Food Safety and Inspection Service
Forest Service
Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Engineers Corps
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
National Nuclear Security Administration
Trade Representative, Office of United States
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Transportation Security Administration
Land Management Bureau
National Park Service
Surface Mining Reclamation and Enforcement Office
Foreign Claims Settlement Commission
Employment and Training Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Surface Transportation Board
Comptroller of the Currency
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Office of the Chief Financial Officer, Department of Energy.
Final rule.
The Department of Energy (DOE) today publishes a final rule to amend DOE's October 23, 2007 final rule concerning loan guarantees for projects employing innovative technologies. This final rule removes an extraneous paragraph, originally included in the proposed rule, that was inadvertently retained in the October 23 final rule.
This rule is effective January 11, 2008.
David G. Frantz, Director, Loan Guarantee Program Office, Office of the Chief Financial Officer, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-8336, e-mail:
On October 23, 2007 (72 FR 60115), DOE promulgated a rule establishing procedures for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (“Act”) (42 U.S.C. 16511-16514). Title XVII authorizes the Secretary of Energy, after consultation with the Secretary of the Treasury, to make loan guarantees for projects that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and (2) employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” (42 U.S.C. 16513(a)) Earlier, on May 16, 2007, the Department had published a Notice of Proposed Rulemaking and Opportunity for Comment (NOPR, 72 FR 27471) to establish regulations for the Title XVII loan guarantee program.
Prior to publication of the final rule, on August 8, 2006, DOE had issued Guidelines for Proposals Submitted in Response to the First Solicitation for loan guarantees. The Guidelines were published in the
Today's final rule amends the October 23, 2007 final rule by removing a paragraph in section 609.1 regarding the application of the final rule to Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements that were issued or entered into pursuant to the First Solicitation.
DOE proposed in the NOPR that in order to ensure that DOE complied with the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 110-5) but did not prejudice Pre-Applicants that responded to the First Solicitation, the regulations would specify that they do not apply to the Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements issued or entered into pursuant to the First Solicitation. Proposed § 609.1(c)(1). DOE proposed that the only exceptions to this would be the default, recordkeeping, and audit requirements proposed for inclusion in DOE's regulations. Proposed § 609.1(c)(2). DOE also proposed in the NOPR to permit DOE and an Applicant to agree in a Loan Guarantee Agreement entered into pursuant to the First Solicitation that additional provisions of DOE's regulations would apply to the particular project. Proposed § 609.1(c)(3).
DOE received and responded to public comments on these issues in the notice of final rulemaking (72 FR 60132-60133). In the final rule, DOE modified the application of part 609 to those who responded to the First Solicitation by providing that “[e]xcept as specified in [section 609.1(c)(1)], these regulations apply to all projects and loan guarantees pursuant to Title XVII, including those pursuant to the First Solicitation.” (72 FR 60133). Thus, the final rule provides that DOE's regulations apply to all projects pursuant to Title XVII, except for section 609.3 (“Solicitations”), section 609.4 (“Submission of pre-applications”), and section 609.5 (“Evaluation of pre-applications”). DOE, however, inadvertently left in the final rule proposed paragraph 609.1(c)(3), re-numbered as paragraph 609.1(c)(2) in the final rule, which would allow DOE and Applicants who submitted Pre-Applications pursuant to the First Solicitation to agree to make additional provisions of Part 609 applicable to their projects. The change in coverage makes this paragraph of section 609.1 superfluous, and DOE removes paragraph (c)(2) with today's final rule.
DOE has determined, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), that prior notice and an opportunity for public comment on this rule are unnecessary and there is good cause to waive the requirement for a 30-day delay in effective date. DOE has determined that the revision DOE is making to Part 609 is a technical change or correction about which the public would have no particular interest in providing comments. As explained earlier in this preamble, DOE is revising section 609.1 to remove a paragraph allowing DOE and Applicants who submitted Applications pursuant to the First Solicitation to agree to make other provisions of part 609 applicable to those projects. This paragraph was included inadvertently in the final rule, and is superfluous because 609.1(c)(1) specifies which sections of part 609 do not apply to such Applications.
Based on the foregoing, DOE finds that good cause exists to waive both the requirement to provide prior notice and an opportunity to comment on this rulemaking and the requirement for a 30-day delay in effective date.
Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action is not subject to review under that Executive Order by the Office of Information and Regulatory
DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR, part 1021, which applies to a rulemaking that amends an existing rule or regulation which does not change the environmental effect of the rule or regulation being amended.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule does not impose any new collection of information subject to review and approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. This final rule does not impose a Federal mandate on State, local or tribal governments. The rule would not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the Unfunded Mandates Reform Act of 1995.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rulemaking that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. DOE has determined that this rule would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.
DOE has determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.
DOE has reviewed today's rule under OMB and DOE guidelines concerning dissemination of information to the public and has concluded that it is consistent with applicable policies in those guidelines.
Today's rule would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.
As required by 5 U.S.C. 801, the Department will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this rule. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
Issuance of this rule has been approved by the Office of the Secretary.
Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements.
42 U.S.C. 7254, 16511-16514.
U.S. Small Business Administration.
Direct final rule.
The U.S. Small Business Administration (SBA) is revising its regulations specifying the description and authorized use of its official seal. These revisions will further define the authorized and unauthorized use of the official seal by SBA and add criteria for approving and denying requests to use the official seal.
SBA believes that this rule is non-controversial, and the Agency anticipates no significant adverse comment. If SBA receives a significant adverse comment, it will withdraw the rule.
This rule is effective February 25, 2008 without further action, unless significant adverse comment is received by February 11, 2008. If significant adverse comment is received, SBA will publish a timely withdrawal of the rule in the
You may submit comments, identified by RIN 3245-AF68, by one of the following methods: (1) Federal eRulemaking Portal:
SBA will post all comments on
Julie Clowes, Office of General Counsel, at (202) 619-0445 or by e-mail at:
Section 5(a) of the Small Business Act (15 U.S.C. 634(a)) gives SBA the power to adopt, alter and use a seal which shall be judicially noticed. When initially created, the official seal was only used to certify or authenticate official SBA records. SBA's regulations at 13 CFR 101.105 were narrowly constructed to reflect that one use. Through the years, the Agency has discovered a need to formally identify itself to the public through use of the official seal. This revision to 13 CFR 101.105 broadens SBA's regulatory authority to use its official seal and establishes penalties for unauthorized use.
In order to gain a better understanding of what may or may not be an appropriate use of an official Federal agency seal, SBA first researched the Federal laws affecting use of an agency's seal and the seal regulations of other Federal agencies. The research showed that use of seals by Federal agencies is rather varied. Many agencies authorize use for marketing and outreach purposes such as awards, certificates, plaques, flags, business cards, signage and publications. Because this type of use identifies with the mission of the Agency, SBA incorporated these marketing uses into the revised regulations.
Additionally, SBA identified unauthorized uses of the seal, emphasizing the need to prevent an actual or implied endorsement of a commercial product or service. A subsection on how to request written permission from the Administrator to use the SBA seal and a statement of the penalties, as defined in the U.S. Code, were also incorporated into the revised regulations.
The Agency believes there is good cause to bypass notice and comment and proceed to a direct final rule pursuant to 5 U.S.C. 553(b). The rule is non-controversial and merely alters who may use SBA's official seal and for what purpose. Because this rule only impacts Agency procedure and practice, notice and comment is unnecessary. Although SBA believes this direct final rule will not elicit any significant adverse comments, if such comments are received, SBA will publish a timely notice of withdrawal in the
The Office of Management and Budget (OMB) has determined that this rule does not constitute a significant regulatory action under Executive Order 12866.
This rule meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have retroactive or preemptive effect.
This rule will not have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA determines that this rule has no federalism implications warranting preparation of a federalism assessment.
SBA has determined that this rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rule, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. In this case, the regulations address the administrative requirements for the Agency's use of its official seal. In other words, this rule will not result in the direct regulation of small entities, so no further analysis is required by the RFA. Therefore, SBA certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of RFA.
Administrative practice and procedure, Authority delegations, Intergovernmental relations, Investigations, Organizations and functions, Reporting and recordkeeping requirements, Seals and insignia.
5 U.S.C. 552 and App. 3, secs. 2, 4(a), 6(a), and 9(a)(1)(T); 15 U.S.C. 633, 634, 687; 31 U.S.C. 6506; 44 U.S.C. 3512; E.O. 12372 (July 14, 1982), 47 FR 30959, 3 CFR, 1982 Comp., p. 197, as amended by E.O. 12416 (April 8, 1983), 48 FR 15887, 3 CFR, 1983 Comp., p. 186.
(a)
(b)
(c)
(1) Certify and authenticate originals and copies of any books, records, papers or other documents on file within SBA or extracts taken from them or to provide certification for the purposes authorized in 28 U.S.C. 1733;
(2) SBA award certificates and medals;
(3) SBA awards for career service;
(4) Security credentials and employee identification cards;
(5) Business cards for SBA employees;
(6) Official SBA signs;
(7) Plaques; the design of the SBA seal may be incorporated in plaques for display in Agency auditoriums, presentation rooms, lobbies, offices and on buildings occupied by SBA;
(8) The SBA flag;
(9) Officially authorized reports or publications of the SBA; or
(10) For such other purposes as determined necessary by the Administrator.
(d)
(1) Contractor operated facilities;
(2) Souvenir or novelty items;
(3) Toys or commercial gifts or premiums;
(4) Letterhead design, except on official SBA stationery;
(5) Clothing or equipment; or
(6) Any article which may disparage the seal or reflect unfavorably upon SBA.
(e) SBA's seal will not be used in any manner which implies SBA endorsement of commercial products or services or of the user's policies or activities.
(f)
(g)
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are superseding an existing airworthiness directive (AD) for the products listed above. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. * * *
This AD becomes effective February 15, 2008.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 5, 2007 (72 FR 46555, August 21, 2007).
You may examine the AD docket on the Internet at
Dan Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7305; fax (516) 794-5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
That NPRM proposed to retain the requirements of AD 2007-17-07, i.e., revising the airplane flight manual (AFM) to incorporate Canadair Regional Jet Temporary Revision (TR) RJ/165, dated July 6, 2007, into the AFM; adding operational procedures into the AFM; training flight crewmembers and operational control/dispatch personnel on the operational procedures; and doing corrective “maintenance actions.”
That NPRM also proposed to require training flight crewmembers on reduced or zero flap landing, and doing additional corrective “maintenance actions” that include a pressure test of the flexible drive-shaft, and corrective actions if necessary. You may obtain further information by examining the MCAI in the AD docket.
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Comair requests that we exclude from the proposed actions actuators with less than 2,000 flight hours since new or since repair as of July 12, 2007 (the issue date of Bombardier Service Bulletin 601R-27-150). Comair states that those actuators would not require the inspections of Part C of the Accomplishment Instructions of the service bulletin. Comair suggests that paragraph “(f)(3)” of the NPRM contain a statement qualifying under what conditions flap actuators must comply with Part C of the service bulletin by stating that new actuators, and those recently repaired where it can be shown that the inboard pinion shaft seals, part numbers (P/Ns) 853SC177-1/-2, were replaced, should be exempt from Part C (low temperature torque check test).
We infer that Comair meant to refer to paragraph (g)(3) of the NPRM. We referred to Bombardier Service Bulletin 601R-27-150 as the appropriate source of service information for accomplishing the actions specified in paragraph (g)(3) of the NPRM. Paragraph (g)(3) of the NPRM proposes to require doing actions in accordance with Part C of the service bulletin. We agree that the actions specified in paragraph (g)(3) of this AD apply only to certain actuators as specified in paragraph 1.D.,
Mesaba Airlines requests that we remove the requirement proposed in paragraph (g)(3) of the NPRM to do a low temperature torque test of the flap actuators and all applicable corrective actions. Mesaba Airlines states that Bombardier and the flap actuator manufacturer (Eaton) are very close to certifying a new seal for the flap actuator. Mesaba Airlines explains that this new seal is intended to fix the internal fluid leakage issue in the actuator that could result in an actuator problem (and result in the actuator failing the low temperature torque test). Mesaba Airlines notes that once the modified flap actuator is certified, a fleet retrofit with the modified actuator would result in a more robust fix for the actuator issue.
Mesaba Airlines further states that there is no guarantee currently that an actuator installed to replace an actuator that fails the low temperature torque test would not have the same issue shortly after installation (negating the benefit of performing the test). Mesaba Airlines concludes that the flight operations requirements instituted under AD 2007-17-07 provide an acceptable margin of safety until the modified actuator becomes available for retrofit.
We disagree with the request to remove the requirement specified in paragraph (g)(3) of this AD. Bombardier and TCCA are discussing possible terminating action for Part C (low temperature torque test) of Bombardier Service Bulletin 601R-27-150. Although it has been proposed that the replacement of the current actuators with actuators incorporating the new inboard seal should be terminating action for the actuator cold soak requirement specified in Part C of the service bulletin, this has not yet been agreed to. Additionally, the new seal is still undergoing endurance testing at Eaton and is not yet approved.
Once this new seal is developed, approved, and available, we might consider additional rulemaking. The actions specified in paragraph (g)(3) of this AD are intended to mitigate the potential of flap failures utilizing the solutions that are currently available. We have not revised this AD in this regard. However, according to the provisions of paragraph (h)(1) of the AD, operators may request an alternative method of compliance if the request includes data that prove that the new action would provide an acceptable level of safety.
In regard to Mesaba Airlines' statement that there is no guarantee that a replacement actuator installed to replace an actuator failing the low temperature torque test would not have the same issue shortly after installation, we acknowledge that there is no guarantee that a replacement unit will not fail. However, replacing a known contaminated unit with a new unit, as required by paragraph (g)(3) of this AD, adequately addresses the identified unsafe condition. The actions in paragraph (g)(3) mitigate the risk of a failure as time in service increases.
As stated earlier, we have revised paragraph (g)(3) of this AD to clarify that the actions apply only to certain actuators with more than 2,000 flight hours since new or actuators that have accumulated more than 2,000 flight hours since the pinion shaft seals were replaced. Bombardier has determined that the effects of oil contamination typically do not manifest until the actuators have accumulated over 6,000 flight hours, depending on aircraft utilization. The 24-month compliance time specified in paragraph (g)(3) of this AD is necessary to ensure that actuators that are in the range of 6,000 flight hours are inspected. We have not revised this AD in this regard.
Comair also requests that we allow the replacement of the inboard pinion shaft seals, P/Ns 853SC177-1/-2, as a method of compliance with Part C of the service bulletin. Comair notes that it has had and will have many actuators removed in accordance with Maintenance Requirement Manual, Certification Maintenance Requirements (CMR) Task C27-50-111-10, Functional Check of the Inboard Flap Actuator Torque Limiter. Comair states that actuators removed to comply with this CMR task should not also be subject to Part C of the service bulletin because the CMR task is an example of an event when the pinion seals must be replaced.
We agree with the commenter that replacement actuators with inboard pinion shaft seals, P/Ns 853SC177-1/-2, are not subject to the actions in Part C of the service bulletin. As specified in paragraph 1.D., “Compliance,” of the service bulletin, Part C only applies to certain actuators with more than 2,000 flight hours since new or since repair where it can be shown that the inboard pinion shaft seals P/Ns 853SC177-1/-2 were replaced. As stated previously, we have revised paragraph (g)(3) of this AD to clarify the actuators subject to the actions in that paragraph. If a repair was done and the inboard pinion shaft seals were replaced, the actuator would not be subject to Part C of the service bulletin unless the part had over 2,000 flight hours since the seal replacement.
Comair also requests that we add to the AMOC paragraph of this AD a statement that AMOCs approved previously according to AD 2007-17-07 are approved as AMOCs for the corresponding provisions of this AD.
We agree that AMOCs approved previously in accordance with AD 2007-17-07 are acceptable for compliance with the corresponding provisions of this AD. We have revised paragraph (h)(1) of this AD accordingly.
Larry Nelson, a private citizen, states that the training requirements in AD 2007-17-07 and paragraphs (f)(3) and (g)(1) of the NPRM do not meet the requirements of sections 39.3 and 39.5 of the Federal Aviation Regulations (14 CFR 39.3 and 14 CFR 39.5). The commenter notes that section 14 CFR 39.3 states that rules “* * * apply to the following products: Aircraft, aircraft engines, propellers, and appliances.” The commenter concludes that the training specified in the NPRM has nothing to do with the aircraft.
The commenter adds that paragraphs (a) and (b) of section 14 CFR 39.5 state, “An unsafe condition exists in the product;” and “the condition is likely to exist or develop in other products of the same type design.” The commenter states that the perceived unsafe condition, although part of the aircraft, actually applies to the specific parts mentioned in paragraphs (f)(1), (g)(2), and (g)(3) of the NPRM (flap flex shafts and flap actuators).
We infer that the commenter requests we remove the requirements for training and for doing any actions related to parts (and not the airplane itself) from the NPRM. We disagree. Section 14 CFR 39.11 describes the types of actions that ADs can require, including “conditions and limitations you must comply with.” In section 14 CFR 39.11, we intended to retain broad authority to require whatever types of corrective actions are
In this AD, we have found that one of the factors contributing to the identified unsafe condition is lack of training in operating an airplane when flap failure occurs in-flight (such as in freezing conditions). Due to the unsafe condition, we determined that these training requirements, in conjunction with the other requirements of this AD, are necessary to safely operate the airplane; and you must comply with them if you are an operator.
As for the commenter's statement that the unsafe condition only applies to the part and not the airplane itself, we do not agree. We routinely issue ADs against the product that has a part installed that we have found to be unsafe. The AD applies to the product, and not the parts themselves, because parts that are not installed on operated products do not create an unsafe condition. As stated above, we determined that inadequate training and operating limitations also contributed to the unsafe condition of this AD. We have not revised the AD in this regard.
Larry Nelson also requests clarification on how to provide compliance documentation for the operations/dispatch and flight crewmembers' training specified in paragraph (f)(3) of this AD. The commenter states that section 39.11 of the Federal Aviation Regulations (14 CFR 39.11) specifies, “Airworthiness directives specify inspections you must carry out, conditions and limitations you must comply with, and any actions you must take to resolve an unsafe condition.” The commenter states that this requirement would be met until one or more parts are changed. The commenter notes that since this NPRM is written against the airplane and does not include the specific parts addressed in the AD, NPRM, and service bulletin, it would therefore be difficult to manage.
We find that clarification is necessary. As stated in paragraph (f)(3) of this AD, the training on the information in paragraph (f)(2) of this AD must be approved by the Principal Operations Inspector (POI). The method for documenting compliance should be included in the training approved by the POI. However, the method in which operators implement training in their operations and the method in which operators document compliance may vary greatly. Therefore, we have not included that information in this AD. We have not revised this AD in this regard.
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.
We estimate that this AD will affect 684 products of U.S. registry. We also estimate that it will take about 27 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,477,440, or $2,160 per product.
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 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 this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
You may examine the AD docket on the Internet at
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective February 15, 2008.
(b) This AD supersedes AD 2007-17-07, Amendment 39-15165.
(c) This AD applies to Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category, serial numbers 7003 through 7990 and 8000 and subsequent.
(d) Air Transport Association (ATA) of America Code 27: Flight Controls.
(e) The mandatory continuing airworthiness information (MCAI) states:
The Bombardier CL-600-2B19 airplanes have had a history of flap failures at various positions for several years. Flap failure may result in a significant increase in required landing distances and higher fuel consumption than planned during a diversion. * * *
(f) Unless already done, do the following actions.
(1) Part I. Airplane Flight Manual (AFM) Change: Within 30 days after September 5, 2007 (the effective date of AD 2007-17-07), revise the Canadair Regional Jet Airplane Flight Manual CSP A-012, by incorporating the information in Canadair Regional Jet Temporary Revision (TR) RJ/165, dated July 6, 2007, into the AFM.
The actions required by paragraph (f)(1) of this AD may be done by inserting a copy of Canadair Regional Jet TR RJ/165, dated July 6, 2007, into the Canadair Regional Jet Airplane Flight Manual CSP A-012. When this TR has been included in general revisions of the AFM, the general revisions may be inserted in the AFM.
(2) Part II. Operational Procedures: Within 30 days after September 5, 2007, revise the Limitations Section of the Canadair Regional Jet Airplane Flight Manual CSP A-012, to include the following statement. This may be done by inserting a copy of paragraph (f)(2) of this AD in the AFM.
Upon arrival at the destination airport, an approach shall not be commenced, nor shall the flaps be extended beyond the 0 degree position, unless one of the following conditions exists:
a. When conducting a precision approach, the reported visibility (or RVR) is confirmed to be at or above the visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this visibility until after landing; or
b. When conducting a non-precision approach, the reported ceiling and visibility (or RVR) are confirmed to be at or above the ceiling and visibility associated with the landing minima for the approach in use, and can be reasonably expected to remain at or above this ceiling and visibility until after landing; or
c. An emergency or abnormal situation occurs that requires landing at the nearest suitable airport; or
d. The fuel remaining is sufficient to conduct the approach, execute a missed approach, divert to a suitable airport with the flaps extended to the landing position, conduct an approach at the airport and land with 1000 lb (454 kg) of fuel remaining.
The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended missed approach, climb, diversion and approach fuel consumption.
Terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route.
For the purpose of this AD, a “suitable airport” is an airport that has at least one usable runway, served by an instrument approach if operating under Instrument Flight Rules (IFR), and the airport is equipped as per the applicable regulations and standards for marking and lighting. The existing and forecast weather for this airport shall be at or above landing minima for the approach in use.
When a takeoff alternate is filed, terrain and weather must allow a minimum flight altitude not exceeding 15,000 feet along the diversion route to that alternate, or other suitable airport. The fuel at departure shall be sufficient to divert to the takeoff alternate or other suitable airport with the flaps extended to the takeoff position, conduct and approach and land with 1000 lb (454 kg) of fuel remaining.
The fuel burn factor (as per AFM TR/165) shall be applied to the normal fuel consumption for calculation of the flaps extended, climb, diversion and approach fuel consumption.
Operations where all useable runways at the destination and alternate airports are forecast to be wet or contaminated (as defined in the AFM) are prohibited during the cold weather season (December to March inclusive in the northern hemisphere) unless one of the following conditions exists:
a. The flap actuators have been verified serviceable in accordance with Part C (Low Temperature Torque Test of the Flap Actuators) of SB 601R-27-150, July 12, 2007, or
b. The flight is conducted at a cruise altitude where the SAT is −60 °C or warmer. If the SAT in flight is colder than −60 °C, descent to warmer air shall be initiated within 10 minutes, or
c. The Landing Distance Available on a useable runway at the destination airport is at least equal to the actual landing distance required for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions, or
d. The Landing Distance Available on a useable runway at the filed alternate airport, or other suitable airport is at least equal to the actual landing distance for flaps zero. This distance shall be based on Bombardier performance data, and shall take into account forecast weather and anticipated runway conditions.
If the forecast destination weather is less than 200 feet above DH or MDA, or less than 1 mile (1500 meters) above the authorized landing visibility (or equivalent RVR), as applied to the usable runway at the destination airport, condition 3.a., 3.b., or 3.d. above must be satisfied.
When conducting No Alternate IFR (NAIFR) operations, condition 3.a., 3.b., or 3.c. above must be satisfied.”
(3) Part III. Training: As of 30 days after September 5, 2007, no affected airplane may be operated unless the flight crewmembers of that airplane and the operational control/dispatch personnel for that airplane have received training that is acceptable to the Principal Operations Inspector (POI) on the operational procedures required by paragraph (f)(2) of this AD.
(4) Part IV. Maintenance Actions: Within 120 days after September 5, 2007, do the cleaning and lubrication of the flexible shafts, installation of metallic seals in the flexible drive-shafts, and all applicable related investigative and corrective actions by doing all the applicable actions specified in “PART A” of the Accomplishment Instructions of Bombardier Service Bulletin
(g) Unless already done, do the following actions.
(1) As of November 30, 2008, no affected airplane may be operated unless the flight crewmembers of that airplane have received simulator training on reduced or zero flap landing that is acceptable to the POI. Thereafter, this training must be done during the normal simulator training cycle, at intervals not to exceed 12 months.
(2) Within 24 months or 4,000 flight hours after the effective date of this AD, whichever occurs first: Do a pressure test of the flexible drive-shaft, and do all applicable corrective actions, by doing all the applicable actions specified in “PART B” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. Do all applicable corrective actions before further flight.
(3) For airplanes having flap actuators, part numbers (P/Ns) 852D100-19/-21, 853D100-19/-20, and 854D100-19/-20, specified in paragraphs (g)(3)(i) and (g)(3)(ii) of this AD: Within 24 months after the effective date of this AD, do a low temperature torque test of the flap actuators, and do all applicable corrective actions, by doing all the applicable actions specified in “PART C” of the Accomplishment Instructions of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. Do all applicable corrective actions before further flight.
(i) Airplanes having actuators that have not been repaired and that have accumulated more than 2,000 flight hours since new.
(ii) Airplanes having actuators that have been repaired and that have accumulated more than 2,000 flight hours on the inboard pinion shaft seals, P/Ns 853SC177-1/-2.
This AD differs from the MCAI and/or service information as follows:
(1) The maintenance tasks specified in the first row of the table in “Part IV. Maintenance Actions” of the MCAI do not specify a corrective action if an actuator is not serviceable (
(2) Although paragraph 2. of “Part III. Training” of the MCAI recommends accomplishing the initial training within 1 year, this AD requires accomplishing the training before November 30, 2008, in order to ensure that the actions are completed prior to the onset of cold weather operations.
(3) The MCAI does not specify which actuators are applicable to the actions specified in “Part C” of Bombardier Service Bulletin 601R-27-150, dated July 12, 2007. This AD requires that “Part C” of the service bulletin only be done for the actuators specified in paragraph (g)(3) of this AD.
(h) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Dan Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228-7305; fax (516) 794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector (PI) in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. AMOCs approved previously in accordance with AD 2007-17-07 are approved as AMOCs for the corresponding provisions of this AD.
(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(i) Refer to MCAI Canadian Airworthiness Directive CF-2007-10, dated July 18, 2007; Bombardier Service Bulletin 601R-27-150, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; for related information.
(j) You must use Bombardier Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012; as applicable, to do the actions required by this AD, unless the AD specifies otherwise.
(1) The Director of the Federal Register previously approved the incorporation by reference of Bombardier Service Bulletin 601R-27-150, including Appendix A, dated July 12, 2007; and Canadair Regional Jet Temporary Revision RJ/165, dated July 6, 2007, to the Canadair Regional Jet Airplane Flight Manual CSP A-012 on September 5, 2007 (72 FR 46555, August 21, 2007).
(2) For service information identified in this AD, contact Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada.
(3) You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain oxygen reserve cylinders. This AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country with which we have a bilateral agreement to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as:
This Airworthiness Directive (AD) is issued following information concerning the risk of high-pressure oxygen cylinder tearing with sudden emptying. These cylinders are used for missions at high altitudes or to ensure respiratory air for passengers feeling sick.
It has been demonstrated that the material characteristics of the Aluminum Alloy 5283 (AA5283) from which the cylinders are manufactured deteriorate in the course of time and may possibly lead these oxygen cylinders to tear and abruptly vent aboard an aircraft.
This AD becomes effective January 28, 2008.
We must receive comments on this AD by March 11, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Uday Garadi, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Worth, Texas 76193-0110, telephone (817) 222-5123, fax (817) 222-5961.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
The European Aviation Safety Agency (EASA), which is the technical agent for the member states of the European community, has issued EASA AD No. 2006-0286R1, dated March 22, 2007, to correct an unsafe condition for the specified products.
The MCAI states:
This Airworthiness Directive (AD) is issued following information concerning the risk of high-pressure oxygen cylinder tearing with sudden emptying. These cylinders are used for missions at high altitudes or to ensure respiratory air for passengers feeling sick.
It has been demonstrated that the material characteristics of the Aluminum Alloy 5283 (AA5283) from which the cylinders are manufactured deteriorate in the course of time and may possibly lead these oxygen cylinders to tear and abruptly vent aboard an aircraft.
You may obtain further information by examining the MCAI and the service information in the AD docket.
Intertechnique has issued Service Bulletin No. GLD/GLF-35-150, dated September 20, 2006 and Eurocopter has issued Alert Service Bulletin Nos. 05.00.54 for the Model AS350B3 helicopters and 05.42 for the Model SA 315B helicopters, both dated August 16, 2006. The actions described in the MCAI are intended to correct the same unsafe condition identified in the service information.
The Model Airbus 300 series; Pilatus P-6; Dassault Aviation Mystere-Falcon 20; Falcon 50, Falcon 200, and Falcon 900 airplanes; Eurocopter AS350 and Eurocopter SA315 helicopters; and other aircraft may be equipped with these oxygen reserve cylinders, which are not approved by the Department of Transportation (DOT). Without the DOT approval, these oxygen reserve cylinders are not eligible for use in aircraft operating in the United States. Pursuant to our bilateral agreement with France, the State of Design, we have been notified of the unsafe condition described in the MCAI and service information. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on aircraft of various type designs.
We have reviewed the MCAI and related service information and, in general, agree with their substance. However, we have made the following changes:
• The MCAI requires removal of the affected oxygen cylinders at specific time intervals; however, this AD requires removal before further flight.
• The MCAI requires certain procedures to be used for emptying the cylinders as well as certain action for cylinders held as spares.
These actions are beyond the scope of the action needed to correct this unsafe condition and are not included in this AD. These differences are highlighted in the “Differences Between the FAA AD and the MCAI” section of this AD.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the risk of oxygen cylinders exploding on board an aircraft and creating a fire hazard. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD will affect about 468 aircraft of U.S. registry. We also estimate that it will take about
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 “
We 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 this AD:
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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective January 28, 2008.
(b) None.
(c) This AD applies to Intertechnique (F5341), aluminum alloy AA5283, oxygen cylinders manufactured by Societe Metallurgique de Gerzat SAS with GLD series, GLF series, PC2300 or SLF300 part numbers, installed in any aircraft certificated in any category. These oxygen reserve cylinders are installed on but not limited to Model Airbus 300 series; Pilatus P-6; Dassault Aviation Mystere-Falcon 20, Falcon 50, Falcon 200, and Falcon 900 airplanes; and Eurocopter AS350 and Eurocopter SA315 helicopters.
(d) The mandatory continued airworthiness information (MCAI) states:
This Airworthiness Directive (AD) is issued following information concerning the risk of high-pressure oxygen cylinder tearing with sudden emptying. These cylinders are used for missions at high altitudes or to ensure respiratory air for passengers feeling sick.
It has been demonstrated that the material characteristics of the Aluminum Alloy 5283 (AA5283) from which the cylinders are manufactured deteriorate in the course of time and may possibly lead these oxygen cylinders to tear and abruptly vent aboard an aircraft.
(e) Unless already done, remove any affected oxygen reserve cylinder before further flight.
(f) This AD differs from the MCAI as follows:
(1) The MCAI requires removal of the affected oxygen cylinders at specific time intervals; however, this AD requires removal before further flight.
(2) The MCAI requires certain procedures to be used for emptying the cylinders as well as certain action for cylinders held as spares. These actions are beyond the scope of the action needed to correct this unsafe condition and are not included in this AD.
(g) Air Transport Association of America (ATA) Code 3530: Portable Oxygen System.
(h) The following provisions also apply to this AD:
(1)
(2)
(3)
(i) Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive No. 2006-0286R1, dated March 22, 2007; Intertechnique Service Bulletin No. GLD/GLF-35-150, dated September 20, 2006; and Eurocopter Alert Service Bulletin Nos. 05.00.54 for the Model AS350B3 and 05.42 for the Model SA315B, both dated August 16, 2006, contain related information.
Social Security Administration (SSA).
Final rules.
We are revising our title II regulations and adding title XVI regulations on personal conferences when waiver of recovery of an overpayment cannot be approved. These final rules allow for the conferences to be conducted face-to-face, by telephone, or by video teleconference in these circumstances.
These final rules are effective February 11, 2008.
Robin Strauss, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-7944, for information about this
The electronic file of this document is available on the date of publication in the
Our existing regulations at § 404.506 state that we will waive recovery of a title II overpayment if the individual was without fault in causing the overpayment and if recovery would defeat the purpose of title II of the Social Security Act or be against equity and good conscience. Section 404.506 further states that, if we cannot approve waiver after reviewing the information the individual has given to support his or her contention that the recovery of the overpayment should be waived, we will offer the individual a personal conference. The personal conference policy was established so that the decisionmaker would have the opportunity to assess an individual's contention through personal, versus written, contact. Our existing regulations at § 416.550 state that we will waive recovery of a title XVI overpayment if the individual was without fault in causing the overpayment and if recovery would either defeat the purpose of title XVI, or be against equity and good conscience, or impede the efficient administration of title XVI. There is currently no title XVI regulation regarding personal conferences.
Section 404.506(e)(1) states that the individual is given the opportunity to “appear personally” at the personal conference. Current regulations do not further specify the method in which this appearance may be made. Our longstanding policy contained in Social Security Ruling (SSR) 94-4p, which implemented the decisions in
In order to fulfill our stewardship responsibilities to the Social Security trust fund, we must employ methods that will simplify our personal conference procedures and use our resources most efficiently. We should be using all available technology when we conduct personal conferences. Therefore, we are revising the regulations to allow for personal conferences to be conducted face-to-face at a place we designate (usually in the field office), by telephone, or by video teleconference. We will give the choice to the individual; the individual will still be provided the opportunity to appear face-to-face by choosing to come to us for the personal conference, or may choose to participate by telephone or video teleconference. If the individual elects to conduct the personal conference by video teleconference, the individual will designate the location for his or her end of the video teleconference. Any individual who is interested in conducting the personal conference by video teleconference can contact us for additional information and assistance with this process. Because we are offering claimants two new and convenient ways to participate in a personal conference—in addition to the face-to-face conferences at our field offices we currently offer—we believe the need for our personnel to make costly home visits will significantly decrease. Therefore, we will consider conducting face-to-face conferences at locations other than SSA field offices only on a case-by-case basis, and only in those limited circumstances where: (a) a claimant has exhausted all other means of obtaining a personal conference, and (b) conducting a personal conference by any other means would be so inadequate, owing to a claimant's physical or mental condition, as to infringe upon the person's right to a hearing. This process is in no way meant to circumscribe an individual's right to reasonable accommodation or to relieve SSA of our responsibility to provide such accommodation in accordance with 29 U.S.C. 794.
These final rules will not affect the individual's right to review the claims file, have a representative present for the proceedings, cross-examine witnesses, or submit documentary evidence. Those provisions will not change. For example, claimants who choose to conduct the personal conference via telephone or video teleconference will be given an opportunity to submit documentary evidence by mail or fax prior to the scheduled conference. If necessary, the conference could be rescheduled to allow claimants time to do this. In conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference, we will be fulfilling our stewardship responsibilities while offering an additional convenience to the individual and continuing to protect the individual's right to present his or her contention that he or she meets the requirements for waiver of recovery of an overpayment. The decisionmaker will still be able to properly assess the person's contentions regarding fault under these new procedures.
We already successfully conduct some hearings by telephone and by video teleconference. For example, the administrative review of an initial determination for Medicare Part D subsidies is conducted either by a telephone hearing or a case review. See § 418.3625. Additionally, some administrative hearings to review claims under title II (including administrative law judge review of denial of waiver based on a personal conference), and other claims under title XVI are now conducted via video teleconferencing. See §§ 404.936 and 416.1436. Our experience in these contexts has demonstrated that these procedures adequately protect a claimant's due process rights.
We are changing the regulations in 20 CFR parts 404 and 416 to reflect the methods for conducting personal conferences when waiver of recovery of an overpayment cannot be approved as follows:
• We are changing the regulations at § 404.506 to reflect the various methods we can use to conduct the personal conference. These methods are: face-to-face in a location we designate (usually in the field office), via telephone, or via video teleconference.
• Currently, part 416 has no reference to personal conferences when waiver of recovery of the overpayment cannot be approved. We are adding a new section that is similar to the regulations at § 404.506. New § 416.557 includes the various methods we can use to conduct the personal conference and describes the individual's rights and
Since SSR 94-4p only provides for a pre-recoupment hearing that is conducted face-to-face before waiver of recovery of an overpayment can be denied, the changes in §§ 404.506 and 416.557 expand that policy. Therefore, we are also publishing a notice rescinding SSR 94-4p concurrently with the effective date of these final rules on the same day we publish these final rules.
On March 5, 2007, we published proposed rules in the
In addition to the changes already discussed above, we have made minor, non-substantive changes for clarification purposes only.
We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they were reviewed by OMB. We have also determined that these final rules meet the plain language requirement of Executive Order 12866, as amended.
We certify that these final rules would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.
These final rules contain information collection burdens in §§ 416.557(c)(3) and 416.557(d)(8) that require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). As required by the PRA, we have submitted a clearance request to OMB for approval of these sections. (As requested by OMB, we also included associated sections §§ 404.506(e)(3) and 404.506(f)(8), which deal with personal conferences but are not included in the text of the regulation). We will publish the OMB number and expiration date upon approval.
As required by the PRA, we published a notice of proposed rulemaking on March 5, 2007 at 72 FR 9709, in which we solicited comments under the PRA on the burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility and clarity; and on ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. No public comments were submitted relating to any of these issues.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance; Reporting and recordkeeping requirements, Social Security.
Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income.
Secs. 204, 205(a), 702(a)(5), and 1147 of the Social Security Act (42 U.S.C. 404, 405(a), 902(a)(5), and 1320b-17); 31 U.S.C. 3720A.
(c) * * * We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference.
Secs. 702(a)(5), 1147, 1601, 1602, 1611(c) and (e), and 1631(a)-(d) and (g) of the Social Security Act (42 U.S.C. 902(a)(5), 1320b-17, 1381, 1381a, 1382(c) and (e), and 1383(a)-(d) and (g)); 31 U.S.C. 3720A.
(a) If waiver cannot be approved (i.e., the requirements in § 416.550 (a) and (b) are not met), the individual is notified in writing and given the dates, times and place of the file review and personal conference; the procedure for reviewing the claims file prior to the personal conference; the procedure for seeking a change in the scheduled date, time and/or place; and all other information necessary to fully inform the individual about the personal conference. The file review is always scheduled at least 5 days before the personal conference. We will offer to the individual the option of conducting the personal conference face-to-face at a place we designate, by telephone, or by video teleconference. The notice will advise the individual of the date and time of the personal conference.
(b) At the file review, the individual and the individual's representative have the right to review the claims file and applicable law and regulations with the decisionmaker or another of our representatives who is prepared to answer questions. We will provide copies of material related to the overpayment and/or waiver from the claims file or pertinent sections of the law or regulations that are requested by the individual or the individual's representative.
(c) At the personal conference, the individual is given the opportunity to:
(1) Appear personally, testify, cross-examine any witnesses, and make arguments;
(2) Be represented by an attorney or other representative (see § 416.1500), although the individual must be present at the conference; and
(3) Submit documents for consideration by the decisionmaker.
(d) At the personal conference, the decisionmaker:
(1) Tells the individual that the decisionmaker was not previously involved in the issue under review, that the waiver decision is solely the decisionmaker's, and that the waiver decision is based only on the evidence or information presented or reviewed at the conference;
(2) Ascertains the role and identity of everyone present;
(3) Indicates whether or not the individual reviewed the claims file;
(4) Explains the provisions of law and regulations applicable to the issue;
(5) Briefly summarizes the evidence already in file which will be considered;
(6) Ascertains from the individual whether the information presented is correct and whether he/she fully understands it;
(7) Allows the individual and the individual's representative, if any, to present the individual's case;
(8) Secures updated financial information and verification, if necessary;
(9) Allows each witness to present information and allows the individual and the individual's representative to question each witness;
(10) Ascertains whether there is any further evidence to be presented;
(11) Reminds the individual of any evidence promised by the individual which has not been presented;
(12) Lets the individual and the individual's representative, if any, present any proposed summary or closing statement;
(13) Explains that a decision will be made and the individual will be notified in writing; and
(14) Explains repayment options and further appeal rights in the event the decision is adverse to the individual.
(e) SSA issues a written decision to the individual (and his or her representative, if any) specifying the findings of fact and conclusions in support of the decision to approve or deny waiver and advising of the individual's right to appeal the decision. If waiver is denied, adjustment or recovery of the overpayment begins even if the individual appeals.
(f) If it appears that the waiver cannot be approved, and the individual declines a personal conference or fails to appear for a second scheduled personal conference, a decision regarding the waiver will be made based on the written evidence of record. Reconsideration is the next step in the appeals process.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Technical correction.
This document makes a correction to HUD's November 1, 2006, final rule establishing regulations for the Good Neighbor Next Door (GNND) Sales Program. It has come to HUD's attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The purpose of this document is to make the necessary correction.
Ivery W. Himes, Director, Asset Management and Disposition Division, Office of Single Family Asset Management, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9172, Washington, DC 20410-8000; telephone (202) 708-1672 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
On November 1, 2006 (71 FR 64422), HUD published a final rule establishing regulations for the Good Neighbor Next Door (GNND) Sales Program. The GNND Sales Program seeks to improve the quality of life in distressed urban communities by encouraging law enforcement officers, teachers, and firefighters/emergency medical technicians, whose daily responsibilities and duties reflect a high level of public service commitment and represent a nexus to the needs of the community, to purchase and live in homes in these communities. The November 1, 2006, final rule, codified the GNND Sales Program regulations at 24 CFR part 291, subpart F.
It has come to HUD's attention that the regulatory text of the November 1, 2006, final rule contained a typographical error regarding properties available for sale under the GNND Sales Program. The preamble to the final rule correctly makes clear that occupied properties, properties located in Asset Control Areas, and properties that HUD determines will be sold through an alternative sales method will not be made available for purchase under the GNND Sales Program (
Under the GNND Sales Program, single-unit properties acquired by HUD located in HUD-designated revitalization areas (except occupied properties), those located in Asset Control Areas, or those that HUD has determined will be sold through an alternative sales method will be made available to interested law enforcement officers, teachers, and firefighters/emergency medical technicians prior to listing the properties for sale to other purchasers.
Rather than ending after the phrase “occupied properties,” the parenthetical should close at the end of the list of excluded properties after the phrase “those that HUD has determined will be sold through an alternative sales method.” The purpose of this document is to make the necessary correction to § 291.510(b).
Community facilities, Conflict of interests, Homeless, Lead poisoning, Low and moderate income housing, Mortgages, Reporting and recordkeeping requirements, Surplus government property.
12 U.S.C. 1701
(b)
Financial Crimes Enforcement Network, Department of the Treasury.
Final rule.
The Financial Crimes Enforcement Network (“FinCEN”) is amending the provision in its regulations that defers, for certain categories of financial institutions, the application of the anti-money laundering program requirements in section 352 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (“USA PATRIOT”) Act of 2001. Two of the categories of financial institutions specifically exempted from having to establish an anti-money laundering program subsequently have been required by regulation to establish such programs, and this rulemaking will amend the regulations to reflect those changes.
Regulatory Policy and Programs Division (FinCEN), (800) 949-2732 (toll-free).
On October 26, 2001, the President signed into law the USA PATRIOT Act (Pub. L. 107-56). Title III of the USA PATRIOT Act makes a number of amendments to the anti-money laundering provisions of the Bank Secrecy Act (“BSA”), which is codified in subchapter II of chapter 53 of title 31, United States Code. These amendments are intended to make it easier to prevent, detect, and prosecute money laundering and the financing of terrorism. Section 352(a) of the USA PATRIOT Act, amended section 5318(h) of the BSA, effective April 24, 2002, to require every financial institution to establish an anti-money laundering program that includes, at a minimum: (i) The development of internal policies, procedures, and controls; (ii) the designation of a compliance officer; (iii) an ongoing employee training program; and (iv) an independent audit function to test programs.
The definition of “financial institution” in sections 5312(a)(2) and (c)(1) of the BSA is broad. It includes categories of institutions that were already subject to some federal anti-money laundering regulations at the time the USA PATRIOT Act was passed, such as banks, savings associations, credit unions, and money services businesses (such as money transmitters and currency dealers or exchangers). The definition also includes: Registered securities broker-dealers; futures commission merchants; dealers in precious metals, stones, or jewels; pawnbrokers; loan or finance companies; trust companies; private bankers; insurance companies; travel agencies; telegraph companies; sellers of vehicles, including automobiles, airplanes, and boats; persons engaged in real estate closings and settlements; investment bankers; investment companies; and commodity pool operators and commodity trading advisors that are registered or require to register under the Commodity Exchange Act (7 U.S.C. 1 et seq.). Section 352 of the USA PATRIOT Act requires
Section 5318(h)(2) of the BSA, however, also grants the Secretary of the Treasury, and by extension his delegate FinCEN, the authority to exempt certain financial institutions from the requirement to institute anti-money laundering programs. In April 2002, FinCEN issued a series of interim final rules implementing section 352 of the USA PATRIOT Act.
In the years since the Temporary Exemption Rule was published, FinCEN has promulgated a number of rules that require two previously exempted categories of financial institutions (dealers in precious metals, stones, or jewels,
Under the Administrative Procedure Act (“APA”), notice of a proposed rulemaking is not required when the agency, for good cause, finds “that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”
In addition, publication of a substantive rule not less than 30 days before its effective date is required by the APA except as otherwise provided by the agency for good cause.
Because no notice of proposed rulemaking is required for this final rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.
This final rule is not a “significant regulatory action” as defined in Executive Order 12866. Accordingly, a regulatory assessment is not required.
Banks and banking, Brokers, Counter money laundering, Counter-terrorism, Currency, Foreign banking, Reporting and recordkeeping requirements.
12 U.S.C. 1829b and 1951-1959; 31 U.S.C. 5311-5314 and 5316-5332; title III, secs. 311, 312, 313, 314, 319, 326, 352, Pub. L. 107-56, 115 Stat. 307.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes by rule that there is no need for a tolerance or tolerance exemption under the Federal Food Drug and Cosmetic Act (FFDCA) for the use of the fungicide thiabendazole as a seed treatment on dry peas. This determination is based on EPA's finding that any residues that remain in food from this use will be both non-detectable and below the level of regulatory concern.
This regulation is effective January 11, 2008. Objections and requests for hearings must be received on or before March 11, 2008, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2007-0546. To access the electronic docket, go to
Susan Stanton, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5218; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:
• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.
• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.
• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.
• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.
This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of
In addition to accessing an electronic copy of this
Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0546 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before March 11, 2008.
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in
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•
•
In the
Based upon the rationale and findings set forth in the proposed rule, the use of thiabendazole as a seed treatment on dry peas (including field pea, pigeon pea, chickpea or lentil) is designated as below the threshold of regulatory concern and thus as not requiring a tolerance or a tolerance exemption under FFDCA. The use is identified as such under 40 CFR 180.2010 (Threshold of regulation determinations).
Designation of this use as below the level of regulatory concern does not legalize any detectable residues of thiabendazole on food. It does mean that, despite labeling for this use on a food or feed crop, it may be registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136
Adequate analytical methodology (High Pressure Liquid Chromatography/Fluorescence Detector (HPLC/FLD) method) is available to detect residues of thiabendazole in/on dry peas. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address:
The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
In addition, pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
The following pesticide chemical uses on food or feed, or food or feed crops, do not need a tolerance or exemption from the requirement of a tolerance, and may be registered under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) amends the EPA Acquisition Regulation (EPAAR) to add policy, procedures, and contract clauses for the use of award term incentives. This rule makes two administrative changes to the EPAAR. One change is to reflect the Civilian Board of Contract Appeals as EPA's new forum for appeals under the Contract Disputes Act of 1978. The other change corrects a numbering error in Subpart 1516.4.
This final rule is effective on February 11, 2008.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OARM-2003-0001. All documents in the docket are listed on the
Marilyn E. Chambers, U.S. EPA, Office of Acquisition Management, Mail Code (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-4398; fax number: (202) 565-2474; e-mail address:
EPA published a proposed rule in the
This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).
The Paperwork Reduction Act does not apply because this rule does not contain information requirements that require the approval of OMB under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impact of today's rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since award term incentives will be available equally to large and small entities, this rule will not have a significant economic impact on small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local, and Tribal governments, and the private sector. This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks.
Executive Order 13132, entitled, “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule amends the EPAAR to provide guidance on the use of award term incentives and make other administrative changes. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.”
This rule does not have tribal implications. It does not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law, or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This rule does not involve technical standards. Therefore, EPA is not considering use of any voluntary consensus standards.
This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this rule does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule does not involve human health or environmental effects.
The Congressional Review Act, 5 U.S.C. 801,
Government procurement.
The provisions of this regulation are issued under 5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.
(a) Award term incentives enable a contractor to become eligible for additional periods of performance under a current contract by achieving prescribed performance measures under that contract.
(b) Award term incentives are designed to motivate contractors to superior performance. Accordingly, the prescribed performance measures, i.e., acceptable quality levels (AQL) which must be achieved by a contractor to become eligible for an award term typically will be in excess of the AQLs necessary for Government acceptance of contract deliverables.
(c) The Award Term Incentive Plan sets forth the evaluation process, including the evaluation criteria and performance measures, and serves as the basis for award term decisions. The Award Term Incentive Plan may be unilaterally revised by the Government.
(d) Award term incentives may be used in conjunction with options. The Federal Acquisition Regulation does not prescribe a level of performance for the exercise of options, as contrasted with award term incentives, which should require superior performance as discussed in paragraph (b) of this subsection. Award term incentive periods will follow any option periods.
(e)(1) The Government has the unilateral right not to grant or to cancel award term incentive periods and the associated award term incentive plans if—
(i) The Contracting Officer has failed to initiate an award term incentive period, regardless of whether the contractor's performance permitted the Contracting Officer to consider initiating the award term incentive period; or
(ii) The contractor has failed to achieve the performance measures for the corresponding evaluation period; or
(iii) The Government notifies the contractor in writing it does not have funds available for the award term; or
(iv) The Government no longer has a need for the award term incentive period at or before the time an award term incentive period is to commence.
(2) When an award term incentive period is not granted or cancelled, any—
(i) Prior award term incentive periods for which the contractor remains otherwise eligible are unaffected.
(ii) Subsequent award term incentive periods are thereby also cancelled.
(f) Award term incentives may be appropriate for any type of service contract.
Acceptable quality level (AQL) as used in this subpart means the minimum percent of deliverables which are compliant with a given performance standard that would permit a contractor to become eligible for an award term incentive. Because the performance necessary for eligibility for the award term incentive may be in excess of that
(c) The Contracting Officer shall insert the clauses at 1552.216-77, Award Term Incentive, 1552.216-78, Award Term Incentive Plan, and 1552.216-79 Award Term Availability of Funds in solicitations and contracts when award term incentives are contemplated. The clauses at 1552.216-77 and 1552.216-78 may be used on substantially the same basis.
(d) If the Contracting Officer wishes to use the ratings set forth in the National Institutes of Health (NIH) Contractor Performance System (CPS) on the contract at hand as the basis for contractor eligibility for an award term incentive, the Contracting Officer shall insert the clause at 1552.216-78 with its Alternate I.
5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.
The Civilian Board of Contract Appeals (CBCA) will hear appeals from final decisions of EPA Contracting Officers issued pursuant to the Contracts Disputes Act. The rules and regulations of the CBCA appear in 48 CFR Chapter 61.
5 U.S.C. 301; Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c); and 41 U.S.C. 418b.
As prescribed in 1515.406(c), insert a clause substantially the same as follows:
(a) General. This contract may be extended as set forth in paragraph (b) based on overall contractor performance as evaluated in accordance with the Clause entitled “Award Term Incentive Plan,” provided the Agency has a need for the effort at or before the time an award term is to commence, and if the contractor receives notice of the availability of funding for an award term period pursuant to the “Award Term Availability of Funds” clause. The Contracting Officer is responsible for the overall award term evaluation and award term decision. The Contracting Officer will unilaterally decide whether or not the contractor is eligible for an award term extension, and in conjunction with the Contracting Officer's Representative, will determine the need for continued performance and funding availability.
(b) Period of performance. Provided the contractor has achieved the performance measures, e.g., acceptable quality levels, set forth in the clause “Award Term Incentive Plan,” the Contracting Officer may extend the contract by exercising ____ [insert the total award term incentive periods] additional award term incentive period(s) of ____ [insert the award term incentive period] months each. The total maximum period of performance under this contract, if the Government exercises any option periods and all award term incentive periods is ____ [insert the total of the base period, option periods (if any), and award term incentive periods] years.
(c) Right not to grant or cancel the award term incentive. (1) The Government has the unilateral right not to grant or to cancel award term incentive periods and the associated award term incentive plans if—
(i) The Contracting Officer has failed to initiate an award term incentive period, regardless of whether the contractor's performance permitted the Contracting Officer to consider initiating the award term incentive period; or
(ii) The contractor has failed to achieve the performance measures for the corresponding evaluation period; or
(iii) The Government notifies the contractor in writing it does not have funds available for the award term incentive periods; or
(iv) The Government no longer has a need for the award term incentive period at or before the time an award term incentive period is to commence.
(2) When an award term incentive period is not granted or cancelled, any—
(i) Prior award term incentive periods for which the contractor remains otherwise eligible are unaffected.
(ii) Subsequent award term incentive periods are thereby also cancelled.
(d) Cancellation of an award term incentive period that has not yet commenced for any of the reasons set forth in paragraph (c) of this clause shall not be considered either a termination for convenience or termination for default, and shall not entitle the contractor to any termination settlement or any other compensation. If the award term incentive is cancelled, a unilateral modification will cite this clause as the authority.
(e) Award term incentive administration. The award term incentive evaluation(s) will be completed in accordance with the schedule in the Award Term Incentive Plan. The contractor will be notified of the results and their eligibility to be considered for the respective award term incentive no later than 120 days after an evaluation period.
(f) Review process. The contractor may request a review of an award term incentive evaluation which has resulted in the contractor being ineligible for the award term incentive. The request shall be submitted in writing to the Contracting Officer within 15 days after notification of the results of the evaluation.
As prescribed in 1515.406(c), insert a clause substantially the same as follows:
(a) The Award Term Incentive Plan provides for the evaluation of performance, and, together with Agency need and availability of funding, serves as the basis for award term decisions. The Award Term Incentive Plan may be unilaterally revised by the Government. Any changes to the Award Term Incentive Plan will be made in writing and incorporated into the contract through a unilateral modification citing this clause. The Government will consult with the contractor prior to the issuance of a revised Award Term Incentive Plan, but is not required to obtain the contractor's consent to the revisions.
(b) [describe the evaluation periods and associated award term incentive periods, e.g., months 1-18 for award term incentive period
(c) [describe the evaluation schedule, e.g., 90 days after the end of the evaluation period]
(d) In order to be eligible for an award term incentive period the contractor must achieve all of the acceptable quality levels (AQL) for the evaluated tasks, both individual and aggregate, for that evaluation period. Failure to achieve any AQL renders the contractor ineligible for the associated award term incentive period. [identify the most significant tasks. Describe the AQL for each task as well as an overall AQL for the associated evaluation periods, e.g., an AQL of 90% each for tasks 1 and 3, and an AQL of 85% for task 7, and an overall AQL of 90% for the months 1-18 evaluation period]
(e) [If the contract will contain a quality assurance surveillance plan (QASP), reference the QASP, e.g., attachment 2. Typically, the performance standards and AQLs will be defined in the QASP]
As prescribed in 1516.406(d), substitute paragraphs substantially the same as following paragraphs (b) through (e) for paragraphs (b) through (e) in the basic clause:
(b) At the conclusion of each contract year, an average contract rating shall be determined by using the numerical ratings entered into the National Institutes of Health (NIH) Contractor Performance System (CPS) for this contract. The NIHCPS is an interactive database located on the Internet which EPA uses to record contractor performance evaluations.
(c) The contract year average rating shall be obtained by dividing the combined ratings by the number of ratings, for example:
(d) The contractor shall be evaluated for performance from the start of the contract through Year __ [identify the evaluation period, e.g., year three]. The average rating for each contract year (as derived in paragraph (c) above) will be combined and divided by [insert the number of evaluation periods] to obtain an overall average rating, for example:
(e) Based on the overall average rating as determined under paragraph (d), provided that no individual rating, i.e., Quality of Product or Service, Cost Control, Timeliness of Performance, or Business Relations is below a 3, the contractor shall be eligible for the following award term periods:
(1) Overall average rating of 4.6 to 5.0—Two award term incentive periods of __ [insert the number of months] months.
(2) Overall average rating of 4.0 to 4.6—One award term incentive period of __ [insert the number of months] months.
As prescribed in 1515.406(c), insert the following clause:
Funds are not presently available for any award term. The Government's obligation under any award term is contingent upon the availability of appropriated funds from which payment can be made. No legal liability on the part of the Government for any award term payment may arise until funds are made available to the Contracting Officer for an award term and until the Contractor receives notice of such availability, to be confirmed in writing by the Contracting Officer.
Food and Drug Administration, HHS.
Proposed rule; extension of comment period.
The Food and Drug Administration (FDA) is extending to August 4, 2008, the comment period for the proposed rule that appeared in the
Submit written and electronic comments by August 4, 2008.
You may submit comments, identified by Docket No. 2006N-0221, by any of the following methods:
Submit electronic comments in the following ways:
• Federal eRulemaking Portal:
• Agency Web site:
Submit written submissions in the following ways:
• FAX: 301-827-6870.
• Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.
To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described previously, in the
Brenda R. Friend,Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration,1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
In the
The agency has received requests for a 180-day extension of the comment period for the proposed rule. Each request conveyed concern that the current 90-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to the proposed rule.
FDA has considered the requests and is extending the comment period for the proposed rule for 180 days, until August 4, 2008. The agency believes that a 180-day extension allows adequate time for interested persons to submit comments without significantly delaying rulemaking on these important issues.
Interested persons may submit to the Division of Dockets Management (see
Please note that in January 2008, the FDA Web site is expected to transition to the Federal Dockets Management System (FDMS). FDMS is a Government-wide, electronic docket management system. After the transition date, electronic submissions will be accepted by FDA through the FDMS only. When the exact date of the transition to FDMS is known, FDA will publish a
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the New Mexico regulatory program (hereinafter, the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New Mexico is proposing additions of and revisions to the New Mexico Annotated Code (NMAC) to improve and clarify the public notification process during permitting actions, to correct outdated citations, to comply with formatting requirements for New Mexico administrative law; the revisions also include non-substantive editorial changes. New Mexico revised its program to provide additional safeguards, clarify ambiguities, and achieve stylistic consistency.
This document gives the times and locations that the New Mexico program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., mountain standard time February 11, 2008. If requested, we will hold a public hearing on the amendment on February 5, 2008. We will accept requests to speak until 4 p.m., mountain standard time on January 28, 2008.
You may submit comments by either of the following methods:
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Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining, Reclamation, and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone: (505) 248-5070, Internet address:
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If you would like to submit comments through the Federal eRulemaking Portal, go to
Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining Reclamation and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone: (505) 248-5070.
Bill Brancard, Director, Mining and Minerals Division, New Mexico Energy, Minerals, and Natural Resources Department, 1220 South St. Francis Drive, Sante Fe, New Mexico 87505, Telephone: (505) 476-3400.
Bob Postle, Telephone: (505) 248-5070, Internet address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (a)(7). On the basis of these criteria, the Secretary of the Interior conditionally approved the New Mexico program on December 31, 1980. You can find background information on the New Mexico program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 31, 1980,
By letter dated November 28, 2007, New Mexico sent us a proposed amendment to its program (SATS No. NM-047-FOR) under SMCRA (30 U.S.C. 1201
New Mexico proposes revisions to the New Mexico Annotated Code (NMAC) 19.8. New Mexico proposed the revisions to improve and clarify the public notification process during permitting actions, correct outdated citations, and comply with formatting requirements for New Mexico administrative law; these revisions include many non-substantive editorial changes which are not described below.
Specifically, New Mexico proposes the following substantive revisions:
NMAC 19.8.7.701.F requires the permit application to include the owner of record and residents of dwellings and structures within one-half mile of any part of the proposed permit area (the previous requirement was limited to properties contiguous to any part of the proposed permit area).
NMAC 19.8.8.812.D requires, consistent with the above proposed rule, that all dwellings and structures within one-half mile of the proposed permit area are included on the permit application maps (the previous rule required that only dwellings and structures within 1000 feet be included on the maps).
NMAC 19.8.11.1100.B(1) requires that notice of a permit application or permit revision be provided by at least three of the following methods: mailing a notice to the owners of record within one-half mile of the proposed permit area, posting a notice in four publicly accessible places, publishing a notice in a newspaper, and radio broadcasted public service announcements. If there is a significant non-English speaking population living within the area, a method to reach these people must be used.
NMAC 19.8.11.1100.D(5) requires that written notifications shall be mailed to persons on a list maintained by the Director.
NMAC 19.8.11.1100.E(3) requires that written notifications be posted on a Web site after an application is received.
NMAC 19.8.11.1100.F require that the Director shall hold a public meeting
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the New Mexico program.
Send your written or electronic comments to OSM at one of the two addresses given above (see
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule does not have takings implications. This determination is based on the analysis performed for the Federal regulations.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior conducted the reviews required by section 3 of Executive Order 12988 and determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities
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; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (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. This determination is based upon the analysis prepared for the Federal regulations.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based on Federal regulations for which an analysis was prepared and a determination made that the Federal regulations did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, NMFS, have completed a review of the status of black abalone (
Comments on this proposal must be received by April 10, 2008. Public hearing (s) will be held promptly if any person so requests by February 25, 2008. Notice of the location (s) and time(s) of any such hearing(s) will be published in the
You may submit comments, identified by [RIN 0648-AW32], by any one of the following methods:
• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
• Facsimile (fax): 562-980-4027, Attn: Melissa Neuman.
• Mail: Submit written comments to Chief, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
Instructions: All comments received are a part of the public record and will generally be posted to
We will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
A draft black abalone status review report and other reference materials regarding this determination can be obtained via the Internet at: http://www.nmfs.noaa.gov. The draft status review report and list of references are also available by submitting a request to the Assistant Regional Administrator, Protected Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213.
Melissa Neuman, NMFS, Southwest Region (562) 980-4115; or Lisa Manning, NMFS, Office of Protected Resources (301) 713-1401.
Black abalone was added to the National Marine Fisheries Service's (NMFS') Candidate Species list on June 23, 1999 (64 FR 33466) and remained on this list after NMFS redefined the term “candidate species” on April 15, 2004 (69 FR 19975). We initiated an informal ESA status review of black abalone on July 15, 2003, and formally announced initiation of a status review on October 17, 2006 (71 FR 61021), at the same time soliciting information from the public. On December 27, 2006, we received a petition from the Center for Biological Diversity (CBD) to list black abalone as either an endangered or threatened species under the ESA and to designate critical habitat for the species concurrently with any listing determination. We published a 90-day
In June 2007, we assembled a Status Review Team (SRT) to review the available information, assess the extinction risk and threats facing the species, and produce an ESA status review report for black abalone. The draft status review report (VanBlaricom
Abalone, members of the gastropod genus Haliotis, are marine gastropods that occur throughout most of the world (Cox, 1962). There are approximately 60 species (Geiger, 1999) found in temperate to tropical waters from the intertidal zone (i.e., the area of the foreshore and seabed that is exposed to the air at low tide and submerged at high tide) to depths of over 50 m. All are benthic, occurring on hard substrate, relatively sedentary, and generally herbivorous, feeding on attached or drifting algal material. There are seven species of abalone native to the west coast of North America (Geiger, 1999).
The taxonomic classification of black abalone is as follows: Phylum Mollusca, Class Gastropoda, Subclass Prosobranchia, Order Archaeogastropoda, Superfamily Pluerotomariacea, Family Haliotidae, Genus
There is some debate regarding the northern extent of the historic range of black abalone. Many have cited the historic range as extending from Coos Bay, Oregon, USA to Cabo San Lucas, Southern Baja California, Mexico (Geiger, 2000). However, the northernmost documented record of black abalone (based on museum specimens) is from Crescent City (Del Norte County, California, USA; Geiger, 2004). Most experts agree that the current range of black abalone extends from Point Arena (Mendocino County, California, USA) south to Northern Baja California, Mexico. Black abalone may exist, but are considered extremely rare, north of San Francisco (Morris
Recent studies have evaluated population structure in black abalone (Hamm and Burton, 2000; Chambers
Black abalone occur over a broad latitudinal range, though the range appears to have narrowed somewhat from historic times. This broad range, in addition to their small-scale distribution (high intertidal to 6 m depth), is associated with an evolved capability to withstand extreme variation in environmental conditions such as temperature, salinity, moisture, and wave action.
Black abalone occur on a variety of rock types, including igneous, metamorphic, and sedimentary rocks at a number of locations. Complex surfaces with cracks and crevices in upper and middle intertidal zones may be crucial recruitment habitat and appear to be important for adult survival as well (Leighton, 1959; Leighton and Boolootian, 1963; Douros, 1985, 1987; Miller and Lawrenz-Miller, 1993; VanBlaricom
Planktonic larval abalone movement is almost certainly determined primarily by patterns of water movement in nearshore habitats near spawning sites. Individual larvae may be able to influence movement to some degree by adjusting vertical position in the water column, but to our knowledge the ability of black abalone larvae to move in this way has not been documented. Movement behavior of post-metamorphic juvenile black abalone is likewise unknown. Leighton (1959) and Leighton and Boolootian (1963) indicate that black abalone larvae may settle and metamorphose in the upper intertidal zone, using crevices and depressions (including those formed by abrasive action of other intertidal mollusks) as habitat. Leighton and Boolootian (1963) suggest that young black abalone move lower in the intertidal zone as they begin to grow, occupying the undersides of large boulders. To our knowledge there is no published information on direct observations of movement behavior of small ( <20 mm) juvenile black abalone in the field. Qualitative (Leighton, 2005; VanBlaricom, unpublished observations) and quantitative (Bergen, 1971; Blecha
Larvae are lecithotrophic (i.e., receive nourishment via an egg yolk) and apparently do not feed while in the plankton. From the time of post-larval metamorphosis to a size of about 20 mm, black abalone are highly cryptic,
Black abalone have separate sexes and are “broadcast” spawners. Gametes from both parents are shed into the sea, and fertilization is entirely external. Resulting larvae are minute and defenseless, receive no parental care or protection of any kind, and are subject to a broad array of physical and biological sources of mortality. Species with a broadcast-spawning reproductive strategy are subject to strong selection for maximum fecundity of both sexes. Only through production of large numbers of gametes can broadcast spawners overcome high mortality of gametes and larvae and survive across generations. It is not uncommon for broadcast-spawning marine species, a group including many taxa of fish and invertebrates, to produce millions of eggs or sperm per individual per year. Broadcast spawners are also subject to other kinds of selection for certain traits associated with reproduction, including spatial and temporal synchrony in spawning and mechanisms that increase probabilities for union of spawned gametes.
As intertidal organisms on exposed rocky shores, black abalone typically release gametes into environments of extreme turbulence. As a consequence, eggs and sperm must be released from adults in relatively close spatial and temporal proximity in order to have any chance of union and fertilization before rapid dispersal and loss of opportunity.
A central problem for conservation of black abalone is the dramatic reduction in densities over the past quarter-century in almost the entire geographic range of the species. Reductions in density are so extreme and widespread that considerable attention is now focused on assessment of critical density thresholds for successful reproduction, recruitment, and population sustainability. A review of critical density thresholds, below which recruitment failure occurs, for other marine, broadcast-spawning invertebrates (i.e., sea urchins, sea cucumbers, hard clams, scallops, giant clams, and geoduck clams) has revealed that critical density thresholds exist across a broad taxonomic range. However, despite apparent risks of local extinction when populations decline below critical density thresholds, there are several cases where combinations of circumstances allow populations to recover to densities above the critical thresholds. Thus, for black abalone the key conservation issues are identification of critical density thresholds and an understanding of circumstances, if any, that may allow escape from high risks of local extinction when thresholds are breached.
Babcock and Keesing (1999) estimated critical density thresholds at 0.15-0.20 m-2 for greenlip abalone (
A sequence of studies and discoveries by Morse and colleagues (Morse
Indirect methods for assessing larval dispersal in abalone (Tegner and Butler, 1985; Prince
Tissot (2007) has estimated empirically that successful recruitment of black abalone requires the presence of local adult populations at densities of 0.75-1.1 m
Available data on black abalone growth suggest that young animals reach maximum shell diameters of about 2 cm in their first year, then grow at rates of 1-2 cm per year for the next several years. Growth begins to slow at lengths of about 10 cm, corresponding to an age range of 4-8 yrs. Beyond this point, growth is less predictable, shell erosion may become a significant factor, and size distributions for older animals may vary according to local conditions. Growth and erosion of shells may come into equilibrium in older black abalone, such that growth can be viewed as facultatively determinant.
Maximum recorded shell length for black abalone was listed at 213 mm by Wagner and Abbott (1990). Ault (1985) reported a maximum shell length of black abalone at 215 mm. Leighton (2005) indicated a shell length of 216 mm reported by Owen (unpublished observation). At least two black abalone of approximately 220 mm maximum shell length were known to be alive at San Nicolas Island in January 2007 (VanBlaricom, Neuman, and Witting, unpublished observations), but the cryptic locations of the animals have made measurements awkward and possibly not accurate. Monitoring and measurement of these individuals will continue in association with ongoing population surveys.
Mortality rates caused by withering syndrome appear to be sensitive to fluctuations in local sea surface temperatures (Friedman
Physical oceanographic conditions, predation by octopuses, lobsters, sea stars, fishes, sea otters, and shorebirds, competition with sea urchins, and food limitation may all impose mortality at varying rates depending on black abalone life stage. The draft status report (VanBlaricom
There are two types of data that can be examined to provide a better understanding of variation in black abalone abundance over time: fishery-dependent and fishery-independent data. Based on a detailed examination of these two data types, Tissot (2007) evaluated trends in black abalone abundance over the last 3 decades.
An intertidal fishery focused on red (
California Department of Fish and Game landings data (1940-1993) indicate that black abalone were intensively exploited only after other more marketable species had been largely depleted. Black abalone landings peaked in 1973 at 868 mt. During the peak decade of black abalone fishing from 1972-1981, Rogers-Bennett
Rogers-Bennett
The abalone fishery in Mexico dates to approximately 1860, but modern commercial harvests did not develop until the 1940s. The fishery is pursued by 22 fishing cooperatives, distributed across 4 management zones on the Pacific coast of the Baja California peninsula. Five cooperatives are present in management zone 1, which is the northernmost of the zones and extends from the U.S.-Mexico border to Punta Malarrimo, Baja California Sur.
Reported commercial fishery data for black abalone during 1990-2003 comes entirely from management zone 1. During this time period, the commercial
The earliest fishery-independent black abalone abundance estimates were generated beginning in 1975 at survey stations on the Palos Verdes Peninsula of Los Angeles County, California (Miller and Lawrenz-Miller, 1993). Black abalone densities ranged from 1.0 to 6.8 m
Several studies monitoring black abalone abundance at other Channel Islands found similar declines through the late 1980s and early 1990s. From 1985 to 1989, mean densities for black abalone populations on Anacapa, Santa Rosa, Santa Barbara, and San Miguel islands were obtained annually along permanent transects established by the Channel Islands National Park (Richards and Davis, 1993). Densities ranged from 20 to 50 m
At San Nicolas Island, densities of black abalones averaged >10 m
In recent years, three fishery-independent surveys for black abalone have been conducted along the mainland coast and offshore islands of Baja California, Mexico. In 2002, a survey for black abalone was done at Bahia Tortugas, just south of Punta Eugenia and located at the north end of management zone 2. Only four individuals were found, ranging in maximum shell diameter from 121 to 152 mm (Sierra Rodriguez
The third study was conducted in 2005 in regions of upwelling on rocky intertidal benches along the northern Baja California coast from Costa Azul to Punta Baja (Raimondi, unpublished data). Twelve sites, suspected to have been affected by withering syndrome, were surveyed for suitable habitat (rocky crevices) in the mid to low intertidal zone, and then timed searches were conducted for black abalone. Black abalone were not densely aggregated at any site surveyed in this study; however, a large proportion of the individuals found were small (<50 mm). This evidence of recent recruitment in northern Baja California is promising given that there is no evidence of successful recruitment to mainland California sites affected by withering syndrome (south of Pt. Piedras Blancas in northern San Luis Obispo County). Raimondi (unpublished data) hypothesized that the discrepancy between the patterns of recruitment in the two regions may be because: (1) healthy populations exist somewhere in Mexico (perhaps on offshore islands), and these are seeding northern areas; or (2) recruitment dynamics are different for withering syndrome-impacted sites in Mexico versus those in California. Fresh shells, in some cases containing flesh, were found at three of the twelve sites, suggesting that withering syndrome may still be impacting areas of Northern Baja California. Large numbers of older shells were identified at a few sites, suggesting that black abalone were abundant in these areas in the past.
The ESA defines a species as “any species or subspecies of wildlife or plants, or any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Black abalone is a marine invertebrate and is not a subspecies; therefore, it may not be subdivided into a listable unit below the taxonomic species level.
Black abalone have experienced major declines in abundance that prompted eventual closure of the commercial and recreational fisheries and resulted in local extinctions and low local densities in the majority of long-term monitoring studies in California. These declines have been particularly severe in the southern California Islands, which were major foci for the commercial fishery from 1970-1993 and where abalone densities were high (>40 m
Both the commercial fishery trends and long-term monitoring studies indicate that significant declines in black abalone abundance began in southern California in the mid-1980s. The first evidence of decline came from Palos Verdes in the late 1970s and early 1980s and at Laguna Beach in 1985-1986 (Tissot, 1988). However, in the case of Palos Verdes, the decline may have been due to other factors (Miller and Lawrenz-Miller, 1993). By 1986, declining populations and associated observations of withering syndrome had spread to the northern Channel Islands, starting at Anacapa, progressing to Santa Rosa, Santa Cruz, and Santa Barbara islands, and finally reaching San Miguel Island in 1989 (Tissot, 1991; Davis
To our knowledge there are no data available on black abalone populations north of San Mateo County on the mainland coast of California. As a consequence, we lack information on the remaining stocks of black abalone not influenced by withering syndrome. The two northernmost sites have either not been studied since 1995 (Ano Nuevo; Tissot, 1995) or have only been recently established in large, dispersed areas (Pigeon Point; Raimondi and Miner, pers. comm.). Establishment of long-term monitoring studies in northern California (e.g., in San Francisco County and north of the Golden Gate) would serve an important need in documenting northward progression of withering syndrome and mass mortality in the northern limit of the geographic range of black abalone.
Natural recovery of severely reduced abalone populations can be a very slow process (e.g., Tegner, 1992). This is largely due to the low reproductive efficiency of widely dispersed adult populations coupled with short larval dispersal distances (see
Moreover, many studies have shown that abalone larvae generally do not disperse widely. For example, Prince
Studies indicate that a local adult density “threshold” exists and influences local recruitment. Recovery will largely depend on the density of local brood stocks and whether this density is below the critical value necessary for successful recruitment (Tegner, 1992). Based on field experiments, Babcock and Keesing (1999) showed that recruitment failure occurred in greenlip abalone at adult densities of 0.15-0.20 m
The demographic risks that black abalone face were assessed by considering four criteria (abundance, growth rate/productivity, spatial structure/connectivity, and genetic and life history diversity) and other key risks (e.g., threats). These criteria provide a strong indication of the level of extinction risk faced by a species. A species at very low levels of abundance and with few populations will be less tolerant to environmental variation, catastrophic events, genetic processes, demographic stochasticity, ecological interactions, and other processes. Productivity or a growth rate that is unstable or declining over a long period of time may reflect a variety of causes, but indicates poor resiliency to future environmental variability or change. For species at low levels of abundance, in particular, declining or highly variable productivity confers a high level of extinction risk. A species with a geographic spatial structure that is not widely distributed across a variety of well-connected habitats will have a diminished capacity for recolonizing locally extirpated populations, and is at increased risk of extinction due to environmental perturbations and catastrophic events. A species that has lost locally adapted genetic and life-history diversity may lack the raw resources necessary to endure short- and long-term environmental changes.
The SRT concluded that black abalone face high levels of risk in each of the four demographic criteria. The SRT unanimously scored the species' abundance as high risk due to critically low population abundance as indicated by local density levels. Severe declines in abundance (greater than 90 percent) have occurred at the majority (76 percent) of long-term monitoring study sites, including all sites in southern California (Tissot, 2007). The high risk to abundance is attributable to population densities below the minimum threshold density necessary for successful fertilization (0.75 - 1.1 m
The majority of the SRT concluded that there is a very high risk of black abalone extinction due to low growth and productivity. Population growth is negative in all areas south of Cayucos, California, except for two locations in the southern California Islands. Furthermore, all sites south of Cayucos, but for the two isolated island locations, have exhibited recruitment failure because of local densities below the minimum threshold for successful fertilization. This high level of risk due to poor growth rate and productivity, by itself, likely indicates a high risk of extinction in the near future.
The majority of the SRT concluded that black abalone are at high to very high risk because of compromised spatial structure and population connectivity. Dispersion data among local populations indicates that there is poor connectivity among populations. Such limited connectivity reduces the likelihood that disease resistance to withering syndrome, if it exists, will spread to other populations. Furthermore, the poor connectivity among populations makes it unlikely that populations extirpated by disease or catastrophic events will be recolonized in the foreseeable future.
The SRT unanimously concluded that black abalone are at high extinction risk because of low genetic diversity. Genetic diversity in a population is determined by estimating the number of possible alleles that may exist at gene loci. Genetic diversity provides a mechanism for populations to adapt to their changing environment. Thus, the more genetic variation in a population, the better the chance that at least some individuals will have the capability to adapt to a new environment and will be able to pass this capability on to subsequent generations. Loss of genetic diversity in populations may occur because of factors that cause a major reduction in abundance and/or isolate a subset of individuals from the rest of the population. Genetic diversity has likely declined in black abalone populations because of catastrophic losses that the species has experienced throughout a large part of its range. As a result, populations have become small and more isolated, exacerbating the effects of naturally occurring low exchange rates between populations because of limited larval dispersal. Overfishing and disease have contributed to the loss of genetic diversity within black abalone populations, and, as a result, the ability of extant (i.e., currently existing) black abalone populations to exhibit resilience in the face of other threats, such as other diseases, has been compromised. Low genetic diversity, in combination with low spatial connectivity between populations, suggests that even if some genetic resiliency exists locally, it is not likely to spread and establish itself in other extant populations.
VanBlaricom
Assuming R and S are independent, the overall probability of functional extinction (i.e., the reproductive potential of isolated survivors is zero and no viable populations remain) in 30 years based on the SRT members' best professional judgment was 95.7 percent. The collective view of the SRT is that the risk is at a level where functional extinction without active management has a very high likelihood of occurring. This probability should not be interpreted as a prediction of the demise of the last individual black abalone within 30 years.
According to Section 4 of the ESA, the Secretary of Commerce determines whether a species is threatened or endangered because of any (or a combination) of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or man-made factors affecting its continued existence. We examined these factors for their historic, current, and/or potential impact on black abalone and considered them, along with current species distribution and abundance, to help determine the species' present vulnerability to extinction.
Most of the threats that result in substrate destruction, such as coastal development, recreational access, cable repairs, nearshore military operations and benthic community shifts, occur infrequently, have a narrow geographic scope, or have uncertain or indirect effects on black abalone. Some exceptions may exist in the cases of sedimentation and sea level rise in that these threats have the potential to produce more widespread impacts, but the certainty that these factors will affect black abalone is low. For example, sea level rise may result in loss of suitable habitat in a preferred depth range because of increased erosion, turbidity, and siltation, but we currently lack information to determine whether these habitat changes will be important factors for further decline.
Suboptimal water temperatures are likely to have contributed to the decline of black abalone and pose a serious threat to the ability of the species to persist because elevated water temperatures are correlated with accelerated rates of withering syndrome transmission and disease-induced mortality. Water temperatures can become elevated because of anthropogenic sources of thermal effluent and long-and short-term climate change (e.g., global climate change and El Nino - Southern Oscillation). For example, discharge from the Diablo Canyon nuclear power plant in San Luis Obispo County, California and recent El Nino - Southern Oscillation oceanographic events in the Pacific Ocean have produced short-term periods of ocean warming and are associated with increased rates of mortality due to withering syndrome over relatively small spatial scales. Although there is no explicitly documented causal link between the existence of withering syndrome and global climate change, patterns observed over the past 3 decades suggest that progression of ocean warming associated with large-scale climate change may facilitate further and more prolonged vulnerability of black abalone to effects of withering syndrome.
Finally, we view the severity, geographic scope, and level of certainty that black abalone are affected by reduced food quality and quantity as being relatively low compared to other factors. Davis
Throughout most of the species' range, local densities are below the critical threshold density required for successful spawning and recruitment. This predicament has occurred because of mass mortalities due to withering syndrome (see Disease or Predation below) and overutilization for
Withering syndrome in black abalone is caused by a
In wild animals symptomatic for withering syndrome, weakness resulting from the disease may cause the individual to lose the typically secure grip on the rocky substratum in response to wave impacts, allowing attack by predators or scavengers before the individual succumbs to the disease itself. Transfer of pathogens from animal to animal is fecal to oral on a local scale, and is therefore likely facilitated by aggregation of abalone in natural habitats. Transmission pathways on large spatial scales are entirely unknown at present. The pathogen for withering syndrome is now reported to be endemic to all the coastal marine waters of central (Friedman and Finley, 2003) and southern California (Moore
Evidence of effects of withering syndrome on black abalone was first noticed along the south shore of Santa Cruz Island in 1985, when a fisherman noticed a large number of dying black abalone and empty shells (Lafferty and Kuris, 1993). The primary symptoms of disease noted at the time included pedal atrophy and a diminished ability to maintain a grip on rocky substrata. Haaker
The first reported occurrence of significant numbers of black abalone with symptoms of withering syndrome on the California mainland was in San Luis Obispo County in 1988 (Steinbeck
Since the mid-1990s withering syndrome has appeared sequentially in progressively more northward populations of black abalone on the mainland California coast (Altstatt
In the vast majority of cases where long-term monitoring data are available, the appearance of animals symptomatic for withering syndrome in a population lead inevitably to rapid and dramatic declines in population size, most often in excess of 90 percent (Tissot, 2007). The pattern has been documented for black abalone populations throughout the range in California. Reports indicate similar trends for black abalone populations in Mexico. As noted earlier, the exceptions are at San Miguel Island, where rates of decline at some long-term study sites have been atypically slow, and at one location each on Santa Cruz and San Nicolas islands. At Santa Cruz Island, a recruitment event in 2004 at Willows Anchorage produced an increase in local densities that persisted at least until this writing. At San Nicolas Island, black abalone numbers
Prior to the appearance of withering syndrome there was little evidence of significant diseases in black abalone (Haaker
We conclude that withering syndrome has been and continues to be the primary threat contributing to the decline of black abalone. The disease has caused mass mortality and near extirpation of populations throughout most of the species' range, and the disease continues to spread to populations in Monterey County and to the north. The rate at which the disease is spreading northward will likely be exacerbated by suboptimal (i.e., warmer) water temperatures that may result due to a variety of factors.
Abalone face non-anthropogenic predatory pressure from a number of consumer species such as gastropods, octopuses, lobsters, sea stars, fishes and sea otters (Ault, 1985; Estes and VanBlaricom, 1985; Shepherd and Breen, 1992). At San Nicolas Island, VanBlaricom (unpublished observations) has observed directed predation on black abalone in rocky intertidal habitats by the ochre star
Despite the large number of identified predators on abalone, we are aware of no studies that estimate mortality rates of black abalone in association with the predator species that have been identified. While the effects of sea otter predation on red abalone are well documented, there are few data available to evaluate relationships of sea otters with other species of abalone in California. Given that black abalone overlap in habitat use, size distributions, and ecological attributes with red abalone is limited, the relationship between sea otters and black abalone is uncertain. Sea otters are known to feed on black abalone, but the quantitative ecological strength of the interaction has not been directly investigated and remains poorly known.
Black abalone have been exposed to varying predation pressure through time, and this pressure is likely to continue. However, in the past, black abalone populations were much more robust and able to absorb losses due to predation without compromising viability. Now that the few remaining populations are smaller, more isolated, and still declining throughout the range, predation may pose risk to the future survival of the species. In addition, non-anthropogenic predation could limit the effectiveness of future recovery efforts by interacting with other limiting factors.
There is evidence suggesting that aquaculture operations have provided a pathway for the spread of withering syndrome, and, unless the industry is carefully regulated in the future, may continue to do so. Past State and Federal regulations were not adequate to prevent the spread of the disease within and outside the United States through importation of infected animals from one aquaculture facility to another and outplanting of infected animals from aquaculture facilities to the wild. It is through the latter pathway that abalone rickettsia may have been introduced to two healthy populations of black abalone north of San Francisco (Friedman and Finley, 2003), placing those populations at higher risk of extinction.
Recent state regulations to carefully monitor the health of abalone at aquaculture facilities and control the importation/exportation of abalone between facilities will likely reduce the threat that the aquaculture industry poses in the future. Currently, the state monitors aquaculture facilities for introduced organisms and disease on a regular basis. There is also a restriction on out-planting of abalone from facilities which have not met certification standards. If new state regulations to carefully monitor aquaculture facilities are effective, the future threat that they pose to black abalone will be limited. In fact, aquaculture may emerge as being an important, and possibly the only effective recovery tool, for restoring black abalone populations through captive propagation and enhancement efforts.
Purposeful illegal harvest, typically termed poaching, has been a source of mortality for black abalone throughout their range since the establishment of harvesting regulations by the State of California. The chronic virtual absence of black abalone populations from highly accessible intertidal habitats near human population centers in California during the twentieth century can plausibly be viewed as evidence for the importance of poaching as a source of abalone mortality.
Since the closure of the California black abalone fishery in 1993, a number of black abalone poaching cases along the California mainland coast, particularly in the northern portion of the black abalone's geographic range, have been documented by the California Department of Fish and Game (CDFG) from 1993-2003 (Taniguchi, unpublished data). Some of these cases resulted in well-publicized arrests and trials of black abalone poachers. These events often involved removals of tens to hundreds of abalone, across all size categories present in the exploited populations, and without regard to harvest size limits in effect prior to commercial and recreational fishery closures. Enforcement effort has varied over the 10-year time period (1993-2003), increasing in 2000 because of
Environmental pollutants and toxins are likely present in areas where black abalone have occurred and still do occur, but evidence suggesting causal and/or indirect negative effects on black abalone due to exposure to pollutants or toxins is lacking. Before a causal link between the bacteria that causes withering syndrome and mass mortalities of black abalone was established, efforts were made to link mass mortalities to pollutant concentrations (Gardner
The SRT's analysis of overall risk to black abalone used categories that correspond to definitions in the ESA: in danger of extinction; likely to become endangered in the foreseeable future; or neither. The overall extinction risk assessment reflected informed professional judgment by each SRT member. This assessment was guided by integrating information about demographic risks, a consideration of the interactions among these risks, population projections over the next 30 years (i.e., time span approximating the average black abalone life span and a reasonable horizon for projecting current conditions into the future), as well as threats and other factors affecting black abalone.
The SRT concluded unanimously that black abalone is in danger of extinction throughout all of its range. The spread of withering syndrome poses imminent and significant risk to the species and exacerbates the high levels of demographic risk to which black abalone are subject, including extremely low local densities, low levels of growth and productivity, limited spatial structure and connectivity, and loss of genetic diversity. In addition, the SRT estimated that there is approximately a 96-percent probability that black abalone will suffer functional extinction within the next 30 years.
Because we conclude that black abalone is in danger of extinction throughout all of its range, it is not necessary for us to consider the question of whether black abalone is at risk throughout a significant portion of its range.
Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to make listing determinations solely on the basis of the best scientific and commercial data available after taking into account efforts being made to protect a species. Therefore, in making a listing determination, we first assess a species' level of extinction risk and identify factors that have led to its decline. We then assess existing efforts being made to protect the species to determine if those measures ameliorate the risks.
In judging the efficacy of existing protective efforts, we rely on the joint NMFS-U.S. Fish and Wildlife Service (FWS) “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE;” 68 FR 15100; March 28, 2003). PECE provides direction for the consideration of protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, Tribal governments, businesses, organizations, and individuals) that have not yet been implemented, or have been implemented but have not yet demonstrated effectiveness. The policy articulates several criteria for evaluating the certainty of implementation and effectiveness of protective efforts to aid in determining whether a species should be listed as threatened or endangered. Evaluations of the certainty an effort will be implemented include whether: the necessary resources (e.g., funding and staffing) are available; the requisite agreements have been formalized such that the necessary authority and regulatory mechanisms are in place; there is a schedule for completion and evaluation of the stated objectives; and (for voluntary efforts) the necessary incentives are in place to ensure adequate participation. The evaluation of the certainty of an effort's effectiveness is made on the basis of whether the effort or plan: establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; and is likely to improve the species' viability at the time of the listing determination.
PECE also notes several important caveats. Satisfaction of the above mentioned criteria for implementation and effectiveness establishes a given protective effort as a candidate for consideration, but does not mean that an effort will ultimately change the risk assessment. The policy stresses that just as listing determinations must be based on the viability of the species at the time of review, so they must be based on the state of protective efforts at the time of the listing determination. PECE does not provide explicit guidance on how protective efforts affecting only a portion of a species' range may affect a listing determination, other than to say that such efforts will be evaluated in the context of other efforts being made and the species' overall viability. There are circumstances where threats are so
Conservation measures that may apply to listed species include conservation measures implemented by tribes, states, foreign nations, local governments, and private organizations. Also, Federal, tribal, state, and foreign nations' recovery actions (16 U.S.C. 1533(f)), Federal consultation requirements (16 U.S.C. 1536), and prohibitions on taking (16 U.S.C. 1538) constitute conservation measures. In addition, recognition through Federal or state listing promotes public awareness and conservation actions by Federal, state, tribal governments, foreign nations, private organizations, and individuals.
As evaluated pursuant to PECE, the protective efforts described below do not as yet, individually or collectively, provide sufficient certainty of implementation and effectiveness to counter the extinction risk assessment conclusion that the species is in danger of extinction throughout its range.
Black abalone was added to NMFS' Candidate Species list on June 23, 1999 (64 FR 33466). The NMFS' Candidate Species List was revised and redefined and the NMFS' Species of Concern List was created on April 15, 2004 (69 FR 19975). Species of Concern are those species about which we have some concerns regarding status and threats, but for which insufficient information is available to indicate a need to list the species under the ESA. On October 17, 2006 (71 FR 61021), we formally announced initiation of a black abalone status review and at that time the species became a Candidate Species. Candidate Species are those petitioned species that are actively being considered for listing as endangered or threatened under the ESA, as well as those species for which we have initiated an ESA status review that has been announced in the
Three coastal national marine sanctuaries in California contain intertidal habitat suitable for black abalone: Channel Islands National Marine Sanctuary (CINMS), Monterey Bay National Marine Sanctuary (MBNMS), and Gulf of the Farallones National Marine Sanctuary (GFNMS). These sanctuary sites, administered by the National Oceanic and Atmospheric Administration, are protected by federal regulations pursuant to the National Marine Sanctuaries Act of 1972 as amended (16 U.S.C. 1431
Direct disturbance to or development of black abalone intertidal habitat is regulated at all three national marine sanctuaries by way of a prohibition on the alteration of, construction upon, drilling into, or dredging of the seabed (including the intertidal zone), with exceptions for anchoring, installing navigation aids, special dredge disposal sites (MBNMS only), harbor-related maintenance, and bottom tending fishing gear in areas not otherwise restricted.
Water quality impacts to black abalone habitat are regulated by strict discharge regulations at all three national marine sanctuaries. Essentially, regulations provide that no discharge or deposit of pollutants is allowed within these sanctuaries, except for effluents required for normal boating operations (e.g., vessel cooling waters, effluents from marine sanitation devices, fish wastes and bait).
Although these national marine sanctuaries do not regulate the take of black abalone, networks of marine reserves and marine conservation areas have been established by the CDFG within the CINMS and along portions of the MBNMS. Within these areas, especially within CINMS where the protected areas have been in place since 2003 and are within the Channel Islands National Park, multi-agency patrols provide elevated levels of enforcement presence and increase protection against poaching of black abalone.
Full texts of the current CINMS, MBNMS and GFNMS regulations discussed above can be found at 15 Code of Federal Regulations (CFR), parts 922.71, 922.132, and 922.91, respectively. However, all of these sanctuary sites are currently undergoing management plan review processes, which include reviews of and updates to the regulations. Although the regulations may be modified, the level of protection provided to black abalone is not expected to decrease from that described above, and possibly may increase should proposed prohibitions be adopted for the release of introduced species, and should stricter regulations be adopted regarding large vessel discharges.
In summary, while the Sanctuary regulations provide protection against some of the threats to black abalone and this level of protection may increase if new management plans are adopted, these regulations are unlikely to stop the progression of withering syndrome in the near future. At best, they may help slow down the rate at which the disease is progressing.
The depleted condition of abalone resources prompted the California Fish and Game Commission to eventually close all abalone fisheries south of San Francisco by 1997, beginning with the black abalone fishery in 1993. The southern abalone fishery was closed indefinitely with the passage of the Thompson bill (AB 663) in 1997. This bill created a moratorium on taking, possessing, or landing abalone for commercial or recreational purposes in ocean waters south of San Francisco, including all offshore islands. The Thompson bill also mandated the creation of an Abalone Recovery and Management Plan (ARMP) which was finalized in December 2005. The bill further required the Fish and Game Commission to undertake abalone management in a manner consistent with the ARMP.
The CDFG's ARMP provides a cohesive framework for the recovery of depleted abalone populations in southern California, and for the management of the northern California fishery and future fisheries. All of California's abalone species are included in this plan: red, green, pink, white (
Abalone in California vary in status from populations bordering on extinction (white abalone) to a sustainable population with a margin of harvestable animals that is still being fished (northern California red abalone). Recovery of at-risk abalone species and management of abalone fisheries are separate but continuous and complementary processes in the ARMP. The recovery portion of the plan addresses all abalone species that are
The ARMP provides a mechanism for helping to slow the progression of disease and invasive/exotic species through better monitoring of aquaculture facilities, however, this effort may only make a relatively small difference to the threat that disease poses given that spread of withering syndrome is due largely to factors other than aquaculture operations. The ARMP also provides a framework for restoring black abalone populations through translocation and captive propagation and enhancement programs; however, detailed plans and methodologies have neither been drafted nor tested and therefore their effectiveness for conserving black abalone remains uncertain.
The World Conservation Union (IUCN) publishes a Red List of species that are at high risk of extinction and, when data are sufficient, categorizes species as either Extinct (EX), Extinct in the Wild (EW), Critically Endangered (CR), Endangered (EN), Vulnerable (VU), Near Threatened (NT), or of Least Concern (LC) (IUCN, 2001). In 2003 the IUCN, based on an assessment by Smith
Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the draft status report, and other available published and unpublished information, and have consulted with species experts and other individuals familiar with black abalone. On the basis of the best available scientific and commercial information, we conclude that black abalone is presently in danger of extinction throughout all of its range and should be added to the list of federally endangered species. The major risks that black abalone face include: (1) the spread of a disease called withering syndrome; (2) low adult densities below the critical threshold density required for successful spawning and recruitment; (3) suboptimal water temperatures that have accelerated the spread of withering syndrome; (4) reduced genetic diversity that will render extant populations less capable of dealing with both long- and short-term environmental or anthropogenic challenges; and (5) illegal harvest of black abalone. The principal threat to black abalone is withering syndrome, which has caused mass mortality and near extirpation of populations in the recent past and threatens extant populations. The spread of withering syndrome threatens the species with a very high probability (96 percent) of extinction within the next 30 years. This threat is unlikely to be ameliorated by current conservation efforts.
On July 1, 1994, NMFS and FWS published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270) and a policy to identify, to the maximum extent possible, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272).
The intent of the 1994 peer review policy is to ensure that listings are based on the best scientific and commercial data available. Prior to a final listing, we will solicit the expert opinions of at least three qualified specialists, concurrent with the public comment period. Independent specialists will be selected from the academic and scientific community, Federal and state agencies, and the private sector.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we are obtaining independent peer review of the draft status review report, which supports this proposal to list black abalone as endangered; all peer reviewer comments will be addressed prior to dissemination of the final report and publication of the final rule.
The intent of the policy requiring us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA, is to increase public awareness of the effect of listings on proposed and ongoing activities within the species' range.
Section 9 of the ESA prohibits certain activities (e.g., importation, exportation, take, sale, and delivery) that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Section 7(a)(2) of the ESA requires Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify critical habitat. Under Section 7(a)(4), Federal agencies must confer with us on any of these activities to ensure that any such activity is not likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify proposed critical habitat. Examples of Federal actions that may affect black abalone include permits and authorizations relating to coastal
Critical habitat is defined in section 3 of the ESA as: (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species (16 U.S.C. 1533(a)(3)(A)(i)). Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species. We are currently considering a proposal to designate critical habitat for black abalone, but at this time a designation is not determinable because: (1) we currently lack information sufficient to perform required analyses of the impacts of the designation; and (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. Thus, we are seeking public input to assist in gathering and analyzing the best available scientific data and other information to support a critical habitat designation, which will be proposed in a subsequent
Joint NMFS/FWS regulations for listing endangered and threatened species and designating critical habitat at section 50 CFR 424.12(b) state that the agency “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection” (hereafter also referred to as “essential features”). Pursuant to the regulations, such requirements include, but are not limited to the following: (1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations emphasize that the agency shall focus on essential features within the specific areas considered for designation. These features “may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.”
We have exercised our best professional judgment in developing this proposal to list black abalone. To ensure that the final action resulting from this proposal will be as accurate and effective as possible, we are soliciting comments and suggestions from the public, other governmental agencies, the scientific community, industry, and any other interested parties (See
We are also requesting quantitative evaluations describing the quality and extent of marine habitats for juvenile and adult black abalone as well as information on areas that may qualify as critical habitat for black abalone in California. Areas that include the physical and biological features essential to the recovery of the species should be identified. We recognize that there are areas within the proposed boundaries of black abalone that historically contained black abalone habitat, but may not be currently occupied by black abalone. For areas potentially qualifying as critical habitat, we are requesting information describing: (1) the activities that affect the area or could be affected by the designation; and (2) the economic costs and benefits of additional requirements or management measures likely to result from the designation. The economic cost to be considered in the critical habitat designation under the ESA is the probable economic impact “of the [critical habitat] designation upon proposed or ongoing activities” (50 CFR 424.19). Economic effects attributable to listing include actions resulting from section 7 consultations under the ESA to avoid jeopardy to the species and from the take prohibitions under section 9 of the ESA. Where possible, comments concerning economic impacts should distinguish the costs of listing from the incremental costs that can be directly attributed to the designation of specific areas as critical habitat.
We will review all public comments and any additional information regarding the status of, and critical habitat for, black abalone in developing a final listing determination and a proposed critical habitat designation.
If requested by the public by February 25, 2008, hearings will be held in several locations within the range of black abalone. If hearings are requested, details regarding locations, dates, and times will be published in a forthcoming
A complete list of all references cited herein is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA). (See NOAA Administrative Order 216-6.)
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this proposed rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this proposed rule will be given to the relevant state agencies in each state in which the species is believed to occur, who will be invited to comment. NMFS has conferred with the State of California in the course of assessing the status of black abalone and considered, among other things, Federal, state and local conservation measures. As the process continues, we intend to continue engaging in informal and formal contacts with the States, and other affected local or regional entities, giving careful consideration to all written and oral comments received.
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, 50 CFR part 224 is proposed to be amended as follows:
1. The authority citation of part 224 continues to read as follows:
16 U.S.C. 1531-1543 and 16 U.S.C. 1361
2. In § 224.101, paragraph (d) is revised to read as follows:
(d)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Office of the Under Secretary for Food Safety, USDA.
Notice of public meeting and request for comments.
The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services (HHS), are sponsoring a public meeting on January 16, 2008. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States positions that will be discussed at the 8th Session of the Codex Committee on Natural Mineral Waters (CCNMW) of the Codex Alimentarius Commission (Codex), which will be held in Lugano, Switzerland on February 11-15, 2008.
The Under Secretary for Food Safety and FDA recognize the importance of providing interested parties the opportunity to obtain background information on the 8th Session of the CCNMW and to address items that will be on the agenda.
The public meeting is scheduled for Wednesday, January 16, 2008, from 9 a.m. to 12 noon.
The public meeting will be held in Room 1A001, FDA, Center for Food Safety and Applied Nutrition (CFSAN), Harvey Wiley Federal Building, 5100 Paint Branch Parkway, College Park, MD 20740. Codex documents related to the 8th Session of the CCNMW will be accessible via the World Wide Web at the following address:
The Acting U.S. Delegate to the CCNMW, Dr. Henry Kim, invites interested U.S. parties to submit their comments electronically to the following e-mail address:
Henry Kim, Acting U.S. Delegate to the CCNMW, Office of Food Safety, CFSAN, FDA, 5100 Paint Branch Parkway (HFS-317), College Park, MD 20740, Phone: (301) 436-2023, Fax: (301) 436-2651, e-mail:
Edith Kennard, Staff Officer, U.S. Codex Office, Food Safety and Inspection Service (FSIS), Room 4861, South Building, 1400 Independence Avenue, SW., Washington, DC 20250, Phone: (202) 720-5261, Fax: (202) 720-3157, e-mail:
The Codex Alimentarius Commission (Codex) was established in 1963 by two United Nations organizations, the Food and Agriculture Organization and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure that fair practices are used in trade.
The Codex Committee on Natural Mineral Waters (CCNMW) was established by the Commission as a regional Codex Committee, but has since been allocated the task of elaborating worldwide standards for natural mineral waters and bottled (packaged) water other than natural
The following items will be discussed during the public meeting:
• Matters Referred to the Committee by the Codex Alimentarius Commission and Other Codex Committees.
• Consideration of the Health-Related Limits for Certain Substances in the Codex Standard on Natural Mineral Waters (CODEX STAN 108-1981).
• Substances listed as having discrepancies that exist between the Codex Standard and the WHO Guidelines for Drinking Water Quality, 3rd edition (guideline values for chemicals of health significance).
• Discrepancies between the Codex Standards and WHO Guidelines exist for
Each item listed above will be fully described in documents distributed, or to be distributed, by the Swiss Secretariat prior to the February 11-15, 2008 meeting in Lugano, Switzerland. Members of the public may access copies of these documents at
At the January 16, 2008, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to the Acting U.S. Delegate for the 8th Session of the CCNMW, Dr. Henry Kim, at
Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this notice, FSIS will announce it online through the FSIS Web page located at
Forest Service, USDA.
Notice; Intent to Prepare Environmental Impact Statement.
The purpose of the Nebraska Travel Management Rule Implementation project is to implement direction in the
The Forest Service will prepare an environmental impact statement (EIS) to document the analysis and disclose the environmental impacts of proposed land management activities, and corresponding alternatives, within the Nebraska Travel Management Project area. The Nebraska Travel Management Rule Implementation project area is located primarily on National Forest System lands, administered by the Nebraska National Forest in northwestern Nebraska and southwestern South Dakota.
Comments concerning the proposed land management activities should be received within 30 days following publication of this notice to receive timely consideration in the preparation of the draft EIS.
Send written comments concerning the proposed land management activities or requests to be placed on the project mailing list to: Mark Reichert, Project Leader; Attention: Nebraska Travel Management Project, ACT2 Enterprise Unit, 1312 Fairlane Road, Yreka, California 96097-9549. You are welcome and encouraged to submit electronic comments in acceptable formats [plain text (.txt), rich text (.rtf) or Word (.doc)] to:
Mark Reichert, Project Leader, ACT2 Enterprise Unit, 1312 Fairlane Road, Yreka, California 96097-9549, phone (530) 841-4422, e-mail:
The information presented in this notice is included to help the reviewer determine if they are interested in or potentially affected by proposed land management activities. Information presented in this notice is summarized. Those who wish to provide comments, or are otherwise interested in or affected by the project, are encouraged to obtain additional information from the contact identified in the previous section titles:
Proposed Addition to and Deletions from Procurement List.
The Committee is proposing to add to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and to delete a product and services previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
This notice is published pursuant to 41 U.S.C 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice for each service will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government.
2. If approved, the action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following service is proposed for addition to Procurement List for production by the nonprofit agencies listed:
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the product and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product and services proposed for deletion from the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following product and services are proposed for deletion from the Procurement List:
U.S. Federal Building, U.S. Post Office, 403 West Lewis Street, Pasco, WA.
Import Administration, International Trade Administration, Department of Commerce.
Hermes Pinilla or Minoo Hatten, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3477 and (202) 482-1690, respectively.
On November 1, 2007, the Department of Commerce (the Department) published the final results of changed-circumstances review of the antidumping duty order on gray portland cement and clinker from Mexico. See
Having a final and conclusive resolution of the contested changed-circumstances review, we are now amending the final results of the changed-circumstances review of the antidumping duty order on Mexican cement to reflect the terms of the settlement agreement. Consequently, we determine that the per-unit amount to be assessed on all entries of Mexican cement during the period of the contested changed-circumstances review which were produced by Apasco is $3.00 per metric ton. Accordingly, the Department will instruct U.S. Customs and Border Protection (CBP) to assess appropriate antidumping duties on the affected entries of the subject merchandise during the contested review period. The Department will issue assessment instructions to CBP within 41 days of publication of this notice.
As provided by section 751(a)(1) of the Tariff Act of 1930, as amended, and as stipulated in the settlement agreement, the cash-deposit rate for all shipments of Mexican cement produced or exported by Apasco entered, or withdrawn from warehouse, for consumption after the effective date of this notice shall be at the rate of three U.S. dollars ($3.00) per metric ton. The deposit requirements shall remain in effect until further notice.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended.
Import Administration, International Trade Administration, Department of Commerce.
January 11, 2008.
Irene Gorelik or Julia Hancock, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230;
On September 10, 2007, the Department of Commerce (“Department”) initiated an antidumping duty investigation of steel wire garment hangers from the People's Republic of China.
On December 31, 2007, M&B Metal Products, the petitioner, made a timely request, pursuant to 19 CFR 351.205(e), for a 50-day postponement of the preliminary determination in the investigation, pursuant to section 733(c)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). The petitioner stated that a postponement of the preliminary determination is necessary because of the complexities of the investigation, and because the Department is still involved in gathering initial data from the respondents.
Under section 733(c)(1)(A) of the Act, if the petitioner makes a timely request for an extension of the period within which the preliminary determination must be made under subsection (b)(1), then the Department may postpone making the preliminary determination under subsection (b)(1) until not later than the 190th day after the date on which the administering authority initiated the investigation. Therefore, for the reasons identified by the petitioner and because there are no compelling reasons to deny their request, the Department is postponing the preliminary determination in this investigation until March 18, 2008, which is 190 days from the date on which the Department initiated these investigations.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
This is a decision consolidated pursuant to section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5 p.m. in Room 2104, U.S. Department of Commerce, 14th and Constitution Avenue., NW., Washington, DC.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Council) Groundfish Management Team (GMT) will hold a working meeting, which is open to the public.
The GMT meeting will be held Monday, January 28, 2008 from 1 p.m. until business for the day is completed. The GMT meeting will reconvene Tuesday, January 29 through Friday, February 1, from 8:30 a.m. until business for each day is completed.
The GMT meeting will be held at the Pacific Fishery Management Council office, Large Conference Room, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384.
Mr. John DeVore, Groundfish Management Coordinator; telephone: (503) 820-2280.
The purpose of the GMT working meeting is to (1) develop models and recommendations for analyzing harvest specifications and management measures for 2009-2010 West Coast groundfish fisheries; (2) develop a new bycatch model for analyzing potential impacts in 2008 Pacific whiting fisheries; (3) provide guidance on analyzing intersector allocation alternatives for groundfish species and complexes; and (4) develop recommendations for analyzing a range of alternatives for a contemplated limited entry system for open access groundfish fisheries. The GMT may also address other assignments relating to groundfish management. No management actions will be decided by the GMT. The GMT's role will be
Although non-emergency issues not contained in the meeting agenda may come before the GMT for discussion, those issues may not be the subject of formal GMT action during this meeting. GMT action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the GMT's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by any of the following methods:
•
•
•
Written comments and recommendations for the proposed information collection should be sent on or before February 11, 2008 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street, NW., Washington, DC 20503.
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittals 08-22 with attached transmittal, policy justification, and Sensitivity of Technology.
Department of Defense.
Notice of open meeting.
This notice announces a meeting of the DAB-ESGR. This meeting will focus on the status of DoD actions and recommendations from previous DAB meetings, and discussion of the board's mission and future goals. This meeting is open to the public.
0830-1645 hrs, 22 January 2008.
Location: Ballroom, Marriott Crystal Gateway, 1700 Jefferson Davis Highway, Arlington, VA 22202.
Interested attendees may contact MAJ Elaine M. Gullotta at 703-696-1385 ext 540, or e-mail at
Due to scheduling difficulties the Defense Advisory Board for Employer Support of the Guard and Reserve was unable to finalize its agenda in time to publish notice of its meeting in the
Department of Defense; Office of the Secretary of Defense Reserve Forces Policy Board.
Notice of advisory committee meeting.
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150, the Department of Defense announces the following Federal advisory committee meeting:
Written statements that do not pertain to a scheduled meeting of the Reserve Forces Policy Board may be submitted at any time. However, if individual comments pertain to a specific topic being discussed at a planned meeting then these statements must be submitted no later than five business days prior to the meeting in question. The Designated Federal Officer will review all submitted written statements and provide copies to all the committee members.
Col Marjorie Davis, Designated Federal Officer, (703) 697-4486 (Voice), (703) 614-0504 (Facsimile),
Department of the Army, DoD.
Notice.
In accordance with 37 CFR 404.6, announcement is made of the availability for licensing of U.S. Patent No. U.S. 7,309,582 entitled “Polymer-Template Complex Produced by Enzymatic Polymerization” issued December 18, 2007. This patent has been assigned to the United States Government as represented by the Secretary of the Army.
Mr. Jeffrey DiTullio at U.S. Army Soldier Systems Center, Kansas Street, Natick, MA 01760, Phone; (508) 233-4184 or E-mail:
Any licenses granted shall comply with 35 U.S.C. 209 and 37 CFR part 404.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice of availability.
The U.S. Army Corps of Engineers, Galveston District announces the release of the Final Environmental Impact Statement (FEIS) and the public comment period, and the availability of the Final General Conformity Determination for the Brazos River Harbor Navigation District's (Port of Freeport) proposed widening of the Freeport Harbor Ship Channel.
The USACE Galveston District will be accepting written public comments on the FEIS through February 11, 2008. All comments must be postmarked by February 11, 2008.
You may send written comments to the USACE, Galveston
Questions about the proposed action and FEIS can be answered by Mr. Sam Watson, (409) 766-3946.
This Federal Action is in consideration of a Department of the Army Permit application for work under section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.403), section 404 of the Clean Water Act (33 U.S.C. 1344) and Section 103 of the Marine Protection and Sanctuaries Act (MPRSA) (33 U.S.C. 1413).
Brazoria County Library System, Catherine H. Threadgill, County Librarian, 451 N Velasco, Angleton, TX 77515.
Brazoria Library, Jerry Measells, Librarian, 620 S. Brooks, Brazoria, TX 77422 .
Clute Library, Carolyn Weatherly, Librarian, 215 N. Shanks, Clute, TX 77531 .
Freeport Library, Marge Janke, Librarian, 410 Brazosport Blvd., Freeport, TX 77541.
Lake Jackson Library, Nancy Hackney, 250 Circle Way, Lake Jackson, TX 77566.
Department of the Army, U.S. Army Corps of Engineers, DOD.
Notice.
The U.S. Army Corps of Engineers (Corps), Portland District will be the lead agency for a combined Draft Feasibility Study/Environmental Impact Statement (FS/EIS) for Coos Bay Channel Modifications in Coos County, Oregon. The FS/EIS is being prepared by the Oregon International Port of Coos Bay (Port) under the authority granted by section 203 of the Water Resources Development Act (WRDA) of 1986.
All parties are invited to participate in the scoping process to determine the range of issues and alternatives to be addressed. A public scoping meeting will be held on Thursday, January 24, 2008, from 4-8 p.m. at the City of North Bend Community Center, 222 Broadway Street, North Bend, OR 97459. In addition, written comments will also be accepted until February 15, 2008, at the address listed below or at the project Web site:
U.S. Army Corps of Engineers, Programs and Project Management Division, Planning Branch, P.O. 2946, Portland, OR 97208-2946.
Mr. Eric Bluhm, who can be reached by telephone at (503) 808-4759, by fax at (503) 808-4736, or by e-mail at
1.
2.
Other, non-Federal but inter-dependent and inter-related actions proposed by the Port include developing an inter-modal container terminal on the North Spit of Coos Bay and making improvements to the railway corridor from the North Spit to Eugene, Oregon to transport goods off-loaded from container vessels.
3.
The project is needed to accommodate large container vessels, which are used by Pacific Rim shippers transporting a wide variety of consumer goods as well as import production commodities for manufacturing firms, and U.S. produced goods for export. The volume of container traffic has increased significantly during the past ten years, and growth is expected to remain strong. Ocean carriers are responding to the growth opportunities by using larger and larger vessels. Currently, the average vessel calling at U.S. West Coast ports carries 6,500 TEUs (20-foot equivalent units), but vessels capable of carrying 12,000 TEUs are becoming more common. The larger vessels can transport containers more efficiently and at lower costs than smaller vessels. For navigation safety, a navigational channel should be at least 10 percent deeper than the draft of the largest vessels that utilize the channel, as well as wide enough to allow safe vessel maneuvering. Existing Coos Bay port facilities are not accessible to many larger ships because of depth and width limitations in the navigational channel.
In addition to deep-draft harbors, large container vessels require ports with terminals that are large enough to accommodate the containers once they are off-loaded, and that are connected to a railway system to move the containers on land. Currently, only five ports on the U.S. west coast (Los Angeles, Long Beach and Oakland, California; and Tacoma and Seattle, Washington) can accommodate these large container vessels, and additional capacity is needed. Container vessel traffic will likely exceed the capacity of existing terminals by 2015, if not sooner. In addition, should one of the existing deep-draft ports be significantly damaged (for example, by a natural disaster), it could have a major impact on the national economy. Coos Bay is geographically separated from the other deep-draft ports and, therefore, would be unlikely to be damaged by the same event affecting another major West Coast port.
Past development and resource extraction within and near Coos Bay have negatively affected the local ecosystem. Impacts have included habitat degradation and loss, declines in fish and wildlife populations, spread of invasive species, and diminished water quality, among others. Ecosystem restoration is needed to offset the effects of the proposed channel modifications and development, as well as some of the effects of past actions.
5.
6.
(a) Impacts on biological resources, including species listed under Federal and State Endangered Species Acts and State sensitive species.
(b) Geological issues, including dredging and stabilization of fill areas;
(c) Impacts on water and sediment quality;
(d) Land use and planning issues;
(e) Impacts on traffic and transportation systems, including marine navigation, railroads, roads, and the Southwest Oregon Regional Airport at North Bend;
(f) Social and economic impacts;
(g) Potential noise impacts;
(h) Impacts on air quality;
(i) Impacts on public facilities and services;
(j) Impacts on visual resources;
(k) Public health and safety issues;
(l) Impacts on recreation;
(m) Cultural Resources; and
(n) Cumulative effects.
7.
8.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of open meeting.
In accordance with section 105(h) of the Estuary Restoration Act of 2000, (Title I, Pub. L. 106-457), announcement is made of the forthcoming meeting of the Estuary Habitat Restoration Council. The meeting is open to the public.
The meeting will be held January 29, 2008, from 2 p.m. to 4 p.m.
The meeting will be in room 3M60/70 in the GAO building located at 441 G Street, NW., Washington, DC.
Ms. Ellen Cummings, Headquarters, U.S. Army Corps of Engineers, Washington, DC 20314-1000, (202) 761-4750.
The Estuary Habitat Restoration Council consists of representatives of five agencies. These agencies are the National Oceanic and Atmospheric Administration, Environmental Protection Agency, U.S. Fish and Wildlife Service, Department of Agriculture, and Army. The duties of the Council include, among others, soliciting, reviewing, and evaluating estuarine habitat restoration project proposals, and submitting to the Secretary of the Army a prioritized list of projects recommended for construction.
Agenda topics will include decisions on recommending additional proposals to the Secretary of the Army for funding, a brief update on projects previously recommended and funded and the recent amendments to the Estuary Restoration Act.
Security measures require that persons interested in attending the meeting must pre-register with us before 2 p.m., January 25, 2008. We cannot guarantee access for requests received after that time. To pre-register, please contact Ellen Cummings by telephone or send an e-mail to
United States Election Assistance Commission.
Notice of public meeting.
Thursday, January 17, 2008, 10 a.m.-2 p.m.
U.S. Election Assistance Commission, 1225 New York Ave., NW, Suite 150, Washington, DC 20005, (Metro Stop: Metro Center).
Commission will receive briefings on the following: FY2008 Appropriations; EAC Standards Board, EAC Board of Advisors; EAC Technical Development Guidelines Committee; Election Data Collection Grant Program. Commissioners will consider and vote on the following: Changes to the National Voter Registration Form; Disclaimer Proposal to State Instructions Portion of the NVRA Form; EAC Organizational Chart. EAC will install new Officers for 2008. The Commission will consider other administrative matters.
This Meeting Will Be Open To The Public.
Bryan Whitener, Telephone: (202) 566-3100.
Office of Science, Department of Energy
Notice of open teleconference meeting.
This notice announces a teleconference meeting of the Climate Change Science Program Product Development Advisory Committee. Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Monday, January 28, 2008, 1 p.m. to 4 p.m. E.D.T.
Participants may call Ms. Karen Carlson-Brown at (301) 903-3338 to receive a call-in number by January 23, 2008. Public participation is welcomed; however, the number of teleconference lines is limited and available on a first come basis.
Dr. Anjuli S. Bamzai (301-903-0294;
• Discussion on how public review comments have been addressed by the SAP 3.1 author team in the current version of the report.
• Discussion on how comments from CPDAC members have been addressed by the SAP 3.1 author team in the current version of the report.
• Motion by Chair of CPDAC to seek concurrence on the draft SAP 3.1.
• Public comment (10 minute rule).
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Unconventional Resources Technology Advisory Committee. Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that notice of these meetings be announced in the
Tuesday, January 29, 2008: 8 a.m. to 12 p.m.—Open Session; 12 p.m. to 1 p.m.—Lunch; and 1 p.m. to 5 p.m.—Open Session.
Crowne Plaza Houston North Greenspoint, 425 N. Sam Houston Parkway East, Houston, TX 77060.
Elena Melchert or Bill Hochheiser, U.S. Department of Energy, Office of Oil and
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open meeting.
This notice announces an open meeting of the Biomass Research and Development Technical Advisory Committee under the Biomass Research and Development Act of 2000. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that agencies publish these notices in the
February 6, 2008 at 12:15 p.m. to 5:15 p.m. February 7, 2008 at 8 a.m. to 1:30 p.m.
Crystal Gateway Marriott—Alexandria Room, 1700 Jefferson Davis Highway, Arlington, Virginia, Phone: (703) 920-3230.
Valri Lightner, Designated Federal Official for the Committee, Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; (202) 586-0937 or Carolyn Clark at (410) 997-7778 * 235; E-mail:
• Update on Farm Bill and Energy Act.
• Presentation on Agricultural Research Service (ARS) Biofuels Activities.
• Presentation on the Energy Science, Education and Extension Plan.
• 2008 Awards Update.
• Presentation from the Department of Energy Bioenergy Research Centers.
• Baseline Biomass Work Discussions at USDA and DOE.
• Subcommittee Report Out.
• Discussion: Approve 2008 Committee Work Plan.
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Ultra-Deepwater Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that notice of these meetings be announced in the
Wednesday, January 30, 2008. 8 a.m. to 12 p.m.—Open Session; 12 p.m. to 1 p.m.—Lunch; and 1 p.m. to 5 p.m.—Open Session.
Crowne Plaza Houston North Greenspoint, 425 N. Sam Houston Parkway East, Houston, TX 77060.
Elena Melchert or Bill Hochheiser, U.S. Department of Energy, Office of Oil and Natural Gas, Washington, DC 20585. Phone: 202-586-5600.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Finding of no significant impact (FONSI).
The Energy Conservation and Production Act (ECPA), 42 U.S.C. 6831,
Copies of the EA and the proposed rule are available from: U.S. Department of Energy, Office of the Federal Energy Management Program, Forrestal Building, Mail Station EE-2L, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-5772.
Cyrus Nasseri, Office of the Federal Energy Management Program (EE-2L), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9138.
The EA also examines the environmental impacts of the final rule on building habitability (indoor environment, focusing on possible alterations to indoor air quality) and the outdoor environment (emissions of criteria pollutants and greenhouse gases). The EA finds that implementation of the final rule would
The purpose of the final rule is to improve energy efficiency. The main environmental impact of the final rule is a reduction in emissions to the outdoor air from fossil-fueled electricity generation. The alternatives are projected to result in decreased electricity use and, therefore, a reduction in power plant emissions. The environmental analysis focuses on two criteria pollutants, nitrogen oxides (NO
For commercial and high-rise multi-family residential buildings, at the 30 percent reduction level, carbon dioxide emissions are estimated to be reduced by 38,500 metric tons of carbon in the first year the rule is in effect, with the savings compounding in future years as more Federal construction occurs. Nitrogen oxides and sulfur dioxide emissions are estimated to be reduced by 317 and 625 tons, respectively, in the first year the rule is in effect.
For low-rise residential buildings, at the 30 percent reduction level, carbon dioxide emissions are estimated to be reduced by 763 metric tons of carbon in the first year the rule is in effect, with the savings compounding in future years as more Federal construction occurs. Nitrogen oxides and sulfur dioxide emissions are estimated be reduced by about 4 tons each in the first year the rule is in effect.
The EA was originally developed based on an interim final rule published on December 3, 2006. DOE received 20 comments on the interim final rule and made minor changes and clarifications in the Final Rule to address these comments. None of the changes or clarifications would lead to any change to the findings of the EA for the interim final rule. The EA was posted on the DOE Web site at (
1. On November 8, 2007, Mirant Energy Trading, LLC, Mirant Chalk Point, LLC, Mirant Mid-Atlantic, LLC, and Mirant Potomac River, LLC (jointly, Mirant) filed a complaint against PJM Interconnection, LLC (PJM). The complaint alleges that the default rate for the Third Incremental Auction as part of PJM's Reliability Pricing Model (RPM) is unjust and unreasonable and requests that the Commission institute a new default rate for the auction to be held January 7, 2008.
2. The Commission grants, in part, and dismisses, in part, the complaint. The Commission finds that Mirant has made a sufficient showing that the prices resulting from the RPM program's Third Incremental Auction may be unjust and unreasonable and may need to be replaced. However, as Mirant's own answer indicates, even if the existing pricing structure is found unjust and unreasonable, there is a significant dispute as to the appropriate just and reasonable replacement. The Commission therefore sets the RPM market rules relating to the Third Incremental Auction for hearing, but holds the hearing in abeyance pending settlement judge proceedings. Because this proceeding will extend beyond the auction to be held on January 7, 2008, the Commission cannot make a finding on this matter before that auction is held, and refunds would not be appropriate, the Commission dismisses Mirant's complaint with respect to that auction.
3. As discussed extensively in prior Commission orders,
4. Under RPM, PJM conducts multiple auctions in advance of each Delivery Year to procure capacity for that year. PJM first conducts a Base Residual Auction (BRA) three years in advance of the Delivery Year. Capacity sellers offer capacity into the BRA, and the offers create a demand curve that determines the price of capacity (absent mitigation, which will be discussed
5. After the BRA for each Delivery Year, PJM conducts three incremental auctions for that year, to enable market participants to obtain additional capacity that may be needed for that Delivery Year, either to replace previously-committed resources that have become unavailable, or to accommodate an increase in the forecasted load.
The First Incremental Auction is conducted * * * 23 months prior to the start date of the Delivery Year, and allows Capacity Market Sellers that committed resources in the BRA for such Delivery Year to submit Buy Bids for replacement capacity. * * * The Second Incremental Auction is conducted only if necessary for PJM to secure additional capacity resource commitments to satisfy an increase in the projected peak load for the PJM Region. If held, the Second Incremental Auction is conducted in April, 13 months prior to the Delivery Year.
6. To ensure that capacity resources provide the capacity to which they have committed, PJM imposes a Capacity Resource Deficiency Charge on any capacity seller that is unable to deliver its full amount of committed capacity for some or all of that Delivery Year. For each day that the seller is deficient, the deficiency charge is equal to the Daily Deficiency Rate (the greater of: (a) two times the Capacity Resource Clearing Price, or (b) the Net Cost of New Entry) multiplied by the megawatt quantity of deficiency below the level of capacity committed in the sell offer.
7. The RPM mechanism also includes mitigation measures to protect customers from the exercise of market power by generators in the RPM auctions. So as to prevent the withdrawal of capacity from the market in order to increase prices, generation capacity resources are required to submit all available capacity in the BRA for a Delivery Year. If a generation resource does not clear in the BRA, that capacity must be offered into the subsequent incremental auctions for that year.
8. Further, if the PJM area (or a local delivery area within PJM) fails the Market Structure Test conducted by the PJM market monitor (i.e., if the monitor determines that one or more sellers may be able to exercise market power), then all sellers in the area are subject to Market Seller Offer Caps for the applicable auction for that Delivery Year.
9. The Offer Cap is based on either (a) the Avoided Cost Rate (ACR), which approximates the total cost of operating a particular generating unit, or (b) the Opportunity Cost for the resource. The Opportunity Cost is defined as “the documented price available to an existing generation resource in a market external to PJM.”
10. PJM and its stakeholders are currently in a period of transitioning to full implementation of RPM. For Delivery Years during this transitional period, PJM will conduct BRAs, and some (but not all) of the incremental auctions. The Third Incremental Auction will be the last opportunity for parties to adjust their capacity positions through an auction before the applicable Delivery Year begins. The Third Incremental Auction for the 2008-2009 Delivery Year is scheduled to be held in January 2008.
11. To date, PJM has conducted three BRAs. On August 16, 2007, the PJM Market Monitor issued a report that analyzed the first BRA, conducted for the 2007-2008 Delivery Year.
12. On November 8, 2007, Mirant filed the instant complaint against PJM under section 206 of the Federal Power Act (FPA).
13. Mirant states that the combination of the must-offer requirement for Capacity Resources and what it considers to be the almost certain ACR-based capping of Sell Offers in the Third Incremental Auction will result in market-clearing prices far below competitive market values and far below levels necessary to compensate Capacity Market Sellers for the risks they are compelled to incur.
14. Mirant states that three factors pertaining to the Third Incremental Auction are likely to produce clearing prices at or near ACRs, which Mirant considers to be below prices that would be produced in a competitively workable market. First, Capacity Market Sellers that have newly available capacity are required to offer that capacity into the Third Incremental Auction, and may not hold any capacity as a physical hedge. Second, prices in the Third Incremental Auction will be based on the Sell Offers of Capacity Market Sellers who have additional capacity to sell and the Buy Bids of buyers who need to procure replacement capacity. Third, because there is no comparable Opportunity Cost that reflects the actual opportunity cost associated with supplying the incremental MWs offered in the Third Incremental Auction, Market Seller Offer Caps will be based on ACRs.
15. Mirant asserts that “there is no real doubt” that ACR rates will be applied as Offer Caps in the next several Delivery years, and that all existing Generation Capacity Resources will be subject to such offer cap mitigation.
16. Mirant states that the price that should result in a workably competitive market is one where the market price equals the opportunity cost of the marginal supplier. Mirant asserts that the economic value of retaining the capacity as uncommitted (which Capacity Suppliers are not permitted to do) is the incremental risk associated with deficiency charges that can be assessed in a given Delivery Year for
17. Mirant states that the current definition of Opportunity Cost in the RPM market rules does not provide a solution to the problem of artificially depressed prices in the Third Incremental Auction, because Market Sellers have limited ability to obtain an Opportunity Cost-based Offer Cap due to their limited access to markets external to PJM. Mirant further states that nothing in the Opportunity Cost provision permits Capacity Market Sellers to hedge against the increased risk of paying deficiency charges potentially incurred for incremental capacity committed in the Third Incremental Auction.
18. Accordingly, Mirant requests that the Commission direct PJM to modify the definition of Opportunity Cost to read:
ii. Opportunity Cost:
(a) Opportunity Cost shall be the documented price available to an existing generation resource in a market external to PJM. * * *
(b) In the Third Incremental Auction, Opportunity Cost shall be calculated, at the election of the existing generation resource, either: (i) based on the methodology set forth in (a) above, or (ii) based on the Daily Deficiency Rate for the relevant Delivery Year as calculated by the Office of Interconnection at the time Sell Offers are required to be submitted for the Third Incremental Auction. In the event that the existing generation resource owner chooses option (b), the Market Seller Offer Cap applicable to Sell Offers relying on such generation resource shall be the Daily Deficiency Rate for the relevant Delivery Year.
19. Mirant states that its requested change to the definition of Opportunity Cost would not raise market power concerns. Mirant states that in the Third Incremental Auction, unlike the BRA and other incremental auctions: (1) The price is established by sell offers, not the Variable Resource Requirement curve used in the BRA, (2) participation is limited to Capacity Market Sellers, so Capacity Market Buyers, not Load Serving Entities, pay for MWs cleared, (3) the amount of MWs being offered as additional supply by other market participants is not easily known, (4) there is no direct link between a supplier's share of installed capacity and its share of offered capacity, and (5) a supplier has no material information about the amount of MWs that may be offered by other market participants. Given these distinguishing characteristics of the Third Incremental Auction, Mirant concludes that, because sellers will compete to have their offers cleared, they can be expected to bid at prices below the Offer Cap level of the Daily Deficiency Rate, especially since they will be factoring in their own assessment of the risk of penalty charges in determining what the capacity is “worth” to them as a physical hedge.
20. Mirant states that this topic was first raised with the PJM RPM Working Group (RPMWG) on August 10, 2006. Despite several months of discussions and presentations on this issue, the RPMWG still has not reached consensus with respect to whether and how mitigation for the Third Incremental Auction should be modified.
21. Mirant requested Fast Track processing, asking the Commission to act on its Complaint before January 7, 2008.
22. Notice of Mirant's complaint was published in the
23. PJM, in its answer, agrees with Mirant's view that because sellers will be required to offer all available capacity into the Third Incremental Auction, and could be compensated at levels well below the value of that capacity to the seller as replacement capacity for its own possible later-occurring deficiencies, the current mitigation provisions are unjust and unreasonable. PJM explains that prospective buyers may either bid up to the level of the deficiency charges they avoid by securing replacement capacity, or they may anticipate that sell offers will be capped and therefore, may have an incentive to submit buy bids consistent with the anticipated range of price-capped sell offers. These anticipated price-capped sell offers will be far below the Daily Deficiency Rate sellers will incur if they become unable to deliver previously committed capacity after the Third Incremental Auction. PJM notes that the Third Incremental Auction will not change prices to load, and only involves a small amount of capacity.
24. PJM clarifies that the mere presence of an incremental auction clearing price lower than the BRA clearing price is not indicative of a market flaw. Rather, it is the possibility that such an outcome could result due to the combination of the must-offer requirement, cost-based mitigation, and buyer knowledge of offer cap levels. PJM states that Mirant's proposed solution properly preserves both the must-offer rule and price caps, but seeks to include within those caps an added component to reflect the seller's lost opportunity to use its available capacity to avoid or mitigate capacity deficiencies it may experience.
25. PJM suggests that it may not be possible to determine the precise appropriate price cap for sell offers, and that the Commission could consider setting the price cap somewhere between the BRA clearing price and the maximum deficiency charge that a seller might risk paying (the relief requested by Mirant). PJM asks the Commission to address this problem before PJM conducts the Third Incremental Auction on January 7, 2008.
26. EME Companies
27. Other parties oppose Mirant's complaint. Allegheny points out that if the Commission now changes the rules regarding mitigation, those changes should apply to all auctions rather than just the Third Incremental Auction, and should not be applied now, in the middle of an auction cycle, for which parties made commitments and chose to participate based on their understanding of the rules currently in place. Allegheny argues that Mirant is asking the Commission to make a finding that the existing market mitigation rules for the Third Incremental Auction, which it found to be just and reasonable by approving the Settlement Agreement
28. PPL states that Mirant has not demonstrated that it will be injured, arguing that Mirant could hedge its own exposure by buying capacity (presumably through bilateral agreements). PPL states that the proposed remedy benefits sellers with excess capacity and burdens buyers and could also encourage gaming in RPM as capacity providers might try to sell as little capacity as possible in the BRA and hold capacity back to sell in the Third Incremental Auction. PPL argues that under Mirant's proposed remedy, if buyers expect they will be subject to the Deficiency Rate (either by buying replacement capacity, or as a result of being deficient), they may be discouraged from making an advance purchase in the Third Incremental Auction, which could have potential reliability consequences. PPL points out that another flaw in Mirant's proposal is that if prices are expected to be higher in the Third Incremental Auction, sellers will have an incentive to maintain as much capacity as possible to sell in the Third Incremental Auction, thereby discouraging the forward commitment aspect of RPM. ODEC/PJMICC similarly argue that Mirant's complaint is premature, and that its predicted outcome of the Third Incremental Auction is not a certainty. ODEC/PJMICC also point out that Mirant was a party to the RPM Settlement and that Mirant agreed to very clear provisions, including mitigation and the must offer requirement.
29. PEPCO states that Mirant understood the risk it now seeks to remedy, at least as of August 14, 2007. PEPCO points out that capacity market sellers may elect to sell its available capacity bilaterally and avoid the Third Incremental Auction altogether. PEPCO further protests Mirant's proposed remedy because, it states, capacity sellers in the BRA have the same Opportunity Cost and exposure to Daily Deficiency Rates as those in the Third Incremental Auction, yet the remedy only addressed the Third Incremental Auction.
30. The Borough of Chambersburg protests Mirant's proposal on the basis that it has the potential to incent capacity sellers to engage in economic and physical withholding. It further argues that the fundamental basis of the Mirant complaint, that the ACR will distort competitive rates that would prevail in the absence of mitigation, misses the point that because of pervasive market power, offers must be mitigated in order to prevent anti-competitive prices.
31. Several parties suggest that this problem should be resolved through a PJM stakeholder process rather than a complaint proceeding.
32. Pursuant to Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2007), the timely, unopposed motions to intervene of the entities that filed them make them parties in this proceeding. Under Rule 214(d) of the Commission's Rules of Practice and Procedure, 18 CFR 385.214(d) (2007), the Commission may grant late-filed motions to intervene, and it does so here.
33. Rule 213(a)(2) of the Commission's Rules of Practice and Procedure, 18 CFR 385.213(a)(2) (2003), prohibits an answer to an answer or protest unless otherwise ordered by the decisional authority. We will accept the answers filed by Indicated Buyers and Mirant because they have provided information that assisted us in our decision-making process.
34. Based on the information provided, the Commission finds that the existing tariff may result in prices that are unjust and unreasonable, and establishes hearing and settlement judge procedures to resolve this matter.
35. The Market Seller Offer Cap set at the level of ACR may not appropriately reflect the selling generators' risks in the Third Incremental Auction. This auction, which takes place four months before the Delivery Year begins, is the last market opportunity for generators to sell or procure capacity for that year.
36. We do not, however, agree with Mirant that the solution to this problem is to modify the definition of Opportunity Cost to include the deficiency charge. To do so would, in essence, immediately raise the floor for all mitigated prices up to the level of the deficiency charge, the highest price that could result from the auction. Setting the Market Seller Offer Cap at the deficiency charge appears to establish too high a mitigated offer cap because
37. Because there is reason to believe that the existing rate is not just and reasonable and because we have no evidence to establish a just and reasonable replacement rate, we will set this matter for settlement judge and trial-type hearing. At hearing, we will direct the parties to examine the likelihood that resources (or particular classes of resources) will be unable to provide their committed capacity when demanded, and thus, the likelihood that the owner of that resource will be required to pay a deficiency charge. The parties may also consider alternative mechanisms that would mitigate the potential risks suppliers face in the Third Incremental Auction without modifying the offer cap, including but not limited to examining other possible hedging mechanisms.
38. We will dismiss the complaint with respect to the auction to be conducted on January 7, 2008. Given the timing of this filing, the issues raised, and Mirant's own recognition that its initially proposed replacement rate may not be just and reasonable, we cannot resolve this proceeding prior to January 7, 2008. Moreover, because this is a market-determined result, refunds based on a subsequently determined Market Seller Offer Cap could not be accurately calculated.
39. PJM has already been pursuing settlement of its issue through its RPM Working Group.
40. Pursuant to section 206(b) of the FPA, the Commission must establish a refund effective date that is no earlier than the date of the filing of such complaint nor later than 5 months after the filing of such complaint. Because, as discussed above, the results of the hearing cannot be applied to the January 7, 2008 auction, the Commission will establish a refund effective date of 5 months from the date of the complaint. The Commission is also required by section 206 to indicate when it expects to issue a final order. The Commission expects to issue a final order in this section 206 investigation within 180 days of the date this order issues.
(A) Mirant's complaint is hereby granted, in part, and dismissed in part, as discussed above.
(B) Pursuant to the authority contained in and subject to the jurisdiction conferred upon the Federal Energy Regulatory Commission by section 402(a) of the Department of Energy Organization Act and the Federal Power Act, particularly Section 206 thereof, and pursuant to the Commission's Rules of Practice and Procedure and the regulations under the Federal Power Act (18 CFR Chapter 1), a public hearing shall be held in Docket No. EL08-8-000 to examine the justness and reasonableness of the calculation of the mitigated bid rate for the Third Incremental Auction as discussed in the body of this order.
(C) The hearing established in Ordering Paragraph (B) is hereby held in abeyance pending the outcome of the settlement proceedings described in the body of this order.
(D) Pursuant to Rule 603 of the Commission's Rules of Practice and Procedure, 18 CFR 385.603 (2005), the Chief Administrative Law Judge is hereby directed to appoint a settlement judge in this proceeding within fifteen (15) days of the date of this order. Such settlement judge shall have all powers and duties enumerated in Rule 603 and shall convene a settlement conference as soon as practicable after the Chief Judge designates the settlement judge. If the parties decide to request a specific judge, they must make their request to the Chief Judge within five (5) days of the date of this order.
(E) Within 30 days of the appointment of the settlement judge, the settlement judge shall file a report with the Chief Judge and the Commission on the status of the settlement discussions. Based on this report, the Chief Judge shall provide the parties with additional time to continue their settlement discussions, if appropriate, or assign this case to a presiding judge for a trial-type evidentiary hearing, if appropriate. If settlement discussions continue, the settlement judge shall file a report at least every 30 days thereafter, informing the Chief Judge and the Commission of the parties' progress toward settlement.
(F) If settlement judge procedures fail and a trial-type evidentiary hearing is to be held, a presiding judge, to be designated by the Chief Judge, shall, within fifteen (15) days of the date of the presiding judge's designation, convene a prehearing conference in these proceedings in a hearing room of the Commission, 888 First Street, NE., Washington, DC 20426. Such a conference shall be held for the purpose of establishing a procedural schedule. The presiding judge is authorized to establish procedural dates and to rule on all motions (except motions to dismiss) as provided in the
(G) The Secretary is directed to publish a copy of this order in the
(H) The refund effective date in Docket No. EL08-8-000 established pursuant to section 206(b) of the Federal Power Act is 5 months from the date of the filing of the complaint.
By the Commission.
National Nuclear Security Administration, U.S. Department of Energy.
Notice of Availability and Public Hearings.
The National Nuclear Security Administration (NNSA), a semi-autonomous agency within the U.S. Department of Energy (DOE), announces the availability of the Draft Complex Transformation Supplemental Programmatic Environmental Impact Statement (Draft Complex Transformation SPEIS, DOE/EIS-0236-S4). The Draft Complex Transformation SPEIS analyzes the potential environmental impacts of reasonable alternatives to continue the transformation of the U.S. nuclear weapons complex to one that is smaller, more efficient, more secure, and better able to respond to changes in national security requirements. While NNSA has revised the document title from that indicated in the Notice of Intent, it remains a supplement to the Stockpile Stewardship and Management Programmatic Environmental Impact Statement. NNSA has prepared this document in accordance with the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) regulations that implement the procedural provisions of NEPA (40 CFR Parts 1500-1508), and DOE procedures implementing NEPA (10 CFR Part 1021).
NNSA invites comments on the Draft Complex Transformation SPEIS during the 90-day public comment period, which ends on April 10, 2008. NNSA will consider comments received after this date to the extent practicable as it prepares the Final Complex Transformation SPEIS. NNSA will hold 19 public hearings on the Draft Complex Transformation SPEIS. The locations, dates, and times are listed in the
Requests for additional information on the Draft Complex Transformation SPEIS, including requests for copies of the document, should be directed to: Mr. Theodore A. Wyka, Complex Transformation SPEIS Document Manager, Office of Transformation, NA-10.1, Department of Energy/NNSA, 1000 Independence Avenue, SW., Washington, DC 20585, toll free 1-800-832-0885 ext. 63519. Written comments on the Draft Complex Transformation SPEIS should be submitted to the above address, by facsimile to 1-703-931-9222, or by e-mail to
For general information regarding the DOE NEPA process contact: Ms. Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance, GC-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585, telephone 202-586-4600, or leave a message at 1-800-472-2756. Additional information regarding DOE NEPA activities and access to many of DOE's NEPA documents are available on the Internet through the DOE NEPA Web site at
Individuals who would like to present comments orally at these hearings must register upon arrival at the hearing. NNSA will allot three to five minutes, depending upon the number of speakers, to each individual wishing to speak so as to ensure that as many people as possible have the opportunity to speak. More time may be allotted by the hearing moderator as circumstances allow. NNSA officials will be available to discuss the Draft Complex Transformation SPEIS and answer questions during the first hour. NNSA will then hold a plenary session at each public hearing in which officials will explain the Draft Complex Transformation SPEIS and the analyses in it. Following the plenary session, the public will have an opportunity to provide oral and written comments. Oral comments from the hearings and written comments submitted during the comment period will be considered by NNSA in preparing the Final Complex Transformation SPEIS.
The Draft Complex Transformation SPEIS and additional information regarding complex transformation are available on the Internet at
Today's Complex consists of eight major sites located in seven states, and the Tonopah Test Range (TTR). It enables NNSA to design, develop, manufacture, and maintain nuclear weapons; certify their safety, security, and reliability; conduct surveillance on them; store Category I/II
NNSA conducted a public scoping process that began with the publication of a Notice of Intent (NOI) in the
The Draft Complex Transformation SPEIS analyzes two proposed actions. The first proposed action would restructure SNM facilities (facilities that use plutonium and highly enriched uranium to produce components for the nuclear weapons stockpile). The second
In comparison, NNSA proposes to pursue restructuring of R&D and testing facilities in the near-term, independent of decisions it may make as to restructuring of SNM facilities. The proposed action to restructure R&D and testing facilities would likely not require further NEPA documentation to implement decisions after NNSA issues the Final Complex Transformation SPEIS and Record of Decision.
The alternatives for restructuring SNM facilities are: (1) No Action; (2) Distributed Centers of Excellence; (3) Consolidated Centers of Excellence; and (4) Capability-Based. Common to each of these are alternatives to consolidate storage of certain SNM. The No Action Alternative represents continuation of the status quo including implementation of decisions already made on the basis of prior NEPA analyses. Under the No Action Alternative, NNSA would not make major changes to the missions assigned to NNSA sites.
The Distributed Centers of Excellence Alternative retains the three major SNM functions (plutonium, uranium, and weapon assembly/disassembly) involving Category I/II quantities of SNM at up to three sites. This alternative would create a consolidated plutonium center for R&D, storage, processing, and manufacture of plutonium parts for nuclear weapons. The following sites are evaluated for the consolidated plutonium center: Los Alamos, NTS, Pantex, SRS, and Y-12. Uranium storage and operations (including the storage and use of highly enriched uranium) would remain at Y-12. Weapons assembly, disassembly, and high explosive fabrication would remain at Pantex.
The Consolidated Centers of Excellence Alternative consolidates the three major SNM functions (plutonium, uranium, and weapon assembly/disassembly) involving Category I/II quantities of SNM at one or two sites. The single site option is referred to as the Consolidated Nuclear Production Center option and the two site option is referred to as the Consolidated Nuclear Center option. Three major facilities are involved in this alternative: a Consolidated Plutonium Center, a Consolidated Uranium Center, and an assembly/disassembly/high explosives facility, which would assemble and disassemble nuclear weapons, and fabricate high explosives. The following sites are evaluated for these facilities: Los Alamos, NTS, Pantex, SRS, and Y-12.
Under the Capability-Based Alternative, NNSA would maintain basic capabilities for manufacturing components for all stockpile weapons, as well as laboratory and experimental capabilities to support stockpile decisions, but would reduce production capabilities at existing or planned facilities. Under this alternative, pit production at LANL would not be expanded beyond a capability to provide 50 pits
To consolidate Category I/II quantities of SNM, NNSA proposes to remove Category I/II SNM from LLNL by approximately 2012, and phase-out operations at LLNL involving Category I/II quantities of SNM.
For the proposed action to restructure R&D and testing facilities, the alternatives focus on immediate options to consolidate, relocate, or eliminate duplicative facilities and programs and to improve operating efficiencies. The following five functional capabilities are evaluated for this proposed action: tritium R&D; high explosives R&D; hydrodynamic testing; major environmental testing; and flight test operations. The sites potentially affected by decisions regarding these alternatives are: LANL, LLNL, SNL, NTS, Pantex, TTR, SRS, Y-12, and the White Sands Missile Range (WSMR). The WSMR, located in south-central New Mexico, is the largest installation in the Department of Defense. WSMR is being considered as a location for NNSA's flight test operations that are now conducted at TTR. Alternatives to relocate the current non-nuclear component design and engineering work at SNL/California also are being evaluated in this proposed action.
While NNSA has proposed to modernize its facilities that produce non-nuclear components in Kansas City, Missouri, this proposal is evaluated in a separate NEPA analysis. The General Services Administration (GSA), as the lead agency, and NNSA, as a cooperating agency, announced the availability of a draft Environmental Assessment on December 10, 2007 (72 FR 69690) that evaluates the potential environmental impacts of a proposal for GSA to procure the construction of a new facility to house NNSA's procurement and manufacturing operations for non-nuclear components. A recent analysis demonstrates that transferring non-nuclear operations outside of the Kansas City area is not cost effective. Whether non-nuclear operations remain at the current Kansas City Plant or move to a new facility in the vicinity of Kansas City would not affect nor be affected by decisions NNSA makes regarding alternatives evaluated in the Draft Complex Transformation SPEIS.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and section 102(2)(c) of the National Environmental Policy Act as amended. Requests for
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 6, 2007 (72 FR 17156).
Revision of FR Notice Published 12/21/2007: Extending Comment Period from 02/04/2008 to 02/18/2008.
Revision to FR Notice Published 12/21/2007: Extending Comment Period from 03/13/2008 to 04/07/2008.
Revision of FR Notice Published 12/28/2007: Correction to Comment Period from 02/11/2008 to 03/04/2008.
Revision of FR Notice Published 12/28/2007: Correction to Comment Period from 02/11/2008 to 02/26/2008.
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency, Office of Research and Development (ORD), gives notice of one meeting of the Board of Scientific Counselors (BOSC) Human Health Risk Assessment Subcommittee.
The meeting (via teleconference) will be held on January 28, 2008, from 3:30 p.m. to 5:30 p.m. eastern time. The meeting may adjourn early if all business is finished. Requests for the draft agenda or for making oral presentations at the meeting will be accepted up to 1 business day before the meeting.
Participation in the conference call will be by teleconference only—a meeting room will not be used. Members of the public may obtain the call-in number and access code for the call from Joanna Foellmer, whose contact information is listed under the
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This is not a mailing address. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
The Designated Federal Officer via mail to: Joanna Foellmer, Mail Code 8601P, Office of Research and Development, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via phone/voice mail at: (703) 347-8508; via fax at: (703) 347-8696; or via e-mail at:
Any member of the public interested in receiving a draft BOSC agenda or making a presentation at the meeting may contact Joanna Foellmer, the Designated Federal Officer, via any of the contact methods listed in the
Proposed agenda item for the meeting includes, but is not limited to: discussion of the subcommittee's draft report on ORD's Human Health Risk Assessment Program. The meeting is open to the public. The subcommittee roster and charge can be accessed at:
Federal Housing Finance Board.
Notice.
The Federal Housing Finance Board (Finance Board) is announcing the Federal Home Loan Bank (Bank) members it has selected for the 2006-07 eighth quarter review cycle under the Finance Board's community support requirements regulation. This notice also prescribes the deadline by which Bank members selected for review must submit Community Support Statements to the Finance Board.
Bank members selected for the review cycle under the Finance Board's community support requirements regulation must submit completed Community Support Statements to the Finance Board on or before February 29, 2008.
Bank members selected for the 2006-07 eighth quarter review cycle under the Finance Board's community support requirements regulation must submit completed Community Support Statements to the Finance Board either by regular mail at the Federal Housing Finance Board, Office of Supervision, Community Investment and Affordable Housing, 1625 Eye Street, NW., Washington, DC 20006, or by electronic mail at
Emma J. Fitzgerald, Program Analyst, Office of Supervision, Community Investment and Affordable Housing, by telephone at 202/408-2874, by electronic mail at
Section 10(g)(1) of the Federal Home Loan Bank Act (Bank Act) requires the Finance Board to promulgate regulations establishing standards of community investment or service Bank members must meet in order to maintain access to long-term advances.
Under the rule, the Finance Board selects approximately one-eighth of the members in each Bank district for community support review each calendar quarter. 12 CFR 944.2(a). The Finance Board will not review an institution's community support performance until it has been a Bank member for at least one year. Selection for review is not, nor should it be construed as, any indication of either the financial condition or the community support performance of the member.
Each Bank member selected for review must complete a Community Support Statement and submit it to the Finance Board by the February 29, 2008 deadline prescribed in this notice. 12 CFR 944.2(b)(1)(ii) and (c). On or before January 25, 2008, each Bank will notify the members in its district that have been selected for the 2006-07 eighth quarter community support review cycle that they must complete and submit to the Finance Board by the deadline a Community Support Statement. 12 CFR 944.2(b)(2)(i). The member's Bank will provide a blank Community Support Statement Form, which also is available on the Finance Board's Web site:
The Finance Board has selected the following members for the 2006-07 eighth quarter community support review cycle:
To encourage the submission of public comments on the community support performance of Bank members, on or before the January 25, 2008, each Bank will notify its Advisory Council and nonprofit housing developers, community groups, and other interested parties in its district of the members selected for community support review in the 2006-07 eighth quarter review cycle. 12 CFR 944.2(b)(2)(ii). In reviewing a member for community support compliance, the Finance Board will consider any public comments it has received concerning the member. 12 CFR 944.2(d). To ensure consideration by the Finance Board, comments concerning the community support performance of members selected for the 2006-07 eighth quarter review cycle must be delivered to the Finance Board on or before the February 29, 2008 deadline for submission of Community Support Statements.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors.
Board of Governors of the Federal Reserve System, January 8, 2008.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 28, 2008.
Board of Governors of the Federal Reserve System, January 8, 2008.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 6, 2008.
Board of Governors of the Federal Reserve System, January 8, 2008.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 6, 2008.
Board of Governors of the Federal Reserve System, January 8, 2008.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay, Contact Representative or Renee Hallman, Contact Representative. Federal Trade Commission, Premerger Notification Office, Bureau of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By direction of the Commission.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS's Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received at the address below, no later than 5 p.m. on March 11, 2008.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development—C, Attention: Bonnie L Harkless, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
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CMS requires that MA and PDP organizations submit a completed formulary and PBP as part of the annual bidding process. During this process, organizations prepare their proposed plan benefit packages for the upcoming contract year and submit them to CMS for review and approval. Based on operational changes and policy clarifications to the Medicare program and continued input and feedback by the industry, CMS has made the necessary changes to the plan benefit package submission. Refer to the “List of Changes for the CY2009-PBP and Formulary” document for a summary list of changes.
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To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB Human Resources and Housing Branch, Attention: Carolyn Lovett, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Administration for Native Americans (ANA), Administration for Children and Families, HHS.
Notice of Public Comment on the Proposed Adoption of ANA Program Policies and Procedures.
Pursuant to section 814 of the Native American Programs Act of 1974, as amended by 42 U.S.C. 2991b-1, the Administration for Native Americans (ANA) herein describes its proposed interpretive rules, general statements of policy and rules of agency procedure or practice in relation to the Social and Economic Development Strategies (hereinafter referred to as SEDS), Native Language Preservation and Maintenance (hereinafter referred to as Native Language), Environmental Regulatory Enhancement (hereinafter referred to as Environmental) programs, Environmental Mitigation (hereinafter referred to as Mitigation), and Native American Healthy Marriage Initiative (hereinafter referred to as NAHMI). Under the stature, ANA is required to provide members of the public an opportunity to comment on proposed changes in interpretive rules, general statements of policy, and rules of agency procedure or practice and to give notice of the final adoption of such changes at least 30 days before the changes become effective. This notice also provides additional information about ANA's plan for administering the programs.
The deadline for receipt of comments is 30 days from the date of publication in the
Comments in response to this notice should be addressed to Sheila K. Cooper, Director of Programs Operations, Administration for Native Americans, 370 L'Enfant Promenade, SW., Mail Stop: Aerospace 2-West, Washington, DC 20447. Delays may occur in mail delivery to Federal offices; therefore, a copy of comments should be faxed to (202) 690-7441. Comments will be available for inspection by members of the public at Administration for Native Americans, Aerospace Center, 901 D Street, SW., Washington, DC 20447.
Sheila K. Cooper at (877) 922-9262.
Section 814 of the Native American Programs Act of 1974, as amended, requires ANA to provide notice of its proposed interpretive rules, general statements of policy and rules of agency organization, procedure or practice. The proposed clarifications, modifications, and new text will appear in the five ANA FY 2008 Program Announcements (PA): SEDS, Native Language, Environmental, NAHMI and Mitigation. This notice serves to fulfill this requirement.
• Changes made across all program areas (Part I of NOPC). These are changes to text that is found in each PA program area. Therefore, the changes cited in Part I apply to all PAs.
• Changes made to specific program areas (Part II of NOPC). ANA has made significant changes to the Native Language, NAHMI, SEDS and Mitigation programs. These changes are outlined in Part II.
1. All program announcements will be revised to clarify program and application submission requirements for the public. These changes appear in the following sections: Definitions (Part A of NOPC), Funding Restrictions (Part B of NOPC), and Evaluation Criteria (Part C of NOPC). In addition, language and formatting changes have been made to various program area PAs in order to standardize the PAs across all program areas. These document formatting changes do not appear in this NOPC because the changes do not significantly affect or change the intent or meaning of the program information. Finally, funding restriction information will be applicable to all program areas and all PAs.
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The FY 2008 PA revised administrative policy will be:
All funded applications will be reviewed to ensure that the applicant has provided a positive statement to give credit to HHS/ACF on all materials developed using HHS/ACF funds.
(B)
i. New Definitions: The FY 2008 PA includes definitions for the following terms:
The FY 2008 PAs will include these new definitions:
ii. Revised Definitions: The FY 2008 PA clarifies definitions for the following terms:
The FY 2008 PA revised definitions will be:
(C)
The FY 2008 PA new disqualification factor will be:
Applications, including Tribally authorized components and divisions, must include a Resolution (a formal decision voted on by the official governing body) approving the application. The Resolution must be current, signed, dated and cover the entire project period. Applications that do not include a complete Resolution will be considered non-responsive and the application will not be considered for competition.
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The FY 2008 PA text will be:
• Projects that allow any one community or region to receive a disproportionate share of the funds available for award. When making decisions on grant awards ANA will assess and consider whether the community or region is already receiving funding for a SEDS, Native Language or Environmental project from ANA.
• Applicants that submit a project that is essentially identical or similar in whole or in part, to previously funded projects.
• Projects that are essentially identical or similar in whole or in part to previously funded projects in the same community.
• Projects that do not further the three inter-related ANA goals of economic development, social development and
• Projects that seek to revive Native languages that do not have any living speakers.
(E)
i. Titles and Assigned Weight: In the FY 2008 PA ANA will adjust the weighted scores for all criteria in all program areas. The weighted score adjustments are made to indicate the value of the evaluation criteria and the criterion titles are changed to add clarity to the focus of the criterion section. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3.)
For the FY 2008 ANA Program Announcement, the criteria weighted scores will be:
ii. ANA Evaluation Criteria.
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The new FY 2008 PA text for Criterion One will be:
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The new FY 2008 PA text for the Objectives and Need for Assistance criterion will be:
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Applicants from national and regional Native organizations must describe their organizational membership. Explain how the organization serves and impacts Native communities.
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The Criterion Three text in the FY 2008 PA will be:
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A project cannot exceed three objectives per project period. Complete an ANA OWP form for each objective per budget period. Some objectives will require more than one form, especially if submitting an electronic application. In addition, some objectives may last more than one budget period. Ensure the objective is correctly stated in the OWP, the project narrative and on the ANA Abstract form.
The objective statement should contain the following basic elements: What will be accomplished during the project period and when it will be accomplished. Each objective should be Specific, Measurable, Achievable, Results-oriented and Time-bound (SMART).
For each objective, list activities that provide a road map to achieve the objective. Each activity is a step in the logical progression of the project. Include specific and significant activities (e.g., hiring staff developing first draft), ongoing activities (e.g., meetings and classes), the submission of required ANA reports and attendance at ANA post-award training. Especially useful are activities that show progress and/or results on a quarterly basis. Explain how the activities outlined in the OWP will lead to the successful achievement of the project objectives and goal.
Identify the position responsible for the completion of each activity by identifying the title(s) of the salaried project staff person(s). Identify time periods that are realistic to complete each activity. Use elapsed times from the start of the project (e.g., month 1, month 2) rather than absolute dates. September 30 is the start date for each budget period. Identify the non-salary personnel hours, including non-salaried contributors (paid or in-kind) to the project. List hours according to who is providing them (e.g., Committee person—10 hours; ABC Consultant—5 hours). Provide supporting documentation for the hours listed in this column. If applying on
The results and benefits section of the OWP is used to track the progress of accomplishing an individual objective. The results and benefits must directly relate to the activities that support the accomplishment of an objective in the OWP. The results and benefits are used to monitor the project's quarterly progress and must include target numbers. The criteria for evaluating the results and benefits expected are of the applicant's choosing and need to be documented and verifiable.
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The FY 2008 Criterion Four text will be:
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List all sources of Federal funding the applicant currently oversees. Include information on the funding agency, purpose of the funding and amount. Provide the most recent certified signed audit letter for the organization. If the applicant has audit exceptions, these issues should be discussed within this criterion, detailing any steps taken to overcome the exceptions.
Applicants are required to affirm that they will credit ANA and reference the ANA-funded project on any audio, video and/or printed materials developed in whole or in part with ANA funds.
A consortium applicant must identify the consortium membership and describe roles and responsibilities of each member in relation to the proposed project. One member of the consortium must be the recipient of the ANA funds. A consortium applicant must be an eligible entity as defined by this program announcement and the ANA regulations. Include documentation signed by the membership supporting the ANA application. ANA will not fund activities by a consortium of Tribes that duplicate activities for which member Tribes also receive funding from ANA. Include a copy of the consortia legal agreement or memoranda of agreement.
List all of the applicant's partners that will be providing support to the project's implementation. Include information on the current organizational relationship between the applicant and the partner. The experience and expertise of these partners must align with the activities stated in the OWP that they will be supporting. This information should state the nature, amount and conditions under which another agency, organization or individual will support a project funded by ANA.
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e.
The FY 2008 PA Criterion text will be:
ANA conducts on-site community impact evaluations during the last quarter of the project period Impact evaluations provide grantees the opportunity to share, through qualitative and quantitative information, how the project goal and objectives were accomplished and how the identified community was impacted by the ANA-funded project. This information is then submitted in an annual report to Congress.
Each applicant must submit three impact indicators. Two of the three project indicators are standard and required across all ANA programs and the third is directly related to the project goal. The required, standard ANA impact indicators are (1) the number of partnerships formed and (2) the amount of leveraged resources (see Definitions). The third required impact indicator is used to track the success of the project in achieving the project goal and is developed by the applicant. Discuss how this impact indicator relates to the project goal. For each impact indicator submitted provide a system to track the indicator and a target number. Explain the rationale used to choose the target number. Impact indicators are tracked throughout the grant and are reported quarterly.
f.
The FY 2008 PA Criterion text is:
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The following is important to consider when preparing the budget: personnel costs should reflect the time needed to hire staff, if key personnel need to be hired and the hiring process is two months, then calculate the salary based on ten months, rather than twelve; include travel expenses for the chief financial officer and project director to attend a regional ANA post-award training; include local travel (e.g., mileage for local meetings) in the Other budget category, not in the Travel budget category.
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Demonstrate cost effectiveness of the budget by explaining why this project and associated costs are an effective use of ANA resources. Indicate how the proposed budget aligns with regional costs and why funding is necessary to resolve the statement of need Identify source or include documentation of price quotations, where possible.
Identify the source of the required applicant match and provide documentation in the form of letters of commitment (see Definitions).
Submit a copy of the current Indirect Cost Rate Agreement (see Uniform Project Description definitions) in order to charge or otherwise seek credit for indirect costs. The agreement must have all costs broken down by category so ANA reviewers can be certain that no budgeted line-items are included in the indirect cost pool. Applicants that do not submit a current Indirect Cost Rate Agreement may not be able to claim the allowable cost, may have the grant award amount reduced, or may experience a delay in the grant award.
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II. ANA FY 2008 Program Specific Changes. ANA FY 2008 PAs for the Native Language Program; NAHMI, SEDS, and Mitigation include changes specific to those programs. Changes are found throughout the PA and are identified below for each specific program.
(A)
i. Executive Summary
The FY 2008 PA Executive Summary will be:
The Administration for Native Americans (ANA), within the Administration for Children and Families (ACF), announces the availability of Fiscal Year (FY) 2008 funds for new community-based activities under ANA's Native Language Preservation and Maintenance program area. Financial assistance is provided using a competitive process in accordance with the Native American Programs Act of 1974, and the Esther Martinez Native American Languages Preservation Act of 2006. ANA provides financial assistance to eligible applicants for the purpose of assisting Native Americans in assuring the survival and continuing vitality of their languages. Grants are provided under the following four categories: Category I—Native Language Assessment grants are used to conduct the assessment needed to identify the current status of the Native American language(s) to be addressed; Category II—Native Language Project Planning grants are used to plan a language project; Category III—Native Language Project Implementation grants are used to implement a preservation language project that will contribute to the achievement of the community's long-range language goal(s); and Category IV—Native Language Immersion Project grants are only used for immersion projects with language nests and language survival schools in accordance with Public Law 109-394.
ii. Funding Opportunity Description:
The following statements will be added in the FY 2008 PA:
(To Legislative Authority) Esther Martinez Native American Languages Preservation Act of 2006, Public Law 109-394
(To Funding Opportunity Description, after the first paragraph) In 2006, Congress passed the Esther Martinez Native American Language Preservation Act of 2006, Public Law 109-394. The law amends the Native American Programs Act of 1974 to provide for the revitalization of Native American languages through Native American language immersion programs, and for other purposes.
(To Funding Opportunity Description, 1st sentence) For Category IV projects, applicants must abide by the parameters established by Public Law 109-394.
iii. The FY 2008 PA will be amended to include the following statement prior to the Category One description:
Please note that this announcement is divided into four priority areas. The first priority area is Category I—Native Language Assessment; the second priority area is Category II—Native Language Project Planning; the third priority area is Category III—Native Language Project Implementation; and the fourth priority area is Category IV—Native Language Immersion Project. Information on each priority area immediately follows section VIII of the preceding program area. The Standard Form (SF) 424 and ANA Project Abstract form must clearly indicate the correct priority area category (I, II, III or IV). An applicant cannot apply for more than one category.
iv. ANA added definitions in order to clarify Category IV.
The FY 2008 Native Language PA includes these definitions:
Language Nests as defined by Public Law 109-394: Site-based educational programs that provide Native language instruction and child care through the use of a Native American language for at least 10 children under the age of 7 for an average of at least 500 hours per year per student, provide classes in a Native American language for parents (or legal guardians) of students enrolled in a Native American language nest (including Native American language-speaking parents) and ensure that a Native American language is the dominant medium of instruction in the Native American language nest.
Language Survival Schools as defined by Public Law 109-394: Site-based educational programs for school age students that provide an average of at least 500 hours of Native language instruction through the use of 1 or more Native American language for at least 15 students for whom a Native American language survival school is their principal place of instruction, develop instructional courses and materials for learning Native American languages and for instruction through the use of Native American languages, provide for teacher training, work toward a goal of all students achieving fluency in a Native American language and academic proficiency in mathematics, reading (or language arts) and science and are located in areas that have high numbers or percentages of Native American students.
v. The descriptions for Native Language Categories I, II and III will be revised and Category IV will be added.
a. Category I—Native Language Assessment
The FY 2008 PA Category I program area of interest will be:
A project that compiles, collects and organizes Native language data in order to have a current description of the community's language status obtained through a “formal” method (e.g., work performed by a linguist and/or a language survey conducted by community members) or an “informal method” (e.g., a community consensus of the language status based on elders, Tribal scholars, and/or other community members).
b. Category II—Native Language Project Planning
The FY 2008 PA Category II description will be:
The purpose of a Category II—Native Language Planning Project is to encourage Tribes and Native organizations to plan and design Native language projects. Applicants are encouraged to develop a project that results in a comprehensive plan to preserve the Native language that uses current community language assessment data, reviews innovative methods that bring older and younger Native Americans together to teach and learn the language, and considers all essential elements needed to sustain and implement a language project. Category II—Planning Projects are for planning and design only and do not include activities that call for direct language learning or instruction. Program areas of interest include:
• Projects to plan and design Master/Apprentice programs;
• Projects to plan and design a comprehensive Native language immersion programs for a language nest or survival school;
• Projects that plan, design, and test curriculum for students, parents and language instructors;
• Projects that plan and design teaching materials;
• Projects that plan and design multi-media language learning tools;
• Projects that plan and design a teacher certification program.
c. Category III—Native Language Project Implementation
The FY 2008 Category III description will be:
The purpose of Category III grants is to provide support to Tribes and Native organizations in the implementation of a Native language project to achieve the community's long-range language goal(s). Program areas of interest under Category III include:
• Projects to produce and disseminate culturally relevant printed stories for children, on mental and physical disabilities, using the Native language of the community;
• Projects to facilitate and encourage inter-generational teaching of Native American language skills;
• Projects to train teachers, interpreters or translators of Native languages;
• Projects to disseminate culturally relevant materials to be used to teach and enhance the use of Native American languages;
• Projects to implement an immersion, mentor or distance learning model;
• Projects to produce, distribute or participate in television, radio or other media forms to broadcast Native languages;
• Projects to compile, transcribe and perform analysis of oral testimony;
• Projects to implement an educational site-based immersion project.
d. Category IV—Native Language Immersion Projects
The FY 2008 Category IV description will be:
The purpose of Category IV grants is to fund Native American Language Immersion projects. The only program areas of interest funded under this priority area are immersion projects for language nests or for language survival schools.
The program area of interest for a Category IV language nest project as defined by statute are site-based educational programs that—
○ provide Native language instruction and child care through the use of a Native American language for at least 10 children under the age of 7 for an average of at least 500 hours per year per student, provide classes in a Native American language for parents (or legal guardians) of students enrolled in a Native American language nest (including Native American language-speaking parents) and ensure that a Native American language is the dominant medium of instruction in the Native American language nest.
The program area of interest for a Category IV language survival school as defined by statute are site-based educational programs for school-age students that—
○ provide an average of at least 500 hours of Native language instruction through the use of 1 or more Native American language for at least 15 students for whom a Native American language survival school is their principal place of instruction, develop instructional courses and materials for learning Native American languages and for instruction through the use of Native American languages, provide for teacher training, work toward a goal of all students achieving fluency in a Native American language and academic proficiency in mathematics, reading (or language arts) and science and are located in areas that have high numbers or percentages of Native American students.
vi. Evaluation Criteria. In addition to the newly developed evaluation criteria presented in Part I. C. of this NOPC, additional information requests for the Native Language program have been added. The additional information reflects the priority area-specific information that is necessary for project review and administration. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3 and Public Law 109-394.)
a. Category I—Native Language Assessment
The FY 2008 PA will include the following statement in Criterion Two—Need for Assistance, Identification of Community:
Describe the known status of the Native American language(s) in the community. Indicate how many known speakers of the language(s) are in the community.
b. Category II—Native Language Planning
The FY 2008 PA will include the following in Criterion Two—Need for Assistance, Identification of Community:
Describe the current status of the Native American language to be addressed in this planning project. Current status is defined as data compiled within the previous 36 months. The description of the current status minimally includes the following information: Age, gender and number of speakers; level(s) of fluency; number of first language speakers, number of second language speakers, and level of fluency; where Native language is used, e.g., home, court system, religious ceremonies, church, media, school, governance and cultural activities; rate of language loss or gain; and the source of data (formal and/or informal).
Fully describe existing community language programs and projects, if any, in support of the Native American language to be addressed by the ANA project. If the applicant has never had a language program, include a detailed explanation of what barriers or circumstances prevented the establishment of a community language program.
c. Category III—Native Language Implementation
The FY 2008 PA will include the following in Criterion Two—Need for
Describe the current status of the Native American language to be addressed in this project. Current status is defined as data compiled within the previous 36 months. The description of the current status minimally includes the following information: Age, gender and number of speakers; level(s) of fluency; number of first language speakers, number of second language speakers, and level of fluency; where Native language is used, e.g., home, court system, religious ceremonies, church, media, school, governance and cultural activities; rate of language loss or gain; and the source of data (formal and/or informal).
Describe existing community language programs and projects, if any, in support of the Native American language to be addressed by the ANA project. If the applicant has never had a language program, include a detailed explanation of what barriers or circumstances prevented the establishment of a community language program.
The FY 2008 PA will include the following in Criterion—Three Approach, Project Strategy:
Include a brief description of how the project will determine effective language growth has occurred in the community.
Describe how the project's methodology, research data, outcomes, or other products can be shared and modified for use by other Tribes or Native communities. If this is not feasible or is culturally inappropriate, provide the reasons. The goal is to provide opportunities to ensure the survival and continuing vitality of Native languages.
Describe how the products of the project will be preserved through archival or other culturally appropriate methods, for the benefit of future generations. Native language projects that produce audio or print media will now include a stipulation that a copy of the products will be provided to ANA for the Language Repository. Federally recognized Tribes are exempt from this stipulation and may choose not to submit project products.
d. Category IV—Language Immersion Projects
The FY 2008 PA will include the following in Criterion Two—Need for Assistance, Identification of Community:
Describe the current status of the Native American language to be addressed in this project. Current status is defined as data compiled within the previous 36 months.
The FY 2008 PA will include the following in Criterion Three—Approach, Project Strategy:
Fully describe the existing Native language program(s), and include the following: (1) The program goals; (2) the number of program participants; (3) the number of speakers; (4) the age range of participants (e.g., 0-5, 6-10, 11-18); (5) the number of language teachers; (6) the criteria used to acknowledge competency of language teachers; (7) the resources available to the applicant (e.g., valid grammars, dictionaries and orthographies) or describe other suitable resources; and (8) the program achievements.
The FY 2008 PA will include the following in Criterion Four—Organizational Capacity, Organizational Capacity:
For language nest projects, the applicant shall provide information on the capacity of the organization to provide instruction and child care for at least 10 children under the age of 7 for an average of at least 500 hours per year per student. The applicant shall also provide information on the capacity of the applicant to provide classes to the parents of the students in the language nest.
For a language survival school project, the applicant shall provide information on the capacity of the organization to provide an average of at least 500 hours of instruction through the use of 1 or more Native American languages for at least 15 students. Information must include a certification by the applicant that the applicant has not less than 3 years of experience in operating and administering a Native American language survival school, a Native American language nest or any other educational program in which instruction is conducted in a Native American language. Certification should include at least 3 years of accreditation by the State or Tribe to teach the Native American language to the relevant age group.
vii. Funding Thresholds. The new FY 2008 priority area will revise the funding thresholds for each language category, which reflects ANA availability for funds in this program area. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3 and Public Law 109-394.)
viii. Project Periods: The new FY 2008 Native Language categories will have specific project periods. Category I will be a 12-month project period; Category II will be a 12- or 24-month project period; Category III will be a 12-, 24-, or 36-month project; and Category IV will be 36-month-only project period. These project periods allow ANA to fund the greatest number of projects while still allowing ample time for projects in each category to be completed. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3 and Public Law 109-394.)
ix. Forms, Assurances, and Certifications. The additional certification requirement was added to comply with the Esther Martinez Native American Languages Preservation Act of 2006. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3 and Public Law 109-394.)
The FY 2008 PA Category IV—Language Immersion will include an additional requirement:
For applicants applying as a Category IV Native American language survival school, submit the following certification:
• A certification that the applicant has operated and administered a Native American language survival school, a Native American language nest, or any other educational program in which instruction is conducted in a Native American language for at least 3 years. Certification may include accreditation from the applicant's State and/or Tribe.
(B)
i. Executive Summary
a. In the first paragraph the FY 2008 PA will state: * * * funds for projects that plan for and implement approaches to improve * * * and strengthening families (including absentee parent activities) in Native American communities.
b. The FY 2008 PA text, beginning with the third paragraph which focuses on NAHMI, will be:
The Native American Healthy Marriage Initiative (NAHMI) is a component of the ACF HMI (Healthy Marriage Initiative) and specifically promotes planning and implementing culturally competent strategies for fostering healthy marriages, responsible fatherhood and child well-being to strengthen families within the Native American Community.
ANA believes a focused strategy is needed to support the Native American Community because of the unique experiences of the Native American population, and there is a clear link between healthy marriage and child wellbeing. The NAHMI-focused strategy includes three components: (1) Education and Communication; (2) the Creation and Enhancement of Collaborations and Partnerships; and (3) Identifying Resources.
The goal of NAHMI is to increase the percentage of youth and young adults who have the skills and knowledge to make informed decisions about healthy relationships, including skills that can help them eventually form and sustain a healthy marriage; increase the percentage of couples who are equipped with the skills and knowledge necessary to form and sustain healthy marriages; increase the percentage of Native American children who are raised by two parents in a healthy marriage environment that is also free of domestic violence; increase the percentage of involvement by absentee parents in the lives of their children; increase public awareness in Native American communities about the value of healthy marriages and responsible fatherhood; and encourage and support research on Native American healthy marriages and healthy marriage education.
ii. Funding Opportunity Description
The FY 2008 PA will be:
This program area seeks to fund projects that engage in the planning and implementation of approaches to remove barriers to forming lasting families and healthy marriages in Native communities. The announcement is divided into two priority areas. The first priority area is Category I—Improving the Well-Being of Children/Native American Healthy Marriage Initiative Project Planning. Projects funded under Category I of this announcement will include activities that design and engage in a community-based planning process that identifies barriers to forming healthy marriages (including Traditional Native American marriages); assesses the need and interest of the community to participate in a NAHMI project; assesses existing absentee parenting programs; identifies strategies to implement a NAHMI project and develops projects that are designed to reduce or eliminate the challenges and barriers identified by the community. The second priority area is Category II—Improving the Well-Being of Children/Native American Healthy Marriage Initiative Project Implementation. Projects funded under Category II of this announcement will include activities that provide community resources such as marriage education/enrichment training; pre-marital education; relationship skills education on communication, conflict resolution, and commitment; and other support activities such as family outings, family strengthening groups, and weekend pre-marital/marital education retreats.
iii. The FY 2008 PA will be amended to include the following statement prior to the priority one description:
Please note that this announcement is divided into two priority areas. The first priority area is Category I-Improving the Well-Being of Children/Native American Healthy Marriage Initiative Project Planning and the second priority area is Category II-Improving the Well-Being of Children/Native American Healthy Marriage Initiative Project Implementation. The second priority information immediately follows section VIII of priority area one. Applicants may submit under either Priority Area I or Priority Area II but not both priority areas. The Standard Form (SF) 424 and ANA Project Abstract form must clearly indicate the correct priority area.
iv. Definitions. The definition for Domestic Violence Protocol (DVP) will be added and the definition for logic model will be removed. These changes correspond to changes in the evaluation criteria. A DVP is required to be developed in Category I and is required for Category II. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991 b and 2991 b-3.)
The FY 2008 PA will include one new definition:
v. The FY 2008 PA will include two priority areas, Category I—Project Planning and Category II—Project Implementation. Communities have requested additional time to plan and develop community partners for comprehensive healthy marriage and fatherhood projects. Therefore, ANA has created two priority areas; planning and implementation, to allow communities the opportunity to apply for shorter project periods and to focus on planning activities that will ensure successful future NAHMI projects. The FY 2008 PA for Category II revises the number of required program areas of interest from three to at least one. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3.)
a. The FY 2008 PA will include the following Priority Area 1 description:
Priority Area 1: Category I—Improving the Well-Being of Children/Native American Healthy Marriage Initiative Project Planning
The purpose of a Category I planning project is to engage in a community-based planning process that assesses the current status of available resources and barriers to marriage and child well-being within an established Native community. Applicants are encouraged to develop a project that results in a comprehensive NAHMI plan that includes a community assessment of the challenges and barriers that negatively impact marriages, parenting, child well-being, and families within Native American communities; identifies resources and partnerships; and develops a strategy to help sustain healthy marriages and responsible fatherhood within Native American communities. Category I—Project Planning is for planning and design only. Program areas of interest include:
• Projects that develop a plan to provide youth education in high schools, youth organizations, and community centers on the value of healthy marriages and responsible fatherhood. This can include education on relationship conflict resolution, communication, and commitment, as long as it is done in the context of promoting healthy marriage. Projects should use a pre-marital education or responsible fatherhood curriculum focused on youth.
• Projects that develop a plan to offer marriage education and marriage skills, that may include communication skills, conflict resolution, commitment and parenting skills to expectant couples, both married and unmarried, absentee parents, as well as new parents, both married and unmarried.
• Projects that develop a plan to offer pre-marital education and marriage skills training for couples, individuals, or engaged couples interested in marriage. Training would include a marital educational course and couples would learn the knowledge and skills (e.g. communication, conflict resolution, commitment) necessary to choose marriage for themselves, if they so desire.
• Projects that develop a plan to offer absentee parents services that help them to overcome barriers that prevent them from consistent involvement in their children's lives. Services would include activities that provide the absentee parents opportunities to interact with their children and increase parental involvement, and also promote the value and importance of healthy marriages and families.
• Projects that develop a plan to offer education on communication and conflict resolution for absentee parents to improve the custodial and noncustodial parental relationship and increase absentee parents' involvement in their children's lives.
• Projects that develop a plan to provide marriage enhancement/enrichment and marriage skills training programs for married couples to improve or strengthen their relationship through a certified marital education course. The course should include lessons on communication, conflict resolution and commitment.
• Projects that develop a plan to use married couples as role models and mentors in at-risk communities to teach healthy relationship and marriage skills. Projects should include a marital educational course that emphasizes communication, commitment and conflict resolution; weekend retreats; and mentor groups.
• Projects that develop a plan to conduct research on the benefits of healthy marriages and healthy marriage education.
• Projects that develop a plan to provide public advertising campaigns in Native American communities on the value of healthy marriage, parental involvement, and responsible fatherhood as a way to improve marriages and strengthen family relationships.
b. The FY 2008 PA will include the following Priority Area 2 description:
Priority Area 2: Improving the Well-Being of Children/Native American Healthy Marriage Initiative—Project Implementation
The purpose of a Category II—NAHMI Project Implementation is to support a community-based project focused on healthy marriage and families. Other activities such as relationship skills, responsible parenting, abstinence education, and foster parenting can be included in the project but must not be the primary objective and must be in the context of supporting healthy marriage and responsible fatherhood. The primary objective of these projects is pre-marital education or marriage education for youth, adults, and couples. Eligibility for funding is restricted to projects of the type listed in this program announcement. Applicants should choose one or more program areas of interest from the list below:
• Projects that provide youth education in high schools, youth organizations and community centers on the value of healthy marriages and responsible fatherhood. This can include education on healthy relationship skills including conflict resolution, communication, and commitment, as long as it is done in the context of promoting healthy marriage. Projects should use a pre-marital education or responsible fatherhood curriculum focused on youth.
• Projects that offer marriage education and marriage skills, that may include relationship skills, communication skills, conflict resolution, commitment and parenting skills to expectant couples, both married and unmarried, absentee parents, as well as new parents, both married and unmarried.
• Projects that offer pre-marital education and marriage skills training for couples, individuals or engaged couples interested in marriage. Training would include a marital educational course and couples would learn the knowledge and skills (e.g. communication, conflict resolution, commitment) necessary to choose marriage for themselves if they so desire.
• Projects that offer absentee parents services that help them to overcome barriers that prevent them from consistent involvement in their children's lives. Services would include activities that provide the absentee parents opportunities to interact with their children and increase parental involvement, and also promote the value and importance of healthy marriages and families.
• Projects that offer education on communication and conflict resolution for absentee parents to improve the custodial and non-custodial parental relationship and increase absentee parents' involvement in their children's lives.
• Projects that provide marriage enhancement/enrichment and marriage skills training programs for married couples to improve or strengthen their relationship through a certified marital education course. The course should include lessons on communication, conflict resolution and commitment.
• Projects that use married couples as role models and mentors in at-risk communities to teach healthy relationship and marriage skills. Projects should include a marital educational course that emphasizes communication, commitment and conflict resolution; weekend retreats; and mentor groups.
• Projects that conduct research on the benefits of healthy marriages and healthy marriage education.
• Projects that provide public advertising campaigns in Native American communities on the value of healthy marriage, parental involvement, and responsible fatherhood as a way to improve marriages and strengthen family relationships.
vi. Evaluation Criteria: In addition to the newly developed evaluation criteria 35 presented in Part 1. C. of this NOPC, the FY 2008 NAHMI will remove the request for a logic model and revise the requirement for the Domestic Violence Protocol. The request for the logic model was removed to standardize the program announcements across all program areas. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3.)
a. The FY 2008 PA Priority Area One (Project Planning) will include an activity to plan and design the Domestic Violence Protocol under Criterion Three—Project Approach, Objective Work Plan. The text will read:
Include an activity to plan and design the Domestic Violence Protocol (see Definitions) the proposed project will use to identify and provide appropriate referral or services for individuals or couples where violence is occurring.
b. The FY 2008 PA Priority Area Two (Project Implementation) will include the following requirement under Criterion Three—Project Approach, Project Strategy. The text will read:
Applicants are required to discuss the Domestic Violence Protocol (see Definitions) the proposed project will use to identify and provide appropriate
vii. Funding Thresholds. The funding thresholds for this program will be revised to reflect ANA's availability of funds within this special initiative program area. These thresholds allow ANA to provide funding to the maximum number of applicants. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991 band 2991b-3.)
viii. Project Periods. The project periods reflect the review and assessment of projects monitored under this special initiative program area. These project periods allow ANA to provide funding to the maximum number of applicants. (Legal authority: Section 803(a) and (d) and 803C of the Native American Programs Act of 1974, as amended, 42 U.S.C. 2991b and 2991b-3.)
In the FY 08 PA, project periods will be:
• Priority Area 1—Planning: 12 months.
• Priority Area 2—Implementation: 36 months.
(C)
The FY 2008 PA will replace the fatherhood PAI with the following:
• Projects that address the needs of grandparents raising grandchildren.
(D)
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that Kemira Oyi has filed a petition proposing that the food additive regulations be amended to provide for the safe use of partially ammoniated formic acid as a pH control agent in swine feed.
Submit written or electronic comments on the petitioner's environmental assessment by March 11, 2008.
You may submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to:
Isabel W. Pocurull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240 453-6853, email:
Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), notice is given that a food additive petition (FAP 2258) has been filed by Kristi O. Smedley, Center for Regulatory Services, Inc., 5200 Wolf Run Shoals Rd., Woodbridge, VA 22192-5755, United States agent for Kemira Oyi, Porkkalantatu 3, PO Box 330, 001000 Helsinki, Finland. The petition proposes to amend the food additive regulations in part 573—Food Additives Permitted in Feed and Drinking Water of Animals (21 CFR part 573) to provide for the safe use of partially ammoniated formic acid as a pH control agent in swine feed when used at levels up to 1.2 percent of the feed.
The potential environmental impact of this action is being reviewed. To encourage public participation consistent with regulations issued under the National Environmental Policy Act (40 CFR 1501.4(b)), the agency is placing the environmental assessment submitted with the petition that is the subject of this notice on public display at the Division of Dockets Management (see
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Sohail Mosaddegh at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosures of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Information Network Advisory Committee (HSINAC) will meet from February 12-13, 2008, in Potomac, MD. The meeting will be open to the public.
The HSINAC will meet Tuesday, February 12, 2008, from 9 a.m. to 4:30 p.m. and on Wednesday, February 13, 2008, from 8:30 a.m. to 12 p.m. Please note that the meeting may close early if the committee has completed its business.
The meeting will be held at the Bolger Center, 9600 Newbridge Drive, Potomac, MD 20854-4436. Send written material, comments, and requests to make oral presentations to Elliott Langer, Department of Homeland Security, 245 Murray Lane SW, Bldg 410; Washington, DC 20528. Requests to make oral statements at the meeting should reach the contact person listed below by February 1, 2008. Requests to have a copy of your material distributed to each member of the committee prior to the meeting should reach the contact person at the address below by February 1, 2008. Comments must be identified by DHS-2008-0001 and may be submitted by
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Elliott Langer, 245 Murray Lane SW., Bldg 410, Washington, DC 20528,
Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. (Pub. L. 92-463). The mission of the HSINAC is to identify issues and provide independent advice and recommendations for the improvement of HSIN to senior leadership of the Department, in particular the Director of Operations Coordination. The agenda for this meeting will include an update on efforts concerning the improvement of HSIN and discussions to develop a methodology of collecting and validating HSIN community User input and User based system requirements.
This meeting is open to the public. Please note that the meeting may close early if all business is finished.
Participation in HSINAC deliberations is limited to committee members, Department of Homeland Security officials, and persons invited to attend the meeting for special presentations.
All visitors to Bolger Center will have to pre-register to be admitted to the building. Please provide your name, telephone number by close of business on February 1, 2008, to Elliott Langer (202-282-8978)
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Elliott Langer as soon as possible.
Transportation Security Administration; United States Coast Guard; DHS.
Notice.
The Department of Homeland Security (DHS) through the Transportation Security Administration (TSA) issues this notice of the dates for the beginning of the initial enrollment for the Transportation Worker Identification Credential (TWIC) for the Ports of Bourne, MA; Green Bay, WI; Pittsburgh, PA; Texas City, TX; Salisbury, MD; and Toledo, OH.
TWIC enrollment will begin in Bourne and Green Bay on January 23, 2008; Pittsburgh and Texas City on January 24, 2008; and Salisbury and Toledo on January 30, 2008.
You may view published documents and comments concerning the TWIC Final Rule, identified by the docket numbers of this notice, using any one of the following methods.
(1) Searching the Federal Docket Management System (FDMS) web page at
(2) Accessing the Government Printing Office's Web page at
(3) Visiting TSA's Security Regulations Web page at
James Orgill, TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220. Transportation Threat Assessment and Credentialing (TTAC), TWIC Program, (571) 227-4545; e-mail:
The Department of Homeland Security (DHS), through the United States Coast Guard and the Transportation Security Administration (TSA), issued a joint final rule (72 FR 3492; January 25, 2007) pursuant to the Maritime Transportation Security Act (MTSA), Pub. L. 107-295, 116 Stat. 2064 (November 25, 2002), and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Pub. L. 109-347 (October 13, 2006). This rule requires all credentialed merchant mariners and individuals with unescorted access to secure areas of a regulated facility or vessel to obtain a TWIC. In this final rule, on page 3510, TSA and Coast Guard stated that a phased enrollment approach based upon risk assessment and cost/benefit would be used to implement the program nationwide, and that TSA would publish a notice in the
This notice provides the start date for TWIC initial enrollment at the Ports of Bourne, MA; Green Bay, WI; Pittsburgh, PA; Texas City, TX; Salisbury, MD; and Toledo, OH. Enrollment will begin in Bourne and Green Bay on January 23; Pittsburgh and Texas City on January 24; and Salisbury and Toledo on January 30, 2008. The Coast Guard will publish a separate notice in the
To obtain information on the pre-enrollment and enrollment process, and enrollment locations, visit TSA's TWIC Web site at
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of funding awards.
In accordance with section 102 (a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in competitions for funding under the Notices of Funding Availability (NOFA) for the Self-Help Homeownership Opportunity Program (SHOP). This announcement contains the names of the awardees and the amounts of the awards made available by HUD.
Clifford Taffet, Director, Office of Affordable Housing Programs, Office of Community Planning and Development, 451 Seventh Street, SW., Room 7164, Washington, DC 20410-7000; telephone (202) 402-4589 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number via TTY by calling the Federal Relay Service toll-free at 1-800-877-8339. For general information on this and other HUD programs, call Community Connections at 1-800-998-9999 or visit the HUD Web site at
The Fiscal Years 2006 and 2007 Self-Help Homeownership Opportunity Program competitions were designed to facilitate and encourage innovative homeownership opportunities through self-help housing where the homebuyer would contribute a significant amount of sweat-equity toward the construction of the new dwelling. Applicants were required to be a national or regional nonprofit organization or consortium.
The competitions were announced in the SuperNOFAs published May 8, 2006 (71 FR 11962) for the Fiscal Year 2006 competition and March 13, 2007 (72 FR 11649) for the Fiscal Year 2007 competition. The NOFAs allowed for $19,800,000 for SHOP for the Fiscal Year 2006 competition and $18,677,043 for SHOP for the Fiscal Year 2007 competition. Applications were rated and selected for funding on the basis of selection criteria contained in that Notice.
For the Fiscal Year 2006 competition, a total of $19,800,000 was awarded to three grantees nationwide. For the Fiscal Year 2007 competition, a total of $18,677,043 was awarded to four grantees nationwide.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987. 42 U.S.C. 3545), the Department is publishing the grantees and amounts of the awards in Appendix A to this document.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or
In accordance with the December 12, 1988 court order in
Office of the Secretary, Interior.
Notice of Establishment of National Geospatial Advisory Committee.
The Department of the Interior, after consultation with the General Services Administration, has established the National Geospatial Advisory Committee under the authority of the Federal Advisory Committee Act (FACA). The Committee will provide advice and recommendations to the Federal Geographic Data Committee (FGDC), through the FGDC Chair (the Secretary of the Interior or designee), related to management of Federal geospatial programs, the development of the National Spatial Data Infrastructure (NSDI), and the implementation of Office of Management and Budget (OMB) Circular A-16 and Executive Order 12906. The Committee will review and comment upon geospatial policy and management issues and will provide a forum to convey views representative of non-Federal partners in the geospatial community.
Comments regarding the establishment of this Committee may be submitted by January 28, 2008,
Send comments to John Mahoney, U.S. Geological Survey, U.S. Department of the Interior, 909 First Avenue, Suite 422, Seattle, Washington 98104, e-mail address
John Mahoney, USGS (206-220-4621),
We are publishing this notice in accordance with the requirements of the FACA (5 U.S.C. App.). The Secretary of the Interior certifies that he has determined that the formation of the Committee is necessary and is in the public interest.
The Committee will conduct its operations in accordance with the provisions of the FACA. It will report to the Secretary of the Interior through the Chair of the FGDC Steering Committee and will function solely as an advisory body. The Committee will provide recommendations and advice to the Department and the FGDC on policy and management issues related to the effective operation of Federal geospatial programs.
The Secretary of the Interior will appoint Committee members and their alternates to the Committee to serve 2-year terms. The Committee will be composed of approximately 25 representatives, who will be selected to generally achieve a balanced representation of the viewpoints of the various stakeholders involved in national geospatial activities and the development of the NSDI.
The Committee is expected to meet approximately 3-4 times per year. Committee members will serve without compensation. Travel and per diem costs will be provided for Committee members by the U.S. Geological Survey (USGS). The USGS will provide necessary support services to the Committee. Committee meetings will be open to the public. Notice of committee meetings will be published in the
In accordance with the FACA, we will file a copy of the Committee's charter with the Committee Management Secretariat, General Services Administration; Committee on Energy and Natural Resources, United States Senate; Committee on Natural Resources, United States House of Representatives; and the Library of Congress.
The Certification for establishment is published below.
I hereby certify that the National Geospatial Advisory Committee is necessary and is in the public interest in connection with the performance of duties imposed on the Department of the Interior by OMB Circular A-16 (Revised),
Bureau of Land Management, Interior.
Notice of decision approving lands for conveyance.
As required by 43 CFR 2650.7(d), notice is hereby given that an appealable decision approving lands for conveyance pursuant to the Alaska Native Claims Settlement Act will be issued to Gwitchyaazhee Corporation. The lands are in the vicinity of Fort Yukon, Alaska, and are located in:
Containing 14,734.03 acres.
The subsurface estate in these lands will be conveyed to Doyon, Limited, when the surface estate is conveyed to Gwitchyaazhee Corporation. Notice of the decision will also be published four times in the Fairbanks Daily News-Miner.
The time limits for filing an appeal are:
1. Any party claiming a property interest which is adversely affected by the decision shall have until February 11, 2008 to file an appeal.
2. Parties receiving service of the decision by certified mail shall have 30 days from the date of receipt to file an appeal.
Parties who do not file an appeal in accordance with the requirements of 43 CFR part 4, subpart E, shall be deemed to have waived their rights.
A copy of the decision may be obtained from: Bureau of Land Management, Alaska State Office, 222
The Bureau of Land Management by phone at 907-271-5960, or by e-mail at
Bureau of Land Management, Interior.
Notice of Availability (NOA) of Draft Environmental Impact Statement (DEIS).
In accordance with the National Environmental Policy Act (NEPA) of 1969 as amended, the Bureau of Land Management (BLM) announces the availability of the Westside Irrigation District Land Conveyance Project DEIS for public review and comment. The DEIS analyzes the consequences of a legislated conveyance of all right, title and interest, excluding mineral interest, of a parcel of land administered by the BLM to the Westside Irrigation District, Worland, Wyoming.
The DEIS will be available for public review and comment for 45 calendar days starting on the date the Environmental Protection Agency (EPA) publishes its NOA in the
Any public meetings or other involvement activities for the Westside Irrigation District Land Conveyance (Westside Conveyance) project will be announced to the public by the BLM at least 15 days in advance through public notices, media news releases, Web site announcements, or mailings.
A copy of the DEIS has been sent to affected Federal, State, and local governments and to interested parties. The DEIS and its supporting documents will be available electronically on the following Web site:
Copies of the DEIS are available for public inspection during normal business hours at the following locations:
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82003; and
• Bureau of Land Management, Worland Field Office, 101 S. 23rd, Worland, Wyoming 82401.
Copies of the DEIS will also be delivered to the public libraries in the following communities:
• Worland, Wyoming;
• Basin, Wyoming;
A limited number of copies of the document will be available as long as supplies last. To request a copy, contact Don Ogaard, Project Manager, as described below. Written comments may be submitted by the following methods:
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• Hand-delivered to the Worland Field Office at the street address listed above.
Don Ogaard, Project Manager, Bureau of Land Management, Worland Field Office, P.O. Box 119, 101 S. 23rd, Worland, Wyoming 82401. Mr. Ogaard may also be reached by telephone at (307) 347-5160.
Public Law 106-485 (Nov. 9, 2000; 114 Stat. 2199) directs the Secretary of the Interior, acting through the BLM, to convey a parcel of public land in Big Horn County and Washakie County, to the Westside Irrigation District (Irrigation District), Worland, Wyoming. Public Law 106-485 also directs the BLM to complete an environmental analysis under NEPA.
The Westside Conveyance project area is located in southern Big Horn County and northern Washakie County. The southern end of the project area is approximately 5 miles northwest of Worland, Wyoming. The study area and tract of land comprises 16,500 acres, in Townships 92 W., 92
On February 22, 2005, the BLM published in the
The DEIS considers the environmental consequences of three alternatives:
• The No Action Alternative;
• Alternative 1—the legislated proposed action transferring 16,500 acres; and,
• Alternative 2—an alternative under which only those lands actually suitable for irrigation and those needed for project infrastructure, approximately 11,500 acres, would be transferred.
Alternative 2 is the BLM's Preferred Alternative.
After the sale and conveyance of the land to the Irrigation District, the Irrigation District would offer the conveyed land for sale to qualified individuals in parcels no less than 160 acres per individual. The parcels of land would be specified for use to serve agricultural purposes. The Irrigation District would select qualified individuals through a lottery. Successful individuals then would be required to be members of and their lands included in the Irrigation District.
The law directing the conveyance of the land specifies that acreage may be added to or subtracted from the original 16,500 acres to satisfy any mitigation as required in the Final EIS and its Record of Decision (ROD). Alternative 2 would subtract 5,000 acres in accordance with this provision. The law further provides that proceeds from the sale of the public lands to the Irrigation District will be deposited in a special account “for the acquisition of land and interests in land in the Worland District of the Bureau of Land Management that will benefit public recreation, public access, fish and wildlife habitat, or cultural resources.”
The State of Wyoming Water Development Commission (WWDC) is joint lead agency as provided in 40 Code of Federal Regulations 1500-1580. In the future the WWDC would use the FEIS and ROD in support of any future funding decisions made by the WWDC should the Irrigation District apply for water supply development assistance. Cooperating agencies in the preparation of the DEIS include Big Horn and Washakie Counties.
All comments submitted must include the commenter's name and street address. Comments including the names and addresses of the respondent will be available for public inspection at the Worland Field Office during its business hours (7:45 a.m. to 4:30 p.m.), Monday through Friday, except Federal holidays. Before including your address, phone number, e-mail address, or any other personal identifying information in your comment, be advised that your entire comment, including your personal
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321
To assure that they will be considered, the BLM/CPUC must receive written comments on the Draft EIS/EIR within 90 days following the date the Environmental Protection Agency publishes their Notice of Availability in the
You may submit comments in a variety of ways: (1) By U.S. mail, (2) by electronic mail, (3) by fax, or (4) by attending a public meeting and submitting written comments at the meetings.
Information concerning the Draft EIS/Plan Amendment may be obtained from Lynda Kastoll, Project Manager for the BLM, at (760) 337-4421, or e-mail at
A copy of the Draft EIS/EIR for the Proposed Sunrise Powerlink Project is available for review at:
• BLM—El Centro Field Office, 1661 South 4th Street, El Centro, CA 92243, (760) 337-4421;
• BLM—Palm Springs/South Coast Field Office, 690 West Garnet Avenue, North Palm Springs, CA 92258, (760) 251-4849;
• CPUC—Los Angeles Office, 320 West 4th Street, Suite 500, Los Angeles, CA 90013, (213) 576-7000;
• CPUC—Headquarters Office, 505 Van Ness Avenue, Room 2103, San Francisco, CA 94102, (425) 703-2074; or
• CPUC Internet Web site at
• Several public libraries in Imperial, San Diego and Riverside Counties, California.
• Electronic (on CD-ROM or DVD) or paper copies may also be obtained by contacting the BLM or the CPUC at the aforementioned addresses and phone numbers.
SDG&E proposes to construct a new 91-mile, 500-kilovolt (kV) electric transmission line from Imperial Valley Substation (in Imperial County, near the City of El Centro) to a new Central East Substation (in central San Diego County, southwest of the intersection of County Highways S22 and S2) and a new 59-mile 230-kV line that includes both overhead and underground segments from the new Central East Substation to SDG&E's existing Peñasquitos Substation (in the City of San Diego). Portions of the proposed 500-kV line transmission line would traverse approximately 35 miles of Federal lands managed by the BLM within the California Desert Conservation Area in Imperial County, and approximately 1 mile in San Diego County. Depending on which alternative is selected (exclusive of the No Action Alternative), the project would require an amendment to one or both of the following land use plans: the BLM's
The proposed transmission lines would utilize structures ranging in height from 120 to 170 feet, spaced approximately 700 to 1,600 feet apart, and would occupy rights-of-way of approximately 60 to 300 feet in width (subject to local conditions and restrictions). Existing disturbed corridors would be utilized to the extent feasible, to minimize potential environmental impacts. Where possible, SDG&E anticipates locating new facilities within or along existing rights-of-way.
The Draft EIR/EIS evaluates and presents the environmental impacts that are expected to result from construction and operation of the proposed project, and presents recommended mitigation measures that would avoid or minimize many of the significant environmental impacts identified. In accordance with CEQA and NEPA, the Draft EIR/EIS identifies alternatives to the proposed project (including the No Action Alternative) that could avoid or minimize significant environmental impacts associated with the project as proposed by SDG&E, and evaluates the environmental impacts associated with these alternatives.
The Draft EIR/EIS reflects input by government officials, agencies, non-governmental organizations, and concerned members of the public during the two public scoping periods following the CPUC's publication of the Notice of Preparation of an EIR/EIS on September 15, 2006, and the BLM's publication of the Notice of Intent in the
Comments received may be published as part of the EIS/EIR process. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Announcement of meetings.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Sierra Front-Northwestern Great Basin Resource Advisory Council (RAC), will meet as indicated below.
The RAC will meet twice in fiscal year 2008: April 29-30 at the BLM Carson City Field Office, 5665 Morgan Mill Road, Carson City, Nevada; and July 15-16 at Bruno's Country Club Café, 445 Main Street, Gerlach, Nevada, with a field trip to the Black Rock-High Rock National Conservation Area. All meetings are open to the public. Meeting times are 9 a.m. to 4 p.m. and will include a general public comment period, where the public may submit oral or written comments to the RAC. Each public comment period will begin at approximately 3 p.m. unless otherwise listed in each specific, final meeting agenda.
Mark Struble, (775) 885-6107, E-mail:
The 15-member Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in Nevada.
Topics for discussion will include, but are not limited to:
Managers' reports of field office activities will be given at each meeting. The council may raise other topics at either of the two planned meetings. Final agendas with any additions/corrections to agenda topics, locations, field trips and meeting times, will be posted on the BLM Web site at:
Bureau of Land Management, Interior.
Notice of Closure-Emergency/Safety.
The Bureau of Land Management (BLM) Jarbidge Field Office is implementing an emergency closure in order to protect cultural and natural resources and stabilization treatments as recommended in the Department of the Interior's Emergency Stabilization and Rehabilitation Plan for the Murphy Complex Fire. The closure allows motorized vehicle traffic (e.g. All-Terrain Vehicles, pickups, motorcycles, sport utility vehicles, etc.) on established roads within the fire perimeter, legal boundaries and transportation routes (please refer to supplementary information for description of closure area). The purpose of the closure is to restrict off-road vehicle use while providing continued public access to and through the area. Vehicles traveling cross-country in a burned area may damage reemerging plants, increase erosion and spread noxious weeds. Closure signs will be posted at main entry points to this area. Maps of the closure area may be obtained at the address listed below.
This closure is effective upon publication in the
Max Yingst, Outdoor Recreation Planner, Jarbidge Field Office, Bureau of Land Management, 2536 Kimberly Road, Twin Falls, Idaho, 83301-7975, or call (208) 736-2362.
Copies of the closure and a map of the closed area may be obtained at the BLM, Jarbidge Field Office, 2536 Kimberly Road, Twin Falls, Idaho 83301, telephone (208) 736-2350.
In July 2007, the Murphy Complex Fire consumed 496,760 acres in the Idaho BLM Twin Falls District, Jarbidge Field Office. This closure order applies to
BLM lands per county (acres):
A total of approximately 510,477 acres.
The closure does not apply to authorized vehicles, rescue vehicles, BLM operation and maintenance vehicles, resource management activities, or use by fire and law enforcement vehicles. In addition, access to private property by property owners may be authorized by the BLM Field Manager. Nothing in this closure is intended to affect legal hunting as consistent with Idaho Department of Fish and Game regulations; however there will be no exceptions granted for cross country travel.
Under section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a) and 43 CFR 8360-7), if you violate this closure on public land within the boundaries established, you may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided by Title 18 U.S.C. 3571.
1. Slopes and soils show signs of stabilization and have not experienced slope failure through at least one winter season.
2. Re-growth of vegetation has sufficiently obscured cultural sites exposed by the fire.
3. Seeding treatments on burned areas are successfully established.
43 CFR 8364.1 and 43 CFR 8341.2
National Park Service, Interior.
Announcement of Park Boundary Revision.
This notice announces the revision to the boundary of Mesa Verde National Park to include the parcel of land known as Tract 01-135. The United States will acquire this tract from The Mesa Verde Foundation upon the revision of the boundary. The National Park Service has determined that this boundary revision will make a significant contribution to the purpose for which the Park was created. The effect date of this boundary revision is the date on which this notice is published in the
Superintendent, Mesa Verde National Park, P.O. Box 8, Mesa Verde NP, CO 81130-0008 or by telephone at 928-567-5276.
Before including your address, phone number, e-mail address, or other presonal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
16 U.S.C. 460
The above parcel is depicted as tract number 01-135 on land status map sheet 1 of 1, having drawing number 307-92000 and dated June 29, 2006. This map is on file at the National Park Service Land Resources Program Center, Intermountain Region, Santa Fe, New Mexico, and at the Office of the Superintendent at Mesa Verde National Park, Mesa Verde, Colorado.
This document was received by the Federal Register on January 7, 2008.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before December 22, 2007. Pursuant to section 60.13 of 36 CFR Part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St., NW., 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St., NW., 8th floor, Washington DC 20005; or by fax, 202-371-6447. Written or faxed comments should be submitted by January 28, 2008.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining Reclamation and Enforcement (OSM) is announcing that the information collection request for its Technical Evaluation customer surveys has been forwarded to the Office of Management and Budget (OMB) for review and comment. The information collection request describes the nature of the information collection and the expected burden and cost. The OMB control number for this collection of information is 1029-0114 and is on the forms along with the expiration date.
OMB has up to 60 days to approve or disapprove the information collections but may respond after 30 days. Therefore, public comments should be submitted to OMB by February 11, 2008, in order to be assured of consideration.
Submit comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Department of Interior Desk Officer, by telefax at (202) 395-6566 or via e-mail to
To request a copy of the information collection request, explanatory information and related forms, contract John A. Trelease at (202) 208-2783, or electronically to
The Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. OSM has submitted a request to OMB to renew its approval of the collection of information contained in a series of technical evaluation customer surveys. OSM is requesting a 3-year term of approval for the information collection activity.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for this collection of information is 1029-0114.
As required under 5 CFR 1320.8(d), a
Send comments on the need for the collection of information for the performance of the functions of the agency; the accuracy of the agency's burden estimates; ways to enhance the quality, utility and clarity of the information collection; and ways to minimize the information collection burdens on respondents, such as use of automated means of collections of the information, to the addresses listed under
Notice is hereby given that on December 28, 2007, a proposed Consent Decree in
In this action, the United States seeks civil penalties and injunctive relief for violations of the Clean Water Act, 33 U.S.C. 1251,
Under the proposed Consent Decree, the City would be required to: (1) Implement injunctive measures to address combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs), at a total cost of approximately $250 million; (2) pay the United States a civil penalty of $269,190; (3) perform a federal Supplemental Environmental Project (SEP) valued at $400,000; and (4) either pay the State of Indiana a civil penalty of $269,190, or pay the State a civil penalty of $26,190 and complete state SEPs costing at least $484,542. Under the proposed Consent Decree, the injunctive relief is to be implemented over an 18-year period and is designed to eliminate SSOs and reduce the number of CSOs to approximately one per year on the St. Joseph River and four per year on the St. Mary's and Maumee Rivers.
For a period of 30 days from the date of this publication, the Department of Justice will receive comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
The proposed Consent Decree may be examined at the Office of the United States Attorney, Northern District of Indiana, 5400 Federal Plaza, Suite 1500, Hammond, IN 46320-1843 (contact Assistant United States Attorney Wayne Ault (219/937-5500)), and at the U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, IL 60604-3590 (contact Associate Regional Counsel Nicole Cantello (312/886-2870)). During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site:
In accordance with Departmental policy, 28 CFR 50.7, and section 122 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9622, notice is hereby given that on December 19, 2007 a proposed settlement agreement in
Under the terms of the Settlement Agreement, W.R. Grace & Co. will grant the United States an allowed general unsecured claim of $34,065,813.31 and an administrative priority claim of $2,294,279.86 (of which $672,574.42 will be paid within 30 days of Bankruptcy Court approval). Certain other PRPs at these sites will receive allowed general unsecured claims totaling $7,707,336.88.
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the proposed settlement agreement. Comments should be addressed to the Assistant Attorney General for the Environment and Natural Resources Division, Washington DC 20530, and may be submitted by electronic mail to
The settlement agreement may be examined on the following Department of Justice Web site
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 504) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of Commission business and other matters specified, as follows:
Thursday, January 24, 2008, at 1:30 p.m.
Issuance of Amended Proposed Decisions and Amended Final Decisions in claims against Albania.
Open.
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street, NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Administrative Officer, Foreign Claims Settlement Commission, 600 E Street, NW., Room
By application dated December 20, 2007, the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service workers International Union (the Union) requested administrative reconsideration of the Department's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance applicable to workers and former workers of the subject firm. The determination was issued on November 9, 2007. The Department's Notice of determination was published in the
The determination was based on the Department's findings that the subject firm did not shift production of incandescent glass bulbs or glass ornaments to a foreign country; the subject firm exports glass bulbs abroad for further processing; the subject firm does not import articles that are like or directly competitive with the glass bulbs produced by the subject firm; and the subject firm's major customers of glass ornaments did not purchase imports of glass ornaments during the relevant period.
In the request for reconsideration, the Union alleged that the subject firm is importing incandescent lamps with glass bulbs that are like or competitive with those produced at the Danville, Kentucky facility and that a major customer of the subject firm has replaced purchases of glass ornaments from the subject firm with imports. The Union's request for reconsideration included support documentation.
The Department has carefully reviewed the workers' request for reconsideration and has determined that the Department will conduct further investigation.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the U.S. Department of Labor's prior decision. The application is, therefore, granted.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
The National Science Board's Task Force on Cost Sharing of the Committee on Strategy and Budget, pursuant to NSF regulations (45 CFR Part 614), the National Science Foundation Act, as amended (42 U.S.C.1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of a teleconference, as follows:
Wednesday, January 16, 2008 at 2 p.m.
1. Update on Cost Sharing Roundtable Discussion at the NSF I/UCRC 2008 Annual Meeting.
2. Discussion of Draft February 9, 2008 Board Report to Congress.
Open.
This teleconference will originate from the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. Room 130 will be available to the public to listen to this teleconference.
Please refer to the National Science Board Web site (
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) received one petition in September 2007 to review certain practices in a beneficiary developing country to determine whether such country is in compliance with the ATPA eligibility criteria. This notice specifies the results of the review of that petition as well as the status of the petitions filed in prior years that have remained under review.
Bennett M. Harman, Deputy Assistant U.S. Trade Representative for Latin America, at (202) 395-9446.
The ATPA (19 U.S.C. 3201
In a
The TPSC is terminating its review of a petition filed with respect to 19 U.S.C. 3202(c)(2)(A), by Engelhard Corporation in 2003 regarding its tax dispute with the Peruvian government because the petitioning company is no longer majority U.S.-owned. The TPSC is also terminating its review of a petition filed by Parsons Corporation in 2004 regarding a payment dispute with the Peruvian government, since that matter has since been resolved through arbitration.
Following is the list of all petitions from prior years that will remain under review through February 29, 2008, which is the period that the ATPA is in effect:
Under Section 2 of the Railroad Retirement Act, dependency on an employee for one-half support at the time of an employee's death can be a condition affecting entitlement to a survivor annuity and can affect the amount of both spouse and survivor annuities. One-half support is also a condition which may negate the public service pension offset in Tier I for a spouse or widow(er). The Railroad Retirement Board (RRB) utilizes Form G-134, Statement Regarding Contributions and Support, to secure information needed to adequately determine if the applicant meets the one-half support requirement. One form is completed by each respondent.
The RRB proposes no changes to Form G-134.
The estimated annual respondent burden is as follows:
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold the following meeting during the week of January 14, 2008:
A Closed Meeting will be held on Tuesday, January 15, 2008 at 2 p.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters may also be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5
Commissioner Nazareth, as duty officer, voted to consider the items listed for the closed meeting in closed session.
The subject matter of the Closed Meeting scheduled for Tuesday, January 15, 2008 will be:
Formal orders of investigations;
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings of an enforcement nature;
Regulatory matters regarding financial institutions;
An opinion;
Resolution of a litigation claim;
Other matters related to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact:
The Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The ISE proposes to amend its Rule 2009(a)(3) (Terms of Index Option Contracts) to allow the Exchange to list up to seven expiration months for broad-based security index options upon which an exchange calculates a constant three-month volatility index. The text of the proposed rule change is available on the Exchange'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 purpose of this rule filing is to amend Rule 2009(a)(3) (Terms of Index Options Contracts) to allow the Exchange to list up to seven expiration months for broad-based security index options upon which a constant three-month volatility index is calculated. Currently, Rule 2009(a)(3) permits the Exchange to list only six expiration months in any index options at any one time.
Volatility products offer investors a unique set of tools for speculating and hedging. For example, the Chicago Board Options Exchange (“CBOE”) Volatility Index (“VIX”) options, first introduced in February 2006, have proven to be one of CBOE's most successful new products ever listed, currently averaging over 90,000 contracts traded per day. CBOE has stated that it plans to introduce new volatility products and new volatility indexes in the near future. One such index is the CBOE S&P 500 Three-Month Volatility Index (“VXV”).
Accordingly, an index calculator would need to use four consecutive expiration months in order to calculate a constant three-month volatility index. Under the current application of ISE Rule 2009(a)(3), the Exchange generally lists three consecutive near term months and three months on a quarterly expiration cycle. One of the three consecutive near term months is always a quarterly month; however, that near term contract month (which is also a quarterly month) is not included as part of the three months listed on a quarterly expiration cycle. Therefore, in order to permit the addition of four consecutive near term months under current Rule 2009(a)(3), the Exchange would only be able to list two months on a quarterly expiration cycle. Because of customer demand and other investment strategy reasons for having three months on a quarterly expiration cycle, the Exchange is seeking to increase, from six to seven, the number of expiration months for broad-based security index options upon which a constant three-month volatility index is calculated.
Without this proposed rule change, if a three-month volatility index is calculated using only three consecutive near term months, this would result in the VXV being calculated with options
Therefore, the Exchange believes that the addition of a fourth consecutive near-term month for broad-based security index options upon which a constant three-month volatility index is calculated will result in a consistent calculation in which the option series that bracket three months to expiration will always expire one month apart. In order to accommodate the listing of a fourth consecutive near term month and to maintain the listing of three months on a quarterly expiration cycle, the Exchange proposes the increase, from six to seven, the number of expiration months for broad-based security indexes on which a constant three-month volatility index is calculated.
ISE has analyzed its capacity and represents that it believes the Exchange and the Options Price Reporting Authority have the necessary systems capacity to handle the additional traffic associated with the additional listing of a seventh contract month in order to maintain four consecutive near term contract months for those broad-based security index options upon which a constant three-month volatility index is calculated.
Because the increase in the number of expiration months is limited to broad-based security indexes upon which a constant three-month volatility index is calculated and because the series could be added without presenting capacity problems, the Exchange believes the rule proposal is consistent with the Act and the rules and regulations under the Act applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
The proposed rule change does 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 members or other interested parties.
Because the foregoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
The Commission believes that increasing, from six to seven, the number of expiration months for broad-based security indexes on which an Exchange calculates a constant three-month volatility index (to accomodate a fourth consecutive near-term month while maintaining the listing of three months on a quarterly expiration cycle) will result in a more consistent and predictable calculation in which the option series that bracket three months to expiration will always expire one month apart, thereby promoting just and equitable principles of trade while protecting investors and the public interest.
The Commission also notes ISE's representations that it possesses the necessary systems capacity to handle the additional traffic associated with the additional listing of a seventh contract month in order to maintain four consecutive near term contract months for those broad-based security index options upon which the Exchange calculates a constant three-month volatility index.
For these reasons, the Commission designates the proposed rule change to be operative upon filing with the Commission.
At any time within 60 days of the filing of such 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 Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-ISE 2007-113 and should be submitted on or before February 1, 2008.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On September 28, 2007, the New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of California (FEMA-1731-DR), dated 10/24/2007.
01/04/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster
All other information in the original declaration remains unchanged.
Pursuant to the Federal Advisory Committee Act, Appendix 2 of Title 5, United States Code, Public Law 92-463, notice is hereby given that the U.S. Small Business Administration (SBA), National Small Business Development Centers Advisory Board will be hosting a public meeting via conference call to discuss such matters that may be presented by board members, staff of the U.S. Small Business Administration, and interested others. The conference call will be held on Tuesday, January 15, 2008 at 1 p.m., Eastern Standard Time.
The purpose of this meeting is to introduce a new board member and to discuss official SBDC business.
Anyone wishing to make an oral presentation to the Board must contact Alanna Falcone, Program Analyst, U.S. Small Business Administration, Office of Small Business Development Centers, 409 3rd Street, SW., Washington, DC 20416, telephone (202) 619-1612 or fax (202) 481-0134.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Oklahoma (FEMA-1735-DR), dated 12/18/2007.
12/21/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Oklahoma, dated 12/18/2007, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Oklahoma (FEMA-1735-DR), dated 12/18/2007.
01/03/2008.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Oklahoma, dated 12/18/2007, is hereby amended to establish the incident period for this disaster as beginning 12/08/2007 and continuing through 01/03/2008.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Washington (FEMA-1734-DR), dated 12/08/2007.
12/19/2007.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth , TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Washington, 12/08/2007, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Social Security Administration.
Notice of Rescission of SSR.
In accordance with 20 CFR 402.35(b)(1), the Commissioner of Social Security gives notice of the rescission of SSR 94-4p.
January 11, 2008.
Robin Strauss, Social Insurance Specialist, Social Security Administration, Office of Income Security Programs, 252 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, (410) 965-7944 for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
SSRs make available to the public precedential decisions relating to the Federal old-age, survivors, disability and supplemental security income programs. SSRs may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, and other policy interpretations of the law and regulations.
On July 11, 1994, we issued SSR 94-4p which implemented the decisions in
• Giving adequate written notice of a determination of overpayment and the right to contest such determination and request waiver of recovery of the overpayment; and
• Providing the person from whom we are seeking recovery of an overpayment with the opportunity for a face-to-face oral hearing before we deny a request for waiver of recovery of the overpayment.
In 1996, 20 CFR 404.502a incorporated the provision of giving adequate written notice of a determination of overpayment and the right to contest such determination and request waiver of recovery of the overpayment. The provision of giving the opportunity for a hearing before we deny a request for waiver of recovery of the overpayment was incorporated into 20 CFR 404.506(e)(1), which states that the individual is given the opportunity to “appear personally” at the personal conference. Current regulations do not further specify the method in which this appearance may be made. Although our policy has been to provide a face-to-face appearance at the field office, this is not always convenient for the beneficiary. Often, if a beneficiary is not able to come to the face-to-face conference, field office personnel will go to the person to hold the conference. Offering additional appearance options for the conference would improve service to the beneficiaries and reduce costly home visits by field personnel.
In order to fulfill our stewardship responsibilities to the Social Security trust fund, we must employ methods that will simplify our personal conference procedures and use our resources most efficiently. We should be using all available technology when we conduct personal conferences. Therefore, elsewhere in this
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking renewal of the following currently approved information collection activities. Before submitting these information collection requirements for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below.
Comments must be received no later than March 11, 2008.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590, or Ms. Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-0566.” Alternatively, comments may be transmitted via facsimile to (202) 493-6216 or (202) 493-6479, or via E-mail to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6292) or Gina Christodoulou, Office of Support Systems Staff, RAD-43, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Mail Stop 35, Washington, DC 20590 (telephone: (202)
The Paperwork Reduction Act of 1995 (PRA), Pub. L. No. 104-13, § 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR Part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval for reinstatement or renewal by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below is a brief summary of the currently approved information collection activities that FRA will submit for clearance by OMB as required under the PRA:
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a temporary waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Ohio Central Railroad System (OCRS) has submitted a temporary waiver petition to support field testing of its processor-based train control system, identified as the OCRS Positive Train Control (OCRS PTC), pursuant to sections 211.7 and 211.51.
An informational filing, as required under Part 236, Subpart H, has also been prepared and submitted in conjunction with this waiver petition, and can be found in the same docket as this waiver petition (FRA-2006-26177).
The OCRS PTC system is designed to prevent authority limit and overspeed violations in nonsignaled Track Warrant Control territory, and to prevent equipped trains from entering, without authorization, the limits of on-track authority granted to employees.
OCRS desires to commence field testing of the OCRS PTC system in the 4th quarter of 2007, or as soon as practicable thereafter, contingent upon FRA's acceptance and approval of the informational filing and waiver petition. OCRS intends to test and develop the OCRS PTC system on its C&N Subdivision between Columbus and Newark, OH. During this initial test phase, however, OCRS does not intend to activate the OCRS PTC system's locomotive enforcement functionality.
OCRS is seeking regulatory relief for development testing and demonstration purposes only. Specifically, OCRS is requesting regulatory relief from the following FRA requirements:
• Section 216.13 (Special Notice for Repairs—Locomotive),
• Section 217.9 (Program of Operational Tests and Inspections—Recordkeeping),
• Section 217.11 (Program of Instruction on Operating Rules—Recordkeeping, Electronic Recordkeeping),
• Part 218, Subpart D (Prohibition Against Tampering with Safety Devices),
• Section 220.7 (Railroad Communications—Penalty),
• Section 220.29 (Statement of Letters and Numbers in Radio Communications),
• Section 220.37 (Testing Radio and Wireless Communication Equipment),
• Section 220.61 (Radio Transmission of Mandatory Directives),
• Section 229.7 (Prohibited Acts),
• Section 235.5 (Changes Requiring Filing of Application),
• Section 240.127 (Criteria for Examining Skill Performance), and
• Section 240.129 (Criteria for Monitoring Operational Performance of Certified Engineers).
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g. Waiver Petition Docket Number FRA-2006-26177) and may be submitted using one of the following methods:
•
•
•
•
Communications received within 30 days of the date of this notice will be considered by FRA before final action being taken. Comments received after this date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by 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
In accordance with Part 229 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance with certain requirements of its Railroad Locomotive Safety Standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The WATCO Companies, Inc. (WATCO) seeks a waiver to comply with the requirements in 49 CFR 229.137(b)(iv), which would allow the toilets to be removed from those newly acquired locomotives, which came equipped with sanitation compartments. The total number of these newly acquired locomotives is 53, which were purchased from the after market and only a portion of these locomotives contained sanitation compartments. These locomotives have now been disbursed around the WATCO railroads mixed in with the existing locomotives that are not equipped with sanitation compartments.
WATCO is comprised of the following railroads: Alabama Southern Railroad, Arkansas Southern Railroad, Eastern Idaho Railroad, Great Northern Railroad,
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2007-27969) and may be submitted by any of the following methods:
•
•
•
•
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of any written communications and 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
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes the collection of information associated with NHTSA's regulations in 49 CFR Part 566
Comments must be received on or before March 11, 2008.
Mr. David Coleman, Office of Vehicle Safety Compliance, 1200 New Jersey Avenue, SE., Room W43-488, Washington, DC 20590-0001. Telephone: (202) 366-5302 Refer to: OMB Control Number 2127-0043.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) how to enhance the quality, utility, and clarity of the information to be collected;
(iv) how to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g. permitting electronic submission of responses). In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information:
Comments should refer to the docket and notice numbers above and be submitted by any of the following methods:
•
•
•
•
•
To receive confirmation that your comments were received, enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
(1) Go to the Federal Docket Management System (FDMS) Web page
(2) At that site, click on “search for dockets.”
(3) Select (
(4) From the drop-down menu in the Agency field, select “National Highway Traffic Safety Administration.”
(4) Enter number NHTSA-2007-0051 (the Docket ID).
(5) Click on “submit.”
(6) The response should contain the docket summary information for this docket.
(7) Click on the comments you wish to see.
(8) You may download the comments. These files are imaged documents (i.e. Adobe Acrobat pdf files) and can be “word searched” using a suitable software application. Please note that it is recommended to search the Docket periodically, as new material is added as it becomes available.
44 U.S.C. 3506(c); delegation of authority at 49 CFR 1.50 and 501.8(f).
Surface Transportation Board, DOT.
Notice of OMB Approval of Information Collection.
Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501,
OMB may not approve a collection for longer than three years. Therefore, unless renewed, OMB's approval of this collection will expire on December 17, 2010. The display of a currently valid OMB control number for this collection is required by law. Under the PRA and 5 CFR 1320.8, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to
You should submit written comments by February 11, 2008.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mail Stop 1-5, Attention: 1557-0223, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0223, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You can request additional information or a copy of the collection from Mary Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval of the following information collection:
The OCC issued a 60-day
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463, Federal Advisory Committee Act, that a meeting of the Health Services Research and Development Scientific Merit Review Board will be held March 4-6, 2008, at the Phoenix Marriott Mesa, 200 N. Centennial Way, Mesa, Arizona. Various subcommittees of the Board will meet during the review period. Each subcommittee meeting of the Merit Review Board will be open to the public the first day for approximately one-half hour from 8 a.m. until 8:30 a.m. to cover administrative matters and to discuss the general status of the program. The remaining portion will be closed. The closed portion of each meeting will involve discussion, examination, reference to, and oral review of the research proposals and critiques.
The purpose of the Board is to review research and development applications concerned with the measurement and evaluation of health care services, the testing of new methods of health care delivery and management, and nursing research, Applications are reviewed for scientific and technical merit. Recommendations regarding funding are prepared for the Chief Research and Development Officer.
On Tuesday, March 4, two subcommittees will convene from 8 a.m. to 5 p.m.—Long Term Care & Aging and Nursing Research Initiative (NRI). On Wednesday, March 5, five subcommittees will convene from 8 a.m. to 5 p.m.—Chronic Disease Management, Equity/Women's Health, Health Services Research Methodology, Implementation and Management Research Science, and Mental Health & Post-Deployment Health. On Thursday, March 6, four subcommittees will convene from 8 a.m. to 5 p.m.—Chronic Disease Management, Health Services Research Methology, Implementation and Management Research Science, and Mental Health & Post-Deployment Health.
After the subcommittees meet there will be a debriefing provided to members to the Health Services Research & Development Scientific Merit Review Board. The purposes of the debriefing are to discuss the outcomes of the review sessions and to ensure the integrity and consistency of the review process.
During the closed portions of the meetings on March 4-6, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92-463, as amended by
Those who plan to attend the open session should contact the Assistant Director of Operations (124B), Health Services Research and Development Service, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, at least five days before the meeting. For further information, call (202) 254-0207.
By Direction of the Secretary.
Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (DHHS).
Notice of proposed rulemaking (NPRM).
The Administration for Children and Families (ACF) is proposing to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations at 45 CFR 1355.40 and the appendices to part 1355 to modify the requirements for States to collect and report data to ACF on children in out-of-home care and in subsidized adoption or guardianship arrangements with the State. This proposed rule also implements the AFCARS penalty requirements of the Adoption Promotion Act of 2003 (Pub. L. 108-145).
In order to be considered, we must receive written comments on this notice of proposed rulemaking on or before March 11, 2008.
Interested persons are invited to submit written comments regarding this proposed rule via regular postal mail to Kathleen McHugh, Director, Division of Policy, Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, 1250 Maryland Avenue, SW., Suite 800, Washington, DC 20024. Please be aware that mail sent to us may take an additional 3-4 days to process due to changes in mail handling resulting from the anthrax crisis of October 2001. If you choose to use an express, overnight, or other special delivery method, please ensure first that they are able to deliver to the above address. You may also transmit comments electronically via e-mail to
Comments that concern information collection requirements must be sent to the Office of Management and Budget at the address listed in the Paperwork Reduction Act section of this preamble. A copy of these comments also may be sent to the Department representative listed above.
Kathleen McHugh, Director of Policy, Children's Bureau, Administration on Children, Youth and Families, (202) 401-5789 or by e-mail at
The preamble to this notice of proposed rulemaking is organized as follows:
In 1982, the Department, through a grant to the American Public Human Services Association (formerly the American Public Welfare Association), implemented the Voluntary Cooperative Information System (VCIS) to collect aggregate information annually about children in foster care and special needs adoption from State child welfare agencies. While some States reported data to VCIS, by 1986, Congress and other stakeholders recognized that there were a number of weaknesses in VCIS. Namely, VCIS was criticized for intermittent reporting by the States; the use of a variety of reporting periods; a lack of common definitions for data elements; a lack of timeliness of the data, poor data quality, and the collection of aggregate data which had limited analytic utility.
As a result of these and other concerns, the President signed Public Law 99-509 on October 21, 1986, which in part added section 479 to title IV-E of the Social Security Act (the Act). Section 479 of the Act describes the series of steps that the Department of Health and Human Services (DHHS) was required to take to establish a national data collection system for adoption and foster care. We were required to develop a system that avoids unnecessary diversion of resources from agencies responsible for adoption and foster care and assures that the data collected is reliable and consistent over time and across jurisdictions through the use of uniform definitions and methodologies. Furthermore, the law required the system to provide comprehensive national information on the demographic characteristics of adopted and foster children and their parents (biological, foster and/or adoptive parents); the status of the foster care population (including the number of children in foster care, length of placement, type of placement, availability for adoption, and goals for ending or continuing foster care); the number and characteristics of children placed in or removed from foster care; children adopted or with respect to whom adoptions have been terminated; children placed in foster care outside the State which has placement and care responsibility; and, the extent and nature of assistance provided by Federal, State and local adoption and foster care programs and the characteristics of the children to whom such assistance is provided.
The President signed into law the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66) on August 19, 1993. Public Law 103-66 provides States with the opportunity to obtain title IV-E funds to plan, design, develop, and implement a Statewide Automated Child Welfare Information System (SACWIS). On December 22, 1993, ACF published final rules to establish the AFCARS and implement SACWIS.
In the AFCARS final rule we required States to submit certain data to us on a semi-annual basis about children in foster care and adoptions that involve the State agency. The rule required States that chose to develop a SACWIS to ensure that their system could report information to AFCARS. We also set forth data standards that each State must meet to be considered in compliance with the AFCARS requirements.
States were required to report the first AFCARS data to us for FY 1995. However, it was not until FY 1998, when we implemented AFCARS financial penalties for a State not submitting data or submitting data of poor quality that the data became stable enough for ACF and others to use for a wide variety of purposes.
The President signed the Adoption and Safe Families Act of 1997 (Pub. L. 105-89) in November 1997, which required the use of AFCARS data for two specific activities: The calculation of Adoption Incentive Payments (section 473A of the Act) and the Child Welfare Outcomes Annual Report (section 479A of the Act). Since that
Due to a settlement of several States' appeals of AFCARS penalties, ACF discontinued withholding Federal funds for a State's failure to comply with AFCARS requirements in January 2002 (see ACYF-CB-IM-02-03). However, late in 2003 the President signed the Adoption Promotion Act of 2003 (Pub. L. 108-145), which required ACF to institute specific financial penalties for a State's noncompliance with AFCARS requirements. We notified States in ACYF-CB-IM-04-04 issued on Feb. 17, 2004, that we will not assess penalties until we issue revised final AFCARS regulations, the subject of this proposed rule.
In the preamble to the AFCARS final regulation issued in 1993, we indicated that we would revisit the regulations to assess how we may improve AFCARS (58 FR 67917). This proposed rule is the culmination of that process. We undertook an intensive review of every aspect of AFCARS in developing the proposals in this NPRM. We analyzed the types of technical assistance requested by and provided to States, our findings from AFCARS assessment reviews, and reports from the past several years issued by the Government Accounting Office (GAO) and the Department's Office of the Inspector General (OIG) on AFCARS-related issues.
ACF also consulted with the public through a variety of focus groups and a
• The specific strengths of AFCARS;
• The specific weaknesses of AFCARS or suggestions for areas of improvement, including ideas about how the suggested improvement could be made and how the Federal government could facilitate the changes;
• Data elements currently in AFCARS that could be deleted and any elements that should be added;
• Strategies to improve data quality for AFCARS, including the use of incentives; and
• How the AFCARS data files are structured and submitted.
Many stakeholders recognized that AFCARS has considerable strengths that include, but are not limited to: The ability to produce timely reports that estimate the number of children in foster care and those being adopted; the ability to support in-depth analyses of case-level data; and the ability to generate information that had not been anticipated when AFCARS was established.
However, commenters also noted that expansion of the use of AFCARS data has highlighted areas that need improvement. For example, there are substantive gaps in the areas covered by the current data elements such as information about adoption disruptions, the placement experiences of sibling groups, the demographics and assistance provided to children under adoption assistance agreements, where children are placed when they are placed out-of-State, and the identification of the different populations served by child welfare agencies (e.g. children in out-of-home care due primarily to their involvement with juvenile justice or their need for mental health services). In particular, stakeholders point out that data from AFCARS is insufficient to support expanded analysis of data for the CFSRs and other performance measures. Many commenters also believe that we need to refine some of the definitions of AFCARS data elements and their response categories (e.g. expand reasons for exit), and how these and other changes in data elements might be facilitated in the future. In addition to the need for new and refined data elements, stakeholders noted that the data structure of AFCARS may need to be revised to take advantage of advances in information technology and/or to make possible the utilization of a wider variety of analytical techniques.
The section-by-section summary provides more discussion on how specific comments factored into our proposal.
In this NPRM we are focusing our improvements on five general areas: Restructuring the data to capture more information over time; expanding the reporting populations; capturing greater detail on children in out-of-home care; improving the quality of data; and eliminating unnecessary data and inefficiencies in the data submission process.
We propose that AFCARS data support longitudinal data analysis by capturing more comprehensive information on a child's experiences in a State's foster care system. The existing AFCARS requires that States report some living arrangement, provider, and permanency information relative to the child's most recent experiences in his/her most recent foster care episode only. We propose instead, that States collect and report information on: (1) The timing and circumstances of each of the child's removals from home and placements in out-of-home care, (2) the timing and type of each permanency plan decision (e.g., reunification or adoption) made for a child, (3) the time span and nature of each living arrangement the child experiences while in foster care, (4) details on each foster family home provider, if applicable, and (5) the timing and circumstances of each of the child's exits from out-of-home care.
We propose to expand the foster care reporting population to include, generally, all children who have been placed away from their parents or legal guardians for whom the State title IV-B/IV-E agency has placement and care responsibility. In doing so, we are also renaming the reporting population as the “out-of-home care reporting population.” This reporting population includes children who are in living arrangements that are not traditionally considered foster care under our title IV-B and IV-E program rules. Children who are under the placement and care responsibility of the State agency and are placed in juvenile justice facilities and other living arrangements which are non-reimbursable under title IV-E such as psychiatric treatment facilities are included in the revised AFCARS out-of-home care reporting population. In the existing regulation, children who were in juvenile justice facilities and other facilities not traditionally considered
We have added and clarified a number of elements so States may provide us with greater detail on the demographics and circumstances of children in out-of-home care. These changes are designed to permit enhanced analysis of the factors that may affect a child's permanency and well-being and include:
• New elements that allow us to identify certain populations of children who are dealing with issues other than child maltreatment, such as children who are involved in the juvenile justice system prior to and during their out-of-home care stay and those who are out of their own homes to obtain mental health services;
• New elements for States to update information on the circumstances affecting the child and family during the child's out-of-home care stay;
• New elements that allow us to identify where more than one family member is in out-of-home care, such as sibling groups and minor parents who have their children with them in out-of-home care;
• New elements to better describe the household composition of the homes from which children are removed and the location and type of living arrangements in which children are placed by the State agency;
• Elements that tell us about a child's well-being including new elements on immunizations and educational performance as well as clarified elements on children's health, behavioral and mental health conditions;
• Revised and new elements that enhance our understanding of domestic and intercountry adoptions, prior adoptions and adoption disruptions, displacements and dissolutions; and,
• Revised and new elements designed to better track State and Federal financial support of foster care, adoption subsidies, adoption nonrecurring costs and guardianships.
We propose to improve AFCARS data quality in several ways. First, we propose to clarify many existing element descriptions that stakeholders informed us were problematic. Second, we propose to strengthen our assessment and identification of errors within a State's data file. In particular, we are proposing to develop cross-file checks to identify defaults and other faulty programming that result in skewed data across a State's entire data file. Finally, we propose to implement penalties for States that do not meet our file and data quality standards for AFCARS consistent with section 474(f) of the Act.
We propose to eliminate a number of features in the AFCARS regulation that are no longer useful to us or the States. We propose to dispose of State reporting of summary adoption and foster care files, merge most currently reported adoption information into the foster care data file and take technical submission requirements out of the regulation.
These major changes to AFCARS along with all other features of the proposed database are detailed in the section-by-section discussion below.
The reader should note that the proposed regulations will replace in their entirety the existing AFCARS regulations at 45 CFR 1355.40 and the appendices to part 1355. Although we are retaining certain requirements of the existing AFCARS, such requirements are often set forth in different and new sections or paragraphs in this proposed rule.
In section 1355.40 we propose a scope statement for AFCARS. The proposed scope statement explains which entities must report data to ACF and the data that those entities must report.
In paragraph (a), we propose that all State agencies that administer titles IV-B and IV-E of the Act collect and report information to AFCARS. This is consistent with the existing scope of AFCARS and our legislative authority in section 479 of the Act. Currently, all States, the District of Columbia and Puerto Rico operate title IV-B and IV-E programs.
In paragraph (b), we describe the scope of the AFCARS requirements. We propose that a State collect and submit to us, on a semi-annual basis, information on a child's experiences in out-of-home care and information on children under adoption assistance and guardianship subsidy agreements.
The scope of the proposed requirements is broader than the current AFCARS in three significant ways. First, the scope of the AFCARS out-of-home care reporting population, currently known as the “foster care” reporting population has changed to include, generally, all children who are living away from their parents or legal guardians for whom the State agency has placement and care responsibility. Currently, the AFCARS foster care reporting population focuses primarily on children in foster care settings as defined by the title IV-B and IV-E programs only. Second, we are expanding the scope of certain information to include a child's entire historical and current experience in out-of-home care so that we can establish a more comprehensive and longitudinal database. Currently State agencies report to AFCARS limited information on a child's most recent and first foster care episode during the report period. Finally, we propose that States report on children involved in adoption agreements and guardianship subsidy arrangements on an ongoing basis. At the present time, State agencies report to AFCARS information on finalized adoptions in which the State agency was involved at the point of finalization only. In large part, we are expanding the scope of AFCARS data in response to overwhelming support for doing so from stakeholders and to meet our program needs. The full extent of these proposed changes is explained further in subsequent sections on the reporting population and data elements.
A few commenters suggested that ACF also consider expanding the scope of AFCARS to require State agencies to collect and report detailed information on children who receive child welfare services in their own homes. We believe that requiring States to report data on these activities to AFCARS exceeds our existing legislative authority in section 479 of the Act. Even so, we wish to note that AFCARS is not the sole data-related activity in child welfare that ACF manages. Through the National Child Abuse and Neglect Data System (NCANDS), States voluntarily provide us with data on child maltreatment and the extent to which the State child protective services agency provides services. We encourage State agencies to use the same unique person identifiers in AFCARS and NCANDS so that we can understand to what extent children receive prevention services before they must enter out-of-home care. In addition, we have proposed a mandatory reporting system under the Chafee Foster Care Independence
In paragraph (c) we define the scope of out-of-home care for AFCARS purposes which serves as a basis for the out-of-home care reporting population. “Out-of-home care” refers to children who have been placed away from their parents or legal guardians for a period of 24 hours or more and for whom the State title IV-B/IV-E agency has placement and care responsibility, regardless of the child's living arrangement. This is different than our programmatic definition of foster care in 45 CFR 1355.20, and thus the scope of the current AFCARS foster care reporting population (see 45 CFR 1355.40(a)(2) and appendix A to part 1355, section II) in a number of ways. The most significant difference between the two terms is that the proposed AFCARS definition of out-of-home care will include children who are placed away from their parents for whom the State title IV-B/IV-E agency has placement and care authority, irrespective of their living arrangement. This stands in contrast to the foster care definition used for the title IV-B and IV-E programs in 45 CFR 1355.20 and policy in the Child Welfare Policy Manual Section, which incorporates traditional foster care settings only (e.g., foster family homes, child care institution and group homes).
We believe it is essential to develop a definition of out-of-home care for the purpose of data reporting distinct from the definition of foster care for the Federal child welfare programs, to meet their separate goals. The programmatic definition of foster care is for the purposes of describing the population for whom States must meet Federal child welfare requirements for safety, permanency and well-being as described in titles IV-B and IV-E of the Act and 45 CFR 1355, 1356 and 1357. Nothing in this proposal changes to whom the Federal child protection requirements apply. AFCARS, on the other hand, has as one of its central goals as described in section 479 of the Act, the ability to provide comprehensive national information on the dynamics of children in the foster care system, including “the status of the foster care population (including the number of children in foster care, length of placement, type of placement, availability for adoption, and goals for ending or continuing foster care),” and “the number and characteristics of children placed in or removed from foster care.” Our experience with AFCARS is that the existing data on the number of children in foster care, the length of placements, and the characteristics of children as they move in and exit foster care is incomplete and often misleading without additional information about when children move from those out-of-home care living arrangements that are within the scope of foster care to detention facilities, psychiatric hospitals, assessment centers, and other facilities that are outside the scope of foster care. Particularly, as we have conducted AFCARS assessment reviews and CFSRs in many States, we have been challenged in pinpointing the scope of each State's foster care system and therefore, whether certain Federal child welfare requirements apply. By defining the AFCARS out-of-home care reporting population broadly, along with more specifically defining the type of living arrangements and circumstances of a child's stay in out-of-home care we believe that we can better track how and why children enter foster care, understand the dynamics of State foster care systems, and distinguish the subpopulation for whom State child welfare agencies are accountable to meet the Federal child protection requirements (section 422(b)(8)(A) of the Act).
We have specified in this proposed regulation that for AFCARS, we are seeking information on children who are under the placement and care of the State agency and away from their parents for 24 hours or more. This timeframe has not changed. However, the timeframe was noted in an appendix to the regulation rather than in the regulation text itself. We see no reason to include children in AFCARS who have been out of their homes for fewer than 24 hours.
The proposed regulatory definition of out-of-home care also clarifies that the term refers to children who are considered minors according to the State's age of majority. This proposal is consistent with existing AFCARS policy (Child Welfare Policy Manual 1.3) and our regulatory definition of children at 45 CFR 1357.10(c) for the programs under title IV-B of the Act. We understand that most States consider young people up to age 18 as children. Several States, however, consider older youth (i.e., up to age 21) who are in their placement and care responsibility as minors.
We propose to add a new section 1355.41 on reporting populations to this part.
In paragraph (a), we propose a new out-of-home care reporting population which identifies children States must include in an AFCARS out-of-home care data file. In general, we propose that State agencies must report information to AFCARS consistent with the AFCARS out-of-home definition; that is, all minor children who have been placed away from their parents or legal guardians for a period of 24 hours or more and for whom the State title IV-B/IV-E agency has placement and care responsibility.
In subparagraphs (a)(1)(i) through (a)(1)(iv), we propose to expound on which children are included in the reporting population. Although some of the children described in these subparagraphs are covered implicitly in the reporting population as generally stated in paragraph (a)(1), the subcategories provide more detail on the scope of the reporting population.
In subparagraph (a)(1)(i), we propose to clarify that the reporting population is inclusive of any child who is under the placement and care responsibility of another public agency that has an agreement under section 472(a)(2)(B) of the Act with the title IV-B/IV-E agency for the payment of foster care maintenance payments on the child's behalf. This provision is consistent with existing AFCARS regulations that define the foster care reporting population (Appendix A to 45 CFR 1355, Section II). Typically, State agencies enter these agreements with Indian tribes, and separate juvenile justice agencies or mental health agencies in order for the State to claim title IV-E on behalf of children who are otherwise eligible for the foster care maintenance payments program. These other public agencies do not submit information on children in the reporting population to ACF separately from the title IV-B/IV-E State agency. Rather, this information must be a part of the title IV-B/IV-E State agency's AFCARS submission.
In subparagraph (a)(1)(ii), we propose to codify existing policy that a State
In subparagraph (a)(1)(iii), we propose to include in the out-of-home care reporting population a child under the State agency's placement and care responsibility who is in any living arrangement, regardless of whether that living arrangement is a traditional foster care setting. We explain that States are to include children in out-of-home care who are placed in settings such as detention facilities, psychiatric or other hospitals, and jails, but this is not an all-inclusive list. The specified facilities have been raised most frequently in questions by State agencies because some youth may transition in and out of traditional foster care settings and these facilities. We want to clarify explicitly that a child who is in a living arrangement that is not a traditional foster care setting is a part of the AFCARS out-of-home care reporting population if the child is away from his parents or legal guardians while under the State title IV-B/IV-E agency's placement and care, even if the child remains in that setting for the entire report period. We understand that, in practice, most State agencies may not have included these children in the AFCARS foster care population to date, since our current policy does not require this reporting. Our current policy requires only that a State report a child who moves from a traditional foster care placement to a juvenile justice placement, as long as the State intends to return the child to foster care (Child Welfare Policy Manual 1.3 #12).
As discussed previously, we believe that it is beneficial to compel State agencies to collect and report information to us on an ongoing basis when the child is under the State agency's placement and care responsibility away from his parents or legal guardians, regardless of the setting. We believe that doing so will allow us to follow a child through the various out-of-home placement settings that are connected closely to the foster care system but may not be managed by the State child welfare agency directly. Including these settings will permit States and ACF to complete longitudinal analyses of children's out-of-home care experiences, as advocated by States and others in the field. In addition, we believe that requiring State agencies to submit information on a child's entire experience while under the placement and care responsibility of the State, rather than having to generate information based on identifying select types of settings, will be less burdensome. We welcome comment on this proposal.
The reader should note that although the State will report all children placed away from their parents and legal guardians under its placement and care authority regardless of the child's living arrangements, States and ACF will be able to identify children who are in the narrower definition of foster care as defined by our program rules. This is because we are proposing to better categorize a child's living arrangements in the data elements. We will, therefore, be able to select samples for reviews or other analyses that look at foster care as used in the title IV-B and IV-E programs separately from other living arrangements.
In subparagraph (a)(1)(iv), we require that a State continue reporting a child to AFCARS who is missing or has run away, is attending camp or on vacation, or is visiting with his immediate or extended family. In these situations, the child remains in out-of-home care under the agency's placement and care responsibility. These situations do not represent a State agency's need to move the child.
Finally, in paragraph (a)(2) we propose that the State discontinue reporting a child to AFCARS if the State agency's placement and care authority ends (or is discharged), if the State agency returns the child home to his or her parents or legal guardians, or the child reaches the age of majority unless such a child continues to receive title IV-E foster care maintenance payments. The child has exited the reporting population for AFCARS purposes and has completed an out-of-home care episode in these circumstances. This provision is, in part, a departure from the existing regulation. Many States over the years and during consultation have highlighted the need for more definitive guidance on when the child should be considered to have exited the AFCARS reporting population. States have pointed out that when a child leaves the AFCARS reporting population is of critical importance in defining consistently the length of time a child stays in foster care, as well as re-entries into foster care, for the CFSRs and other Federal child welfare outcome measures.
We propose to continue State reporting of information until the child is no longer under the agency's placement and care responsibility because we are interested in understanding the child's entire out-of-home experience. Children who are legally discharged from the State agency's placement and care responsibility have always been considered to have exited foster care under the existing AFCARS requirements. This would include children who may remain away from their parents or legal guardians but whose placement and care responsibility are transferred to another agency with no connection to the State agency.
However, we propose for the first time that children who are returned home to their parents or guardians be excluded from the AFCARS reporting population. Previous policy suggested that a State report to AFCARS children who were returned home and supervised by the State agency in an after-care status for a period of six months, unless a court order indicated another time period (Child Welfare Policy Manual 1.2B.7 #7 and 1.3 #11). Because we do not have a specific response option for States to report children in an after-care status in the existing AFCARS, we have instructed States to report the child on a trial home visit. There is, however, a distinction between a child who is
We also want to clarify here that the proposed out-of-home care reporting population does not include those children who are under the State agency's “supervision” authority, unlike the current regulation. We found the reference to supervision to be problematic because we never defined the term “supervision” further in AFCARS regulations or policy. Thus States have questioned whether the existing reporting population includes children in a variety of settings for whom the State agency has only a legal duty to supervise with no concurrent placement and care responsibility. We wish to be clear that children who are receiving services only in the homes of their parent or legal guardian(s) and children who may be placed away from their parents or legal guardians but for whom the State title IV-B/IV-E agency has no placement and care responsibility are not a part of the proposed AFCARS out-of-home care reporting population.
In subparagraph (b)(1), we propose that the State include information on all children for whom there is either a title IV-E adoption assistance agreement or a State adoption assistance agreement in effect during the report period. This includes children in a pre-adoptive living arrangement. Children under such adoption agreements are a part of the reporting population regardless of whether a financial subsidy is paid on the child's behalf. We believe that requiring State agencies to collect and report information on these populations is necessary since there is no reliable information on these populations other than State claims data for Federal adoption funds, which have substantial analytical limitations.
As a result of successful adoption initiatives, some States now have more children receiving adoption assistance than receiving foster care maintenance payments. With the increased activity in adoption and the corresponding outlays for the program, there has been an increase in requests for information about the population from the Congress, States, the media, and other sources. There also is a growing need at the Federal level for information to use for planning and budget projection purposes.
Children who are in out-of-home care and who are the subject of a title IV-E adoption assistance agreement are likely to show up in both the out-of-home care and adoption assistance subsidy files until the point of the finalization of the adoption. In part, this is because sections 473 and 475(3) of the Act require States to enter into title IV-E adoption assistance agreements with adoptive parents prior to the finalization of a child's adoption, during which time the child may remain in out-of-home care. This may be true of children under State adoption assistance agreements as well, depending on State requirements. However, we believe we need this duplication of data in order to get complete information on the child's out-of-home care and adoption assistance experiences. Since we understand that the time between when an adoption assistance agreement becomes effective and the finalization of the child's adoption is relatively short, we expect such duplication to be limited. We welcome comments on this proposal.
In subparagraph (b)(2), we seek information on children on whose behalf a subsidy is paid pursuant to a guardianship agreement with the State agency because we are interested in providing a national picture of children in these arrangements for the first time. We are not proposing that States include in the reporting population children who may be the subject of a guardianship or guardianship agreement in which a financial subsidy is not paid to the child's guardian. We believe that non-subsidized guardianships are a small portion of the guardianship arrangements in which State agencies are involved, that States maintain little information on them and there exists no compelling interest for ACF to require States to report information on these arrangements.
States provide guardianship subsidies to a legal guardian for the care and support of a child who may be at risk of entering foster care or who may have otherwise remained in foster care. Although there is no Federal requirement or entitlement funding for States to provide guardianship subsidies, we understand that more than half of the States provide these supports to encourage greater permanency for children for whom adoption and reunification have been ruled out.
States have established subsidized guardianship programs using State and local funds and funds from the Temporary Assistance for Needy Families Program. Seven States have obtained a child welfare demonstration waiver pursuant to section 1130 of the Act to test the effectiveness of a subsidized guardianship program for children in foster care. The demonstration waivers provide States with greater flexibility to use title IV-B and title IV-E funds for services that can facilitate improved safety, permanency and well-being for children. (Our authority to permit States to conduct new waivers expired in March 2006). Our proposed reporting population includes children in any subsidized guardianship arrangement regardless of the source of funding.
We propose to add a new section 1355.42 on data reporting requirements, including the report periods for the data files, general provisions for collecting and submitting the out-of-home care and adoption assistance and guardianship subsidy files, and record retention rules to comply with AFCARS requirements.
In paragraph (a), we propose that each State submit an out-of-home care data file and an adoption assistance and guardianship subsidy data file to ACF on children in the reporting populations on a semi-annual basis. The report periods extend from April 1 to September 30 and from October 1 to March 31 of each Federal fiscal year. These report periods are the same as in the existing AFCARS.
Several stakeholders suggested that we consider moving to annual, or even less frequent reporting, rather than semi-annual reporting of AFCARS data. Many commenters were concerned about the perceived complications of ACF compiling an annual file from two semi-annual submissions for the purposes of the CFSRs and the annual outcomes report to Congress. We want to assure States that we are able to create an annual file. We believe that some States' concerns about compiling an annual file were related to their inability to replicate the information from ACF precisely. ACF has recently started using a readily-available software program. The logic associated with this software's de-duplication function is readily transferable to other software packages; therefore, States will be able to replicate the annual files more easily. Finally, we expect that the new requirements proposed here for using a permanent and encrypted person identification number (see proposed 45 CFR 1355.43(a)(4), 1355.43(a)(5) and 1355.44(a)(3) in this NPRM) will aid both our own and States' ability to create annual files.
Further, we believe that an annual submission would hamper our ability to provide timely data and analysis to stakeholders and would not meet our needs. A six-month submission process
We also propose in paragraph (a) that State agencies submit their data files to us within 15 calendar days of the end of the report period. If this date falls on a weekend, the State must submit their files by the end of the following Monday. This is a change from the current AFCARS, which allows a 45-day period in which State agencies may prepare their data files for submittal to ACF. Although some stakeholders requested more time to prepare their files, we believe that the shorter time frame is workable and will also better meet State and Federal needs for data.
As mentioned earlier, AFCARS data is used extensively in a number of ACF priorities and requirements, including the Child and Family Service Reviews. If ACF receives the data a month earlier than we do now, we will be better able to analyze the data for use in CFSR data profiles and program improvement plans. Also, since adoption incentive funds are tied to how well States perform in increasing their adoptions as seen in the AFCARS data, we can award adoption incentive funds to States sooner.
The vast improvements in automation in the field of child welfare strengthen our belief that a State can prepare data files within 15 days. Now States can record and verify data in a more timely fashion than when the original AFCARS regulation was issued. Finally, we have provided significant technical assistance to States to encourage ongoing quality assurance checks on the data recorded in their information systems. We believe that State agencies will be able to meet this shorter time frame for submitting data with continued and routine use of our data quality utilities. We welcome comment on the shorter submission time frame.
Finally, in paragraph (a) we require that State agencies submit their data to us in two separate data files. Currently, State agencies must submit four data files (Appendices A and B to 45 CFR 1355): (1) A detailed foster care file with information on a child in foster care during the report period; (2) a detailed adoption file with information on all children adopted during the report period in whose adoption the State agency has some involvement; (3) a foster care summary file in which the State indicates the total number of foster care records and the age distribution of children in those records; and, (4) an adoption summary file in which the State indicates the total number of adoption records and the age distribution of the children adopted.
We propose to eliminate the existing foster care and adoption summary files because they are no longer necessary. ACF originally intended to use the summary files to verify the completeness of a State's data submissions and to ensure that the file was not corrupted during transmission. The summary files also were to serve as a quick count of the number of children in foster care and those being adopted. However, because the summary files contain aggregate data, the number of children who entered, were discharged, were adopted, were served or were in care on a specific day cannot be determined. Further, we are able to use new technology that is better able to verify the completeness of a State's data submission without requiring the State to generate summary files.
The proposed out-of-home care data file contains the majority of information that State agencies report to us currently in the detailed foster care and adoption data files. We propose to discontinue the submission of voluntary adoption data and eliminate the separate adoption data file. Rather, children who are adopted from out-of-home care will be included in the out-of-home care data file, and children for whom the State agency has been involved in their adoption by entering into an adoption assistance agreement will be included in the adoption assistance and guardianship subsidy data file (some children will be reported in both files). The current separate adoption data file was developed originally to permit State agencies to submit data on all adoptions (inclusive of private, independent, or international adoptions in which the State agency was not involved) without the data appearing erroneous due to duplicated information that may have resulted from States' obtaining the data from a variety of sources. For example, had States obtained their data on all adoptions from court records and incorporated that data into the foster care data file, public agency adoptions would have been duplicated. This strategy was based on the premise that State agencies would voluntarily submit data on adoptions outside of the public agency. However, just a few States have submitted non-public agency adoption data consistently, making the information unusable.
In paragraph (b), we provide instructions on how the State must report the out-of-home care information under the proposed 45 CFR 1355.43.
Specifically, in paragraph (b)(1), we propose that a State provide us with the most recent information for the elements regarding general information, child information, and parent or legal guardian information (proposed 45 CFR 1355.43(a), (b) and (c)). This means that in each file submission we are seeking current, point-in-time data for these elements similar to the time frame for most elements in the existing AFCARS. This information is largely demographic in nature, and tends to remain static over a six-month report period or even longer. For example, information on the child's parent, such as race, ethnicity and date of birth, does not change over the course of a report period.
In paragraph (b)(2), we propose that a State submit recent and historical information for the elements regarding removal information, living arrangements and provider information, permanency plans and ongoing circumstances, general exit information, and exit to adoption information (proposed 45 CFR 1355.43(d), (e), (f), (g) and (h), respectively). This information is required, unless the exception described below applies. This means that for every file submission, we are seeking information on the child's lifetime experience while in out-of-home care in the State's placement and
We want to be clear that we propose that State agencies submit recent and historical information pertaining to removals, permanency plans and circumstances, living arrangements and exits every report period rather than updates on children who were in out-of-home care before or who remain in out-of-home care from one report period to the next. This is because we have learned from the existing structure of AFCARS that gaps in information raise numerous questions about the child's experiences and make the data more difficult to analyze. Part of our goal in developing this proposed regulation is to eliminate features of the existing AFCARS that hinder the collection of reliable, quality data. If we were to ask State agencies to report only changes in the child's living arrangements, permanency goals, entry into or exit from out-of-home care we would not have a way to verify that the child's experiences have, in fact, remained the same. We also believe that this approach is less burdensome on States. Although sending a child's history involves submitting more data to us than an update as children exit and re-enter out-of-home care and their living arrangements and permanency plans change, we believe that it is less complicated and therefore requires fewer State resources than the alternative. In other words, sending a child's full history requires the State to submit all the information it has on these elements, rather than figure out a way to cull out only the information that has changed each report period.
We propose to get more comprehensive data for certain elements in response to our own need for data and in response to stakeholders' requests that ACF consider how to move AFCARS towards gathering some longitudinal information. Many States noted that they already have this capability. A number of States also asserted that the breadth of this information allowed them to conduct more sophisticated analysis on what happens to a child, or groups of children in foster care. Further, States and other stakeholders saw this type of information as critical to the CFSRs. In particular, stakeholders believe that longitudinal data would better inform CFSR measures such as time in foster care, foster care re-entries and the stability of foster care placements. For example, once we have information on all out-of-home care episodes a child experiences, we can potentially analyze data to determine whether children entering out-of-home care for the first time after a certain point in time have more positive outcomes than those who entered out-of-home care earlier. Also, we can potentially use the data to improve upon our placement stability measure by not only analyzing the number of placements that a child experiences in an episode, but the type of placements as well. Further, with the richness of data that longitudinal information can provide, ACF and States can be better informed in developing and implementing program improvement plans to address compliance issues raised during a CFSR. In light of the results of the first round of CFSRs and the challenges that are ahead for States in implementing changes to their child welfare systems, we find the potential to have improved data for use in the CFSR and other priorities a compelling reason for proposing these changes. We welcome comments on this approach.
We chose to propose gathering comprehensive data on removals, permanency plans and ongoing circumstances, living arrangements and exits after considering whether a more limited approach to developing longitudinal data would meet our needs for data, as well as those of the States. The limited option would require a State to submit detailed removal, permanency plan, living arrangement and exit information on the child's four most recent out-of-home care episodes. We also considered requiring detailed living arrangement information on the child's four most recent living arrangements only. Under this option, the State would inform us how many total removals and living arrangements the child had experienced. We considered four out-of-home care episodes because our analysis of existing AFCARS data suggests that the vast majority (approximately 99 percent) of children in the existing foster care reporting population have no more than four foster care episodes. This option would allow us to capture almost all foster care episodes without requiring State agencies to submit extensive histories on children. We similarly thought that limiting the number of living arrangements that State agencies would report to AFCARS would minimize the burden of this approach.
Ultimately, we decided that this more narrow approach was not sufficient. One problem with a limited longitudinal database was that we would have no information on the children who present some of the more significant challenges to States. Children who experience high numbers of multiple living arrangements or frequently enter and exit out-of-home care are some of the nation's most vulnerable children. Furthermore, these children often require States to expend more of their resources to address their problems.
In paragraph (b)(3), we propose an exception to the requirement to report complete information on all out-of-home care episodes for children in the reporting population. The exception applies to those children who had an out-of-home care episode prior to the effective date of the forthcoming final rule. Specifically, the exception applies to: (1) Children who are in out-of-home care on the effective date who also had a prior episode before the final rule goes into effect, and (2) children who enter out-of-home care after the effective date who had a prior episode before the final rule goes into effect. For such children, we are proposing that the State report the child's removal dates, exit dates and exit reasons (1355.43(d)(1), (g)(1), and (g)(3) respectively) for each out-of-home care episode that occurred before the final rule effective date. The exception does not apply to a child's “open” or ongoing episode that coincides with the effective date of the final rule; for such children we propose that a State report all information described in paragraphs (b)(1) and (b)(2) during that ongoing out-of-home care episode. As time passes after the final rule goes into effect, this provision will apply to a diminishing number of children who are in the out-of-home care reporting population.
We propose this exception to the general rule to report complete information in order to strike a balance between our desire for recent and historical information on all children in out-of-home care in accordance with the proposed new AFCARS elements with the challenge that some State agencies may face in gathering this information for a child's previous contacts with the State child welfare system before these new rules go into effect. We chose to have State agencies report at least the child's prior removal and exit dates and exit reasons, because we believe these elements are most critical to our ability to construct certain cohorts of children for analysis in the CFSRs and other outcome-based activities. Further, States
Our expectation is that for children who experience an out-of-home care episode prior to the implementation of the proposed new AFCARS, States will report more than the minimum information required by the exception. We expect, but do not require, States to provide as much information as they have in their case files and information systems on the child's out-of-home care episodes that occur before the effective date of the final rule and at least as much information as they report currently under the existing AFCARS. States that do not provide this additional information will not be penalized. States that provide it with errors will not be penalized either. From our review of States with a SACWIS, we have found that many States are collecting comprehensive information and information that pertains to the proposed new elements. Therefore, we believe that it is reasonable to expect States to provide us with information on the new elements regarding prior episodes even in the absence of a mandate. In fact, we considered establishing different exceptions to the requirement to report comprehensive information for those States that have an operational SACWIS versus those that do not because we believe that the type of information they are able to collect and report is more complete and robust than other States. Even so, since this is the first time we are requiring certain information in AFCARS, we believe that we must allow all States an equal opportunity to collect the proposed information for children who already are known to the State.
Finally, we acknowledge that even though we propose that States report a child's removal and exit dates and exit reasons of the out-of-home care episodes that occur prior to the final rule effective date, this limited information will be newly required for some children in certain circumstances. In particular, since we propose to expand the reporting population to include children who are in out-of-home care settings that are not considered foster care under our program rules, States have not consistently reported removal and exit dates and exit reasons for AFCARS purposes. Further, since the existing AFCARS requires that States report the date of first and latest removal and exit reason for the most recent foster care episode in a six-month period, some children may have interim removal dates and exit dates and reasons that States currently are not reporting to us. We still believe, however, that while this proposed reporting may be newly required, States generally have this information as a matter of course in their own information systems and this requirement would not produce an undue burden. We welcome comment on this provision.
In paragraph (c), we propose that the State submit recent, point-in-time information for all elements in this data file. This information is needed only at a given point in the report period because it is static over time. For example, adoption subsidies may remain the same over many years or for the duration of the adoption assistance agreement, unless the parent requests a change in the amount of the subsidy, or the child's circumstances change.
In paragraph (d), we propose how the State must report missing information. If the State agency fails to collect the information for an element, the State agency must report the element as blank or missing. The State agency may not develop program codes that default or map information that caseworkers did not collect or enter into the State's information system to a valid response option. This is the case even when there may be a response option for an element that allows the State to indicate that the information has not yet been determined or is unknown. This provision is consistent with ACF's longstanding practice; however, States have pointed out that there is no official guidance on this issue. Therefore, we wish to state unequivocally that this practice of defaulting is not permitted.
For example, we propose that the State indicate the specific permanency plan for a child or indicate that the permanency plan has not yet been determined for the child. If the State's information system is programmed in a way to allow the worker to select various plans (i.e., adoption, reunification, etc.) or not input the information at all (i.e., leave the information blank), the State agency may not report to ACF the child's plan as “not yet determined,” when the State does not have any information. Rather, the State may only report that the plan is “not yet determined” if the State has programmed its information system in a way that allows the worker to select that he/she has actually not yet determined the plan.
In paragraph (e) of this section we propose that States submit their data files to ACF electronically, consistent with ACF's specifications. States currently submit their data files to us electronically; however, we are removing from the regulation a number of technical specifications that detail how States must submit their files electronically (see appendix C to part 1355). Instead, we will issue technical requirements and specifications through official ACF policy subsequent to our issuance of the final rule. We have learned through our experience with the existing AFCARS that it is prudent not to regulate the technical specifications for transmitting data. As technology changes, we must be able to keep pace with the most current, practical and efficient transmission methods that will meet State and Federal needs.
We are particularly interested in exploring new technologies due to the enactment of the E-Government Act of 2002 (Pub. L. 107-347). This law focuses the Federal government on using improved internet-based technology to make it easier for State or local governments and citizens to interact with the Federal government. One internet-based technology that we are exploring for AFCARS is the use of Extensible Mark-Up Language (XML). XML is a text-based format that allows entities to describe, deliver and exchange data among a range of applications, provided that the sender and receiver have agreed in advance on the data definitions. We believe that XML has several benefits to States and ACF, including:
• Enabling the integration and collation of any data and information irrespective of storage environment or document type;
• Facilitating data interchange independent of the operating system and hardware; and,
• Allowing new data elements to be added readily with minimal changes to the data file format.
We recognize that some States already have implemented the use of XML to transfer data, while others may have encountered some barriers to doing so.
In paragraph (f), we propose that States retain records for as long as necessary to comply with the AFCARS reporting requirements. In particular, we are making Departmental record retention rules in 45 CFR 92.42(b) and
Practically, this means the State must keep applicable records until the child reaches the age of majority in the State, or else is no longer of an age to be in the reporting populations. This is because we propose that a State keep a child's identification number consistent over time and indicate the child's entire history with the child welfare system. Since a child's information is likely to be contained in an automated information system and relatively simple to archive, we believe these record retention rules are reasonable.
We propose to add a new section 1355.43 providing all elements for the out-of-home care data file. Under this section, each element is described in detail and the acceptable response options are also defined. (Attachment A to the preamble contains a quick reference of all the out-of-home care elements.) We propose that the State agency must collect and report the information described in these elements for each child in the out-of-home care reporting population.
In paragraph (a) of this section we propose that States collect and report general information that identifies the reporting State and the child in out-of-home care.
This is a revised element in that we are no longer allowing the use of sequential numbers for AFCARS and propose rules for encryption and consistent numbers (see appendix A to part 1355, section II, I.D). The changes to this element are based on findings from AFCARS reviews and technical assistance which indicate that some States use different identification numbers or change key or seed numbers for the same child. One issue that has been identified in some States that do not have a SACWIS is that the child's record number may change if the child moves within the State. We are concerned about a State's ability to track a child's complete out-of-home care experience in the State when they do not use the same identification number, so we propose that States discontinue this practice.
Further, we believe that States share our desire to understand the entire experience of a child with the State's child welfare system. Numerous commenters on the
Encryption will ensure that the child's identity will remain confidential. Encryption is one of a number of different methodologies that a State can use to code confidential information. However, we are requiring encryption as opposed to other methods of coding confidential data, like sequential numbering, because it is secure and easier than other methods to cross-reference files for identification at a later date. For example, encryption protects a child's sensitive information by masking the State or local agency's person identification number from Federal staff, researchers or other persons who may come into contact with the data the State submits to ACF. In practice, a State encrypts a record number by introducing a seed or key number into a mathematical formula to code the numbers. The State reveals the original person identification number by re-introducing the same seed or key number to reverse the mathematical formula, a process known as decryption. The State ensures confidentiality by keeping the mathematical formula secure and limiting access to the formula to authorized persons only.
Encryption also is more efficient than some other methods because the State need only safeguard the seed or key number, not a whole list of numbers, which crosswalk between the masked identification number and the real record number. Furthermore, the vast majority of States use encryption methods already in reporting information to AFCARS. The few States that do not use encryption currently have indicated to ACF that they intend to use encryption in the near future. We believe, therefore, that requiring an encryption method will impose a minimal burden on States.
Finally, we have created an exception to the general requirement that a child's
Although we have not requested this information before in AFCARS, we believe that all States use a family number or equivalent in their case management systems to identify the family in which the child in foster care is a member. We propose to collect this information primarily to aid in the identification of sibling groups, which we describe in greater detail in section 1355.43(b)(11).
In paragraph (b) we propose that States collect and report various characteristics of the child in the out-of-home care reporting population.
If the child's race is unknown, the State is to so indicate in subparagraph (b)(3)(vi). A child's race can be categorized as unknown only if a child or his parents do not actually know the child's race. The fact that the State agency has not asked the child or parent for the child's race is not an acceptable use of the unknown response option. Further, it is acceptable for the child to identify that he or she is multi-racial, but does not know one of those races. In such cases, the State must indicate the racial classifications that apply and also indicate that a race is unknown. If the child is abandoned, the State must so indicate in subparagraph (b)(3)(vii). We have provided a definition of abandoned so that we are clear that it is to be used in very restrictive circumstances and not any time a parent may be temporarily unavailable. If a child or young person who was abandoned as an infant identifies as being of a certain race or multiple races, the State must indicate the applicable race(s), rather than abandoned. Finally, in the situation in which the child or child's parent declines to identify any race, the State must so indicate in subparagraph (b)(3)(viii).
In the elements in paragraph (b)(5) and its subparagraphs, we propose for the first time that the State report the child's use of language. We propose to collect this information because we believe language is an important characteristic of a child that may aid the State in delivering services to him or her. Further, those children who do not speak English or who communicate through sign language may face particular challenges in a State's child welfare system. If we collect this information we will be able to analyze the data to see if language used has an effect on a child's experience in foster care. We believe that having this information will be a greater benefit to ACF and the States than the relatively low burden on caseworkers in collecting the data. We welcome comments on this new element.
We considered requesting information on the child's primary language only, but found this terminology problematic for individuals who may be bilingual or multilingual. We also considered whether we should ask which language the child used in his/her home, but found that construction equally problematic for multilingual families. We believe that allowing the State to identify the languages used by the child and the ones in which the child has the greatest facility is the most straightforward way of gathering the information we desire.
We propose to continue to require that the State indicate diagnoses made by a qualified professional only as determined by the State. A qualified professional may be a doctor, psychiatrist, or, if applicable in the State, a licensed clinical psychologist or social worker. We make this distinction as a means to gather information on medically diagnosed conditions rather than conditions that may be observed by a caseworker to determine the most appropriate placement or referrals for a child. Additionally, this data element will provide ACF with information on whether children in out-of-home care have received a clinical assessment for the diagnosed conditions.
The proposed language also expands upon the types of conditions in the existing regulation. We chose to expand the list of conditions because we learned through AFCARS and SACWIS reviews and providing technical assistance that States had difficulty matching children's actual diagnoses with the existing AFCARS categories. We believe that this has caused data on children's health conditions to be underreported in the past. We developed the new AFCARS categories based on the International Classification of Diseases (ICD) and the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV). We separated some conditions that are grouped together in one category in either the ICD or the DSM IV in order for the information to better meet our needs. We tried to create categories that distinguish conditions that may be more medically/physically based, education-related, or mental/emotional in nature.
Specifically, we propose to continue to collect information on whether a child is visually or hearing impaired but have made the two into separate response options because the needs of these two groups are distinct. We continue to gather information on mental/emotional disorders but have narrowed the definition to those types that are more severe or prolonged in nature. We have broken out the previous category by adding childhood disorders and anxiety disorders. The DSM IV categorizes learning disabilities under “disorders usually first diagnosed in infancy, childhood, or adolescence.” We believe, since this condition relates to educational achievement, that it should be separated from the other conditions listed in “childhood disorders.” Also, we propose to add categories related to drug and substance abuse separately in order to distinguish these disorders from other behaviors. Finally, we have added the specific category “developmental disability” to reflect the definition in section 102(8) of the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Pub. L. 106-402).
We also propose to change the title of these elements from “disabilities” to “health, behavioral or mental health conditions.” Our intent for collecting this information is to gather data on the problems, disorders, and behaviors of the children in out-of-home care, rather than pinpoint children whose conditions meet a narrow construction of disability. Also, since what is considered a disability can vary for Federal or State programs, insurance purposes, or other benefits, we chose to use a more general term.
Finally, we want to be clear that States must report information known prior to the child's current out-of-home care episode. It is likely that some of the diagnosed conditions will not be corrected or cured in a short period of time. Therefore, if a child re-enters out-of-home care, the State must report the previously known diagnosis if it is still applicable. This principle also applies to a child newly entering out-of-home care who has a known diagnosed condition. For instance, a child may have been born with a congenital defect and is undergoing treatment (or not) for the problem. If the State agency is aware and has obtained a medical summary, then this information should be recorded and reported to AFCARS.
We are seeking this information because we are interested in gathering data that will allow us to understand more about a child's well-being while in out-of-home care. Further, this information is readily available to States in most cases since it is a required part of a foster child's case plan (section 475(1)(C)(v) of the Act).
We have chosen grade level performance as a proposed new data element in an effort to learn more about a child's well-being while in out-of-home care. A recent study of students in Illinois indicated that children in foster care are more likely to be behind in their grade level performance than students who have not experienced a removal from home (Chapin Hall, Educational Experiences of Children in Out-Of-Home Care, 2004). We believe that grade level performance is an appropriate indicator of educational performance because it is used
We propose to collect this information because of our interest in monitoring the well-being of children in the out-of-home care reporting population and our desire to provide a more comprehensive picture of the needs of children. We also believe that gathering this information is consistent with the case plan requirements in section 475(1)(C) of the Act.
In the existing AFCARS, we ask the State to report the child's age range at the time of the prior finalized adoption (appendix B to part 1355 section II, II.E). This information, however, was insufficient to determine accurately when the child was previously adopted. Thus, we propose that the State report the actual finalization date to allow us to determine how much time has elapsed between the child's previous adoption and his or her current out-of-home care stay.
We define intercountry adoptions as those that occur in another country, or those adoptions that are finalized in the United States after the foreign child has been brought into the country for the purposes of adoption. Another country in this case means any country outside of our definition of a State for title IV-B in 45 CFR 1355.20. We seek this information primarily in response to the requirements of the Intercountry Adoption Act (IAA) of 2000 (Pub. L. 106-279). The IAA added section 422(b)(14) to the Social Security Act and requires that a State collect and report certain information on children who are adopted from other countries and who enter State custody as a result of the disruption of a placement for adoption or the dissolution of that adoption. This information will allow us to compile the number of children and permanency plans for children involved in dissolved adoptions and from where such children originated.
We wish to be clear that States must report only the number of the child's siblings who were living with the child at removal and not the total number of siblings of the child. This includes all siblings living with the child at removal, whether the sibling relationship is biological, legal or by marriage. We are making this distinction because it is more useful for us to know the number of sisters and brothers who lived with the child rather than the sum total of all siblings regardless of where they lived. Since we are interested in understanding the dynamics of sibling groups for permanency planning purposes, we do not believe it is necessary for the State also to report information on a child's brothers or sisters who are not present in the home and for whom the parent/legal guardian may not be responsible.
The reason that we require States to report this information is because we want to get an accurate count of the number of siblings in out-of-home care who were actually living together at one time prior to the entry of the child into out-of-home care. We need this element specifically so that we can understand
We propose this element, along with the family identification number (discussed previously) and the number of siblings placed together (described later), in order to get information on sibling groups for a variety of reasons. Good practice dictates that, where possible and in the best interests of the child, siblings in out-of-home placements should be placed together. However, we also know that addressing the needs of sibling groups provides agencies with special challenges. The data that we propose to collect, among other things, will provide us with extremely useful information about siblings. For example, this data will allow us to analyze how being a part of a sibling group involved with the child welfare agency affects the timeliness and success of reunification. Furthermore, it is especially important to know about sibling groups for adoption purposes, since we know that many children placed into out-of-home care are later placed for adoption. In addition, most States use “sibling” groups as one of the special needs categories for providing adoption subsidies. We understand that this is one of the most difficult groups of children for whom States must find adoptive homes.
Many
Finally, requiring sibling information in AFCARS will be useful for the CFSRs. In the CFSR, we rate States on several items that relate to this issue, such as preserving family connections, visiting between children in foster care and their families, and relative placements. As States enter program improvement plans (PIPs) to improve these areas, it will be helpful to have this data in AFCARS to be able to identify where the problems are and track progress over time. We also rate the safety and well being items on all children in the family, regardless of whether the case is a foster care case.
Commenters requested an element of this nature and we feel it is important for us to have improved data about the characteristics of young people in out-of-home care. This information can allow us to analyze the extent to which having children affects a youth's permanency plan. This data element also will be used in conjunction with a subsequent data element in 45 CFR 1355.43(e)(9) about the population of young people in out-of-home care who have children for whom they are responsible and are living with them. The combination of information in the two elements will allow us to determine the number of young people in out-of-home care who have children, and the extent to which those young people are responsible for the care of their children.
While there are elements in the existing AFCARS that require States to report the sources of Federal support for the child, this element is different in that it focuses on a variety of financial and medical assistance rather than just Federal support. The statute at section 479(c)(3)(D) of the Act requires that we collect national information on “the extent and nature of assistance provided by Federal, State, and local adoption and foster care programs.” As such, we believe that expanding the scope of our financial and medical assistance elements to gather more information on assistance for the child is required by law. This proposed element, in conjunction with the following element on receipt of title IV-E foster care maintenance payments and elements in the living arrangement section of this NPRM (1355.43(e)), will allow us to gather more information on the kinds of financial and medical assistance that support children in out-of-home care.
This element is used primarily to extract the title IV-E foster care eligibility review samples. Currently, the title IV-E foster care eligibility review sample is drawn from an existing AFCARS element that requires States to identify foster care maintenance payments as one of many Federal sources of support for the child. We have learned through technical assistance and AFCARS assessment reviews, however, that States often report this element incorrectly. A common mistake with the existing element involves the State indicating that the child is receiving title IV-E foster care maintenance payments when the child has met some title IV-E eligibility requirements (e.g., AFDC eligibility) but not all. We wish to isolate this element so that we can clearly define it and improve the sample selection process for the title IV-E foster care eligibility reviews.
In paragraph (c), we are seeking demographic information on the child's parent(s) or legal guardian(s).
We believe that focusing the proposed elements on the child's parents or legal guardians is more consistent with the statutory mandate to collect demographic information on the biological and adoptive parents of children in foster care (section 479(c)(3)(A) of the Act). By expanding our requirement to gather the year of birth of all legal parents (
For all data elements related to the termination of parental rights, we propose to clarify that we are seeking information on a child's putative father, if applicable. A putative father is a person who is alleged to be the father of a child, or who claims to be the father of a child, at a time when there may not be enough evidence or information available to determine if that is correct. For the current AFCARS we have fielded questions on whether States should provide information on putative fathers. Since States must terminate the parental rights of any putative fathers to ensure that a child legally is free adoption, we want to be clear that we are interested in this information as well.
Finally, we would like to note that we propose to eliminate the existing element on the family structure of the child's caretakers from whom the child was removed (see appendix A to part 1355, section II, VII.A). We concur with several commenters to the
In paragraph (d) we propose that the State submit information related to the child's removal from home and the assumption of responsibility by the State agency for placement and care of the child. We request that for any child in the reporting population, the State submit removal information regarding every occasion that the child is removed from home until the child has reached the age of majority. This is a significant change from the existing AFCARS, where we require detailed removal information on the child's most recent removal only.
The major reason for making this change is that we will be able to analyze more accurately the frequency and circumstances surrounding a child's entry into out-of home care. As pointed out earlier, many States and other stakeholders have indicated that longitudinal data that permits the examination of entry, exit, permanency plan and living arrangement information is critical to the CFSR process and other efforts to measure outcomes.
In many cases the date of the child's removal will be when the child is removed physically from his home and placed directly into out-of-home care. However, for a child who was already away from his parents at the time the
A major reason why we are proposing that States report all removal dates is so that we can accurately analyze a child's repeat foster care re-entry rate for CFSR purposes, particularly any associated length of time to re-entry. Currently, we are able to measure a child's re-entry rate using AFCARS information, but this information has limitations. For example, the current AFCARS does not allow us to analyze the child's entire detailed history of removals. Furthermore, by requiring that the State title IV-B/IV-E agency provide us with all of the dates in a child's entire removal history, rather than only the first and current removal dates, we can identify trends that might assist States in better understanding their data and making program improvements as needed. Without the entire history, we are unable to determine, for example, the effects of States' program improvement planning efforts on repeat entries into foster care, the duration of all episodes of foster care, and the outcomes of a child's stay in foster care.
We do not believe that the changes to the removal date will be an additional burden on States because we understand that most, if not all States, have this information in their existing information systems. In fact, this proposal may ease State burden such that the State can simply transmit all of its removal date information, rather than separating out which dates to report for AFCARS purposes only. We welcome comments on this proposal.
Although this is a significant change in the time frame for the State to enter the date of a child's removal, we have found that States report more accurate, high quality data when the transaction date is entered into the information system close in time to the event that it describes. This is our ultimate goal with this proposed change; to have accurate dates of removal for all children reported. A child's removal date is one of the most critical data elements in the AFCARS, as it is the anchor date for calculating certain CFSR outcome measures and is necessary for other purposes as well.
Some commenters to the
We propose to require that States report this information because we want to gather as much information as is practical about a child's life at the time of removal to conduct various analyses relating to under what circumstances and with whom children are living before they enter out-of-home care. We are aware that some children who are legally removed from their parents do not live with them at the point of removal, or are also cared for by another adult. Some may be living informally with relatives or neighbors. In short, having this information will enrich what we know about children who enter out-of-home care.
We have been careful to clarify in our description of a non-related caretaker that States report information on only those persons who have assumed responsibility for the day-to-day care of the child. This is because we are interested in collecting information on those persons who have an ongoing caretaking role for the child as opposed to those who may have temporary physical possession of the child. We believe it serves little analytic purpose to gather information on persons who are not part of the child's household prior to the child's entry into out-of-home care. For example, there may be a situation where a parent leaves the child with a babysitter or neighbor for the day but has not returned a couple of days later, at which point the babysitter or neighbor contacts the child welfare agency. In such a situation, the babysitter or neighbor has not assumed responsibility for that child and the State must report information on the persons in the child's household instead. We welcome comments on this element.
We considered making changes to this section in an attempt to distinguish court orders that are for the placement of children into the agency's responsibility for dependency reasons and those that are for juvenile justice agency involvement reasons. Because State practice with regard to this issue is so varied, we do not think that there is a single way to categorize court orders. Therefore, we propose changes to the elements related to child and family circumstances at removal and juvenile justice involvement to gather information on children with juvenile justice agency involvement.
We do not characterize these circumstances as the reasons for or causes of removal, although certainly some of these factors may have been the sole basis for the removal. Consistent with the existing AFCARS, we propose that the State agency only include information in this element that it has gathered about the child, the child's family and circumstances at the time the agency removes the child from home. As the State investigates and works with a family, the agency may learn of other factors or underlying issues that could have contributed to or necessitated removal. But we are not seeking that information here. Rather, we propose additional elements to capture circumstances that may arise during the course of the child's stay in out-of-home care as discussed later in the permanency and exit sections of the NPRM. In this element, we wish to understand, in a comprehensive manner, what is occurring in a child's life at the time of removal. Therefore, we propose to retain the current feature of AFCARS to require that the State indicate all of the circumstances associated with a child's removal. We have had concerns with the practice in some State agencies of reporting only the primary reason associated with the child's removal, leaving out important information about other relevant circumstances. We want to emphasize here that the State must report all of the circumstances at the time of the child's removal. Below, we explain all the response options for this element.
Specifically, we propose that a State report whether the child is alleged or found to be a status offender at removal. We propose to define status offenses as those that are specific to juveniles, including but not limited to, running away from home, underage alcohol violations and truancy. We propose that the State title IV-B/IV-E agency report a child status offender even if the status offense is alleged. We also request that the State report whether, at the time the child was removed from home, the child is an alleged or adjudicated delinquent. States are to indicate this circumstance irrespective of whether the child has had a hearing or a trial or has been found guilty for the delinquent act of which he or she was accused. We are more interested in knowing whether the young person has been involved in a juvenile justice type of activity rather than whether the young person was found guilty. Primarily, our goal is to obtain additional information about the reporting population when there is involvement with the juvenile justice system, even if the offense is not later adjudicated.
We propose this change so that we can identify the truly abandoned child whose parents are unknown from a child who is left with others, but the State knows the identity of the parent. We are often asked by members of Congress and others to identify cases of abandoned children (most often infants) in which the parents have left the child alone, with someone, or somewhere, but have not made their identity known. Further, information requests regarding this population of children have
Although some stakeholders advised us to apply the NCANDS definition of alcohol abuse to AFCARS, we have decided not to adopt the NCANDS definition. NCANDS defines alcohol abuse as “compulsive use of alcohol that is not of a temporary nature. Applies to infants addicted at birth, or who are victims of Fetal Alcohol Syndrome, or who may suffer other disabilities due to the use of alcohol during pregnancy.” The NCANDS definition does not include the concept of alleged alcohol abuse. At the time of removal, it is likely that the State will be able to report unsubstantiated or alleged conduct only. We therefore believe it is important to include the notion of alleged alcohol abuse for AFCARS purposes. The NCANDS definition also expressly excludes the concept of temporary alcohol abuse, which as explained above, we believe is relevant to an assessment of the child's circumstances at removal. Finally, the NCANDS definitions include infants who are born addicted at birth. As we have explained below, for AFCARS purposes, we want to be able to identify clearly when an infant is addicted to alcohol at birth as opposed to an adult caretaker who compulsively uses alcohol.
In paragraph (e), we propose that the State collect and report information on
During consultation, many urged us to consider amending the AFCARS regulations with the goal of gathering longitudinal information for children in out-of-home care. Many States already have this capability. Hence, we propose to restructure the provider and living arrangement information so that we can develop comprehensive longitudinal data on a child's entire experience in his or her living arrangements. This is in contrast to the existing AFCARS, which requires that the State title IV-B/IV-E agency submit detailed information only on the child's current placement setting at the end of a report period and provide a count of placement settings during the child's current foster care episode. Moreover, when 12-month annual files are constructed from the AFCARS semi-annual submissions, only the information on the last placement setting is retained. This limits the types of analyses that can be conducted.
Information on each of the child's living arrangements is critical to the CFSRs. In particular, stakeholders believe that comprehensive and longitudinal placement data will better inform CFSR measures related to the stability of foster care placements. For example, once we have comprehensive and longitudinal information, we can follow groups of children who enter foster care at different points in time to assess the impact of various policy changes on the course of their placement changes. Also, we potentially can use the data to improve our placement stability measure by not only analyzing the number of placements that a child experiences in foster care, but the type of placements, as well. We are interested in being able to explore whether children are moving from one living arrangement to another in support of their permanency goals. Further, with the amount of data that comprehensive longitudinal information can provide, ACF and States can be better informed in developing and implementing program improvement plans to address issues raised during a CFSR.
We have heard from
Finally, we would like to note that the information in this living arrangement section is required regardless of whether the living arrangement is under the direct responsibility of the title IV-B/IV-E agency or another private or State agency. We have learned through our AFCARS assessment reviews that some States failed to provide detailed demographic information on foster parents because they were licensed or managed by a private agency. The State must report living arrangement information for all children in the AFCARS reporting population in accordance with the element definitions irrespective of any agreements or contractual arrangements.
In general, States will report the date the child is physically removed and placed by the State agency in the living arrangement. However, there are two exceptions to this general rule—when a child is already in a living arrangement at the beginning of the out-of-home care episode and when a child runs away in the midst of an out-of-home care episode. For a child who is already living in a foster family home, other facility, or has run away from his or her home or facility at the time the State title IV-B/IV-E agency receives placement and care responsibility for the child, the State must provide the date of the State agency receiving placement and care. When a child runs away from a living arrangement during his or her out-of-home care episode, the State must report in this element the date the child runs away. While being on runaway status is not a living arrangement per se, we want the date the child runs away so that that we can calculate the actual time the child is absent from the provider or facility without permission. The original date of placement in a living arrangement prior to a State agency obtaining placement and care responsibility in these circumstances, we believe, is not information we need since it falls outside of how we are defining out-of-home care in AFCARS. Further, we would need additional elements for States to provide more contextual information on why the date of the living arrangement precedes the date of removal report in order to distinguish it from a data error. We welcome comments on this approach.
We are no longer seeking the date that the child begins a trial home visit. Current policy requires a State to report the date the child enters a trial home visit (Child Welfare Policy Manual 1.2B.7 #23). As we explained in the reporting population section of the preamble, if the State title IV-B/IV-E agency returns the child home the child exits the AFCARS reporting population. If the child is visiting family, whether it is for a trial reunification or to remain connected with the family, the State must not indicate any change in the child's living arrangement.
We believe that this new approach to capturing information on dates of living arrangements will provide us with a more complete view of a child's placement experiences, as well as help us to determine whether a child's living arrangements are long-term or change frequently.
We have added a licensed foster family home as its own response option so that we can clearly identify when a child is placed in a licensed foster family home. While States are not permitted to use title IV-E funds to support unlicensed foster family homes, States may use their own funds to do so. We hope this information will help us learn more about how the use of unlicensed foster family care affects a child's outcomes.
A therapeutic foster home is a foster family that provides specialized care and services. Therapeutic foster homes for children with more challenging behaviors or needs are more prevalent today than when AFCARS was originally developed. Adding this option is in line with our goal to have the data more accurately reflect a child's living arrangements. Further, this element, along with elements that detail the circumstances of the child's removal and the child's conditions, will allow us to get a richer picture of the needs of children in out-of-home care.
We propose to add shelter care foster family home as a response option so that we can track how States use shelter care. We have defined a shelter care foster family home as one that is designated by the State agency or licensed by a licensing entity as a shelter care home and is short-term or transitional in nature. We understand that shelter care is used to provide States with an opportunity to assess the child's needs and future placements while providing care and protection for the child. However, we have some concerns about the stability of children's placements when States use shelter care, and particularly when used for young children. We hope that by capturing the phenomena of shelter care in the data we will be able to analyze how shelter care affects children's permanency. We welcome comments on this response option and its description.
The amended response option of relative foster family home allows us to determine whether or not there is a kin relationship between the child and the foster parents. This response option is consistent with our goal to better understand the relationship between a child in foster care and the child's caregivers. The response option is limited to persons related by a biological, legal or marital connection and does not include fictive kin (i.e., non-relatives who have a pre-existing relationship with the child, such as godparents, neighbors, and teachers).
Finally, we propose a response option of a “pre-adoptive home.” However, we propose to define a pre-adoptive home as one in which the family and agency have agreed on a plan to adopt the child. We believe this definition is more precise than the current definition of pre-adoptive home, which only indicates that the family “intends” to adopt the child. By changing the definition to include agency participation, we wish to convey concrete circumstances where the agency and the foster family are working in concert to achieve permanency for the child through the foster family adopting the child.
We propose to continue to include group homes as a type of living arrangement; however, we propose to require that the State title IV-B/IV-E agency report whether the group home is family operated or staff operated, or regardless of who operates it, a shelter care group home. We propose to define a family operated home as a group home setting that provides 24-hour care in a private family home in which the family members are the primary caregivers. A staff operated group home is characterized as one in which staff provides 24-hour care for children through shifts or rotating staff. A shelter care group home also provides 24-hour care but is designated by the State agency or the State agency's licensing entity as providing shelter care.
Determining whether a child has been placed into a family operated or a staff operated group home will provide us with further insight into the child's
We propose to add residential treatment centers as a type of living arrangement and define them as facilities that are for the purpose of treating children with mental health or behavioral conditions. Currently, in AFCARS, we include “residential treatment facilities” in the definition of “institutions,” rather than as a separate option. We propose to make this a separate and distinct option so that we may identify a child's living arrangement with more specificity and detail.
We propose to identify a child care institution as a new living arrangement type. We do not believe that the current AFCARS definition of an “institution” accurately reflects the type of living arrangements in which children reside because the definition does not provide enough specificity. We are defining a child care institution as a private facility, or public child care facility for no more than 25 children, which is licensed by the State or tribal licensing authority. This definition is a statutory definition for the title IV-E program which we believe is most suitable here as well. We exclude other institutions whose primary purpose is to secure children who have been determined to be delinquent from this definition of a child care institution. Furthermore, we are modifying the current definition of institutions to exclude residential treatment facilities, which we now include as a living arrangement for States to report separately.
We propose to identify a child care institution that is also designated as a shelter care facility. This is a new response option so that we can examine the use of shelter care as discussed previously. We welcome comments on this response option.
We propose to maintain supervised independent living as a living arrangement and propose one change to the definition that currently appears in AFCARS for consistency with the reporting population definition. Currently, the definition of supervised independent living is an alternative transitional living arrangement where the child is under the supervision of the agency. We want to be clear that the State is only to report living arrangements where the child is under the placement and care of the State, not simply being supervised by the State.
We propose for the first time that the State indicate whether a child's living arrangement is a juvenile justice facility. We are defining a juvenile justice facility as a secure facility or institution in which alleged or adjudicated juvenile delinquents are housed while under the State agency's responsibility for placement and care. This definition is broad enough to include all manner of juvenile facilities, whether they are locked or employ some type of treatment component.
We are adding a medical or rehabilitative facility as a new living arrangement type. We define a medical or rehabilitative facility as one where a child receives medical or physical health care. This could include a hospital or facility where a child receives intensive physical therapy.
We also propose for the first time that the State report whether a child is in a psychiatric facility. We are defining a psychiatric facility as one in which a child receives emotional or psychological health care. This includes both psychiatric hospitals and residential treatment centers.
Finally, we have defined the response option of runaway as a child who has left without authorization any home or facility in which the child was placed. The current living arrangement definition of runaway refers to a child who has “run away from the foster care setting.” We have broadened the definition so that it is clear that this runaway response option must be used any time a child has left a living arrangement without authorization.
We propose to remove trial home visits as a possible response option, because we do not view a trial home visit as a specific living arrangement as discussed above.
As States increasingly use private agencies to perform a variety of child welfare services, there are important implications for the State's oversight of its responsibilities to children in foster care. We have learned from the CFSRs that States have had varied levels of success with contracting out child welfare services. We believe that by tracking the use of private agency involvement in living arrangements, we may be able to analyze its impact on child outcomes. We welcome comments on this proposal.
Federal law is clear that delays in foster or adoptive interjurisdictional placements are not to be tolerated (section 471(a)(23) of the Act). Our analysis of existing data on out-of-State placements demonstrates that it takes much longer to achieve permanency for children who are placed out-of-State compared to children whose placements are intrastate. We hope that expanding on this information will support more sophisticated analyses of out-of-State placements. We believe that requiring States to identify the specific location of a child's out-of-State placement is consistent with the statutory
This information, in conjunction with the family identification number and number of siblings with child at the time of removal, will increase our ability to identify sibling groups in out-of-home care. We are requesting this information because we are often asked by stakeholders whether sibling groups are being placed together in out-of-home care. This information will allow States and the Federal government to analyze how often siblings are placed in living arrangements together when placed out of their own homes. As noted earlier, this information also will be useful in the CFSR process as it will provide rich information about patterns of sibling placements in terms of the current status of the child and for sampling and data profile purposes as well.
For example, if a teenager is in a child care institution while the teenager's infant child is in out-of-home care in the foster family home of the teenager's aunt, the State would report “0” for this element. Further, if a teenager's infant child has been removed from his or her care, the State agency has assumed placement and care responsibility and placed the child in the foster family home of the teenager's grandmother, the State would report “0” for this element even if the teenager is also placed in the foster family home of the grandmother.
We are requiring that States report this information because we want to know when a minor parent in out-of-home care is responsible for the care of his or her own child living with him or her. In general, children of youth in out-of-home care who are living with their minor parent(s) are not themselves considered to be in out-of-home care if they have not been removed from their parent(s) and placed under the State agency's placement and care responsibility. However, these young parent-child(ren) families require enhanced resources from the child welfare system. This is acknowledged in the title IV-E program in which a minor parent's foster care maintenance payment must include the costs for any child placed in the same living arrangement with him or her. In addition, the out-of-home care patterns of these young parent-children families may differ in a variety of ways from those exhibited by youth in care who are not parents. There could also be differences among those youth who are parents, relating to whether or not their children are living with them. For example, youth with children living with them in care may have different permanency plans, living arrangements, lengths of stay in foster care, exit destinations, and/or patterns of re-entry than other youth in care. Examination of trends in these patterns can inform State policy so that necessary resources can be made available to meet the needs of these families.
We propose that a “married couple” means that the foster parents are considered united in matrimony according to the laws of the State in which they live. This category would include common law marriage, where State law provides for such. The State agency should choose “unmarried couple” if the foster parents live together as a couple, but are not united in matrimony according to the laws of the State in which they live. “Separated” means that the foster parents legally are separated, or are living apart, but remain legally married. A single female/male is a foster parent who is not married, and is not living with another individual as part of a couple. If a State indicates that the foster parents are a married couple or an unmarried couple, then the State is also to provide information on all elements for a ‘second’ foster parent in the elements that follow. If the foster parent is a single person, or separated, then the State must provide information for the data elements regarding one foster parent only. There is not a separate category for a foster parent who is a widow/widower. Such individuals should be reported according to their current marital/living situation (e.g., single if the foster parent has not remarried or is living as part of an unmarried couple.)
Currently in AFCARS, we explain that an individual's race is determined by how they define themselves or by how others define them. We propose to modify this explanation. We now propose that race and ethnicity are characteristics that the individual determines and self-identifies, irrespective of how others define them. This is consistent with the Office of Management and Budget's standards regarding racial identification. We propose to include the following racial categories: American Indian or Alaska native; Asian; Black or African American; Native Hawaiian or other Pacific Islander; or White. The racial categories are consistent with the Office of Management and Budget's (OMB) standards for collecting information on race. Additionally, we include new categories for individuals who decline to identify their race or whose race is unknown.
We have specified in the response options that States are to report a funding source of either title IV-E foster care or adoption subsidy when the child is
We have tied the reporting of this information to a particular day within each living arrangement. If the child has already left a living arrangement by the time the State reports the information, then the State is to report the Federal funds supporting the child's maintenance on the last day the child was in the living arrangement. If the child, however, is in a living arrangement on the last day of the report period, then the State is to report the Federal funding sources on the last day of the report period. We propose to focus on the Federal funds provided on a particular day within a living arrangement so that we can better analyze the sources of Federal funds supporting children's room and board in out-of-home care. Further, with the proposed new element amount of payment (see discussion below), we can estimate better the title IV-E foster care and adoption assistance payments made in each living arrangement.
Finally, although some commenters suggested that financial information was not necessary, we propose to collect this information because section 479(c)(3)(D) of the Act requires that we collect the nature of assistance provided by Federal, State, and local adoption and foster care programs.
Our proposal is distinct from the current AFCARS regulation (see appendix A to part 1355, section II, XII). Currently, States report the total amount of the monthly foster care payment, regardless of the source, i.e., whether it was Federal, State or another source of funds. States also report the total monthly amount of the adoption subsidy for the child and indicate whether the subsidy was paid under title IV-E. We are no longer asking for the State to report the monthly amount, but the daily amount, as we will calculate the monthly rate based on the per diem rate that the State reports to us. As we understand it, State information systems are designed such that the daily rate is readily available for reporting. Therefore, this aspect of the proposal should be less of a burden on States and in line with how their information systems are structured. We also are making a change in that we propose that States report the amount of the payment only when a title IV-E payment is made on behalf of a child. Currently, the State is to report the amount of the payment regardless of the source. This change is made as we primarily are interested in knowing about the amount of funds under the Federal foster care and adoption assistance programs, since these are the two largest programs for which we have fiscal oversight responsibility.
In paragraph (f), we propose that the State title IV-B/IV-E agency provide information on each permanency plan for the child in every out-of-home care episode.
In general we are expanding our current AFCARS information by increasing the number of permanency plan options, requesting information on concurrent permanency plans, and the ongoing circumstances or issues children and families face while the child is in out-of-home care. We believe these changes will allow us to track better the actual plans that State agencies develop for children in their placement and care responsibility. Further, we believe that getting more comprehensive permanency plan information and a sense of the ongoing circumstances of families over the child's entire involvement with the child welfare system will aid our ability to analyze the data. In particular, this information may inform both the Statewide assessment and onsite portions of the CFSRs. Further, more detailed permanency plan data will allow us to analyze how States are meeting the provisions of the Adoption and Safe Families Act (ASFA) for more timely permanency for children in foster care.
Although Federal regulations (45 CFR 1356.21(g)) require States to develop permanency plans for children in foster care consistent with the program definition, we understand that most States develop and update permanency plans for all children in their care and placement responsibility regardless of the child's living arrangement, consistent with good practice. We will not penalize States for indicating that a permanency plan has not yet been established for those children for whom a permanency plan is not required by Federal rules. Therefore, we propose that States report this information for all children in the out-of-home care reporting population if that information has been collected in accordance with best practices procedures.
The State is to indicate that the permanency plan is to “reunify with parent(s) or legal guardian(s)” if the State is working with the child's family for a limited time to establish a stable family living environment. This is a modification from the current AFCARS instruction. Currently, States indicate whether a child is reunifying with a parent or principal caretaker from whom the child was removed. We have replaced the term “principal caretaker” with “legal guardian” because we believe the latter better reflects the persons with whom the State would be working toward reunification. Further, we are no longer limiting reunification to situations in which the plan for the child is to be reunited with the parent or legal guardian from whom the child was removed. Although we understand that States may be required by their own laws to make 'reasonable efforts” to reunite a child with the person from whom removal occurred, we believe that reunification occurs when a child is reunited with a noncustodial parent, as well.
The State must indicate that the permanency plan is to “live with other relatives” when the State is working towards the child living permanently with a relative, other than his or her parents or legal guardians. We are modifying this definition from the existing AFCARS definition to remove the instruction that such relatives are “other than the ones from whom the child was removed.” This instruction is no longer necessary given the changes made to the reunification response option above. We modify also the existing AFCARS definition to remove the instruction that “this could include guardianships” since guardianships are most often a separate and distinct plan from living with relatives. We describe the guardianship plan options below.
We propose to retain the current plan definition of “adoption” which is to facilitate the child's adoption by relatives, foster parents, or other unrelated individuals.
We propose to include “independent living” as a permanency plan option, replacing the current AFCARS case plan goal entitled “emancipation” to reflect more accurately our intent. We have modified the existing AFCARS definition for “emancipation” so that States choose this option when the child either is eligible for, or already receiving independent living services. This is one of the distinguishing factors between the plan of “independent living” and of “planned permanent living arrangement.”
We propose to include “planned permanent living arrangement” as a permanency plan option to replace the current AFCARS case plan goal of “long term foster care.” This is primarily a name change only, as we have kept the definition similar to that of long term foster care for the planned permanent living arrangement option. The primary reason for this change is that the ASFA removed the plan “long term foster care” from the statute and replaced it with “planned permanent living arrangement” as a permanency plan. As indicated in comments to the
We propose to separate the current AFCARS case plan goal of guardianship into relative guardianship and non-relative guardianship as possible permanency plan options. Currently, in AFCARS, relative guardianships are included in the permanency plan option of “live with a relative,” which does not allow us to distinguish relative guardianship plans from a plan for the child to live with a relative absent a guardianship arrangement. We are proposing a change to require States to
We propose that States indicate the response option of “non-relative guardianship” when the State agency intends to establish a legal guardianship with an unrelated individual. This is essentially the same as the current definition of guardianship in AFCARS. However, this definition no longer includes establishing a legal guardianship with an agency as an option. We believe that an agency guardianship is more reflective of a legal status in the process of arranging an adoption in some States or may be part of an agency's efforts in moving towards a planned permanent living arrangement. Therefore, we believe that this is no longer necessary.
Finally, we propose that the State title IV-B/IV-E agency continue to report when the child's permanency plan has not been established. This currently appears in the AFCARS regulation as “case plan goal not yet established.” For the reasons described earlier, we believe permanency plan is a more appropriate and accurate term. From our analysis of the existing data we note that some States indicate that a plan has not been established several months into a child's stay in care. We are unclear whether this is an inaccurate reflection of State's permanency planning practices or States are indeed not establishing permanency plans consistent with Federal time frames. Nonetheless, for those children for whom a State has not established a plan, “permanency plan not established” must be indicated.
We propose this new element because we believe, as do many stakeholders who provided comments and consultation to us, that it is important to understand more about young people in out-of-home care who are involved with the juvenile justice system. Currently, in AFCARS, we have no way of identifying young people who are involved with the juvenile justice system. We have heard through a variety of sources, including the CFSRs, that it is important to clarify the characteristics of the reporting population so that we can analyze potential differences in the experiences of children involved in the juvenile justice system versus those who are not.
Additionally, States indicate that they have experienced a marked increase in the number of juvenile justice-involved children in their child welfare systems. This new data element will allow us to establish those numbers and determine whether or not juvenile justice-involved
We considered whether to require States to provide more detail about a child's juvenile justice involvement, such as whether the youth was on probation, through several new elements. However, we settled on this one data element which will tell us what we believe is the most critical concern, which is whether the youth who is in out-of-home care is involved with the juvenile justice system because he/she committed or is alleged to have committed a juvenile offense.
We propose that States report this information to us because we are interested in getting a sharper picture of the circumstances surrounding the child while in out-of-home care. Here we are interested in all circumstances that surround the child and family while the child is in out-of-home care and not just those events that may have precipitated the child's placement in out-of-home care. Currently, we are collecting this information only at removal, when the agency may know the least about the child and family. Knowing the total array of circumstances for the child and family at the time the State agency develops the initial permanency plan will provide a more complete picture of the challenges faced by the system and its clients. We propose that States collect and report this information at the time of the development of the permanency plan because we believe that is when many States have completed a more thorough assessment of the child and family. This information will facilitate identification of more complex cases that require more resources from the less complex cases. It also will permit an assessment of “cumulative risk” for children that could be related to such phenomena as length of stay and reason for discharge.
Most of the response options for this element are the same as those for the element “child and family circumstances at removal” described in paragraph (d)(5). However, we have added the response option of “none of the above” for a family and child for whom all preexisting issues have been resolved and no new issues have arisen. We also have deleted the response options for status offenses, delinquency and runaway because they are reported in other elements on an ongoing basis. States report whether a child has run away continuously through the living arrangement elements described in paragraphs (e)(1) and (e)(4) and report whether a child is involved with the juvenile justice system each report period in the element described in paragraph (f)(5). We considered going further and eliminating certain response options based on what we believed were unlikely scenarios at the time of the development of the permanency plan, but decided against doing so. For example, we considered eliminating “abandoned” as a response option at the time of the development of the initial permanency plan based on our original thinking that abandonment is a condition that is associated with the time of removal only. However, we now believe that we should allow for the possibility that the State agency may not have had enough information to support a response of abandonment at the time of removal, but did at the later point of developing the permanency plan. We welcome comments on this proposal.
In paragraph (g), we propose that the State report information that describes when and why a child exits the out-of-home care reporting population, if applicable.
Currently, in AFCARS, we ask States to report the most recent “date of discharge” from foster care only (see appendix A to part 1355, section II, X.A). Therefore, our proposal is new in that we are requesting the date of every exit and clarifying that States must report an exit when a child is no longer under the agency's placement and care versus being “discharged.” States will report a date of exit when a child is returned to live with his/her parents even if the State agency continues to hold placement and care responsibility of the child, as discussed earlier in the out-of-home care reporting population section. If the child exited through adoption, the State agency must enter the date that the court finalized the adoption as the exit date. If the child has not exited, the State agency should leave this data element blank.
As we noted in the preamble to the “removal transaction date” element, some commenters to the
We propose the following exit reasons, which are similar to the current response options in AFCARS: Reunify with parents/legal guardians; live with other relatives; adoption; emancipation; relative guardianship; non-relative guardianship; transfer to another agency; death of child; and runaway. Below we discuss each of our proposed exit reasons.
States are to indicate that the child has exited to “reunify with parents/legal guardians” when the child has returned to a parent or legal guardian. This differs from the current AFCARS response option which more broadly captures a child's return to the home of his or her primary or principal caretaker. We have made an effort throughout this proposed regulation to remove the term caretaker, as we believe it is too vague. Further, we specify that a State is to include in this exit reason a child who is returned home to live with a parent under the State agency's continued placement and care responsibility.
We propose to retain the response option of “live with other relatives;” however, we have modified the definition. Currently, AFCARS instructs States to select this response option when the child has exited to live with a relative other than the one from whose home he or she was removed. We propose to instruct States instead to select this option when the child exits to live with a relative who is not his or her parent or legal guardian. Relatives are limited, by definition, to persons related by a biological, legal or marital connection. Fictive kin are not relatives for AFCARS purposes.
We propose to modify the current response option of “guardianship” so that States can specifically indicate whether the child exited the reporting population to a relative or non-relative guardianship arrangement. We believe that this level of specificity will allow us to better analyze children's outcomes.
We propose to modify the exit reason of “transfer to another agency” to refer to situations in which the responsibility for the placement and care of the child was transferred to a different agency either within or outside of the State. This is a clarification in that we are using the term “placement and care” rather than simply “care” as is used currently in AFCARS. States are to report an exit when the actual “placement and care” for the child has changed. There may have been some confusion about when States are to report a transfer, since States organize their child welfare agency structures differently. States are to report this exit reason when the State title IV-B/IV-E agency transfers its placement and care to an agency outside of the IV-B/IV-E agency. These transfers often are made to a juvenile justice or disability agency, if these agencies are external to the title IV-B/IV-E agency. However, if such agencies reside within a single title IV-B/IV-E agency, such internal transfers of responsibility should not be included in this response option.
We propose to modify the current AFCARS definition of the response option “runaway” to specify that the agency's placement and care responsibility ended as a result of the child's running away. We want to be sure that it is clear that an exit is reported only when the agency is no longer responsible for the child. If a child remains under the State agency's responsibility for placement and care but the child is on runaway status, the State is to continue to report the child to AFCARS with a living arrangement of “runaway.”
We have included the existing response options of “exit to adoption,” “emancipation,” or “death of child” without change.
We propose this element to supplement information we collect in CAPTA about child fatalities and child maltreatment. We believe that the incidence of such deaths is minimal; children are more likely to die in out-of-home care as a result of natural causes or accidents. Irrespective of the cause, approximately 560 fatalities occurred in FY 2004 according to AFCARS data. However, we are interested in attempting to pinpoint the actual incidence of maltreatment related fatalities. In determining which response options to propose for this element, we struggled with striking a balance between getting timely data and data that is accurate and fair towards the provider. We acknowledge that many State agencies may not have completed
For example, at the time of removal, the State agency indicates that one of the child and family circumstances is the child's behavior problem. When the child exits out-of-home care to reunification with the family, the child may still have a behavior problem, but throughout the child's stay in out-of-home care the State agency provided services to help the child and family manage these behaviors and the State agency also has arranged after care services to address any ongoing behavior problems. In such a situation, the State agency would indicate the child's behavior problem as a circumstance at exit. We welcome comments on this proposal.
In paragraph (h), we propose that a State collect and report information on the circumstances of a child's exit from the AFCARS reporting population to a finalized adoption. This information should only be reported if the exit reason reported under paragraph (g)(3) is adoption. As indicated earlier, we require that States report much of this information in the existing AFCARS, but in a separate adoption file.
We believe that with the emphasis in ASFA on using relatives as a resource for children, it is important to understand the trends surrounding relative adoptions. We also believe it is important to know the extent to which both maternal and paternal relatives are being utilized as adoptive resources.
We propose to add a section 1355.44 which provides all elements for the adoption assistance and guardianship subsidy data file. Each element is described in detail, and the acceptable response options also are defined. (Attachment B contains a quick reference to all the adoption assistance and guardianship subsidy date file elements.) The State agency must collect and report the information as described in these elements for each child in the adoption assistance and guardianship subsidy reporting population.
In paragraph (a) we propose to collect general information that identifies the State submitting the adoption assistance and guardianship subsidy file and the child.
In paragraph (b), we propose that States collect and report demographic information on the child, including the child's date of birth, race and ethnicity.
If the child's race is unknown, the State is to so indicate, as outlined in subparagraph (b)(2)(vi). It is acceptable for the child to be identified with more than one race, but not know one of those races. In such cases, the State must indicate the racial classifications that apply and also indicate that a race is unknown. If the child has been abandoned the State is to indicate that the race cannot be determined in subparagraph (b)(2)(vii). Finally, if the parent(s) or the child, if appropriate, declines to identify the child's race, the State must indicate that this information was declined as outlined in paragraph (b)(2)(viii).
In paragraph (c), we propose that the State collect and report information on the nature of adoption assistance agreements and additional information surrounding those adoption arrangements. We are seeking this information for all children who are the subject of an adoption assistance agreement, whether final or not and regardless of whether the agreement is for an ongoing subsidy, nonrecurring costs, services and/or health insurance or Medicaid. For children who are the subject of a guardianship agreement rather than an adoption assistance agreement, the State is to leave the elements described in this paragraph blank.
We want to be clear that we propose States to report information on the child for whom the State agency has a signed adoption assistance agreement in effect with the adoptive or prospective parents. Also, as long as an adoption assistance agreement is in effect between the State and the adoptive or prospective parents at the end of subsequent report periods, the State is to continue to report information on the child. For example, State X has an adoption assistance agreement for a child who is residing with his adoptive parents in State X. Two years later the family moves to State Y and the adoption assistance agreement remains in effect. State X must continue to report information on the child. Another example is a child who is the subject of an adoption assistance agreement who is in out-of-home care temporarily. Regardless of the fact that the child is not currently at home with the adoptive parents, the State must continue reporting information on this child as long as the agreement remains in effect.
We propose that a State report the total amount of the subsidy payment made to the adoptive parent(s), rather than the portion that the State may seek reimbursement for under title IV-E. Further, in any situation where the State has an adoption assistance agreement with adoptive parents but is not providing an actual payment in the last month of the report period, the State is to indicate that $0 payment was made. Such a situation is likely to occur if the adoption assistance agreement is for a “deferred subsidy,” which States may enter into with prospective parents of a child who may be at risk for developing a health condition (e.g., a child born to a substance-addicted mother) at a later point, but is not exhibiting current signs that warrant a financial payment in addition to the provision of Medicaid. By collecting information on those agreements where a payment is not made, we can determine the extent to which States are providing ancillary services to adopted children.
In paragraph (c)(4), we propose that States report the amount of the nonrecurring costs paid to the adoptive parent. This includes payments the State agency makes directly to other service providers rather than to the adoptive parent. The State is to report an amount only if it responded that the adoptive parent received reimbursement for nonrecurring costs during the current report period in the previous element. If the State indicated that the adoptive parent did not receive any nonrecurring costs, then the State must leave this element blank.
We seek information on nonrecurring cost reimbursements consistent with the requirement in section 479(c)(3)(D) of the Act to collect information on the extent of adoption assistance. We have chosen to solicit information on the payment or reimbursement of nonrecurring adoption expenses under the Federal adoption assistance program only, as we are not aware of separate State-only funded programs which offer this benefit to adoptive families. We also ask that the State report the total amount of the reimbursement during the report period. Unlike adoption subsidy payments which are ongoing and may fluctuate over time, reimbursements for nonrecurring costs are more likely to be made in a lump-sum or over a finite period of time. Thus, we need to gather the total cost of the reimbursements over an extended time rather than in a single month.
This is an expansion of the existing AFCARS requirement for the State to indicate whether a child was placed across State lines or was the subject of an incoming intercountry adoption. We wanted to include State reporting of outgoing intercountry adoptions for the first time because we have learned that they do occur and are sometimes subsidized by the State agency. Further, we expect that more outgoing intercountry adoptions may occur after the Hague Convention protections are in full force and effect for children for whom an outgoing adoption may be in their best interests.
We have added a new response option of “State agency” which is the title IV-B/IV-E agency that has placement and care responsibility of the child in out-of-home care and is reporting the child to AFCARS. This response option is more specific than the existing option of “public agency,” which could be any public agency in the State. It is important for us to be specific here primarily because of the Adoption Incentives Program. We must calculate whether States are eligible for financial incentives for completed adoptions based on whether the child was a foster care child and in the placement and care responsibility of the State agency. Similarly, we have added two response options of “private agency under a contract or agreement” and “Tribal agency with agreement” so that States can indicate when children are in foster care under the State title IV-B/IV-E agency's placement and care responsibility (or shared responsibility) and still receive credit for such a child's adoption for the Adoption Incentives Program. Under the existing AFCARS, States have been confused as to whether these adoptions should be reported as placed by the public agency or the private agency.
The categories “Tribal agency,” “private agency,” “birth parent” and “independent person” have been retained from the existing AFCARS with minor modifications to their definitions. The reporting of these adoptions is being retained because it will permit continuity and consistency of our estimates of the total number of adoptions.
One piece of information that we are no longer requiring States to report separately is the adopted child's special needs status. In the current AFCARS we require States to report whether a State has determined that the child has special needs, and the primary factor (the child's race, age, membership in a sibling group or medical condition or disability) in this determination. We have found that this information does not lend itself to meaningful analysis nor does it represent the Federal definition of special needs, which is comprised of three criteria only one of which relates to the child's condition which makes the child difficult to place. We believe that with the changes we propose to strengthen collection of health conditions and identify sibling groups along with data on age and race, we will have sufficient information to analyze the characteristics of the children in the adoption assistance reporting population.
In paragraph (d), we propose that a State provide information on children who are the subject of a subsidized guardianship agreement with the State title IV-B/IV-E agency. Although we are not mandated to collect this information under section 479 of the Act, we are requiring information on this growing population of children to try and understand the number and types of children for whom subsidized guardianship is the permanent plan. Further, we believe that we have a general responsibility to ensure the well-being of children who are served by State child welfare systems and would be remiss if we did not collect basic information.
In section 1355.45 we propose the types of assessments we will conduct to determine the accuracy of a State's data, the compliance standards, and the manner in which States initially determined to be out of compliance can correct their data. This section also specifies how we propose to implement the statutory mandates of Public Law 108-145.
Public Law 108-145 added section 474(f) to the Social Security Act, which requires that the Department withhold certain funds from a State that has “failed to submit to the Secretary data, as required by regulation, for the data collection system implemented under section 479.” Although we recognize that the provisions related to AFCARS in section 479 were designed to bolster our authority to take financial penalties for noncompliance with AFCARS requirements, we did not believe that the statute on its face was clear enough to implement penalties immediately after its enactment. In ACYF-CB-IM-04-04, issued on February 17, 2004, we notified State agencies that we would not implement the penalty structure in the statute until we published final regulations. Further, because we were in the midst of developing these proposed rules that would change significantly the information that States submit to AFCARS, we did not believe it prudent to implement a new penalty structure for the existing requirements in regulation.
In paragraph (a) we propose that ACF determine whether a State's out-of-home care data file is in compliance with certain file and data quality standards (described further below in paragraphs (c) and (d)). The law requires that we assure that the data submitted to us is reliable and consistent and authorizes us to utilize appropriate requirements and incentives to ensure that the system functions reliably (sections 479(c)(2) and (4) of the Act, respectively). We have chosen to fulfill these
We are not proposing to establish compliance standards for the adoption assistance and guardianship subsidy file. The primary reason is because we are not statutorily mandated to request information on guardianship agreements. As such, we will not apply a penalty here. We do have authority to seek information on governmental assistance for adoption, and our most pressing information needs can be met through the out-of-home care data file. Moreover, the statute outlines a very specific financial penalty for noncompliance with AFCARS regulations, such that the same financial penalty is mandated regardless of whether we define noncompliance as errors within both files or just one.
Although we have not proposed compliance standards and penalties for the adoption assistance and guardianship subsidy file, this information is still important to ACF and the States and we will take other steps to ensure that States submit quality data. In particular, we may target technical assistance efforts to this information and/or develop a data quality utility for the adoption assistance and guardianship subsidy file that will allow a State agency to evaluate the quality of that file before submitting it to ACF.
In paragraph (b) we have outlined the types of data errors and how we will assess a State's out-of-home care data file to identify those errors.
We want to note that we propose a more specific definition of the term missing data than is used in the existing AFCARS. AFCARS currently uses the term “missing data” to refer to both blank responses and invalid responses (discussed below). We chose not to use a similar definition here to avoid the common confusion that only blank data is problematic.
Finally, we want to underscore that States are not permitted to mask the fact that they have not obtained information by mapping it to a valid, but untrue, response option. This practice is not permitted as specified in 45 CFR 1355.42(d), as it provides a misleading and inaccurate account of the characteristics and experiences of the reporting population.
These types of errors are not new and there are internal consistency validations in the existing AFCARS. However, we have found that the existing internal consistency checks, while providing an important first step to quality data, were not extensive enough. Unfortunately, there were a number of occasions where a State's data passed all the existing internal consistency checks, but ACF and the State discovered that the data provided an inaccurate and unreliable picture of children in out-of-home care in the State's placement and care responsibility upon further analysis. Based on our experience in reviews and technical assistance, we believe that more internal consistency checks, along with other assessments that will uncover errors, will provide us with more reliable and consistent data that we can publicize and use for our program activities with a higher degree of confidence. We have chosen not to promulgate the internal consistency checks through notice and comment rulemaking so as to provide maximum flexibility to change them as needed. We will, however, notify States officially of the internal consistency checks.
Cross-file checks are not a part of the existing AFCARS compliance assessments, but are a part of the Data Quality Utility. We propose to evaluate a State's data file for these types of errors to address some common problems identified in AFCARS assessment reviews. Often these problems are a result of underlying issues in the programming of the State's information system as opposed to data entry errors. We believe that adding cross-file checks will assist States and ACF in improving the quality of AFCARS data. As with the internal consistency checks, we will share with States the specific cross-file checks.
In paragraph (c), we propose a set of file submission standards for ACF to determine that a State's AFCARS is in compliance. These are minimal standards for timeliness, formatting and quality information that the State must achieve in order for us to process the State's data appropriately.
In addition, we propose that the State submit 100 percent error-free data for the basic demographic elements described in 45 CFR 1355.43(a)(1) through (a)(5), 1355.43(b)(1) and (b)(2) for every child in the reporting population. These elements describe the State, Report date, Local agency, Child record number, Family record number, Child's date of birth and Child's gender. The errors that may be applicable to these elements are missing data, invalid data and internally inconsistent data.
We are requiring that States have no errors at all for these seven elements because they contain information that is readily available to the State and is essential to our ability to analyze the data and determine whether the State is in compliance with the remaining data standards. For example, the child's date of birth is information that all States collect on children in out-of-home care and would typically have in their information system. Without the child's date of birth we cannot run some other internal consistency or cross-file checks. Moreover, we cannot, for example, look at the age stratification of children in out-of-home care or determine the mean age of children adopted from out-of-home care. Based on our experience with the existing AFCARS, we have found that problems in these elements are often the result of minor errors that can be rectified easily. We therefore believe that a 100 percent compliance standard for these basic and critical elements is appropriate.
In paragraph (d), we propose a set of data quality standards for the State to be in compliance with AFCARS requirements. These standards focus on the quality of the data that a State provides to us. The data quality standards relate to missing data, invalid data, internally inconsistent data and tardy transactions. No more than 10 percent of data in a State's out-of-home care data file may have each of these data errors to remain in compliance with the AFCARS. The numerical standard of 10 percent is consistent with the existing AFCARS standards.
We considered decreasing the ‘acceptable’ amount of errors permitted in the AFCARS data file, for example, to no more than five percent of each data error in order to ensure that we receive better quality data. As noted earlier, a number of public reports and stakeholders have criticized the quality of AFCARS data. Although States and ACF have made great strides in improving the quality of the data over the past few years, we believe there is room for significantly more progress. Decreasing the acceptable threshold for compliance would be one avenue to compel State agencies to continue to work on their data. On the other hand, by increasing the number and breadth of the internal consistency checks and adding cross-file checks to the range of assessments that we perform on State's data, we already are setting a higher bar for compliance. Further, we acknowledge that by adding elements and requiring that the State agency report historical information for certain elements, we are asking States to report more information that will be subject to the compliance assessments, thereby increasing the likelihood of errors. We believe, therefore, that the most appropriate balance is to leave the numeric standard at 10 percent.
In paragraph (e), we propose our methodology for determining compliance and a State's opportunity to submit corrected data where ACF has initially determined that the State's original submission does not meet the AFCARS standards.
In paragraph (e)(1), we propose that we first determine whether the State agency's out-of-home care data file meets the file standards (
In paragraph (e)(2), we propose to determine whether the State's out-of-home care data file meets the data quality standards, if the file standards already have been satisfied. We will calculate the error rates for each error type (i.e., missing data, invalid data, inconsistent data and tardy transactions) to determine if any one of them exceeds 10 percent. If an error rate exceeds 10 percent ACF will so notify the State.
In paragraph (e)(3), we propose to notify a State that does not meet either the file or data quality standards within 30 days of the report deadline (i.e., by May 15 and November 14). We are required to notify States within this timeframe in accordance with section 474(f)(1) of the Act. We have not, however, regulated the format of this notification, as we would like to explore the possibility of notifying a State automatically upon receipt (or non-receipt) of a State's data file. We anticipate detailing the data quality errors in the notification to aid the State in correcting its data file.
In paragraph (e)(4), we propose procedures for a State agency to submit a corrected data file to ACF if the State's data file initially does not meet the file and data quality standards. If the State agency does not meet the file standards or the data quality standards (with the exception of the standard for tardy transactions, which is discussed below) a State agency will have until the deadline for submitting data for the subsequent report period to make changes to the data and submit the corrected data file to ACF. This timeframe for the State to submit corrected data is mandated by section 474(f)(1) of the Act. However, if a State does not meet the data quality standard related to tardy transactions, the State may not ‘correct’ these dates. This is because according to the removal transaction date and exit transaction date elements, these dates must be computer-generated to reflect the data entry date and cannot be modified. Because the State is not permitted to change an entered transaction date, but the law requires that a State have another opportunity to submit data that meets the standards, ACF will look towards the State's next regularly submitted out-of-home care data file to determine whether the State has achieved compliance.
For example, a State agency submits an out-of-home care data file for the report period ending March 31 on April 17 (due on April 15). ACF assesses the
The State agency need not develop an actual corrective action plan that outlines how the State plans to comply with the data standards, as is required in other program improvement efforts in child welfare (i.e., Child and Family Service Reviews and Title IV-E Eligibility Reviews). We believe that an actual plan is not necessary in this case, as we anticipate that the Federal system will identify the errors that caused the State's data to be in noncompliance. Furthermore, because the period in which a State may submit data is relatively short, we believe that engaging in a process to develop an action plan and seek ACF approval will only reduce the amount of time the State has to make actual improvements that may bring the State into compliance with the standards.
In paragraph (f), we propose to determine that a State has not complied with the AFCARS requirements if the State either does not submit an out-of-home care data file or does not submit corrected data that meets the file and data quality standards. This final determination of noncompliance means that ACF will withhold financial penalties as outlined in 45 CFR 1355.46.
Finally, we would like to emphasize that a determination of compliance with AFCARS standards in this NPRM is separate and apart from the CFSRs as implemented in 45 CFR 1355.31 through 1355.37. This is consistent with the law at section 474(f)(2) of the Act. This means that a State's substantial compliance with titles IV-B and IV-E as determined by a CFSR, including the State's rating on the systemic factor related to statewide information systems, has no bearing on whether ACF determines the State in compliance with the AFCARS standards, and vice versa. Further, a State agency that enters into a program improvement plan consistent with the requirements of 45 CFR 1355.35 to make improvements to a State's data and/or reporting of such data to AFCARS does not factor into ACF's determination of compliance with the AFCARS standards.
In paragraph (g), we propose that ACF may use other monitoring tools that are not explicitly mentioned in regulation to determine whether the State meets all AFCARS requirements. For example, we may wish to continue to conduct onsite reviews in some format to ensure proper data mapping or provide other technical assistance to ensure valid and quality data. We currently use this approach in AFCARS by conducting onsite assessment reviews of a State's process to submit AFCARS data, including validating that the information in case files is accurately portrayed in the AFCARS submission. Through these assessment reviews we have found that States may be in compliance with the AFCARS data standards, but not in compliance with all the AFCARS requirements. For example, through the aforementioned error checks, which we expect to be conducted automatically upon receipt of the data, we cannot determine whether the State is submitting the entire or the correct reporting population. But through the assessment reviews, we have been able to provide States with technical assistance on how to meet all aspects of the AFCARS requirements. We have often heard from States that the onsite activities are beneficial and provide the State with valuable technical assistance. Therefore, we want to reserve our ability to develop and conduct these and other monitoring activities for AFCARS.
In section 1355.46 we propose how ACF will assess and take penalties for a State's noncompliance with the AFCARS requirements. The penalty structure we propose is consistent with section 474(f) of the Act. Some commenters to the
In paragraph (a), we propose that the pool of funds that are subject to a penalty for noncompliance are the State agency's claims for title IV-E foster care administrative costs for the quarter in which the original out-of-home care data file is due (as opposed to the corrected data file). Such administrative costs are inclusive of claims for training and SACWIS. We believe that this provision is consistent with the statutory language in section 474(f)(2) of the Act. The law requires that the pool of funds subject to the penalty is “the amount expended by the State for administration of foster care activities under the State plan approved under this part,” meaning all title IV-E foster care administrative costs. Further, the law specifies that the pool be comprised of a State's claims in the quarter that coincides with the report period deadline (i.e., the first or third quarter of a fiscal year).
In paragraph (b), we propose specific penalty amounts for noncompliance.
In paragraph (b)(1), we propose to assess a penalty in the amount of a sixth of a percent of the pool of Federal funds subject to a penalty once ACF determines the State agency out of compliance with the AFCARS requirements according to 45 CFR 1355.45(f). Using fiscal year 2004 claims data, we estimate that penalties will range from $601 to $349,020 for a State's noncompliance with the standards in a single report period. In paragraph (b)(2), we propose to assess a penalty in the amount of a fourth of a percent of the pool of funds subject to a penalty, should the State's noncompliance continue in subsequent six-month periods. Using FY 2004 data, we estimate that the penalty for subsequent noncompliance will range from $902 to $523,530 per report period.
These provisions are consistent with section 474(f)(2)(A) and (B) of the Act. The law specifies the amount of each penalty for noncompliance and requires that penalties continue until the State agency is able to meet the standards. Although the calculated penalty amounts are smaller than those in the existing regulation, a penalty that continues until a State's data file complies with the AFCARS standards provides an incentive for State agencies to correct their data in a timely manner. For example, a State that does not comply with the AFCARS requirement after the first period of corrective action may receive a penalty of $30,205. If the
In paragraph (c), we propose to take an assessed penalty by reducing the State's title IV-E foster care grant following ACF's determination of noncompliance.
In paragraph (d), we propose that a State be liable for applicable interest on the amount of funds we penalize, in accordance with the regulations at 45 CFR 30.13. This proposal to collect interest is consistent with Department-wide regulations and policy on collecting debts owed to the Federal government.
In paragraph (e), we propose to provide the State with an opportunity to appeal a final determination that the State is out of compliance inclusive of accompanying financial penalties to the DHHS Departmental Appeals Board (DAB). Since the law does not require any unique appeal rights or time frames regarding AFCARS requirements, all appeals must follow the DAB regulations in 45 CFR Part 16.
We propose to remove all of the appendices because they contain provisions and charts that are being substantively altered or made obsolete by the provisions of this NPRM. Appendix A contains the data element definitions and instructions for the existing foster care file. We propose instead the foster care file at proposed section 1355.43. Appendix B contains the adoption data element definitions and instructions for the existing adoption file. We propose instead that the adoption data element file be deleted and information pertaining to adoption be incorporated into the foster care file. The adoption assistance and guardianship subsidy file is proposed at section 1355.44. Appendix C contains existing technical file submission details. We explained in the discussion of section 1355.42(e) that we propose not to regulate file submission provisions. Appendix D contains the existing foster care and adoption file layout and summary file details. We explained in the discussion on section 1355.42(a) that we are eliminating the summary files and explained in section 1355.42(e) that we are not regulating file layout. Appendix E contains the existing data standards. We propose instead data standards in section 1355.45. Finally, appendix F contains a chart of allotments upon which the existing penalties are based. We propose instead the penalty calculations consistent with section 474(f) of the Act at section 1355.46.
Executive Order 12866 requires that regulations be drafted to ensure that they are consistent with the priorities and principles set forth in the Executive Order. The Department has determined that this proposed rule is consistent with these priorities and principles. In particular, we have determined that a regulation is the best and most cost-effective way to implement the statutory mandate for a data collection system regarding children in foster care and those that are adopted and support other statutory obligations to provide oversight of State-operated child welfare programs. Moreover, we have consulted with the Office of Management and Budget (OMB) and determined that these rules meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were subject to OMB review.
We have determined that the costs to the States as a result of this rule will not be significant. At least half of the costs that States incur as a result of the revisions to AFCARS will be eligible for Federal financial participation. Depending on the cost category and each State's approved plans for title IV-E and cost allocation, States may claim allowable costs as Statewide Automated Child Welfare Information System costs at the 50% rate, administrative costs for the proper and efficient administration of the State plan at the 50% rate, or training of State-agency staff at the 75% rate. We estimate that States costs will be approximately $36 million annually for AFCARS for the first five years of implementation, half of which ($18 million) we estimate will be reimbursed by the Federal government as allowable costs under title IV-E. Additional costs to the Federal government to design a system to collect the new AFCARS data are expected to be minimal.
We considered whether alternative approaches could meet ACF and State needs but determined that they could not. First, we considered whether other existing data sets could yield similar information. We determined that AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in foster care and/or achieve adoption with the involvement of the State child welfare agency. Further, we are required by section 479 of the Act to establish and maintain such a data system, so other data sources could not meet our statutory mandate. We also considered whether we should permit States to sample and report information on a representative population of children. We determined that there are several significant problems with using a sampling approach for collecting data on foster care and adoption. First, sampling would severely limit the use of AFCARS data. For example, ACF would be unable to collect reliable sample data for the title IV-E foster care eligibility reviews and the Child and Family Services Reviews or respond to other initiatives such as the Annual Outcomes Report to Congress and Adoption Incentives using sampling data. Second, when using a sample, small population subgroups (e.g. children who spend very long periods in foster care or children who get adopted or run away) would occur so rarely in the data such that analysis on these subgroups would not be meaningful.
The Secretary certifies under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to State agencies that administer title IV-B and IV-E of the Act.
The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation). This proposed rule does not impose any mandates on State, local or tribal governments, or the private sector that will result in an annual expenditure of $100,000,000 or more.
Under the Paperwork Reduction Act (Pub. L. 104-13), all Departments are required to submit to OMB for review and approval any reporting or record-keeping requirements inherent in a proposed or final rule. This NPRM contains information collection requirements in sections 1355.43, the foster care data file and 1355.44, the adoption assistance and guardianship subsidy data file, that the Department has submitted to OMB for its review. In addition, the NPRM proposes to validate whether the State complies with the AFCARS out-of-home care standards established in section 1355.45 by checking for errors in logic that mean that the data could not be accurate. However, these error checks are not information collection requirements themselves as they do not require the State to produce, maintain or submit information to ACF, and so are not a part of the burden calculations. Rather, the error checks will be performed by ACF on each State's out-of-home care data file to validate that the State is providing the data as specified in the data file requirements in section 1355.43. The error checks are not appended to this regulation as they are rather technical aspects of data reporting that cannot be completed until ACF issues a final rule that contains the required data elements.
Collection of information for AFCARS is currently authorized under OMB number 0980-0267. However, this NPRM significantly changes the collection requirements. We estimate that burden hours will increase to 673,234 as a result of the provisions in this NPRM. The respondents to the information collection in this proposed rule are State agencies.
The Department requires this collection of information to address the data collection requirements of section 479 of the Act. Specifically, the law requires the Department to develop a data collection system that can provide comprehensive national information on the demographic characteristics of adopted and foster children and their parents; the status of the foster care population; the number and characteristics of children placed in or removed from foster care; children adopted or with respect to whom adoptions have been terminated, and children placed in foster care outside the State which has placement and care responsibility; and the extent and nature of assistance provided by government adoption and foster care programs and the characteristics of the children to whom such assistance is provided.
Further, this information is critical to our efforts to: assess a State's compliance with titles IV-B and IV-E of the Act and the CFSRs (45 CFR 1355.31 through 1355.37), conduct title IV-E eligibility reviews (45 CFR 1356.71), implement the Adoption Incentive Payments program at section 473A of the Act and for other program purposes previously outlined.
The following are estimates:
We arrive at these estimates after taking into consideration the existing foster care, adoption assistance and guardianship subsidy populations; factoring in the increase of burden in accordance with this proposed rule and efficiencies in reporting; and the amount of caseworker and information system staff time to collect and report the information. PRA rules require that we estimate the total burden created by this NPRM regardless of what information is already available to States. Thus, these burden hours are substantially higher than currently authorized by OMB, and may be an overestimate since we are unable to account for information that States currently collect for their own purposes, but we propose to collect for the first time under this NPRM. Below we describe in detail how we arrived at the estimated burden.
1. Our first step was to estimate the foster care reporting population at the approximate time of implementation. We used information from FY 2003 AFCARS data and applied the following assumptions:
• We assume that the proportion of children in SACWIS States versus non-SACWIS States will remain constant.
• Children newly entering foster care annually. We assume that the national number of children who enter foster care each year will rise by five percent due to our new reporting population (e.g., inclusive of some children in the State's placement and care responsibility who are in living arrangements outside of the scope of our program rules for foster care). Although we do not know exactly how many children will be a part of the new reporting population who are not currently reported as in foster care under the existing AFCARS, we believe this new reporting population will account for a minor increase in the number of children in foster care.
• Children served annually. We assume that the number of children served annually in foster care will rise by five percent due to our new reporting population.
• Children exiting foster care. We assume that the number of children who exit foster care annually will remain about the same as it is currently, in part because we have made a change in the way States report exits from foster care
As a result we estimate 503,848 children served in SACWIS States and 75,288 in non-SACWIS States; 264,971 children with new entries into foster care in SACWIS States, and 46,760 in non-SACWIS States; and 278,068 children who exit foster care, approximately 49,000 of whom would exit to adoption.
2. Our second step was to estimate the number of recordkeeping hours that State workers will spend on meeting AFCARS requirements. We used information from our existing AFCARS collection approved by OMB as a foundation and applied the following assumptions:
• Recordkeeping will require more time in a non-SACWIS State than it does for a SACWIS State.
• Entering information into an information system for a child newly entering foster care will take approximately an hour for SACWIS States and 1.5 hours for non-SACWIS States.
• Updating the foster care record on average will take 20 minutes for SACWIS States and 30 minutes for non-SACWIS States.
• Workers will take approximately .1 hour to enter exit data for non-adoption cases and an additional 30 minutes for adoption cases.
We multiplied the time spent on the various recordkeeping activities as outlined in this step by the foster care caseload numbers described above in step 1, and arrived at a total of 576,216 recordkeeping hours for all children in the foster care population annually.
3. Our third step was to estimate the time spent on actually reporting the information (e.g., submitting the foster care file). We used the following assumptions to develop the reporting hours estimate:
• We anticipate that States will be using a new technology such as XML to transmit the data and States will need time to become familiar with and efficient in reporting their data in the first years of implementing the new procedures. This will increase the amount of time spent reporting.
• The proposed foster care data file is comprised of many elements of the existing foster care and adoption files. Therefore, our estimate should be higher than the sum of the existing reporting burden hours of eight hours for the foster care file and four hours for the adoption file.
We estimate that the proposed foster care file will increase the reporting burden by approximately 25 percent or by 3 hours, for a total of 15 hours. We then multiplied 52 State agencies and two report periods with the 15 reporting burden hours, which results in an annual reporting burden of 1,560 hours.
4. Finally, we calculated the total burden hours for the foster care file as 577,776 hours by combining the recordkeeping (576,216) and reporting burden (1,560). Dividing this national and annual figure by the 52 State agencies and two semi-annual report periods, we arrive at approximately 5,556 burden hours per respondent each report period.
1. We first estimated the annual burden associated with the adoption assistance elements.
• In the Department's FY 2006 budget, we estimated that an average monthly total of 369,000 children will be served in that year by the title IV-E adoption assistance program. Approximately 80% of all children receiving adoption assistance are served by the title IV-E program, so we estimate that in FY 2006 approximately 461,250 children will be the subject of an adoption assistance agreement.
• We expect adoption workers to spend .2 hours annually recording data in accordance with this NPRM on each child under an adoption assistance agreement. Most information in the adoption file is demographic and static and does not need to be updated. Further, most agreements are updated or changed on an annual or biennial basis, unless the family circumstances change, requiring small amounts of record-keeping.
• We calculate recordkeeping for adoption assistance information to take approximately 92,250 hours (.2 hours x 461,250 children).
2. We then estimated the annual burden associated with the guardianship subsidy elements.
• We estimate that the guardianship reporting population is comprised of approximately 30,000 children based on information obtained from a number of sources describing States subsidized guardianship programs.
• Like the adoption data, this information is static and will change infrequently, so we estimate worker time of approximately .1 hours annually on record keeping.
• We calculate recordkeeping for the guardianship subsidy information to take approximately 3,000 burden hours (.1 hours x 30,000 children).
3. In addition, we estimate that burden associated with actually reporting the adoption assistance and guardianship subsidy file to ACF will take each State 2 hours each report period. We then multiplied 52 State agencies and two report periods with the 2 reporting burden hours, which results in an annual reporting burden of 208 hours.
4. Finally, we calculated the total burden hours for the adoption assistance and guardianship subsidy file as 95,458 hours by combining the recordkeeping (92,250 + 3,000) and reporting burden (208). Dividing this national total by the 52 State agencies and two report periods we arrive at approximately 918 burden hours per respondent per report period.
The Administration for Children and Families will consider comments by the public on this proposed collection of information in the following areas:
1. Evaluating whether the proposed collection is necessary for the proper performance of the functions of ACF, including whether the information will have practical utility;
2. Evaluating the accuracy of ACF's estimate of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhancing the quality, usefulness, and clarity of the information to be collected; and
4. Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technology, e.g., permitting electronic submission of responses.
OMB is required to make a decision concerning the collection of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
This regulation is not a major rule as defined in 5 U.S.C. Chapter 8.
Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a proposed policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing criteria specified in the law. These proposed regulations will have an impact on family well-being as defined in the legislation by collecting information on children who are in foster care, are subject to an adoption assistance agreement or are the beneficiaries of guardianship subsidies. We expect that States will be able to use this data to analyze factors that may affect the safety of children, permanency for children, and children's well-being. This information could lead to improvements in practice and policy to better serve children who are in foster care.
Executive Order 13132 on Federalism requires that Federal agencies consult with State and local government officials in the development of regulatory policies with Federalism implications. Consistent with Executive Order 13132, we specifically solicit comment from State and local government officials on this proposed rule.
Adoption and foster care, Child welfare, Grant programs—social programs.
This document was received at the Office of the Federal Register on December 18, 2007.
For the reasons set forth in the preamble we propose to amend 45 CFR part 1355 as follows:
1. The authority citation for part 1355 continues to read as follows:
45 U.S.C. 620
2. Revise § 1355.40 to read as follows:
(a) This section applies to a State agency that administers titles IV-B and IV-E of the Social Security Act.
(b) A State agency described in paragraph (a) of this section must collect information on the characteristics and experiences of children in the reporting populations described in § 1355.41 of this part. The State agency must submit the information collected to ACF on a semi-annual basis in an out-of-home care data file and adoption assistance and guardianship subsidy data file as required in section CFR 1355.42 of this part, pertaining to information described in §§ 1355.43 and 1355.44 of this part.
(c) As used for AFCARS, the term “out-of-home care” means any child under the title IV-B/IV-E State agency's responsibility for placement and care who is away from his/her parents or legal guardians for 24 hours or more regardless of the child's living arrangement, and who has not yet reached the State's age of majority.
3. Add §§ 1355.41 through 1355.46 to read as follows:
(a) Out-of-home care reporting population.
(1) In general, the State agency must report any child who is in out-of-home care consistent with 1355.40(c). The reporting population also includes a child in the following situations:
(i) A child under the placement and care responsibility of another public agency with which the title IV-B/IV-E State agency has an agreement pursuant to section 472(a)(2) of the Social Security Act and on whose behalf the State agency makes title IV-E foster care maintenance payments.
(ii) A youth for whom the State agency makes a title IV-E foster care maintenance payment even if the youth has reached the State's age of majority.
(iii) A child in out-of-home care who is placed in a non-traditional foster care setting such as in a detention facility, hospital, or jail.
(iv) A child who is in out-of-home care but is not in a physical living arrangement because the child is missing or has run away; attending a camp, vacationing; or visiting with parents, relatives, caretakers or other persons.
(2) A child remains in the out-of-home care reporting population until the State agency's placement and care responsibility ends, the child returns to his or her parent(s) or legal guardian(s), or the child reaches the State's age of majority and is not receiving title IV-E foster care maintenance payments. For AFCARS purposes, the period between a child's entry into and exit from out-of-home care reporting population is an out-of-home care episode.
(b) Adoption assistance and guardianship subsidy reporting population. The State agency must report all children who are:
(1) In an adoptive or pre-adoptive placement pursuant to a title IV-E adoption assistance agreement or a State adoption assistance agreement with the State agency that is or was in effect at some point during the current report period; or
(2) Receiving or had received a subsidy pursuant to a guardianship agreement with the State agency at some point during the current report period.
(a)
(b)
(1) The State agency must report the most recent information for the applicable elements in 45 CFR 1355.43(a), (b) and (c) of this part.
(2) Except as provided in paragraph (b)(3), the State agency must report the most recent information and all historical information for the applicable elements described in 45 CFR 1355.43(d), (e), (f), (g), and (h) of this part. This means that the State must report the information for the specified elements, about the child's entire experience in out-of-home care including the information about all of the child's out-of-home care episodes, unless paragraph (b)(3) applies for an out-of-home care episode.
(3) For a child who had an out-of-home care episode(s) as defined in 45 CFR 1355.41(a) of this part prior to the effective date of this final rule, the State agency must report the information for the elements described in 45 CFR 1355.43(d)(1), (g)(1), and (g)(3) of this part for the out-of-home care episode(s) that occurred prior to the effective date of the final rule.
(c)
(d)
(e)
(f)
(a)
(2)
(3)
(4)
(5)
(b)
(2)
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(4)
(5)
(i)
(ii)
(6)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(7)
(8)
(i)
(ii)
(9)
(10)
(i)
(ii)
(iii)
(11)
(12)
(13)
(14)
(c)
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(2)
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(5)
(6)
(7)
(e)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(14)
(15)
(i)
(ii)
(16)
(17)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(18)
(19)
(i)
(ii)
(20)
(21)
(f)
(2)
(3)
(i)
(ii)
(4)
(5)
(6)
(7)
(8)
(g)
(1)
(2)
(3)
(4)
(5)
(6)
(h)
(1)
(2)
(3)
(4)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(8)
(9)
(10)
(11)
A State agency must collect and report the following information for each child in the adoption assistance and guardianship subsidy reporting population, if applicable based on 45 CFR 1355.42(c) of this part.
(a)
(2)
(3)
(b)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(3)
(c)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(d)
(1)
(2)
(3)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(1)
(2)
(3)
(d)
(e)
(2) If the State agency meets the file standards, ACF will then determine whether the State agency's data file meets the data quality standards in paragraph (d) of this section. We will divide the total number of applicable records in error (numerator) by the total number of applicable records (denominator) for an element, to determine whether the State agency has met the applicable data quality standards. If the resultant error rate exceeds 10 percent, ACF will so notify the State.
(3) ACF will notify a State agency that fails to submit a data file that meets the standards in paragraph (c) or (d) of this section, within 30 days of the report deadline.
(4) In general, a State agency that has not met either the file standards or data quality standards must submit a corrected data file no later than when data is due for the subsequent six month reporting period (
(f)
(g)
(a)
(b)
(1)
(2)
(c)
(d)
(e)
4. Remove the appendices to 1355.