to the recipient than if provided on a written paper document. For example, a plan delivering a lengthy section 402(f) notice would not satisfy this requirement if the plan chose to provide the notice through a pre-recorded message on an automated phone system.
The view of the Treasury Department and IRS is that a participant under an employee benefit arrangement is generally a consumer within the meaning of section 106(1) of E-SIGN when receiving a notice in order to make a decision about the participant's benefits or other rights under an employee benefit arrangement.
Section 1.401(a)-21(b) of these proposed regulations would generally require that before a plan may provide an applicable notice using an electronic medium, the participant must consent to receive the communication electronically. The consent generally must be made in a manner that reasonably demonstrates that the participant can access the notice in the electronic form that will be used to provide the notice. Alternatively, the consent may be made using a written paper document or through some other nonelectronic means, but only if the participant confirms the consent in a manner that reasonably demonstrates that the participant can access the notice in the electronic form to be provided. Prior to consenting, the participant must receive a disclosure statement that outlines the scope of the consent, the participant's right to withdraw his or her consent to receive the communication electronically (including any conditions,
Section 1.401(a)-21(c) of these proposed regulations provides alternate conditions for providing notices electronically. The proposed regulations would exempt applicable notices from the consumer consent requirements of E-SIGN and would provide an alternative method of complying with the requirement that a participant notice be in writing or in written form if the plan complies with those conditions. This alternative method of compliance is based on the 2000 regulations previously issued under section 1510 of TRA '97 (which provides that any guidance issued should maintain
The alternative method of compliance provides rules that are intended generally to replicate the requirements in the 2000 regulations that apply to notices required under sections 402(f), 411(a)(11), and 3405 and thereby allow plans to continue to provide these notices electronically using the rules in those 2000 regulations. As under the 2000 regulations, the proposed regulations would retain the requirement that, at the time the applicable notice is provided, the participant must be advised that he or she may request and must receive the applicable notice in writing on paper at no charge. However, the requirement that the electronic medium be reasonably accessible under the 2000 regulations would be changed to require that the recipient of the notice be effectively able to access the electronic medium. This is not intended to reflect a substantive change in the rules, but rather to avoid confusion with Labor Regulations interpreting the words
Proposed § 1.401(a)-21(d) would set forth the requirements that apply if a consent, election, request, agreement, or similar communication is made by or from a participant, beneficiary, or alternate payee using an electronic medium. (For simplicity, the proposed regulations refer to all of these types of actions as
These regulations require that a participant be effectively able to access the electronic system that the plan provides for participant elections, but, like the 2000 regulations, do not require that a plan also permit the election to be transmitted by paper as an alternative to using the electronic system available to the participant. If a plan were to require participant elections to be provided electronically, such as requiring that any consent to a distribution under section 411(a)(11) be transmitted electronically through a particular medium (without an option to make the election on paper), then these regulations would not apply with respect to a participant who is not effectively able to access to the electronic medium. In addition, such a participant would be effectively unable to provide consent and would generally not be paid until the later of age 62 or normal retirement age. Moreover, no form of distribution would be available to the former employee and such a plan may have difficulties demonstrating compliance with the qualification requirements. For example, the plan may not be able to demonstrate that it satisfies the requirements of § 1.401(a)(4)-4 under which benefits, rights, and features, such as a right to early distribution, must be made available in a nondiscriminatory manner.
Unlike the 2000 regulations, the rules in these proposed regulations would extend the use of electronic media to the notice and election rules applicable to plans subject to the QJSA requirements of section 417. Section 417 requires the consent of a spouse to be witnessed by a plan representative or a notary public. In accordance with section 101(g) of E-SIGN, the proposed regulations would permit the use of an electronic acknowledgment or notarization of a signature (if the standards of section 101(g) of E-SIGN and State law applicable to notary publics are satisfied). However, the proposed regulations would require that the signature of the individual be witnessed in the physical presence of the plan representative or notary public, regardless of whether the signature is provided on paper or through an electronic medium.
As discussed above, these proposed regulations, which are consistent with section 101 of E-SIGN and do not add to the requirements of that section, are issued to set forth rules that coordinate section 101 of E-SIGN with the sections of the Code relating to employee benefit arrangements. In accordance with section 104(b)(2)(C) of E-SIGN, the Treasury Department and IRS find that there is substantial justification for these proposed regulations, that the requirements imposed on the use of electronic media under these regulations are substantially equivalent to those imposed on non-electronic records, that the requirements will not impose unreasonable costs on the acceptance and use of electronic records, and that these regulations do not require (or accord greater legal
The proposed regulations would modify a number of existing regulations (including the 2000 regulations and the other regulations described above) that have previously provided rules relating to the use of new technology in providing applicable notices that are required to be in writing or in written form. These modifications, which merely add the consumer consent requirements of E-SIGN, are not expected to adversely affect existing administrative practices of plan sponsors designed to comply with the 2000 regulations.
As noted above, these proposed regulations would apply to categories of applicable notices that were not previously addressed in the 2000 regulations and subsequent regulations. As such, these regulations apply whenever there is a requirement that an applicable notice under one of the covered sections be provided in written form or in writing, without regard to whether that other requirement specifically cross-references these regulations. Thus, safe harbor notices under sections 401(k)(12)(D) and 401(m)(11), which are required to be in writing, can be provided electronically if the requirements of § 1.401(a)-21 of this chapter are satisfied.
These regulations are proposed to apply prospectively. Thus, these rules will apply no earlier than the date of the publication of the Treasury decision adopting these rules as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not propose any new collection of information, the provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply. These regulations only provide guidance on how to satisfy existing collection of information requirements through the use of electronic media. Pursuant to section 7805(f) of the Code, these proposed regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and IRS specifically request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.
The proposed regulations have reserved the issue of whether there should be any exceptions to the rule generally requiring the physical presence of the spouse for a notarization of the spouse's consent. Comments are requested on whether the reservation should be: (i) Deleted in favor of a broad prohibition that has no exception; (ii) filled in based on a general standard under which electronic notarization of an electronic signature (without the spouse's presence) would be permitted if the technology provides the same protections and assurance as the requirement that a person's signature be executed in the presence of a notary (
A public hearing has been scheduled for November 2, 2005, beginning at 10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the main entrance, located at 1111 Constitution Avenue, NW. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written or electronic comments and an outline of the topics to be discussed and time to be devoted to each topic (a signed original and eight (8) copies) by October 12, 2005. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving comments has passed. Copies of the agenda will be available free of charge at the hearing.
The principal author of these proposed regulations is Pamela R. Kinard, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the IRS and Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Reporting and recordkeeping requirements.
Excise taxes, Pensions, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1, 35, and 54 are proposed to be amended as follows:
26 U.S.C. 7805 * * *.
Section 1.401(a)-21 also issued under 26 U.S.C. 401 and section 104(b)(1) and (2) of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (114 Stat. 464). * * *
A-3. * * *
(b) * * * A loan does not satisfy the requirements of this paragraph unless the loan is evidenced by a legally enforceable agreement (which may include more than one document) and the terms of the agreement demonstrate compliance with the requirements of
(1) In a written paper document; or
(2) In an electronic medium under a system that satisfies the participant election requirements of § 1.401(a)-21(d) of this chapter.
(a)
(ii)
(B)
(C)
(iii)
(2)
(ii)
(3)
(ii)
(4)
(b)
(2)
(A) Made electronically in a manner that reasonably demonstrates that the recipient can access the applicable notice in the electronic form that will be used to provide the notice; or
(B) Made using a written paper document (or using another form not described in paragraph (b)(2)(i)(A) of this section), but only if the recipient confirms the consent electronically in a manner that reasonably demonstrates that the recipient can access the
(ii)
(3)
(i)
(B)
(ii)
(iii)
(iv)
(v)
(4)
(i) The recipient must receive a statement of—
(A) The revised hardware or software requirements for access to and retention of the applicable notice; and
(B) The right to withdraw consent to receive electronic delivery without the imposition of any fees for the withdrawal and without the imposition of any condition or consequence that was not previously disclosed in paragraph (b)(3) of this section.
(ii) The recipient must reaffirm consent to receive electronic delivery in accordance with the requirements of paragraph (b)(2) of this section.
(5)
(c)
(2)
(3)
(d)
(2)
(3)
(4)
(5)
(6)
(ii) [Reserved].
(e)
(1)
(2)
(3)
(4)
(5)
(6)
(f)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
Same facts as
(ii)
Plan E, a qualified plan, permits participants to request distributions by e-mail on the employer's e-mail system. Under this system, a participant must enter his or her account number and personal identification number (PIN). This information must match that in Plan E's records in order for the transaction to proceed. If a participant requests a distribution by e-mail, the plan administrator provides the participant with a section 411(a)(11) notice by e-mail. The plan administrator also advises the participant by e-mail that he or she may request the section 411(a)(11) notice on a written paper document and that, if the participant requests the notice on a written paper document, it will be provided at no charge. Participant N requests a distribution and receives the section 411(a)(11) notice from the plan administrator by reply e-mail. However, before Participant N elects a distribution, N terminates employment. Following termination of employment, Participant N no longer has access to the employer's e-mail system.
(ii)
(1) Revising A-5.
(2) Removing Q&A-6.
The revision reads as follows:
A-5. Yes. See § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to employee benefit arrangements.
(1) Revising the text of paragraphs (f)(1) and (2).
(2) Removing paragraph (g).
The revisions read as follows:
(f) * * *
(1) * * * The notice of a participant's rights described in paragraph (c)(2) of this section or the summary of that notice described in paragraph (c)(2)(iii)(B)(2) of this section must be provided on a written paper document. However, see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to employee benefit arrangements.
(2) * * * The consent described in paragraphs (c)(2) and (3) of this section must be given on a written paper document. However, see § 1.401(a)-21(d) of this chapter for rules permitting the use of electronic media to transmit participant elections with respect to employee benefit arrangements.
(a) * * *
(3) * * * A section 417(a)(3) explanation must be a written explanation. First class mail to the last known address of the participant is an acceptable delivery method for a section 417(a)(3) explanation. Likewise, hand delivery is acceptable. However, posting of the explanation is not considered provision of the section 417(a)(3) explanation. But see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to employee benefit arrangements.
(c) * * *
(2) If the notice to interested parties is delivered using an electronic medium under a system that satisfies the applicable notice requirements of § 1.401(a)-21 of this chapter, the notice is deemed to be provided in a manner that satisfies the requirements of paragraph (c)(1) of this section.
26 U.S.C. 7805 * * *.
(1) Revising d-35, A.
(2) Removing d-36, Q&A.
The revision reads as follows:
d-35. * * *
A. A payor may provide the notice required under section 3405 (including the abbreviated notice described in d-27 of § 35.3405-1T and the annual notice described in d-31 of § 35.3405-1T) to a payee on a written paper document. However, see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to employee benefit arrangements.
26 U.S.C. 7805 * * *.
(1) Revising paragraph A-13 (c)(1)(ii).
(2) Removing paragraph A-13 (c)(1)(iii) and (c)(3).
The revision reads as follows:
A-13. * * *
(c) * * *
(1) * * *
(ii) The section 204(h) notice is delivered using an electronic medium under a system that satisfies the applicable notice requirements of § 1.401(a)-21.
Foreign Agricultural Service, USDA.
Notice of product coverage and trigger levels for safeguard measures provided for in the World Trade Organization (WTO) Agreement on Agriculture.
This notice lists the updated quantity trigger levels for products, which may be subject to additional import duties under the safeguard provisions of the WTO Agreement on Agriculture. Beginning this year, the method of determining these triggers has been modified to exclude trade from countries that are not subject to WTO safeguards. This notice also includes the relevant period applicable for the trigger levels on each of the listed products.
August 14, 2005.
Charles R. Bertsch, Multilateral Trade Negotiations Division, Foreign Agricultural Service, room 5524—South Building, U.S. Department of Agriculture, Washington, DC 20250-1022, telephone at (202) 720-6278, or e-mail
Article 5 of the WTO Agreement on Agriculture provides that additional import duties may be imposed on imports of products subject to tarriffication as a result of the Uruguay Round if certain conditions are met. The agreement permits additional duties to be charged if the price of an individual shipment of imported products falls below the average price for similar goods imported during the years 1986-88 by a specified percentage. It also permits additional duties to be imposed if the volume of imports of an article exceeds the average of the most recent 3 years for which data are available by 5, 10, or 25 percent, depending on the article. These additional duties may not be imposed on quantities for which minimum or current access commitments were made during the Uruguay Round negotiations, and only one type of safeguard, price or quantity, may be applied at any given time to an article.
Section 405 of the Uruguay Round Agreements Act requires that the President cause to be published in the
Beginning this year a change has been made in the method for calculating these trigger levels. In previous years imports from all sources were included in the three year average used as the basis of the safeguard triggers. After consulting with the U.S. Trade Representative's Office, it was determined that it is more appropriate to exclude from these calculations imports from countries that are not subject to the WTO safeguard duties. The following countries are not subject to those duties as a result of Free Trade Agreements: Canada, Mexico, Jordan, Singapore, Chile and Australia.
Additional information on the products subject to safeguards and the additional duties which may apply can be found in subchapter IV of Chapter 99 of the Harmonized Tariff Schedule of the United States and in the Secretary of Agriculture's Notice of Safeguard Action, published in the
The definitions of these products were provided in the Notice of Safeguard Action published in the
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Department of Agriculture, Forest Service, Kootenai National Forest, in conjunction with Montana Department of Environmental Quality, will prepare an environmental impact statement (EIS) to document the analysis and disclose the environmental impacts of the proposed action to permit the construction, operation and reclamation of the Montanore silver/copper mine project and associated power transmission line. The project is located on public and private islands approximately 18 miles south of Libby, Montana. Mines Management, Inc. submitted a proposed Plan of Operations and an application for a Hard Rock Operating Permit on January 3, 2005, pursuant to Forest Service locatable mineral regulations 36 CFR part 228, subpart A, and the State of Montana Metal Mine Reclamation Act MCA 82-4-301
Comments concerning the proposed action must be postmarked by September 15, 2005, to be considered in the draft EIS. The draft EIS is expected May 2006 and the final EIS is expected by January 2007.
Send written comments concerning the Proposed Action to Bob Castaneda, Forest Supervisor, Montanore Project, Kootenai National Forest, 1101 U.S. Hwy 2 West, Libby, MT 59923, or e-mail your comments to
Bobbie Lacklen, Project Coordinator, Canoe Gulch Ranger Station, 12557 Hwy 37, Libby, Montana 59923. Phone (406) 293-7773, or e-mail at
Mines Management Inc. owns two patented mining claims (HR 133 & HR 134) with mineral rights that extend beneath the Cabinet Mountains Wilderness. On
The Montanore Project, as proposed by Mines Management, Inc. would consist initially of a 12,500 tons per underground mining operation that would expand a 20,000 tons per day rate. The surface mill would be located on National Forest System lands outside of the Cabinet Mountains Wilderness in the Ramsey Creek drainage. The ore body would be accessed from two portals located adjacent to the mill. Two ventilation portals, both located on private lands, would be utilized during the project. One ventilation portal would be located in the upper Libby Creek drainage; the other would be located in the upper Rock Creek drainage near Rock Lake.
A 230-kilovolt electric transmission line would be constructed from Pleasant Valley (Sedlak Park) along U.S. Highway 2, and then routed up Miller Creek drainage to the project site.
The size of the ore body is approximately 135 million tons. Ore would be crushed underground and conveyed to the surface mill located near the Ramsey Creek portals. Copper and silver minerals would be removed from the ore by a flotation process. Tailings from the milling process would be transported through a pipeline to the tailings disposal impoundment located in the Little Cherry Creek drainage, a distance of about four miles from the proposed mill site.
Access to the mine and all surface facilities would be via U.S. Highway 2 and the existing Bear Creek road. Mines Management, Inc. would upgrade an estimated 11 miles of the Bear Creek road to standards specified by the agencies. Silver/copper concentrate from the mill would be shipped by truck to a rail siding in Libby, Montana. The concentrate would then be transported by rail to an out-of-state smelting facility. Mining operations are projected to continue for an estimated 15 years once facility development is completed and actual mining operations commence. The mill and mine would operate on a three shifts per day, seven days per week, yearlong schedule.
An estimated seven million tons of ore would be produced annually during a 350-day production year. Employment numbers are estimated to be 450 people when at full production. An annual payroll of $12 million is projected for full production periods. Mines Management, Inc.'s permit area utilizes approximately 3,000 acres of National Forest System land and approximately 200 acres of private land for the proposed mine and associated facilities including the power transmission line. All surface activities would be outside designated wilderness. Mines Management, Inc. has developed a reclamation plan to rehabilitate the disturbed areas following the phases associated with exploration, construction, operation, and ultimately, mine closure.
The U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, Montana Department of Natural Resources and Conservation, Confederated Salish and Kootenai Tribes, Kootenai Tribe of Idaho, and the Bonneville Power Administration have either jurisdiction or interest and will participate as cooperating agencies or government entities in the preparation of this EIS. The USDA Forest Service and the Montana Department of Environmental Quality have agreed to be the Lead Agencies for this project. Other governmental agencies and any public that may be interested in or affected by the proposal are invited to participate in the scoping process, which is designed to obtain input and to identify potential issues relating to the proposed project.
Bob Castaneda, Forest Supervisor, Kootenai National Forest, 1101 U.S. Hwy 2 West, Libby, MT 59923 and Richard Opper, Director, Montana Department of Environmental Quality, Director's Office, 1520 E 6th Ave., Helena, MT 59620-9601, will be jointly responsible for the EIS. These two agencies will make a decision regarding this proposal after considering comments and responses pertaining to environmental consequences discussed in the Final EIS and all applicable laws regulations, and policies. The decision of a selected alternative and supporting reasoning will be documented in a Record of Decision.
The EIS will consider a range of alternatives based on the issues, concerns, and opportunities associated with the Montanore Project.
A preliminary identification of issues, concerns, and opportunities are:
• What effect would the proposed project have on the Cabinet Mountains Wilderness?
• How would the project affect wildlife, especially grizzly bear and bull trout?
• How might the quantity and quality of water in the project area be affected?
• How stable would the proposed tailings impoundment facility be, and to what degree would the site be reclaimed following mine closure?
• What would be the social and economic effects to local communities?
• What would be the cumulative effects of the Montanore Project and other past, present and reasonably foreseeable activities including the permitted Rock Creek Mine?
Two primary alternatives will be considered: A No Action Alternative and an alternative to approve the project as Proposed. Other alternatives will be developed that consist of modifications of, or changes to various elements comprising the proposal.
The nature of the decision to be made is to select an action that meets the legal rights of the proponent, while protecting the environment in compliance with applicable laws, regulations and policy. The Forest Supervisor will use the EIS process to develop the necessary information to make an informed decision as required by 36 CFR part 228 subpart A. Based on the alternatives developed in the EIS, the following are possible decisions:
(1) An approval of the Plan of Operations as submitted;
(2) An approval of the Plan of Operations with changes, and the incorporation of mitigations and stipulations that meet the mandates of applicable laws, regulations, and policy;
(3) Denial of the Plan of Operations if no alternative can be developed that is in compliance with applicable laws, regulations and policy.
Various permits and licenses are needed prior to implementation of this project. Permits or licenses required by the issuing agencies identified for this proposal are:
• Approval of Plan of Operations from the Kootenai National Forest
• Hardrock Mine Operating Permit from the Montana Department of Environmental Quality
• Air Quality Permit from the Montana Department of Environmental Quality
• Storm Water Permit and Montana Pollution Discharge Elimination System (MPDES) Permit from the Montana Department of Environmental Quality
• 404 Permit from the U.S. Army Corps of Engineers
• Water Rights Permit from the Montana Department of Natural Resources and Conservation
• 310 Permit from the Montana Department of Fish, Wildlife and Parks and Lincoln County Conservation District
• Special Use Permits from the Kootenai National Forest
• Major Facility Siting Act (MFSA) Certificate of Compliance from the Montana Department of Environmental Quality.
This Notice of Intent initiates the scoping process, which guides the development of the EIS. At this stage of the planning process, site-specific public comments are being requested to determine the scope of the analysis, and identify significant issues and alternatives to the Proposed Action. The estimated date for issuance of the draft environmental impact statement is May 2006.
The Forest Service, in conjunction with Montana State agencies, will hold public scoping meetings in Libby, Montana, Bonners Ferry, Idaho; and noxon, Montana during the week of August 15, 2005. Specific location and time of the meetings will be published in the local newspapers approximately one week prior to the meeting date. A scoping document is available upon request or an electronic copy may be viewed at:
A draft EIS will be prepared for comment. The comment period on the draft EIS ends 60 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to the public participation in the environmental review process. First, reviewers of a draft EIS must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the Proposed Action, comments on the draft EIS should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft EIS. Comments may also address the adequacy of the draft EIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal, and will be available for public inspection.
Central Intelligence Agency.
Notice of availability.
Pursuant to the Energy Policy Act of 1992 (EPAct) (42 U.S.C. 13218(b)) and Executive Order 13149, the Central Intelligence Agency gives notice of its intention to make its Fleet Alternative Fuel Use and Vehicle Acquisition Report for Fiscal Years 2004 and 2005 (through June 2005) available on-line as of July 14, 2005, at
Public Communications Branch, Central Intelligence Agency, telephone (703) 482-0623.
Import Administration, International Trade Administration, Department of Commerce
On June 27, 2005, the United States Court of International Trade (CIT) affirmed the Department of Commerce's (the Department's) redetermination on remand of the final results of the antidumping duty administrative reviews on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan. See
July 14, 2005.
Yang Jin Chun or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-5760 or (202) 482-4477, respectively.
On June 18, 1998, the Department published the final results of administrative reviews of the antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan for the period May 1, 1996, through April 30, 1997. See
The changes to our calculations with respect to NSK resulted in a change in the weighted-average margin for ball bearings (BBs) from 2.35 percent to 2.34 percent and a change in the weighted-average margin for cylindrical roller bearings (CRBs) from 2.21 percent to 2.19 percent for the period of review. Accordingly, absent an appeal, or, if appealed, upon a “conclusive” decision by the CAFC which is consistent with the CIT's decision, we will amend our final results of these reviews to reflect the recalculation of margins for NSK.
The CAFC held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. See
Because entries of the BBs and CRBs from Japan produced by, exported to, or imported into the United States by NSK are currently being suspended pursuant to the court's injunction order in effect, the Department does not need to order U.S. Customs and Border Protection to suspend liquidation of affected entries. The Department will not order the lifting of the suspension of liquidation on entries of the BBs and CRBs made during the review period before a court decision in this lawsuit becomes final and conclusive.
We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Act.
Department of the Army, DoD.
Notice.
In accordance with 37 CFR 404.6 and 404.7, announcement is made of the availability for licensing of the invention set forth in U.S. Provisional Patent Application Serial No. 60/656,551 entitled “Inhibitors of Type F Botulinum Neurotoxin Proteinase Activity,” filed February 17, 2005; as well as the invention set forth in related U.S. Provisional Patent application Serial No. 60/660,024 entitled “Inhibitors of Type F Botulinum Neurotoxin Proteinase Activity,” filed February 23, 2005. The United States Government, as represented by the Secretary of the Army, has rights in this invention.
Commander, U.S. Army Medical Research and Materiel Command, ATTN: Command Judge Advocate, MCMR-ZA-J, 504 Scott Street, Fort Detrick, Frederick, MD 21702-5012.
For patent issues, Ms. Elizabeth Arwine, Patent Attorney, (301) 619-7808. For licensing issues, Dr. Paul Mele, Office of Research & Technology Assessment, (301) 619-6664, both at telefax (301) 619-5034.
Botulinum neurotoxins (BoNTs A-G) are zinc metalloendoproteases that exhibit extraordinary specificities for proteins involved in neurotransmitter release. In view of the extreme toxicities of these molecules, their applications in human medicine, and potential for misuse, it is of considerable importance to elucidate the mechanisms underlying substrate recognition and to develop inhibitors, with the ultimate goal of obtaining anti-botulinum drugs.
Department of the Army, DoD.
Notice.
In accordance with 35 U.S.C. 209 and 37 CFR 404, U.S. Army Research, Development and Engineering Command (RDECOM) hereby given notice that it is contemplating the grant of an exclusive license in the United States to practice the below referenced invention owned by the U.S. Government to TSI Incorporated, 500 Cardigan Road, Shoreview, MN 55126.
Mr. John Biffoni, Intellectual Property Attorney, U.S. Army Research, Development and Engineering Command, ATTN: AMSRD-CC (Bldg E4435), Aberdeen Proving Ground, MD 21010-5424, phone: (410) 436-1158; Fax: 410-436-2534 or e-mail:
The prospective exclusive license may be granted, unless REDECOM receives written evidence and argument to establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7 on or before July 29, 2005. The following Patent Number, Title, and Issue Date is provided:
Defense Manpower Data Center (DMDC), Department of Defense, DoD.
Notice of a computer matching program.
Subsection (e)(12) of the Privacy Act of 1974, as amended (5 U.S.C. 552a), requires agencies to publish advanced notices of any proposed or revised computer matching program by the matching agency for public comment. The Department of Defense (DoD), as the matching agency under the Privacy Act, is hereby giving notice to the record subjects of a computer matching program between the DoD and the Department of Health and Human Services (HHS) acting on behalf of the State Public Assistance Agencies (SPAA). The purpose the computer matching program is to exchange personal data for purposes of identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
This proposed action will become effective August 15, 2005, and matching may commence unless changes to the matching program are required due to public comments or by Congressional or by Office of Management and Budget objections. Any public comment must be received before the effective date.
Any interested party may submit written comments to the Director, Defense Privacy Office, 1901 South Bell Street, Arlington, VA 22202-4512.
Mr. Vahan Moushegian, Jr. at (703) 607-2943.
Pursuant to subsection (o) of the Privacy Act of 1974, as amended, (5 U.S.C. 552a), the DHHS and DMDC have concluded an agreement to conduct a computer matching program between agencies. The purpose of the computer matching program is to exchange personal data for purposes of identifying individuals who are receiving Federal compensation or pension payments and also are receiving payments pursuant to Federal benefit programs being administered by the States.
The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of obtaining and processing the information needed by the SPAAs to identify individuals who may be ineligible for public assistance benefits. The principal alternative to using a computer matching program for identifying such individuals would be to conduct a manual comparison of all Federal personnel records with SPAA records of those individuals currently receiving public assistance under a Federal benefit program being administered by the State. Conducting a manual match, however, would clearly impose a considerable administrative burden, constitute a greater intrusion of the individual's privacy, and would result in additional delay in determining eligibility and, if applicable, the eventual recovery of any outstanding debts.
A copy of the computer matching agreement between HHS and DoD is available upon request. Requests should be submitted to the address caption above or to the HHS, Administration for Children and Families, 370 L'Enfant Promenade, SW., Washington, DC 20447.
Set forth below is the notice of the establishment of a computer matching program required by paragraph 6.c. of the Office of Management and Budget Guidelines on computer matching published on June 19, 1989, at 54 FR 25818.
The matching agreement, as required by 5 U.S.C. 552a(r) of the Privacy Act, and an advance copy of this notice was submitted on June 27, 2005, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget pursuant to paragraph 4d of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records about Individuals”, dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Participants in this computer matching program are State Public Assistance Agencies (SPAA), the Department of Health and Human Services (HHS), and the Department of Defense (DoD). The SPAA is the source agency, the agency disclosing the records for purpose of the match; HHS is the facilitating agency, the agency acting on behalf of the SPAAs, and DoD is the matching agency, the agency that actually performs the match.
To provide the SPAAs with data from Federal employee wage and pension files to determine eligibility and to ensure fair and equitable treatment in the delivery of benefits attributable to funds provided by the Federal government. The SPAAs will use the matched data to verify the continued eligibility of individuals to receive public assistance benefits and, if ineligible, to take such action as may be authorized by law and regulation. ACF, in its role as match facilitator, will support each SPAA’s efforts to ensure appropriate delivery of benefits by assisting with drafting the necessary agreements, helping arranging signatures to the agreements, and acting as a central shipping point as necessary.
The legal authority for conducting the matching program is contained in sections 402 and 1137 of the Social Security Act (42 U.S.C. 602 and 1320b-7).
The systems of records maintained by the respective agencies under the Privacy Act of 1974, as amended, 5 U.S.C. 552a, from which records will be disclosed for the purpose of this computer match are as follows:
1. Federal, but not State, agencies must publish system notices for “systems of records” pursuant to subsection (e)(4) of the Privacy Act and must identify “routine uses” pursuant to subsection (b)(3) of the Privacy Act
2. DoD will use personal data from the record system identified as S322.10 DMDC, entitled “Defense Manpower Data Center Base,” last published in the
3. HHS will be disclosing, as applicable, to DMDC personal data it has collected from the SPAAs. No information will be disclosed from systems of records that ACF operates and maintains. HHS will be disclosing, as applicable, to the SPAAs personal data it has received from DMDC. The DMDC supplied matched data will be disclosed by ACF pursuant to the DoD routine use.
Each participating SPAA will send ACF an electronic file of eligible public assistance client information. These files are non-Federal computer records maintained by the states. ACF will then send this information to DMDC. In the alternative, participating SPAAs can submit files directly to DMDC. After DMDC receives the SPAA data, it will match the data against the DMDC database. The Database consists of personnel records of non-postal Federal civilian employees and military members, both active and retired. Resulting “hits” or matches will be disclosed to the SPAA that submitted the client information.
1. The electronic files provided by ACF and the SPAAs will contain data elements of the client's name, SSN, date of birth, address, sex, marital status, number of dependents, information regarding the specific public assistance benefit being received, and such other data as considered necessary and on no more than 10,000,000 public assistance beneficiaries.
2. The DMDC computer database file contains approximately 4.85 million records of active duty and retired military members, including the Reserve and Guard, and approximately 3.68 million records of active and retired non-postal Federal civilian employees.
3. DMDC will match the SSN on the ACF/SPAA file by computer against the DMDC database. Matching records, “hits” based on SSNs, will produce data elements of the individual's name; SSN; active or retired; if active, military service or employing agency, and current work or home address, and other relevant information.
The effective date of the matching agreement and date when matching may actually begin shall be at the expiration of the 40-day review period for OMB and Congress, or 30 days after publication of the matching notice in the
Director, Defense Privacy Office, 1901 South Bell Street, Suite 920, Arlington, VA 22202-4512. Telephone (703) 607-2943.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (USACE), Baltimore District announces the availability of the Final Supplemental Environmental Impact Statement (SEIS) for the design modifications and recreational enhancements to the Wyoming Valley Levee Raising Project at the Wilkes-Barre, Pennsylvania River Commons. The Final SEIS investigates the potential environmental effects of an array of alternative plans based on the conceptual riverfront plan for Wilkes-Barre. The preferred alternative includes the addition of two portals through the levee, a river landing, fishing platform, and an amphitheater and stage.
The Draft SEIS was released on a 45-day review and comment period during August and September 2004, and a Notice of Availability was published in the
A Record of Decision may be signed no sooner than 30 days after publication of the notice for this action, as stated in 40 CFR 1506.10(b)(2).
To obtain copies of the Final SEIS, contact Jo Ann Grundy, (410) 962-6136 or write to: U.S. Army Corps of Engineers, Baltimore District, Attn: Jo Ann Grundy, CENAB-PL-P, PO Box 1715, Baltimore, MD 21203-1715.
Jo Ann Grundy, (410) 962-6136 or (800) 295-1610.
Federal flood control projects along the Susquehanna River have protected communities in the Wyoming Valley of northeastern Pennsylvania since the late 1930's. However, the June 1972, Tropical Storm Agnes struck, and the Susquehanna River overtopped the levee system in the Valley, causing severe damage in many communities. In response, in 1986 the U.S. Congress authorized raising the Wyoming Valley levee system and implementing other flood damage reduction measures. Construction of the levee raising started in the Spring of 1997 and continues.
In the urbanized area of Wyoming Valley, including the City of Wilkes-Barre, the levee and floodwall system have created a physical, psychological and aesthetic barrier between the communities along the Susquehanna River. Through public workshops in 1999, a conceptual plan was developed for the City of Wilkes-Barre riverfront that would restore the connection between the city and the river. The plan consists of a riverfront park to be located on the riverside of the levee at downtown Wilkes-Barre, which would be accessible through two portals (
The preferred plan for the riverfront park includes two portals, a river landing, a fishing platform, and an amphitheater and stage. In addition to the features, miscellaneous recreational amenities (
USACE has distributed copies of the Final SEIS to appropriate members of Congress, State and local government officials, Federal agencies, and other interested parties. Copies are also available at the following locations:
(1) Osterhout Free Library, 71 South Franklin Street, Wilkes-Barre, PA 18701.
(2) Osterhout Free Library, South Branch, 2 Airy Street, Wilkes-Barre, PA 18702.
(3) D. Leonard Corgan Library, King's College, 14 West Jackson Street, Wilkes-Barre, PA 18711.
You may view the Final SEIS and related information on our Web page at
The Final SEIS has been prepared in accordance with (1) The National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers, New Orleans District (CEMVN) is initiating this draft supplemental environmental impact statement (DSEIS) under the authority of the Rivers and Harbors Act of July 24, 1946 (House Document 190, 79th Congress, 2nd Session) and prior Rivers and Harbors acts; the Rivers and Harbors Act of July 14, 1960 (House Document 436, 86th Congress, 2nd Session); the Rivers and Harbors Act of October 23, 1962 (House Document 582, 87th Congress, 2nd Session); the Senate Public Works committee on December 27, 1970, and the House Public Works committee on December 15, 1970, under the provisions of Section 201 of the Flood Control Act of 1965 (Pub. L. 89-298; S.D. 91-111); and Section 107 of the Rivers and Harbors Act of 1960, as amended by Section 310 and Section 112 of the Rivers and Harbors Acts of 1965 and 1970, respectively, to investigate dredged material placement for the next 20 years of maintenance dredging of the Calcasieu and River and Pass, LA. The Calcasieu River and Pass, LA project does not have adequate dredged material disposal areas for the long-term maintenance of the project. Existing disposal sites are at or near capacity, and some disposal sites have been substantially eroded into adjacent water bodies. Other disposal areas have been lost to commercial developments. As a result, remaining disposal areas cannot accommodate the volume of dredged material needed to maintain the Calcasieu River and Pass, LA navigation channel to project-authorized dimensions, and CEMVN has been forced to reduce channel dimensions in some reaches.
Questions concerning this DEIS should be addressed to Mr. Casey Rowe at U.S. Army Corps of Engineers, PM-RP, P.O. Box 60267, New Orleans, LA 70160-0267, phone (504) 862-1583, fax number (504) 862-2572 or by e-mail at
Two public scoping meetings will be held in July 2005, in Calcasieu and Cameron Parishes. Depending on public interest, and if further public coordination is warranted, additional meetings may be scheduled.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting.
Mr. Norman T. Edwards, Headquarters, U.S. Army Corps of Engineers, CEMP-POD, 441 G. Street, NW., Washington, DC 20314-1000; Ph: 202-761-1934.
The meeting is open to the public. Any interested person may attend, appear before, or file statements with the committee at the time and in the manner permitted by the committee.
Department of Education.
Notice of proposed information collection requests.
The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
An emergency review has been requested in accordance with the Act (44 U.S.C. Chapter 3507 (j)), since public harm is reasonably likely to result if normal clearance procedures are followed. Approval by the Office of Management and Budget (OMB) has been requested by July 22, 2005.
Written comments regarding the emergency review should be addressed to the Office of Information and Regulatory Affairs, Attention: Carolyn Lovett, Desk Officer, Department of Education, Office of Management and Budget; 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Director of OMB provide interested Federal agencies and the public an early opportunity to comment on information collection requests. The Office of Management and Budget (OMB) may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Information Management Case Services Team, Regulatory Information Management Services, Office of the Chief Information Officer, publishes this notice containing proposed information collection requests at the beginning of the Departmental review of the information collection. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested,
The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner, (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected, and (5) how might the Department minimize the burden of this collection on respondents, including through the use of information technology.
State, local, or tribal gov't, SEAs or LEAs; Federal Government.
Responses: 60.
Burden Hours: 19,500.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at
State, local, or tribal gov't, SEAs or LEAs; Not-for-profit institutions; Federal Government.
Responses: 56.
Burden Hours: 14,000.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at her e-mail address
On April 28, 2005, we published in the
In order to afford as many eligible applicants as possible an opportunity to receive funding under this program, we are reopening the State Vocational Rehabilitation Unit In-Service Training program FY 2005 competition. The new application deadline date for the competition is July 21, 2005.
Applications for grants under the State Vocational Rehabilitation Unit In-Service Training program must be submitted electronically using the Electronic Grant Application System (e-Application) available through the Department's e-Grants system. You may not e-mail an electronic copy of a grant application to us. For information about how to submit your application electronically, please refer to section IV. 6.
Marilyn P. Fountain, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5028, Potomac Center Plaza, Washington, DC 20202-2550. Telephone: (202) 245-7346 or by e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (
Any eligible applicant may apply for funding under this program by the deadline date in this notice. Eligible applicants that submitted their applications in a timely manner for the State Vocational Rehabilitation Unit In-Service Training program FY 2005 competition to the Department on or before 4:30 p.m. on the competition's original deadline date of June 13, 2005, are not required to resubmit their applications or reapply in order to be considered for FY 2005 awards under this program. We encourage eligible applicants to submit their applications as soon as possible to
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
United States Election Assistance Commission.
Notice of public hearing agenda.
Thursday, July 28, 2005, 1 p.m.-5 p.m.
California Institute of Technology, Baxter Humanities Building, Baxter Lecture Hall (Third Floor), 1200 East California Blvd., Pasadena, CA 91125.
The Commission will conduct a public hearing on the proposed voluntary voting system guidelines. The commission will receive presentations regarding the proposed guidelines from state election officials and academicians. The Commission will also hear comments specifically related to the wireless capabilities testing guidelines.
EAC will provide a public comment period to receive comments from the public regarding the voluntary voting system guidelines. Members of the public who wish to speak should contact EAC via email at
This hearing will be open to the public.
Bryan Whitener, Telephone: (202) 566-3100.
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act and in accordance with Title 41of the Code of Federal Regulations, Section 102-3.65, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Basic Energy Sciences Advisory Committee has been renewed for a two-year period, beginning July 1, 2005.
The Committee will provide advice to the Office of Science, on the basic energy sciences program. The Secretary of Energy has determined that renewal of the Basic Energy Sciences Advisory Committee is essential to the conduct of the Department's business and is in the public interest in connection with the performance of duties imposed by law upon the Department of Energy. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act (Pub. L. No. 92-463), the General Services Administration Final Rule on Federal Advisory Committee Management, and other directives and instructions issued in implementation of those acts.
Ms. Rachel Samuel at (202) 586-3279.
Department of Energy.
Notice of public hearing locations.
The Notice of Availability of the Draft EIS for the Proposed Consolidation of Nuclear Operations Related to Production of Radioisotope Power Systems was published by the Environmental Protection Agency in the
The 60-day public comment period began with the publication of the Notice of Availability published by the Environmental Protection Agency in the
The Department will conduct eight public hearings in Oak Ridge, Tennessee; Los Alamos, New Mexico; Jackson, Wyoming; and Sun Valley/Ketchum, Idaho Falls, Fort Hall, Twin Falls, and Boise, Idaho. During the hearings, the Department will provide information on the Draft EIS and receive oral and written comments that will be considered in preparation of the Final EIS. All of the public meetings will begin at 7 p.m. The locations and dates for these public hearings are as follows:
Oak Ridge, Tennessee: Monday, July 18, 2005, at Double Tree Hotel, Salon C, 215 South Illinois Avenue, Oak Ridge, Tennessee 37830.
Los Alamos, New Mexico: Tuesday, July 19, 2005, at University of New Mexico, Los Alamos, Lecture Hall, Student Center, 4000 University Drive, Los Alamos, New Mexico 87544.
Sun Valley/Ketchum, Idaho: Wednesday, July 20, 2005, at Sun Valley Inn, Continental Room, Sun Valley Road, Sun Valley, Idaho 83353.
Jackson, Wyoming: Thursday, July 21, 2005, at Snow King Convention Center, 400 E. Snow King Avenue, Jackson Hole, Wyoming 83001.
Idaho Falls, Idaho: Monday, July 25, 2005, at Shilo Inn, 780 Lindsay Boulevard, Idaho Falls, Idaho 83402.
Fort Hall, Idaho: Tuesday July 26, 2005, at Tribal Business Center, Tribal Council Chambers, Pima Drive (I-15, Exit 80), Fort Hall Town Site, Fort Hall, Idaho 83203.
Twin Falls, Idaho: Wednesday, July 27, 2005, at College of Southern Idaho, Taylor Building, Room 276, 315 Falls Avenue, Twin Falls, Idaho 83303.
Boise, Idaho: Thursday, July 28, 2005, at Red Lion Hotel, Boise Downtowner, Selway Meeting Room, 1800 Fairview, Boise, Idaho 83702.
Comments on the Draft EIS requests for special arrangements that would enable participation at the hearings (
The Department has prepared the subject Draft EIS pursuant to the National Environmental Policy Act of 1969. The Notice of Intent to prepare the EIS was published in the
Department of Energy.
Notice of open meeting correction.
On June 3, 2005, the Department of Energy published a notice of open meeting announcing a meeting of the Fusion Energy Sciences Advisory Committee, 70 FR 33887. In that notice, the meeting was scheduled for Tuesday, July 19, 2005, 8 a.m. to 6 p.m. and Wednesday, July 20, 2005, 8 a.m. to 12 noon. Today's notice is announcing that the meeting will now be for one day, July 19, 2005, 9 a.m. to 5 p.m.
In the matter of: RP05-417-000, RP05-479-000, RP05-465-000, RP05-464-000, RP05-471-000, RP05-482-000, RP05-411-000, RP05-419-000, RP05-457-000, RP05-436-000, RP05-404-000, RP05-424-000, RP05-446-000, RP05-488-000, RP05-459-000, RP05-433-000, RP05-434-000, RP05-435-000, RP05-495-000, RP05-426-000, RP05-437-000, RP05-472-000, RP05-423-000, RP05-416-000, RP05-407-000, RP05-460-000, RP05-445-000, RP05-442-000, RP05-443-000, RP05-444-000, RP05-453-000, RP05-458-000, RP05-447-000, RP05-475-000, RP05-391-000, RP05-400-000, RP05-414-000, RP05-439-000, RP05-429-000, RP05-413-000, RP05-468-000, RP05-456-000, RP05-438-000, RP05-473-000, RP05-418-000, RP05-461-000, RP05-393-000, RP05-489-000, RP05-454-000, RP05-448-000, RP05-477-000, RP05-420-000, RP05-498-000, RP05-463-000, RP05-496-000, RP05-392-000, RP05-409-000, RP05-406-000, RP05-497-000, RP05-405-000, RP05-485-000, RP05-469-000, RP05-462-000, RP05-441-000, RP05-483-000, RP05-466-000, RP05-487-000, RP05-455-000, RP05-486-000, RP05-402-000, RP05-470-000, RP05-395-000, RP05-390-000, RP05-427-000, RP05-474-000, RP05-499-000, RP05-452-000, RP05-410-000, RP05-396-000, RP05-428-000, RP05-421-000, RP05-481-000, RP05-480-000, RP05-449-000, RP05-493-000, RP05-492-000, RP05-415-000, RP05-412-000, RP05-484-000, RP05-430-000, RP05-394-000, RP05-478-000, RP05-432-000, RP05-450-000, and RP05-451-000; Algonquin Gas Transmission, L.L.C., Alliance Pipeline L.P., ANR Pipeline Company, ANR Storage Company, Black Marlin Pipeline Company, Blue Lake Gas Storage Company, B-R Pipeline Company, Canyon Creek Compression Company, CenterPoint Energy Gas Transmission Company, CenterPoint Energy-Mississippi River Transmission, Corporation, Central New York Oil and Gas Company, LLC, Chandeleur Pipe Line Company, Cheyenne Plains Gas Pipeline Company, L.L.C., Clear Creek Storage Company, L.L.C., Colorado Interstate Gas Company, Columbia Gas Transmission Corporation, Columbia Gulf Transmission Company, Crossroads Pipeline Company, Dauphin Island Gathering Partners, Destin Pipeline Company, L.L.C., Discovery Gas Transmission LLC, Dominion Cove Point LNG, LP, Dominion Transmission, Inc., East Tennessee Natural Gas, L.L.C., Egan Hub Storage, LLC, El Paso Natural Gas Company, Enbridge Offshore Pipeline, Enbridge Pipelines (AlaTenn), Enbridge Pipelines (KPC), Enbridge Pipelines (Midla) L.L.C., Garden Banks Gas Pipeline, LLC, Gas Transmission Northwest Corporation, Granite State Gas Transmission, Inc., Great Lakes Gas Transmission Limited Partnership, Guardian Pipeline, LLC, Gulf South Pipeline Company, Gulfstream Natural Gas System L.L.C., High Island Offshore System, L.L.C., Honeoye Storage Corporation, Horizon Pipeline Company, Iroquois Gas Transmission System, L.P., Kern River Gas Transmission Company, Kinder Morgan Interstate Gas Transmission LLC, KO Transmission Company, Maritimes & Northeast Pipeline, L.L.C., MarkWest New Mexico L.P., Midwestern Gas Transmission Company, MIGC, Inc., Mississippi Canyon Gas Pipeline, LLC, Mojave Pipeline Company, National Fuel Gas Supply Corporation, Natural Gas Pipeline Company of America, Nautilus Pipeline Company, L.L.C., NGO Transmission, Inc., North Baja Pipeline, LLC, Northern Border Pipeline Company, Northern Natural Gas Company, Northwest Pipeline Corporation, Overthrust Pipeline Company, Ozark Gas Transmission, L.L.C., Paiute Pipeline Company, Panhandle Eastern Pipe Line Company, LP, Panther Interstate Pipeline Energy, L.L.C., Petal Gas Storage, L.L.C., Pine Needle LNG Company,
Take notice that the above-referenced pipelines filed revised tariff sheets to comply with the Commission's Order No. 587-S, Final Rule, in Docket No. RM96-1-026 issued May 9, 2005, 111 FERC ¶ 61,203 (2005). The revised tariff sheets are to be effective September 1, 2005.
Any person desiring to become a party in any of the listed dockets must file a separate motion to intervene in each docket for which they wish party status.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 1, 2005, Cheniere Creole Trail Pipeline Company (Cheniere Creole Trail), 717 Texas Avenue, Suite 3100, Houston Texas 77002, filed in Docket No. CP05-357-001 to amend its pending application filed on May 23, 2005, pursuant to section 7(c) of the Natural Gas Act (NGA) to construct and operate certain pipeline facilities, all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Cheniere Creole Trail's amendment reflects a shortening of the length of pipeline to be constructed for the project. Specifically, Cheniere Creole Trail withdraws its proposal to construct Segment 1 of its project. Segment 1 consists of 46.9 miles of single 42-inch diameter pipeline, in Cameron Parish, Louisiana, extending from the previously authorized Sabine Pass liquefied natural gas (LNG) terminal to a juncture with Cheniere Creole Trail's remaining proposed pipeline facilities. The remaining proposed pipeline facilities will be connected to Creole Trail LNG, L.P.'s proposed LNG terminal for which authorization was requested in a companion application filed on May 23, 2005, in Docket No. CP05-360-000. The amendment also reflects a change in the maximum capacity of the proposed pipeline from 5.9 Bcf per day to 3.3 Bcf per day.
Any questions regarding these applications should be directed to Patricia Outtrim, Cheniere LNG, Inc., 717 Texas Avenue, Suite 3100, Houston, Texas 77002, (713) 659-1361 or Lisa Tonery, King & Spalding LLP, 1185 Avenue of the Americas, New York, NY 10036, (212) 556-2307.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made in the proceeding with the Commission and must mail a copy to the applicant and to every other party. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commentors will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commentors will not be required to serve copies of filed documents on all other parties. However, the non-party commentors will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link. The Commission strongly encourages electronic filings.
Take notice that on June 29, 2005 Southern Natural Gas Company (Southern), PO Box 2563, Birmingham, Alabama 35202-2563, filed in Docket No. CP05-388-000 an application pursuant to section 7(c) of the Natural Gas Act (NGA), and Part 157 of the Commission's regulations requesting a certificate of public convenience and necessity for the authorization to construct and operate a total of 176.43 miles of 24-inch and 30-inch diameter pipeline, three new compressor stations totaling approximately 31,050 horsepower, and other appurtenant facilities. Southern states that this project, known as the Cypress Pipeline Project (located in Georgia and Florida), will be constructed in three phases with phased in-service dates of May 1, 2007, May 1, 2009, and May 1, 2010. Southern states that the project will be able to provide 500,000 Mcf/d of firm transportation capacity. Southern explains that it has entered into precedent agreements with BG LNG Services, L.L.C., Florida Power Corporation d/b/a Progress Energy Florida, Inc., and the City of Austell, Georgia for firm, long-term transportation services, all as more fully set forth in the application which is on file with the Commission and open to public inspection. This filing may be also viewed on the Web at
Any questions regarding this application should be directed to Patrick B. Pope, Vice President & General Counsel, Southern Natural Gas Company, PO Box 2563, Birmingham, Alabama 35202-2563, or call (205) 325-7126.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Comments, protests and interventions may be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site under the “e-Filing” link.
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other and the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please email
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
m. The application is not ready for environmental analysis at this time.
n. The proposed project would be built at the Spring Valley Canal's Lower Turnbull drop structure, which is a reinforced concrete structure 2,332 feet long, with a total drop of 146.5 feet. The applicant proposes to construct: (1) A check structure, consisting of a spillway gate panel anchored to a ballast concrete structure spanning the full width of the canal floor between new concrete abutment walls; (2) an intake structure to divert flows from the left side of the canal; (3) 84-inch-diameter, 2,340-feet-long steel or polyethylene penstock that would be completely buried; (4) a powerhouse containing two horizontal Francis turbines and one generator with a rated output of 5 MW; (5) a draft tube and tailrace discharging flows into the canal about 40 feet downstream of the drop structure's existing stilling basin; (6) a 0.8-mile-long, 12.5-kilovolt (kV) transmission line; (7) a switchyard; and (8) a 1.7-mile-long, 69-kV transmission line extending from the switchyard to interconnect with an existing Sun River Electric Cooperative transmission line. The project would use flows as they are provided in accordance with the needs of the Greenfield Irrigation District, which operates the canal. The project would not impound water and would be operated strictly as a run-of-river plant. Average annual generation would be 13,350,000 kilowatt-hours.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Montana State Historic Preservation Officer (SHPO), as required by section 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
q.
Issue Deficiency Letter—August 2005.
Issue Acceptance letter—November 2005.
Issue Scoping Document 1 for comments—December 2005.
Issue Scoping Document 2—February 2006.
Notice of application is ready for environmental analysis—February 2006.
Notice of the availability of the EA—August 2006.
Ready for Commission's decision on the application—August 2006.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and serve a copy of the request on the applicant.
l.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
m. The application is not ready for environmental analysis at this time.
n. The proposed project would be built at the Spring Valley Canal's Upper Turnbull drop structure, which is a reinforced concrete structure 1,102 feet long, with a total drop of 101.6 feet. The applicant proposes to construct: (1) A check structure, consisting of a spillway gate panel anchored to a ballast concrete structure spanning the full width of the canal floor between new concrete abutment walls; (2) an intake structure to divert flows from the left side of the canal; (3) 84-inch-diameter, 1,100-feet-long steel or polyethylene penstock that would be completely buried; (4) a powerhouse containing two horizontal Francis turbines and one generator with a rated output of 4.1 MW; (5) a draft tube and tailrace discharging flows into the canal about 40 feet downstream of the drop structure's existing stilling basin; (6) a 1.3-mile-long, 12.5-kilovolt (kV) transmission line; (7) a switchyard; and (8) a 1.7-mile-long, 69-kV transmission line extending from the switchyard to interconnect with an existing Sun River Electric Cooperative transmission line. The project would use flows as they are provided in accordance with the needs of the Greenfield Irrigation District, which operates the canal. The project would not impound water and would be operated strictly as a run-of-river plant. Average annual generation would be 11,200,000 kilowatt-hours.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Montana State Historic Preservation Officer (SHPO), as required by § 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
q.
Issue Deficiency Letter—August 2005.
Issue Acceptance letter—November 2005.
Issue Scoping Document 1 for comments—December 2005.
Issue Scoping Document 2—February 2006.
Notice of application is ready for environmental analysis—February 2006.
Notice of the availability of the EA—August 2006.
Ready for Commission's decision on the application—August 2006.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and
l. Deadline for filing additional study requests and requests for cooperating agency status: August 23, 2005.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Additional study requests and requests for cooperating agency status may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
m. The application is not ready for environmental analysis at this time.
n. The proposed project would be built at the Mill Coulee Canal's Upper and Lower Mill Coulee drop structures, which are reinforced concrete structures 290 and 190 feet long, respectively. The total drop for the two structures is 101.6 feet. The applicant proposes to construct: (1) A check structure, consisting of a spillway gate panel anchored to a ballast concrete structure spanning the full width of the canal floor between new concrete abutment walls, upstream from the concrete transition of the Upper Mill Coulee chute drop; (2) an intake structure to divert flows from the left side of the canal; (3) a 48-inch-diameter, 1,400-feet-long pre-stressed concrete, tape-coated steel, or polyethylene penstock that would be completely buried; (4) a powerhouse containing one horizontal Francis turbine and one generator with a rated output of 1.05 MW; (5) a draft tube and 2,650-feet-long tailrace discharging flows into the canal below the Lower Mill Coulee drop structure; (6) a switchyard immediately adjacent to the powerhouse; and (7) a 0.7-mile-long, 69-kV transmission line extending from the switchyard to interconnect with an existing Sun River Electric Cooperative transmission line. The project would use flows as they are provided in accordance with the needs of the Greenfield Irrigation District, which operates the canal. The project would not impound water and would be operated strictly as a run-of-river plant. Average annual generation would be 2,430,000 kilowatt-hours.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
p. With this notice, we are initiating consultation with the Montana State Historic Preservation Officer (SHPO), as required by section 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.
q. Procedural schedule: The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule will be made as appropriate.
Issue Deficiency Letter—August 2005.
Issue Acceptance letter—November 2005.
Issue Scoping Document 1 for comments—December 2005.
Issue Scoping Document 2—February 2006.
Notice of application is ready for environmental analysis—February 2006.
Notice of the availability of the EA—August 2006.
Ready for Commission's decision on the application—August 2006.
Environmental Protection Agency (EPA).
Notice; correction.
In the
Pursuant to the Federal Advisory Committee Act (Public Law 92-463), notice is hereby given that the Clean Air Act Advisory Committee will hold its next open meeting on Thursday July 28, 2005. On July 28 the meeting will begin at 8:30 a.m. to 3:30 p.m. at the Double Tree Hotel, 300 Army Navy Drive, Arlington, VA 22202. The Subcommittee meetings will be held on Wednesday July 27, 2005, at 8:30 a.m. to 4:30 p.m. at the same location as the full Committee. Seating will be available on a first come, first served basis. The Mobile Source Technical Review subcommittee will not meet at this time. The agenda for the full committee meeting will be posted on the CAAAC Web site:
Clean Air Act Advisory Committee will hold its next open meeting on Thursday, July 28, 2005, from approximately 8:30 a.m. to 3:30 p.m. Subcommittees will meet on Wednesday, July 27, 2005, at the same location.
CAAAC and its subcommittee meetings will be held at the Double Tree Hotel, 300 Army Navy Drive, Arlington, VA 22202.
Concerning the CAAAC, please contact Pat Childers, Office of Air and Radiation, U.S. EPA (202) 564-1082, FAX (202) 564-1352 or by mail at U.S. EPA, Office of Air and Radiation (Mail code 6102 A), 1200 Pennsylvania Avenue, NW., Washington, DC 20004. For information on the Subcommittee meetings, please contact the following individuals: (1) Permits/NSR/Toxics Integration—Debbie Stackhouse, 919-541-5354; and (2) Air Quality Management—Jeff Whitlow 919-541-5523 (3) Economic Incentives and Regulatory Innovations—Carey Fitzmaurice, 202-564-1667. Additional Information on these meetings, CAAAC and its Subcommittees can be found on the CAAAC Web site:
Please refer to July 1, 2005,
999 E Street, NW., Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. 437g.
Audits conducted pursuant to 2 U.S.C. 437g, section 438(b), and Title 26, U.S.C.
Matters concerning participation in civil actions or proceedings or arbitration.
Internal personnel rules and procedures or matters affecting a particular employee.
999 E. Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of Minutes.
Advisory Opinion 2005-07: Andy Mayberry and Andy Mayberry for Congress Committee.
Alternative Drafts for Final Rules and Explanation and Justification for Definitions of “Agent” for BCRA Regulations on Non-Federal Funds and Coordinated and Independent Expenditures (11 CFR 109.3 and 300.2(b)).
Routine Administrative Matters.
Mr. Robert Biersack, Press Officer, Telephone: (202) 694-1220.
Office of the National Coordinator for Health Information Technology (ONCHIT), Department of Health and Human Services (HHS).
Notice.
This notice announces the establishment of the American Health Information Community (the Community), a committee established under the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.) by the Secretary of the Department of Health and Human Services.
The American Health Information Community will advise the Secretary and recommend specific actions to achieve a common interoperability framework for health information technology (IT) and serve as a forum for participation from a broad range of stakeholders to provide input on achieving interoperability of health IT. The Community shall not exceed 17 voting members, including the Chair, and members shall be appointed by the Secretary.
Nominations to serve on the Community should be sent to onchit.request@hhs.gov with a resume and a letter of intent or nomination letter. More information on the nomination and selection process, including a draft copy of the charter establishing the Community, is available on the Web site of the Office of the National Coordinator for Health Information Technology at http://www.hhs.gov/healthit. A final version of the charter will be available fifteen days following the publication of this notice. The deadline for submitting a nomination will be 5 p.m. e.d.t., Friday, August 5, 2005. Questions should be directed to the above e-mail address or to 1-866-505-3500.
Administration on Aging, HHS.
Notice of meeting.
Pursuant to section 10(a) of the Federal Advisory Committee Act as amended (5 U.S.C. Appendix 2), notice is hereby given of the sixth Policy Committee meeting concerning planning for the 2005 White House Conference on Aging. The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the contact person listed below in advance of the meeting. This notice is being published less than 15 days prior to the meeting due to scheduling problems.
The meeting will be held Wednesday, July 20, 2005, from 9 a.m. to 5 p.m.
The meeting will be held in the Hall of States at the National Guard Association of the United States, Inc., One Massachusetts Avenue, NW., Washington, DC 20001.
Kim Butcher, (301) 443-2887, or e-mail at
Pursuant to the Older Americans Act Amendments of 2000 (Pub. L. 106-501, November 2000), the Policy Committee will meet to continue discussions and planning for the 2005 White House Conference on Aging. In addition, there will be presentations by Barbara D. Bovbjerg, Director, Education, Workforce, and Income Security, Government Accountability Office, Richard Jackson, Ph.D., Director and Senior Fellow, Global Aging Initiative, The Center for Strategic & International Studies, and Jon Pynoos, Ph.D., UPS Foundation Professor of Gerontology, Policy, Planning and Development Director, Division of Policy and Services Research, University of Southern California.
Public Health Service Act, Section 301(a), [42 U.S.C. 241(a)], as amended.
This project supports the following Division of HIV/AIDS Prevention (DHAP) Strategic Plan priorities:
Goal 1, Objective 1: Among persons living with HIV, increase the proportion who consistently engage in behaviors that reduce risk for HIV transmission or acquisition.
Goal 4, Objective 2: Increase the number of evidence-based interventions and the proportion of prevention providers funded by CDC who successfully provide demonstrably effective HIV prevention interventions.
Measurable outcomes of the program will align with the following performance goal for the National Center for HIV, STD, and TB Prevention (NCHSTP):
Goal 1. Decrease the number of persons at high risk for acquiring or transmitting HIV infection.
This announcement is only for nonresearch activities supported by CDC/ATSDR. If research is proposed, the application will not be reviewed. For the definition of research, please see the CDC Web site at the following Internet address:
• In cooperation with CDC and other grantees funded under this announcement, the grantee will develop and implement a marketing plan to promote the diffusion of the PfH intervention to health care and other public or private medical facilities providing services to HIV-positive persons within their public health designated area.
• The grantee will identify and contact at least two health care and other public or private medical facilities that provide services to HIV-positive persons and that are interested in implementing PfH. This information will be shared with CDC and other grantees funded under this announcement to ensure adequate coverage of PfH in the United States and its territories.
• In accordance with PfH trainer curriculum and related intervention materials, the grantee will plan, schedule, and conduct PfH training sessions for health care and other public or private medical facilities providing services to HIV-positive persons. The number of agencies trained will range from two to eight depending on regional clinic demand and epidemiologic need. Each PfH training session will include: (1) A 45-minute orientation program on site; (2) a 4
• The grantee will provide two trainers, who have completed the PfH training-of-trainers conducted by the University of Southern California, to conduct each of the three components of the PfH training and to provide technical assistance.
• The grantee will provide technical assistance to trained agencies to support planning, implementation, and evaluation of PfH during the program year. Technical assistance will be provided by telephone, e-mail, or face-to-face. The grantee will coordinate this technical assistance with CDC, which may include using a CDC Web-based tracking system.
• The grantee, along with CDC and other grantees funded under this announcement, will develop and implement a quality assurance plan for the training delivery and technical assistance.
• The grantee will obtain a PfH intervention package and related materials (
• The grantee will submit the list of agencies to be trained and schedule of training sessions to the CDC Project Officer and other grantees funded under this program announcement.
• The grantee will submit an interim report summarizing the activities and deliverables for the first half of the project period, including training provided and scheduled, dates of training, attendance at training sessions, a narrative description of the response of the organization and problems/challenges encountered, lessons learned, recruitment efforts for PfH training, technical assistance provided, and other activities.
• The grantee will submit a final project report summarizing the activities and deliverables for the project period, including training completed, lessons learned, challenges, recruitment efforts for PfH training, technical assistance provided, and other activities.
In a cooperative agreement, CDC staff members are substantially involved in the program activities, above and beyond routine grant monitoring.
CDC activities for this program are as follows:
• Provide technical assistance in the general operation of this HIV prevention project, including but not limited to detailed advice on steps to accomplish the grantee activities.
• Consult on the choice of agencies selected for PfH training, by suggesting selection criteria, assisting in identifying potential agencies in the event that a grantee has difficulty, and approving the final choices.
• Monitor and evaluate progress and deliverables of this project through frequent telephone contact; observation of PfH training sessions; and review of implementation plans, interim and final progress reports, quality assurance plans, marketing plans, and training schedules.
• Conduct monthly calls with individual grantees and monthly conference calls with all grantees funded to provide PfH training to encourage exchange of information and technology transfer among grantees.
• Make recommendations aimed at solving problems and improving the quality and timeliness of grantee activities.
Throughout the project period, CDC's commitment to continuation of awards will be conditioned on the availability of funds, evidence of satisfactory progress by the recipient (as documented in required reports), and the determination that continued funding is in the best interest of the federal government.
Applications may be submitted by academic medical centers meeting the requirements of the criteria listed under III.3. Other.
Matching funds are not required for this program.
If you request a funding amount greater than the ceiling of the award range, your application will be considered non-responsive and will not be entered into the review process. You will be notified that your application did not meet the submission requirements.
If your application is incomplete or nonresponsive to the special requirements listed in this section, it will not be entered into the review process. You will be notified that your application did not meet submission requirements.
• Late applications will be considered nonresponsive. See section “IV.3. Submission Dates and Times” for more information on deadlines.
• Note: Title 2 of the United States Code, Section 1611, states that an organization described in Section 501(c)(4) of the Internal Revenue Code that engages in lobbying activities is not eligible to receive federal funds constituting an award, grant, or loan.
To apply for this funding opportunity use application form PHS 5161-1.
If access to the Internet is not available, or if there is difficulty accessing the forms on-line, contact the CDC Procurement and Grants Office Technical Information Management Section (PGO-TIM) staff at 770-488-2700 and the application forms can be mailed.
• Maximum number of pages: 1.
• Font size: 12-point unreduced.
• Single spaced.
• Paper size: 8.5 by 11 inches.
• Page margin size: 1 inch.
• Printed on only one side of page.
• Written in plain language, avoid jargon.
Your LOI must contain the following information:
• Intention to submit an application.
• Approximate number of organizations to be targeted for training.
• Name, address, and telephone number for the applicant.
• Name, address, and telephone number for contact person for this application.
• Number and title of this RFA.
• Maximum number of pages: 15. If your narrative exceeds the page limit, only the first 15 pages will be reviewed.
• Font size: 12-point unreduced.
• Double spaced.
• Paper size: 8.5 by 11 inches.
• Page margin size: One inch.
• Printed on only one side of page.
• Held together only by rubber bands or metal clips; not bound in any other way.
• Cover page—funding opportunity number and title of this announcement.
• Table of contents—with the major sections and page numbering, including each attachment.
• Consecutive page numbering throughout the document, including attachments.
Your narrative should address activities to be conducted over the entire project period, and it must include the following items in the order listed:
The introduction narrative should consist of a one-page abstract of the proposal, a complete table of contents to the application and its appendices, and text addressing each required element. Beginning with the first page of text, number all pages clearly and sequentially, including each page in the appendices.
Describe the need for the integration of HIV prevention services into medical care for persons living with HIV/AIDS in the region or community that will be targeted for recruitment. Describe known or estimated demand for PfH training in the proposed region or community. Describe how organizations will be targeted for recruitment for PfH based on epidemiologic data, number of organizations that will be selected for training, and selection process, if demand exceeds capacity to provide PfH training and technical assistance. Describe the populations served by the organizations to be recruited.
a. Demonstrate capacity to conduct the activities required for this project, including all mentioned under other eligibility requirements and experience with the population(s) for whom the intervention was designed. Include evidence of experience conducting similar trainings and technical assistance to Ryan White CARE Act-funded sites, and other health care professionals and medical facilities providing services to HIV-positive persons.
b. Clearly describe the proposed staffing,
c. Demonstrate that the applicant's staff has the expertise to complete this project. Name the staff members who are key to the completion of the project. Provide a brief description of their strengths that relate to this project. Include their curriculum vitae in the appendix.
d. Describe current protocols for quality assurance and evaluation of high-quality training and technical assistance. Include examples of how quality assurance or evaluation findings were used to improve services.
e. Briefly describe compliance regarding the inclusion of women and ethnic and racial groups in the proposed activities or justification when representation is limited or absent.
Describe the applicant's plan and timeframe for implementation of this project, including but not limited to these activities:
a. Identifying health care and medical facilities that are interested in receiving PfH training and implementing PfH intervention.
b. Planning, scheduling, and implementing PfH training sessions.
c. Providing technical assistance and other methods to support implementation of PfH.
d. Communicating regularly with CDC regarding progress of this project and for review and approval of aforementioned activities.
Describe the quality assurance plan that will be used to maintain high-quality training and technical assistance to the organizations trained. Include the staff responsibility for quality assurance activities.
Describe the process for evaluating the trained organizations' satisfaction with training, technical assistance, and support for PfH implementation.
Describe the measurable outcomes of the project and how these will align with one or more of the following performance goals:
a. Strengthen the capacity nationwide to monitor the epidemic, develop and implement effective HIV prevention interventions, and evaluate prevention programs.
b. Decrease the number of persons at high risk for acquiring or transmitting HIV infection.
Provide a detailed, line-item budget for the project; justify each line item. This cooperative agreement is for purposes of coordinating a national training initiative to diffuse PfH into medical practice. Any application requesting greater than eight percent in indirect costs will not be considered for review and will be returned to the applicant.
Additional information may be included in the application appendices. The appendices will not be counted toward the narrative page limit. This additional information includes:
• Curriculum vitae or resumes.
• Organizational charts.
• References.
• Quality assurance tools.
• Evaluation tools.
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 federal government. The DUNS 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
If your application form does not have a DUNS number field, please write your DUNS number at the top of the first page of your application or include your DUNS number in your application cover letter.
Additional requirements that may require you to submit additional documentation with your application are listed in section “VI.2. Administrative and National Policy Requirements.”
CDC requests that you send a LOI if you intend to apply for this program. Although the LOI is not required, not binding, and does not enter into the review of your subsequent application, the LOI will be used to gauge the level of interest in this program and to allow CDC to plan the application review.
Applications may be submitted electronically at
If submittal of the application is done electronically through Grants.gov (
If submittal of the LOI or application is by the United States Postal Service or commercial delivery service, the applicant must ensure that the carrier will be able to guarantee delivery by the closing date and time. If CDC receives the submission after the closing date due to: (1) Carrier error, when the carrier accepted the package with a guarantee for delivery by the closing date and time, or (2) significant weather delays or natural disasters, the applicant will be given the opportunity to submit documentation of the carrier's guarantee. If the documentation verifies a carrier problem, CDC will consider the submission as having been received by the deadline.
If a hard copy application is submitted, CDC will not notify the applicant upon receipt of the submission. If questions arise on the receipt of the application, the applicant should first contact the carrier. If the applicant still has questions, contact the PGO-TIM staff at (770) 488-2700. The applicant should wait two to three days after the submission deadline before calling. This will allow time for submissions to be processed and logged.
This announcement is the definitive guide on LOI and application content, submission address, and deadline. It supersedes information provided in the application instructions. If the submission does not meet the deadline above, it will not be eligible for review, and will be discarded. The applicant will be notified the application did not meet the submission requirements.
Executive Order 12372 does not apply to this program.
Restrictions, which must be taken into account while writing your budget, are as follows:
• Funds may not be used for research.
• Reimbursement of pre-award costs is not allowed.
• Indirect charges are limited to eight percent.
If you are requesting indirect costs in your budget, you must include a copy of your indirect cost rate agreement. If your indirect cost rate is a provisional rate, the agreement should have been in effect less than 12 months.
Guidance for completing your budget can be found on the CDC Web site, at the following Internet address:
LOI Submission Address: Submit your LOI by express mail, delivery service, fax, or e-mail to: Dr. Miriam E. Phields, CDC/NCHSTP/DHAP/CBB, 1600 Clifton Road, Mail Stop E-40, Atlanta, GA 30333. Telephone: 404-639-4957. Fax: 404-639-0915. E-mail:
Application Submission Address:
CDC recommends that submittal of the application to Grants.gov should be early to resolve any unanticipated difficulties prior to the deadline. Applicants may also submit a back-up paper submission of the application. Any such paper submission must be received in accordance with the requirements for timely submission detailed in Section IV.3. of the grant announcement. The paper submission must be clearly marked: “BACK-UP FOR ELECTRONIC SUBMISSION.” The paper submission must conform to all requirements for non-electronic submissions. If both electronic and back-up paper submissions are received by the deadline, the electronic version will be considered the official submission.
It is strongly recommended that the applicant submit the grant application using Microsoft Office products (
Applicants are required to provide measures of effectiveness that will demonstrate the accomplishment of the various identified objectives of the cooperative agreement. Measures of effectiveness must relate to the performance goals stated in the “Purpose” section of this announcement. Measures must be objective and quantitative, and must measure the intended outcome. These measures of effectiveness must be submitted with the application and will be an element of evaluation.
Your application will be evaluated against the following criteria:.
Does the applicant have the overall ability to perform the proposed activities, including all mentioned under other eligibility requirements and experience with populations for whom the intervention was designed, as reflected in their staff's qualifications and availability? How well has the applicant demonstrated that proposed staff members have experience with PfH training, Ryan White CARE Act-funded sites, and other health care and medical organizations, and quality assurance to provide high-quality professional education, training, and technical assistance? Has the applicant provided evidence that the proposed trainers completed the training-of-trainers for PfH from Dr. Jean Richardson at the University of Southern California? Are there existing support staff, equipment, and facilities?
Is the plan adequate and feasible to carry out the proposed objectives and performance goals in a timely manner, including agency recruitment and selection, implementation, process monitoring and evaluation, technical assistance, and other support for PfH implementation? Does the plan include quantitative process measures? Are the staff roles clearly defined? As described, will the staff be sufficient to accomplish the program goals?
To what extent does the applicant justify the need for this program within the region or community targeted? Do the epidemiologic and other data support this need? Does evidence demonstrate a demand for PfH intervention?
To what extent has the applicant demonstrated an adequate plan to maintain high-quality services?
To what extent has the applicant demonstrated ability to measure and achieve process outcomes?
(Reviewed but not scored.)
Applications will be reviewed for completeness by the Procurement and Grants Office (PGO) staff, and for responsiveness by NCHSTP. Incomplete applications and applications that are nonresponsive to the eligibility criteria will not advance through the review process. Applicants will be notified that their application did not meet submission requirements.
An objective review panel will evaluate complete and responsive applications according to the criteria listed in the preceding “V.1. Criteria” section. The objective review panel will be composed of CDC and other federal employees.
In addition, the following factors may affect the funding decision:
• Maintaining geographic diversity.
• Giving preference to organizations in certain geographic areas with high HIV seroprevalence or a large number of AIDS cases.
CDC will provide justification for any decision to fund out of rank order.
Award date: August 31, 2005.
Successful applicants will receive a Notice of Award (NoA) from the CDC Procurement and Grants Office. The NoA will be the only binding, authorizing document between the recipient and CDC. The NoA will be signed by an authorized Grants Management Officer and mailed to the recipient fiscal officer identified in the application.
Unsuccessful applicants will receive notification of the results of the application review by mail.
45 CFR part 74 and part 92.
For more information on the Code of Federal Regulations, see the National Archives and Records Administration at the following Internet address:
The following additional requirements apply to this project:
Additional information on these requirements can be found on the CDC Web site at the following Internet address:
An additional Certifications form from the PHS 5161-1 application needs to be included in your Grants.gov electronic submission only. Refer to
You must provide CDC with an original, plus two hard copies of the following reports:
1. Interim progress report, due no more than 30 days after the performance period. The progress report will serve as your noncompeting continuation application and must contain the following elements:
a. Current Budget Period Activities Objectives.
b. Current Budget Period Financial Progress.
c. New Budget Period and Program Proposed Activity Objectives.
d. Budget.
e. Measures of Effectiveness.
f. Additional Requested Information.
2. Financial status report and annual progress report, due 60 days after the end of the budget period.
3. Final financial and performance reports, due no more than 90 days after the end of the project period.
These reports must be mailed to the Grants Management or Contract Specialist listed in the “Agency Contacts” section of this announcement.
We encourage inquiries concerning this announcement.
For general questions, contact: Technical Information Management Section, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341. Telephone: 770-488-2700.
For program technical assistance, contact: Dr. Miriam E. Phields, Project Officer, CDC/NCHSTP/DHAP/CBB, 1600 Clifton Road, Mail Stop E-40, Atlanta, GA 30333. Telephone: 404-639-4957. Fax: 404-639-0915. E-mail:
For financial, grants management, or budget assistance, contact: Angie Tuttle, Grants Management Specialist, CDC Procurement and Grants Office, 2920 Brandywine Road, Atlanta, GA 30341. Telephone: 404-498-1913. E-mail:
This announcement and other CDC funding opportunity announcements can be found on the CDC Web site, Internet address:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice.
The Department of Health and Human Services (HHS) gives notice as required by 42 CFR 83.12(e) of a decision to evaluate a petition to designate a class of employees at the
Larry Elliott, Director, Office of Compensation Analysis and Support, National Institute for Occupational Safety and Health, 4676 Columbia Parkway, MS C-46, Cincinnati, OH 45226, Telephone 513-533-6800 (this is not a toll-free number). Information requests can also be submitted by e-mail to
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice; correction.
This document corrects technical errors that appeared in the notice published in the
Shirl Ackerman-Ross, (410) 786-4474.
In FR Doc. 05-13562 of July 8, 2005 (70 FR 39514), there were a number of technical errors concerning the deadline dates that are identified and corrected in the Correction of Errors section below.
In FR Doc. 05-13562 of July 8, 2005 (70 FR 39514), make the following corrections:
1. On page 39515, in the third column; in Section III., the deadline for hardcopy written comments and suggested agenda topics is Monday, August 1, 2005.
2. On page 39515, in the third column; in Section IV., the deadline for oral presentations is Monday, August 1, 2005.
3. On page 39515, in the third column; in Section V., the deadline for submission of presenter and presentation criteria is Monday, August 1, 2005.
4. On page 39516, in the first column; in Section VII., the deadline for registering to attend the meeting is Monday, August 8, 2005.
5. On page 39516, in the second column; in Section IX., the deadline for requesting special accommodations for the meeting is Monday, August 8, 2005.
Section 1833(t) of the Act (42 U.S.C. 1395l(t)). The Panel is governed by the provisions of Pub. L. 92-463, as amended (5 U.S.C. Appendix 2).
These activities must fund training and technical assistance resources for the Community Services Network to ensure that the needs of eligible entities and programs relating to improving program quality (including quality of financial management practices) are addressed to the maximum extent feasible; and incorporate mechanisms to ensure responsiveness to local needs.
The proposed grants will fund training and technical assistance resources for the Community Services Network focusing on improving the quality of programs carried out under the CSBG act and the delivery of healthy marriage strategies among low income people served by local community action agencies.
Specifically, OCS will offer one-year grants to fund a one year project period for the creation and dissemination of “best practice” technical assistance materials from local community organizations, including those that are faith-based, that have demonstrated success in promoting or sustaining healthy marriages among clients as part of an overall strategy to help low-income people achieve family and child development, and/or self-sufficiency goals. Special emphasis is being placed on the development and dissemination of “best practice” materials that focus on a wide range of low-income populations, including racial and ethnic minorities.
The Office of Community Services (OCS) within the Administration for Children and Families (ACF) announces the availability of competitive grants for training and technical assistance activities that will provide Community Services Network organizations with healthy marriage education models and disseminating findings from these models. These grants are for innovative projects, planned and designed specifically to assist in the development and delivery of successful marriage education programs for low-income couples. Projects should be designed to implement activities over a one-year project and budget period. Project implementation should include two phases: (I) Consumer-based data gathering, planning, and model development; (II) Program design and service delivery.
Technical assistance to organizations in the community services network will focus entirely on the lesson's learned and best practices based on grantee's experiences and early findings and will be disseminated throughout the entire project period. Eligible applicants are state-wide or local organizations with demonstrated expertise in providing training to individuals and organizations on methods of effectively addressing the needs of low-income families and communities within the Community Services Network client base. Awarded projects will be administered through a cooperative agreement. This agreement will require a close working relationship between OCS and the successful applicant.
The Administration for Children and Families (ACF) has encouraged the formation and maintenance of healthy marriages and families as part of its overall strategy to help low-income people achieve family and child development goals, and greater economic self-sufficiency. Over the past four years, many community organizations, including designated community action agencies, faith-based groups, and public human service agencies, have undertaken special initiatives designed to promote healthy marriages, often with financial support from ACF program offices. Although some progress has been made, more needs to be done to expand the current knowledge base about the kinds of marriage support programs that are most effective and culturally appropriate to meet the needs of diverse, low-income families to improve their marital health and stability. The CSBG Supporting Healthy Marriage T&TA grants will give community organizations a valuable opportunity to develop solid strategies to support healthy marriages and provide the Community Services Network with another effective support service for low-income families. These grants will also help to answer questions about what works and what does not work in supporting healthy marriages in low-income settings and provide the network with a training and technical assistance resource as other organizations attempt to offer similar programs.
Healthy marriages are good for children, families, and society as a whole. Research tells us that on average, men and women in healthy marriages are more likely to build wealth, have better health, experience emotional well-being and live longer. More importantly, children who grow up in healthy, married families do better on a host of outcomes than those who grow up in other family forms. For example, studies have shown that children in healthy married families are at less risk for substance abuse, emotional distress and mental illness, suicide, criminal behavior, educational decline, poverty, child abuse and neglect. Further, children raised in healthy, married families are more likely to develop better relationships with their parents, develop stable marriages and families themselves, experience greater economic security, perform better academically and later in occupational settings, and have better physical health. In addition, communities with high proportions of healthy, married families are safer and experience fewer social problems than those with lower proportions of healthy, married families.
Research also tells us that what separates stable and healthy marriages from unstable and unhealthy ones is not
Research has shown that individuals and couples across the economic spectrum are similar in their desire to have stable, healthy marriages and family relationships for themselves and their children. However, those dealing with economic difficulties often face additional challenges to achieving these goals relative to couples who are more economically secure. Research shows that lower-income is associated with higher rates of divorce. We have limited information about the factors that contribute to these differences across economic and racial/ethnic groups. We also have limited information about the factors that contribute to marital quality and stability and child well-being within lower-income groups.
More information on how to effectively implement these programs is needed to fully gage how to successfully achieve greater family and child development and how to inform other eligible organizations of implementation and design strategies that show promise in reducing highly stressed families faced with limited resources. The CSBG Supporting Healthy Marriage T&TA grants are one of OCS' efforts to help community organizations share their experiences developing effective models with the broader network of CSBG entities attempting to provide healthy marriage initiatives in diverse settings.
The purpose of this program is to enhance the Community Service Network's ability to support projects that will develop and deliver healthy marriage services to low-income couples via training and technical assistance to organizations eligible to receive CSBG assistance, with a desire to improve family and child development through similar interventions. OCS seeks to fund projects that have thorough, well designed proposals that include implementation activities for the following: (I) Data Gathering, Planning, and Model Development; (II) Program Intervention and Service Delivery; that lead to training and technical assistance activities for organizations eligible to receive CSBG assistance with the Community Services Network.
OCS envisions funding projects that employ a methodical approach to developing healthy marriage models and services for organizations within the Community Services Network that will ultimately help low-income couples so that findings can be easily shared and lesson's learned easily transferable. Because there is limited research and experience with delivering marriage education services to low income consumers, OCS contends that projects should carefully consider the planning and model development stage. Projects may use focus groups, community surveys or other methods to gather information and data to assist them in the development stage. This data gathering process would give the agency a valuable opportunity to obtain information about assets, issues, and barriers that should be considered when developing a program for low-income couples. Potential barriers or issues might be logistical, cultural, etc. The key here is to gather information and use it effectively to design an intervention that meets the needs of the project's target population. For example, during the data gathering process the agency might discover that delivering marriage education classes during the week would not be feasible because most of the potential consumers have small school-aged children. Other factors like weekend offerings, on-site activities for youth, may be identified as preferences, providing valuable insight for model development.
This phase of the project should be programmed to occur in the first two quarters after the award.
OCS seeks to fund well-designed program interventions that will aid organizations within the Community Services Network in helping low-income couples build and sustain healthy marriages through the acquisition and application of skill building techniques known to improve marital stability so that these development and implementation lessons can be shared with other organizations. Applicants shall provide a thorough description of how the intervention/service will be implemented including reasonable plans for project marketing and outreach, participant recruitment and retention, the type of marriage education services to be offered, guidelines on the frequency and duration of classes or services, staffing, training plans and projections of the number of couples to be served. Well-designed approaches will also be tailored to meet the needs of the target population. Proposals should demonstrate how the intervention would be designed to provide the necessary support services often required to meet needs of low-income or diverse populations. For example, transportation to and from healthy marriage activities, childcare, translation services, etc.
OCS intends to fund the creation of healthy marriage intervention models that can be used for training and technical assistance activities for use within the Community Services Network that focus on:
• Successful strategies and service models for helping couples interested in learning skills and approaches that will help them create and sustain a healthy marriage and therefore provide a nurturing family environment for their children;
• Successful strategies and service models for helping married couples sustain and enrich their marriage and family, including on-going opportunities for marriage education and other marital skill-building activities; and
• Ways to measure and report the effectiveness, or results, of the healthy marriage and/or enrichment activities described above.
Based on the experiences and successes of currently funded healthy marriage projects, OCS is interested in supporting program interventions and service models that employ the following concepts:
• Deliver marriage education classes or services that are skill based and reflective of industry standards.
• Voluntary participation in healthy marriage activities. Projects should always stress to consumers that participation is voluntary. Providing services to those consumers that have chosen to learn these skills for themselves.
• Culturally relevant program interventions. Projects should use culturally relevant approaches that respectfully account for racial and ethnic perspectives.
• Responsiveness to domestic violence issues and concerns.
• Use of logic models to document and track the linkages between program resources, activities, outputs, and outcomes.
This area is intended to support healthy marriage technical assistance and training activities that will enhance
Applicants should present a detailed, comprehensive plan for sharing their experiences and lessons learned with other agencies within the Community Services Network. Plans should describe how the applicant will provide technical assistance activities. These activities can include, but are not limited to: making presentations at community services conferences for those interested in implementing healthy marriage programs; creating and disseminating technical assistance documents that give tips for the development and implementation of healthy marriage programs; the production of quarterly findings and written annual reports for distribution to other community organizations; and hosting site visits; roundtables or other forums to present healthy marriage lessons learned.
Projects funded under this announcement will be expected to provide for the project director and the evaluator to attend an early kickoff meeting for the grantees funded under this priority area to be held within the first three months of the project (first year only) in Washington DC.
OCS strongly encourages applicants to consult their local domestic violence coalition to learn more about the information and services they provide to the community.
As prescribed by the Community Services Block Grant, as amended (Pub. L. 105-285, Section 678A(c)(2)) eligible applicants are eligible entities, or statewide or local organizations, or associations with demonstrated expertise in providing training to individuals and organizations on methods of effectively addressing the needs of low-income families and communities. Eligible applicants must meet this criterion to be eligible for CSBG T&TA funding.
Faith-based organizations are eligible to apply.
Community Services Block Grant eligible entities and State Community Action Agencies are eligible to apply.
None.
All Applicants must have a Dun & Bradstreet Number. On June 27, 2003 the Office of Management and Budget published in the
Please ensure that your organization has a DUNS number. You may acquire a DUNS number at no cost by calling the dedicated toll-free DUNS number request line on 1-866-705-5711 or you may request a number on-line at
Non-profit organizations applying for funding are required to submit proof of their non-profit status.
Proof of non-profit status is any one of the following:
• A reference to the applicant organization's listing in the Internal Revenue Service (IRS) most recent list of tax-exempt organizations described in the IRS Code.
• A copy of a currently valid IRS tax exemption certificate.
• A statement from a State taxing body, State attorney general, or other appropriate State official certifying that the applicant organization has a non-profit status and that none of the net earning accrue to any private shareholders or individuals.
• A certified copy of the organization's certificate of incorporation or similar document that clearly establishes non-profit status.
• Any of the items in the subparagraphs immediately above for a State or national parent organization and a statement signed by the parent organization that the applicant organization is a local non-profit affiliate.
Private, non-profit organizations are encouraged to submit with their applications the survey located under “Grant Related Documents and Forms,” “Survey for Private, Non-Profit Grant Applicants,” titled “Survey on Ensuring Equal Opportunity for Applicants,” at:
Applications that exceed the ceiling amount will be considered non-responsive and will not be considered for funding under this announcement.
Any application received after 4:30 p.m. eastern time on the deadline date will not be considered for competition.
Dr. Margaret Washnitzer, Office of Community Services Operations Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209. Phone: 800-281-9519. E-mail:
If submitting your application in paper format, an original and two copies of the complete application are required. The original and each of the two copies must include all required forms, certifications, assurances, and appendices, be signed by an authorized representative, have original signatures, and be submitted unbound.
Each application must contain the following items in the order listed:
In Item 5 of Form 424, put DUNS number in “Organizational DUNS:” box.
In Item 5 of Form 424, include name, phone number, and, if available, email and fax numbers of the contact person.
In Item 8 of Form 424, check “New.”
In Item 10 of Form 424, clearly identify the Catalog of Federal Domestic Assistance (CFDA) program title and number for the program for which funds are being requested as stated in this funding opportunity announcement.
In Item 11 of Form 424, identify the single funding opportunity the application addresses.
In Item 12 of Form 424, identify the specific geographic area to be served.
In Item 14 of Form 424, identify Congressional districts of both the applicant and project.
Follow the instructions provided here and those in Section V. Application Review Information.
If applicable, applicants must include a completed SPOC certification (Single Point of Contact) with the date of the SPOC contact entered in line 16, page 1 of the Form 424.
The application limit is 75 pages total including all forms and attachments. Pages over this page limit will be removed from the application and will not be reviewed.
To be considered for funding, each application must be submitted with the Standard Federal Forms (provided at the end of this announcement or through the electronic links provided) and following the guidance provided. The application must be signed by an individual authorized to act for the applicant agency and to assume responsibility for the obligations imposed by the terms and conditions of the grant award.
The application must be typed, double spaced, printed on only one side, with at least
All copies of an application must be submitted in a single package, and a separate package must be submitted for each funding opportunity. The package must be clearly labeled for the specific funding opportunity it is addressing.
Because each application will be duplicated, do not use or include separate covers, binders, clips, tabs, plastic inserts, maps, brochures, or any other items that cannot be processed easily on a photocopy machine with an automatic feed. Do not bind, clip, staple, or fasten in any way separate subsections of the application, including supporting documentation; however, each complete copy must be stapled securely in the upper left corner. Applicants are advised that the copies of the application submitted, not the original, will be reproduced by the Federal government for review.
The Office of Community Services Web site
You may submit your application to us in either electronic or paper format. To submit an application electronically, please use the
Please note the following if you plan to submit your application electronically via Grants.gov:
• Electronic submission is voluntary, but strongly encouraged.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation. We strongly recommend that you do not wait until the application deadline date to begin the application process through Grants.gov.
• We recommend you visit Grants.gov at least 30 days prior to filing your application to fully understand the process and requirements. We encourage applicants who submit electronically to submit well before the closing date and time so that if difficulties are encountered an applicant can still send in a hard copy overnight. If you encounter difficulties, please contact the Grants.gov Help Desk at 1-800-518-4276 to report the problem and obtain assistance with the system.
• To use Grants.gov, you, as the applicant, must have a DUNS Number and register in the Central Contractor Registry (CCR). You should allow a minimum of five days to complete the CCR registration.
• You will not receive additional point value because you submit a grant application in electronic format, nor will we penalize you if you submit an application in paper format.
• You may submit all documents electronically, including all information typically included on the SF 424 and all necessary assurances and certifications.
• Your application must comply with any page limitation requirements described in this program announcement.
• After you electronically submit your application, you will receive an automatic acknowledgement from Grants.gov that contains a Grants.gov tracking number. The Administration for Children and Families will retrieve your application from Grants.gov.
• We may request that you provide original signatures on forms at a later date.
• You may access the electronic application for this program on www.Grants.gov .
• You must search for the downloadable application package by the CFDA number.
All applications, whether received via mail, hand delivery or electronically, will receive a written confirmation of receipt from the OCS operations center.
Private, non-profit organizations are encouraged to submit with their applications the survey located under “Grant Related Documents and Forms,” “Survey for Private, Non-Profit Grant Applicants,” titled, “Survey on Ensuring Equal Opportunity for Applicants,” at:
The project description should include all the information requirements described in the specific evaluation criteria outlined in the program announcement under Section V Application Review Information. In addition to the project description, the applicant needs to complete all the standard forms required for making applications for awards under this announcement.
Applicants seeking financial assistance under this announcement must file the Standard Form (SF) 424, Application for Federal Assistance; SF-424A, Budget Information—Non-Construction Programs; SF-424B, Assurances—Non-Construction Programs. The forms may be reproduced for use in submitting applications. Applicants must sign and return the standard forms with their application.
Applicants must furnish prior to award an executed copy of the Standard Form LLL, Certification Regarding Lobbying, when applying for an award in excess of $100,000. Applicants who have used non-Federal funds for lobbying activities in connection with receiving assistance under this announcement shall complete a disclosure form, if applicable, with their applications (approved by the Office of Management and Budget under control number 0348-0046). Applicants must sign and return the certification with their application.
Applicants must also understand they will be held accountable for the smoking prohibition included within Public Law 103-227, Title XII Environmental Tobacco Smoke (also known as the PRO-KIDS Act of 1994). A copy of the
Applicants must make the appropriate certification of their compliance with all Federal statutes relating to nondiscrimination. By signing and submitting the applications, applicants are providing the certification and need not mail back the certification form. Complete the standard forms and the associated certifications and assurances based on the instructions on the forms. The forms and certifications may be found at:
Those organizations required to provide proof of non-profit status, please refer to Section III.3.
Please see Section V.1, for instructions on preparing the full project description.
The closing time and date for receipt of applications is referenced above. Applications received after 4:30 p.m. eastern time on the closing date will be classified as late.
Applications hand carried by applicants, applicant couriers, other representatives of the applicant, or by overnight/express mail couriers shall be considered as meeting an announced deadline if they are received on or before the deadline date, between the hours of 8 a.m. and 4:30 p.m., eastern time, at the address referenced in Section IV.6., between Monday and Friday (excluding Federal holidays).
ACF cannot accommodate transmission of applications by facsimile. Therefore, applications transmitted to ACF by fax will not be accepted regardless of date or time of submission and time of receipt.
Any application received after 4:30 p.m. eastern time on the deadline date will not be considered for competition.
Applicants using express/overnight mail services should allow two working
You may use the checklist below as a guide when preparing your application package.
Private, non-profit organizations are encouraged to submit with their applications the survey located under “Grant Related Documents and Forms,” “Survey for Private, Non-Profit Grant Applicants,” titled, “Survey on Ensuring Equal Opportunity for Applicants,” at:
This program is covered under Executive Order 12372, “Intergovernmental Review of Federal Programs,” and 45 CFR Part 100, “Intergovernmental Review of Department of Health and Human Services Programs and Activities.” Under the Order, States may design their own processes for reviewing and commenting on proposed Federal assistance under covered programs.
As of October 1, 2004, the following jurisdictions have elected to participate in the Executive Order process: Arkansas, California, Delaware, District of Columbia, Florida, Georgia, Illinois, Iowa, Kentucky, Maine, Maryland, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, New York, North Dakota, Rhode Island, South Carolina, Texas, Utah, West Virginia, Wisconsin, American Samoa, Guam, North Mariana Islands, Puerto Rico, and Virgin Islands. As these jurisdictions have elected to participate in the Executive Order process, they have established SPOCs. Applicants from participating jurisdictions should contact their SPOC, as soon as possible, to alert them of prospective applications and receive instructions. Applicants must submit all required materials, if any, to the SPOC and indicate the date of this submittal (or the date of contact if no submittal is required) on the Standard Form 424, item 16a. Under 45 CFR 100.8(a)(2).
A SPOC has 60 days from the application deadline to comment on proposed new or competing continuation awards. SPOCs are encouraged to eliminate the submission of routine endorsements as official recommendations. Additionally, SPOCs are requested to clearly differentiate between mere advisory comments and those official State process recommendations which may trigger the “accommodate or explain” rule.
When comments are submitted directly to ACF, they should be addressed to the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Grants Management, Division of Discretionary Grants, 370 L'Enfant Promenade SW., 4th floor, Washington, DC 20447.
Although the remaining jurisdictions have chosen not to participate in the process, entities that meet the eligibility requirements of the program are still eligible to apply for a grant even if a State, Territory, Commonwealth, etc. does not have a SPOC. Therefore, applicants from these jurisdictions, or for projects administered by federally-recognized Indian Tribes, need take no action in regard to E.O. 12372.
The official list, including addresses, of the jurisdictions elected to participate in E.O. 12372 can be found on the following URL:
A list of Single Points of Contact for each State and Territory is included with the application materials for this announcement.
OCS will not fund any project where the role of the applicant is primarily to serve as a conduit for funds to organizations other than the applicant. The applicant must have a substantive role in the implementation of the project for which funding is requested. This prohibition does not bar the making of sub-grants or sub-contracting for specific services or activities needed to conduct the project.
Public reporting burden for this collection of information is estimated to average 25 hours per response, including the time for reviewing instructions, gathering and maintaining the data needed and reviewing the collection information.
The project description is approved under OMB control number 0970-0139 which expires 4/30/2007.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The project description provides a major means by which an application is evaluated and ranked to compete with other applications for available assistance. The project description should be concise and complete and should address the activity for which Federal funds are being requested. Supporting documents should be included where they can present information clearly and succinctly. In preparing your project description, information responsive to each of the requested evaluation criteria must be provided. Awarding offices use this and other information in making their funding recommendations. It is important, therefore, that this information be included in the application in a manner that is clear and complete.
Applicants required to submit a full project description shall prepare the project description statement in accordance with the following instructions while being aware of the specified evaluation criteria. The text options give a broad overview of what your project description should include while the evaluation criteria identifies the measures that will be used to evaluate applications.
Provide a summary of the project description (a page or less) with reference to the funding request.
Clearly identify the physical, economic, social, financial, institutional, and/or other problem(s) requiring a solution. The need for assistance must be demonstrated and the principal and subordinate objectives of the project must be clearly stated; supporting documentation, such as letters of support and testimonials from concerned interests other than the applicant, may be included. Any relevant data based on planning studies should be included or referred to in the endnotes/footnotes. Incorporate demographic data and participant/beneficiary information, as needed. In developing the project description, the applicant may volunteer or be requested to provide information on the total range of projects currently being conducted and supported (or to be initiated), some of which may be outside the scope of the program announcement.
Identify the results and benefits to be derived. For example, describe the population to be served by the program and the number of new jobs that will be targeted to the target population. Explain how the project will reach the targeted population, how it will benefit participants including how it will support individuals to become more economically self-sufficient.
Outline a plan of action that describes the scope and detail of how the proposed work will be accomplished. Account for all functions or activities identified in the application. Cite factors that might accelerate or decelerate the work and state your reason for taking the proposed approach rather than others. Describe any unusual features of the project such as design or technological innovations, reductions in cost or time, or extraordinary social and community involvement.
Provide quantitative monthly or quarterly projections of the accomplishments to be achieved for each function or activity in such terms as the number of people to be served and the number of activities accomplished.
When accomplishments cannot be quantified by activity or function, list them in chronological order to show the schedule of accomplishments and their target dates.
If any data is to be collected, maintained, and/or disseminated, clearance may be required from the U.S. Office of Management and Budget (OMB). This clearance pertains to any “collection of information that is conducted or sponsored by ACF.”
List organizations, cooperating entities, consultants, or other key individuals who will work on the project along with a short description of the nature of their effort or contribution.
Provide a narrative addressing how the conduct of the project and the results of the project will be evaluated. In addressing the evaluation of results, state how you will determine the extent to which the project has achieved its stated objectives and the extent to
Provide information on the applicant organization(s) and cooperating partners, such as organizational charts, financial statements, audit reports or statements from CPAs/Licensed Public Accountants, Employer Identification Numbers, names of bond carriers, contact persons and telephone numbers, child care licenses and other documentation of professional accreditation, information on compliance with Federal/State/local government standards, documentation of experience in the program area, and other pertinent information. If the applicant is a non-profit organization, submit proof of non-profit status in its application.
The non-profit agency can accomplish this by providing: (a) A reference to the applicant organization's listing in the Internal Revenue Service's (IRS) most recent list of tax-exempt organizations described in the IRS Code; (b) a copy of a currently valid IRS tax exemption certificate; (c) a statement from a State taxing body, State attorney general, or other appropriate State official certifying that the applicant organization has a non-profit status and that none of the net earnings accrue to any private shareholders or individuals; (d) a certified copy of the organization's certificate of incorporation or similar document that clearly establishes non-profit status; (e) any of the items immediately above for a State or national parent organization and a statement signed by the parent organization that the applicant organization is a local non-profit affiliate.
Provide a budget with line item detail and detailed calculations for each budget object class identified on the Budget Information form. Detailed calculations must include estimation methods, quantities, unit costs, and other similar quantitative detail sufficient for the calculation to be duplicated. Also include a breakout by the funding sources identified in Block 15 of the SF-424.
Provide a narrative budget justification that describes how the categorical costs are derived. Discuss the necessity, reasonableness, and allocability of the proposed costs.
The following evaluation criteria appear in weighted descending order. The corresponding score values indicate the relative importance that ACF places on each evaluation criterion; however, applicants need not develop their applications precisely according to the order presented. Application components may be organized such that a reviewer will be able to follow a seamless and logical flow of information (
In considering how applicants will carry out the responsibilities addressed under this announcement, competing applications for financial assistance will be reviewed and evaluated against the following criteria:
(1) The extent to which the work program is results-oriented, furthers the purposes of 678(A) of the CSBG Act, and specifically related to the priority area under which funds are being requested. The extent to which the applicant addresses the following: specific outcomes to be achieved; performance targets that the project is committed to achieving, including a discussion of and how the project will verify the achievement of these targets; critical milestones which must be achieved if results are to be gained; organizational support, the level of support from the applicant organization; past performance in similar work; and specific resources contributed to the project that are critical to success.
(2) The extent to which the applicant defines the comprehensive nature of the project and methods that will be used to ensure that the results can be used to address a statewide or nationwide project as defined by the description of the particular priority area.
(3) The extent to which the applicant can effectively demonstrate that they have adequate knowledge of the information and services provided by domestic violence coalitions within their community.
(1) The extent to which the applicant demonstrates that it has experience and a successful record of accomplishment relevant to the specific activities it proposes to accomplish.
(2) If extent to which the applicant proposes to provide training and technical assistance, it details its abilities to provide those services on a nationwide basis. If applicable, the extent to which information provided by the applicant also addresses related achievements and competence of each cooperating or sponsoring organization.
(3) The extent to which the applicant fully describes, for example in a resume, the experience and skills of the proposed project director and primary staff showing specific qualifications and professional experiences relevant to the successful implementation of the proposed project.
(4) The extent to which the applicant describes how it will involve partners in the Community Services Network in its activities. Where appropriate, the extent to which the applicant describes how it will interface with other related organizations.
(5) If subcontracts are proposed, the extent to which the applicant documents the willingness and capacity of the subcontracting organization(s) to participate as described.
(1) The extent to which the applicant documents that the proposed project addresses the vital needs related to the CSBG program purposes and provides statistics and other data and information in support of its contention.
(2) The extent to which the application provides current supporting documentation or other testimonies regarding needs from State CSBG Directors, CAAs and local service providers and/or State and Regional organizations of CAAs and other local service providers.
(1) The extent to which the applicant describes how the project will assure long-term program and management improvements for State CSBG offices, CAA State and/or regional associations, CAAs and/or other local providers of CSBG services and activities.
(2) The extent to which the applicant indicates the types and amounts of public and/or private resources it will mobilize, how those resources will directly benefit the project, and how the project will ultimately benefit low-income individuals and families.
(3) If the applicant proposes a project with a training and technical assistance focus, the extent to which the applicant indicates the number of organizations
(4) If the applicant proposes a project with data collection focus, the extent to which the applicant describes the mechanism it will use to collect data, how it can assure collections from a significant number of States, and the number of States willing to submit data to the applicant.
(5) If the applicant proposes to develop a symposium series or other policy-related project(s), the extent to which the applicant identifies the number and types of beneficiaries.
(6) The extent to which the applicant describes methods of securing participant feedback and evaluations of activities.
(1) The extent to which the resources requested are reasonable and adequate to accomplish the project.
(2) The extent to which total costs are reasonable and consistent with anticipated results.
Each application submitted to OCS will be screened to determine whether it was received by the closing date and time and whether the proposed budget does not exceed the ceiling amount specified in Section II. Award Information.
Applications that pass the initial OCS screening will be reviewed and rated by a panel based on the program elements and review criteria presented in relevant sections of this program announcement. The review criteria are designed to enable the review panel to assess the quality of a proposed project and determine the likelihood of its success. The criteria are closely related to each other and are considered as a whole in judging the overall quality of an application. The review panel awards points only to applications that are responsive to the program elements and relevant review criteria within the context of this program announcement.
The OCS Director and program staff will use the reviewer scores when considering competing applications. Reviewer scores will weigh heavily in funding decisions, but will not be the only factors considered.
Applications generally will be considered in order of the average scores assigned by the review panel. Because other important factors are taken into consideration, highly ranked applications are not guaranteed funding. These other considerations include, for example: The timely and proper completion by the applicant of projects funded with OCS funds granted in the last five (5) years; comments of reviewers and government officials; staff evaluation and input; amount and duration of the grant requested and the proposed project's consistency and harmony with OCS goals and policy; geographic distribution of applications; previous program performance of applicants; compliance with grant terms under previous HHS grants, including the actual dedication to program of mobilized resources as set forth in project applications; audit reports; investigative reports; and applicant's progress in resolving any final audit disallowance on previous OCS or other Federal agency grants.
Applications that are approved but unfunded may be held over for funding in the next funding cycle, pending the availability of funds, for a period not to exceed one year.
Applications will be reviewed in the summer of 2005. Grant awards will have a start date no later than September 30, 2005.
The successful applicants will be notified through the issuance of a Financial Assistance Award document which sets forth the amount of funds granted, the terms and conditions of the grant, the effective date of the grant, the budget period for which initial support will be given, the non-Federal share to be provided, and the total project period for which support is contemplated. The Financial Assistance Award will be signed by the Grants Officer and transmitted via postal mail.
Organizations whose applications will not be funded will be notified in writing.
Direct Federal grants, sub-award funds, or contracts under this program shall not be used to support inherently religious activities such as religious instruction, worship, or proselytization. Therefore, organizations must take steps to separate, in time or location, their inherently religious activities from the services funded under this Program. Regulations pertaining to the Equal Treatment For Faith-Based Organizations, which includes the prohibition against Federal funding of inherently religious activities, can be found at either 45 CFR 87.1 or the HHS Web site at
45 CFR part 74; 45 CFR part 92. Grantees are subject to the requirements in 45 CFR part 74 (non-governmental) or 45 CFR part 92 (governmental) as well as 45 CFR part 87.
All grantees are required to submit semi-annual (quarterly or annual) program reports; grantees are also required to submit semi-annual expenditure reports using the required financial standard form (SF-269) which can be found at the following URL:
Final reports are due 90 days after the end of the grant period.
Programmatic Reports: Semi-Annually.
Financial Reports: Semi-Annually.
Grantees will be required to submit program progress reports and financial reports (SF269) throughout the project period. Program progress and financial reports are due 30 days after the reporting period. In addition, final programmatic and financial reports are due 90 days after the close of the project period.
Program Office Contact: Dr. Margaret Washnitzer, Department of Health and Human Services, Administration for Children and Families, Office of Community Services' Operations Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209, Phone: 800-281-9519, E-mail:
Grants Management Office Contact: Barbara Ziegler Johnson, Team Leader, Office of Grants Management, Division of Discretionary Grants, Administration for Children and Families, Office of Community Services' Operations Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209, Phone: 800-281-9519, E-mail:
Additional information about this program and its purpose can be located on the following Web sites:
For general questions regarding this announcement please contact: Dr. Margaret Washnitzer, Department of Health and Human Services, Administration for Children and Families, Office of Community Services' Operations Center, 1515 Wilson Blvd., Suite 100, Arlington, VA 22209, Phone: 800-281-9519, E-mail:
Applicants will not be sent acknowledgements of received applications.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is seeking pharmaceutical companies to volunteer to participate in a pilot program involving the submission of chemistry, manufacturing, and controls (CMC) information consistent with the new pharmaceutical quality assessment system. The purpose of the pilot program is twofold. First, the pilot program will provide participating pharmaceutical companies with an opportunity to submit critical CMC information that demonstrates their understanding of quality by design, product knowledge, and process understanding of the drug substance and drug product in a new drug application (NDA). Second, the pilot program will enable the public and regulated industry to provide feedback that will assist FDA in developing a guidance for industry on the new quality assessment system.
Submit written and electronic requests to participate in the pilot program by October 31, 2005. Submit written and electronic comments on this pilot program by December 31, 2006.
Submit written requests to participate in the pilot program and written comments on the program to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic requests to participate and electronic comments to
Michael Folkendt, Center for Drug Evaluation and Research (HFD-800), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, e-mail:
The Office of New Drug Chemistry (ONDC) in the Office of Pharmaceutical Science, Center for Drug Evaluation and Research, is establishing a modern, risk-based pharmaceutical quality assessment system, as described in a September 2004 White Paper entitled “ONDC's New Risk-Based Pharmaceutical Quality Assessment System” (
The new quality assessment system will focus on critical pharmaceutical quality attributes (related to chemistry, formulation, manufacturing process design, and product performance) and their relevance to safety and effectiveness. The principles underlying this new quality assessment system can be found in the February 2005 International Conference on Harmonization (ICH) draft guidance entitled “Q8 Pharmaceutical Development” (
The new quality assessment system is intended to facilitate innovation and improvement throughout the product lifecycle and to provide regulatory flexibility for specification setting and postapproval changes based on scientific knowledge and understanding of product and process by applying quality-by-design principles. To take full advantage of the new quality assessment system, including appropriate regulatory flexibility, applicants should provide information in the CMC section of an NDA that demonstrates their product knowledge and process understanding at the time of submission. A CMC submission under the new system should contain a more comprehensive Quality Overall Summary (Module 2.3 of the ICH Common Technical Document (CTD) “M4Q: The CTD—Quality”) and a more expansive Pharmaceutical Development section (Module 3.2.P.2, of the CTD). It should also include more relevant information on critical quality attributes and how they relate to clinical safety and effectiveness. The information provided should do the following: (1) Provide an appropriate level of confidence that quality has been built into the product by demonstrating the extent of product knowledge and process understanding at the time of submission, including information explaining critical steps and in-process controls to facilitate setting scientifically sound specifications and acceptance criteria, and (2) identify possible sources of variability in manufacturing by explaining how associated risks can be mitigated. At the same time, there would be less need for information that could be handled through inspectional oversight of current good manufacturing practices (cGMP) requirements (e.g., executed batch record, redundant chromatographic data, standard operating procedures). The pilot is also intended to provide enhanced clarity by distinguishing between information submitted and used in the pharmaceutical assessment process and information that is a condition of approval (e.g., that cannot be modified without further application/supplement review).
The pilot program will provide additional information for ONDC to use in implementing the new quality assessment system. FDA will work with each participant on an individual basis,
This program will be limited to 12 original NDAs to be submitted by December 31, 2006, in the CTD format, paper or electronic. If an applicant believes that a particular CMC supplement would be a good candidate for this pilot program, the applicant is encouraged to first contact ONDC to discuss its acceptability. Acceptance into this program will depend on the soundness of the drug development plan and the potential of the proposed application to affect the development of the new quality assessment system. Every effort will be made to ensure that all pharmaceutical companies have the opportunity to participate and that many different drug product types are included in this pilot program.
This pilot program only affects the CMC section of the NDA. Existing regulations and requirements for the submission of an NDA will not be waived, suspended, or modified for purposes of this pilot program. Participants must submit the NDA, paper or electronic, in accordance with 21 CFR part 314 and other relevant regulations.
Interested parties should submit to the Division of Dockets Management (see
Potential participants are encouraged to discuss their plans to participate in this pilot program with ONDC (e.g., as part of an end-of-phase-2 or pre-NDA meeting). Meeting requests for participating applicants should be submitted in accordance with the CDER guidance for industry on “Formal Meetings With Sponsors and Applicants for PDUFA Products” (
The quality assessment under this pilot program will be conducted under the direct oversight of the ONDC Office Director by a team of experienced scientists who have a good understanding of the new quality assessment system and a strong scientific background in pharmaceutical development and manufacturing.
A pharmaceutical company may withdraw from participation in the pilot program at any time before the NDA is submitted by notifying ONDC in writing that it wishes to withdraw from the program.
Interested persons may submit written comments on this pilot program to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice; correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Joyce Strong, Office of Policy and Planning (HF-27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-7010.
In FR Doc. 05-12960, appearing on page 37863 in the
1. On page 37864, in the second column, under the section heading “
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
This is a request for approval of a one-time survey to obtain a broad, statistically accurate picture of the Voucher Homeownership Program and how it operates nationwide, based on a sample of 230 PHAs that have implemented the program.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-6974.
Wayne Eddins, Reports Management Officer, AYO, Department of Housing and Urban Development, 451 Seventh Street, SW., Washington, DC 20410; e-mail
This notice informs the public that the Department of Housing and Urban Development has submitted to OMB a request for approval of the information collection described below. This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
This notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Bureau of Land Management, Interior.
Notice of invitation to participate in Coal Exploration License.
Pursuant to section 2(b) of the Mineral Leasing Act of 1920, as amended by section 4 of the Federal Coal Leasing Amendments Act of 1976, 90 Stat. 1083, 30 U.S.C. 201(b), and to the regulations adopted as 43 CFR 3410, all interested qualified parties, as provided in 43 CFR 3472.1, are hereby invited to participate with Ark Land Company on a
Containing 840.00 acres.
All of the coal in the above-described land consists of unleased Federal coal within the Uinta-Southwestern Utah Known Coal Production Area. The purpose of the exploration program is to obtain coal quality data to supplement data from previous adjacent coal exploration programs. The proposed exploration program is fully described and will be conducted pursuant to an exploration plan to be approved by the Bureau of Land Management (BLM).
Copies of the exploration plan are available for review during normal business hours (serialized under the number of UTU 82202) in the public room of the BLM State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah. The written notice to participate in the exploration program should be sent to both the BLM, Utah State Office, P.O. Box 45155, Salt Lake City, Utah 84145, and to Mark Bunnell, Mine Geologist, Canyon Fuel Company, LLC, Skyline Mine, HC 35 Box 380, Helper, Utah 84526.
Bill Buge, Salt Lake City, Bureau of Land Management, (801) 539-4086.
This notice of invitation to participate has been published in the Mt. Pleasant Pyramid and the Richfield Reaper, once each week for two consecutive weeks
The foregoing is published in the
Bureau of Land Management, Interior.
Notice.
This notice is an invitation to participate in Coal Exploration program. Ark Land Company has filed the application for the Granger Ridge Tract. All qualified parties are invited to participate with Ark Land Company on a pro rata cost sharing basis in its program for the exploration of certain Federal coal deposits in the following described lands in Carbon County, Utah:
Containing 3,803.86 acres.
Bill Buge, Salt Lake City, Bureau of Land Management, (801) 539-4086.
Any party electing to participate in this exploration program must send written notice of such election to the Bureau of Land Management, Utah State Office, P.O. Box 45155, Salt Lake City, Utah 84145, and to Mark Bunnell, Mine Geologist, Canyon Fuel Company, LLC, Skyline Mine, HC 35 Box 380, Helper, Utah 84526. BLM must receive your written notice by August 15, 2005.
Any party wishing to participate in this exploration program must be qualified to hold a lease under the provisions of 43 CFR 3472.1 and must share all cost on a pro rata basis. An exploration plan submitted by Ark Land Company, detailing the scope and timing of this exploration program is available for public review during normal business hours in the public room of the BLM State Office, 440 W. 200 S., Suite 500, Salt Lake City, Utah, under serial number UTU-82243.
Bureau of Land Management, Interior.
Notice of Invitation for Coal Exploration License.
Pursuant to section 2(b) of the Mineral Leasing Act of 1920, as amended by section 4 of the Federal Coal Leasing Amendments Act of 1976, 90 Stat. 1083, 30 U.S.C. 201 (b), and to the regulations adopted as 43 CFR 3410, all interested parties are hereby invited to participate with Bridger Coal Company on a pro rata cost sharing basis in its program for the exploration of coal deposits owned by the United States of America in the following-described lands in Sweetwater County, WY:
Containing 1,278.74 acres, more or less.
All of the coal in the above-described land consists of unleased Federal coal within the Rock Springs Known Recoverable Coal Resources Area. The purpose of the exploration program is to obtain coal quality data and to further quantify this particular reserve base inclusive of adjacent private and state lands. The proposed exploration program is fully described and will be conducted pursuant to an exploration plan to be approved by the Bureau of Land Management.
Copies of the exploration plan are available for review during normal business hours in the following offices (serialized under number WYW163613): Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, P.O. Box 1828, Cheyenne, WY 82003; and Bureau of Land Management, Rock Springs Field Office, 280 Highway 191 North, Rock Springs, WY 82901. The written notice to participate in the exploration program should be sent to both of the following addresses: Bridger Coal Company, c/o Interwest Mining Company, Attn: Scott M. Child, One Utah Center, Suite 2100, 201 South Main Street, Salt Lake City, UT 84111, and the Bureau of Land Management, Wyoming State Office, Branch of Solid Minerals, Attn: Julie Weaver, P.O. Box 1828, Cheyenne, WY 82003.
This notice of invitation will be published in the “Rocket-Miner” of Rock Springs, WY, once each week for two consecutive weeks beginning the week of July 11, 2005, and in the
Bureau of Land Management, Interior.
Notice of intent to prepare an Environmental Impact Statement (EIS).
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969, the Bureau of Land Management (BLM), Cottonwood Field Office, will be directing the preparation of an EIS for the Eastside Township Fuels and Vegetation Project and initiate the formal public scoping process. The scoping comment period will commence with the publication of this notice and will end 30 days after its publication. Comments on the scope of
The Draft EIS is expected to be distributed for public review and comment in the summer of 2005, and it's anticipated that the Final EIS should be completed four to six months later.
Written comments should be sent to the BLM, Cottonwood Field Office, Route 3, Box 181, Cottonwood, Idaho 83522, (fax (208) 962-3275), or e-mail
For further information or to have your name added to the mailing list, contact Robbin Boyce at the Cottonwood Field Office (see address above), telephone (208) 962-3594 or e-mail:
Initial scoping for this project began February 6, 2004, when a scoping letter that included a description of the proposed action and purpose and need for the project, was mailed to interested parties. Based upon the comments from the public, agencies, coalitions and Native Americans, and further field review, it was determined that further analysis and an EIS was warranted.
The proposed action implements key components of the National Fire Plan as addressed in the 10-year Comprehensive Strategy by reducing hazardous fuels conditions, reducing the risk of high intensity wildland fire to life, property and natural resources in the Elk City wildland—urban interface, and maintaining low intensity fire conditions where they exist. The proposed project implements recommendations from the Idaho County Wildland Fire and Mitigation Plan (2003) prepared by the Clearwater Resource Conservation and Development Council. The proposed action would support an upward trend in watershed/aquatic conditions as required by the Chief Joseph Management Framework Plan, and would entail changing the forest density and species composition to maintain and increase forest stand resilience to high intensity fire, insects, and disease. This would be achieved by applying various silvicultural prescriptions including salvage, patch clearcutting, seedtree/shelterwood, pre-commercial and commercial thinning, biomass utilization, grapple piling of slash, and prescribed burns. Timber harvest and prescribed burning prescriptions would be conducted on an estimated 1,300 acres. Road closure, decommissioning, and conversion of roads to trails, riparian treatments (plantings and stabilization), and in-stream habitat modification would be used to improve fish habitat and aquatic conditions.
Issues previously identified during public scoping for this project as well as comments received as a result of this Notice, will be used to prepare the EIS. Issues previously identified during public scoping for this project include the following:
• Declining forest health due to mortality from insects and disease;
• High potential for stand replacing fire; including the risk to public safety and potential property loss due to the location of residences within the forested areas;
• Desired future conditions for the seral stages of forest stands and the need and ability to control weeds;
• Access issues including the need to cross Forest Service and private lands;
• Road construction, erosion, and water quality;
• Fisheries (resident, anadromous, and listed species) habitat;
• Wildlife habitat; including big game hiding, security, thermal cover and travel corridors/connectivity;
• Cultural, heritage and visual resources; and
• Impacts of past and likely future activities in the Elk City area.
More detailed information about this project, including maps, is available at the Cottonwood Field Office, Route 3, Box 181, Cottonwood, Idaho 83522. If you previously submitted comments, they will be considered and you will be retained on the mailing list.
Bureau of Land Management, Interior.
Notice of intent.
The Bureau of Land Management (BLM) has received two applications to lease a total of 13,089.55 acres of Federal coal at the East Lynn Lake project in Wayne County, West Virginia. The lease applications for mining the federal coal on these were applied under the provisions of 43 Code of Federal Regulations (CFR) 3425.1. The BLM will prepare a LUA/EIS prior to holding a competitive Federal coal lease sale. Both applicants are proposing to mine the coal by underground mining methods from existing mines they operate on adjacent private land. The lands being considered for lease border East Lynn Lake on portions of both its north and south shores, but no mining would occur directly beneath the lake itself. This notice, in accordance with Section 102(2)(C) of the National Environmental Policy Act (NEPA), announces the beginning of the review process and invites the public, other Federal Agencies, State and local governments to submit information on coal resource development potential and on resources which may be affected by coal development for lands within the analysis area. The BLM also asks that you suggest issues that should be considered in developing the LUA and include statements explaining why the land should or should not be considered for leasing.
The BLM will accept comments on or before August 15, 2005.
You may send written comments to Bureau of Land Management, Attn: John Romito, 901 Pine Street, Suite 201, Rolla, MO 65401. You may also submit electronic comments and other data to
John Romito, Bureau of Land Management, 573-364-0204.
Argus Energy LLC (Argus) has submitted a coal LBA (WVES50556) to BLM for 7,624.60 acres bordering a portion of the southern shore of the East Lynn Lake Project in Wayne County, West Virginia. Rockspring Development (Rockspring) also submitted a coal LBA for 5,449.92 acres (WVES50560) that borders a portion of the north shore of the lake. East Lynn Lake is located approximately 25 miles south of Huntington, West Virginia and is managed by the U.S. Army Corps of Engineers (USACE) for flood control, recreation and wildlife.
The State of West Virginia does not use the Public Land Rectangular Survey system to legally describe land tracts within the state, but instead utilizes Metes and Bounds property description. Consequently, to avoid numerous pages of lengthy legal descriptions, the federal coal reserves encompassed by the LBAs are described below by referencing the USACE mineral-tract number the reserves fall within. It should be pointed out that referencing a mineral-tract number in the listing below, does not necessarily mean the entire mineral tract is under application. More detailed property descriptions are available in the case files located in the BLM office in Rolla, Mo.
Mineral Tract Numbers—Tract Nos: 77M-14; 177M-12; 177M-11; 177M-1; 745M; 746M; 808; 840M; 843M; 846M; 1140M; 1140; 1301; 1313M; 1717M; 1718M; 1810M; 1811M; 1813M; 1813M; 2020M; 2321M; 2430M; 2431M; 2737 and 2737.
Mineral Tract Numbers—Tract Nos. 174M; 177M-2p; 177M-1; 184M; 376ME-2; 375M; 376ME-1; 377M; 378M; 380M; 381M; 382M; 384M; 386M; 390ME-1; 395M; 427M; 430M; 517A; 517B; 545M; 547M; 548M; 550M; 553M; 554M; 556M; 745M; 847M; 1450M; 1451M; 1452M; 1453M; 1717M and 1718M.
Argus proposes to mine the Federal coal in the lease application area by underground methods extending from two of their existing underground mines located on private land to the south of the application area. Rockspring would similarly access their application area from their existing underground mine located on private lands north of their application area. Argus is currently conducting exploratory drilling on their application area under exploration license WVES 50816. It is reasonable to expect that Rockspring may also wish to conduct exploratory drilling on their area of interest. It is also reasonable to expect that both companies may need to drill additional holes for mine planning purposes if leases were to be issued and mine plans approved.
BLM is provided the authority to lease Federal coal under the Mineral Leasing Act as defined under 43 CFR 3480.0-5(a)(25) and the 1999 Water Resource and Development Act for Federally owned coal at East Lynn Lake. The Office of Surface Mining (OSM) in cooperation with the State of West Virginia, issues Mine Permits under the Surface Mining Control and Reclamation Act (SMCRA). Additionally, as provided by 40 CFR 1501.6, the U.S. Army Corps of Engineers (USACE) and the Office of Surface Mining have been invited to participate as Cooperating Agencies in the proposed coal-leasing action.
This notice is issued pursuant to 40 CFR 1501.7, 43 CFR 1610.2(c) and 43 CFR 3420. BLM's planning effort will follow the procedures set forth in 43 CFR 1610. As provided by 43 CFR 3420.1-2, industry, State and local governments and the general public are requested to submit information regarding coal and other resources which may be affected by coal development within the leasing area.
Preliminary issues, subject to change as a result of public input, are (1) potential impacts of coal mining and development drilling on the surface and subsurface resources; and (2) consideration of restrictions on lease rights to protect surface resources.
Preliminary planning criteria developed to guide the preparation of the LUA/EIS include:
1. Land use planning and environmental analysis will be conducted in accordance with all applicable laws, regulations, executive orders and manuals.
2. Planning will be conducted for the Federal coal mineral estate only.
3. A mine plan scenario will be prepared for the Federal resources.
4. Resource data needed to assess the effects of coal mining and coal development drilling will be collected.
5. The planning team will work cooperatively with Federal, State and local governments and agencies, as well as groups, organizations and individuals.
6. In accordance with the Water Resource and Development Act of 1999, consent will not be required from the surface management agency should coal leasing be approved.
7. The LUA/EIS will identify mitigation measures designed to reduce or avoid potential impacts of coal leasing.
8. Other criteria as identified through the planning process.
The interdisciplinary team will consider the specific resources and uses identified in the 20 Unsuitability Criteria listed at 43 CFR part 3461 to the extent that they apply to underground mining. Screening of the Federal coal lands in the application areas through the Unsuitability Criteria will result in a determination as to which lands are (1) acceptable for further leasing consideration with standard stipulations or (2) acceptable for further leasing consideration with special stipulations or (3) are unacceptable for further consideration for leasing.
Lands acceptable for further leasing consideration after screening through the Unsuitability Criteria will be further screened for other resource values and uses that could be affected by lease issuance.
Comments or information may be submitted by mail or electronically to the addresses provided above.
In addition to accepting written comments, BLM will also schedule a public meeting in Wayne, West Virginia before the end of the comment period. This meeting will provide another opportunity for you to identify issues or concerns about the proposal. The BLM will publish advance notice of the exact time and place of this meeting in local newspapers at least 15 days prior to the meeting. The BLM will also conduct a public hearing in accordance with 43 CFR 3420 and 3422.1 when the draft LUA/EIS is completed. This hearing will be announced through the
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act (1976) and the Federal Advisory Committee Act (1972), the U.S. Department of the Interior, Bureau of Land Management (BLM) Pinedale Anticline Working Group (PAWG) will meet in Pinedale, Wyoming, for a business meeting. Group meetings are open to the public.
The PAWG will meet August 9, 2005, from 9 a.m. until 5 p.m.
The meeting of the PAWG will be held in the Lovatt room of the Pinedale Library, 155 S. Tyler Ave., Pinedale, WY.
Carol Kruse, BLM/PAWG Liaison, Bureau of Land Management, Pinedale Field Office, 432 E. Mills St., P.O. Box 738, Pinedale, WY, 82941; 307-367-5352.
The Pinedale Anticline Working Group (PAWG) was authorized and established with release of the Record of Decision (ROD) for the Pinedale Anticline Oil and Gas Exploration and Development Project on July 27, 2000. The PAWG advises the BLM on the development and implementation of monitoring plans and adaptive management decisions as development of the Pinedale Anticline Natural Gas Field proceeds for the life of the field.
The agenda for this meeting is to review any Task Group monitoring recommendations and the monitoring funding matrix. At a minimum, public comments will be heard prior to lunch and adjournment of the meeting.
Bureau of Land Management, Interior.
Notice of reinstatement of terminated oil and gas lease.
Under the provisions of Public Law 97-451, Philip Rice timely filed a petition for reinstatement of oil and gas lease TXNM 107338 for lands in Wise County, Texas, and it was accompanied by all required rentals and royalties accruing from December 1, 2004, the date of termination.
Lourdes B. Ortiz, BLM, New Mexico State Office, (505) 438-7586.
No valid lease has been issued affecting the lands. The lessee has agreed to new lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof and 16
Bureau of Land Management, Interior.
Notice of reinstatement of terminated oil and gas lease.
Under the provisions of Public Law 97-451, Philip Rice timely filed a petition for reinstatement of oil and gas lease TXNM 107329 for lands in Wise County, Texas, and it was accompanied by all required rentals and royalties accruing from December 1, 2004, the date of termination.
Lourdes B. Ortiz, BLM, New Mexico State Office, (505) 438-7586.
No valid lease has been issued affecting the lands. The lessee has agreed to new lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof and 16
Bureau of Land Management, Interior.
Notice of proposed reinstatement of terminated oil and gas lease.
Under the provisions of 30 U.S.C. 188(d) and (e), and 43 CFR 3108.2-3(a) and (b)(1), the Bureau of Land Management (BLM) received a petition for reinstatement from Freeman Investments of oil and gas lease WYW152214 for lands in Sweetwater County, Wyoming. The petition was filed on time and was accompanied by all the rentals due since the date the lease terminated under the law.
Bureau of Land Management, Pamela J. Lewis, Chief, Fluid Minerals Adjudication, at (307) 775-6176.
The lessee has agreed to the amended lease terms for rentals and royalties at rates of $10.00 per acre or fraction thereof, per year and 16
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management proposes to extend the duration of Public Land Order (PLO) No. 7464 for an additional 5-year period. PLO 7464 withdrew 3,530.62 acres of public land in Phillips County, Montana from settlement, sale, location and entry under the general land laws, including the United States mining laws, to facilitate reclamation of a mine site.
Comments and requests for a public meeting must be received by October 12, 2005.
Comments and meeting requests should be sent to the Montana State Director, BLM, PO Box 36800, Billings, Montana 59107-6800.
Tami Lorenz, BLM, Montana State Office, 406-896-5053, or Sandy Ward, BLM, Montana State Office, 406-896-5052.
The withdrawal created by PLO No. 7464 (65 FR 59463) will expire on October 4, 2005, unless extended. The Bureau of Land Management (BLM) has filed an application to extend PLO No. 7464 for an additional 5-year period. The withdrawal was made to protect the reclamation of the Zortman-Landusky mining area described as follows:
The area described contains 3,530.62 acres in Phillips County.
The proposed withdrawal extension would allow reclamation of the Zortman and Landusky mining area to be continued without the interference of further locations under the United States mining laws.
As extended, the withdrawal would not alter the applicability of those public land laws governing the use of the land under lease, license, or permit, or governing the disposal of their mineral or vegetative resources other than under the mining laws.
The use of a right-of-way, or interagency, or cooperative agreement are not considered to be desirable or acceptable alternatives.
There are no suitable alternative sites available where the withdrawal would facilitate mine reclamation since the location of the Zortman and Landusky mines and the necessary reclamation materials are fixed.
No water rights will be needed to fulfill the purpose of the requested withdrawal.
For a period of 90 days from the date of publication of this notice, all persons who wish to submit comments, suggestions, or objections in connection with the proposed withdrawal extension may present their views in writing to the Montana State Director of the Bureau of Land Management at the address noted above.
Comments, including names and street addresses of respondents, will be available for public review at the BLM Malta Field Office, 501 South 2nd Street East, HC 65, Box 5000, Malta, Montana 59538-0047, during regular business hours 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. Individual respondents may request confidentiality. If you wish to withhold your name or address from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comments. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public inspection in their entirety.
Notice is hereby given that an opportunity for a public meeting is afforded in connection with the proposed withdrawal extension. All interested persons who desire a public
This withdrawal extension proposal will be processed in accordance with the applicable regulations set forth in 43 CFR 2310.4.
Bureau of Land Management, Interior.
Notice of realty action.
A 39.99 acre parcel of public land in San Bernardino County, California is being considered for direct sale to Searles Valley Minerals, Inc. to resolve an unauthorized use of public land. This land is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another Federal agency.
Interested parties may submit comments to the Ridgecrest Field Manager, at the below address. Comments must be received by not later than August 29, 2005. In the absence of timely objections, this proposal shall become the final determination of the Department of the Interior.
Bureau of Land Management, Ridgecrest Field Office c/o California Desert District at 22835 Calle San Juan De Los Lagos, Moreno Valley, California 92553.
Janet Eubanks, Realty Specialist, at the above address or at (951) 697-5376.
The following described land has been examined and found suitable for sale to Searles Valley Minerals, Inc. utilizing direct sale procedures, at not less than the appraised fair market value of $6,000. The land sale is contingent upon the approval of the West Mojave Plan, an amendment to the California Desert Conservation Area Plan of 1980 and will not be offered for sale until at least September 12, 2005.
Containing approximately 39.99 acres.
Authority for the sale is Section 203 of the Federal Land Policy and Management Act of October 21, 1976 (43 U.S.C. 1713). The mineral interests will be retained by the United States of America. The patent, when issued, will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States. Act of August 30, 1890 (43 U.S.C. 945).
2. A mineral lease granted to Kerr-McGee Chemical Corp. its successors or assigns, under lease CALA 087312.
3. (a) The United States reserves to itself all minerals in the lands subject to this conveyance, including, without limitation, substances subject to disposition under the general mining laws, the general mineral leasing laws, the Materials Act and the Geothermal Steam Act.
(b) The United States reserves to itself its permittees, licensees, lessee and mining claimants, the right to prospect for, mine and remove the mineral owned by the United States under applicable law and such regulations as the Secretary of the Interior may prescribe. This reservation includes all necessary and incidental activities conducted in accordance with the provisions of the mining, geothermal and mineral leasing, and material disposal laws in effect at the time such activities are undertaken, including, without limitation, necessary access and exit rights, all drilling, underground, open pit or surface mining operations, storage and transportation facilities deemed necessary and authorized under law and implementing regulations.
(c) Mining claimants, permittees, licensees and lessees of the United States, shall only be liable for and shall only compensate owners of the surface estate for damages caused by their actions or inactions and not related to conditions on the real property relating to or arising from the boiler ash or any hazardous substances or solid waste released, disposed of, or stored on the real property.
(d) All causes of action brought to enforce the rights of the surface owner under the regulations above referred to shall be instituted against mining claimants, permittees, licensees and lessees of the United States; and the United States shall not be liable for the acts or omissions of its mining claimants, permittees, licensees, or lessees.
The proposed sale is also subject to those rights for monitoring wells granted to Kerr-McGee Chemical Corp. by right-of-way serial number CACA-034604, pursuant to Title V of the Act of October 21, 1976 (43 U.S.C. 1761).
The above described land has been used as a disposal site for boiler ash generated by Kerr-McGee Chemical Corp. from operations at Searles Lake, Trona, California. Permanent records regarding the disposal of boiler ash on this land are maintained by Kerr-McGee Chemical LLC at the Kerr-McGee Center, Oklahoma City, Oklahoma, and available for public inspection. Although there is no indication these materials pose any significant risk to human health or the environment, the foregoing reservations of rights in favor of the United States and its permittees, licensees, lessees and mining claimants shall be exercised in a manner and on terms and conditions consistent with, and patentee and its successors and assigns shall limit future land uses on or affecting the disposal site to those consistent with, the closure and post-closure plans for the site approved by the California Regional Water Quality Control Board Lahontan Region, any applicable State and Federal laws and regulations.
Patentee, its successors and assignor agrees to indemnify, defend, and hold the United States harmless from any costs, damages, claims, liabilities, and judgements for the real property including the boiler ash site arising from acts or omissions of the patentee, its employees, agents, contractors, lessees or any third parties arising out of or in connection with, patentee's use, occupancy, or operations on the patented real property. This indemnification and hold harmless agreement includes, but is not limited to, acts and omissions of the patentee, its employees, agents, contractors, lessees, or any third parties arising out of or in connection with the use and/or occupancy of the patented real property, including the boiler ash site, that has resulted in or does hereafter result in any of the following: (1) Violations of Federal, state, and local laws and regulations; (2) judgements, claims or demands assessed against the United States; (3) costs, expenses, or damages incurred by the United States; (4) releases or threatened releases, including but not limited to the boiler
The proposed sale is also subject to those rights for monitoring wells granted to Kerr-McGee Chemical Corp. by right-of-way serial number (CACA 34604), pursuant to Title V of the Act of October 21, 1976 (43 U.S.C. 1761).
This parcel of land located in Searles Valley, California, is being offered for sale through direct sale procedures authorized under 43 CFR 2711.3-3. This land has been used in trespass by Kerr-McGee Chemical Corp. to dispose of boiler ash and is no longer required for Federal purposes. The land is currently classified as intensive use under the CDCA plan, which does not allow for sale; however, the same land is being unclassified under the West Mojave Plan to allow for disposal of land through a direct sale. No action will be taken on these lands until the decision record for the West Mojave Plan is approved. The proposed action is consistent with the objectives, goals, and decisions of the West Mojave Plan.
An Environmental Assessment (EA) and a Finding of No Significant Impact (FONSI) has been prepared for this proposed sale. The EA and FONSI are available for public review and comment in the Ridgecrest Field Office. A copy may be requested from Janet Eubanks, Ridgecrest Realty Specialist at (951) 697-5376.
Publication of this Notice in the
Interested parties may submit written comments to the Ridgecrest Field Manager at the above address. Comments must be received by not later than August 29, 2005.
Any adverse comments will be reviewed by the State Director, who may sustain, vacate, or modify this realty action and issue a final determination. In the absence of timely filed objections this realty action will become the final determination of the Department of the Interior. The land will not be offered for sale until at least September 12, 2005.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes a direct sale under Section 203 of the Federal Land Policy and Management Act of 1976 (90 Stat. 2750, 43 U.S.C. 1713), of approximately 0.58 acres in Walton County, Florida, at no less than fair market value.
Interested persons may submit written comments to the BLM at the address stated below. Comments must be received by not later than August 29, 2005.
Bureau of Land Management, Jackson Field Office, 411 Briarwood Dr., Suite 404, Jackson, Mississippi 39206.
Mary Weaver, Realty Specialist, at the above address or at (601) 977-5435.
The following described public land has been examined and found suitable for sale pursuant to Section 203 of the Federal Land Policy and Management Act of October 21, 1976 (43 U.S.C. 1713):
The area described contains 0.58 acres, more or less.
The proposed sale conforms to the Florida Resource Management Plan Amendment approved October 8, 2004. The land is proposed to be sold, using 43 CFR 2711.3-3 direct sale procedures, to the Palms of Dune Allen Owners Association, Inc., which is a corporation formed by an association of the owners of a condominium development know as the Palms of Dune Allen. A direct sale is appropriate to protect the equities arising from a right-of-way grant issued previously by the Bureau of Land Management. This right-of-way authorized two boardwalks, which provide beach access from the Palms of Dune Allen land to the beach of the Gulf of Mexico. Because of the small size and configuration of the land, its historic use for access and location relative to adjoining private land, it is impractical for another party to own or for BLM to retain the land under its management.
The land will not be offered for sale until at least 60 days after August 29, 2005. The appraised fair market value of the land is $10,000. The prospective purchaser will be allowed 30 days from receipt of a written offer to submit a deposit of at least 20 percent of the appraised market value of the land, and 180 days thereafter to submit the balance.
The following reservations, covenants and conditions will be included in the patent conveying the land:
1. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable laws and such regulations as the Secretary of the Interior may prescribe.
2. Patentee, its successors and assigns, agree that the above described land is subject to the following, which shall constitute a covenant running with the land:
In order to protect the habitat of the Choctawhatchee Mouse, minimize interference with nesting areas used by sea turtles and shorebirds, and otherwise preserve natural dune habitat, the patentee, its successors and assigns, covenant and agree not to engage in, allow or suffer, with respect to the above described land:
Clearing, cutting or mowing;
Earthmoving, sand removal, grading, cultivation, burning or filling;
Dumping of refuse, wastes, sewage, other debris or any hazardous substances;
Draining, ditching, diking, dredging, channelizing, pumping, impounding or excavating;
Diverting or affecting the natural flow of surface or underground waters within or out of the land;
Burning, systematically removing or cutting or otherwise destroying any vegetation, except for removal of diseased or unsafe trees;
Spraying with biocides;
Introducing exotic species or otherwise altering the natural state;
Grazing of domesticated animals;
Display of billboards, signs or advertisements on or over the land,
Constructing, placing or raising of any structure, whether temporary or permanent.
Notwithstanding these prohibitions, the existing boardwalks that currently traverse the land may be repaired, maintained and reconstructed in their current location, and, with respect to the western-most boardwalk, electricity service may be maintained for lighting and gate access and water supply for hose and shower, provided that lighting must be “turtle friendly”, so as to not be deleterious to sea turtle nesting. In the event the sand dunes are damaged or severely eroded by the waters of the Gulf, by wind, storms, rain, hurricanes or by any natural event, the sand dunes may be rebuilt and restored, dune grasses may be planted and sand fences may be installed to encourage the natural restoration.
Detailed information concerning the proposed sale, including but not limited to documentation relating to compliance with applicable environmental and cultural resource laws, is available for review in the BLM, Jackson Field Office at the address stated above.
The above described land is segregated from appropriation under the public land laws, including the general mining laws, except for leasing under the mineral leasing laws. The segregation effect will end upon issuance of the patent or April 10, 2006, whichever occurs first.
Comments must be received by the BLM Field Manager, Jackson Field Office, at the address stated above, on or before the date stated above for that purpose. Any adverse comments will be evaluated by the State Director who may sustain, vacate, or modify this realty action. In the absence of any objections, this proposed realty action will become final.
Bureau of Land Management, Interior.
Notice of realty action.
The BLM examined and found suitable for classification for lease or conveyance under the provisions of the Recreation and Public Purposes Act (R&PP), as amended (43 U.S.C. 869
Sharon DiPinto, Bureau of Land Management, Las Vegas Field Office, at (702) 515-5062.
On September 2, 2004 the LDS Church filed an R&PP application for 5 acres of public land to be developed as a church with related facilities. These related facilities include a multipurpose building (a worship center, offices, classrooms, nursery, kitchen, restrooms, utility/storage rooms and a lobby) with sidewalks, landscaped areas, paved parking areas, and off site improvements. The LDS Church is a qualified nonprofit entity. Additional detailed information pertaining to this application, plan of development, and site plans is on file in case file N-79027 located in the BLM Las Vegas Field Office. The LDS Church proposes to use the following described public land for a church and related facilities:
Containing 5 acres, more or less.
Churches are a common applicant under the “public purposes” provision of the R&PP Act. The LDS Church is an IRS registered non-profit organization and is therefore, a qualified applicant under the R&PP Act.
The lease/conveyance is consistent with current Bureau planning for this area and would be in the public interest. The lease/patent, when issued, will be subject to the provisions of the Recreation and Public Purposes Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe and will be subject to:
1. An easement in favor of Clark County for roads, public utilities and flood control purposes.
2. All valid existing rights documented on the official public land records at the time of lease/patent issuance.
Send written comments to the Field Manager, Las Vegas Field Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada, 89130. Detailed information concerning this action is available for review at the office of the Bureau of Land Management, Las Vegas Field Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada, 89130-2301.
On July 14, 2005, the land described below will be segregated from all other forms of appropriation under the public land laws, including the general mining laws, except for lease/conveyance under the Recreation and Public Purposes Act, leasing under the mineral leasing laws and disposals under the mineral material disposal laws. Interested parties may submit comments regarding the proposed lease/conveyance or classification of the lands until August 29, 2005.
Any adverse comments will be reviewed by the State Director. In the absence of any adverse comments, the classification of the land described in this notice will become effective on September 12, 2005. The lands will not be offered for lease/conveyance until
43 CFR 2741.
The plat, representing the dependent resurveys and surveys, in Township 21 South, Range 69 West, Sixth Principal Meridian, Group 1335, Colorado, was accepted June 15, 2005.
The plat, in two sheets, representing the metes-and-bounds survey of a portion of the boundary of the American Flats Wilderness Addition to the Uncompahgre Wilderness as described in Pub. L. 103-77, the “Colorado Wilderness Act of 1993”, in Suspended Townships 43 North, Ranges 6 and 7 West, New Mexico Principal Meridian, Group 1369, Colorado, was accepted June 10, 2005.
The supplemental plat creating lost 14, 15, 16 and 17 as a result of M.S. 18249, Grand Aspen, Black Cat and Protection lodes, being cancelled on March 4, 2005, in Township 48 North, Range 2 East, Sec. 29, New Mexico Principal Meridian, Colorado, was accepted April 19, 2005.
These plats and resurvey notes were requested by the Bureau of Land Management for administrative and management purposes.
The plat of survey requested by the U.S. Forest Service, Durango, Colorado, for the purpose of identifying the boundaries of National Forest lands, in Molas Park, in suspended Township 40 North, Range 7 West, New Mexico Principal Meridian, Group 1422, Colorado, was accepted May 19, 2005.
The plat, representing the dependent resurvey, and corrective dependent resurvey, in Township 32 North, Range 7 West, New Mexico Principal Meridian, Group 1418, Colorado, was accepted April 18, 2005. This survey was requested by the Southern Ute Indian Tribe, through the State Director, Colorado, in order to identify Southern Ute tribal trust lands.
The plat, representing the dependent resurvey and surveys in Township 48 North, Range 4 West, New Mexico Principal Meridian, Group 1396, Colorado, was accepted June 30, 2005. This survey was requested by the Bureau of Indian Affairs, with the approval of the State Director, Colorado, in order to identify the boundary of Ute Mountain Ute lands for management purposes.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) order (ALJ Order No. 40) denying the respondents' joint motion for sanctions and an initial determination (“ID”) (ALJ Order No. 49) terminating the above-captioned investigation. Notice is also hereby given that the Commission is setting a schedule for filing an appeal of the sanctions levied in ALJ Order No. 48.
Rodney Maze, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-confidential 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 (
This patent-based section 337 investigation was instituted by the Commission based on a complaint filed by Verve, LLC (“Verve”), of Austin, Texas. 69 FR 53945 (September 3, 2004). The complainant alleged violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain point of sale terminals and components thereof by reason of infringement of claims 1 and 2 of U.S. Patent No. 5,012,077. The complaint named Thales e-Transactions, Inc. of Atlanta, Georgia, Thales Group of Plaisir Cedex, France, CyberNet USA, Inc. of San Jose, California, CyberNet, Inc. of Seoul, Korea, Lipman USA, Inc. of Syosset, New York, Lipman Electronic Engineering, Ltd. of Rosh Haayin, Israel, Ingenico Corp. USA of Atlanta, Georgia, Ingenico of Puteaux Cedex, France, Trintech, Inc. of Addison, Texas, Trintech Group, PLC of Dublin, Ireland, Hypercom Corp. of Phoenix, Arizona and VeriFone, Inc. of Alpharetta, Georgia as respondents. Eight respondents remain in this investigation, as two respondents were terminated on summary determination of no violation and two respondents were terminated on the basis of a settlement agreement.
On February 7, 2005, the ALJ issued Order No. 31 finding that Verve lacked sufficient standing by itself to maintain this investigation without joining Omron Tateisi Electronics Company (“Omron”). On February 11, 2005, Verve filed a motion for withdrawal of the complaint and termination of the investigation. On February 18, 2005, the remaining respondents filed a joint motion for sanctions for improper filing of the complaint, abuse of discovery and failure to make discovery, and attorneys' fees for the sanctionable conduct found to exist. Six of the remaining respondents also filed individual motions for sanctions. On March 10, 2005, Verve filed a joint response in opposition to all of the remaining respondents' motions for sanctions. On March 18, 2005, the Commission investigative attorney (“IA”) filed separate responses opposing the respondents” motions for sanctions
On April 11, 2005, the ALJ issued Order No. 40 denying all of the respondents' motions for sanctions and ordering Verve to show cause why sanctions should not be imposed by the ALJ. On May 5, 2005, Verve filed a response to the show cause order. On May 16, 2005, the respondents filed a joint reply to Verve's response.
On June 7, 2005, the ALJ issued Order No. 48 imposing,
Meanwhile, on June 8, 2005, the ALJ issued an ID (Order No. 49) granting Verve's motion for withdrawal of the complaint and termination of the investigation. On June 14, 2005, the respondents filed a joint petition for review of Order No. 40 and the ID. On June 21, 2005, the IA and Verve filed separate responses opposing the respondents' petition for review.
Having examined Order No. 40, the ID, and the parties' submissions, the Commission determined not to review the order and the ID. The Commission also granted Verve's motion to stay enforcement of Order No. 48, pending appeal to the Commission. Finally, the Commission determined to treat Order No. 48 and the ID as having been issued concurrently. Pursuant to Commission Rule 210.25(d), the Commission has set forth a briefing schedule for appeal of Order No. 48. Petitions for review of Order No. 48 must be filed no later than July 29, 2005. Responses to the petitions must be filed no later than August 12, 2005.
The authority for the Commission's determinations are contained in section 337 of the Tariff Act of 1930, as amended 19 U.S.C. 1337, and in sections 210.42, 210.43, and 210.25(d) of the Commission's Rules of Practice and Procedure (19 CFR 210.42, 210.43, and 210.25(d)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review a final initial determination (“ID”) issued by the presiding administrative law judge (“ALJ”) in the above-captioned investigation on May 9, 2005, finding a violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 1337. Notice is also hereby given that the Commission is requesting briefing on the issues of remedy, the public interest, and bonding.
Jean H. Jackson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone 202-205-3104. 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 3, 2004, based on a complaint filed by Trend Micro Inc. of Cupertino, California (“Trend Micro”). 69 FR 32044-45 (2004). The complaint alleged violations of section 337 in the importation into the United States, the sale for importation into the United States, or the sale within the United States after importation of certain systems for detecting and removing viruses or worms, components thereof, and products containing same by reason of infringement of claims 1-22 of U.S. Patent No. 5,623,600 (“the '600 patent”). The notice of investigation named Fortinet, Inc. (“Fortinet”) as the sole respondent.
On October 12, 2004, the ALJ issued Order No. 6 terminating the investigation as to claims 2, 5-6, 9-10, and 16-22 of the '600 patent based upon Trend Micro's unopposed motion to withdraw these claims. The Commission did not review Order No. 6, hence the claims of the '600 patent in issue are claims 1, 3, 4, 7, 8, and 11-15.
On December 14, 2004, the ALJ issued Order No. 13 granting complainant Trend Micro's motion for a summary determination that it satisfies the economic prong of the domestic industry requirement. Order No. 13 was not reviewed by the Commission.
An evidentiary hearing was held from January 24, 2005, to January 28, 2005. On March 29, 2005, a second evidentiary hearing was conducted and additional exhibits received into evidence.
On May 9, 2005, the ALJ issued his final ID and recommended determinations on remedy and bonding. He found a violation of section 337 based on his determinations that claims 4, 7, 8, 11, 12, 13, 14 and 15 of the '600 patent are not invalid or unenforceable, and that they are infringed by respondent's products. The ALJ also found that an industry exists that is related to the '600 patent, and that the respondent has imported infringing product. The ALJ further found that claims 1 and 3 of the '600 patent are anticipated by prior art.
On May 20, 2005, respondent Fortinet filed a petition for review of the final ID and complainant Trend Micro filed a contingent petition for review. The IA did not file a petition. On May 27, 2005, Fortinet filed a response to Trend Micro's contingent petition for review, and Trend Micro filed a response to Fortinet's petition for review. On June 2, 2005, the IA filed a response to Trend Micro's and Fortinet's petitions for review.
Having examined the record in this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission has determined not to review the ID, thereby finding a violation of section 337.
In connection with the final disposition of this investigation, the Commission may issue (1) an order that could result in the exclusion of the
When the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the President has 60 days to approve or disapprove the Commission's action. During this period, the subject articles would be entitled to enter the United States under a bond, in an amount determined by the Commission and prescribed by the Secretary of the Treasury. The Commission is therefore interested in receiving submissions concerning the amount of the bond that should be imposed.
Persons filing written submissions must file the original document and 12 true copies thereof with the Office of the Secretary on or before the deadlines stated above. Any person desiring to submit a document (or portions thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
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 210.42, 210.43, and 210.50 of the Commission's Interim Rules of Practice and Procedure (19 CFR 210.42, 210.43, and 210.50).
By order of the Commission.
United States International Trade Commission.
August 11, 2005, at 11 a.m.
Room 101, 500 E Street, SW., Washington, DC 20436. Telephone: (202) 205-2000.
Open to the public.
1. Agenda for future meetings: None.
2. Minutes.
3. Ratification List.
4. Inv. No. 731-TA-1094 (Preliminary) (Metal Calendar Slides from Japan)—briefing and vote. (The Commission is currently scheduled to transmit its determination to the Secretary of Commerce on or before August 15, 2005; Commissioners' opinions are currently scheduled to be transmitted to the Secretary of Commerce on or before August 22, 2005.)
5. Inv. Nos. 104-TAA-7 and AA1921-198-200 (Second Review) (Sugar from the European Union; Sugar from Belgium, France, and Germany)—briefing and vote. (The Commission is currently scheduled to transmit its determination and Commissioners' opinions to the Secretary of Commerce on or before August 29, 2005.)
6. Outstanding action jackets: None.
In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Judicial Conference of the United States; Advisory Committee on Rules of Civil Procedure.
Notice of Proposed Amendments and Open Hearings.
The Judicial Conference Advisory Committee on Rules of Civil Procedure has proposed amendments to the following rules:
The Judicial Conference Advisory Committee on Federal Rules of Civil Procedure has completed its style revision of the Civil Rules in accordance with uniform drafting guidelines. The restyling of the Civil Rules is the third in a series of comprehensive revisions to simplify, clarify, and make more uniform all of the federal procedural rules.
The proposed changes are intended to be primarily stylistic only. However, the Advisory Committee's extensive style review revealed ambiguities and
The text of the proposed rules amendments and the accompanying Committee Notes can be found at the United States Federal Courts' Home Page at
The Judicial Conference Committee on Rules of Practice and Procedure submits these proposed rules amendments for public comment. All comments and suggestions with respect to them must be placed in the hands of the Secretary as soon as convenient and, in any event, not later than December 15, 2005. All written comments on the proposed rule amendments can be sent by one of the following three ways: by overnight mail to Peter G. McCabe, Secretary, Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Thurgood Marshall Federal Judiciary Building, Washington, DC 20544; by electronic mail at
Public hearings are scheduled to be held on the proposed style and “style/substantive” amendments on the following dates:
• October 26, 2005, in San Francisco, California;
• November 18, 2005, in Chicago, Illinois; and
• December 2, 2005, in Washington, DC.
Those wishing to testify should contact the Secretary at the address above in writing at least 30 days before the hearing.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Pursuant to section 122(d) of CERCLA, 24 U.S.C. 9622(d), and 28 CFR 50.7 notice is hereby given that on June 24, 2005, a proposed partial Consent Decree (the Decree) in
In this consolidated action the United States, on behalf of the United States Environmental Protection Agency (EPA), and the New Jersey Department of Environmental Protection (NJDEP) seek cost recovery with respect to the Combe Fill South Landfill Superfund Site (the Site), located in Chester and Washington Townships, New Jersey, pursuant to CERCLA and other authorities against former operators of the Site, as well as generators and transporters of hazardous substances to the Site. The proposed Decree settles claims brought against four parties, Carbco, Inc., f/k/a J. Filiberto Sanitation, Inc., Chester Hills, Inc., John Filiberto, and Joseph Filiberto (the Settling Parties), by the United States and New Jersey. Under the terms of the proposed settlement, within thirty days of entry, the Settling Parties will pay $12.5 million, plus interest, to reimburse the United States and State of New Jersey for a portion of their costs incurred at the Site. After the time period for an appeal of the entry of the Consent Decree has passed, or any potential appeal has been resolved, the Settling Parties will also pay any monies remaining in their litigation escrow account to the United States and State of New Jersey. This settlement is based upon the Settling Parties' limited ability to pay, and the amounts being paid under the Consent Decree are entirely funded from settlements the Settling Parties have entered into with their insurance carriers, with no part of the Settling Parties' settlement with their insurance carriers inuring to their personal benefit.
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 Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, United States Department of Justice, Washington, DC 20044-7611, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney for the District of New Jersey, Office of the United States Attorney, Peter Rodini Federal Building, 970 Broad Street, Suite 700, Newark, NJ 07102, and at the United States Environmental Protection Agency, Region 2, 290 Broadway, New York, NY 10007-1866. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site:
Pursuant to 28 CFR 50.7, notice is hereby given that on June 30, 2005, a proposed Consent Decree in
In this civil action under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the United States seeks recovery of response costs from the Estate of Samuel M. Jones, Branch Banking & Trust Co. Of Virginia in its Representative Capacity as Executor of the Estate of Samuel M. Jones, and Sam's Junk, Recycle, Scrap & Materials Services (“Sam's Junk”), in connection
The Department of Justice will receive comments relating to the Consent Decree for a period of thirty (30) days from the date of this publication. Please address comments to the Assistant Attorney General, Environment and Natural Resources Division, PO Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, and refer to
The Consent Decree may be examined at the Office of the United States Attorney for the Eastern District of Virginia, 600 East Main Street, Suite 1800, Richmond, VA 23219, and at U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site,
Notice is hereby given that on June 30, 2005, a proposed Consent Decree was lodged with the United States Bankruptcy Court for the District of Delaware in
The Department of Justice will receive comments relating to the Consent Decree for a period of thirty (30) days from the date of this publication. 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 Consent Decree may be examined at the Office of the United States Attorney for the District of Delaware, 1007 Orange Street, Suite 700, PO Box 2046, Wilmington, DE 19899-2046, and at the Regional 10 Office of the United States Environmental Protection Agency, 1200 Sixth Ave., Seattle, WA 98101. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site,
Under 28 CFR 50.7, notice is hereby given that on June 15, 2005, a proposed Consent Decree in
The proposed Consent Decree settles claims that defendant Volkswagen of America, Inc. (“VWoA”) violated section 203(a)(2)(A) of the Clean Air Act (the “Act”), 42 U.S.C. 7522(a)(2)(A), by failing to timely file a defect investigation report with the United States Environmental Protection Agency disclosing an emission-related defect in 1999-2001 model year Golf, Jetta, and New Beetle light-duty vehicles sold in the United States. Such a report is required by 40 CFR 85.1903, which implements section 208(a) of the Act, 42 U.S.C. 7542(a). Pursuant to the terms of the proposed Consent Decree VWoA will pay a civil penalty in the amount of $1.1 million, and improve its emission defect investigation and reporting system. VWoA already completed a voluntary recall to correct the defect.
The proposed Consent Decree may be examined at the office of the United States Attorney for the District of Columbia, Judiciary Center Building, 555 Fourth Street, NW., Washington, DC 20530. During the public comment period the proposed Consent Decree may also be examined on the following Department of Justice Web site,
30-Day notice of information collection under review: Supplemental Victimization Survey (SVS).
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 August 15, 2005. 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)
If additional information is required contact: Brenda E. Dyer, Department 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.
Pursuant to the Government in the Sunshine Act (Pub. L. 94-409) [5 U.S.C. Section 552b].
Department of Justice, United States Parole Commission.
3:30 p.m., Monday, July 18, 2005.
U.S. Parole Commission, 5550 Friendship Boulevard, 4th Floor, Chevy Chase, Maryland 20815.
Closed—Meeting.
The following matter will be considered during the closed portion of the Commission's Business Meeting:
Procedure to be followed for review of one case upon request of the Attorney General as provided in 18 U.S.C. Sec. 4215(c).
Thomas W. Hutchison, Chief of Staff, United States Parole Commission, (301) 492-5990.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for the Mine Safety and Health Administration (MSHA), Office of Management and Budget, Room 10235, Washington, DC 20503, 202-395-7316 (this is not a toll-free number), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
On April 6, 2005, the Department issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of the subject facility. The notice of determination was published on April 25, 2005 in the
On January 24, 2005, a company official filed the petition as a secondarily-affected company (affected by loss of business as a supplier, assembler, or finisher of products or components produced for a TAA certified firm). The Department denied Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) to workers and former workers of Lawson-Hemphill Sales, Inc., Spartanburg, South Carolina because the worker separation eligibility requirement of Section 222 of the Trade Act of 1974, as amended, was not met. The investigation revealed that the subject facility neither separated nor
In the request for reconsideration, the petitioner alleged that the subject facility supported an affiliated production facility, Lawson-Hemphill, Inc., Central Falls, Rhode Island.
A careful review of previously-submitted documents revealed that a significant number of the workers at the South Carolina facility were separated or threatened with separation during the relevant period and that the primary function of the South Carolina facility is to sell textile testing instruments produced at the Rhode Island facility.
Even if the subject worker group supported production at the Rhode Island facility, they could not be certified for TAA under this petition because the Rhode Island facility was not affected by loss of business as a supplier, assembler, or finisher of products or components produced for the TAA-certified firms identified in the petition: Globe Manufacturing, Fall River, Massachusetts (TA-W-38,840); Cavalier Specialty Yarn, Gastonia, North Carolina (TA-W-53,226); Cone Mills Corporation, Cliffside, North Carolina (TA-W-53,291A); Pillowtex Corporation, Kannapolis, North Carolina (TA-W-39,416); Burlington Industries, Greensboro, North Carolina (TA-W-40,205); and Spartan Mills, Spartanburg, South Carolina (TA-W-37,126).
Lawson-Hemphill, Inc. cannot be considered a secondarily-affected company because textile testing instruments is not a component of textiles and the company neither assembles nor finishes an article produced by the above-identified companies.
Since the workers are denied eligibility to apply for TAA, the workers cannot be certified eligible for ATAA.
After careful reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Lawson-Hemphill Sales, Inc., Spartanburg, South Carolina.
By application of May 20, 2005, a petitioner requested administrative reconsideration of the Department's negative determination regarding eligibility to apply for Trade Adjustment Assistance (TAA), applicable to workers and former workers of the subject firm. The denial notice was signed on May 6, 2005, and published in the
Pursuant to 29 CFR 90.18(c) reconsideration may be granted under the following circumstances:
(1) If it appears on the basis of facts not previously considered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was based on a mistake in the determination of facts not previously considered; or
(3) If in the opinion of the Certifying Officer, a mis-interpretation of facts or of the law justified reconsideration of the decision.
The petition for the workers of FC Meyer Packaging, LLC/Millen Industries, Inc., Lawrence, Massachusetts engaged in production of shoe boxes was denied because the “contributed importantly” group eligibility requirement of Section 222 of the Trade Act of 1974, as amended, was not met, nor was there a shift in production from that firm to a foreign country. The “contributed importantly” test is generally demonstrated through a survey of the workers' firm's customers. The survey revealed that imports of shoe boxes were minimal during the relevant period and imports did not contribute importantly to separations at the subject firm. The subject firm did not import shoe boxes nor did it shift production to a foreign country during the relevant period.
The petitioner alleges that the subject firm lost its business due to the customers shifting their production of shoes abroad and buying shoe boxes overseas.
The petitioner concludes that, because the production of shoes occurs abroad, the subject firm workers producing shoe boxes are import impacted.
In order to establish import impact, the Department must consider imports that are like or directly competitive with those produced at the subject firm. The Department conducted a survey of the subject firm's major declining customer regarding their purchases of shoe boxes. The survey revealed that the declining customers did not import shoe boxes during the relevant period.
The petitioner further cites a list of customers which shifted their production overseas and imported shoe boxes back to the United States.
Some of these customers were already surveyed by the Department during the original investigation. A review of the survey responses confirms import purchases of show boxes were minimal and did not contribute importantly to the layoffs at the subject plant during the relevant period.
A company official was contacted to verify the allegations regarding the customers which were not surveyed during the initial investigation. The official stated that all of these companies were customers of the subject firm in the years prior to 2001, which is outside of the relevant time period.
After review of the application and investigative findings, I conclude that there has been no error or misinterpretation of the law or of the facts which would justify reconsideration of the Department of Labor's prior decision. Accordingly, the application is denied.
By Order dated February 7, 2005, the United States Court of International Trade (USCIT) directed the Department of Labor (Department) to further investigate
The Department's denial of eligibility to apply for worker adjustment
By application of July 2, 2003, the workers requested administrative reconsideration of the negative determination. In the request for reconsideration, the workers assert that the subject company could not have replaced the manual labor with a computer program (due to the complexity of decision making required in pattern making and the physical demands required to construct sample garments) and that the subject company must have outsourced production (possibly to a foreign source).
The Department contacted a company official and was informed that the computer program had reduced the need for manpower and that the work performed by the petitioners had not been outsourced, domestically or abroad.
The Notice of Negative Determination Regarding Application for Reconsideration was issued on August 19, 2003 and published in the
By letter dated September 24, 2003, the petitioners appealed to the USCIT for judicial review. In the appeal, the petitioners alleged that a computer pattern making program cannot replace human pattern makers, but was merely a tool to be used by the subject workers, and stated that it is their belief that their jobs were being outsourced abroad since the subject firm has not reduced the number of styles produced.
On February 7, 2005, the USCIT directed the Department to investigate into the petitioner's allegation that the new computer program cannot replace the human pattern makers, to determine the reason(s) for the subject firm's reduced need for garment samples and patterns in the period prior to the subject workers' separations, and to determine the subject workers' eligibility to apply for trade adjustment assistance as provided by the Trade Act of 1974.
In response to the petitioners' claim that the new computer program could not have replaced the manual pattern makers, the Department contacted a company official for clarification about the pattern making process. The company official described the process and explained how the need for manual pattern making was reduced by new pattern making technology. The company official also clarified that the sample makers made samples from manually created patterns and not the computer-generated patterns.
Prior to the new technology, technical pattern design teams created new patterns with the pattern makers drawing each new pattern by hand based on the designers' advice. The new pattern making technology enabled the technical designers to access a library of electronically-stored patterns and utilize those patterns in creating new patterns, thereby reducing the need for hand-drawn patterns. As the technology became more efficient, the need for manual pattern makers decreased.
Prior to the workers' separations in January 2003, the subject company had conducted a productivity analysis and concluded that there was not enough work to justify the then-current staffing levels of manual pattern makers and sample makers. There was a reduced need for the manual pattern makers due to increased productivity in other areas of production and decreased need for new patterns as existing patterns stored in the computer could be recalled and utilized. The company determined that one manual pattern maker could manage the workload of four manual pattern makers, and reduced the staff accordingly. Since the manual sample makers created samples from the patterns drawn by the manual pattern makers, the need for manual sample makers decreased as the number of hand-drawn patterns decreased. Thus, the level of manual staffing was reduced to match the level of manual pattern makers.
While sample imports increased after the implementation of new technology in March 2003, the company's submissions clearly show that the separations were not due to the subject company shifting production abroad or increasing imports of patterns or samples during the relevant period, but due to the subject company's institution of production improvement measures which resulted in the reduced need for manual labor in general. As such, the Department has determined that the workers have not met the criteria set forth in Section 222 of the Trade Act of 1974, as amended, and are not eligible to apply for worker adjustment assistance.
After reconsideration on remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Federated Merchandising Group, a Part of Federated Department Stores, New York, New York.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on May 23, 2005 in response to a worker petition filed by a company official on behalf of workers at Ingram Micro, Santa Ana, California.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on May 5, 2005 in response to a petition filed by a company official on behalf of workers at J.E. Morgan Knitting Mills (Sara Lee), Tamaqua, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than June 25, 2005.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than June 25, 2005.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
By letter dated June 15, 2005, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Region 3 and Local 499 requested administrative reconsideration regarding Alternative Trade Adjustment Assistance (ATAA) applicable to workers of the subject firm. The negative determination was signed on May 13, 2005, and was published in the
The workers of Manual Transmissions of Muncie, LLC, Muncie, Indiana were certified eligible to apply for Trade Adjustment Assistance (TAA) on May 13, 2005.
The initial ATAA investigation determined that the skills of the subject worker group are easily transferable to other positions in the local area.
In the request for reconsideration, the union representative provided new information confirming that the skills of the workers at the subject firm are not easily transferable in the local commuting area.
Additional investigation has determined that the workers possess skills that are not easily transferable. A significant number or proportion of the worker group are age fifty years or over. Competitive conditions within the industry are adverse.
After careful review of the additional facts obtained on reconsideration, I conclude that the requirements of Section 246 of the Trade Act of 1974, as amended, have been met for workers at the subject firm.
In accordance with the provisions of the Act, I make the following certification:
“All workers of Manual Transmissions of Muncie, LLC, Muncie, Indiana, who became totally or partially separated from employment on or after March 21, 2004 through May 13, 2007, are eligible to apply for trade adjustment assistance under Section 223 of the Trade Act of 1974 and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
In accordance with Section 223 of the Trade Act of 1974, as amended, (19 U.S.C. 2273), the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the periods of June 2005.
In order for an affirmative determination to be made and a certification of eligibility to apply for directly-impacted (primary) worker adjustment assistance to be issued, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign county of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made and a certification of eligibility to apply for worker adjustment assistance as an adversely affected secondary group to be issued, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In the following cases, the investigation revealed that the criteria for eligibility have not been met for the reasons specified.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B) (No shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.)(Sales or production, or both, did not decline) and (a) (2) (B) (II.B) (No shift in production to a foreign country) have not been met.
The investigation revealed that criterion (a)(2)(A)(I.A) and (a)(2)(B)(II.A) (no employment decline) has not been met.
The workers firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criterion (a)(2)(A) (I.C) (Increased imports and (a)(2)(B) (II.C) (has shifted production to a foreign country) have not been met.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of (a) (2) (A) (increased imports) of Section 222 have been met.
The following certifications have been issued. The requirements of (a) (2) (B) (shift in production) of Section 222 have been met.
The following certifications have been issued. The requirement of upstream supplier to a trade certified primary firm has been met.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
In the following cases, it has been determined that the requirements of Section 246(a)3)ii) have not been met for the reasons specified.
The Department as determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department as determined that criterion (1) of Section 246 has not been met. Workers at the firm are 50 years of age or older.
Since the workers are denied eligibility to apply for TAA, the workers cannot be certified eligible for ATAA.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
The following certifications have been issued; the date following the company name and location of each determination references the impact date for all workers of such determinations.
In the following cases, it has been determined that the requirements of Section 246(a)(3)(ii) have been met.
I. Whether a significant number of workers in the workers' firm are 50 years of age or older.
II. Whether the workers in the workers' firm possess skills that are not easily transferable.
III. The competitive conditions within the workers' industry (
I hereby certify that the aforementioned determinations were issued during the months of June 2005. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
By letter dated June 8, 2005, a company official requested administrative reconsideration regarding Alternative Trade Adjustment Assistance (ATAA) applicable to workers of the subject firm. The negative determination was signed on May 17, 2005, and was published in the
The workers of Selkirk, LLC, Logan, Ohio were certified eligible to apply for Trade Adjustment Assistance (TAA) on May 17, 2005.
The initial ATAA investigation determined that the skills of the subject worker group are easily transferable to other positions in the local area.
In the request for reconsideration, the company official provided new information confirming that the skills of the workers at the subject firm are not easily transferable in the local commuting area.
Additional investigation has determined that the workers possess skills that are not easily transferable. A significant number or proportion of the worker group are age fifty years or over. Competitive conditions within the industry are adverse.
After careful review of the additional facts obtained on reconsideration, I conclude that the requirements of Section 246 of the Trade Act of 1974, as amended, have been met for workers at the subject firm.
In accordance with the provisions of the Act, I make the following certification:
“All workers of Selkirk, LLC, Logan, Ohio, who became totally or partially separated from employment on or after May 28, 2005 through May 17, 2007, are eligible to apply for trade adjustment assistance under Section 223 of the Trade Act of 1974.”
“I further determine that all workers of Selkirk, LLC, Logan, Ohio, who became totally or partially separated from employment on or after April 26, 2004 through May 17, 2007 are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
On June 21, 2005, the Department on its own motion reopened the investigation regarding Alternative Trade Adjustment Assistance (ATAA) applicable to workers of the subject firm. The negative determination was signed on September 23, 2004, and was published in the
The workers of Sheaffer Manufacturing Company, LLC, Fort Madison, Iowa were certified eligible to apply for Trade Adjustment Assistance (TAA) on September 23, 2004.
The initial ATAA investigation determined that the skills of the subject worker group are easily transferable to other positions in the local area.
New information provided by the company contains new facts of a substantive nature bearing on the determination.
Upon further contact with a company official, it was confirmed that the information provided by the company was incorrectly reported during the initial investigation. During the initial investigation it was reported that the skills of the workers at the subject firm are easily transferable. It has been determined by new information provided by the company that the skills of the workers at the subject firm are not easily transferable in the local commuting area.
Upon further investigation it has been determined that a significant number or proportion of the worker group are age fifty years or over. Competitive conditions within the industry are adverse.
After careful review of the additional facts obtained on reconsideration, I conclude that the requirements of Section 246 of the Trade Act of 1974, as amended, have been met for workers at the subject firm.
In accordance with the provisions of the Act, I make the following certification:
“All workers of Sheaffer Manufacturing Company, LLC, Fort Madison, Iowa, who became totally or partially separated from employment on or after August 9, 2003 through September 23, 2006, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.”
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Employment Standards Administration is soliciting comments concerning the proposed collection: Agreement and Undertaking (OWCP-1). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before September 12, 2005.
Ms. Hazel M. Bell, U.S. Department of Labor, 200 Constitution Ave., NW., Room S-3201, Washington, DC 20210, telephone (202) 693-0418, fax (202) 693-1451, e-mail:
I.
II.
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
III.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
10: a.m., Thursday, July 14, 2005.
The Richard V. Backley Hearing Room, 9th Floor, 601 New Jersey Avenue, NW., Washington, DC.
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs, subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Jean Ellen, (202) 434-9950/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
U.S. Nuclear Regulatory Commission (NRC).
Notice of OMB review of information collection and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).
Information pertaining to the requirement to be submitted:
1.
2.
3.
4.
5.
6.
7.
Submit, by September 12, 2005, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Brenda Jo. Shelton (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-7233, or by Internet electronic mail to
For the Nuclear Regulatory Commission.
Office of Management and Budget, Executive Office of the President.
Notice and request for comments.
As part of an ongoing effort to improve the quality, objectivity, utility, and integrity of information collected and disseminated by the Federal Government, the Office of Management and Budget (OMB) requests comments on the recommendations that it has received from the Federal Committee on Statistical Methodology (FCSM) Subcommittee on Standards for Statistical Surveys to update and revise OMB Statistical Policy Directive No. 1, Standards for Statistical Surveys, and OMB Statistical Policy Directive No. 2, Publication of Statistics. The guidance, which applies to all Federal agencies subject to the Paperwork Reduction Act of 1995, is intended to ensure that the results of statistical surveys sponsored by the Federal Government are as reliable and useful as possible. The FCSM Subcommittee's recommendations, which are available in their entirety on the OMB Web site at
44 U.S.C. 3504(e)(3).
To ensure consideration during the final decision-making process, written comments must be provided to OMB no later than September 12, 2005.
Due to potential delays in OMB's receipt and processing of mail, respondents are strongly encouraged to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the comment closing date. Electronic comments may be submitted to: Brian A. Harris-Kojetin at
Brian Harris-Kojetin, PhD, Statistical and Science Policy Office, Office of Information and Regulatory Affairs, Office of Management and Budget, NEOB, Room 10201, 725 17th Street, NW., Washington, DC 20503. Telephone: 202-395-3093.
Statistics collected and published by the Federal Government constitute a significant portion of the available information about the United States' economy, population, natural resources, environment, and public and private institutions. These data are used by the Federal Government and others as a basis for actions that affect people's lives and well-being. It is essential that they be collected, processed, and published in a manner that guarantees and inspires confidence in their reliability. The statistical programs of the Federal Government are decentralized among more than 70 agencies or organizational units. It is therefore also essential that, to the extent permitted by law, there be sufficient government-wide uniformity in statistical methods and practices to ensure the maximum usefulness of the statistics produced.
The Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3504) gives the Director of OMB broad responsibility for improving the usefulness of information collected, maintained, and disseminated by the Federal Government and for reducing the reporting burden on the public. Among the Director's functions under the PRA are statistical policy and coordination, which includes the development and implementation of “Government-wide polices, principles, standards, and guidelines concerning (a) statistical collection procedures and methods; (b) statistical data classification; (c) statistical information presentation and dissemination; (d) timely release of statistical data; and (e) such statistical data sources as may be required for the administration of Federal programs” (44 U.S.C. 3504(e)(3)). The Administrator for the Office of Information and Regulatory Affairs in OMB has the responsibility to “develop programs and prescribe regulations to improve the compilation, analysis, publication, and dissemination of statistical information by executive agencies” (31 U.S.C. 1104(d)).
The proposal from the Federal Committee on Statistical Methodology's (FCSM) Subcommittee on Standards for Statistical Surveys provides revised guidance for designing, conducting, and disseminating statistical surveys and studies sponsored by Federal agencies. The standards and guidelines are intended to ensure that such surveys and studies are designed to produce reliable data as efficiently as possible and that methods are documented and results presented in a manner that makes the data as accessible and useful as possible.
These revised standards and guidelines would replace OMB Statistical Policy Directives Nos. 1 and 2, on Standards for Statistical Surveys, and Standards for Publishing Statistics, respectively. These standards and guidelines were last revised in 1974
As part of ongoing efforts to improve the quality of information collected by the Federal Government and to update statistical standards and guidance, OMB requested in 2003 that agencies who were members of the Interagency Council on Statistical Policy (ICSP) nominate representatives to a new subcommittee formed under the aegis of the Federal Committee on Statistical Methodology. This subcommittee was asked to review Statistical Policy Directives Nos. 1 and 2 and to make recommendations for updating or revising these standards to reflect current best practices in Federal statistical agencies.
The subcommittee reviewed the OMB directives, standards currently used by Federal statistical agencies, and standards and guidelines produced and disseminated by national statistical institutes in a number of other countries. The subcommittee also drew on interagency efforts by statistical agencies to develop a common framework for their activities in response to OMB's issuance of its Information Quality Guidelines (IQG) and the requirement that agencies issue their own IQGs (67 FR 8452-8460).
The revised and updated standards and guidelines proposed by the subcommittee reflect the organizational framework that the statistical agencies used for their Information Quality Guidelines. They are the product of a careful and deliberate process to create a set of standards and guidelines that will address all key aspects of planning, conducting, processing, and disseminating Federal statistical surveys. Because OMB standards and guidelines must cover a broad range of applications, agencies are encouraged to develop their own more specific standards for the statistical surveys and studies they conduct or sponsor. The subcommittee provided initial draft standards and guidelines for review by the FCSM and then by the ICSP in 2004. The subcommittee addressed the comments it received at each stage and provided its recommendations to OMB in 2005.
OMB seeks comments from all interested parties on all aspects of these proposed standards and guidelines. In particular, OMB seeks comment on the merit of the proposed standards and guidelines both in technical terms and as statistical policy. These standards and guidelines should reflect best practices for Federal agencies and their contractors in conducting statistical surveys as well as sound policy for the Federal statistical system. OMB seeks comment on whether some provisions of this proposal should be modified or deleted to meet these goals. Finally, OMB seeks comment from affected agencies on the expected benefits and burdens of the proposed standards and guidelines.
Office of Personnel Management (OPM).
Publication of notice of computer matching to comply with Public Law 100-503, the Computer Matching and Privacy Act of 1988.
OPM is re-publishing notice of its computer matching program with the Social Security Administration (SSA) to meet the reporting requirements of Pub. L. 100-503. The purpose of this match is to establish the conditions for disclosure of Social Security benefit information to OPM via direct computer link for the administration of programs by the Retirement Services Programs. OPM is legally required to offset specific benefits by a percentage of benefits payable under Title II of the Social Security Act. The matching will enable OPM to compute benefits at the correct rate and determine eligibility for benefits. This is a re-publication of the June 1, 2005,
The matching program will begin 30 days after the
Send comments to Marc Flaster, Chief, RIS Support Services Group, Office of Personnel Management, Room 1312, 1900 E. Street, NW., Washington, DC 20415.
OPM and SSA intend to conduct a computer matching program. The purpose of this agreement is to establish the conditions under which SSA agrees to the disclosure of benefit information to OPM. The SSA records will be used in a matching program with OPM's records on surviving spouses who may be eligible to receive a Supplementary Annuity, disability retirees, and child survivor annuitants, under the Federal Employees' Retirement System (FERS). The benefits payable to these recipients are offset if paid while also in receipt of SSA benefits.
The SSA components responsible for the disclosure are the Office of Income Security Programs. OPM, as the agency actually using the results of this matching activity in its programs, will publish the notice required by Title 5 United States Code (U.S.C.) 552a(e)(12) in the
OPM and SSA.
Chapter 84 of title 5, United States Code (U.S.C.) requires OPM to offset specific benefits by a percentage of benefits payable under Title II of the Social Security Act. The matching will enable OPM to compute benefits at the correct rate and determine eligibility for benefits.
Chapter 84, title 5, United States Code.
The two SSA records systems involved in the match are (1) Master Files of Social Security Number (SSN) Holders and SSN Applications, 60-0058 (SSA/OEEAS) and (2) the Master Beneficiary Record, 60-0090 (SSA-ORSIS), The OPM records consist of annuity data from its system of records entitled OPM/Central 1—Civil Service Retirement and Insurance Records, last published on October 8, 1999, at 64 FR 54930, and as amended at 65 FR 25775, May 3, 2000.
OPM will provide SSA an extract from the Annuity Master File and from pending claims snapshot records via the File Transfer Management System (FTMS). The extracted file will contain identifying information concerning the disability annuitant, child survivor, or surviving spouse who may be eligible for an annuity under FERS. Each record will be matched to SSA's records and requested information transmitted back to OPM.
Both SSA and OPM will safeguard information provided by the reciprocal agency as follows: Access to the records matched and to any records created by the match will be restricted to only those authorized employees and officials who need the records to perform their official duties in connection with the uses of the information authorized in the agreement. Records matched or created by this exchange will be stored in an area that is physically safe. Records used during this exchange will be processed under the immediate supervision and control of authorized personnel in a manner which will protect confidentiality of the records. Either OPM or SSA may make onsite inspection or make other provisions to ensure that adequate safeguards are being maintained by the other agency.
Records causing closeout or suspend actions will be annotated and returned to OPM for record keeping purposes. All records returned to OPM are considered “response” records and any not used in the update process must be purged by SSA immediately after all processing is completed.
On May 26, 2005, the Securities and Exchange Commission received an application from the New York Stock Exchange, Inc. (“NYSE”) for an exemption pursuant to Section 36
Section 12(a) of the Exchange Act provides in relevant part that it “shall be unlawful for any member, broker or dealer to effect any transaction in any security (other than an exempted security) on a national securities exchange unless a registration is effective as to such security for such exchange.” Section 12(b)
Contrarily, brokers or dealers who trade debt securities otherwise than on a national securities exchange may trade debt securities regardless of whether the issuer registered that class of debt under the Exchange Act. This is so because Exchange Act registration for securities traded other than on a national securities exchange is required only for certain equity securities. In particular, Section 12(g)
As the Commission has stated in the past, we believe that this disparate regulatory treatment may have negatively and unnecessarily affected the structure and development of the debt markets.
In addition, we have sought to increase the level of transparency in the public debt markets. We have long believed that price transparency in the U.S. capital markets is fundamental to promoting the fairness and efficiency of our markets.
The NYSE requests us to permit its members, brokers and dealers to trade certain classes of debt securities not registered under Section 12(b) of the Exchange Act on the NYSE's Automated Bond System.
Notwithstanding any competitive disadvantage to the NYSE that may have resulted from existing statutory distinctions or the potential benefits to investors of increased competition and enhanced transparency,
We view the potential loss of the comprehensive public information that an issuer must provide under Section 13(a) of the Exchange Act as perhaps the most significant factor weighing against relief.
Second, relief would be limited to issuers of debt securities with at least one class of equity securities registered under Section 12(b) and listed on the NYSE.
• The extremely limited information contained in the Form 8-A required for Exchange Act registration;
• The listing of the class of debt on the annual report's cover page;
• The disclosure of material modifications to instruments defining the rights of debt holders and material limitations or qualifications to the rights of debt holders required by Item 3.03 of Form 8-K; and
• Certain exhibits to an issuer's annual and quarterly reports defining the rights of debt holders as provided in Item 601(b)(4) of Regulation S-K, although most of the exhibits required by Item 601 are filed as exhibits to the Securities Act registration statement for the debt securities.
We preliminarily believe that the loss of this information is outweighed by the proposed relief's benefits to all interested parties, but will consider any public comment to the contrary. We also further note that this information is not required to be disclosed for debt traded in the OTC market. Further, the condition of the proposed exemptive order requiring the issuer of the debt security to have at least one class of common or preferred equity securities registered under Section 12(b) of the Exchange Act and listed on the NYSE is designed to assure that the issuer of debt securities has a significant and continuous listing (and oversight) relationship with the NYSE.
In addition to the Exchange Act disclosure obligations that would no longer apply, holders of debt securities traded in reliance on the proposed relief would not be protected by the antifraud proscriptions of Exchange Act Rules 14a-9 and 14c-6 or the shareholder communications provisions in Exchange Act Rules 14a-13, 14b-1, 14b-2 and 14c-7, which govern the transmission of proxy and information statements to beneficial owners of securities. Although solicitations of debt holders are infrequent,
We also acknowledge that, if we grant the requested relief, the NYSE's listing standards generally would no longer apply to any debt traded, but not listed, on the Automated Bond System. This would include all debt currently listed on the system that qualifies for trading under the requested exemption because the NYSE intends to formally delist all debt securities that qualify for the exemption, if we approve its application.
• The NYSE would engage a third party data vendor to provide the NYSE and its members with a customized on-line reference for corporate actions relevant to debt securities trading on the Automated Bond System.
• The NYSE has filed proposed rule changes (SR-NYSE-2004-69) on Exchange Act Form 19b-4 that would specify the exchange's initial and continued requirements for trading unregistered debt securities on the Automated Bond System. In particular, the amended rules would state that trading on the NYSE's Automated Bond System could only commence for debt securities with an outstanding market value or principal amount of at least $10 million and trading would be suspended if the outstanding market value or principal amount fell below $1 million. In addition, the proposed rule would allow the NYSE to suspend trading in a debt security if, among other things, the issuer's assets were substantially reduced, the issuer declared bankruptcy, or the NYSE determined that the issuer engaged in operations that are contrary to the public interest. The Commission is publishing for comment the NYSE's
In addition to the previously noted actions that the NYSE intends to take, and conditions to the exemption, the proposed exemptive relief would be available only for debt securities of an issuer whose transfer agent for the debt security is registered under Section 17A of the Exchange Act and for classes of debt securities whose indenture is qualified under the Trust Indenture Act. The first condition is designed to ensure that the transfer agents providing services to issuers of debt securities trading pursuant to the exemption would be subject to Section 17A of the Exchange Act and the rules thereunder and to the Commission's oversight. The second condition is designed to ensure that specific protections afforded to debt holders under the Trust Indenture Act are included in the debt securities' trust indenture.
We request and encourage any interested person to submit comments regarding the NYSE's application as well as the terms of our proposed exemptive order, including whether the request should be granted.
• Is the scope of the requested exemption appropriate?
• Would the requested exemption increase competition in the public debt markets?
• Would the requested exemption increase the transparency of the public debt markets?
• Would an issuer's Exchange Act reports for its equity securities and all other public information related to the issuer's class of debt adequately inform investors about the debt securities covered by the requested exemption?
• Should the requested exemption relieve issuers of debt securities and other applicable parties from the antifraud proscriptions of Exchange Act Rules 14a-9 and 14c-6 and/or from Exchange Act Rules 14a-13, 14b-1, 14b-2 and 14c-7, which govern the transmission to beneficial owners of proxy and consent materials and information statements, as proposed? Does Exchange Act Rule 10b-5 provide adequate antifraud protection against misstatements or material omissions in proxy or information statements and related materials? Is there any significant concern that banks, brokers and similar intermediaries would refuse or fail to transmit proxy materials to beneficial owners if Rules 14b-1 and 14b-2 no longer expressly applied?
• Should the requested exemption apply to a wholly-owned subsidiary of a company with at least one class of equity securities registered under Section 12(b) and listed on the NYSE, if the wholly-owned subsidiary independently does not satisfy the conditions for relief? Should the wholly-owned subsidiary's parent have to guarantee the subsidiary's debt securities for the requested exemption to apply?
• Are there any other differences between exchange-traded debt and debt traded in the OTC market that warrant a more restrictive regulatory treatment for exchange-traded debt?
• Are there any implications or concerns that may arise because NYSE members would be able to trade a debt security without the NYSE entering into a formal listing arrangement with the issuer of the debt security?
• Should we condition the proposed exemption on any additional NYSE listing standards?
• Are the conditions sufficiently designed so that investors are appropriately protected?
• Are the bases triggering suspension of trading (
• Is the use of a third party data vendor adequate to provide the NYSE and its members with sufficient information regarding corporate actions relevant to debt securities traded on the Automated Bond System? If not, what additional information or measures would be appropriate? Should any such information or measures be required as an additional condition of the exemption?
• Is the information to be provided by Xcitek, LLC to the NYSE and its members significant enough to justify its inclusion in the proposed exemptive order as a formal condition to relief?
Comments should be received on or before August 15, 2005. 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, 100 F Street, NE., Washington, DC 20549-9303.
For further information, you may contact Sean Harrison, Special Counsel, Office of Rulemaking, at (202) 551-3430, or Robert T. Plesnarski, Deputy Chief Counsel, Office of Chief Counsel, at 202-551-3832 in the Division of Corporation Finance or Timothy Fox, Attorney, or Michael Gaw, Senior Special Counsel, Office of Market Supervision, at (202) 551-5643 and (202) 551-5602, respectively, in the Division of Market Regulation, at the U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.
By the Commission.
A The New York Stock Exchange's application for an exemption pursuant to Section 36 of the Exchange Act
B Proposed order granting the New York Stock Exchange's application for an exemption pursuant to Section 36 of the Exchange Act
May 26, 2005.
Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street NW., Washington, DC 20549-0609.
Dear Mr. Katz: The New York Stock Exchange, Inc. (the “Exchange”) requests that the Securities and Exchange Commission (the “Commission”) provide relief pursuant to Section 36
The Exchange requests that the Commission provide exemptive relief with respect to Section 12(a), which provides in relevant part that it shall be unlawful for any “member, broker, or dealer to effect any transaction in any security (other than an exempted security) on a national securities exchange unless a registration is effective as to such security for such exchange.”
1. The issuer of the debt securities registered the offer and sale of that class of debt securities under the Securities Act of 1933, as amended (the “1933 Act”),
2. The issuer of the debt securities or the issuer's parent, if the issuer is a wholly-owned subsidiary, has at least one class of common or preferred equity securities registered under Section 12(b)
3. The transfer agent for the debt securities is registered under Section 17A
In connection with this exemptive request, the NYSE undertakes that it will take or has taken the following steps:
(a) The NYSE will provide definitions of “listed” debt securities and “traded” debt securities on the Automated Bond System
(b) The NYSE will distinguish between “listed” debt securities and “traded” debt securities on the ABS
(c) The NYSE will directly provide each member organization and each listed company notification via letter and/or email prior to the date that trading of the debt securities commences on the ABS
(d) The NYSE will issue a press release upon launch of this initiative stating that “listed” debt securities trade along side “traded” debt securities on the ABS
(e) The NYSE has contracted with Xcitek, LLC, (“Xcitek”), a third-party bond issue tracking service, for the provision of information prior to the date that this exemption is granted by the SEC.
Xcitek's tracking service provides the NYSE a customized on-line reference for corporate actions relevant to bonds. The tracking system provides information and data electronically to the NYSE, and provides:
• Notification of calls (redemptions) of traded bonds,
• Notification of tender offers for traded bonds,
• Notice of defaults in payment of interest on traded bonds,
• Notice of consent solicitations for traded bonds, and
• Notice of corporate actions for traded bonds (includes tender offers, issuer name changes, cusip number changes).
The tracking system does not provide notification of changes in trustees, obligors or transfer agents with respect to traded debt securities. The NYSE has entered into a one-year contract with Xcitek to provide this information electronically on a daily basis. Xcitek independently obtains, researches and organizes the information. The NYSE does not itself verify the information provided by Xcitek. To the extent that in the future, Xcitek is no longer willing or able to provide this information, the NYSE will contract with another third party for the provision of similar information.
The NYSE has separately filed SR-NYSE-2004-69 (December 3, 2004) and Amendment No. 1 to 2004-69 (March 15, 2005) on Exchange Act Form 19b-4 to propose NYSE Rules 1400 and 1401 that set forth the requirements for trading unlisted debt securities on the ABS
“The term Debt Securities includes only securities that, if they were to be listed on the New York Stock Exchange, would be listed under Sections 102.03 or 103.05 of the New York Stock Exchange's Listed Company Manual; provided, however, that such securities shall not include any security that is defined as an “equity security” under Section 3(a)(11) of the Exchange Act.
For the avoidance of doubt, note that the term “Debt Securities” does not include a security that, if listed on the New York Stock Exchange, would have been listed under Sections 703.19 or 703.21 of the New York Stock Exchange's Listed Company Manual. The references to Sections 102.03, 103.05, 703.19, and 703.21 of the NYSE's Listed Company Manual are to those sections as in effect on January 31, 2005.”
Proposed Rule 1401 specifies that only Debt Securities with an outstanding market value or principal amount of at least $10 million will be permitted to be traded by NYSE members and member organizations on the ABS
• The outstanding aggregate market value or principal amount of the Debt Securities has fallen to less than $1,000,000, or
• The Debt Securities may no longer be traded by NYSE members or member organizations on an unregistered basis pursuant to this exemptive request.
In order to ensure that debt securities have at least $10,000,000 in aggregate market value or principal amount at the time trading commences, the NYSE will review two existing corporate bond issue data bases that provide issue size information for the preponderance of corporate bonds.
To monitor the $1,000,000 suspension threshold, the NYSE will generally utilize the third party tracking system to monitor partial redemptions and tender offers. The most prevalent reason for outstanding principal amounts to fall below $1 million is when the price of the bond declines because of a default or potential bankruptcy. Prices of bonds in these situations will be monitored. We will also monitor the media for warnings of possible difficulties, in addition to ratings downgrades.
With respect to debt securities that are currently listed on the NYSE, the Exchange intends to apply to delist debt securities that satisfy the NYSE's requirements for traded debt and, instead, to trade those debt securities on the ABS
The NYSE will also inform listed companies of the NYSE's intention to identify currently outstanding or newly issued unlisted debt securities that are eligible to be traded by NYSE members and member organizations on the ABS
Debt securities that do not satisfy the proposed requirements of Exchange Rules 1400 and 1401 may continue to be listed on the NYSE. Debt securities that would not satisfy the proposed requirements for trading include convertible debt securities, debt securities that were listed under Sections 703.19 and 21 of the NYSE's Listed Company
In 1992, the Exchange wrote to the Commission requesting that it grant a similar exemption pursuant to Section 3(a)(12) of the Exchange Act.
In the Exchange's view, the Exchange Act registration requirement for corporate bonds to be traded on exchanges continues to have an anti-competitive impact on exchange bond markets. Under Section 12(g) of the Exchange Act,
The Exchange estimates that, in 1992, 90% of the par value of outstanding corporate debt (excluding private placements) was issued by reporting companies, but only 35% of that debt was registered under the Exchange Act. Currently, the Exchange estimates that 95% of the par value of outstanding corporate debt (excluding private placements) is issued by reporting companies, but only 8% of that debt is registered under the Exchange Act.
The consequences of the continued disparity in regulatory treatment of exchange and OTC debt securities are not limited to the competitive constraints on the Exchange. The Exchange believes that investors in corporate bonds are adversely impacted. In contrast to OTC bond trading, the Exchange's bond market has long disseminated both last sale prices as they occur on the Exchange exclusive of any mark-ups, mark-downs, or other charges, and bid and ask quotations. Continuous last sale price disclosure has existed since 1867, when the stock and bond ticker first went into operation. In 1919, the stock and bond tickers commenced separate operations, and in 1977, the bond high-speed quote line began the dissemination of last sale prices and quotations to market data providers, such as Bloomberg, Reuters, ILX and others. Today, this market data is available through some 400,000 market data displays providing subscribers—primarily securities firms and financial institutions—with direct instantaneous access to this information, throughout each trading day. Instantaneous means within one to two seconds of the actual trade. The Exchange is not aware of any comparable level of transparency—trade prices, quotations, and speed of availability for corporate bond prices—that exists currently elsewhere or will exist in the foreseeable future. The Exchange believes that all of this transparency is lost when a bond delists from, or is not traded on, the Exchange.
Examples of such delisting, include Southwestern Bell debt (Securities Exchange Act Release No. 34-42141 (Nov. 16, 1999), 64 FR 63833 (Nov. 22, 1999)) and Pacific Bell debt (Securities Exchange Act Release No. 34-42142 (Nov. 16, 1999) 64 FR 63833 (Nov. 22, 1999)). Other examples have involved the debt of Mobil Corporation, Outdoor Systems, ITT Corporation, Chrysler Auburn Hills, Texaco, Ralston-Purina, Time-Warner Entertainment, New England Telephone and New York Telephone.
Exchange bond trading is conducted through the ABS
Because information that is disclosed in connection with the registration of bonds under the Exchange Act is generally also available through other Commission filings and other means, the Exchange believes that permitting a broker or dealer to effect a transaction in a debt security without requiring Exchange Act registration of eligible debt securities will not result in any significant loss of bond or issuer information to investors. First, the Exchange is only requesting exemptive relief with respect to the trading by NYSE members and member organizations of debt securities issued by eligible listed companies and their wholly owned subsidiaries. In order for debt securities to be traded by NYSE members and member organizations, the listed company must have equity securities listed on the NYSE and, thus, already be subject to the requirements of Section 13 of the Exchange Act. Information about the listed company will remain available to investors even in the absence of an Exchange Act registration requirement for bonds of these issuers or their wholly owned subsidiaries.
Second, only debt securities that are registered under the 1933 Act would be eligible to be traded by NYSE members and
The 1933 Act registration statements themselves supply much of the relevant information needed by the bond markets and investors. Indeed, for the most part, the Exchange Act registration Form 8-A simply incorporates by reference the information found in the 1933 Act registration statement. The 1933 Act registration statement also contains a much more detailed and relevant description of the debt issue than is required by Rule 12b-3 of the Exchange Act.
Most of the other disclosure items required in connection with debt securities arise with respect to Forms 8-K, 10-Q and 10-K. These forms would continue to be filed by eligible listed companies and, where required by Sections 15(d) or 13 under the Exchange Act, by eligible wholly owned subsidiaries, regardless of whether the debt securities are registered under the Exchange Act. Item 2.04 of Form 8-K requires disclosure of any triggering event, such as a default, that accelerates or increases a direct financial obligation. Item 3.03 of Form 8-K requires disclosure of any material modification to the rights of security holders. Item 601(b)(4) of Regulation S-K (required to be included in 10-Ks and 10-Qs) discusses the definition of the rights of debt holders. Part II—Item 3(a) of Form 10-Q requires that, to the extent that the registrant has not previously disclosed such information on Form 8-K, the registrant must provide information regarding defaults in the payment of principal, interest, sinking fund, etc., “with respect to any indebtedness of the registrant or any of its significant subsidiaries exceeding 5 percent of the total assets of the registrant and its consolidated subsidiaries * * *” (emphasis added). Thus, the Form 10-Q requires disclosure of defaults in the payment of principal, interest, sinking fund, etc. for any bonds of the registrant, irrespective of whether such bonds are exchange-listed or not.
If, as described above, a wholly owned subsidiary ceases to provide Exchange Act reports itself, much of the information that had been provided by the wholly owned subsidiary will be provided instead by the wholly owned subsidiary's listed parent company in its own Exchange Act reports. The listed parent company, however, will not be required to list and describe the debt securities issued by the wholly owned subsidiary on the cover page of its own annual report on Form 10-K or to include as an exhibit to its own Forms 10-K or 10-Q the exhibits that would have been required to be filed by the wholly owned subsidiary pursuant to Item 601(b)(4) of Regulation S-K (relating to creation of a new class of securities or indebtedness or the modification of existing rights of security holders).
There are also a variety of databases providing bond information, including information regarding the listing and/or trading location of a bond. A few examples of these database services include: Standard & Poor's Bond Guide, the Mergent Bond Record, First Data Services' BORAS, Bloomberg and the Commission's EDGAR internet service, among other services. In addition, the Exchange's own bond issue directory is available on the Exchange's web site and carries the description of each listed bond issue, including bonds currently exempt from Exchange Act registration requirements, such as Tennessee Valley Authority and the International Bank for Reconstruction and Development (World Bank) bonds.
Most notably, of course, OTC bond trading functions without the information obtained as a result of Exchange Act registration. OTC bond trading relies on the information disclosed in the 1933 Act registration statement and the indentures filed under the Trust Indenture Act, including amendments to the indenture affecting the rights of bondholders.
Debt securities traded by NYSE members and member organizations on the ABS( will not be subject to the provisions of the NYSE's Listed Company Manual that relate to debt securities that are listed on the NYSE. While both traded and listed debt securities are subject to the same quantitative thresholds for initial trading/listing and continued trading/listing, listed debt securities are also subject to other requirements, including:
• Issuers of listed debt securities are required to provide immediate notice to the NYSE and the public of defaults or other unusual circumstances relating to the payment of interest;
• Issuers of listed debt securities are required to provide immediate notice to the NYSE and the public of any corporate action it (or third parties) may take towards the redemption, retirement or cancellation of the security;
• Issuers of listed debt securities are subject to requirements for transfer agents; and
• Issuers of listed debt securities are required to submit a listing application in order to list the securities.
As noted above, in the case of traded debt securities, the NYSE will obtain notice regarding defaults and redemptions through the third-party tracking system.
In summary, the disparate regulation between exchanges and the OTC markets has occurred without deliberate design. In 1934, Congress determined to regulate all listed issuers, and did not distinguish between listed equity and listed debt. Of course, at the time, the only place a company could be “listed” was on an exchange. In 1964, Congress properly determined to extend Exchange Act registration requirements to issuers having a substantial number of public shareholders and to require them to file periodic reports with the Commission, even if they were not listed on an exchange. The focus, however, was on those companies with public stockholders, so Section 12(g) of the Exchange Act was made applicable only to issuers of equity held by the requisite number of holders. As a result, publicly held debt that is not listed does not trigger the registration requirement.
We believe that this exemptive relief is consistent with the Commission's interest in greater bond market transparency. We also believe that removing unnecessary anti-competitive barriers to exchange trading of debt of reporting companies and their consolidated subsidiaries will go a long way towards providing bond investors with the transparency that we all agree is so important. We urge the Commission to use its exemptive power to remove the requirement that bonds of NYSE-listed equity issuers and their consolidated subsidiaries must be registered under the Exchange Act in order to be traded on an exchange. This dichotomy between exchange and OTC bond markets has existed too long and should be ended.
cc: Alan L. Beller, Annette L. Nazareth, David Shillman, Paula Dubberly, Robert Plesnarski, Sean Harrison, Michael Gaw, Timothy C. Fox.
This is a proposed order regarding the exemptive application of the New York Stock Exchange, Inc. (“NYSE”). Before issuing any final order, the Commission will consider
On May 26, 2005, the Commission received an application from the NYSE for an exemption pursuant to Section 36
Section 12(a) of the Exchange Act provides in relevant part that it shall be unlawful for any “member, broker or dealer to effect any transaction in any security (other than an exempted security) on a national securities exchange unless a registration is effective as to such security for such exchange.” Section 12(b)
Contrarily, brokers or dealers who trade debt securities otherwise than on a national securities exchange may trade debt securities regardless of whether the issuer registered that class of debt under the Exchange Act. This is so because Exchange Act registration for securities traded other than on a national securities exchange is required only for certain equity securities. In particular, Section 12(g)
As the Commission has stated in the past, we believe that this disparate regulatory treatment may have negatively and unnecessarily affected the structure and development of the debt markets.
In addition, we have sought to increase the level of transparency in the public debt markets. We have long believed that price transparency in the U.S. capital markets is fundamental to promoting the fairness and efficiency of our markets.
We view the exemptive relief requested by the NYSE as another step to improve the public debt markets. The Commission believes that granting the NYSE's application will serve the public interest by minimizing unnecessary regulatory disparity and promoting competition. Currently, unlike on a national securities exchange, broker dealers may trade debt securities in the OTC market regardless of whether the issuer registered that class of debt under the Exchange Act. The exemption is designed to minimize that disparate regulatory treatment and promote competition between the debt security markets. Moreover, the exemption may provide greater transparency than exists on the current OTC market.
At the same time, the conditions of the exemption serve to protect investors by alleviating any reduction in information available as a result of the exemption. Further, the conditions are designed to ensure that investors continue to have access to comprehensive public information about an issuer, including the issuer's detailed disclosure in a registration statement filed under the Securities Act of 1933 registration statement and accompanying trust indenture qualified under the Trust Indenture Act of 1939, and substantially all of the public information that would be available if the securities were registered under Section 12 of the Exchange Act.
In granting this relief, we expect that the NYSE will design and implement all rules related to the relief in a manner that protects investors and the public interest and does not unfairly discriminate between customers, issuers, brokers or dealers.
Accordingly,
For purposes of this order, a “debt security” is:
Any security that, if the class of securities were listed on the NYSE, would be listed under Sections 102.03 or 103.05 of the NYSE's Listed Company Manual. A debt security does not include any security that, if the class of securities were listed on the NYSE, would be listed under Sections 703.19 or 703.21 of the NYSE's Listed Company Manual. Provided, however, under no circumstances does a debt security include any security that is defined as an “equity security” under Section 3(a)(11) of the Exchange Act.
For purposes of this order, the following conditions must be satisfied:
(1) The issuer of the debt security has registered the offer and sale of such securities under the Securities Act of 1933;
(2) The issuer of the debt security, or the issuer's parent company if the issuer is a wholly-owned subsidiary,
(3) The transfer agent of the debt security is registered under Section 17A
(4) The trust indenture for the debt security is qualified under the Trust Indenture Act of 1939;
(5) The NYSE has complied with the undertakings to distinguish between debt securities registered under Section 12(b) of the Exchange Act and listed on the NYSE and debt securities trading under this order, as set forth in the NYSE's exemptive application.
By the Commission.
On April 27, 2005, the Intermarket Trading System Operating Committee (“ITSOC”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
The ITS Participants include the American Stock Exchange LLC (Amex”), the Boston Stock Exchange, Inc. (“BSE”); the Chicago Board Options Exchange, Inc. (“CBOE”); the Chicago Stock Exchange (“CHX”), Inc., the Cincinnati Stock Exchange, Inc. (“CSE”), the National Association of Securities Dealers, Inc. (“NASD”), the New York Stock Exchange, Inc. (“NYSE”), the Pacific Exchange, Inc. (“PCX”), and the Philadelphia Stock Exchange, Inc. (“Phlx”) (“Participants”).
The Commission finds that the proposed amendment is consistent with the Act, in particular, with Sections 11A(a)(1)(C)(ii) and (D),
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by August 2, 2005, to the Secretary, Securities and Exchange Commission, Washington, DC 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After August 2, 2005, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Western Massachusetts Electric Company (“WMECO”), a public utility subsidiary of Northeast Utilities, a registered public utility holding company, has filed with the Commission an application/declaration (“Application”) under sections 6(a) and 7 of the Act seeking authorization to maintain its common equity-to-total capitalization ratio below the Commission's threshold of 30% (the “30% Threshold”) when certain Rate Reduction Bonds (non-recourse securitization bonds) are included in the calculation of the ratio, through December 31, 2006 (the “Authorization Period”). The term “total capitalization” is defined to include, where applicable, common stock equity (comprised of common stock, additional paid in capital, retained earnings, accumulated
On March 7, 2000, the Commission issued an order in file 70-9541 (HCAR 35-27147, the “Prior Order”) granting WMECO's and its affiliates” previously-submitted application/declaration (“Original Application”) in which the Commission recognized the fact that WMECO (and other affiliated utilities) would fall below the 30% Threshold when the impact of Rate Reduction Bonds were included in its capitalization calculation and authorized this through December 31, 2004. The Commission noted that restructuring legislation in Massachusetts where WMECO operates allowed for the issuance of Rate Reduction Bonds to finance a portion of the utility's cost incurred in the sale of its regulatory assets and/or renegotiation of its obligations under purchase power contracts. Rate Reduction Bonds are securities issued in accordance with state law by a special purpose subsidiary of the utility to finance a portion of a utility's cost incurred in the sale of its regulatory assets and/or renegotiation of its obligations under purchase power contracts, and are non-recourse to WMECO or the NU system. As stated in the Original Application, because of the state-mandated divestiture of generating assets and issuance of Rate Reduction Bonds, NU's utilities, including WMECO, experienced a significant decrease in the amount of tangible assets that each owned and received a significant influx of cash causing each of NU's electric utilities to fall below the 30% Threshold when the impact of Rate Reduction Bonds and the effects of capital restructuring associated with the asset divestitures were considered. On May 17, 2001, WMECO Funding LLC, a subsidiary of WMECO, issued $155 million of Rate Reduction Bonds causing WMECO to fall below the 30% Threshold at that time.
The Original Application also stated that the ratings of the respective senior debt securities of WMECO would be unaffected or would be improved by the issuance of the Rate Reduction Bonds, as such bonds are not considered obligations of the utilities by the ratings agencies. The Original Application stated that the senior debt ratings of WMECO issued by Standard & Poor's (“S&P) were “BBB-” while the senior debt ratings of WMECO issued by Moody's Investor Service, Inc. (“Moody's”) were “Baa3”. Since that time, WMECO's credit ratings have improved. As of the date of this filing, WMECO's senior unsecured debt ratings from S&P and Moody's were BBB+ and Baa2, respectively.
By order issued December 28, 2004 the Commission authorized an extension for WMECO's utility affiliates, Connecticut Light and Power Company (“CL&P”) and Public Service of New Hampshire (“PSNH”), to remain below the 30% Threshold when the impact of the Rate Reduction Bonds is considered. The Commission reserved jurisdiction on the request by CL&P and PSNH to remain below the 30% Threshold through December 31, 2007 but granted authority beyond December 31, 2006. WMECO was not an applicant for that extension of authority and did not receive the extension granted to its utility affiliates. During the fourth quarter of 2004, WMECO was forecasted to be at 30.6% common equity ratio at year's end and to improve thereafter. WMECO's actual common equity ratio at December 31, 2004 was 30.7%, but at March 31, 2005 its actual common equity ratio was at 30.8%, slightly lower than had been forecast.
In preparing the budget and financing plans for WMECO for 2005, management noted that there is a risk that WMECO could fall below the 30% Threshold, when the impact of the Rate Reduction Bonds is considered, at some point during the Authorization Period and is forecast to remain only slightly above 30% through December 31, 2005. Management's forecast does anticipate that WMECO's common equity ratio will end the year at 31.7%. WMECO states, however, that there is inherent uncertainty in forecasts, and therefore is WMECO now seeking authorization through the Authorization Period for its common equity ratio to remain below the 30% Threshold when the impact of Rate Reduction Bonds is considered while remaining above 30% when the impact of Rate Reduction Bonds is excluded.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The BSE proposes to amend its rules regarding Account Identification Codes.
In its filing with the Commission, the BSE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The BSE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is seeking to add several Account Identification Codes to its existing rules regarding recordkeeping requirements. In Chapter II, “Dealings on the Exchange”, Section 15, “Record of Orders from Offices to Floor”, the BSE requires that each order be marked with one of several Account Identification Codes. The codes that are currently available are as follows:
Accompanying the existing Account Identification Codes are definitions, as follows:
The BSE proposes to add new Account Identification Codes and definitions to its rules in order to provide its members and customers with the ability to more accurately reflect their specific type of trading in the records of their orders. Similar identification codes and accompanying definitions are presently utilized by other exchanges, such as the NYSE, as required by NYSE Rule 123 “Record of Orders,” and the AMEX, as set forth in AMEX Rule 719, “Comparison of Exchange Transactions.” The account types and definitions that the BSE seeks to add to its existing rules are similar to those set forth by the NYSE and AMEX. The BSE proposes to add the following information to its account indicator requirements:
Additional definitions would also be added to reflect the new codes:
In proposing the above changes, the BSE seeks to be consistent with the similar requirements of other exchanges regarding account identification codes. Moreover, the addition of the various codes will provide Exchange members the ability to more appropriately identify the types of trading activity in which they engage, and therefore, to
The Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b) of the Act,
The BSE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The BSE has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-4(f)(6) thereunder.
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. In addition, Rule 19b-4(f)(6)(iii) requires a self-regulatory organization to provide the Commission with written notice of its intent to file the proposed rule change, along with a brief description and text of the proposed rule change, at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission.
The BSE has asked the Commission to waive the five-day pre-filing notice requirement and the 30-day operative delay to allow the Exchange to immediately apply the new Account Identification Codes. The Commission waives the five-day pre-filing notice requirement. In addition, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest because the proposed rule change will provide the Exchange's members and customers with the ability to more appropriately identify the types of trading activity in which they engage and more accurately reflect their specific type of trading in the records of their orders.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File No. SR-BSE-2005-23. 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 (
You should submit only information that you wish to make available publicly. All submissions should refer to File No. SR-BSE-2005-23 and should be submitted on or before August 4, 2005.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 15, 2005, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”) a proposed rule change pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
CBOE Rule 6.8 governs the execution of orders on RAES. CBOE Rule 6.8.06 sets forth alternatives available to the appropriate Floor Procedure Committee to implement the procedures for the assignment of RAES-eligible orders to CBOE market-makers logged onto RAES for execution. One alternative set forth in current Rule 6.8.06(c), the “100 Spoke RAES Wheel,” assigns RAES orders to logged-in market-makers based on the percentage of their in-person agency contracts traded in that class (excluding RAES contracts traded) compared to all of the market-maker in-person agency contracts traded (excluding RAES contracts) during the review period. The proposed rule change sets forth a new alternative, available only in index option classes, that offers a wheel with 1000 spokes and assignment procedures that are similar to the assignment procedures applicable to the 100 Spoke RAES Wheel.
Under the proposed 1000 Spoke RAES Wheel, the appropriate Floor Procedure Committee will determine on a class-by-class basis whether the assignment of RAES orders to logged-in market-makers is based on the percentage of a market-maker's contracts traded in that index option class (excluding RAES contracts traded) compared to all market-maker contracts traded (excluding RAES contracts) during the review period, or the percentage of the market-maker's in-person agency contracts traded in that class (excluding RAES contracts traded) compared to all market-maker in-person agency contracts traded (excluding RAES contracts) during the review period. As is the case with the 100 Spoke RAES Wheel, the procedure for the 1000 Spoke RAES Wheel would provide that on each revolution of the wheel, each participating market-maker who is logged in RAES at the time will be assigned a number of contracts that approximates the percentage of contracts on RAES that the market-maker traded in-person in that index option class during the review period, subject to the restrictions set forth in current Rule 6.8.06(c).
The effect of utilizing the 1000 Spoke RAES Wheel instead of the 100 Spoke RAES Wheel is that the number of contracts allocated to a market-maker will increase by a factor of 10 for every revolution of the RAES wheel. This procedure is designed to reduce the rounding effects that result under the 100 Spoke RAES Wheel (the RAES system configuration rounds contracts to the nearest whole number).
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of Section 6(b) of the Exchange Act
The Commission believes that the proposal to add the alternative of the 1000 Spoke RAES Wheel would provide the Exchange with a greater degree of flexibility in allocating index option contracts that are executed automatically through RAES. The Exchange initially developed the 100 Spoke RAES Wheel as a means to allocate contracts executed through RAES according to the liquidity each market-maker provided on the floor. The Exchange asserted in its proposal, however, that the Floor Procedure Committees for index options have not employed the 100 Spoke RAES Wheel alternative because of the effects of rounding of that allocation method in larger trading crowds. The Commission believes that, with the 1000 Spoke RAES Wheel alternative, market-makers in index options would have a greater incentive to compete effectively for orders, and this, in turn, should benefit investors and promote the public interest.
The Commission notes that implementation of the 1000 Spoke RAES Wheel, as with the 100 Spoke RAES Wheel, will have no effect on the prices offered to customers. Under CBOE Rule 6.8(d)(i), RAES automatically provides to each retail customer order an execution price, generally determined by the prevailing market quote at the time of the order's entry into the system. The 1000 Spoke RAES Wheel simply provides for another method of contract allocation in the case of index option contracts automatically executed through RAES.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend CHX Article XX, Rule 37(a)(3), which provides for execution of resting CHX limit orders based on activity in other markets, to permit, but not require, CHX specialists to guarantee execution of such limit orders when certain conditions occur in another market. The text of the proposed rule change, as amended, is available on CHX's Web site (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received regarding the proposal. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in Sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Article XX, Rule 37(a) of the CHX Rules, which provides for execution of resting CHX limit orders based on activity in other markets. The proposed rule change would permit, but not require, CHX specialists to guarantee execution of such limit orders when certain conditions occur in another market.
CHX Article XX, Rule 37(a)(3) sets out specific execution guarantees for eligible limit orders. For listed issues, the rule generally obligates a CHX specialist to guarantee execution of limit orders resting in the specialist's book, when the issue is being traded in the primary market at a price equal to or better than the limit price. For NASDAQ/NM securities, the rule permits, but does not require, a CHX specialist to guarantee execution of limit orders resting in the specialist's book, when another market center's quotation locks or crosses the limit price.
The guarantees set forth in CHX Article XX, Rule 37(a)(3), commonly referred to as “limit order protection” or “primary market protection,” were adopted voluntarily by the CHX over 15 years ago, as a means of attracting order flow. As noted by the Commission, the Exchange's initiatives relating to primary market protection were intended to ensure “* * * fair competition among exchange markets, which benefits public investors.”
As our industry has evolved, the Exchange's principal competitors for order flow, namely “third market” execution venues and alternative trading systems, do not provide such limit order protection guarantees. Accordingly, the Exchange believes that the guarantees no longer serve a clear competitive purpose. This is particularly the case in recent years, since CHX order-sending firms now have free access to comprehensive monthly order execution quality statistics, rendering “front-end” execution guarantees unnecessary as a means of attracting order flow. Firms are able to closely monitor execution quality and, thereby, ensure that they are meeting their best execution obligations, without relying on rule-based guarantees.
Compounding the lack of competitive value, the guarantees currently subject CHX specialists to exposure that was never intended when the rule-based guarantees were enacted. Since the securities industry conversion to decimal trading, the availability of liquidity at a best bid or offer (“BBO”) price point has declined, in many cases significantly. The CHX specialist, if he chooses to offset his positions in another market, often encounters great difficulty in accessing liquidity at the price that he is obligated to provide. This is particularly true in the case of manually-executed orders, given the associated time latency and the frequency with which quotes in other markets are changing.
Many CHX specialists, thus, believe that it is no longer appropriate to mandate that specialists guarantee execution of resting limit orders for listed issues, based on activity in other market centers. Indeed, they believe that in today's trading environment, the limit order execution guarantee exposes them to unwarranted liability, which they often have limited ability to mitigate.
In short, the CHX believes that the environment has changed significantly since it voluntarily enacted its rule-based execution guarantees, warranting the amendments proposed by the CHX. The CHX believes that the guarantees no longer foster significant competition between markets. Absent this benefit to investors, the Exchange believes that there is no legal basis for continuing to mandate such guarantees, which, as discussed above, are not required under the Act or other requirements promulgated by Congress or the Commission. Accordingly, the Exchange believes that it is appropriate to render such guarantees voluntary, on the terms outlined below.
Under the proposed revision to CHX Article XX, Rule 37(a)(3), the mandate that CHX specialists guarantee execution of resting limit orders for listed issues, based on triggering activity in other markets, would be deleted. Instead, the amended rule would permit CHX specialists to continue to provide such guarantees solely on an issue-by-issue basis, on non-discriminatory terms approved by the Exchange. The Exchange's existing functionality providing for automated execution of resting limit orders would remain available for CHX specialists who elect to continue to guarantee limit order protection.
Significantly, deletion of the rule-based mandate regarding limit order protection would not remove a CHX specialist's obligation to provide a timely best execution for each order, nor would it modify any other specialist obligations set forth in CHX Article XXX of the CHX Rules. The CHX Department of Market Regulation would continue its surveillance of order executions to ensure that CHX specialists meet all of their obligations to each order. Accordingly, many CHX specialists would continue to execute resting limit orders for listed issues voluntarily, when quotes or executions at the limit price occur in other markets, as a means of satisfying their best execution obligations and maintaining superior execution quality statistics.
The Exchange believes that the proposal, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange does not believe that the proposed rule change, as amended, will impose any burden on competition.
No written comments were either solicited or received.
Within 35 days of the date of publication of this notice in the
A. By order approve the proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File No. SR-CHX-2004-17. 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ISE proposes to amend its summary fine schedule for position limits. The text of the rule change is available on ISE's Web site (
In its filing with the Commission, ISE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ISE has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange's disciplinary rules authorize the imposition of fines for minor rule violations, which are set forth in ISE Rule 1614. With respect to option position limit violations, current ISE Rule 1614(d)(1) sets forth a graduated fine schedule that increases the dollar amount of the fine as the number of cumulative violations increase. The dollar amount of the fines ranges from $1.00 to $5.00 per contract for every contract exceeding the applicable position limit. Pursuant to ISE Rule 1614(a), a violation where the fine amount exceeds $5,000 is subject to disciplinary procedures under ISE Rules 1601
Based on its experience with processing position limit violations, the Exchange has found that most position limit violations are technical in nature. Accordingly, the Exchange believes that position limit violations should be processed under a summary fine schedule. For example, the Exchange often encounters situations that involve inadvertent calculation errors or computer systems problems which result in sizable position limit overages and a consecutive string of single trade date violations. Because the ISE member is unaware of the problem that caused the violation, the violation can be sizeable and occur over a string of days. In these situations, once the Exchange has identified the overage and notified the ISE member, the ISE member takes appropriate action to bring the position into compliance and, if the overage was based on a computer systems problem, implements appropriate procedures to prevent a recurrence.
Notwithstanding the unintentional nature of the violations, the Exchange's current rules provide for the imposition of fines for position limit violations in accordance with the fine schedule set forth in ISE Rule 1614(d)(1). For violations occurring in customer and member accounts, ISE Rule 1614(d)(1) deems one violation to equal a single date overage. Therefore, a single position limit overage that continues over a string of consecutive days would significantly increase the probability that the fine would exceed the $5,000 threshold set forth in ISE Rule 1614 as a result of reaching the next level in the graduated fine schedule. In these situations, the Exchange rules require the Exchange to remove the violation from the summary fine process of ISE Rule 1614(d) and place it under the disciplinary process set forth in ISE Rules 1601
The Exchange believes that removal of these types of violations from the summary fine process is incongruous with what it believes is the unintentional nature of the majority of the position limit violations that the Exchange comes across. To realign ISE Rule 1614(d) with the current landscape, the Exchange proposes to establish a fixed dollar fine amount per each offense, with the fine amount equaling $2,500 for violations occurring in the accounts of non-member customers and $5,000 for violations occurring in all other accounts. ISE believes that the cap on the fine amount would permit the Exchange to process the majority of position limit violations under the summary fine process without having to subject the violation to the disciplinary procedures provided in ISE Rules 1601
Pursuant to ISE Rule 1614, the Exchange has the authority to remove the position limit violation from the summary fine process of ISE Rule 1614(d)(1). Under ISE Rule 1614, “the Exchange is not required to impose a fine pursuant to this Rule with respect to the violation of any Rule included herein, and the Exchange may, whenever it determines that any violation is not minor in nature, proceed under Exchange Rules 1603 or 1604, rather than under this Rule.” Therefore, the Exchange may remove the violation from the summary fine process whenever it determines that the violation is not minor in nature.
The Exchange believes the proposed rule change, as amended, would enable the Exchange to deal more efficiently with the majority of position limit violations and to provide the Exchange with a more equitable method of dealing with inadvertent position limit violations. Therefore, ISE believes the proposed rule change, as amended, is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change, as amended, would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from its members or other interested parties.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. 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, Station Place, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-ISE-2005-21. 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 (
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.
Finally, the Commission finds that the proposal, as amended, is consistent with the public interest, the protection of investors, or otherwise in furtherance of the purposes of the Act, as required by Rule 19d-1(c)(2) under the Act
In approving this proposed rule change, the Commission in no way minimizes the importance of compliance with Exchange rules and all other rules subject to the imposition of fines under ISE Rule 1614. The Commission believes that the violation of any self-regulatory organization's rules, as well as Commission rules, is a serious matter. However, ISE Rule 1614 provides a reasonable means of addressing rule violations that do not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. The Commission expects that ISE will continue to conduct surveillance with due diligence and make a determination based on its findings, on a case-by-case basis, whether a fine of more or less than the recommended amount is appropriate under ISE Rule 1614 or whether a violation requires formal disciplinary action.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD is proposing to amend NASD Interpretative Material 9216 (“IM-9216”) (“Violations Appropriate for Disposition Under the Plan Pursuant to SEC Rule 19d-1(c)(2)”) to expand the list of violations eligible for disposition under NASD's Minor Rule Violation Plan (“MRVP”). The text of the rule change is available on NASD's Web site (
In its filing with the Commission, NASD included statements concerning the purpose of, and basis for, the proposed rule change, as amended, and discussed any comments it received on the proposal. The text of these statements may be examined at the places specified in Item IV below. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
In 1984, the Commission adopted amendments to Rule 19d-1(c) under the Act
NASD Rule 9216(b) authorizes NASD to impose a fine of $2,500 or less on any member or associated person of a member for a violation of any of the rules specified in NASD IM-9216. NASD staff reviews the number and seriousness of the violations, as well as the previous disciplinary history of the respondent, to determine if a matter is appropriate for disposition under the MRVP and to determine the amount of the fine. Once NASD has brought an MRVP action against an individual or member firm, NASD may, at its discretion, issue progressively higher fines for all subsequent minor rule violations within the next 24-month period or initiate more formal disciplinary proceedings.
NASD states that the purpose of the MRVP is to provide a meaningful sanction for the minor or technical violation of a rule when the initiation of a disciplinary proceeding through the formal complaint process would be more costly and time-consuming than would be warranted. NASD further states that the inclusion of a rule in NASD's MRVP does not mean that it is unimportant; rather, a minor or technical violation of the rule may be appropriate for disposition under the MRVP. Moreover, NASD states that it retains the discretion to bring full disciplinary proceedings if violations of such rule occur.
NASD proposes to amend its MRVP to make the following changes:
• Transaction Reporting and Audit Trail Requirements in Equity and Debt Securities.
NASD proposes to combine in one entry all of the rule violations eligible for disposition under the MRVP that relate to transaction reporting and audit trail requirements in equity and debt securities. As proposed, this entry would include violations of transaction reporting and audit trail requirements related to (1) the Nasdaq Market Center; (2) NASD's Trade Reporting and Comparison Service (“TRACS”);
To effectuate this, NASD proposes to eliminate the separate minor rule violation pertaining to NASD Rules 6130 and NASD 6170 (transaction reporting to the Automated Confirmation Transaction Service) and add those rules to this consolidated entry. NASD further proposes to add to the MRVP, and this consolidated entry, violations of NASD Rules 4632A, 5430, 6130A, and 6170A, which relate to TRACS requirements.
NASD also proposes to eliminate the reference in the MRVP to a violation of the Fixed Income Pricing System (“FIPS”), NASD Rule 6240, and replace it with a violation of NASD Rule 6230, the TRACE transaction reporting rule.
Under the current MRVP, NASD may issue minor rule violations only for procedural violations of the advertising rules, such as a failure to have advertisements and sales literature approved by a principal prior to use or a failure to meet specified time limits for filing advertisements. It is NASD's experience, however, that, based on the facts and circumstances, certain content-related violations of these rules can warrant more than a Letter of Caution, yet not rise to a level requiring or meriting full disciplinary action. Accordingly, the proposed rule change would allow NASD to address these minor or technical violations of content-related advertising rules, which might include, for example only, a technical violation of the provisions on the use and disclosure of members' names. NASD, therefore, proposes to include in its MRVP violations of the standards applicable to member communications with the public.
NASD would announce the effective date of the proposed rule change in a
NASD believes that the proposed rule change, as amended, is consistent with the provisions of Section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change, as amended, would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
NASD neither solicited nor received any comments.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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, Station Place, 100 F Street, NE, Washington, DC 20549-9303.
All submissions should refer to File No. SR-NASD-2004-025. 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 (
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to the File Number SR-NASD-2004-025 and should be submitted on or before August 4, 2005.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend NYSE Rule 418 to require member organizations approved by the Commission to use the alternative method of computing net capital contained in Appendix E to Rule 15c3-1 under the Act (“Appendix E”)
The text of the proposed rule change is available on the Exchange's Internet Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposal is to provide the Exchange with the authority to require member organizations approved by the Commission to use the alternative method of computing net capital contained in Appendix E (“CSE broker-dealers”) to file certain supplemental and alternative reports with the Exchange.
Rule 17a-5 under the Act
Under NYSE Rule 418, the Exchange may at any time require any member or member organization to be audited in accordance with the requirements of Rule 17a-5. The proposed amendment adds NYSE Rule 418.25, which would require member organizations that are CSE broker-dealers to file such supplemental and alternative reports as may be prescribed by the Exchange. A copy of the modified FOCUS report that CSE broker-dealers would have to file with the Exchange under proposed Rule 418.25 is available on the Exchange's Internet Web site (
The Exchange believes that the proposed amendment to NYSE Rule 418 is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposal will impose any inappropriate burden on competition.
Written comments were neither solicited nor received.
Pursuant to Section 19(b)(2) of the Act,
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549-9303.
All submissions should refer to File Number SR-NYSE-2005-19. 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is proposing to amend NYSE Rule 103.11 regarding the temporary reallocation of securities traded on the Exchange from one specialist organization to another specialist organization. The text of the proposed rule change is set forth below.
No member shall act as a specialist on the Floor in any security unless such member is registered as a specialist in such security with the Exchange and unless the Exchange has approved of his so acting as a specialist and has not withdrawn such approval.
As a condition of a member's registration as a specialist in one or more securities the Board of Directors may at any time require such member to register with the Exchange and act as an odd-lot dealer in such securities under Rule 101.
.10 Registration of specialists.—Four classes of specialists have been established, namely (1) regular specialists, (2) relief specialists, (3) associate specialists, and (4) temporary specialists. No member is permitted to act as regular specialist, relief specialist or associated specialist unless he is registered with the Exchange. No registration is required for temporary specialists, but no member is permitted to act as such unless authorized by a Floor Official.
Registration applies only to individual members, and not to member organizations. Consequently each Floor member of a specialist organization who expects to act as regular specialist, relief specialist or associate specialist at any time must register individually.
All members of the Exchange registered as regular specialists, or odd-lot dealers or odd-lot brokers will be required to pay a monthly registration fee of $37.50 and all members registered as relief or associate specialists will be required to pay a monthly registration fee of $1.67.
Notice of all new applications for registration as regular or relief specialist will be posted on the bulletin board. Approval will not be given on any such application until one week from the date of receipt thereof, except that, if circumstances require immediate action, temporary approval may be given. Members wishing to make representations with respect to any application should file their comments with the Market Surveillance and Evaluation Department during the period when notice is posted.
Notice of applications for registration as associate specialists will not be posted.
Before registration as a specialist, a member is required to pass a Specialist's Examination prescribed by the Exchange. Applications for this examination should be submitted to the Market Surveillance Department.
.11 Temporary Reallocation of [Stocks]
The member to whom a [stock]
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NYSE Rule 103.11 provides a procedure to temporarily reallocate securities listed on the NYSE from one specialist organization to another specialist organization on an expedited basis. Current NYSE Rule 103.11 requires the Chief Executive Officer and two Board of Executive (“BoE”) Floor Representatives to make the decision on such reallocation by majority agreement. The participation of the BoE Floor Representatives is on a seniority basis.
The Exchange represents that recent changes to short sale regulations promulgated by the Commission in Regulation SHO
The Exchange believes that the temporary reallocation of a security is most likely to be required for regulatory reasons and thus is more properly the responsibility of the Chief Regulatory Officer or his or her designee. Therefore, the Exchange proposes to amend NYSE Rule 103.11 in this regard.
Under the proposed rule, the Chief Regulatory Officer may designate someone to meet his or her responsibility. The Exchange expects that the designee will be an officer in the Exchange's Regulatory Group, with the Executive Vice President of the Market Surveillance Division being the primary designee.
The NYSE's BoE advises the Chief Executive Officer in his or her management of the operations of the Exchange. The BoE consists of representatives of listed companies, investors, members and member organizations. Included on the BoE are specialist and Floor broker members.
The Exchange believes that, for potential conflict of interest reasons, only non-specialist BoE Floor Representatives should be involved in a decision to reallocate a security from one specialist organization to another specialist organization. In addition, the Exchange proposes to remove as unnecessary the provision in NYSE Rule 103.11 that BoE Floor Representatives be chosen to act on a temporary reallocation in order of seniority.
Finally, the Exchange proposes to provide as an alternative that, if there are not two non-specialist BoE Floor Representatives available to participate in the reallocation decision, the most senior non-specialist Floor Governor or Governors, based on his or her current length of service as a Floor Governor, would be authorized to act in place of the non-specialist BoE Floor Representative. The Exchange believes that seniority of the Floor Governors is relevant, because the experience of the ten non-specialist Floor Governors may vary widely, and the more senior non-specialist Floor Governors would have experience similar to that of a BoE Floor Representative.
The basis under the Act for the proposed rule change is the requirement under Section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, 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, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-NYSE-2005-21. 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend its rules governing the Archipelago Exchange (“ArcaEx”), the equities trading facility of PCXE. With this filing, the Exchange proposes to amend its current market data rebate program by allowing Equity Trading Permit Holders (“ETP Holders”) to receive market data rebates on an estimated basis when certain conditions are met. The text of the proposed rule change is available on the PCX's Web site (
In its filing with the Commission, the PCX included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The PCX has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The PCX proposes to modify the current ArcaEx market data revenue sharing program applicable to limit orders posted in ArcaEx in Tape B securities
Currently, ETP Holders who earn Liquidity Provider Credits for such transactions receive payments from the Exchange on a quarterly basis, after the Exchange has received its share of market data revenue for Tape B from the Consolidated Tape Association (“CTA”) Plan. Under the proposed Estimated Rebate Program, eligible ETP Holders would be able to receive their share of Liquidity Provider Credits, based on an estimate, on a monthly basis before the quarterly revenues from the CTA Plan are paid to the Exchange. The amounts to be paid on an estimated basis to ETP Holders are calculated by using the tape credit percentages specified in the current rebate policy in effect for ArcaEx at the time
The process for determining and maintaining eligibility in the program is described below.
Any estimated Liquidity Provider Credits paid to an ETP Holder under the Estimated Rebate Program will be reconciled to the ETP Holder's actual Liquidity Provider Credit payment due when the Exchange receives the actual figures from the CTA Plan at quarter-end. Any necessary adjustments will be made with the next payment due to the ETP Holder (
At the end of the quarter, assume that payments received by the Exchange from the CTA plan for the quarter January through March amount to $1.00 per print. At this time, the firm would be due $1.5 million (
Assume that at the end of the quarter in June the payments received from the plan amount to $0.95 per print. At this point, it becomes clear that based on its activity levels, the firm should have received $475,000 per month (
The $400,000 payment in July is based on a $475,000 estimated payment (
The rationale for the proposed changes in this filing is to make the pricing for executions on the ArcaEx more competitive. The Exchange evaluated the economics of modifying its current market data rebate structure and determined that it was feasible and appropriate, given the costs involved and competitive concerns.
The PCX believes that the proposed rule change is consistent with the provisions of Section 6(b) of the Act,
The PCX does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change; or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. 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, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-PCX-2005-16. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On January 25, 2005, the Philadelphia Stock Exchange, Inc. (“Phlx” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Security Exchange Act of 1934 (“Act”)
The Phlx proposed to amend Phlx Rule 126, “Crossing” Orders, by adding new subsection (i) to permit certain customer-to-customer
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of Section 6 of the Act
The Phlx also has requested an exemption from Rule 11Ac1-1 of the Act (“Quote Rule”) with respect to these VWAP crosses.
In addition, the Phlx has requested an exemption from the tick test provisions of Rule 10a-1 of the Act (“Short Sale Rule”) for crosses with a short sale component executed pursuant to proposed Phlx Rule 126(i). 17 CFR 240.10a-1.
On the other hand, the Phlx is requesting relief from the Quote Rule because, with respect to the proposed Phlx Rule 126(i) VWAP crosses, the Phlx represents that bids and offers will not be made continuously and trades entered pursuant to Phlx Rule 126(i) would be entered for execution at a VWAP rather than at a specified bid or offer. In addition, the price of a VWAP cross would not be determined until such time as the VWAP is calculated. Furthermore, on account of the absence of a specified bid or offer, the Phlx represents that a VWAP cross is not a mechanism by which Phlx members would broadcast prices to other members and trade with one another at those prices. Thus, the Phlx represents that VWAP crosses do not implicate the reporting of bids and offers for the national market system concerns that Section 11A addresses.
Therefore, under proposed Phlx Rule 126(i), it would not be possible for the Phlx to collect firm bids and offers at specific prices with respect to VWAP crosses and transmit each information on a continuous basis to quotation vendors. Only after the VWAP cross is effected after the close of trading is the Phlx able to transmit pricing information to vendors. Accordingly, the Commission believes it is appropriate to grant the Phlx's request for exemption from the requirement of the Quote Rule for VWAP crosses executed pursuant to proposed Phlx Rule 126(i).
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.
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.
Proposals should include two distinct components: (1) The semester-long program from January to May/June 2007 and (2) the follow-on grants to program alumni. Please refer to the Project Objectives, Goals and Implementation (POGI) document for specific activities to be conducted beginning in late fall of 2006.
(1) Orientation upon arrival;
(2) Instruction in English language as needed;
(3) Training in the use of computers for Internet and word processing and as tools for teaching EFL or other coursework. Proposals should budget for a laptop computer for each participant;
(4) Intensive training in relevant subjects and teaching methodologies through a variety of courses within the host university's school of education or other departments (participants will select courses based on their individual goals and interests);
(5) Enrollment in a specially designed group seminar on teaching strategies for their home environments and educational leadership;
(6) Individual and group work periods for research and curriculum writing on EFL, civics, and other topics;
(7) Interaction with Americans at civic and volunteer organizations, school board meetings, parent-teacher conferences, or other community activities and through short home stays;
(8) Participation in a substantial six to eight week internship to engage participants actively with the American classroom environment.
a. Host universities should recruit school districts to host groups for internships based on brief proposals outlining the interest of the school districts, their understanding of the program goals, examples of their best practices, and a commitment to mentoring.
b. School districts should be within easy driving distance of the host university, and should be capable of introducing participants to more than one approach to teaching (for example, inquiry, active classroom, group projects, etc.).
c. Schools should designate an experienced mentor to oversee the day-to-day activities of each participant. Internship activities should include: observing a variety of teaching methods as well as computer-based lessons; working individually with a mentor teacher on curriculum development; and team teaching. Public, private, magnet or charter schools that have
(9) Cultural activities to encourage mutual understanding between participants and Americans, the mission of the Bureau of Educational and Cultural Affairs;
(10) Travel to Washington, DC during the second half of the program for a three- to four-day workshop including visits to the Department of State, cultural sites, and relevant educational organizations.
The Bureau of Educational and Cultural Affairs encourages partnership and collaboration with local school districts. Applicants should outline how host school districts will be selected and how teachers will collaborate with schools and local communities.
Applicant organizations should submit a narrative outlining a comprehensive strategy for the administration and program implementation of the International Educators Program. The narrative should include a design for the semester-long program, a process for selecting host U.S. universities through sub-grants, a plan for monitoring the teachers' academic and professional programs, and an approach to alumni programming through follow-on grants.
The comprehensive program strategy should reflect a vision for the initiative as a whole, interpreting the goals of the International Educators Program with creativity, as well as providing innovative ideas for the program. The strategy should include a description of how the various components of the program will be integrated to build upon and reinforce one another.
In a cooperative agreement, the Fulbright Teacher Exchange Office (ECA/A/S/X) will be substantially involved in program activities in addition to routine grant monitoring. ECA/A/S/X activities and responsibilities for this program are as follows:
• Formulation of program policy;
• Reviewing of draft texts for publicity and program guidelines prior to publication;
• Cooperation in the development of plans for specific university-based programs and enhancement activities for the teachers such as the Washington, DC workshop;
• Applicant country eligibility and nomination guidelines.
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, applicants must maintain written records to support all costs, which are claimed as their 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.
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 issuing one award, in an amount up to $1,650,000 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. The Bureau encourages applicants to provide maximum levels of cost sharing and funding in support of its programs.
Please read the complete
Please contact Patricia Mosley of the Fulbright Teacher Exchange Branch, ECA/A/S/X, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone: (202) 619-4556, fax (202) 401-1433, e-mail:
The Solicitation Package contains the Proposal Submission Instruction (PSI)
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 seven copies of the application should be sent per the instructions under IV.3e. “Submission Dates and Times section” below.
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
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.
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.
Please take into consideration the following information when preparing your proposal narrative:
A copy of the complete regulations governing the administration of Exchange Visitor (J) programs is available at
Please refer to Solicitation Package for further information.
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, how and when you intend to measure these outcomes (performance indicators), and how these outcomes relate to the above goals. 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
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 (
ECA/A/S/X and the Bureau's Office of Policy and Evaluation will work with the recipient of this cooperative agreement to develop appropriate evaluation goals and performance indicators.
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.
Please take the following information into consideration when preparing your budget:
The summary and detailed administrative and program budgets should be accompanied by a narrative which provides a brief rationale for each line item including a methodology for estimating an appropriate average maintenance allowance level and tuition costs for the participants. The total administrative costs funded by the Bureau must be reasonable and appropriate. Pending the availability of funds, the grant should begin on December 1, 2005 and should expire on September 30, 2008.
Please refer to the Solicitation Package for complete budget guidelines and formatting instructions.
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 seven 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/X-06-03, 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. In addition, an electronic copy of the narrative and budget should be sent to Rozina Damanwala (
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.
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:
Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations.”
Office of Management and Budget Circular A-21, “Cost Principles for Educational Institutions.”
OMB Circular A-87, “Cost Principles for State, Local and Indian Governments”.
OMB Circular No. A-110 (Revised), Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and other Nonprofit Organizations.
OMB Circular No. A-102, Uniform Administrative Requirements for Grants-in-Aid to State and Local Governments.
OMB Circular No. A-133, Audits of States, Local Government, and Non-profit Organizations.
Please reference the following Web sites for additional information:
You must provide ECA with a hard copy original plus one copy of the following reports:
Quarterly financial reports; semi-annual program reports; and 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.
For questions about this announcement, contact: Rozina Damanwala, Office of Global Educational Programs, ECA/A/S/X, Room 349, U.S. Department of State, SA-44, 301 4th Street, SW., Washington, DC 20547, telephone: 202-619-6589, fax 202-401-1433,
All correspondence with the Bureau concerning this RFGP should reference the title and number ECA/A/S/X-06-03. Please read the complete
Office of the United States Trade Representative.
Notice for the public on potential withdrawal of tariff concessions and increase in duties.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption; request for comments.
FMCSA proposes to grant a 2-year exemption from the knowledge and skills tests required to obtain a school bus endorsement to a commercial driver's license (CDL) under 49 CFR 383.123. The exemption would be limited to school bus drivers from 11 States who passed equivalent tests before September 30, 2002.
Submit comments on or before August 15, 2005.
You may submit comments identified by DOT DMS Docket Number FMCSA (insert docket number) by any of the following methods:
• Web site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
Mr. Michael Lamm, Chief, State Programs Division (MC-ESS), (202) 366-6830, FMCSA, 400 Seventh Street, SW., Washington, DC 20590.
On December 9, 1999, the President signed the Motor Carrier Safety Improvement Act (MCSIA) (Pub. L. 106-159, Stat. 1748). The legislation included 15 new provisions aimed at improving the overall effectiveness of the Commercial Driver's License (CDL) program.
Section 214 of MCSIA directed the agency to establish a special CDL endorsement for drivers of school buses. The endorsement must, at a minimum include:
1. A driving skills test in a school bus; and
2. A knowledge test that addresses proper safety procedures for
(A) loading and unloading children
(B) using emergency exits
(C) traversing highway rail grade crossings.
The final rule implementing all 15 CDL provisions was published on July 31, 2002 [67 FR 49742] and became effective on September 30, 2002. Sec. 214 was addressed in 49 CFR 383.123.
Under 49 CFR 384.301(b), States are allowed up to 3 years after the effective date to implement the new CDL requirements. By September 30, 2005, each State must pass enabling legislation and actively enforce the new provisions, including the school bus (“S”) endorsement. States that fail to meet the deadline will be out of substantial compliance with 49 U.S.C. 31311(a) and thus subject to the penalties specified in 49 CFR part 384, subpart D.
In 2002, eleven States already had requirements for a CDL school bus endorsement (Alabama, Delaware,
1. Loading and unloading children, including the safe operation of stop signals, external mirror systems, flashing lights and other warning devices and passenger safety devices required for school buses by State or Federal law or regulation.
2. Emergency exits and procedures for safely evacuating passengers in an emergency.
3. State and Federal laws and regulations related to safely traversing highway rail grade crossings.
FMCSA determined that these programs met or exceeded the Federal requirement. Drivers who passed the school bus endorsement tests required by any of these States on or after September 30, 2002, the effective date of the Federal rule could be issued an “S” endorsement.
These States, however, may have assumed that drivers who passed the State knowledge and skills tests for the school bus endorsement before September 30, 2002, would in fact have the knowledge test requirement waived as well. That cannot be done under the Federal rule. The Federal rule looks forward in time, not backward. Every driver renewing a CDL with a school bus endorsement on or after September 30, 2002, must pass the tests required by 49 CFR 383.123 or a compatible State regulation. Because the Federal rule is not retroactive, the agency's recognition that certain State regulations are equivalent does not retroactively validate the results of earlier tests conducted under those regulations. Therefore, drivers who passed compatible State tests before September 30, 2002 must pass the tests required by 49 CFR 383.123.
Once these States understood the requirements of the FMCSA rule, it became clear that thousands of school bus drivers who had passed the State tests before September 30, 2002, but had not been tested when they renewed their CDL's with a school bus endorsement after that date, would have to be re-tested before September 30, 2005, if the States were to remain in substantial compliance under 49 CFR Part 384.
On behalf of the affected school bus drivers, the States identified in this notice have requested a 2-year exemption from § 383.123 due to the large number of drivers who would have to be re-tested before September 30, 2005. The estimated number of drivers that would have to be re-tested are as follows:
Since the tests in use in these States have been determined to meet or exceed the requirements of 49 CFR 383.123 as of the effective date of the rule (September 30, 2002), FMCSA believes the terms and conditions of the exemption would achieve a level of safety equivalent to that provided by complying with the current Federal requirement on September 30, 2005. The State petitions for the exemption are in the public docket.
This exemption would grant temporary relief from the testing requirements under 49 CFR 383.123 until September 30, 2007 to the school bus drivers of Alabama, Delaware, Illinois, Minnesota, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin who were issued a school bus endorsement prior to September 30, 2002. All of these school bus drivers must be tested in accordance with the requirements in 49 CFR 383.123 by September 30, 2007.
In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA is requesting public comment from all interested persons on the agency's intent to grant school bus drivers in the States of Alabama, Delaware, Illinois, Minnesota, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin who were issued a school bus endorsement prior to September 30, 2002 an exemption from the testing requirements of 49 CFR 383.123 until September 30, 2007. All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the address section of this notice. Comments received after the comment closing date will be filed in the public docket and considered to the extent practicable, but FMCSA may grant or deny the exemption at any time after the close of the comment period. In addition to late comments, FMCSA also will continue to file in the public docket any relevant information that becomes available after the comment closing date. Interested persons should continue to examine the public docket for new material.
49 U.S.C. 31136 and 31315; 49 CFR 1.73.
Office of Pipeline Safety (OPS), Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT).
Notice; petition for waiver.
BOC Gases (BOC) petitioned the PHMSA's Office of Pipeline Safety (OPS) for a waiver from the pipeline safety standards at 49 CFR 195.306(c)(5) to allow the use of inert gas or carbon dioxide as the test medium for pressure testing an existing carbon dioxide pipeline.
Persons interested in submitting written comments on the waiver request described in this Notice must do so by August 15, 2005. Late filed comments will be considered so far as practicable.
You may submit written comments by mailing or delivering an original and two copies to the Dockets Facility, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The Dockets Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except on Federal holidays when the facility is closed. Alternatively, you may submit written comments to the docket electronically at the following Web address:
All written comments should identify the docket and notice numbers stated in the heading of this notice. Anyone who wants confirmation of mailed comments must include a self-addressed stamped postcard. To file written comments electronically, after logging on to
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, business, labor union, etc.).
James Reynolds by phone at 202-366-2786, by fax at 202-366-4566, by mail at DOT, PHMSA Office of Pipeline Safety, 400 7th Street, SW., Washington, DC 20590, or by e-mail at
The gas pipeline safety regulation at 49 CFR 195.306(c)(5) allows an operator of a carbon dioxide pipeline to use inert gas or carbon dioxide as the test medium if the pipe involved is new pipe having a longitudinal joint factor of 1.00.
BOC Gases (BOC) is requesting the waiver to use carbon dioxide as the test medium in its carbon dioxide pipeline system. The BOC Carbon Dioxide Pipeline System is approximately 14 miles northwest of Green River, Wyoming and located in Sweetwater County; this is a remote, uninhabited area that does not lie within any city or other populated limits. The pipeline is 7 miles in length, constructed of 3.5-inch diameter, API 5L, Grade B Seamless pipe, and has a wall thickness of 0.300-inches.
BOC calculated the pipe's internal design pressure to be 4,320 pounds per square inch gauge (psig) using the formula in § 195.106 and pressure tested the pipe after construction; the minimum pressure was 3,575 psig and the pipe was tested for 2 hours. The pipeline is effectively coated and has had a sacrificial anode cathodic protection system since its construction.
In justification for this waiver request, BOC is proposing the following testing procedure:
• BOC would use liquid carbon dioxide to pressure test the entire 7 mile pipeline;
• The pipeline test pressure would be maintained at a minimum pressure of 3,575 psig or 60% of the pipeline's specified minimum yield strength (SMYS) for at least 4 hours;
• The pipeline would be tested for an additional 4 hours at a minimum pressure of 3,146 psig or 48% of SMYS;
• Throughout the duration of the test, BOC personnel would be stationed along the pipeline to observe any conditions that might indicate leakage;
• BOC personnel would be in constant communication with its personnel who will supervise and conduct the pressure test; and
• During the pressure test, whenever the test pressure exceeds 50% SMYS, BOC's building facilities would be unoccupied and its personnel will be stationed along the pipeline where it parallels the state highway.
BOC believes that granting a waiver for this pipeline does not pose a risk to the public or the environment because this pipeline is in a remote location, in excellent condition, and will be tested and operated at a low percentage of SMYS.
OPS will consider any comments received in response to this Notice, and make a final determination to grant or deny the waiver as proposed, or with modifications. If the waiver is granted, and OPS subsequently determines that the effect of the waiver is no longer consistent with pipeline safety, OPS may revoke the waiver at its sole discretion.
This Notice is OPS's only request for public comment before making its final decision in this matter.
49 U.S.C. 60118(c) and 49 CFR 1.53.
Pipeline and Hazardous Materials Safety Administration (PHMSA); U.S. Department of Transportation (DOT).
Notice of intent to consider waiver request.
Southern LNG (SLNG), requested a waiver of compliance from the regulatory requirements at 49 CFR 193.2301, which requires each LNG facility constructed after March 31, 2000 to comply with 49 CFR 193 and ANSI/NFPA 59A.
Persons interested in submitting written comments on the waiver request described in this Notice must do so by August 15, 2005. Late filed comments will be considered as far as practicable.
You may submit written comments by mailing or delivering an original and two copies to the Dockets Facility, U.S. Department of Transportation (DOT), Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. The Dockets Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except on Federal holidays when the facility is closed. Alternatively, you may submit written comments to the docket electronically at the following Web address:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete privacy Act Statement in the
James Reynolds by telephone at 202-366-2786, by fax at 202-366-4566, by mail at DOT, Pipeline and Hazardous Materials Safety Administration (PHMSA) Office of Pipeline Safety (OPS), 400 7th Street, SW., Washington, DC 20590, or by e-mail at
Southern LNG (SLNG), an El Paso Company, requests a waiver of compliance from the regulatory requirements at 49 CFR 193.2301. This regulation requires each LNG facility constructed after March 31, 2000 to comply with 49 CFR 193 and ANSI/NFPA 59A.
NFPA 59A requires that welded containers designed for not more than 15 psig comply with the Eighth Edition, 1990, of API 620, Design and Construction of Large, Welded, Low-Pressure Storage Tanks (Appendix Q). The Eighth Edition of API 620 requires inspection according to Appendix Q which calls for the full radiographic examination of all vertical and horizontal butt welds associated with the container.
SLNG is proposing to use the current Tenth Edition, Addendum 1, of API 620. The Tenth Edition, Addendum 1, of API 620, allows ultrasonic examination—in lieu of radiography—as an acceptable alternative non-destructive testing method. SLNG proposes to use ultrasonic examination on its project, which consist of full semi-automated and manual ultrasonic examination using shear wave probes. The examination will also consist of a volumetric ultrasonic examination using a combination of creep wave probes and focused angled longitudinal waive probes.
SLNG stated that the NFPA 59A Technical Committee recently approved and recommended the acceptance of the Tenth Edition, 2002 of API 620. PHMSA has not adopted the Tenth Edition, 2002 of API 620, and has not incorporated it by reference in Appendix A to Part 193; therefore, a waiver is required.
SLNG asserts that ultrasonic examination is more sensitive than radiographic examination to detect the type of flaws most susceptible in the design and construction of large welded low pressure storage tanks. SLNG further asserts that any potentially detrimental weld defect in the container walls will be identifiable using the ultrasonic examination method.
SLNG concludes that the alternative method of inspection allowed by the current Tenth Edition, Addendum 1, of API 620, will not reduce the integrity of the installation, and will in fact enhance the quality of the inspection by using modern inspection technology while improving personnel safety and information sharing.
For the reasons stated, SLNG is requesting a waiver from 49 CFR 193.2301 and is asking that it be allowed to use the ultrasonic examination method according to the Tenth Edition, Addendum 1, of API 620, in lieu of the radiographic examination method as specified by the Eighth Edition of API 620.
SLNG's Elba Island Expansion Project consists of one tank with a volume of approximately one million barrels. The tank is located at the Southern LNG Receiving Terminal at Elba Island in Savanna, Georgia. The outer wall of the container is constructed of Carbon Steel and the inner wall of 9% Nickel Steel. This project received approval from the Federal Energy Regulatory Commission on April 10, 2003.
OPS will consider SLNG's waiver request and whether SLNG's proposal will yield an equivalent or greater degree of safety than that currently provided by the regulations. This Notice is OPS' only request for public comment before making a decision. After considering any comments received, OPS may grant SLNG's waiver request as proposed or with modifications and conditions or deny SLNG's request. If the waiver is granted and OPS subsequently determines that the effect of the waiver is inconsistent with pipeline safety, OPS may revoke the waiver at its sole discretion.
On June 24, 2005, Greenville County Economic Development Corporation (GCEDC) filed with the Board a petition under 49 U.S.C. 10502 for exemption from the provisions of 49 U.S.C. 10903 to abandon approximately 11.8 miles of line, extending from milepost 0.0 in Greenville, SC, to milepost 11.8 in Travelers Rest, SC (Northern Segment) and to discontinue service over 3.29 miles of line, extending from milepost AJK 585.34 in East Greenville, SC, to milepost AJK 588.63 in Greenville (Southern Segment). No stations are located on either segment. The Northern Segment traverses United States Postal Service Zip Codes 29690, 29609, 29613, 29617, 29611, and 29601. The Southern Segment traverses United States Postal Service Zip Code 29607.
The line does not contain federally granted rights-of-way. Any documentation in GFEC's possession will be made available promptly to those requesting it.
GCEDC proposes to abandon or discontinue service over the Northern and Southern Segments, which constitute its entire operations. When issuing authority for railroad lines that constitute the carrier's entire system, the Board does not impose labor protection, except in specifically enumerated circumstances.
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by October 12, 2005.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) will be due no later than 10 days after service of a decision granting the petition for exemption. Each OFA must be accompanied by a $1,200 filing fee.
All interested persons should be aware that, following abandonment of rail service and salvage of the line, the line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than August 3, 2005. Each trail use request must be accompanied by a $200 filing fee.
All filings in response to this notice must refer to STB Docket No. AB-490 (Sub-No. 1X) and must be sent to: (1) Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001; and (2) William Mullins, Baker & Miller PLLC, 2401 Pennsylvania Ave., NW., #300, Washington, DC 20037.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Services at (202) 565-1592 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Section of Environmental Analysis (SEA) at (202) 565-1539. [Assistance for the hearing impaired is available though the Federal Information Relay Service (FIRS) at 1-800-877-8339.]
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary), prepared by SEA, will be served upon all parties of record and upon any agencies or other persons who commented during its preparation. Other interested persons may contact SEA to obtain a copy of the EA (or EIS). EAs in these abandonment proceedings
Board decisions and notices are available on our Web site at
By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3521) this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0024” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501—3521) this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0131” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030 or FAX (202) 273-5981. Please refer to “OMB Control No. 2900-0029.”
Send comments and recommendations concerning any aspect of the information collection to VA's Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0029” in any correspondence.
a. Offer to Purchase and Contract of Sale, VA Form 26-6705.
b. Credit Statement of Prospective Purchaser, VA Form 26-6705b.
c. Addendum to VA Form 26-6705 Offer to Purchase and Contract of Sale, VA Form 26-6705d.
a. VA Form 26-6705 is completed by private sector sales broker to submit an offer to purchase VA acquired property on behalf of a prospective buyer. VA Form 26-6705 becomes a contract of sale if VA accepts the offer to purchase. It serves as a receipt for the prospective buyer for his/her earnest money deposit, describes the terms of sale, and eliminates the need for separate transmittal of a purchase offer.
b. VA Form 26-6705b is used as a credit application to determine the prospective buyer creditworthiness in instances when the prospective buyer seeks VA vendee financing. In such sales, the offer to purchase will not be accepted until the buyer's income and credit history have been verified and a loan analysis has been completed.
c. VA Form 26-6705d is an addendum to VA Form 26-6705 for use in the state of Virginia. The forms requires that the buyer be informed of the State's law at or prior to closing the transaction.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
a. VA Form 26-6705—20,000 hours.
b. VA Form 26-6705b—15,000 hours.
c. VA Form 26-6705d—250 hours.
a. VA Form 26-6705—20 minutes.
b. VA Form 26-6705b—20 minutes.
c. VA Form 26-6705d—5 minutes.
a. VA Form 26-6705—60,000.
b. VA Form 26-6705b—45,000.
c. VA Form 26-6705d—3,000.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521) this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0324” in any correspondence.
a. Supplemental Physical Examination Report, VA Form 29-8146.
b. Attending Physician's Statement, VA Form 29-8158.
c. Supplemental Physical Examination Report (Diabetes—Physician's Report), VA Form 29-8160.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
a. VA Form 29-8146—750 hours.
b. VA Form 29-8158—165 hours.
c. VA Form 29-8160—165 hours.
a. VA Form 29-8146—45 minutes.
b. VA Form 29-8158—45 minutes.
c. VA Form 29-8160—45 minutes.
a. VA Form 29-8146—220.
b. VA Form 29-8158—1,000.
c. VA Form 29-8160—220.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521) this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503 (202) 395-7316. Please refer to “OMB Control No. 2900-0068” in any correspondence.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521) this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, has submitted the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before August 15, 2005.
Denise McLamb, Records Management Service (005E3), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-8030, FAX (202) 273-5981 or e-mail:
Send comments and recommendations concerning any aspect of the information collection to VA's OMB Desk Officer, OMB Human
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This proposed rule would set forth an update to the 60-day national episode rates and the national per-visit amounts under the Medicare prospective payment system for home health agencies. We are also proposing to implement the revised area labor market Metropolitan Statistical Area designations for calendar year 2006.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on September 6, 2005.
In commenting, please refer to file code CMS-1301-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
You may submit comments in one of three ways (no duplicates, please):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
Hubert H. Humphrey Building, Room 445-G, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard, Baltimore, MD 21244-1850.
(Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Randy Throndset, (410) 786-0131. Sharon Ventura, (410) 786-1985.
[If you choose to comment on issues in this section, please include the caption “BACKGROUND” at the beginning of your comments.]
The Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33), enacted on August 5, 1997, significantly changed the way Medicare pays for Medicare home health services. Until the implementation of a home health prospective payment system (HH PPS) on October 1, 2000, home health agencies (HHAs) received payment under a cost-based reimbursement system. Section 4603 of the BBA governed the development of the HH PPS.
Section 4603(a) of the BBA provides the authority for the development of a PPS for all Medicare-covered home health services provided under a plan of care that were paid on a reasonable cost basis by adding section 1895, entitled “Prospective Payment For Home Health Services,” to the Social Security Act (the Act).
Section 1895(b)(1) of the Act requires the Secretary to establish a PPS for all costs of home health services paid under Medicare.
Section 1895(b)(3)(A) of the Act requires that (1) the computation of a standard prospective payment amount include all costs of home health services covered and paid for on a reasonable cost basis and be initially based on the most recent audited cost report data available to the Secretary, and (2) the prospective payment amounts be standardized to eliminate the effects of case-mix and wage levels among HHAs.
Section 1895(b)(3)(B) of the Act addresses the annual update to the standard prospective payment amounts by the home health applicable increase percentage as specified in the statute.
Section 1895(b)(4) of the Act governs the payment computation. Sections 1895(b)(4)(A)(i) and (b)(4)(A)(ii) of the Act require the standard prospective payment amount to be adjusted for case-mix and geographic differences in wage levels. Section 1895(b)(4)(B) of the Act requires the establishment of an appropriate case-mix adjustment factor that explains a significant amount of the variation in cost among different units of services. Similarly, section 1895(b)(4)(C) of the Act requires the establishment of wage adjustment factors that reflect the relative level of wages and wage-related costs applicable to the furnishing of home health services in a geographic area compared to the national average applicable level. These wage-adjustment factors may be the factors used by the Secretary for the different area wage levels for purposes of section 1886(d)(3)(E) of the Act.
Section 1895(b)(5) of the Act gives the Secretary the option to grant additions or adjustments to the payment amount otherwise made in the case of outliers because of unusual variations in the type or amount of medically necessary care. Total outlier payments in a given fiscal year cannot exceed 5 percent of total payments projected or estimated.
On December 8, 2003, the Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) of 2003 (Pub. L. 108-173). This legislation affected how we make updates to HH payment rates.
Section 701 of the MMA changed the yearly update cycle of the HH PPS rates from that of a fiscal year to a calendar year update cycle for 2004 and any subsequent year. Generally, section 701(a) of the MMA changed the references in the statute to refer to the calendar year for 2004 and any subsequent year. The changes resulted in updates to the HH PPS rates described as “fiscal year” updates for 2002 and 2003 and as “calendar year” updates for 2004 and any subsequent year (section 1895(b)(3)(B)(i) of the Act. Beginning on January 1, 2005, HH PPS will now be updated on a calendar year update cycle.
In addition to changing the update cycle for HH PPS rates, section 701 of the MMA made adjustments to the home health applicable increase percentage for 2004, 2005, and 2006. Specifically, section 701(a)(2)(D) of the MMA left unchanged the home health market basket update for the last calendar year quarter of 2003 and the first calendar year quarter of 2004 (section 1895(b)(3)(B)(ii)(II) of the Act). Furthermore, section 701(b)(4) of the MMA set the home health applicable percentage increase for the last 3 quarters of 2004 as the home health market basket (3.1 percent) minus 0.8 percentage point (section 1895(b)(3)(B)(ii)(III) of the Act). We implemented this provision through Pub. 100-20, One Time Notification, Transmittal 59, issued February 20, 2004. Section 701(b)(4) of the MMA also provided that updates for CY 2005 and CY 2006 will equal the applicable home health market basket percentage increase minus 0.8 percentage point. Lastly, section 701(b)(3) of the MMA revised the statute to provide that HH PPS rates for CY 2007 and any subsequent year will be updated by that year's home health market basket percentage increase (section 1895(b)(3)(B)(ii)(IV) of the Act).
On July 3, 2000, we published a final rule (65 FR 41128) in the
On October 22, 2004, we published a final rule (69 FR 62124), which set forth an update to the 60-day national episode rates and the national per-visit amounts under the Medicare prospective payment system for home health agencies. As part of that final rule, we rebased and revised the home health market basket to ensure it continues to adequately reflect the price changes of efficiently providing home health services. In addition, we revised the fixed dollar loss ratio, which is used in the calculation of outlier payments. That final rule was also the first update of the HH PPS rates on a calendar year update cycle. HH PPS was moved to a calendar year update cycle as a result the MMA.
Generally, Medicare makes payment under the HH PPS on the basis of a national standardized 60-day episode payment, adjusted for case mix and wage index. For episodes with four or fewer visits, Medicare pays on the basis of a national per-visit amount by discipline, referred to as a low utilization payment adjustment (LUPA). Medicare also adjusts the 60-day episode payment for certain intervening events that give rise to a partial episode payment adjustment (PEP adjustment) or a significant change in condition adjustment (SCIC). For certain cases that exceed a specific cost threshold, an outlier adjustment may also be available. For a complete and full description of the HH PPS as required by the BBA and as amended by OCESAA and BBRA, see the July 3, 2000 HH PPS final rule (65 FR 41128).
[If you choose to comment on issues in this section, please include the caption “PROVISIONS OF THE PROPOSED REGULATIONS” at the beginning of your comments.]
Medicare HH PPS has been effective since October 1, 2000. As set forth in the final rule published July 3, 2000 in the
As required by section 1895(b)(3)(B) of the Act, we have updated the HH PPS rates annually in a separate
For CY 2006, we are proposing to use again the design and case-mix methodology described in section III.G of the HH PPS July 3, 2000 final rule (65 FR 41192 through 41203). For CY 2006, we are proposing to base the wage index adjustment to the labor portion of the PPS rates on the most recent pre-floor and pre-reclassified hospital wage index as discussed in section II.D of this proposed rule (not including any reclassifications under section 1886(d)(8)(B)) of the Act.
As discussed in the July 3, 2000 HH PPS final rule, for episodes with four or fewer visits, Medicare pays the national per-visit amount by discipline, referred to as a LUPA. We update the national per-visit amounts by discipline annually by the applicable home health market
Medicare pays the 60-day case-mix and wage-adjusted episode payment on a split percentage payment approach. The split percentage payment approach includes an initial percentage payment and a final percentage payment as set forth in § 484.205(b)(1) and (b)(2). We may base the initial percentage payment on the submission of a request for anticipated payment and the final percentage payment on the submission of the claim for the episode, as discussed in § 409.43. The claim for the episode that the HHA submits for the final percentage payment determines the total payment amount for the episode and whether we make an applicable adjustment to the 60-day case-mix and wage-adjusted episode payment. The end date of the 60-day episode as reported on the claim determines the rate level at which Medicare will pay the claim for the fiscal period.
We may also adjust the 60-day case-mix and wage-adjusted episode payment based on the information submitted on the claim to reflect the following:
• A low utilization payment provided on a per-visit basis as set forth in § 484.205(c) and § 484.230.
• A partial episode payment adjustment as set forth in § 484.205(d) and § 484.235.
• A significant change in condition adjustment as set forth in § 484.205(e) and § 484.237.
• An outlier payment as set forth in § 484.205(f) and § 484.240.
This proposed rule reflects the proposed updated CY 2006 rates that would be effective January 1, 2006.
Section 1895(b)(3)(B) of the Act, as amended by section 701 of the MMA, requires for CY 2006 that the standard prospective payment amounts be increased by a factor equal to the applicable home health market basket update minus 0.8 percentage point.
•
In calculating the annual update for the CY 2006 60-day episode rates, we are proposing to first look at the CY 2005 rates as a starting point. The CY 2005 national 60-day episode rate, as published in the
In order to calculate the CY 2006 national 60-day episode rate, we are proposing to multiply the CY 2005 national 60-day episode rate ($2,264.28) by the proposed estimated home health market basket update of 3.3 percent for CY 2006 minus 0.8 percentage point.
We would increase the CY 2005 60-day episode payment rate by the proposed estimated home health market basket update (3.3 percent) minus 0.8 percentage point ($2,264.28 × 2.5 percent) to yield the proposed updated CY 2006 national 60-day episode rate ($2,320.89) (see Table 1 below).
As discussed previously in this proposed rule, the policies governing the LUPAs and outlier calculations set forth in the July 3, 2000 HH PPS final rule will continue during CY 2006. In calculating the annual update for the CY 2006 national per-visit amounts we use to pay LUPAs and to compute the imputed costs in outlier calculations, we are proposing to look again at the CY 2005 rates as a starting point. We then are proposing to multiply those amounts by the proposed estimated home health market basket update minus 0.8 percentage point for CY 2006 to yield the updated per-visit amounts for each home health discipline for CY 2006 (
Outlier payments are payments made in addition to regular 60-day case-mix and wage-adjusted episode payments for episodes that incur unusually large costs due to patient home health care needs. Outlier payments are made for episodes for which the estimated cost exceeds a threshold amount. The episode's estimated cost is the sum of the national wage-adjusted per-visit payment amounts for all visits delivered during the episode. The outlier threshold for each case-mix group, PEP adjustment, or total SCIC adjustment is defined as the 60-day episode payment amount, PEP adjustment, or total SCIC adjustment for that group plus a fixed dollar loss amount. Both components of the outlier threshold are wage-adjusted.
The wage-adjusted fixed dollar loss (FDL) amount represents the amount of loss that an agency must bear before an episode becomes eligible for outlier payments. The FDL is computed by multiplying the wage-adjusted 60-day episode payment amount by the fixed dollar loss ratio, which is a proportion expressed in terms of the national standardized episode payment amount. The outlier payment is defined to be a proportion of the wage-adjusted estimated costs beyond the wage-adjusted threshold. The proportion of additional costs paid as outlier payments is referred to as the loss-sharing ratio.
Section 1895(b)(5) of the Act requires that estimated total outlier payments are no more than 5 percent of total estimated HH PPS payments. In response to the concerns about potential financial losses that might result from unusually expensive cases expressed in comments to the October 28, 1999 proposed rule (64 FR 58133), the July 2000 final rule set the target for estimated outlier payments at the 5 percent level. The fixed dollar loss ratio and the loss-sharing ratio were then selected so that estimated total outlier payments would meet the 5 percent target.
For a given level of outlier payments, there is a trade-off between the values selected for the fixed dollar loss ratio and the loss-sharing ratio. A high fixed dollar loss ratio reduces the number of episodes that can receive outlier payments, but makes it possible to select a higher loss-sharing ratio and, therefore, increase outlier payments for outlier episodes. Alternatively, a lower fixed dollar loss ratio means that more episodes can qualify for outlier payments, but outlier payments per episode must be lower. As a result of public comments on the October 28, 1999 proposed rule, in our July 2000 final rule, we made the decision to attempt to cover a relatively high proportion of the costs of outlier cases for the most expensive episodes that would qualify for outlier payments within the 5 percent constraint.
In the July 2000 final rule, we chose a value of 0.80 for the loss-sharing ratio, which preserves incentives for agencies to attempt to provide care efficiently for outlier cases. A loss-sharing ratio of 0.80 was also consistent with the loss-sharing ratios used in other Medicare PPS outlier policies. Furthermore, we estimated the value of the fixed dollar loss ratio that would yield estimated total outlier payments that were 5 percent of total home health PPS payments. The resulting value for the fixed dollar loss ratio, for the July 2000 final rule, was 1.13.
Our CY 2005 update to the HH PPS rates (69 FR 62124) changed the fixed dollar loss ratio from the original 1.13 to 0.70 to allow more home health episodes to qualify for outlier payments and to better meet the estimated 5 percent target of outlier payments to total HH PPS payments. We stated in that CY 2005 update that we planned to continue to monitor the outlier expenditures on a yearly basis and to make adjustments as necessary (69 FR 62129). To do so, we planned on using the best Medicare data available at the time of publication. For the CY 2005 update, we used CY 2003 home health claims data. At this time, we do not have sufficient data to propose any update to the FDL ratio for the CY 2006 update to the HH PPS rates. However, depending on the availability of more recent data at the time of publication of the HH PPS rate update for CY 2006 final rule, we may, if necessary, implement an update to the FDL ratio for the CY 2006 update to the HH PPS rates. If so, we plan on using the same methodology performed in updating to the current FDL ratio described in the June 2, 2004 proposed rule using any more recent available data.
Sections 1895(b)(4)(A)(ii) and (b)(4)(C) of the Act require the Secretary to establish area wage adjustment factors that reflect the relative level of wages and wage-related costs applicable to the furnishing of home health services and to provide appropriate adjustments to the episode payment amounts under HH PPS to account for area wage differences. We apply the appropriate wage index value to the labor portion (76.775 percent; see (60 FR 62126)) of the HH PPS rates based on the geographic area in which the beneficiary received home health services as discussed in section II. A of this proposed rule. Generally, we determine each HHA's labor market area based on definitions of Metropolitan Statistical Areas (MSAs) issued by the Office of Management and Budget (OMB).
We acknowledged in our October 22, 2004 final rule that, on June 6, 2003, the OMB issued an OMB Bulletin (No. 03-04) announcing revised definitions for Metropolitan Statistical Areas (MSAs), new definitions for Micropolitan Statistical Areas and Combined Statistical Areas, and guidance on using the statistical definitions. A copy of the Bulletin may be obtained at the following Internet address:
As implemented under the HH PPS in the July 3, 2000 HH PPS final rule, each HHA's labor market is determined based on definitions of MSAs issued by OMB. In general, an urban area is defined as an MSA or New England County Metropolitan Area (NECMA) as defined by OMB. Under § 412.62(f)(1)(iii), a rural area is defined as any area outside of the urban area. The urban and rural area geographic classifications are defined in § 412.62(f)(1)(ii) and (f)(1)(iii), respectively, and have been used under HH PPS since it was implemented.
Under the HH PPS, the wage index value used is based upon the location of the beneficiary's home. As has been our longstanding practice, any area not included in an MSA (urban area) is considered to be nonurban (§ 412.64(b)(1)(ii)(C)) and receives the statewide rural wage index value (see, for example (65 FR 41173)).
Currently, the MSA definitions are used under other prospective payment systems such as the inpatient rehabilitation facility PPS (IRF PPS), the inpatient psychiatric facility PPS (IPF PPS), the skilled nursing facility PPS (SNF PPS), and Medicare payment for hospice care. In the August 11, 2004 IPPS final rule (69 FR 49206 through 49034), revised labor market area definitions were adopted under § 412.64(b), which were effective October 1, 2004 for acute care hospitals. The new standards, CBSAs, were announced by OMB in late 2000 and are discussed in greater detail below.
As indicated above, we are proposing to implement the designations and definitions published by OMB. Details can be found in the June 6, 2003 OMB Bulletin (No. 03-04). In this proposed rule, we will address the new OMB definitions and their application to the home health wage index used by HH PPS. We are also proposing to revise § 484.202 (Definitions) to reflect those new designations and definitions. As we use the hospital inpatient wage data as the basis for determining the wage index used by HH PPS, we are generally adopting the same approach as taken by the hospital inpatient prospective payment system (IPPS). The changes in the hospital wage index based on the new OMB definitions are discussed in the inpatient prospective payment system (IPPS) proposed rule published in the
b.
c.
In the December 27, 2000
According to the OMB, MSAs are based on urbanized areas of 50,000 or more population, and Micropolitan Statistical Areas (referred to in further discussion as Micropolitan Areas) are based on urban clusters of at least 10,000 population but less than 50,000 population. Counties that do not fall within CBSAs (either MSAs or Micropolitan Areas) are deemed “Outside CBSAs.” In the past, the OMB defined MSAs around areas with a minimum core population of 50,000, and smaller areas were “Outside MSAs.”
On June 6, 2003, OMB announced the new CBSAs, comprised of MSAs and the new Micropolitan Areas based on Census 2000 data. (A copy of the announcement may be obtained at the following Internet address:
d.
In the HH PPS update for CY 2005 proposed rule (69 FR 31260, June 2, 2004), we noted that the recently published IPPS proposed rule for FY 2005 had discussed some of the issues associated with using these new definitions, and had invited public
We have continued to use MSAs to define labor market areas for purposes of the wage index. For the HH PPS, the statute states that the Secretary shall establish area wage adjustment factors that reflect the relative level of wages and wage-related costs applicable to the furnishing of home health services in a geographic area compared to the national average applicable level. We believe MSAs are a reasonable and appropriate proxy for developing geographic areas for purposes of adjusting for wage differences in HH PPS and for many of the same reasons stated in the various IPPS rules over the years where this issue has been exhaustively examined. We also note that MSAs have been used to define labor market areas for purposes of the wage index for many of the other Medicare payment systems (for example, IRF PPS, SNF PPS, hospice, and IPF PPS).
First, historically, Medicare prospective payment systems have used MA definitions developed by OMB. For example, in discussing the adoption of the MSA designation for the IPPS area labor adjustment, the IPPS proposed rule for FY 1985 (49 FR 27426, July 3, 1984) stated:
[i]n administering a national payment system, we must have a national classification system built on clear, objective standards. Otherwise the program becomes increasingly difficult to administer because the distinction between rural and urban hospitals is blurred. We believe that the MSA system is the only one that currently meets the requirements for use as a classification system in a national payment program. The MSA classification system is a statistical standard developed for use by Federal agencies in the production, analysis, and publication of data on metropolitan areas. The standards have been developed with the aim of producing definitions that will be as consistent as possible for all MSAs nationwide.
In addition, in numerous instances, the Congress has recognized that the areas developed by OMB may be used for differentiating among geographic areas for Medicare payment purposes. For example, in the IPPS statutory sections, the Congress defines an “urban area” as “an area within a Metropolitan Statistical Area (as defined by the Office of Management and Budget) or within such similar area as the Secretary has recognized.” Section 1886(d)(2)(D) of the Act. Similarly, in the sections of the statute governing the guidelines to be used by the Medicare Geographic Classification Review Board for purposes of reclassification, the Congress directed the Secretary to create guidelines for “determining whether the county in which the hospital is located should be treated as being a part of a particular [MSA].” Section 1886(d)(10)(A), (D)(i)(II) of the Act. Thus, the Congress has accepted and ratified the use of MSAs as an inherently rational manner of dividing labor-market areas for purposes of Medicare payments.
The process used by OMB to develop the MSAs creates geographic areas upon characteristics that we believe also generally reflect the characteristics of unified labor market areas. For example, the CBSAs reflect a core population plus an adjacent territory that reflects a high degree of social and economic integration. This integration is measured by commuting ties, thus demonstrating that these areas may draw workers from the same general areas. In addition, the most recent CBSAs reflect the most up-to-date information. OMB reviews its MA definitions preceding each decennial census to reflect recent population changes and the CBSAs are based on the Census 2000 data. Finally, in the context of the IPPS, we have reviewed alternative methods for determining geographic areas for purposes of the wage index, and in each case, have decided to retain the OMB designations rather than replace these designations with alternatives.
Because we believe that we have broad authority to create labor market areas, and because we also believe that OMB's latest MA designations accurately reflect the local economies and wage levels of the areas in which hospitals are currently located, we are proposing to adopt the revised labor market area designations based on OMB's CBSA designations.
Furthermore, when we implemented the wage index adjustment at § 484.210 under the HH PPS in the July 3, 2000 HH PPS final rule (65 FR 41213), we stated that an appropriate wage index was to be used to adjust for area wage differences. We also explained that in the adjustment to the national prospective 60-day episode payment rate, we have to account for the geographic differences in wage levels using an appropriate wage index based on the site of service of the beneficiary (65 FR 41213). Because we believe that OMB's CBSA designations based on Census 2000 data reflect the most recent available geographic classifications (MA definitions), as noted above we are proposing to revise the labor market area definitions used under the HH PPS. Specifically, we are proposing to revise the HH PPS labor market definitions based on OMB's new CBSA designations (as discussed in greater detail below), effective for HH PPS services occurring on or after January 1, 2006.
We note that OMB's new CBSA designations are the same labor market area definitions implemented under the IPPS at § 412.64(b), which were effective for those hospitals beginning October 1, 2004, as discussed in the August 11, 2004 IPPS final rule (69 FR 49026 through 49034). The similarity between the IPPS and the HH PPS includes the adoption in the initial implementation of the HH PPS of the same labor market area definitions under the HH PPS that existed under the IPPS at that time, as well as the use of acute care hospitals' wage data in calculating the HH PPS wage index. Therefore, we believe that proposing to revise the HH PPS labor market area definitions based on OMB's CBSA designations is consistent with our historical practice of generally modeling HH PPS wage index policy after IPPS wage index policy.
Below, we discuss the composition of the proposed HH PPS labor market areas based on OMB's new CBSA designations.
(1)
In addition, we have consistently employed a county-based system for New England for precisely that reason: to maintain consistency with the labor market definitions used throughout the country. We note that this is consistent with the implementation of the CBSA designations under the IPPS for New England (see August 11, 2004 (69 FR 49028)). Accordingly, under the HH PPS we are proposing to use the New England MSAs as determined under the proposed new CBSA-based labor market area definitions in defining the proposed revised HH PPS labor market areas.
(2)
As noted above, in the past, OMB designated CMSAs as Metropolitan Areas with a population of one million or more and comprised of two or more PMSAs. Under the HH PPS, we currently use the PMSAs rather than CMSAs to define labor market areas because they comprise a smaller geographic area with potentially varying labor costs due to different local economies. We believe that CMSAs may be too large an area to accurately reflect the local labor costs of all of the individual hospitals included in that relatively “large” area. Similarly, we believe that Metropolitan Divisions under the CBSA designations may be too large an area to accurately reflect the local labor costs of all of the individual hospitals included in that relatively “large” area. Further, Metropolitan Divisions represent the closest approximation to PMSAs and, therefore, would most accurately maintain our current structuring of the HH PPS labor market areas. Therefore, as implemented under the IPPS (69 FR 49029), we are proposing to use the Metropolitan Divisions where applicable (as described below) under the proposed new CBSA-based labor market area definitions.
In addition to being comparable to the organization of the labor market areas under current MSA designations, we believe that proposing to use Metropolitan Divisions where applicable (as described below) under the HH PPS would result in a more accurate adjustment for the variation in local labor market areas. Specifically, if we recognize the relatively “larger” CBSA that comprises two or more Metropolitan Divisions as an independent labor market area for purposes of the wage index, it would be too large and would include the data from too many hospitals to compute a wage index that would accurately reflect the various local labor costs of all of the individual hospitals included in that relatively “large” CBSA. By proposing to recognize Metropolitan Divisions where applicable (as described below) under the proposed new CBSA-based labor market area definitions under the HH PPS, we believe that the local labor costs would be more accurately reflected, thereby resulting in a wage index adjustment that better reflects the variation in the local labor costs of the local economies served by HHAs in those relatively “smaller” areas.
Under CBSA definitions, there are 11 MSAs containing Metropolitan Divisions: Boston; Chicago; Dallas; Detroit; Los Angeles; Miami; New York; Philadelphia; San Francisco; Seattle; and Washington, D.C. Although these MSAs were also CMSAs under the prior definitions, in some cases their areas have been significantly altered.
Under the current HH PPS MSA designations, Boston was a single NECMA. Under the proposed CBSA-based labor market area designations, it would be comprised of 4 Metropolitan Divisions. Los Angeles would go from 4 PMSAs under the current HH PPS MSA designations to 2 Metropolitan Divisions under the proposed CBSA-based labor market area designations. The New York CMSA would go from 15 PMSAs under the current HH PPS MSA designations to only 4 Metropolitan Divisions under the proposed CBSA-based labor market area designations. Five PMSAs in Connecticut under the current HH PPS MSA designations would become separate MSAs under the proposed CBSA-based labor market area designations. The number of PMSAs in New Jersey, under the current HH PPS MSA designations would go from 5 to 2, with the consolidation of 2 New Jersey PMSAs (Bergen-Passaic and Jersey City) into the New York-Wayne-White Plains, NY-NJ Division, under the proposed CBSA-based labor market area designations. In San Francisco, under the proposed CBSA-based labor market area designations, there are only 2 Divisions. Currently, there are 6 PMSAs, some of which are now separate MSAs under the current HH PPS labor market area designations.
Under the current HH PPS labor market area designations, Cincinnati, Cleveland, Denver, Houston, Milwaukee, Portland, Sacramento, and San Juan are all designated as CMSAs, but would no longer be designated as CMSAs under the proposed CBSA-based labor market area designations. As noted previously, the population threshold to be designated a CMSA under the current HH PPS labor market area designations is one million. In most of these cases, counties currently in a PMSA would become a separate, independent MSA under the proposed CBSA-based labor market area designations, leaving only the MSA for the core area under the proposed CBSA-based labor market area designations.
(3)
Micropolitan Areas included as part of the statewide rural labor market area would result in an increase to the statewide rural wage index because hospitals located in those Micropolitan Areas typically have higher labor costs than other rural hospitals in the State. Alternatively, as discussed in greater detail below, if Micropolitan Areas were recognized as independent labor market areas, because there would be so few hospitals in those areas to complete a wage index, the wage indices for those areas would become relatively unstable as they would change considerably from year to year.
Currently, we use MSAs to define urban labor market areas and group all the hospitals in counties within each State that are not assigned to an MSA into a statewide rural labor market area. Therefore, we used the terms “urban” and “rural” wage indices in the past for ease of reference. However, the introduction of Micropolitan Areas by OMB potentially complicates this terminology because these areas include many hospitals that are currently included in the statewide rural labor market areas. Thus, the term “rural” is now used to describe hospitals in counties that are not assigned to either MSA or Micropolitan areas.
We are proposing to treat Micropolitan Areas as rural labor market areas under the HH PPS for the reasons outlined below. That is, counties that are assigned to a Micropolitan area under the CBSA designations would be treated the same as other “rural” counties that are not assigned to either an MSA (Metropolitan Area) or a Micropolitan Area. Therefore, in determining the applicable HH PPS wage index (based on IPPS hospital wage index data, as discussed in greater detail below in section II.D. of this preamble), we propose that the wage index for an HHA servicing a home health beneficiary in a Micropolitan Area under the OMB's CBSA designations would be classified as “rural” and would be assigned the statewide rural wage index for that State.
In the August 11, 2004 IPPS final rule, (69 FR 49029 through 49032), we discussed the impact of treating Micropolitan areas as part of the statewide rural labor market area instead of treating Micropolitan Areas as independent labor market areas for hospitals paid under IPPS. As discussed in greater detail in that same final rule, Micropolitan Areas encompass smaller populations than MSAs and tend to include fewer hospitals per Micropolitan Area.
As Micropolitan Areas tend to include fewer hospitals, recognizing Micropolitan Areas as independent labor market areas would generally increase the potential for dramatic shifts in those areas' wage indices from one year to the next because a single hospital (or group of hospitals) could have a disproportionate effect on the wage index of the area. Dramatic shifts in an area's wage index from year to year are problematic because they result in the instability of payment levels from year to year, which makes fiscal planning difficult. Therefore, in order to minimize the potential instability in payment levels from year to year, we believe it would be appropriate to treat Micropolitan Areas as part of the statewide rural labor market area under HH PPS.
Consistent with the treatment of these areas under the IPPS, we are proposing that Micropolitan Areas be considered a part of the statewide rural labor market area. Accordingly, we are proposing that the HH PPS statewide rural wage index would be determined using acute-care IPPS hospital wage data from hospitals located in non-MSA areas and that the statewide rural wage index would be assigned to home health episodes of care for beneficiaries being served in those areas.
We are proposing to adopt OMB's new labor market designations for CY 2006, effective January 1, 2006. In adopting the CBSA designations, we identified some geographic areas where there were no hospitals, and thus no hospital wage index data on which to base the calculation of the CY 2006 HH PPS proposed wage index. In addressing this situation, we are proposing approaches that we believe serve as proxies for hospital wage data and will provide an appropriate standard that accounts for area wage differences.
The first situation involves rural locations in Massachusetts and Puerto Rico. Under the proposed labor market areas, there are no rural hospitals in those locations. Because there is no reasonable proxy for more recent rural data within those areas, we are proposing to use last year's wage index value for rural Massachusetts and rural Puerto Rico.
The second situation has to do with the urban areas of Hinesville, GA (CBSA 25980) and Mansfield, OH (CBSA 31900). Under the proposed new labor market areas, there are no urban hospitals within those areas. We propose to use all of the urban areas within the State to serve as a reasonable proxy for the urban areas without specific hospital wage index data in determining the HH PPS wage index. Therefore, in this proposed rule, we calculated the urban wage index value for purposes of the wage index for these areas without urban hospital data as the average wage index for all urban areas within the State. We could not apply a similar averaging in rural areas because in the rural areas noted above, there is no rural hospital data available for averaging on a state-wide basis. We solicit comments on these approaches to calculating the wage index values for areas without hospitals for CY 2006 and subsequent years.
(4)
Unlike IPPS and some of the other payment systems where each entity uses a single MSA, HHAs may use various wage indices to compute their payments based upon the location of the beneficiary. Therefore, we do not believe that in the aggregate, HHAs would be impacted negatively by the new CBSA designations. While we understand that there are CBSAs that decrease based upon the new definitions, there are those that would be positively affected. For example, many counties that have been included in the rural definitions under the MSA designations are now designated as urban areas under the CBSA and would generally receive an increase in their wage index. We believe that adjustments made to CBSAs because of negative impact would necessitate adjustments to CBSAs that are
We also note that section 505 of the MMA established new section 1886(d)(13) of the Act. The new section 1886(d)(13) requires that the Secretary establish a process to make adjustments to the hospital wage index based on commuting patterns of hospital employees. We believe that this requirement for an “out-commuting” or “out-migration” adjustment applies specifically to the Hospital Inpatient Prospective Payment System. Therefore, we will not be establishing such an adjustment for HH PPS.
As stated previously, we believe that OMB's latest labor market designations more accurately reflect the local economics and wage levels of the areas in which hospitals are currently located. We believe that OMB's CBSA designations based on Census 2000 data reflect the most recent available geographic classifications (MA definitions) and as a result reflect the relative hospital wage levels in the geographic area. As stated previously, since HHAs compete for the same staff as hospitals in any geographic area, we believe the hospital wage index used by HH PPS reflects the wages that are paid by HHAs.
To reflect our proposal to use the new OMB labor market areas for purposes of the HH PPS wage index, we are proposing to add, in § 484.202 (Definitions), the following definitions for rural and urban:
To facilitate an understanding of the proposed policies related to the proposed changes in the wage index as discussed in section V.B of this proposed rule, in addendum C, we are providing a listing of each Social Security Administration State and county location code, State and county name, existing MSA-based labor market area designation, MSA-based wage index value, CBSA-based labor market area, and the proposed CBSA-based wage index value.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Because of the large number of public comments we normally receive on
[If you choose to comment on issues in this section, please include the caption “REGULATORY IMPACT” at the beginning of your comments.]
We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). The update set forth in this proposed rule would apply to Medicare payments under HH PPS in CY 2006. Accordingly, the following analysis describes the impact in CY 2006 only. We estimate that there would be an additional $330 million in CY 2006 expenditures attributable to the CY 2006 proposed estimated home health market basket update (3.3 percent) minus 0.8 percentage point, for a CY 2006 update of 2.5 percent.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. For purposes of the RFA, approximately 75 percent of HHAs are considered small businesses according to the Small Business Administration's size standards with total revenues of $11.5 million or less in any 1 year. Individuals and States are not included in the definition of a small entity. As stated above, this proposed rule would provide an update to all HHAs for CY 2006 as required by statute. This proposed rule would have a significant positive effect upon small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. We have determined that this proposed rule would not have a significant economic impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. We believe this proposed rule would not mandate expenditures in that amount.
Executive Order 13132 establishes certain requirements that an agency
This proposed rule would update the HH PPS rates contained in the CY 2005 final rule (69 FR 62124, October 22, 2004). The impact analysis of this proposed rule presents the projected effects of the proposed change from MSA to CBSA designations in determining the wage index used to calculate the HH PPS rates for CY 2006. We estimate the effects by estimating payments while holding all other payment variables constant. We use the best data available, but we do not attempt to predict behavioral responses to these changes, and we do not make adjustments for future changes in such variables as days or case-mix.
This analysis incorporates the latest estimates of growth in service use and payments under the Medicare home health benefit, based on the latest available Medicare claims from 2003. We note that certain events may combine to limit the scope or accuracy of our impact analysis, because such an analysis is future-oriented and, thus, susceptible to forecasting errors due to other changes in the forecasted impact time period. Some examples of such possible events are newly-legislated general Medicare program funding changes by the Congress, or changes specifically related to HHAs. In addition, changes to the Medicare program may continue to be made as a result of the BBA, the BBRA, the BIPA, the MMA, or new statutory provisions. Although these changes may not be specific to the HH PPS, the nature of the Medicare program is such that the changes may interact, and the complexity of the interaction of these changes could make it difficult to predict accurately the full scope of the impact upon HHAs.
Our discussions for this proposed rule will focus on the impact of changes in the wage index, most notably the adoption of the CBSA designations. The impacts are shown in Table 3 below. The breakdown of the various impacts displayed in the table follows.
The rows display the estimated effect of the proposed changes on different categories. The first row of figures represents the estimated effects on all facilities. The next 2 rows show the effect on urban and rural facilities. This is followed, in the next 4 rows, by impacts on urban and rural facilities based on whether they are a hospital-based or freestanding facility. The next 20 rows show the effect on urban and rural facilities based on the census region in which they are located.
The first column shows the breakdown of all HHAs by urban or rural status, hospital-based or freestanding status, and census region.
The second column in the table shows the number of facilities in the impact database. A facility is considered urban if it is located in an MSA and, conversely, rural if it is not located in an MSA.
The third column of the table shows the effect of the proposed annual update to the wage index. This represents the effect of using the most recent wage data available to determine the proposed estimated home health market basket update. The total impact of this change is zero percent; however, there are distributional effects of the change.
The fourth column of the table reflects the impact of using the new OMB geographic designations based on CBSAs, compared to using the MSA designations. Specifically, the effect of using the CBSA-designated wage index values versus MSA-designated wage index values in determining payment for facilities in rural areas is, on average, an increase of 0.7 percent. On the other hand, facilities in an urban area do slightly worse, showing an average decrease of 0.1 percent. Rural HHAs, by region, generally do better using the CBSA-determined wage index (ranging from an increase of 0.1 percent to 2.2 percent), except for facilities in the Middle Atlantic and the Mountain regions where payments are estimated to decrease by 0.5 percent. The impact on urban HHAs, by region, is generally moderate using the CBSA determined wage index (ranging from no impact to a −0.8 percent decrease), except for facilities in the Middle Atlantic region, whose payments are estimated to increase slightly by 0.3 percent. By type of facility, the impact on rural facilities using the CBSA-determined wage index is positive, with payments to freestanding facilities estimated to increase by 0.8 percent and payments to hospital-based facilities estimated to increase by 0.7 percent. Conversely, hospital-based urban facilities are estimated to experience no impact while freestanding urban facilities are estimated to see a decrease in payments by 0.2 percent.
The fifth column of the table shows the effect of all of the changes on the CY 2006 payments. The update of 2.5 percentage points (market basket increase of 3.3 percent minus 0.8 percentage point, as mandated by the MMA) is constant for all providers and, though not shown individually, is included in this column. It is projected that total aggregate payments would increase by 2.5 percent; assuming facilities do not change their care delivery and billing practices in response.
As can be seen from this table, the combined effects of all of the changes would vary by specific types of providers and by location. For example, HHAs in rural New England show the largest estimated increase in payment at 5.7 percent, while HHAs in the urban West North Central and East North Central regions show the smallest increase in payments at 1.5 percent. Rural HHAs do somewhat better than urban HHAs, seeing an estimated increase in payments of 3.5 percent and 2.3 percent, respectively. Amongst the different type of facility categories, freestanding rural HHAs do best, with an estimated increase in payments of 3.7 percent. Hospital-based rural HHAs are next with an estimated increase in payments of 3.3 percent with hospital-based urban and freestanding HHAs with estimated increases of 2.4 percent and 2.2 percent, respectively.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:
1. The authority citation for part 484 continues to read as follows:
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395(hh)).
2. In § 484.202, the definitions for “Rural area” and “Urban area” are added in alphabetical order to read as follows:
The following addenda will not be published in the Code of Federal Regulations.
Employment and Training Administration, Labor.
Final rule.
The Employment and Training Administration (ETA) of the Department of Labor (DOL) is removing the regulations at 20 CFR part 646 which govern the Indian and Native American Welfare-to-Work (INA WtW) Program authorized under the Social Security Act. Authorization for this program has expired, and all grants were required to be closed out by December 31, 2004, at the latest. Therefore, the Department has no need for these INA WtW regulations, and this action is undertaken to reduce the Federal regulatory burden and eliminate unneeded rules from the Code of Federal Regulations.
Effective July 14, 2005.
Athena R. Brown, Chief, Division of Indian and Native American Programs (DINAP), at 202-693-3737 (this is not a toll-free number).
Copies of this Final Rule are available in the following formats: Hard copy, or electronic file, either through e-mail or on computer disk. Copies may be obtained at the above office.
ETA is removing the regulations at 20 CFR part 646 which govern the INA WtW Program authorized under the Social Security Act (42 U.S.C. 301,
On August 5, 1997, the President signed the Balanced Budget Act of 1997 (Pub. L. 105-33). This legislation amended provisions of the Social Security Act relating to the Temporary Assistance for Needy Families program (TANF) and authorized the Secretary of Labor to provide WtW grants to States and local communities, including certain Federally-recognized tribes and Alaska Native entities, to assist hard-to-employ TANF welfare recipients in moving into unsubsidized jobs and achieving economic self-sufficiency. Accordingly, pursuant to 42 U.S.C. 612(a)(3)(C)(iii), the Department of Labor promulgated the regulations found at 20 part CFR 646, which were published as an interim final rule in the
The Omnibus Consolidated Appropriations Act of 2001 (Pub. L. 106-554) authorized the Department to extend all Welfare-to Work grants, including the INA WtW grants, for an additional two years beyond the three-year expenditure period authorized under the initial legislation. However, that extension period expired as of September 30, 2004, for those grants issued in Fiscal Year (FY) 1999 (the extension period for the FY 1998 INA WtW grants expired as of September 30, 2003). Because most of the FY 1998 INA WtW grants have already been closed out, and because the FY 1999 INA WtW grants were required to be closed out by December 31, 2004, the Department has no need for these INA WtW regulations. Therefore, this action is undertaken to reduce the Federal regulatory burden and eliminate unneeded rules from the Code of Federal Regulations.
This document removes obsolete regulations from the Code of Federal Regulations. Removal of the regulations does not establish or affect substantive policy. Therefore, the Department of Labor has determined, pursuant to 5 U.S.C. 553(b)(3)(B) and (d), that good cause exists to waive the delay of the effective date of this rule and that public comment is unnecessary and contrary to the public interest.
This program is listed in the Catalog of Federal Domestic Assistance at No. 17-254, “Welfare-to-Work Grants to Federally-Recognized Tribes and Alaska Natives.”
Indians, Grant programs, Labor, Employment or training programs, Welfare reform.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends the regulations governing maintenance, preventive maintenance, and alterations performed on U.S. aeronautical products by certain Canadian persons. The amendment removes specific regulatory references and other requirements unique to that work when performed in Canada. The United States and Canada have entered into an international agreement called a Bilateral Aviation Safety Agreement (BASA) that is in line with BASAs negotiated with other countries. The FAA and Canada are negotiating Maintenance Implementation Procedures (MIP) to accompany the BASA. The current rule contains specific regulatory language that constrains developing a standardized MIP. The MIP will require compliance with the applicable Canadian regulations plus special conditions that will ensure a level of safety equivalent to that provided by the FAA's regulations. This action is necessary for the MIP to proceed.
These amendments become effective concurrent with the date the MIP accompanying the BASA between the United States and Canada enters into force. The FAA will publish a notice in the
William D. Scott, Flight Standards, Aircraft Maintenance Division, AFS-300, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (502) 671-4015; facsimile (502) 671-4003, e-mail:
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Visiting the Office of Rulemaking's Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by submitting a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact its local FAA official, or the person listed under
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing—
• Minimum standards required for safety in the design and performance of aircraft;
• Regulations and minimum standards for safety in inspecting, servicing, and overhauling aircraft; and
• Regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce.
This regulation is within the scope of that authority because it prescribes'
• New requirements for Canadian maintenance organizations and aviation maintenance engineers to meet when performing maintenance on U.S. aeronautical products.
• The new requirements are in line with requirements imposed on other foreign entities by BASA/MIPs.
• That compliance with the BASA/MIP is considered an equivalent level of safety to the requirements of this chapter.
Section 43.17 of Title 14 of the Code of Federal Regulations (CFR) applies to maintenance activities performed on U.S.-registered aircraft and U.S. aeronautical products by authorized Canadian persons. Among other requirements, it specifies the particular FAA maintenance regulations to be followed when that work is performed in Canada. At present, this is the only regulation in part 43 that imposes specific requirements for maintenance work performed in a named country. It is also the only regulation that permits a person in a named country and not holding a United States airman or air agency certificate to perform maintenance, preventive maintenance, or alterations on U.S. aeronautical products. The regulation is the result of a long-standing reciprocal maintenance arrangement between the United States and Canada. The United States does not allow such work on U.S.-registered aircraft or U.S. aeronautical products in other countries except when the person there holds an FAA-issued airman or air agency (foreign repair station) certificate.
The FAA also proposed to remove the requirement in § 43.17(c)(2) that, for a Canadian Approved Maintenance Organization (AMO) to be able to work on U.S. aeronautical products located in Canada, those products must have been transported to Canada from the United States. Under the proposal, when a product is located outside the United States, it no longer would have to be transported first to the United States and then to Canada. This change will extend the same privileges to Canadian maintenance organizations that now apply to FAA-certificated domestic and foreign repair stations. We are adopting this change as proposed.
The preamble to the NPRM noted that the new BASA would “expand * * * the maintenance that can be performed in the U.S. and Canada.” Specifically, the NPRM continued: “Revisions proposed in this rulemaking will allow maintenance in Canada, with respect to U.S.-registered aircraft to be more in line with the maintenance allowed by other foreign repair stations * * *. [the] FAA proposes changes to § 43.17 that will bring this regulation into line with a negotiated agreement.” One of the changes proposed, but not discussed in the preamble, was the removal of the requirement in § 43.17(c)(2) that, for a Canadian AMO (including an authorized employee performing work for such a company) to be authorized to perform maintenance, preventive maintenance, and alterations on U.S.-registered aircraft or other U.S. aeronautical products, the aircraft or aeronautical product had to be located in Canada. The removal of this requirement would have permitted authorized Canadian personnel to work on U.S.-registered aircraft or aeronautical products in the U.S. No comments addressed that part of the proposal.
Upon further consideration of that part of the proposal, however, the FAA has decided to keep the current restriction that the aircraft or aeronautical product must be located in Canada. As discussed below under
Because 49 U.S.C. 40102(a)(8)(B) does not grant the FAA authority to except a mechanic performing maintenance on a U. S.-registered civil aircraft or U.S. aeronautical product located within the United States from the definition of “airman,” and a Canadian AMO representative performing maintenance on a U.S.-registered aircraft or aeronautical product would be serving in the capacity of an airman, we are keeping the restriction presently found in § 43.17(c)(2) that the aircraft or aeronautical product be “located in Canada.”
Another change proposed for § 43.17(c)(2) was to remove the phrase “a person who is an authorized employee” of an AMO for the stated reason that, when the rule was written, the FAA used that language to be consistent with the Canadian rule. Noting that the Canadian rule had since been changed, the FAA proposed to remove the reference. In addition, the proposed text also removed the phrase immediately following it, that is, “performing work for such a company.” Through an oversight, those words were omitted from the discussion in the preamble to the NPRM. Because the two phrases must be read together, and the reason for removing them is the same as noted above, the entire phrase is being removed in this amendment as proposed.
While the removal of the phrase in § 43.17(c)(2) discussed immediately above was addressed in the preamble to the NPRM, other changes to the proposed amendatory text for that section were not discussed or explained. In the existing rule, certain criteria had to be met by an AMO before it could perform work on a U.S.-registered aircraft or U.S. aeronautical product in Canada. In particular, the AMO had to have a “system of quality control for the maintenance, alteration, and inspection of aeronautical products that had been approved by the Canadian Department of Transport” as a prerequisite to performing the maintenance, preventive maintenance, or alterations. Instead, the proposed rule stated, in pertinent part, that an AMO “holding appropriate ratings may, with respect to U.S.-registered aircraft or other U.S. aeronautical products, perform maintenance, * * *.”
The FAA unintentionally omitted from the NPRM a discussion of why the agency was proposing to delete the reference to an AMO having to have an approved “system of quality control for the maintenance, alteration, and inspections * * *” before it was authorized to perform that work. The FAA determined that if the referenced prerequisite remained in the regulation, it would present another constraint to developing the BASA/MIP. To make the United States/Canada BASA/MIP align with the format of other existing BASA/MIPs, the agency sought to place such specific requirements in the MIP. Under the terms of the MIP, Canada would watch the AMOs for compliance with the requirements set forth in the MIP. Therefore, that part of the rule is adopted as proposed.
In addition to the above changes, the FAA proposed to delete the reference throughout the regulation to “Canadian Department of Transport,” the former name of the Canadian agency, and to replace it with “Transport Canada Civil Aviation (TCCA),” the current name of the Canadian civil aviation authority.
On November 13, 1951, the Civil Aeronautics Board (CAB) issued Special Civil Air Regulation No. SR-377 (SR-377), titled “Mechanical Work Performed on United States Registered Aircraft by Certain Canadian Mechanics.” The regulation allowed Canadian maintenance persons who did not hold U.S. airman certificates to perform work on U.S.-registered aircraft located in Canada. The preamble to SR-377 noted the CAB considered the Canadian standards to be of a “high caliber” and to “compare favorably with those in force in the United States.” The CAB relied on section 1(6) of the Civil Aeronautics Act of 1938 to exempt Canadian mechanics employed outside the United States from the definition of “airman” and thus from the requirement to hold a valid U.S. airman certificate. A similar exception now exists in 49 U.S.C. 40102(a)(8).
Under current U.S. law, an individual may not serve in any capacity as an airman performing maintenance on a U.S.-registered aircraft or aeronautical product without holding a U.S. airman certificate. This prohibition is found at 49 U.S.C. 44711(a)(2)(A). Current 49 U.S.C. 40102(a)(8)(B) defines an airman as an individual “who is directly in charge of inspecting, maintaining, overhauling, or repairing aircraft, aircraft engines, propellers, or appliances.” This means that each person who performs maintenance on and returns an aircraft or aeronautical product to service must hold a U.S. airman certificate; this would not apply to a non-certificated person who was being supervised by a certificated airman. As in the 1938 Act referenced above, current 49 U.S.C. 40102(a)(8)(B) contains a similar exception in its definition of airman. Specifically, that section provides that the Administrator of the FAA “may provide otherwise for individuals employed outside the United States.”
In October 1964, SR-377 was reissued as Special Federal Aviation Regulation (SFAR) No. 10, and on April 13, 1966, it was codified as 14 CFR 43.17.
In 1984, the United States and Canada signed the current Agreement Concerning the Airworthiness and Environmental Certification, Approval, or Acceptance of Imported Civil Aeronautical Products (the U.S./Canada Bilateral Airworthiness Agreement (BAA)). The BAA provided for an agency-to-agency Schedule of Implementation Procedures (IP), that, among other requirements, would specify in detail both maintenance and aircraft certification procedures. The IP was completed and signed on May 18, 1985; it was revised on May 18, 1988. Together, the BAA/IP allows authorized persons and companies in each country to perform maintenance, alterations, and modifications on aircraft under the regulatory control of the other country. Such work must be performed following the laws, regulations, standards, and requirements of the country regulating the airworthiness of the affected aircraft or product.
A key difference between the United States/Canada BASA/MIP and those with other countries is that the latter provide for the certification by the FAA of repair stations in those countries that will be maintaining U.S.-registered aircraft and U.S. aeronautical products. No such FAA certification of either Canadian airmen or Canadian maintenance organizations exists or is planned. As explained above, the current reciprocal maintenance arrangement with Canada was established, in part, because the Canadian regulations were determined to compare favorably from a safety standpoint with those of the United States.
Generally, FAA-certificated repair stations in foreign countries (foreign repair stations) must follow the U.S. repair station regulations set forth in 14 CFR part 145 when working on U.S.-registered aircraft or U.S. aeronautical products. In those countries where a BASA with the United States is in effect, the requirements repair stations must follow are spelled out in the BASA and associated MIP. These typically require compliance with the applicable regulations of the country where the repair station is located plus special conditions that address any differences between that country's regulations and the FAA's. Because those repair stations hold FAA-issued air agency certificates, the FAA may take enforcement action against the stations for violations of the regulations.
The U.S./Canada BASA recognizes “that the standards and systems for airworthiness and environmental approvals and airworthiness acceptance of maintenance approvals and modifications or alterations, as established in the Agreement for
The FAA and TCCA are in the process of negotiating the associated MIP. The MIP will set forth the provisions for accepting maintenance, preventive maintenance, or alterations. As with other MIP, the U.S./Canada MIP will include specific conditions required by the civil aviation authorities of both countries. For work done on U.S.-registered aircraft and U.S. aeronautical products, the MIP will be structured to assure a level of safety equivalent to that provided by the FAA's regulations. It will require the authorized Canadian maintenance persons and organizations to follow the applicable Canadian regulations plus enumerated special conditions. The MIP thereby will provide a regulatory scheme essentially equivalent to the FAA's.
As explained in the NPRM, leaving the specific regulatory references in § 43.17 would inhibit the development and any later modification of the MIP. Part of the MIP process would be for the United States and Canada to evaluate each other's regulatory system. The FAA would certify that the Canadian regulations provide an equivalent level of safety for maintenance, preventive maintenance, or alterations. Any differences thought to be significant will be addressed through special conditions. This amendment to § 43.17 will promote negotiating and any future revising of the MIP. It will also result in the MIP being more in line with MIP concluded with other countries that were not constrained by the existence of specific regulatory references directed to maintenance providers in those countries.
The FAA received five timely comments on the NPRM. We also received comments from two law students that were prepared for an aviation law class project. These comments were submitted over three and three and a half months late, respectively. Because of their untimeliness, we will not address them further. Four of the five commenters supported all or parts of the proposal.
One commenter, Standard Aero, supported the proposed amendment, but addressed only the removal of the requirement that aeronautical products have to be transported from the United States to Canada. The commenter saw no safety benefit in the requirement, noting that the FAA already accepts TCCA's system of oversight.
Two associations, the Air Transport Association of Canada and the Air Line Pilots Association, expressed general support for the proposed amendment, but neither commented on specific sections.
Another commenter, an individual, opposed the proposal, arguing that it was “in opposition to public safety and more an effort to gut more [A]merican jobs.” The commenter provided no supporting information for his assertions. In response, the FAA notes that adoption of the amendment will not reduce the current level of safety. As discussed previously, the reciprocal maintenance arrangement between the United States and Canada has existed for many years. Initially, the CAB determined that the Canadian regulations compared favorably with those of the United States; moreover the Canadian regulations have been harmonized to closely match the current FAA regulations. Also the MIP will be drafted to provide special conditions that must be met to assure an equivalent level of safety. As noted above, an underlying premise for the current BASA is that the relevant standards of each country are “sufficiently equivalent to permit acceptance by each Party of the findings of the other Party.” As to the loss of American jobs, under the existing arrangement, Canadian aircraft and products may be maintained in the United States and vice versa. The amendment facilitates the development of the MIP, but does not make any substantive changes to the existing reciprocal maintenance arrangement between the two countries. The removal of the requirement to ship parts from the United States to Canada may, in some cases, ease the economic burden on United States entities that are having aviation maintenance work performed in Canada. The elimination of that trade barrier and the possible associated cost savings could have a positive impact on American jobs.
Finally, one commenter, the Aviation Suppliers Association, supported most of the proposal but opposed the proposed changes to § 43.17(d)(2) and (d)(4). Specifically, the organization is concerned about the reference to the “agreement between the United States and Canada.” As discussed previously, this “agreement” means the U.S./Canada BASA and its MIP, which is currently under negotiation. First, the commenter objects that the proposed change “would disenfranchise the public from future comment * * * [because] an international agreement * * * is not subject to notice-and-comment, and [it] may therefore be changed without either public comment or even public notice.” Second, the commenter alleges that “future changes to the bilateral agreements” would potentially “have the effect of interfering with trade and the business of domestic companies.” The commenter also phrases this second concern as an allegation that the agreement “could establish standards that adversely affect commercial relationships without a commensurate safety benefit.” Both of these concerns are misplaced.
Unlike rules, agreements do not apply directly to regulated entities, but are exchanges of rights and obligations between governments. Moreover, an executive agreement cannot be used to modify, overrule, or nullify inconsistent regulations.
Finally, all aviation agreements are reported to Congress in accordance with the Case Act and registered with the International Civil Aviation Organization (ICAO) in accord with U.S. obligations under the Convention on International Civil Aviation (the Chicago Convention).
It is consequently also incorrect to assert that BASAs have no “commensurate safety benefit.” As the preamble to the NPRM states, the FAA does not enter into a BASA/MIP unless it is well satisfied that the foreign government's safety regulatory scheme provides a level of safety fully equivalent to that provided by the FAA.
Indeed, the only reason that Canada has its own mention in § 43.17 is that the U.S./Canada BAA alone among all the FAA's BAAs dealt with maintenance activities. It did so because of the special trust that the FAA had developed in Canadian safety oversight over the decades. The purpose of this change in language is to enable the U.S./Canada BASA to be treated as much as possible like the other BASAs. It corrects an anomaly that resulted from the greater confidence that the FAA had in Canadian oversight of maintenance facilities.
There are no current or new requirements for information collection associated with this amendment.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.
Executive Order 12866, Regulatory Planning and Review, directs the FAA to assess both the costs and the benefits of a regulatory change. We are not allowed to propose or adopt a regulation unless we make a reasoned determination that the benefits of the intended regulation justify its costs. Our assessment of this rulemaking indicates that its economic impact is minimal. Because the costs and benefits of this action do not make it a “significant regulatory action” as defined in the Order, we have not prepared a “regulatory impact analysis.” Similarly, we have not prepared a full “regulatory evaluation,” which is the written cost/benefit analysis otherwise required for all rulemaking under the DOT Regulatory and Policies and Procedures. We do not need to do a full evaluation where the economic impact of a rule is minimal.
The FAA is amending 14 CFR 43.17. The FAA has replaced the Bilateral Airworthiness Agreement between the United States and Canada with a BASA, and plans to include a MIP with that BASA. Through the device of the U.S./Canada BASA/MIP, future changes in maintenance requirements in either country can be implemented through changes to the MIP. This will be a less burdensome and less costly process than having to amend § 43.17 each time. Currently, § 43.17 contains two provisions among its requirements that inhibit the implementation of a BASA/MIP agreement with Canada. The FAA is revising § 43.17 by removing these to facilitate development of the MIP. These revisions are discussed below. Currently, some provisions in § 43.17 provide requirements that are not in accordance with standards for other MIPs that are in place now. This final rule will remove those and make the implementation of the BASA/MIP more beneficial to all parties by providing greater flexibility to implement a MIP.
The FAA believes that amending § 43.17 results in cost savings to those entities that would be impacted by this rule and eliminates a barrier to trade. Therefore, the FAA has determined that the final rule will be cost-beneficial.
The Regulatory Flexibility Act of 1980 establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rational for their actions. The Act covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis (RFA) as described in the Act.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 act provides that the head of the agency may so certify and an RFA is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The Federal Aviation Administration has determined that this final rule will not have a significant economic impact on a substantial number of small entities because it is removing a barrier, which should lower costs for air carriers that have aircraft maintenance performed in Canada.
The Trade Agreements Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will not constitute a barrier to international trade, including the export of U.S. goods and services to foreign countries or the import of foreign goods and services into the United States. In fact, the FAA believes it will remove a barrier to trade.
The Unfunded Mandates Reform Act of 1995 (the Act) is intended, among other things, to curb the practice of imposing unfunded Federal mandates
This final rule does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply.
The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We have determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 307k and involves no extraordinary circumstances.
The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant regulatory action” under Executive Order 12866, as it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
Air carriers, Aircraft, Airmen, Air transportation, Aviation safety.
49 U.S.C. 106(g), 40113, 44701, 44703, 44705, 44707, 44711, 44703, 44717, 44725.
(a)
(c)
(2) A Transport Canada Civil Aviation Approved Maintenance Organization (AMO) holding appropriate ratings may, with respect to a U.S.-registered aircraft or other U.S. aeronautical products located in Canada, perform maintenance, preventive maintenance, and alterations in accordance with the requirements of paragraph (d) of this section and approve the affected products for return to service in accordance with the requirements of paragraph (e) of this section.
(d)
(1) The person performing the work is authorized by Transport Canada Civil Aviation to perform the same type of work with respect to Canadian aeronautical products;
(2) The maintenance, preventive maintenance, or alteration is performed in accordance with a Bilateral Aviation Safety Agreement between the United States and Canada and associated Maintenance Implementation Procedures that provide a level of safety equivalent to that provided by the provisions of this chapter;
(3) The maintenance, preventive maintenance, or alteration is performed such that the affected product complies with the applicable requirements of part 36 of this chapter; and
(4) The maintenance, preventive maintenance, or alteration is recorded in accordance with a Bilateral Aviation Safety Agreement between the United States and Canada and associated Maintenance Implementation Procedures that provide a level of safety equivalent to that provided by the provisions of this chapter.
(e) * * *
(1) * * *
(2) An AMO whose system of quality control for the maintenance, preventive maintenance, alteration, and inspection of aeronautical products has been approved by Transport Canada Civil Aviation, or an authorized employee performing work for such an AMO, may approve (certify) a major repair or major alteration performed under this section if the work was performed in accordance with technical data approved by the FAA.