Forest Service
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
National Drug Control Policy Office
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Land Management Bureau
National Drug Control Policy Office
Federal Aviation Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
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.
Merit Systems Protection Board.
Final rule.
The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure in this part to reflect the relocation of its Northeastern Regional Office. On January 22, 2008, the Board relocates its Northeastern Regional Office from the U.S. Customhouse, Room 501, Second and Chestnut Streets, Philadelphia, PA 19106-2987, to 1601 Market Street, Suite 1700, Philadelphia, PA 19103. Appendix II of this part is amended to show the new address. The Northeastern Office telephone numbers remain unchanged.
William D. Spencer, Clerk of the Board, (202) 653-7200. The Board is publishing this rule as a final rule pursuant to 5 U.S.C. 1204(h).
Administrative practice and procedure, Civil rights, Government employees.
5 U.S.C. 1204 and 7701, unless otherwise noted.
Federal Deposit Insurance Corporation (“FDIC”).
Interim rule and request for comment.
The FDIC is amending certain regulations in order to conform them to certain Federal statutes recently amended by the Financial Services Regulatory Relief Act of 2006, the Federal Deposit Insurance Reform Act of 2005, and the Federal Deposit Insurance Reform Conforming Amendments Act of 2005. First, the FDIC is amending its deposit insurance regulations to clarify that a deposit insurance application is required for each new bank that results from the conversion of certain Federal savings associations into multiple banks. Second, the FDIC is amending its merger regulations to define the term “corporate reorganization” to mean a merger that involves solely an insured depository institution and one or more of its affiliates. Third, the FDIC is amending its merger regulations to remove any reference to “Optional Conversions” (sometimes referred to as “Oakar Transactions”). Fourth, the FDIC is adding, as an additional grounds for disapproval of a change in control notice, unfavorable future prospects of the institution to be acquired. Finally, the FDIC is authorizing the disclosure of examination reports and other confidential supervisory information to certain additional agencies and entities.
The interim rule is effective January 14, 2008. Comments on the rule must be received by March 14, 2008.
You may submit comments on the interim rule, by any of the following methods:
•
•
•
•
Brett A. McCallister, Review Examiner (816) 234-8099 x4223, in the Division of Supervision and Consumer Protection; or Julie E. Paris, Senior Attorney, (202) 898-3821, Richard Bogue, Counsel, (202) 898-3726, or Robert C. Fick, Counsel, (202) 898-8962, in the Legal Division.
On October 13, 2006, the President signed into law the Financial Services Regulatory Relief Act of 2006 (“FSRRA”).
Section 5(i)(5) of the Home Owners' Loan Act (“HOLA”)
Subpart B of Part 303 of the FDIC's Rules sets forth the procedures for applying for deposit insurance. Section 303.20 describes the scope of this subpart to include applications for deposit insurance for, among other institutions, proposed depository institutions. Since it is not clear that this subpart applies to each bank that results from the conversion of certain Federal savings associations into multiple banks under section 5(i)(5) of the HOLA, the FDIC is amending section 303.20 to expressly confirm the applicability of subpart B of part 303 to such resulting banks.
Section 606 made two changes to the Bank Merger Act
The FDIC's regulations at 12 CFR 303.61(b) provides a definition of “corporate reorganization” that identifies a class of mergers that generally do not raise any competitive concerns and, therefore, do not require the same level of competitive analysis as other mergers subject to the Bank Merger Act. As a result, such mergers are less burdensome on applicants. Generally, 12 CFR 303.61(b) defines the term to include (i) mergers between an insured institution and its subsidiary or its holding company and (ii) mergers between institutions and entities that were “commonly-owned.” Institutions are “commonly-owned” only if more than 50% of the voting stock of each was owned by the same entity. The changes made by Section 606 of the FSRRA, however, indicate that there are no competitive concerns for a class of mergers that is broader than the class identified by the FDIC's regulation as corporate reorganizations. Specifically, FSRRA indicates that there are no competitive concerns for mergers that solely involve an insured depository institution and one or more affiliates.
While the term “corporate reorganization” is only used in subpart D as one of several illustrative examples of the types of mergers covered by the Bank Merger Act, the definition could cause confusion as to how it relates to Affiliate Mergers. As a result, the FDIC is amending the definition of “corporate reorganization” in order to conform it to the changes made by FSRRA and to avoid any confusion about the need for competitive analyses and post-approval waiting periods. Accordingly, the FDIC is amending 12 CFR 303.61(b) to define “corporate reorganization” as a merger that involves solely an insured depository institution and one or more of its affiliates.
Before it was repealed, the former section 5(d)(3) of the FDI Act
On March 31, 2006, pursuant to the Reform Act and the Amendments Act, the former Savings Association Insurance Fund (“SAIF”) and the former Bank Insurance Fund (“BIF”) were consolidated into a single fund, the Deposit Insurance Fund. In addition, the Amendments Act repealed section 5(d)(3) of the FDI Act effective with the merger of the two funds.
(d)
Section 705 of FSRRA amended section 7(j)(7) of the FDI Act
Section 308.111 of the FDIC's Rules lists the statutory grounds for disapproval of a proposed acquisition of control of an insured state nonmember bank. Since FSRRA added unfavorable future prospects of the institution as an additional ground for disapproval of a
Section 707 of FSRRA amended section 7(a)(2) of the FDI Act
The FDIC's Rules authorizing the disclosure of confidential information are found in Part 309 of its Rules. Paragraph (b)(3) of section 309.6 entitled “Disclosure of exempt records,” authorizes the disclosure of exempt records to Federal financial institution supervisory agencies and certain other agencies.
Since section 707 of FSRRA authorized additional disclosures of certain supervisory information, the FDIC is amending section 309.6(b)(3) to add those additional disclosures to the disclosures previously authorized.
Section 722 of the Gramm-Leach-Bliley Act
The interim rule takes effect upon publication in the
Pursuant to section 603(a) of the Regulatory Flexibility Act (“RFA”)
No new collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501
Administrative practice and procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations.
Administrative practice and procedure, Bank deposit insurance, Banks, banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties.
Banks, banking, Credit, Freedom of information, Privacy.
12 U.S.C. 378, 1464, 1813, 1815, 1817, 1818, 1819 (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.
* * * Each bank that results from the conversion of a Federal savings association into multiple banks pursuant to section 5(i)(5) of the Home Owners' Loan Act, 12 U.S.C. 1464(i)(5), is treated as a proposed depository institution or a de novo institution, as appropriate, for purposes of this subpart.
(b)
5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 78(h) and (i), 78o-4(c), 780-5, 6805(b)(1); 28 U.S.C. 2461 note, 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s) Pub. L. 104-134, 110 Stat. 1321-358.
(c) Either the financial condition of any acquiring person or the future prospects of the institution might jeopardize the financial stability of the bank or prejudice the interest of the depositors of the bank.
5 U.S.C. 552; 12 U.S.C. 1819(a) “Seventh” and “Tenth.”
(b) * * *
(3) * * * Finally, the Director, or designee, may in his or her discretion and for good cause, disclose reports of examination or other confidential supervisory information concerning any depository institution or other entity examined by the Corporation under authority of Federal law to: any other Federal or State agency or authority with supervisory or regulatory authority over the depository institution or other entity; any officer, director, or receiver of such depository institution or entity; and any other person that the Corporation determines to be appropriate.
By Order of the Board of Directors.
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing standards and practices concerning the “all appropriate inquiries” element of a defense to liability of an owner or operator of a facility that is the source of a discharge or substantial threat of discharge of oil into the navigable waters or adjoining shorelines or the exclusive economic zone. To be entitled to the defense, those persons must show, among other elements not addressed in this rulemaking, that, before acquiring the real property on which the facility is located, they had made all appropriate inquiries into its previous ownership and uses to determine the presence or likely presence of oil. This rule is consistent with a final rule on this subject published by the Environmental Protection Agency.
This final rule is effective February 13, 2008.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2006-25708 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at
If you have questions on this rule, call Benjamin White, National Pollution Funds Center, Coast Guard, telephone 202-493-6863. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
On June 12, 2007, we published a notice of proposed rulemaking (NPRM) entitled “Landowner Defenses to Liability Under the Oil Pollution Act of 1990: Standards and Practices for Conducting All Appropriate Inquiries” in the
In general, under the Oil Pollution Act of 1990 (33 U.S.C. 2701,
The Coast Guard and Maritime Transportation Act of 2004 (Pub. L. 108-293) (the 2004 Act) amended OPA 90, at 33 U.S.C. 2703(d)(4), by creating an “innocent landowner” defense to liability for those persons who could demonstrate, among other requirements, that before acquiring the real property on which the facility is located, they did not know, and had no reason to know that oil that is the subject of the discharge or substantial threat of discharge was located on, in, or at the facility. See 33 U.S.C. 2703(d)(2)(A). This is done by establishing that, before it acquired the real property on which the facility is located, it carried out “all appropriate inquiries” into its previous ownership and uses according to “generally accepted good commercial and customary standards and practices.” See 33 U.S.C. 2703(d)(4)(A)(i). The Coast Guard is required to establish, by regulation, the standards and practices for carrying out all appropriate inquiries (33 U.S.C. 2703(d)(4)(B)), which is the subject of this rulemaking.
This rulemaking applies to persons planning to acquire real property on which a facility, as defined under 33 U.S.C. 2701(9), is located who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it. We call these persons “landowners” or “owners” in this preamble. Should prospective landowners opt for this protection, they may find that they have already complied with this rule if they have complied with ASTM International (ASTM) E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The industry standard ASTM E 1527-05, is consistent with this rule and is compliant with the statutory criteria for all appropriate inquiries. Persons conducting all appropriate inquiries may use the procedures included in the ASTM E 1527-05 standard to comply with this rule. For more information on the ASTM standard, see the “ASTM Standard E 1527-05” section in this preamble.
Note that this rule addresses only one of several elements that must be complied with in order to avail oneself of this protection. The element addressed in this rule is called the “all-appropriate-inquiries” element found in 33 U.S.C. 2703(d)(4).
Congress included in the 2004 Act a list of criteria that the Coast Guard must address in their regulations for establishing standards and practices for conducting all appropriate inquiries. The criteria may be found in 33 U.S.C. 2703(d)(4)(C). This rulemaking is limited only to providing those standards and practices relative to the “all appropriate inquiries” element.
The rule would not apply to real property purchased by a non-governmental entity or non-commercial entity for residential use or other similar uses where an inspection and a title search of the facility and the real property on which the facility is located reveal no basis for further investigation. In those cases, 33 U.S.C. 2703(d)(4)(E) states that the inspection and title search satisfy the requirements for all appropriate inquiries.
Also, the rule would not affect the existing OPA 90 liability protections for State and local governments that acquire a facility involuntarily in their functions as sovereigns under 33 U.S.C. 2701(26)(B)(i) and 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of facilities by State and local governments do not fall under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4).
Under 33 U.S.C. 2703(d)(4)(B), we are required to consult with the Environmental Protection Agency (EPA) to develop regulations establishing standards and practices for conducting “all appropriate inquiries.” On November 1, 2005, EPA published a final rule in the
The all-appropriate-inquiries provisions of OPA 90 and CERCLA are similar in many respects, but not identical. The CERCLA provision has a broader scope than the OPA provision. It addresses certain liability defense provisions that are unique to CERCLA, involving persons who may not be affected by this rule, such as contiguous property owners and bona fide prospective purchasers. While differences between OPA 90 and CERCLA have required certain differences between the Coast Guard's final rule and EPA's final rule, we have coordinated with EPA to ensure that the two rules have been rendered as consistent as possible within statutory constraints. Maintaining consistency between the two rules helps standardize practices within the Federal Government.
ASTM International (ASTM) E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,” is the current voluntary industry standard that defines good commercial and customary practice in the United States for conducting an environmental site assessment of a parcel of commercial real estate with respect to oil under OPA 90 and hazardous substances under CERCLA. The 2004 Act, at 33 U.S.C. 2703 (d)(4)(D)(ii), refers to ASTM E 1527-97, which is no longer available from ASTM and has been replaced by ASTM E 1527-05. Both the EPA and the Coast Guard agree that the new ASTM E 1527-05 is the active industry standard and is consistent with Congressional intent. Persons conducting all appropriate inquiries are permitted to use the procedures included in the ASTM E 1527-05 standard to comply with this rule, but use of the ASTM is not mandatory.
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
A final Regulatory Evaluation follows:
Compliance with this rule is required only for those persons engaging in a commercial real estate transaction who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it.
The following analysis of the economic impacts associated with this rule relies heavily upon the data collected and the assumptions made in the Environmental Impact Analysis of EPA's final rule, “Economic Impact Analysis for the Final All Appropriate Inquiries Regulation,” Docket ID No. SFUND-2004-0001 found at
Historically, Phase I ESAs have been used towards providing liability protection to individuals under CERCLA. A recent survey conducted by Environmental Data Resources, Inc. (EDR) indicates that approximately 55 percent of all Phase I ESAs are driven exclusively by a need for the landowner
As previously discussed in the “Consultation with Other Agencies” section of this preamble, this rule is consistent with EPA's final rule. The scope of EPA's rulemaking however is much larger than this rule. As such, the economic impacts of this rule are a subset of the impacts estimated by EPA's rulemaking. This reduction in economic impact results primarily from the lower number of Phase I ESAs expected to be conducted annually under this rule compared to EPA's final rule.
As was the case with EPA's rulemaking, this rule is expected to result in the following economic impacts:
(1) A reduced burden for the conduct of interviews in those cases where the facility and the real property on which the facility is located is abandoned. The new requirement requires only that neighboring property owners and occupants be interviewed and not the current owners and occupants of the abandoned property. This burden would range from no change to a decrease of 0.5 hour per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located.
(2) An increased burden in those cases where past owners or occupants of the facility and the real property on which the facility is located need to be interviewed. This would involve the additional effort required to locate and interview past owners and occupants. This increased burden would range from 1 hour to 2 hours per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located.
(3) An increased burden associated with documenting recorded environmental cleanup liens. This increased burden would involve additional time spent in preparing the Phase I ESA report. This increased burden would range from an additional 0.5 hour to 1 hour per Phase I ESA depending on the size and type of the facility and the real property on which the facility is located.
(4) An increased burden for documenting the reasons for the price and fair market value of a facility and the real property on which the facility is located in those cases where the purchase price paid is significantly below its fair market value. This increased burden would involve interviews with local government officials and increased time spent in preparing the Phase I ESA report. This increased burden would reflect an additional 0.5 hour per Phase I ESA for all sizes and types of facilities and the real properties on which the facilities are located.
(5) An increased burden for recording information about the degree of obviousness of the presence or likely presence of oil at a facility and the real property on which the facility is located. This increased burden would involve additional time spent in preparing the Phase I Environmental report. This increased burden would range from 0.5 hour to 1 hour per Phase I ESA depending on the type and size of the facility and the real property on which the facility is located.
Using a weighted labor rate of $51.20/hour applied to the activities (as outlined above) required as a result of their regulation (as they vary from those required in their regulatory baseline), EPA determined that there would be an incremental cost ranging from $52 to $58 per Phase I ESA (the low end estimate assumes that 15 percent of properties are abandoned, while the high end estimate assumes that 28 percent of properties are abandoned). Our analysis simplifies this range as an average incremental cost of $55 per Phase I ESA.
Using data from EPA's final rule and extrapolated for the period from 2007 to 2016, there would be an average of 332,038 Phase I ESAs conducted annually. As previously mentioned, the incremental cost of conducting a Phase I ESA to comply with EPA's rulemaking above and beyond what was required under ASTM E 1527-00 as calculated by EPA's rulemaking would be approximately $55 per ESA.
This analysis is severely limited by the lack of data available which would allow the number of Phase I ESAs conducted applicable to this rule to be segregated from the total population of Phase I ESAs conducted.
In order to put an upward bound on the costs associated with this rule, this analysis first describes the absolute upper bound scenario (i.e., that all commercial real estate transactions not exclusively conducted for CERCLA liability protection requiring a Phase I ESA would be impacted by this rule). Next the Coast Guard developed a more likely scenario that takes into account that Phase I ESAs for certain commercial real estate transactions are outside the scope of this rule. We acknowledge that, of all of the commercial real estate transactions that occur annually, a likely small percentage would involve—
1. A facility and the real property on which the facility is located where a discharge or substantial threat of discharge of oil may impact the navigable waters or exclusive economic zone of the United States; and
2. A Phase I ESA that was conducted for establishment of the innocent landowner liability protection provision under OPA 90 and not to assess environmental risk concerns not related to oil (e.g., lead-based paint contamination, asbestos, CERCLA hazardous substances, etc.).
The estimated incremental cost of this scenario, where all future Phase I ESAs not conducted specifically for CERCLA liability protection (i.e., 45 percent as per the results of EDR's survey mentioned above) are impacted by this rule, would be approximately $8.2 million per year.
To more accurately reflect the scope of this rule, certain commercial real estate transactions involving a Phase I ESA from EPA's analysis would have to be removed from this analysis. Those include transactions where a discharge or substantial threat of discharge of oil from a facility and the real property on which the facility is located would not have the possibility of impacting the navigable waters or exclusive economic zone of the United States and transactions which are conducted for substances other than oil. Absent the data to make more than an approximation, we assumed that five percent of the total number of Phase I ESAs may realistically reflect the number of Phase I ESAs within the scope of this rule. Under this assumption, the estimated cost associated with this rule would be significantly reduced. The estimated incremental cost under this scenario is approximately $913,110 per year.
ASTM International has since updated their ASTM E 1527 standard. Their new standard is ASTM E 1527-05. Both EPA and Coast Guard recognize that this new standard is consistent with their rulemakings on the subject. See the
EPA qualitatively assessed the benefits for their final rule. Of these benefits, only one is applicable to our rule due to our much smaller regulatory scope, namely the increased level of certainty with regard to OPA 90 liability provided to prospective owners of facilities and the real properties on which they are located with potential oil discharges. The Coast Guard, as was the case with EPA's analysis, is not able to quantify, with any significant level of confidence, the exact proportion of benefits associated with the rule. For these reasons, the costs and benefits can not be directly compared. However, because complying with this rule is required only for those persons who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it, it can be assumed that persons would only do so if the potential benefits to them associated with this protection from liability outweigh their costs of compliance.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
As previously stated in the regulatory evaluation section above, compliance with this rule is only required for those entities, regardless of their operations, involved in a real estate transaction who choose to take steps necessary to protect themselves from liability should unknown oil that is the subject of a discharge or substantial threat of discharge be found at the facility after they acquire it. Therefore, it assumed that entities across all industries, as defined by the North American Industry Classification System (NAICS), could potentially be affected.
The Regulatory Flexibility Act and the Small Business Regulatory Enforcement Fairness Act of 1996 require Federal agencies to measure the regulatory impacts of the rule to determine whether there will be a significant economic impact on a substantial number of small entities. Entities, however, may operate at multiple physical locations. For example, most family-owned restaurants operate at a single location, while chain restaurants have multiple locations. Thus, the annual number of transactions per entity, and therefore the demand for Phase I ESAs, is a function of the number of establishments an entity owns.
According to 2001 U.S. Census data, the distribution of establishments by entity size of the regulated community is as follows:
According to EPA's Office of Policy, Economics, and Innovations and EPA's National Center for Environmental Economics, it is a common practice when a proposed regulation has the potential of affecting all industries to consider all entities with less than 500 employees as small. According to 2001 U.S. Census data, when small entities are defined as entities with less than 500 employees, small entities own 86 percent of all establishments. Using EPA's assumption that small entities are equally likely to engage in commercial real estate transactions as large ones, we estimate that 86 percent of all commercial real estate transactions completed annually involve small entities. Applying this 86 percent to the “Most Likely Cost Scenario” and the “Upper Bound Cost Scenario” (See “Regulatory Evaluation” in this preamble.) provides a range in the number of potential transactions occurring annually of between 14,278 and 128,499.
Based on 2001 Census Bureau data, the average annual revenue per employee for an entity is approximately $24,000. Therefore, even for a small entity receiving the minimum average annual revenue of $24,000 that makes one transaction a year (a very conservative assumption), the annual cost impact of $55 would represent only 0.23 percent of annual revenues.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard received no requests for assistance from small entities concerning this rulemaking and provided none. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This rule calls for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
As required by 44 U.S.C. 3507(d), we submitted a copy of this rule to the Office of Management and Budget (OMB) for its review of the collection of information. OMB has approved the collection effective February 13, 2008. The collection will be added to 33 CFR part 137. The corresponding approval number is OMB Control Number 1625-0111, which expires on February 13, 2011.
You are not required to respond to a collection of information unless it displays a currently valid OMB control number.
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule uses the following voluntary consensus standard: ASTM E 1527-05, “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” The section that references this standard and the location where this standard is available is listed in § 137.15. Persons conducting all appropriate inquiries may use the procedures included in the ASTM E 1527-05 standard to comply with this rule.
We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(a), of the Instruction, from further environmental documentation. This rule concerns inquiries into the previous ownership and uses of facilities and the real property on which they are located, before they are acquired, to determine the presence or likely presence of oil. It has no effect on the environment.
A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under
Environmental protection, Administrative practice and procedure, Petroleum, Intergovernmental relations, Reporting and recordkeeping requirements.
33 U.S.C. 2703(d)(4); Department of Homeland Security Delegation No. 14000.
(a) In general under the Oil Pollution Act of 1990 (33 U.S.C. 2701,
(b) Under 33 U.S.C. 2703(d)(4)(E), this part does not apply to real property purchased by a non-governmental entity or non-commercial entity for residential use or other similar uses where a property inspection and a title search reveal no basis for further investigation. In those cases, the property inspection and title search satisfy the requirements of this part.
(c) This part does not affect the existing OPA 90 liability protections for State and local governments that acquire a property involuntarily in their functions as sovereigns under 33 U.S.C. 2703(d)(2)(B). Involuntary acquisition of properties by State and local governments fall under the provisions of 33 U.S.C. 2703(d)(2)(B), not under the all-appropriate-inquiries provision of 33 U.S.C. 2703(d)(4) and this part.
(a) Under 33 U.S.C. 2703(c)(1), persons specified in § 137.1(a), including environmental professionals, must report the incident as required by law if they know or have reason to know of the incident.
(b) This part does not limit or expand disclosure obligations under any Federal, State, tribal, or local law. It is the obligation of each person, including environmental professionals, conducting inquiries to determine his or her respective disclosure obligations under Federal, State, tribal, and local law and to comply with them.
(a) The following terms have the same definitions as in 33 U.S.C. 2701:
(b) As used in this part—
Section 137.20 of this part refers to ASTM E 1527-05, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process. That document is available from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959. It is also available for inspection at the Coast Guard National Pollution Funds Center, 4200 Wilson Boulevard, Suite 1013, Arlington, VA 22203-1804.
In order to make all appropriate inquiries, persons seeking to establish the liability protection under § 137.1(a)
The industry standards in ASTM E 1527-05, (Referenced in § 137.15) may be used to comply with the requirements set forth in §§ 137.45 through 137.85 of this part. Use of ASTM E 1527-05 for this purpose is optional and not mandatory.
(a) An environmental professional is an individual who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding conditions indicative of the presence or likely presence of oil at a facility and the real property on which the facility is located sufficient to meet the objectives and performance factors in § 137.30(a) and (b).
(1) Such a person must—
(i) Hold a current Professional Engineer's or Professional Geologist's license or registration from a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) and have the equivalent of 3 years of full-time relevant experience;
(ii) Be licensed or certified by the Federal government, a State, tribe, or U.S. territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries under § 137.35 and have the equivalent of 3 years of full-time relevant experience;
(iii) Have a Baccalaureate or higher degree from an accredited institution of higher education in a discipline of engineering or science and the equivalent of 5 years of full-time relevant experience; or
(iv) Have the equivalent of 10 years of full-time relevant experience.
(2) An environmental professional should remain current in his or her field through participation in continuing education or other activities.
(3) The requirements for an environmental professional in this section do not preempt State professional licensing or registration requirements, such as those for a professional geologist, engineer, or site-remediation professional. Before commencing work, a person should determine the applicability of State professional licensing or registration laws to the activities to be undertaken as part of an inquiry under § 137.35(b).
(4) A person who does not qualify as an environmental professional under this section may assist in the conduct of all appropriate inquiries according to this part if the person is under the supervision or responsible charge of an environmental professional meeting the requirements of this section when conducting the inquiries.
(a)
(1) Current and past uses and occupancies of the facility and the real property on which the facility is located.
(2) Current and past uses of oil.
(3) Waste management and disposal activities that indicate presence or likely presence of oil.
(4) Current and past corrective actions and response activities that indicate presence or likely presence of oil.
(5) Engineering controls.
(6) Institutional controls, such as zoning restrictions, building permits, and easements.
(7) Properties adjoining or located nearby the facility and the real property on which the facility is located that have environmental conditions that could have resulted in conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(b)
(1) Gather the information that is required for each standard and practice listed in this subpart that is publicly available, is obtainable from its source within a reasonable time and cost, and can be reviewed practicably; and
(2) Review and evaluate the thoroughness and reliability of the information gathered in complying with each standard and practice listed in this subpart taking into account information gathered in the course of complying with the other standards and practices of this part.
(a) All appropriate inquiries must be conducted within 1 year before the date of acquisition of the real property on which the facility is located, as evidenced by the date of receipt of the documentation transferring title to, or possession of, the real property and must include:
(1) An inquiry by an environmental professional, as provided in § 137.35.
(2) The collection of information under § 137.40 by persons specified in § 137.1(a).
(b) The following components of the all appropriate inquiries must be conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:
(1) Interviews with past and present owners, operators, and occupants. See § 137.45.
(2) Searches for recorded environmental cleanup liens. See § 137.55.
(3) Reviews of Federal, State, tribal, and local government records. See § 137.60.
(4) Visual inspections of the facility, the real property on which the facility is located, and adjoining properties. See § 137.65.
(5) The declaration by the environmental professional. See § 137.35(d).
(c) All appropriate inquiries may include the results of and information contained in an inquiry previously conducted by, or on behalf of, persons specified in § 137.1(a) who are responsible for the inquiries for the facility and the real property on which the facility is located if—
(1) The information was collected during the conduct of an all-appropriate-inquiries investigation under this part.
(2) The information was collected or updated within 1 year before the date of acquisition of the real property on which the facility is located.
(3) The following components of the inquiries were conducted or updated within 180 days before the date of acquisition of the real property on which the facility is located:
(i) Interviews with past and present owners, operators, and occupants. See § 137.45.
(ii) Searches for recorded environmental cleanup liens. See § 137.55.
(iii) Reviews of Federal, State, tribal, and local government records. See § 137.60.
(iv) Visual inspections of the facility, the real property on which the facility is located, and the adjoining properties. See § 137.65.
(v) The declaration by the environmental professional. See § 137.35(d).
(4) Previously collected information is updated by including relevant changes in the conditions of the facility and the real property on which the facility is located and specialized knowledge, as outlined in § 137.70, of the persons conducting the all appropriate inquiries for the facility and the real property on which the facility is located, including persons specified in § 137.1(a) and the environmental professional.
(d) All appropriate inquiries may include the results of an environmental professional's report under § 137.35(c) that have been prepared by or for other persons if—
(1) The reports meet the objectives and performance factors in § 137.30(a) and (b); and
(2) The person specified in § 137.1(a) reviews the information and conducts the additional inquiries under §§ 137.70, 137.75, and 137.80 and updates the inquiries requiring an update under paragraph (b) of this section.
(e) To the extent there are data gaps that affect the ability of persons specified in § 137.1(a) and environmental professionals to identify conditions indicative of the presence or likely presence of oil, the gaps must be identified in the report under § 137.35(c)(2). In addition, the sources of information consulted to address data gaps should be identified and the significance of the gaps noted. Sampling and analysis may be conducted to develop information to address data gaps.
(f) Any conditions indicative of the presence or likely presence of oil identified as part of the all-appropriate-inquiries investigation should be noted in the report.
(a) Inquiries by an environmental professional must be conducted either by the environmental professional or by a person under the supervision or responsible charge of an environmental professional.
(b) The inquiry of the environmental professional must include the requirements in §§ 137.45 (interviews with past and present owners), 137.50 (reviews of historical sources), 137.60 (reviews of government records), 137.65 (visual inspections), 137.80 (commonly known or reasonably ascertainable information) and 137.85 (degree of obviousness of the presence or likely presence of oil). In addition, the inquiry should take into account information provided to the environmental professional by the person specified in § 137.1(a) conducting the additional inquiries under § 137.40.
(c) The results of the inquiry by an environmental professional must be documented in a written report that, at a minimum, includes the following:
(1) An opinion as to whether the inquiry has identified conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(2) An identification of data gaps in the information developed as part of the inquiry that affect the ability of the environmental professional to identify conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located. The report must also indicate whether the gaps prevented the environmental professional from reaching an opinion regarding the identification of conditions indicative of the presence or likely presence of oil.
(3) The qualifications of the environmental professional.
(4) An opinion regarding whether additional appropriate investigation is necessary.
(d) The environmental professional must place the following statements in the written document identified in paragraph (c) of this section and sign the document: “[I, We] declare that, to the best of [my, our] professional knowledge, [I, we] meet the requirements under 33 CFR 137.25 for an environmental professional.” and “[I, We] have the specific qualifications based on education, training, and experience to assess the nature, history, and setting of a facility and the real property on which it is located. [I, We] have developed and conducted all appropriate inquiries according to the standards and practices in 33 CFR part 137.”
(a) Persons specified in § 137.1(a) must conduct inquiries in addition to those conducted by the environmental professional under § 137.35 and may provide the information associated with these additional inquiries to the environmental professional responsible for conducting the activities listed in § 137.35—
(1) As required by § 137.55 and if not otherwise obtained by the environmental professional, environmental cleanup liens against the facility and the real property on which it is located that are filed or recorded under Federal, State, tribal, or local law.
(2) As required by § 137.70, specialized knowledge or experience of the person specified in § 137.1(a).
(3) As required by § 137.75, the relationship of the purchase price to the fair market value of the facility and the real property on which the facility is located if the oil was not at the facility and the real property on which it is located.
(4) As required by § 137.80 and if not otherwise obtained by the environmental professional, commonly known or reasonably ascertainable information about the facility and the real property on which it is located.
(b) [Reserved]
(a) Interviews with owners, operators, and occupants of the facility and the real property on which the facility is located must be conducted for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).
(b) The inquiry of the environmental professional must include interviewing the current owner and occupant of the facility and the real property on which the facility is located. If the facility and the real property on which the facility is located has multiple occupants, the inquiry of the environmental professional must include interviewing major occupants, as well as those occupants likely to use, store, treat, handle or dispose of oil or those who have likely done so in the past.
(c) The inquiry of the environmental professional also must include, to the extent necessary to achieve the objectives and performance factors in § 137.30(a) and (b), interviewing one or more of the following persons:
(1) Current and past facility and real property managers with relevant knowledge of uses and physical characteristics of the facility and the real property on which the facility is located.
(2) Past owners, occupants, or operators of the facility and the real property on which the facility is located.
(3) Employees of current and past occupants of the facility and the real property on which the facility is located.
(d) In the case of inquiries conducted at abandoned properties where there is evidence of potential unauthorized uses or evidence of uncontrolled access, the environmental professional's inquiry must include an interview of at least
(a) Historical documents and records must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b). Historical documents and records may include, but are not limited to, aerial photographs, fire insurance maps, building department records, chain of title documents, and land use records.
(b) Historical documents and records reviewed must cover a period of time as far back in the history of the real property to when the first structure was built or when it was first used for residential, agricultural, commercial, industrial, or governmental purposes. The environmental professional may exercise professional judgment in context of the facts available at the time of the inquiry as to how far back in time it is necessary to search historical records.
(a) All appropriate inquiries must include a search for the existence of environmental cleanup liens against the facility and the real property on which the facility is located that are filed or recorded under Federal, State, tribal, or local law.
(b) All information collected by persons specified in § 137.1(a) rather than an environmental professional regarding the existence of environmental cleanup liens associated with the facility and the real property on which the facility is located may be provided to the environmental professional or retained by the applicable party.
(a) Federal, State, tribal, and local government records or databases of government records of the facility, the real property on which the facility is located, and adjoining properties must be reviewed for the purposes of achieving the objectives and performance factors of § 137.30(a) and (b).
(b) With regard to the facility and the property on which the facility is located, the review of Federal, State, and tribal government records or databases of the government records and local government records and databases of the records should include—
(1) Records of reported oil discharges present, including site investigation reports for the facility and the real property on which the facility is located;
(2) Records of activities, conditions, or incidents likely to cause or contribute to discharges or substantial threat of discharges of oil, including landfill and other disposal unit location records and permits, storage tank records and permits, hazardous waste handler and generator records and permits, Federal, tribal and State government listings of sites identified as priority cleanup sites, and spill reporting records;
(3) Comprehensive Environmental Response, Compensation, and Liability Information System (CERCLIS) records;
(4) Public health records;
(5) Emergency Response Notification System records;
(6) Registries or publicly available lists of engineering controls; and
(7) Registries or publicly available lists of institutional controls, including environmental land use restrictions, applicable to the facility and the real property on which the facility is located.
(c) With regard to nearby or adjoining properties, the review of Federal, State, tribal, and local government records or databases of government records should include the identification of the following:
(1) Properties for which there are government records of reported discharges or substantial threat of discharges of oil. Such records or databases containing such records and the associated distances from the facility and the real property on which the facility is located for which such information should be searched include the following:
(i) Records of National Priorities List (NPL) sites or tribal- and State-equivalent sites (one mile).
(ii) Resource Conservation and Recovery Act (RCRA) properties subject to corrective action (one mile).
(iii) Records of Federally-registered, or State-permitted or -registered, hazardous waste sites identified for investigation or remediation, such as sites enrolled in State and tribal voluntary cleanup programs and tribal- and State-listed brownfield sites (one-half mile).
(iv) Records of leaking underground storage tanks (one-half mile).
(2) Properties that previously were identified or regulated by a government entity due to environmental concerns at the facility and the real property on which the facility is located. The records or databases containing the records and the associated distances from the facility and the real property on which the facility is located for which the information should be searched include the following:
(i) Records of delisted NPL sites (one-half mile).
(ii) Registries or publicly available lists of engineering controls (one-half mile).
(iii) Records of former CERCLIS sites with no further remedial action notices (one-half mile).
(3) Properties for which there are records of Federally-permitted, State-permitted or -registered, or tribal-permitted or -registered waste management activities. The records or databases that may contain the records include the following:
(i) Records of RCRA small quantity and large quantity generators (adjoining properties).
(ii) Records of Federally-permitted, State-permitted or -registered, or tribal-permitted landfills and solid waste management facilities (one-half mile).
(iii) Records of registered storage tanks (adjoining property).
(4) A review of additional government records with regard to sites identified under paragraphs (c)(1) through (c)(3) of this section may be necessary in the judgment of the environmental professional for the purpose of achieving the objectives and performance factors of §§ 137.30(a) and (b).
(d) The search distance from the real property boundary for reviewing government records or databases of government records listed in paragraph (c) of this section may be modified based upon the professional judgment of the environmental professional. The rationale for the modifications must be documented by the environmental professional. The environmental professional may consider one or more of the following factors in determining an alternate appropriate search distance—
(1) The nature and extent of a discharge.
(2) Geologic, hydrogeologic, or topographic conditions of the property and surrounding environment.
(3) Land use or development densities.
(4) The property type.
(5) Existing or past uses of surrounding properties.
(6) Potential migration pathways (e.g., groundwater flow direction, prevalent wind direction).
(7) Other relevant factors.
(a) For the purpose of achieving the objectives and performance factors of § 137.30(a) and (b), the inquiry of the environmental professional must include the following:
(1) A visual on-site inspection of the facility and the real property on which the facility is located, and the improvements at the facility and real property, including a visual inspection of the areas where oil may be or may have been used, stored, treated, handled, or disposed. Physical limitations to the visual inspection must be noted.
(2) A visual inspection of adjoining properties, from the subject real property line, public rights-of-way, or other vantage point (e.g., aerial photography), including a visual inspection of areas where oil may be or may have been stored, treated, handled or disposed. A visual on-site inspection is recommended, though not required. Physical limitations to the inspection of adjacent properties must be noted.
(b) Except as in paragraph (c) of this section, a visual on-site inspection of the facility and the real property on which the facility is located must be conducted.
(c) An on-site inspection is not required if an on-site visual inspection of the facility and the real property on which the facility is located cannot be performed because of physical limitations, remote and inaccessible location, or other inability to obtain access to the facility and the real property on which the facility is located after good faith efforts have been taken to obtain access. The mere refusal of a voluntary seller to provide access to the facility and the real property on which the facility is located is not justification for not conducting an on-site inspection. The inquiry of the environmental professional must include—
(1) Visually inspecting the facility and the real property on which the facility is located using another method, such as aerial imagery for large properties, or visually inspecting the facility and the real property on which the facility is located from the nearest accessible vantage point, such as the property line or public road for small properties;
(2) Documenting the efforts undertaken to obtain access and an explanation of why such efforts were unsuccessful; and
(3) Documenting other sources of information regarding the presence or likely presence of oil at the facility and the real property on which the facility is located that were consulted according to § 137.30(a). The documentation should include comments, if any, by the environmental professional on the significance of the failure to conduct a visual on-site inspection of the facility and the real property on which the facility is located with regard to the ability to identify conditions indicative of the presence or likely presence of oil at the facility and the real property.
(a) For the purpose of identifying conditions indicative of the presence or likely presence of oil at the facility and the real property on which the facility is located, persons specified in § 137.1(a) must take into account their own specialized knowledge of the facility and the real property on which the facility is located, the area surrounding the facility and the real property on which the facility is located, and the conditions of adjoining properties and their experience relevant to the inquiry.
(b) The results of all appropriate inquiries under § 137.33 must take into account the relevant and applicable specialized knowledge and experience of the persons specified in § 137.1(a) responsible for undertaking the inquiry.
(a) Persons specified in § 137.1(a) must consider whether the purchase price of the facility and the real property on which the facility is located reasonably reflects the fair market value of the facility and real property if oil was not present or likely present.
(b) If the persons conclude that the purchase price does not reasonably reflect the fair market value of that facility and real property if oil was not at the facility and the real property, they must consider whether or not the differential in purchase price and fair market value is due to the presence or likely presence of oil.
(a) Throughout the inquiries, persons specified in § 137.1(a) and environmental professionals conducting the inquiry must take into account commonly known or reasonably ascertainable information within the local community about the facility and the real property on which the facility is located and consider that information when seeking to identify conditions indicative of the presence or likely presence of oil at the facility and the real property.
(b) Commonly known information may include information obtained by the person specified in § 137.1(a) or by the environmental professional about the presence or likely presence of oil at the facility and the real property on which the facility is located that is incidental to the information obtained during the inquiry of the environmental professional.
(c) To the extent necessary to achieve the objectives and performance factors of § 137.30(a) and (b), the person specified in § 137.1(a) and the environmental professional must gather information from varied sources whose input either individually or taken together may provide commonly known or reasonably ascertainable information about the facility and the real property on which the facility is located; the environmental professional may refer to one or more of the following sources of information:
(1) Current owners or occupants of neighboring properties or properties adjacent to the facility and the real property on which the facility is located.
(2) Local and state government officials who may have knowledge of, or information related to, the facility and the real property on which the facility is located.
(3) Others with knowledge of the facility and the real property on which the facility is located.
(4) Other sources of information, such as newspapers, Web sites, community organizations, local libraries, and historical societies.
(a) Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the real property on which it is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the degree of obviousness of the presence or likely presence of oil at the facility and the real property on which the facility is located.
(b) Persons specified in § 137.1(a) and environmental professionals conducting an inquiry of a facility and the property on which the facility is located on their behalf must take into account the information collected under §§ 137.45 through 137.80 in considering the
Postal Service.
Final rule.
The Postal Service
Obataiye B. Akinwole, 703-292-5260, Bruce Marsh, 703-292-3570.
Article RL 147 of the Letter Post Regulations of the Universal Postal Union (UPU), “Undeliverable Items,” allows all posts to collect handling charges for undeliverable-as-addressed pieces posted abroad by customers residing in their territories. In order to recover costs associated with handling these pieces, the Postal Service will collect the applicable First-Class Mail International postage for each returned item.
Foreign relations, International postal services.
5 U.S.C. 552(a); 39 U.S.C. 401, 404, 407, 408.
Payment of U.S. Postage is required to secure delivery of mail when the mailing is by or on behalf of a person or firm that is a resident of the United States and the foreign postage rate applied to such items is lower than the comparable U.S. domestic rate.
Undeliverable-as-addressed mail returned to the sender for which outbound postage was not paid to the USPS is subject to the payment of handling charges. On delivery to the sender, the sender may be charged the First-Class Mail International rate for the weight and shape of the returned piece.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the State of West Virginia. The revision amends the 8-hour ozone maintenance plan for the Charleston area. This revision amends the maintenance plans' 2009 and 2018 motor vehicle emissions budgets (MVEBs) by reallocating a portion of the plans' safety margins which results in an increase in the MVEBs. The revised plan continues to demonstrate maintenance of the 8-hour national ambient air quality standard (NAAQS) for ozone. EPA is approving this SIP revision to the West Virginia maintenance plan for Charleston in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on March 14, 2008 without further notice, unless EPA receives adverse written comment by February 13, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1010 by one of the following methods:
A.
B.
C.
D.
Martin Kotsch, (215) 814-3335, or by e-mail at
Throughout this document whenever “we”, “us”, or “our” is used, we mean EPA.
On July 11, 2006 (71 FR 39001) EPA redesignated the Charleston area of West Virginia to attainment for the 8-hour ozone NAAQS. For the Charleston area, the redesignation included approval of an 8-hour ozone maintenance plan, which identifies on-road MVEBs for VOCs and NO
On January 8, 2007, the State of West Virginia submitted to EPA a formal revision to its State Implementation Plan (SIP). The SIP revision proposes new MVEBs to reflect the reallocation of a portion of the differences (safety margins) between the total base year and total projected 2009 and 2018 emissions which produces an increase in the MVEBs. The base year is 2004 for the Charleston area. By increasing the MVEBs, the West Virginia Department of Environmental Protection (WVDEP) is ensuring that transportation conformity can be demonstrated in the Charleston area. The January 8, 2007 submittal, while increasing the MVEBs still ensures maintenance of the NAAQS for ozone for the Charleston area.
Tables 1 and 2 and the discussion that follows describes the basis of the new MVEBs for the Charleston area.
For the Charleston, West Virginia 8-hour ozone maintenance area addressed herein, the WVDEP recalculated the 2009 and 2018 MVEBs using revised planning data which became available after the original maintenance plan was submitted to EPA on November 30, 2005. The 2009 and 2018 MVEBs for VOCs and NO
As shown in Table 1, the State has proposed reallocating some of the previous safety margin into the MVEBs for both VOCs and NO
To explain how the safety margins are determined and allocated, the VOC emissions for the Charleston area may be used as an example. In Table 2, listed under the Current Total Emissions in the Approved Maintenance Plan section, the total 2004 base year VOC emissions are 52.3 tons/day (tpd), which is the maximum amount of VOC emissions consistent with maintenance of the 8-hour ozone NAAQS. The total projected 2009 emissions are 46.8 tpd, which provides a 5.5 tpd VOC safety margin (i.e., the ozone NAAQS would continue to be maintained if total VOC emissions increased as much as 5.5 tpd above the projected 2009 emissions of 46.8 tpd). In the Proposed Total Emissions in the Revised Maintenance Plan section the total projected emissions for 2009 would be increased by 1.3 tpd through the increase in the allowable mobile emissions for VOC while still leaving a safety margin of 4.2 tpd. Therefore, even with the reallocation of some of the current safety margin into the MVEBs, the State of West Virginia has left a safety margin for any other unforseen growth.
EPA is approving West Virginia's January 8, 2007 SIP revision submittal which amends the 8-hour ozone maintenance plans for the Charleston area. These revisions amend the maintenance plans' 2009 and 2018 MVEBs to reflect the reallocation of a portion of the plans' safety margins which results in an increase in the MVEBs. EPA is approving this SIP revision to the maintenance plan for the Charleston area because the January 8, 2007 submittal continues to demonstrate maintenance of the 8-hour ozone NAAQS. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment, since no significant adverse comments were received on the SIP revision at the State level. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, EPA will publish a timely withdrawal in the
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 14, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to approve the revised motor vehicle emission budgets for the 8-hour Charleston Maintenance Plan may not
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Virginia State Implementation Plan (SIP) that was submitted on August 14, 2007 by the Commonwealth of Virginia. The revisions move the Fredericksburg and the Shenandoah National Park 8-Hour Ozone Areas from the Nonattainment Area list to the Maintenance Area list. EPA is approving these revisions to move the Fredericksburg 8-Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone Nonattainment Area (portions of the park located in Page and Madison Counties) from the list of nonattainment areas to the list of maintenance areas in accordance with the requirements of the Clean Air Act (CAA).
This rule is effective on March 14, 2008 without further notice, unless EPA receives adverse written comment by February 13, 2008. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1149 by one of the following methods:
A.
C.
D.
Melissa Linden, (215) 814-2096, or by e-mail at
On September 22, 2004, under the 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) the Fredericksburg area and the Shenandoah National Park area were designated as nonattainment areas. The Shenandoah National Park area formally submitted a redesignation request on September 21, 2005 along with a maintenance plan on September 23, 2005. On January 3, 2006, (71 FR 24) the U.S. Environmental Protection Agency (EPA) published the final rulemaking actions approving the redesignation of the Shenandoah National Park from nonattainment of the 8-Hour Ozone Standard to attainment. The Fredericksburg area formally submitted a redesignation request on May 2, 2005 along with a maintenance plan on May 4, 2005. On December 23, 2005, (70 FR 76165) the U.S. Environmental Protection Agency (EPA) published the final rulemaking actions approving the redesignation of the Fredericksburg area from nonattainment of the 8-Hour Ozone Standard to attainment. Both redesignations were done in accordance with the Clean Air Act section 107(d)(3)(E).
On August 14, 2007, the Commonwealth of Virginia submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a regulatory change that moves the Fredericksburg 8-Hour Ozone Nonattainment Area and the Shenandoah National Park 8-Hour Ozone Nonattainment Area from the list of nonattainment areas to the list of maintenance areas. The purpose of Virginia's State Implementation Plan revision consists of a regulatory change to move the Fredericksburg 8-Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone Nonattainment Area (portions of the park located in Page and Madison Counties) from the list of nonattainment areas found in regulation 9 VAC 5-20-204 to the list of maintenance areas found in regulation 9 VAC 5-20-203.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
EPA is approving the Commonwealth's request to move the Fredericksburg area and the Shenandoah National Park area from 8-Hour Ozone Nonattainment list to the 8-Hour Ozone Maintenance list.
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Ozone, Recordkeeping and reporting requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
This document corrects an error in the preamble language of the final rules pertaining to EPA's approval of the redesignation of Reading, Erie, and Youngstown 8-hour ozone nonattainment areas to attainment, maintenance plans and 2002 base year inventories submitted by the Commonwealth of Pennsylvania.
Rose Quinto, (215) 814-2182 or by e-mail at
Throughout this document wherever “we” or “our” are used we mean EPA. On August 24, 2007 (72 FR 48559); October 9, 2007 (72 FR 57207); and October 19, 2007 (72 FR 59213), we published final rulemaking actions announcing our approval and promulgation of Pennsylvania's redesignation of the Reading, Erie, and Youngstown 8-hour ozone nonattainment areas to attainment and approval of the associated maintenance plans and 2002 base year inventories, respectively. In these documents, EPA inadvertently printed the incorrect data in a table entitled, Adequate and Approved Motor Vehicle Emission Budgets (MVEBs) in tons per day (tpd) for 2009 and 2018. This action corrects the tables in the final rulemaking actions reflecting the correct data for the 2009 and 2018 MVEBs for Reading, Erie, and Youngstown Areas.
In rule document E7-16683, on page 48561, the table is corrected as follows:
In rule document E7-19633, on page 57208, the table is corrected as follows:
In rule document E7-20567, on page 59214, the table is corrected as follows:
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because this rule is not substantive and imposes no regulatory requirements, but merely corrects a citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601
This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act (5 U.S.C. 801
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the York (York and Adams Counties) ozone nonattainment area (York Area) be redesignated as attainment for the 8-hour ozone ambient air quality standard (NAAQS). EPA is approving the ozone redesignation request for York Area. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for York Area, which EPA is
EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0625. All documents in the docket are listed in the
Rose Quinto, (215) 814-2182, or by e-mail at
On October 24, 2007 (72 FR 60296), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request and maintenance plan SIP revisions for the York Area that provide for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. The NPR also proposed approval of a 2002 base year emissions inventory for the York Area. The formal SIP revisions were submitted by PADEP on June 14, 2007. Other specific requirements of Pennsylvania's redesignation request and maintenance plan SIP revisions, and the rationales for EPA's proposed actions, are explained in the NPR and will not be restated here. No public comments were received on the NPR.
However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23591, April 30, 2004).
For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in the light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.
EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and 2002 base year emissions inventory SIP revisions because they satisfy the requirements for approval. EPA has evaluated Pennsylvania's redesignation request that was submitted on June 14, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the York Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the York Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the York Area submitted on June 14, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory submitted by PADEP on June 14, 2007 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for NO
The York Area is subject to the CAA's requirement for the basic nonattainment areas until and unless it is redesignated to attainment.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601,
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
The Congressional Review Act, 5 U.S.C. 801,
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by
This action, approving the redesignation of the York Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the MVEBs identified in the maintenance plan and the 2002 base year emission inventory, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401,
(e) * * *
(1) * * *
42 U.S.C. 7401,
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
The General Services Administration is amending the Federal Management Regulation (FMR) to limit General Purpose leasing delegations for space acquisitions up to a maximum of 19,999 rentable square feet.
The Regulatory Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Stanley C. Langfeld, Director, Regulations Management Division, Office of Governmentwide Policy, General Services Administration, at (202) 501-1737, or by e-mail at
The Government Accountability Office and the General Services Administration Office of Inspector General have reported that some Federal agencies using the delegated leasing authority issued to Federal agencies on September 25, 1996, are not following properly the instructions specified as a condition for use of the leasing delegation. To address the concerns raised by these audits, to facilitate compliance with all applicable laws and regulations governing the acquisition of real property leasehold interests, and to minimize risk to the Federal Buildings Fund, GSA will no longer authorize General Purpose leasing delegations for space acquisitions in excess of 19,999 rentable square feet.
The General Services Administration has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866.
This final rule is not required to be published in the
The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501
This final rule is exempt from Congressional review under 5 U.S.C. 801, since it relates solely to agency management and personnel.
Delegations of Authority
40 U.S.C. 121(c), (d) and (e).
(b) The Administrator of General Services has issued a standing delegation of authority (under a program known as “Can't Beat GSA Leasing”) to the heads of all Federal agencies to accomplish all functions relating to leasing of up to 19,999 rentable square feet of general purpose space for terms of up to 20 years and below prospectus level requirements, regardless of geographic location. * * *
Office of Governmentwide Policy, General Services Administration (GSA).
Final rule.
GSA is amending the Federal Management Regulation (FMR) to update the legal citations and to incorporate additional policy guidance in accordance with Executive Order 13327. This final rule cancels and replaces in its entirety 41 CFR part 102-84, issued December 13, 2002.
For clarification of content, contact Mr. Stanley C. Langfeld, Director, Regulations Management Division, Office of Governmentwide Policy, General Services Administration, at (202) 501-1737, or by e-mail at
On December 13, 2002, GSA published Federal Property Management Regulation (FPMR) Amendment D-99 as a final rule in the
On February 4, 2004, the President signed Executive Order 13327, Federal Real Property Asset Management, requiring that the Administrator of General Services, in consultation with the Federal Real Property Council, establish and maintain a single, comprehensive database of all real property under the custody and control of all executive branch agencies, except when otherwise required for reasons of national security.
GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866.
This final rule is not required to be published in the
The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501
This final rule is exempt from Congressional review under 5 U.S.C. 801, since it relates solely to agency management and personnel.
Annual Real Property Inventory.
40 U.S.C. 121(c)
GSA's policies contained in this part apply to all Federal agencies. This part prescribes guidance that all Federal agencies must follow in preparing and submitting annual real property inventory information for real property owned, leased or otherwise managed by the United States. Detailed guidance implementing these policies is contained in the annual
The purpose of the Annual Real Property Inventory program is to:
(a) Promote efficient and economical use of Federal real property assets.
(b) Increase the level of agency accountability for asset management.
(c) Allow for comparing and benchmarking across various types of real property assets.
(d) Give decision makers the accurate, reliable data needed to make asset management decisions, including disposing of unneeded federal assets.
You must provide information for the Annual Real Property Inventory because:
(a) The Senate Committee on Appropriations requests that the Government maintain an Annual Real Property Inventory.
(b) Executive Order 12411, Government Work Space Management Reforms, dated March 29, 1983 (48 FR 13391, 3 CFR, 1983 Comp., p. 155), requires that Executive agencies:
(1) Produce and maintain a total inventory of work space and related furnishings and declare excess to the
(2) Establish information systems, implement inventory controls and conduct surveys, in accordance with procedures established by the Administrator of General Services, so that a governmentwide reporting system may be developed.
(c) Executive Order 13327,
You should obtain data reported for the Annual Real Property Inventory from the most accurate real property asset management and financial management records maintained by your agency.
Yes. You must designate an official to serve as your agency's point of contact for the Annual Real Property Inventories. We recommend that you designate the same point of contact for the Federally-owned and leased real property inventory, although separate points of contact are permitted. You must advise the General Services Administration, Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, in writing, of the name(s) of these representative(s) and any subsequent changes.
Yes. Your agency's official designated in accordance with § 102-84.25 must certify the accuracy of the real property information submitted to GSA.
Each agency that has jurisdiction, custody, control, or otherwise manages Federal real property or enters into leases, is responsible for submitting the real property inventory information. Additional information on the responsibility for reporting inventory data is contained in the annual Guidance for Real Property Inventory Reporting.
You must report for the Annual Real Property Inventory all land, buildings, and other structures and facilities owned by the United States (including wholly-owned Federal Government corporations) throughout the world, all real property leased by the United States from private individuals, organizations, and municipal, county, State, and foreign governments, and all real property otherwise managed by the United States where the ownership interest is held by a State or foreign government. Property to be reported includes, but is not limited to:
(a) Real property acquired by purchase, construction, donation, eminent domain proceedings, or any other method;
(b) Real property in which the Government has a long-term interest considered by the reporting agency as being equivalent to ownership. This would include land acquired by treaty or long-term lease (
(c) Buildings or other structures and facilities owned by or leased to the Government, whether or not located on Government-owned land;
(d) Excess and surplus real property;
(e) Leased real property (including leased land, leased buildings, leased other structures and facilities, or any combination thereof);
(f) Real property leased rent free or for a nominal rental rate, if the real property is considered significant by the reporting agency; and
(g) Real property where title is held by a State or foreign government, but rights for use have been granted to a Federal entity in an arrangement other than a leasehold.
The following real property assets are excluded from Executive Order 13327 and reporting is optional:
(a) Land easements or rights-of-way held by the Federal Government.
(b) Public domain land (including lands withdrawn for military purposes) or land reserved or dedicated for national forest, national park, or national wildlife refuge purposes, except for improvements on those lands.
(c) Land held in trust or restricted-fee status for individual Indians or Indian tribes.
(d) Land, and interests in land, that are withheld from the scope of Executive Order 13327 by agency heads for reasons of national security, foreign policy or public safety.
No. Agencies must submit information in accordance with the electronic format outlined in the annual reporting instructions by either submitting an XML file in a predetermined format or by entering the data manually into the online Federal Real Property Profile system. For more information on format requirements, or any other information and guidance on the Annual Real Property Inventory, contact GSA's Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, or by telephone at (202) 501-0856.
You must prepare the Annual Real Property Inventory information prescribed in § 102-84.50 as of the last day of each fiscal year. This information must be submitted electronically to the General Services Administration, Office of Governmentwide Policy, Office of Real Property (MP), 1800 F Street, NW., Washington, DC 20405, no later than December 15 of each year.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Final rule; response to petitions for reconsideration.
In August 2006, NHTSA published a final rule specifying uniform requirements for the accuracy, collection, storage, survivability, and retrievability of onboard motor vehicle crash event data in passenger cars and other light vehicles voluntarily equipped with event data recorders (EDRs). The final rule was intended to standardize the data collected through EDRs so that it could be put to the most effective future use. This document responds to several petitions for reconsideration of the August 2006 rule. After carefully considering the issues raised, the agency is granting some aspects of the petitions, and denying some aspects. This document amends the final rule accordingly.
Petitions for reconsideration should refer to the docket number and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building, 4th Floor, Washington, DC 20590. Please see the Privacy Act heading under Regulatory Notices.
For technical and policy issues, contact David Sutula, Office of Crashworthiness Standards, by telephone at (202) 366-1740, or by fax at (202) 493-2739.
For legal issues, contact Rebecca Schade, Office of the Chief Counsel, by telephone at (202) 366-2992, or by fax at (202) 366-3820.
Both persons may be reached by mail at the following address: National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590.
In this document, NHTSA responds to petitions for reconsideration of its August 2006 final rule concerning EDRs. That rule specified uniform requirements for the accuracy, collection, storage, survivability, and retrievability of onboard motor vehicle crash event data in passenger cars and other light vehicles voluntarily equipped with event data recorders (EDRs).
We are granting a number of the petitions in part. In granting these petitions, today's final rule makes several changes to the regulatory text of 49 CFR part 563,
We are denying a petition from Public Citizen asking that we require EDRs, include requirements for additional data elements, and increase the stringency of the data survivability requirements. We are also denying a request from Mr. Thomas Kowalick that we require inclusion of a mechanical lockout port to prevent EDR data tampering.
1. In order to avoid vehicle manufacturers incurring significant additional costs, unintended by the final rule, to redevelop EDR system architectures outside the normal product cycle, § 563.3 is being amended to include a later compliance date. Specifically, the compliance date will generally be September 1, 2012, but September 1, 2013 for vehicles that are manufactured in two or more stages or that are altered after having been previously certified to the FMVSS. This change will also allow the agency to continue to collect data from vehicles with EDRs that do not meet the full requirements of the final rule.
2. To avoid EDR data being filtered beyond usefulness, the agency is removing the Society of Automotive Engineers (SAE) J211-1 filter class from Table III of § 563.8 and from incorporation by reference in § 563.4. The agency agrees, based on additional information, that current technology EDRs on the market are able to filter data internally, and an additional filtering step is usually unnecessary if not unhelpful.
3. To clarify the final rule more fully, the agency is adding definitions in § 563.5 for “maximum delta-V, resultant” and “time, maximum delta-V, resultant,” and amending the definitions for “end of event time,” “engine RPM,” “event,” and “time zero.”
4. To clarify the definition and permissible uses of the frontal air bag warning lamp, and to clarify that the ignition cycle at time of download need only be reported during the download process, footnotes are being added to Table I in § 563.7.
5. As petitioners pointed out to the agency, the SAE standard on which Part 563 was originally based contained standards for
6. As written in the final rule, § 563.9 required EDRs to erase recorded data before beginning to record new data of an air bag deployment. This consumes EDR system resources and time, which may be needed to record a closely-
Event data recorders are a rapidly developing technology used in a variety of transportation modes to collect crash information. In motor vehicles, that information aids NHTSA in improving our understanding of crash events and safety system performance. Ideally, it can help manufacturers to develop future safer vehicle designs and NHTSA to develop more effective safety regulations. EDR data will also likely play an increasing role in advancing developing networks for providing emergency medical services, like automatic crash notification (ACN) and electronic 9-1-1 (e-911).
As a technology, EDRs have experienced dramatic changes in the past decade, both in terms of their technical capabilities and their penetration into vehicle fleets. EDRs today demonstrate a range of features: Some systems collect only vehicle acceleration and deceleration data, but others collect these plus additional complementary data, such as driver inputs (like braking and steering) and vehicle system status. NHTSA's challenge has been to encourage broad application of EDR technologies in motor vehicles and maximize the usefulness of EDR data for vehicle designers, researchers, and the medical community, without imposing unnecessary burdens or deterring future improvements to EDRs that have been voluntarily installed.
For much more background information on EDR technologies, please see the NPRM and the final rule, at 69 FR 32932 (June 14, 2004)
The agency received eight petitions for reconsideration in response to the final rule. Petitions were received from two vehicle manufacturer associations, the Alliance of Automobile Manufacturers (Alliance) and the Association of International Automobile Manufacturers (AIAM); two individual vehicle manufacturers, Nissan and Toyota; a manufacturer of EDR components, Delphi Corporation; the Automotive Occupant Restraints Council (AORC); Public Citizen; and one private citizen, Mr. Thomas M. Kowalick. We note that letters were also received from the American Automobile Association (AAA) and 433 private citizens.
In addition, the agency held ex parte meetings with AORC, the Alliance, Toyota, GM, Hyundai, and Mr. Kowalick.
The petitions and comments expressed concerns with the following general areas of the rule: event storage, data format, sensor accuracy and range, data survivability and retrievability, required data elements, lead time, and public privacy and notification. The sections below examine each topic in turn, discussing the petitions and explaining the agency's response.
Petitioners' requests on storage of crash event data in EDRs involved three topics: Data storage in the case of multiple event scenarios, event recording intervals, and reusability of EDRs with “locked” data.
AORC
The Alliance
The Alliance recommended that § 563.9 be re-written as follows:
“The EDR must capture and record the data elements for events in accordance with the following conditions and circumstances:
(a) In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events.
(b) In a deployment event that involves another type of deployable restraint (
(1) If an EDR non-volatile memory buffer void of previous-event data is available, the current non-deployment event data is recorded in the buffer.
(2) If an EDR non-volatile memory buffer void of previous event data is not available, the manufacturer may choose to either overwrite the previous non-deployment event data with the current non-deployment event data, or to not record the current non-deployment data.
(3) EDR buffers containing previous deployment-event data must not be overwritten by the current non-deployment event data.”
AIAM
However, the erasure process consumes EDR system resources and time, which may be needed to record a closely-following second deployment event. In addition, during some multiple events, the timing of event triggers may appear to the EDR as one long event. This may cause the EDR to process and prioritize event data inappropriately.
To address this problem, we are adopting most of the Alliance's recommended rewrite of § 563.9. The EDR will be permitted to “overwrite” rather than erase previous event data contained in the EDR memory buffers. The revised § 563.9 will also clarify how the EDR must prioritize multiple events and events involving deployable restraint systems other than air bags. Finally, by allowing the EDR to overwrite data, the revision will also address the AORC concerns about multiple event timing and the potential for double buffering (unintentionally recording the same event twice) or recording of insignificant data. We are including a requirement that the data from an air bag deployment event remain locked,
(a) In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events.
The revision also addresses AORC's concern about the trigger threshold, because the revised regulatory text permits the EDR algorithm to define on its own when the end of event has occurred. Thus, the EDR could capture the 150 ms pre-event interval in a new memory buffer, while ceasing to record the previous event. In this case, the full set of data from the deployment event would be captured, and the data from the prior event would be contained in a second memory buffer.
We agree with AIAM that subsequent events need not be recorded if the external power source and sensors are damaged in the first event, but we do not believe that a change to the regulatory text is necessary. The regulation does not contain test requirements to determine if an EDR could survive two consecutive severe crashes. For the test requirements which are included, if an event is severe enough to interrupt the power source to the EDR, the EDR must be able to finish capturing that event, but is not required to be in a condition such that it could capture subsequent events.
AORC petitioned NHTSA to clarify that an air bag deployment is itself a trigger, even in the absence of a delta-V trigger. AORC recommended modifying the definition for “time zero” to account for this, and to modify the definition of “end of event” to allow for both a delta-V end of event and air bag control unit reset.
The Alliance also petitioned NHTSA to clarify that an air bag deployment is itself a trigger, and recommended modifying the definition of “time zero” and “event” accordingly. The Alliance argued that a strict reading of the existing “event” definition could preclude a manufacturer from recording cases in which an air bag deploys (due to shock to the vehicle) even though the trigger threshold was not exceeded. In these cases, it would be important to have EDR data to evaluate air bag performance.
Toyota supported the Alliance petition and petitioned for clarification of the “end of event” definition. Toyota argued for a “judgment period” of 30 ms to identify the actual end of the event in the case of a crash where the cumulative delta-V hovers near 0.8 km/h. The judgment period would enable the EDR to determine whether a true end of event has occurred, or whether the previous event has simply continued.
AIAM stated that the delta-V recording intervals specified in Tables I and II do not agree with the final rule preamble. The maximum delta-V recording intervals in the tables are specified as 0-300 ms, but the preamble stated that NHTSA believed that a 250 ms recording time would be sufficient for 95 percent of the event cases. AIAM urged the agency to reconcile the language. Nissan supported the AIAM petition.
We agree, however, that EDR data would be valuable in the case of events where an air bag was deployed and the trigger threshold was not met or exceeded. Including a reference to air bag deployment as a trigger by itself, while maintaining the delta-V trigger, is consistent with the agency's intent in the final rule. We are therefore modifying the definitions of “event” and “time zero” as follows:
(a) For systems with “wake-up” air bag control systems, the time at which the occupant restraint control algorithm is activated; or
(b) For continuously running algorithms,
(i) The first point in the interval where a longitudinal cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 20 ms time period; or
(ii) For vehicles that record “delta-V, lateral,” the first point in the interval where a lateral cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 5 ms time period; or
(c) An air bag deployment.
AORC petitioned NHTSA to define the term “locked” so that the EDR itself could not overwrite event data, but so that external means could be used to erase data after download. They argued that in some cases, the EDR may be reusable after a deployment event, and allowing data to be erased would facilitate reuse.
Several petitioners argued that the title of Table III should be changed from “Recorded Data Format” to “Reported Data Format,” essentially because differences in EDRs may cause them to record data differently, and requiring identical recording capabilities could be more onerous than the agency likely intended. AORC argued that it appears that post processing of data collected from an EDR is allowable, and that the title of Table III should be changed to “Reported Data Format” to clarify this point. Along those lines, AORC petitioned that the “resolution” column in Table III be changed to “Reported Format,” and that NHTSA clarify that the actual sensor resolution may differ from the reported format.
The Alliance stated that SAE J1698 and J1698-1 provide guidelines for reporting EDR data, not recording EDR data. In support, the Alliance cited the scope of SAE J1698, which states:
This recommended practice aims to establish a common output format of crash-related data recorded and stored within certain electronic components currently installed in many light-duty vehicles. This recommended practice pertains only to the post-download format of such data and is not intended to standardize the format of the data stored within any on-board storage unit, or to standardize the method of data recording, storage, or extraction.”
(a) The data elements listed in Tables I and II, as applicable, must be reported in accordance with the range, accuracy, and resolution specified in Table III.
The AORC petitioned NHTSA to remove the SAE J211-1 Class 60 filter class from the final rule, because it applies to vehicle instrumentation in laboratory tests and may be inconsistent with some of the data collected by EDRs. The Alliance also petitioned to remove the SAE J211-1 filter class from Table III, because component suppliers typically incorporate their own filtering techniques into the acceleration data acquisition hardware, and an additional filtering requirement may cause data processing issues for EDRs.
The Alliance petitioned NHTSA to revise the resolution requirement in Table III for acceleration data to “the range of the sensor divided by the number of available states in one byte.” In this manner, a 100 g sensor (± 50 g) would have a resolution of 0.39 g (100 g/255).
The Alliance also petitioned NHTSA to revise the recording interval from 250 to 70 ms from time zero, and allow a range of sampling rates from 100 to 500 Hz, to prevent the need for upgraded accelerometers and requisite memory with no added benefit. It argued that some accelerometers sample at rates as low as 100 Hz, compared to the 500 Hz rate specified in Table II, and that many EDRs record acceleration data for only 50-70 ms from time zero, compared to the 250 ms requirement in the final rule.
Toyota also recommended that the agency change the time interval for delta-V data to “0-250 ms or 0-End of Event Time plus 30 ms, whichever is shorter.” Likewise, Toyota recommended changing the time interval for maximum delta-V to “0-300 ms or 0-End of Event Time plus 30 ms, whichever is shorter.”
AIAM also addressed the issue of the time interval for maximum delta-V data. It argued that the time interval specified in Table III was not in agreement with the preamble, and petitioned that the agency specify in Table III that the maximum delta-V time interval was 0-250 ms.
AIAM also stated that the final rule did not provide a method for verifying the format of the data elements, and that it was therefore unclear how the agency
Nissan
For similar reasons, we are granting the petitions to amend the minimum output for the accelerometer ranges. If acceleration is recorded, it must be included in the EDR output and reported in the minimum format specified in Table III. In meetings with the agency, the Alliance and Toyota argued that the sampling rate was too high for many accelerometers, and would raise EDR manufacturing costs by requiring up to five times the memory storage capacity currently common for EDRs. NHTSA intended to maintain a low cost impact as part of the final rule, but also intended to standardize EDR output data. Consequently, we are amending the minimum data sampling requirements for EDR accelerometer data from 500 Hz to 100 Hz, and are also amending the accelerometer data minimum formats in Table III to reflect the typical acceleration ranges recorded by the accelerometer components.
Regarding the issue of maximum delta-V interval times, we are granting the petition to change the data format in Table III to reflect the new time interval changes. NHTSA is adopting Toyota's suggestion of setting the time interval for the delta-V elements as “0-250 ms or 0-End of Event Time plus 30 ms, whichever is shorter,” and for maximum delta-V, “0-300 ms or 0-End of Event Time plus 30 ms, whichever is shorter.” This will also partially address the AIAM concern about the maximum delta-V interval times in Table III. We do not agree that the maximum delta-V interval time need match that of the other delta-V elements, because in some cases, the resultant maximum delta-V may be achieved after the initial 250 ms time interval. However, the revisions allow a shorter time interval for maximum delta-V if the EDR decides that the event has ended and seeks to reset the event time clock.
We are denying AIAM's request for a verification method for Table III data elements. The agency will verify the data based on the above revisions to Table III and standard laboratory procedures. Standard laboratory procedures would include instrumentation that is traceable to a standard reference and calibrated to a degree of accuracy that is better than the device being tested to verify that the test device is measuring properly. Therefore, when the EDR data is downloaded, the data from the reference accelerometer would verify that the EDR measured the crash pulse accurately.
AORC petitioned the agency to widen the tolerance for recorded delta-V and the underlying accelerometers from ±5% to ±8%. It argued that standard accuracy for accelerometers currently utilized for air bag control units ranges from ±5% to ±10%. They further argued that factors such as misalignment and digitization errors contribute to sensor inaccuracy and necessitate the wider sensor tolerance. AIAM also petitioned for a wider tolerance of ±10% for the accelerometer and delta-V data elements.
The Alliance and Toyota petitioned the agency to remove the acceleration data elements entirely from the final rule, arguing that such data can be derived from the delta-V and event time data elements. If the agency decided to retain the acceleration data elements, however, the Alliance and Toyota requested that the tolerance for acceleration data and delta-V data be increased to ±10%. Delphi petitioned the agency to eliminate the range and accuracy requirements on all inertially-sensed data elements (e.g., acceleration and angular rate), recommending that the agency instead add data elements that indicate the actual range and accuracy characteristics of the inertial parameters included in the record.
The Alliance also petitioned the agency to clarify that accelerometer accuracy is calibrated in comparison with a laboratory grade sensor, and that decreased accelerometer accuracy is allowed in the event of sensor saturation, arguing that accelerometers can lose signal accuracy in certain cases when they experience forces beyond their capability to measure. AORC petitioned that NHTSA specify the temperature conditions when measuring accelerometer accuracy, and that the tolerances apply only within the range of the sensors used in the application and data derived from those signals. Like the Alliance, AORC stated that signals that exceed the range of the sensor may result in clipping of the data, which can affect the overall accuracy of the delta-V calculation.
We are denying the petitions to modify the final rule to allow additional EDR inaccuracy due to sensor saturation or data clipping. NHTSA recognizes that in certain rare extreme crash scenarios, the crash pulse may exceed the sensor detection capacity and result in data saturation, even in sensors that have been optimized for their given purpose. In these situations, the crash pulse may cause additional reported data inaccuracy or clipping; however, by doubling the tolerance on the accelerometer data, we believe this has been sufficiently addressed.
We also believe it is unnecessary to specify how accelerometers should be calibrated. To a certain extent, accelerometers will be calibrated when NHTSA crash tests the vehicle. The reference accelerometer used during the test will indicate whether the accelerations reported by the EDR are within ±10% of the reference accelerometer. Additionally, we believe that the manufacturers' interest in guaranteeing that the delta-V calculation made by the vehicle is accurate will ensure that accelerometers are properly calibrated in the first place. If the acceleration is off by too much, the delta-V calculated may be off and the air bag may not fire at the appropriate time in the crash test. However, because each manufacturer may have a different strategy for placement of sensors and for normalization of the data from those sensors to make a deployment decision, there may be many different ways to achieve that necessary accuracy, and we have no interest in requiring a single method simply for purposes of this rulemaking.
AORC petitioned NHTSA to clarify that the ±50 g accelerometer range is a minimum range for post-download data output format only, and to add a footnote to the “Range” column in Table III denoting that actual sensor range may differ from table values for crash performance reasons. It argued that the ±50 g range is too wide for lateral and vertical sensors and too narrow for longitudinal sensors, and requested that NHTSA allow higher range longitudinal accelerometers and narrower range lateral and vertical accelerometers provided that the output format is ±50 g at a minimum. The Alliance also argued that lateral accelerometers used for rollover mitigation and electronic stability control systems do not have the same range as frontal crash accelerometers, and are more likely to be 2 to 5 g full-scale than 50 g.
AIAM petitioned NHTSA to allow delta-V calculation errors due to accelerometer data truncation to the ±50 g range, and to specify that the acceleration data element ranges in Table III are minimum ranges. AIAM argued that in certain severe crashes, the longitudinal acceleration component may be higher than the ±50 g range specified in Table III. Thus, in those cases, the acceleration value recorded by the EDR would be truncated at 50 g and the resultant delta-V calculation might not meet the accuracy specified in section 563.
AIAM also stated that current EDR designs could include accelerometers with ranges as low as ±30 g to measure some longitudinal and lateral acceleration components, and as low as ±1 g to measure normal (vertical) acceleration components. AIAM petitioned NHTSA to modify the acceleration ranges specified in the final rule to accommodate current EDR designs, and to allow alternative ranges for lateral and vertical accelerometers. Nissan supported the AIAM petition.
The Alliance argued that for the purpose of determining compliance, NHTSA should clarify in the regulatory text that the EDR is restored to and stabilized at the conditions during the FMVSS No. 208 crash test procedure. Thus, it petitioned the agency to specify environmental conditions for the time period prior to data download for compliance purposes; namely, that the vehicles be kept dry and at a temperature during download that has been maintained at 66—78 °F prior to any read-out being used to assess compliance.
AIAM also petitioned that NHTSA specify that vehicles must be stored and protected from extreme environmental conditions (temperature or precipitation) prior to data download during EDR compliance assessment. AIAM argued that although a 10-day data storage requirement is reasonable, a crash test vehicle left unprotected from severe elements for 10 days could experience data loss. Nissan supported the AIAM petition.
Public Citizen, on the other hand, reiterated the position it stated in its comments to the NPRM that the agency should specify more extreme survivability requirements for EDR data. It argued that fatal crashes include ones resulting in fires and fluid immersion, and that EDR data from those crashes are essential to NHTSA researchers in fully reconstructing crashes and developing more comprehensive safety standards. Public Citizen also petitioned that NHTSA require EDRs to meet survivability standards for crash events at speeds higher than 50 mph. It argued that the final rule as written neglects higher speed, rear impact, and rollover crash tests.
Additionally, we are denying the petitions to increase the survivability requirements to include data retrievability after high-speed (above 50 mph) and extreme fire and fluid immersion crashes. As we stated regarding fire and fluid immersion crashes in the final rule,
In the NPRM,
As for high speed crashes, the agency has specified that compliance tests will be conducted in conjunction with FMVSS Nos. 208 and 214, which ensures that reliable information about severe crashes will be preserved while minimizing the rule's potential cost impact. We note that the FMVSS No. 208 crash tests are now performed at speeds of up to 56 km/h (35 mph), which represent the cumulative delta-V for 99% of frontal crashes.
We disagree that the final rule neglects rear impact or rollover crashes. The final rule standardizes lateral acceleration, longitudinal acceleration, and vehicle roll angle data elements recorded by EDRs. We note that many manufacturers are already utilizing rollover sensors as part of their side curtain air bag systems. However, not all manufacturers have rollover systems installed in their fleets, or capture rollover data. Therefore, NHTSA does not believe that it is necessary at this time to require EDRs to record, for example, lateral acceleration or vehicle roll angle, at the risk of increasing the costs associated with installing EDRs in vehicles.
As for rear impact crashes, the final rule's definition of trigger threshold uses an absolute value, rather than specifying that deceleration or acceleration should be a trigger.
AORC petitioned to exclude peripheral sensors from the scope of the final rule. It argued that state-of-the-art EDRs utilize peripheral sensors which may be positioned in the crushable zone of a vehicle and may not survive the entire crash. AORC further argued that it believes the agency intended EDRs to capture “rigid body” data for event reconstruction, and that sensors located in the crushable zones of vehicles may not meet the requirements of the final rule.
The Alliance also petitioned to exclude satellite sensors from the scope of the final rule. It stated that satellite sensors may be optimized for functions unrelated to EDRs and crash investigations, and have ranges and tolerances that are radically different than those specified in the final rule. The Alliance argued that accelerometers located in the air bag control modules, closer to the vehicle center of gravity, provide a more accurate indication of actual rigid-body acceleration.
Delphi expressed concern that some data elements in Table I
However, we are denying Delphi's petition to exempt data elements from Table I if those data sets are not available to the EDR. While NHTSA recognizes that it may save EDR development costs to utilize sensor systems currently in place, we believe that the EDR should be capable of recording data from these systems for the interval times specified in the final rule. The sensor systems identified by Delphi as examples of “functionally independent, non-interconnected subsystems” are all data elements of primary interest to NHTSA in determining the pre-crash conditions, and therefore would likely still be available to the EDR. Further, the agency believes that the crash scenarios in which these systems may become disconnected, and thus no longer available to the EDR, would involve extremely severe or rare conditions that are not of interest to the agency at this time for practical reasons. The compliance test procedures specified in the final rule do not recreate such extreme conditions, so data from these subsystems would still be available for compliance purposes.
AORC stated that the “steering input” data element in Table II appears to be equivalent to the “steering wheel angle” data element in Table III. AORC additionally petitioned that NHTSA specify that Table II steering input and wheel angle tolerance values are minimums, and that there is no need to truncate the data to fit the Table III format. AORC also requested that the Table III accuracy for steering wheel angle be changed to a percent of the full scale rather than a fixed angle tolerance.
AORC argued that the typical accuracy for state-of-the-art roll angle sensors is about 7%, and petitioned that the agency measure that accuracy as a percent of the full sensor range rather than as a fixed roll angle. AORC further requested that the EDR should only be required to store the roll angle data element up to the deployment of the air bag, and that the accuracy requirement only apply within the range of the sensors used in the application and at room temperature.
We believe there is no need to limit collection of roll angle sensor data to the time interval prior to air bag deployment. As footnoted in Table II, the recording interval is a suggested period only. This is because the agency recognized the potential for misalignment of sensors and consequent loss of accuracy due to vehicle damage during a rollover event. NHTSA would not consider it non-compliant if an EDR was unable to collect roll angle sensor data for the full recording interval; therefore, an additional limit to the recording interval is not necessary.
AORC stated that it believes that the “resultant” maximum delta-V means the magnitude of the vector-added longitudinal and lateral maximum delta-V, and that this value can be processed during the data downloading procedure. AORC petitioned NHTSA to define “Time, Max Delta-V Resultant” in § 563.5.
The Alliance petitioned the agency to revise the Engine RPM definition to include hybrid vehicles with one or more drive systems. It recommended that the measurement point be moved to the point of entry to the transmission gearbox.
The Alliance petitioned NHTSA to either delete the Table I data element “frontal air bag warning lamp” or change that data element to “Readiness Indicator Lamp.” It suggested that the readiness indicator lamp as described in FMVSS No. 208 (S4.5.2) is the data element that NHTSA intended for EDRs to record. The Alliance argued that the name should be changed for accuracy's sake, since the readiness indicator may illuminate to indicate a malfunction in many parts of the restraint system besides the frontal air bag, including the seat belt pretensioners, the passenger seat weight sensors, the side impact sensors, the curtain air bag modules, and so forth.
AIAM also petitioned to clarify that the “readiness indicator” referred to the indicator specified in S4.5.2 of FMVSS No. 208. It recommended that the EDR record the status of the safety system as a whole, and not simply whether or not the readiness indicator lamp is illuminated. AIAM further petitioned that NHTSA confirm that the EDR may record additional safety system readiness information, such as the state of side air bag systems. Nissan supported the AIAM petition.
The Alliance petitioned NHTSA to remove the frontal air bag suppression switch “auto” data element from Table II. It argued that the air bag system can be deactivated through numerous methods, and is either on or off at the time of the event (
AIAM petitioned NHTSA to revise the vehicle speed data element accuracy to ±10 km/h, arguing that the listed accuracy requirement in Table III of the final rule is not feasible. However, AIAM suggested that if the agency's intent was to specify a ±1 km/h resolution for data reporting purposes only, the data element would not be problematic. Nissan supported the AIAM petition.
Public Citizen noted that the number of required data elements in the final rule was reduced from the number in the NPRM, and reiterated its position stated in its comments to the NPRM that NHTSA should include more required data elements for EDRs. Specifically, Public Citizen requested that NHTSA reconsider data elements listed by the NHTSA-sponsored EDR working group and an IEEE EDR case report. It also cited VIN, crash location, and a date/time stamp data element as elements missing from the agency's final rule.
We note that the vehicle VIN does not need to be a required data element, since that information is already required to download data from the EDR.
The Alliance petitioned NHTSA to change the compliance date set of the final rule. It argued that the final rule will likely require manufacturers to redesign EDRs and electrical architectures in virtually all vehicles covered by the regulation, and that it is impractical to implement these product changes across the entire fleet of vehicles by the September 1, 2010 compliance date. The Alliance instead recommended that the agency either delay the effective date or implement a phase-in schedule. It recommended a phase-in schedule of 25% for MY 2011, 50% for MY 2012, 75% for MY 2013, and 100% compliance thereafter.
AIAM also argued that significant redesigns may be required for manufacturers to comply with the final rule, and requested a later compliance date. It recommended a phase-in schedule of 50% for MY 2011, 80% for MY 2012, and 100% for MY 2013, with advance credits for early adoption.
However, in connection with the petitions for reconsideration, manufacturers have submitted information that even with the reduced number of required data elements included in the final rule, industry will still need to make architecture changes that will extend the lead time beyond September 1, 2010 for new EDRs that comply with the final rule.
We agree that a delay in the rule is needed to prevent manufacturers from incurring significant redesign costs for EDRs. We do not want the final rule to inhibit manufacturers from continuing to include EDRs (in whatever form) in their vehicles between now and the effective date of the final rule. Therefore, we are granting the petitions to delay the effective date until September 1, 2012. We are not granting the petitions with respect to the requests for a phase-in, because we believe that a fixed date of 2012 will be sufficient for manufacturers' needs. For the same reason, and because manufacturers indicated that 2012 would be sufficient,
NHTSA believes that the additional two years will both allow the manufacturers time to implement the necessary EDR and air bag architecture changes during the normal model development cycles, and the agency to continue to collect data from vehicles with EDRs that do not meet the full requirements of the final rule, specifically, from manufacturers who are farther from meeting the rule than GM. Moreover, by delaying the effective date of the final rule, the agency will have a better chance of collecting more complete data from EDRs installed in vehicles, since manufacturers can implement some minor changes to the EDR functions in preparation for compliance with the final rule.
Public Citizen reiterated its position from its comments to the NPRM and petitioned NHTSA to mandate EDR installation for all vehicles instead of establishing requirements for voluntarily installed EDRs. It argued that the safety benefits of EDRs far outweigh the financial burden manufacturers would incur with a fleet-wide mandate, and that manufacturers will seek relief from the requirements by not equipping their vehicles with EDRs. Public Citizen further stated that gaps in accident reconstruction knowledge would compromise the agency's ability to draw conclusions from EDR data, and that a mandate for EDRs on all vehicles would avoid those gaps.
Further, manufacturers benefit from having EDRs in their vehicles as well—they collect information on how their vehicles and equipment are performing just as NHTSA does. We believe that this benefit to manufacturers will help keep EDRs in vehicles, as evidenced by the fact that the marketplace appears to be adopting more, not fewer, EDRs. Therefore, we are denying Public Citizen's petition to mandate installation of EDRs in all new vehicles.
Mr. Thomas Kowalick petitioned NHTSA to require a mechanical lockout on the on-board diagnostic (OBD2) port
Public Citizen petitioned NHTSA to require manufacturers to produce a standardized tool for downloading of EDR data by first responders. It argued that requiring a standardized download tool, rather than simply making a tool available within 90 days of the first sale of vehicles equipped with EDRs, will help reduce costs for emergency personnel and law enforcement officials and prevent manufacturers from providing tools that only download the bare minimum of EDR data. It further argued that without a standardized download tool, manufacturers will be able to maintain sole ownership of the only tools that gain access to all of an EDR's recorded data and “cover up” data on defect trends by preventing NHTSA, first responders, crash investigators, and other safety researchers from gaining access to valuable safety data.
We are continuing to monitor the progress of voluntarily installed EDRs and note that the manufacturers are already working toward a standardized set of downloading tools. We believe that once this standard becomes effective, the downloading process for EDRs will become less complex, and the tools will become easier to use and less expensive. Thus far EDR downloads have provided the information necessary for the agency to accomplish our research and enforcement objectives without the requirement of a standardized download tool. However, if this trend does not continue and download tools become so expensive that the collection of EDR data by NHTSA, first responders, crash investigators, and other safety researchers is hampered by the cost of the tools, the agency will consider taking appropriate action to address the
Public Citizen petitioned NHTSA to require vehicles equipped with EDRs to have window stickers or labels at the point of sale. It argued that the final rule's requirement for an owner's manual statement regarding the presence and functioning of the EDR is insufficient, because many people do not read the owner's manual before purchasing the vehicle. Additionally, Public Citizen petitioned NHTSA to require consumers to be handed a one-page document with a message similar to the statement in the owner's manual before purchasing the vehicle that notifies them of the presence of the EDR and describes its purpose and capabilities.
Public Citizen asked in its petition that NHTSA include EDR data in the Fatality Analysis Reporting System (FARS), and ensure that a system is in place for all first responders to download and forward data to NHTSA for analysis and inclusion in research databases. It stated that data analysis and presentation are critical to reaping the maximum benefit from EDR data. Public Citizen also recommended that NHTSA should additionally create a new database solely for EDR data to help corroborate conclusions drawn from other databases, and a system in partnership with law enforcement officials to ensure that all available EDR data is retrieved following a crash and sent to the agency for analysis.
On April 6, 2007, the agency published a final rule establishing FMVSS No. 126, “Electronic stability control systems,” which set performance and equipment requirements for electronic stability control (ESC) systems. As a technical correction, we are amending the definition of “stability control” in § 563.5 to read “means any device that complies with FMVSS No. 126, “Electronic stability control systems.”
The American Automobile Association (AAA) stated that although some states are requiring manufacturers to notify consumers in the vehicle's owner's manual of the presence and functioning of the EDR, under the final rule it may take as long as four years for the notice requirements to transition to the remaining states. It urged the agency to work with manufacturers to include the owner's manual notice as part of the routine schedule of updating and revising the owner's manual.
In response, we note that we have reviewed many owners' manuals as part of this rulemaking. We have found that many have been updated to reflect the fact that EDRs are included on vehicles.
NHTSA also received and reviewed submissions from more than 400 private citizens expressing various concerns, including a belief in some cases that the agency was mandating EDRs and that consumer privacy would not be protected. However, the letters did not generally address the discussions provided by the agency in the final rule concerning privacy and other relevant issues. Moreover, the final rule does not mandate the installation of EDRs but instead standardizes the format of data collected from EDRs voluntarily installed in vehicles.
This rule makes several technical changes to the regulatory text of 49 CFR Part 563, and does not increase the regulatory burden of manufacturers. The agency has discussed the relevant requirements of the Vehicle Safety Act, Executive Order 12866, the Department of Transportation's regulatory policies and procedures, the Regulatory Flexibility Act, Executive Order 13132 (Federalism), Executive Order 12988 (Civil Justice Reform), Executive Order 13045 (Protection of Children from Health and Safety Risks), the Paperwork Reduction Act, the National Technology Transfer and Advancement Act, Unfunded Mandates Reform Act, and the National Environmental Policy Act in the August 2006 final rule cited above. Those discussions are not affected by these technical changes.
Please note that anyone is able to search the electronic form of all documents received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements.
49 U.S.C. 322, 30101, 30111, 30115, 30117, 30166, 30168; delegation of authority at 49 CFR 1.50.
This part applies to the following vehicles manufactured on or after September 1, 2012, if they are equipped with an event data recorder: passenger cars, multipurpose passenger vehicles, trucks, and buses with a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service. This part also applies to manufacturers of those vehicles. However, vehicles manufactured before September 1, 2013 that are manufactured in two or more stages or that are altered (within the meaning of
(a)
(b)
(1) For vehicles powered by internal combustion engines, the number of revolutions per minute of the main crankshaft of the vehicle's engine; and
(2) For vehicles not entirely powered by internal combustion engines, the number of revolutions per minute of the motor shaft at the point at which it enters the vehicle transmission gearbox.
(1) For systems with “wake-up” air bag control systems, the time at which the occupant restraint control algorithm is activated; or
(2) For continuously running algorithms,
(i) The first point in the interval where a longitudinal cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 20 ms time period; or
(ii) For vehicles that record “delta-V, lateral,” the first point in the interval where a lateral cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 5 ms time period; or
(3) An air bag deployment.
(a)
(b)
(a) The data elements listed in Tables I and II, as applicable, must be reported in accordance with the range, accuracy, and resolution specified in Table III
(b) Acceleration Time-History data and format: the longitudinal, lateral, and normal acceleration time-history data, as applicable, must be filtered either during the recording phase or during the data downloading phase to include:
(1) The Time Step (TS) that is the inverse of the sampling frequency of the acceleration data and which has units of seconds;
(2) The number of the first point (NFP), which is an integer that when multiplied by the TS equals the time relative to time zero of the first acceleration data point;
(3) The number of the last point (NLP), which is an integer that when multiplied by the TS equals the time relative to time zero of the last acceleration data point; and
(4) NLP—NFP + 1 acceleration values sequentially beginning with the acceleration at time NFP * TS and continue sampling the acceleration at TS increments in time until the time NLP * TS is reached.
The EDR must capture and record the data elements for events in accordance with the following conditions and circumstances:
(a) In a frontal or side air bag deployment crash, capture and record the current deployment data, up to two events. The memory for each air bag deployment event must be locked to prevent any future overwriting of these data.
(b) In a deployment event that involves another type of deployable restraint (e.g., pretensioners, knee bolsters, pedestrian protection, etc.), or in a non-deployment event that meets the trigger threshold, capture and record the current non-deployment data, up to two events, subject to the following conditions:
(1) If an EDR non-volatile memory buffer void of previous-event data is available, the current non-deployment event data is recorded in the buffer.
(2) If an EDR non-volatile memory buffer void of previous-event data is not available, the manufacturer may choose either to overwrite the previous non-deployment event data with the current non-deployment event data, or not to record the current non-deployment event data.
(3) EDR buffers containing previous deployment-event data must not be overwritten by the current non-deployment event data.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit change.
NMFS announces that the Administrator, Northeast (NE) Region,
Effective 0001 hours local time January 10, 2008, through April 30, 2008.
Mark Grant, Fishery Management Specialist, (978) 281-9145, fax (978) 281-9135.
Regulations governing the GB yellowtail flounder landing limit within the U.S./Canada Management Area are found at § 648.85(a)(3)(iv)(C) and (D). The regulations authorize vessels issued a valid Federal limited access NE multispecies permit and fishing under a NE multispecies DAS to fish in the U.S./Canada Management Area, as defined at § 648.85(a)(1), under specific conditions. The TAC for GB yellowtail flounder for the 2007 fishing year is 900 mt. The regulations at § 648.85(a)(3)(iv)(D) authorize the Regional Administrator to increase or decrease the trip limit in the U.S./Canada Management Area to prevent over-harvesting or under-harvesting the TAC allocation.
On April 24, 2007 (72 FR 20287), based upon the reduced 2007 TAC for GB yellowtail flounder (a 43-percent reduction from 2006) and projections of harvest rates in the fishery, the trip limit for GB yellowtail flounder was set at 3,000 lb (1,361 kg) for the 2007 fishing year, to prevent the over-harvest of the 2007 GB yellowtail flounder TAC, and to prevent a premature closure of the Eastern U.S./Canada Management Area and, therefore, reduced opportunities to fish for Eastern GB cod and haddock in the Eastern U.S./Canada Area. On November 27, 2007, the GB yellowtail flounder trip limit was increased to 7,500 lb (3,402 kg) because the 3,000-lb (1,361-kg) trip limit was projected to result in the under-harvest of the TAC.
According to the most recent Vessel Monitoring System (VMS) reports and other available information, the cumulative GB yellowtail flounder catch, as of January 9, 2008, is estimated to be 82 percent of the TAC, with a projection that the complete harvest of the TAC would occur by January 23, 2008. Harvest of the GB yellowtail flounder TAC would prevent the reopening of the Eastern U.S./Canada Area to harvest the remaining portions of the GB cod and GB haddock TACs. Decreasing the GB yellowtail flounder trip limit to 1,500 lb (680 kg) from 7,500 lb (3,402 kg) is expected to reduce the number of trips made to the Western U.S./Canada Area to target GB yellowtail flounder, decrease landings of yellowtail flounder without increasing discards, and result in the achievement of the TAC during the fishing year without exceeding it. Based on this information, the Regional Administrator is decreasing the current 7,500-lb (3,402-kg) trip limit in the U.S./Canada Area to 1,500 lb (680 kg) per trip, effective 0001 hours local time January 10, 2008, through April 30, 2008. GB yellowtail flounder landings will continue to be closely monitored. Further inseason adjustments to increase or decrease the trip limit may be considered, based on updated catch data and projections. Should 100 percent of the TAC allocation for GB yellowtail flounder be projected to be harvested, all vessels would be prohibited from harvesting, possessing, or landing yellowtail flounder from the entire U.S./Canada Management Area, and the Eastern U.S./Canada Area would be closed to limited access NE multispecies DAS vessels for the remainder of the fishing year.
This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment; as well as the delayed effectiveness for this action, because prior notice and comment, and a delayed effectiveness, would be impracticable and contrary to the public interest. The regulations under § 658.85(a)(3)(iv)(D) grant the Regional Administrator the authority to adjust the GB yellowtail flounder trip limit to prevent over-harvesting or under-harvesting the TAC allocation. This action would reduce the GB yellowtail trip limit for all NE multispecies DAS vessels fishing in the U.S./Canada Management Area for the remainder of the 2007 fishing year. This action is intended to prevent the over-harvest of the GB yellowtail flounder TAC while allowing continued opportunities to achieve optimum yield in the NE multispecies fishery.
This action is authorized by the regulations at § 648.85(a)(3)(iv)(D). It is important to take this action immediately because the rapid catch rate observed since implementing the 7,500-lb (3,402-kg) GB yellowtail flounder trip limit on November 27, 2007, is projected to result in the TAC being achieved on January 23, 2008. This would require that the Eastern U.S./Canada Area remain closed for the remainder of the 2007 fishing year, preventing the reopening the Eastern U.S./Canada Management Area to harvest the remaining portions of the GB cod and GB haddock TACs. Allowing the current rapid catch rate (33 percent of the TAC was caught between December 6, 2007, and January 3, 2008) to continue during the period necessary to publish and receive comments on a proposed rule could potentially allow the GB yellowtail flounder harvest to exceed the GB yellowtail flounder TAC for the 2007 fishing year. Exceeding the 2007 TAC for GB yellowtail flounder would increase mortality of this overfished stock beyond that evaluated during the development of Amendment 13, resulting in decreased revenue for the NE multispecies fishery, increased negative economic impacts to vessels operating in the U.S./Canada Area, a reduced chance of achieving optimum yield in the groundfish fishery, and unnecessary delays to the rebuilding of this overfished stock. Exceeding the 2007 GB yellowtail flounder TAC would also necessitate that any overages during the 2007 fishing year be deducted from the GB yellowtail TAC for the 2008 fishing year. Reducing the 2008 TAC due to any 2007 TAC overage caused by delaying this action would create an unnecessary burden on the fishing industry and further negative economic and social impacts that were not previously considered.
The potential of decreasing the GB yellowtail flounder trip limit was announced to the public when the 7,500-lb (3,402-kg) trip limit was implemented on November 27, 2007. Further, the public is able to obtain information on the rate of harvest of the GB yellowtail flounder TAC via the Northeast Regional Office website (
16 U.S.C. 1801
Office of the Secretary, DHS.
Notice of proposed rulemaking.
This proposed rule would implement Executive Branch policy that, within the framework of constitutional church-state guidelines, faith-based organizations should be able to compete on an equal footing with other organizations for Federal funding and participate, on an equal footing with other organizations, in Federally-funded activities.
Written comments must be received on or before February 13, 2008.
You may submit comments, identified by agency name and docket number DHS-2006-0065, by
•
•
•
Greg DiNapoli, Deputy Director, Center for Faith-based and Community Initiatives, (202) 646-4317.
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. The Department of Homeland Security (DHS) also invites comments that relate to the potential economic, environmental, or federalism effects of this proposed rule. Comments that will provide the most assistance to DHS in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.
All comments received will be posted without change to
Docket: For access to the docket to read background documents or comments received, go to
President Bush, through Executive Order 13279 (“Equal Protection of the Laws for Faith-Based and Community Organizations”), has directed federal agencies to ensure that Federal policies and programs are fully open to faith-based and community organizations in a manner that is consistent with the United States Constitution.
DHS believes that faith-based organizations have a significant role to play in various programs administered by DHS and in homeland security generally. For example, faith-based organizations have long been on the front lines in matters of disaster preparedness and relief, providing food, supplies and shelter to others in need.
The primary reason for past exclusion of faith-based organizations from receipt of Federal funds generally has been a concern with the separation of “church and state.” The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *”
To that end, in the case of private, nonprofit faith-based organizations seeking public assistance to repair, restore or replace otherwise eligible facilities damaged in a disaster, DHS has determined that such organizations should be eligible for public assistance on the same terms as similarly situated non-faith-based, private nonprofit organizations, which is consistent with current DHS practice and policy.
Consistent with the President's initiative, this proposed rule would amend DHS' regulations to make clear that faith-based organizations are eligible to participate in any social or community service programs established, administered or funded by DHS (including any component of DHS) (collectively, “DHS service programs”), and are eligible to seek and receive Federal financial assistance from DHS service programs where such assistance is available to other organizations. The
DHS proposes to amend its regulations by adding a new Part 19—Nondiscrimination in Matters Pertaining to Faith-Based Organizations—and to further amend its regulations at 44 CFR 206.226, to address the areas identified below.
The proposed rule clarifies in section 19.3 that eligible organizations may not be excluded from the competition for DHS financial support for, or participation in, social service programs simply because such organizations are faith-based. Specifically, faith-based organizations are eligible to compete for DHS financial support, and to participate in DHS service programs, on the same basis, and under the same eligibility requirements, as all other non-governmental organizations.
DHS, DHS social service intermediary providers, and State and local governments administering DHS support are prohibited from discriminating for or against organizations on the basis of the organizations' religious character or affiliation.
DHS recognizes that Federal funds disbursed through DHS service programs cannot be used to advance any religious agenda. To that end, the proposed rule describes in section 19.4 the requirements related to inherently religious activities in DHS service programs administered or supported by the department. By way of example, a faith-based organization could receive funding to obtain food or clothing to distribute as part of a disaster relief program. It could not, however, proselytize while distributing those items, or otherwise utilize DHS support for activities such as worship or religious instruction.
While the organization is, of course, free to engage in such activities, the activities must be offered separately, in time or location, from the social service programs receiving direct DHS support. Moreover, participation in inherently religious activities must be voluntary for the beneficiaries of such programs. Organizations may inform program beneficiaries of their religious activities, but, should they do so, they must also advise them that receipt of any benefits is not contingent on participation in religious activity.
The proposed rule clarifies that an organization that receives direct DHS financial assistance pursuant to any DHS Service program shall not favor or discriminate against a program beneficiary or prospective program beneficiary on the basis of religion, professed belief or religious practice.
Proposed section 19.6 would clarify that a faith-based organization that participates in a DHS program or activity will retain its independence from Federal, State and local governments, and may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs. Among other things, faith-based organizations may use space in their facilities to provide services under a DHS program, without removing religious items or symbols. In addition, a faith-based organization participating in a program funded by DHS retains its authority over its internal governance, and it may retain religious terms in its organization's name, select its board members, and otherwise govern itself on a religious basis and include religious references in its organization's mission statements and other governing documents.
Section 19.7 of the proposed rule clarifies that a faith-based organization's exemption from the Federal prohibition on employment discrimination on the basis of religion, set forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), is not forfeited when the organization participates in a DHS program.
Participation in some DHS programs, however, is subject to independent statutory or regulatory provisions that impose certain nondiscrimination requirements on all grantees. This proposed rule is not intended to alter or waive these requirements for faith-based or community organizations; accordingly, grantees should consult with the appropriate DHS program office to determine the scope of any applicable requirements.
The proposed rule clarifies that if a State or local government voluntarily contributes its own funds to supplement federally funded activities, the State or local government has the option to segregate the Federal funds or commingle them. However, if the funds are commingled, the requirements of proposed section 19.8 will apply to all of the commingled funds. If a State or local government is required to contribute matching funds to supplement a federally funded activity, the matching funds are considered commingled with the Federal assistance and therefore subject to the requirements of proposed section 19.8. As with Title VII issues, grantees should consult with the appropriate DHS program office to determine the scope of any applicable requirements.
The proposed rule would ensure that private nonprofit organizations that qualify for public assistance under disaster relief grant programs, but which are inherently religious in nature, are not subjected to discrimination because of their religious or faith-based status.
DHS believes that private, nonprofit organizations of a religious nature which provide education, medical or custodial care, or other eligible services, should be eligible to receive public assistance for the repair, restoration or replacement of damaged facilities or for hazard mitigation on the same terms as similarly situated non-religious private, nonprofit organizations.
The proposed rule would also make specific changes to the regulations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended. The amendments would specifically provide that if an organization is otherwise eligible to receive funding under this section, the organization's status as faith-based will not be considered in
This rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866.
The Secretary of Homeland Security, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule would not have a significant economic impact on a substantial number of small entities as that term is defined in 5 U.S.C. 601(6). The proposed rule would not impose any new costs, or modify existing costs, applicable to recipients of DHS support. Rather, the purpose of the proposed rule is to clarify that DHS' social service programs are open to all qualified organizations, regardless of their religious character, and to establish clearly the permissible uses to which DHS support may be put.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and on the private sector. This proposed rule does not impose any Federal mandates on any State, local, or tribal governments, or the private sector, within the meaning of the Unfunded Mandates Reform Act of 1995.
Pursuant to Executive Order 13132, DHS has determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.
For the reasons set forth above, DHS proposes to amend 6 CFR by adding a new part 19 and 44 CFR part 206 as follows:
1. Part 19 to title 6 of the Code of Federal Regulations is added to read as follows:
5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR 77141 and E.O. 13403, 71 FR 28543.
It is the policy of Department of Homeland Security (DHS) to ensure the equal participation of faith-based organizations in social service programs administered or supported by DHS or its component agencies. The equal participation policies and requirements contained in this section are generally applicable to faith-based organizations participating or seeking to participate in any such programs. More specific policies and requirements regarding the participation of faith-based organizations in individual programs may be provided in the regulations governing those programs.
(a)
(b)
(c)
(a) Faith-based organizations are eligible, on the same basis as any other organization, to seek and receive financial assistance from the Department of Homeland Security for social service programs or to participate in social service programs administered or financed by DHS.
(b) Neither DHS, nor a State or local government, nor any other entity that administers any program or activity funded by DHS, shall discriminate for or against an organization on the basis of the organization's religious character or affiliation.
(c) Nothing in this part shall be construed to preclude DHS, or any of its components from accommodating religious organizations and persons to the fullest extent consistent with the Constitution and laws of the United States.
(a) Organizations that receive direct financial assistance from DHS to participate in or administer any social service program or activity may not engage in inherently religious activities as part of the programs or services funded or administered by DHS.
(b) Organizations receiving financial assistance from DHS pursuant to DHS social service programs are free to engage in inherently religious activities, but such activities must be
(1) Offered separately, in time or location, from the programs, activities, or services supported by direct DHS funds pursuant to DHS social service programs; and
(2) Voluntary for the beneficiaries of the programs, activities or services provided.
(c) It is not a violation of this section for a faith-based organization to inform persons of the organization's religious activities, provided that the organization makes it clear that receipt of any benefits or services supported by direct financial assistance from DHS pursuant
(d) The restrictions on inherently religious activities set forth in this section do not apply to programs where DHS funds are provided to chaplains to work with inmates in detention facilities or where DHS funds are provided to religious or other organizations for programs in detention facilities, in which such organizations assist chaplains in carrying out their duties.
An organization that receives direct financial assistance from DHS pursuant to a social service program for any program or activity shall not favor or discriminate against a beneficiary or prospective beneficiary of said program or activity on the basis of religion, belief or religious practice.
(a) A faith-based organization that participates in a social services program administered by DHS or receives direct financial assistance from DHS for its own program or activity will retain its independence from Federal, State, and local governments, and may continue to carry out its mission, including the definition, practice, and expression of its beliefs.
(b) Faith-based organizations may use space in their facilities to provide social services utilizing financial assistance from DHS without removing or concealing religious articles, texts, art or symbols.
(c) A faith-based organization utilizing financial assistance from DHS for social services programs retains its authority over internal governance, and may also retain religious terms in its organization's name, select its board members on a religious basis, and include religious references in its organization's mission statements and other governing documents.
(a) A faith-based organization's exemption from the Federal prohibition on employment discrimination on the basis of religion, set forth in section 702(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1), is not forfeited when the organization seeks or receives funding from DHS for a social services program or otherwise participates in a DHS program.
(b) Where a DHS program contains independent statutory or regulatory provisions that impose nondiscrimination requirements on all grantees, the provisions are not waived or mitigated by this regulation. Accordingly, grantees should consult with the appropriate DHS program office to determine the scope of any applicable requirements.
(a) If a State or local government voluntarily contributes its own funds to supplement federally funded activities, the State or local government has the option to segregate the Federal funds or commingle them.
(b) If the funds are commingled, the requirements of this section apply to all of the commingled funds.
(c) If a State or local government is required to contribute matching funds to supplement a federally funded activity, the matching funds are considered commingled with the Federal assistance and therefore subject to the requirements of this section.
2. The authority citation for 44 CFR part 206 is revised to read as follows:
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5206; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979, Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR 1979 Comp., p. 412; E.O. 12673, 54 FR 12571, 3 CFR, 1989 Comp., p. 214; sections 206.226 and 206.434 are also issued under the authority of 5 U.S.C. 301; 6 U.S.C. 111, 112; E.O. 13279, 67 FR 77141 and E.O. 13403, 71 FR 28543.
3. A new paragraph (l) to § 206.226 is added to read as follows:
(l)
4. Section 206.434(a)(2) is revised to read as follows:
(a) * * *
(2) Private nonprofit organizations or institutions that own or operate a private nonprofit facility as defined in § 206.221. If an organization is otherwise eligible to receive funding under this section, the organization's status as faith-based shall not be considered in determining whether to authorize a grant or the amount of any such grant.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 767-200, -300, and -400ER series airplanes. This proposed AD would require an inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units and the flight attendant and lavatory oxygen boxes, as applicable. This proposed AD would also require related investigative/corrective actions if necessary. This proposed AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are proposing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin
We must receive comments on this proposed AD by February 28, 2008.
You may send comments by any of the following methods:
•
•
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For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You may examine the AD docket on the Internet at
Susan Letcher, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 917-6474; fax (425) 917-6590.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report indicating that several passenger masks with broken in-line flow indicators were found following a mask deployment on a Boeing Model 777-200 series airplane. Operators subsequently found several more broken in-line flow indicators after examining the oxygen mask assemblies on other Model 777 series airplanes and on Model 747-400 series airplanes. Investigation revealed that certain flow indicators are weaker and can fracture because of internal residual stresses caused by the flow indicator joint design and manufacturing processes. Fractures cause the in-line flow indicator to separate and consequently prevent oxygen flow to the mask during an emergency. This condition, if not corrected, could result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event.
The oxygen masks on certain Model 777 airplanes and Model 747-400 series airplanes have the same flow indicators as those installed on certain Model 767-200, -300, and -400ER series airplanes. Therefore, the Model 767-200, -300, and -400ER series airplanes may be subject to the identified unsafe condition.
We have reviewed Boeing Special Attention Service Bulletin 767-35-0054, dated July 6, 2006. The service bulletin describes procedures for a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units and the flight attendant and lavatory oxygen boxes, as applicable. The service bulletin also describes procedures for doing related investigative and corrective actions. The related investigative action is a general visual inspection of the flow indicator to determine the color of the flow direction mark and the word “flow” on the flow indicator, if the identification (ID) label shows that the manufacturer is B/E Aerospace and the manufacture date is between January 1, 2002, and March 1, 2006. The corrective action is the installation of a new oxygen mask having an improved flow indicator, if the existing oxygen mask is found to be one of the discrepant masks.
Boeing Special Attention Service Bulletin 767-35-0054 refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for getting a new oxygen mask having an improved flow indicator. B/E Aerospace Service Bulletin 174080-35-01 describes procedures for modifying the oxygen mask assembly by replacing the flow indicator, part number (P/N) 118023-02, with an improved flow indicator, P/N 118023-12. B/E Aerospace Service Bulletin 174080-35-01 also specifies that, as an alternative to modifying the oxygen mask, operators may replace the oxygen mask with a new oxygen mask having the improved flow indicator.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
Although Boeing Special Attention Service Bulletin 767-35-0054 specifies to install a new oxygen mask having an improved flow indicator, the intent of the service bulletin is to replace it with either a new or modified oxygen mask having an improved flow indicator. Therefore, this proposed AD would require replacing the oxygen mask assembly with a new or modified oxygen mask assembly having an improved flow indicator.
There are about 688 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 242 airplanes of U.S. registry. The proposed actions would take about 53 work hours per airplane, with an average of 360 oxygen masks per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $1,026,080, or $4,240 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 28, 2008.
(b) None.
(c) This AD applies to Boeing Model 767-200, -300, and -400ER series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 767-35-0054, dated July 6, 2006.
(d) This AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 60 months after the effective date of this AD, do a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units and the flight attendant and lavatory oxygen boxes, as applicable, and do the applicable related investigative and corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 767-35-0054, dated July 6, 2006; except where the service bulletin specifies installing a new oxygen mask, replace the oxygen mask with a new or modified oxygen mask having an improved flow indicator. The related investigative and corrective actions must be done before further flight.
The service bulletin refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for modifying the oxygen mask assembly by replacing the flow indicator with an improved flow indicator.
(g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed 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:
Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on [the] ground, the FAA has published Special Federal Aviation Regulation No. 88 (SFAR-88) in June 2001 [which] required [conducting] a design review against explosion risks.
The potential of ignition sources (in certain fuel pumps, fuel switches, refuel shutoff valves, and optical sensors/mechanical switches), in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI.
We must receive comments on this proposed AD by February 13, 2008.
You may send comments by any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: (202) 493-2251.
• Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
• Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1112; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Airworthiness Directive 2007-0248, dated September 7, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
Subsequent to accidents involving Fuel Tank System explosions in flight * * * and on [the] ground, the FAA has published Special Federal Aviation Regulation No. 88 (SFAR-88) in June 2001 [which] required [conducting] a design review against explosion risks.
In their Letters referenced 04/00/02/07/01-L296, dated March 4, 2002 and 04/00/02/07/03-L024, dated February 3, 2003 the JAA (Joint Aviation Authorities) recommended the application of a similar regulation to the National Aviation Authorities (NAA).
Under this regulation, all holders of type certificates for passenger transport aircraft with either a passenger capacity of 30 or more, or a payload capacity of 7,500 pounds (3402 kg) or more, which have received their certification since January 1, 1958, are required to conduct a design review against explosion risks.
As a consequence of the design review mentioned above, this Airworthiness Directive (AD) requires a modification to install extra protection of wiring installed in fuel tank conduits.
The modification includes an inspection for any damage of the wiring to the fuel pumps, fuel level switches, the refuel shut off valves, and optical sensors/mechanical switches, and if any damage is found, contacting SAAB for repair and repair. These fuel pumps, fuel switches, refuel shutoff valves, and optical sensors/mechanical switches are potential ignition sources. You may obtain further information by examining the MCAI in the AD docket.
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
SAAB has issued Service Bulletin 340-28-026, dated July 5, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
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 proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.
Based on the service information, we estimate that this proposed AD would affect about 218 products of U.S. registry. We also estimate that it would take about 80 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,395,200, or $6,400 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 proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by February 13, 2008.
(b) None.
(c) This AD applies to Saab Model SAAB-Fairchild SF340A (SAAB/SF340A) and SAAB 340B airplanes, all serial numbers, certificated in any category.
(d) Air Transport Association (ATA) of America Code 28: Fuel.
(e) The mandatory continuing airworthiness information (MCAI) states:
Subsequent to accidents involving Fuel Tank System explosions in flight *** and on [the] ground, the FAA has published Special Federal Aviation Regulation No. 88 (SFAR-88) in June 2001 [which] required [conducting] a design review against explosion risks.
In their Letters referenced 04/00/02/07/01-L296, dated March 4, 2002 and 04/00/02/07/03-L024, dated February 3, 2003 the JAA (Joint Aviation Authorities) recommended the application of a similar regulation to the National Aviation Authorities (NAA).
Under this regulation, all holders of type certificates for passenger transport aircraft with either a passenger capacity of 30 or more, or a payload capacity of 7,500 pounds (3402 kg) or more, which have received their certification since January 1, 1958, are required to conduct a design review against explosion risks.
As a consequence of the design review mentioned above, this Airworthiness Directive (AD) requires a modification to install extra protection of wiring installed in fuel tank conduits.
The potential of ignition sources (in certain fuel pumps, fuel switches, refuel shutoff valves, and optical sensors/mechanical switches), in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. The modification includes an inspection for any damage of the wiring to the fuel pumps, fuel level switches, the refuel shut off valves, and optical sensors/mechanical switches, and if any damage is found, contacting SAAB for repair.
(f) Within 72 months after the effective date of this AD, unless already done, perform Modification No. 3164 (right-hand wing) and Modification No. 3165 (left-hand wing) in accordance with SAAB Service Bulletin 340-28-026, dated July 5, 2007. The modifications include the following actions.
(1) Removal of the fuel pumps 5QM and 6QM, the fuel switches 31EB, 32EB, 9QA, 10QA, 11QA, and 12QA, and the refuel shutoff valves 15QA and 16QA, and the optical sensors/mechanical switches 13QA and 14QA.
(2) Inspection of the wiring to the fuel pumps, fuel level switches, the refuel shutoff valves, and optical sensors/mechanical
(3) Twisting of the fuel pump wiring, fuel level switches wiring, refuel shutoff valves wiring, and optical sensors/mechanical switches wiring.
(4) Installation of a shrinkable tube to the fuel pumps wiring, fuel level switches wiring, refuel shutoff valves wiring and optical sensors/mechanical switches wiring.
(5) Installation of fuel pumps, the fuel level switches, the refuel shutoff valves, and the optical sensors/mechanical switches.
(6) Operational and functional test of the fuel measuring/indicating system.
This AD differs from the MCAI and/or service information as follows:
(1) The MCAI does not specify corrective action for the inspection specified in paragraph (f)(2) of this AD. This AD requires contacting SAAB for repair instructions and repairing before further flight.
(2) The MCAI does not include actions for optical sensors/mechanical switches 13QA and 14QA; however, paragraph (f) of this AD includes modification of those optical sensors/mechanical switches.
(g) The following provisions also apply to this AD:
(1)
(2)
(3)
(h) Refer to MCAI EASA Airworthiness Directive 2007-0248, dated September 7, 2007, and SAAB Service Bulletin 340-28-026, dated July 5, 2007, for related information.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 757 airplanes. This proposed AD would require an inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units and the lavatory and attendant box assemblies, and corrective action if necessary. This proposed AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are proposing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event.
We must receive comments on this proposed AD by February 28, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207.
You may examine the AD docket on the Internet at
Susan Letcher, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 917-6474; fax (425) 917-6590.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received a report indicating that several passenger masks with broken in-line flow indicators were found following a mask deployment on a Boeing Model 777-200 series airplane. Operators subsequently found several more broken in-line flow indicators after examining the oxygen mask assemblies on other Model 777 series airplanes and on Model 747-400 series airplanes. Investigation revealed that certain flow indicators are weaker and can fracture because of internal residual stresses caused by the flow indicator joint
The oxygen masks on certain Model 777 airplanes and Model 747-400 series airplanes have the same flow indicators as those installed on certain Model 757 airplanes. Therefore, the Model 757 airplanes may be subject to the identified unsafe condition.
We have reviewed Boeing Special Attention Service Bulletin 757-35-0028, dated April 9, 2007. The service bulletin describes procedures for doing a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units (PSUs) and the lavatory and attendant box assemblies. The service bulletin also describes procedures for doing the corrective action if necessary and other specified action. The corrective action is to repair any B/E Aerospace oxygen mask assembly with a manufacturing date after January 1, 2002, and before March 1, 2006. The service bulletin also specifies that as an alternative to doing the repair (rework), the oxygen mask assembly may be replaced with a new oxygen mask.
Boeing Special Attention Service Bulletin 757-35-0028 refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for repairing the oxygen mask assembly. B/E Aerospace Service Bulletin 174080-35-01 describes procedures for modifying the oxygen mask assembly by replacing the flow indicator, part number (P/N) 118023-02, with an improved flow indicator, P/N 118023-12. B/E Aerospace Service Bulletin 174080-35-01 also specifies that, as an alternative to modifying the oxygen mask, operators may replace the oxygen mask with a new oxygen mask having the improved flow indicator.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously.
Although Boeing Special Attention Service Bulletin 757-35-0028 specifies to repair the oxygen mask assembly, the intent of the service bulletin is to replace it with either a new or modified oxygen mask assembly having an improved flow indicator. Therefore, this proposed AD would require replacing the oxygen mask assembly with a new or modified oxygen mask assembly having an improved flow indicator.
There are about 1,035 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 640 airplanes of U.S. registry. The proposed actions would take about 20 work hours per airplane, for an average of 240 oxygen masks per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $1,024,000, or $1,600 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 28, 2008.
(b) None.
(c) This AD applies to Boeing Model 757-200, -200CB, -200PF, and -300 series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 757-35-0028, dated April 9, 2007.
(d) This AD results from a report that several passenger masks with broken in-line flow indicators were found following a mask deployment. We are issuing this AD to prevent the in-line flow indicators of the passenger oxygen masks from fracturing and separating, which could inhibit oxygen flow to the masks and consequently result in exposure of the passengers and cabin attendants to hypoxia following a depressurization event.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 60 months after the effective date of this AD, do a general visual inspection to determine the manufacturer and manufacture date of the oxygen masks in the passenger service units and the lavatory and attendant box assemblies, and do the applicable corrective action, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 757-35-0028, dated April 9, 2007; except where the service bulletin specifies repairing the oxygen mask assembly, replace it with a new or modified oxygen mask assembly having an improved flow indicator. The corrective action and other specified action must be done before further flight.
The service bulletin refers to B/E Aerospace Service Bulletin 174080-35-01, dated February 6, 2006; and Revision 1, dated May 1, 2006; as additional sources of service information for modifying the oxygen mask assembly by replacing the flow indicator with an improved flow indicator.
(g)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede two existing airworthiness directives (ADs). One existing AD applies to certain Airbus Model A310 series airplanes and requires repetitive inspections for cracking of the flap transmission shafts, and replacing the transmission shafts if necessary. That existing AD also provides an optional terminating action for the repetitive inspections. The other existing AD applies to all Airbus Model A310 and A300-600 series airplanes and requires a one-time inspection of the trimmable horizontal stabilizer actuator (THSA), corrective actions if necessary, and follow-on repetitive tasks. This proposed AD would require revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations and maintenance tasks for aging systems maintenance. This proposed AD results from the manufacturer's determination that life limitations and maintenance tasks are necessary in order to ensure continued operational safety of the affected airplanes. We are proposing this AD to prevent reduced structural integrity of these airplanes due to the failure of system components.
We must receive comments on this proposed AD by February 13, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You may examine the AD docket on the Internet at
Tom Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1622; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 8, 2006, we issued AD 2006-10-11, amendment 39-14595 (71 FR 28254, May 16, 2006), for certain Airbus Model A310 series airplanes. That AD requires repetitive inspections for cracking of the flap transmission shafts, and replacing the transmission shafts if necessary. That AD also provides an optional terminating action for the repetitive inspections. That AD resulted from reports of longitudinal cracks due to stress corrosion in the transmission
On July 14, 2006, we issued AD 2006-15-10, amendment 39-14690 (71 FR 42021, July 25, 2006), for all Airbus Model A310 and A300-600 series airplanes and requires a one-time inspection of the trimmable horizontal stabilizer actuator (THSA), corrective actions if necessary, and follow-on repetitive tasks. That AD resulted from reports of THSAs that have reached their design operational life. We issued that AD to extend the operational life of the THSA to prevent a possible failure of high-time THSAs, which could result in reduced controllability of the airplane.
Since we issued ADs 2006-10-11 and 2006-15-10, the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on all Airbus Model A310 and A300-600 series airplanes. The EASA advises that Airbus has issued aging system maintenance limitations and maintenance tasks to address airplane systems that operate beyond their original limits, which could result in increased potential for failure of these systems and consequent reduced structural integrity of these airplanes.
Airbus has issued A300-600 ALS—Airworthiness Limitations Section, and A310 ALS—Airworthiness Limitations Section, both dated May 31, 2006, which are a repository for stand-alone documents that are approved independently from each other. The Airbus ALSs comprises the following documents:
Airbus A310 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006, and A300-600 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006, describe aging system maintenance limitations and maintenance tasks.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued airworthiness directive 2007-0092, dated April 10, 2007, to ensure the continued airworthiness of these airplanes in the European Union.
These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States.
This proposed AD would supersede ADs 2006-10-11 and 2006-15-10 and would retain the requirements of the existing ADs. This proposed AD would also require revising the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate new limitations and maintenance tasks for aging systems maintenance. Doing an inspection in accordance with the ALS revision would terminate the requirements of the existing ADs.
We have revised the applicability of the existing ADs to identify model designations as published in the most recent type certificate data sheet for the affected models.
The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by removing amendment 39-14595 (71 FR 28254, May 16, 2006) and amendment 39-14690 (71 FR 42021, July 25, 2006) and adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 13, 2008.
(b) This AD supersedes AD 2006-10-11 and AD 2006-15-10.
(c) This AD applies to all Airbus Model A310 series airplanes and A300-600 series airplanes, certificated in any category.
This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (r) of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. The FAA has provided guidance for this determination in Advisory Circular (AC) 25-1529-1.
(d) This AD results from the manufacturer's determination that life limitations and maintenance tasks are necessary in order to ensure continued operational safety of the affected airplanes. We are issuing this AD to prevent reduced structural integrity of these airplanes due to the failure of system components.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) For Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes, except for airplanes on which Airbus Modification 12247 has been embodied in production: At the earlier of the compliance times specified in paragraph (f)(1) or (f)(2) of this AD, perform a detailed inspection for stress corrosion cracking of the flight transmission shafts located between the power control unit (PCU) and the torque limiters in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-27-2092, Revision 02, dated April 11, 2005. Thereafter, repeat the inspections as required by paragraph (g) of this AD. Before further flight, replace any cracked transmission shaft discovered during any inspection required by this AD with a new or reconditioned shaft, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-27-2095, dated March 29, 2000. Doing an inspection in accordance with paragraph (o) or (p) of this AD terminates the requirements of this paragraph.
(1) Within 2,000 flight hours after the last flap asymmetry protection test performed in accordance with Airbus A310 Maintenance Planning Document (MPD) Task 275600-01-1.
(2) Within 8,000 flight cycles after the last flap asymmetry protection test performed in accordance with Airbus A310 MPD Task 275600-02-1 or 800 flight cycles after June 20, 2006 (the effective date of AD 2006-10-11), whichever comes later.
Airbus Service Bulletin A310-27-2092, Revision 02, dated April 11, 2005, refers to Lucas Liebherr Service Bulletin 551A-27-624, Revision 1, dated August 18, 2000, as an additional source of service information for accomplishing the inspections.
Airbus Service Bulletin A310-27-2092, Revision 02, refers to Airbus Service Bulletin A310-27-2095, dated March 29, 2000, as a source of service information for replacing the flap transmission shafts.
Airbus Service Bulletin A310-27-2095 refers to Lucas Liebherr Service Bulletin 551A-27-M551-05, dated January 12, 2000, as an additional source of service information for replacing the flap transmission shafts.
(g) Repeat the inspection required by paragraph (f) of this AD at the applicable times specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD. Doing an inspection in accordance with paragraph (o) or (p) of this AD terminates the requirements of this paragraph.
(1) Before further flight after any occurrence of jamming of the flap transmission system.
(2) At intervals not to exceed 2,000 flight hours after each flap asymmetry protection test performed in accordance with Airbus A310 MPD Task 275600-01-1.
(3) At intervals not to exceed 8,000 flight cycles after each flap asymmetry protection test performed in accordance with Airbus A310 MPD Task 275600-02-1.
(h) Replacing any flap transmission shaft with a new or reconditioned transmission shaft in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-27-2095, dated March 29, 2000, ends the inspections required by paragraphs (f) and (g) of this AD for that transmission shaft only.
(i) Actions performed in accordance with Airbus Service Bulletin A310-27-2092, dated April 9, 1999; or Revision 01, dated December 11, 2001; are considered acceptable for compliance with the corresponding requirements of paragraphs (f) and (g) of this AD.
(j) Although Airbus Service Bulletin A310-27-2092, Revision 02, dated April 11, 2005, specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(k) Unless otherwise specified in this AD, the term “service bulletin,” as used in paragraphs (l), (m), and (n) of this AD, means the applicable required service bulletin identified in Table 1 of this AD. The service bulletins refer to Goodrich Actuation Systems Service Bulletin 47142-27-11, Revision 3, dated April 25, 2005, as an additional source of service information for the required actions.
(l) At the applicable time specified in paragraph (l)(1) or (l)(2) of this AD, do a detailed inspection of specified components of the THSA in accordance with paragraph 1.E.(2)(a) and the Accomplishment Instructions of the applicable service bulletin. Repair any discrepancy before further flight in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent). TRW Aeronautical Systems/Lucas Aerospace Component Maintenance Manual 27-44-13, dated September 14, 2001, is one acceptable method for the repair. Doing an inspection in accordance with paragraph (o) or (p) of this AD terminates the requirements of this paragraph.
(1) If the flight hours accumulated on the THSA can be positively determined: Inspect at the earlier of:
(i) Before the accumulation of 47,000 total flight hours on the THSA, or within 600 flight hours after August 29, 2006 (the effective date of AD 2006-15-10), whichever occurs later.
(ii) Within 25 years since the THSA was new or within 600 flight hours after August 29, 2006, whichever occurs later.
(2) If the flight hours accumulated on the THSA cannot be positively determined: Inspect before the accumulation of 47,000 total flight hours on the airplane, or within 600 flight hours after August 29, 2006, whichever occurs later.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(m) After the inspection required by paragraph (l) of this AD: Do the repetitive tasks in accordance with the Accomplishment Instructions and at the times specified in paragraph 1.E.(2)(b) of the service bulletin, as applicable, except as provided by paragraph (n) of this AD. The repetitive tasks are valid only until the THSA operational life exceeds 65,000 flight hours, 40,000 flight cycles, or 25 years, whichever occurs first. Before the THSA is operated beyond these extended life goals, it must be replaced with a new THSA, except as required by paragraph (n) of this AD. Doing an inspection in accordance with paragraph (o) or (p) of this AD terminates the requirements of this paragraph.
(n) For any THSA, whether discrepant or not, that is replaced with a new THSA: Within 47,000 flight hours or 25 years, whichever occurs first, after the THSA is replaced, do the applicable tasks specified in paragraph 1.E.(2)(a) and the Accomplishment Instructions of the applicable service bulletin. Thereafter repeat the tasks within the repetitive intervals specified in paragraph 1.E.(2)(b) of the applicable service bulletin. Doing the corresponding tasks in accordance with paragraph (o) or (p) of this AD terminates the requirements of this paragraph.
(o) Within 3 months after the effective date of this AD, revise the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate Airbus A310 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006; and A300-600 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006; as applicable. For all tasks identified in Airbus A310 ALS Part 4—Aging Systems Maintenance, Revision 01; and A300-600 ALS Part 4—Aging Systems Maintenance, Revision 01; the initial compliance times start from the effective date of this AD, except as provided by paragraph (p) of this AD. The repetitive inspections must be accomplished thereafter at the interval specified in Airbus A310 ALS Part 4—Aging Systems Maintenance, Revision 01; and A300-600 ALS Part 4—Aging Systems Maintenance, Revision 01.
(p) For airplanes on which any life limitation/maintenance task has been complied with in accordance with the requirements of AD 2006-10-11 or AD 2006-15-10, the last accomplishment of each limitation/task must be retained as a starting point for the accomplishment of each corresponding limitation/task interval now introduced in Airbus A310 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006; and A300-600 ALS Part 4—Aging Systems Maintenance, Revision 01, dated December 21, 2006; as applicable.
(q) Except as provided by paragraph (r) of this AD: After accomplishing the actions specified in paragraphs (o) and (p) of this AD, no alternative inspection, inspection intervals, or limitations may be used.
(r)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
(3) AMOCs approved previously in accordance with AD 2006-10-11 are not approved as AMOCs with this AD.
(4) AMOCs approved previously in accordance with AD 2006-15-10 are not approved as AMOCs with this AD.
(s) EASA airworthiness directive 2007-0092, dated April 10, 2007, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede an existing airworthiness directive (AD) that applies to certain Airbus Model A318, A319, A320, and A321 airplanes. The existing AD currently requires repetitive inspections for cracking in the forward lug of the support rib 5 fitting of both main landing gear (MLG), and repair if necessary. The existing AD also provides optional terminating actions for certain airplanes, as well as other optional methods for complying with the inspection requirements of the existing AD. This proposed AD would continue to require repetitive inspections for cracking in the forward lug of the support rib 5 fitting of the left and right MLG at new repetitive intervals in accordance with new service information, and repair or replacement of any cracked MLG fitting if necessary. This proposed AD would also require modification of the rib bushings of the left and right MLG, which would end the repetitive inspections. This proposed AD results from cracks found in the forward lug of the MLG support rib 5 fitting. We are proposing this AD to prevent cracking in the forward lug of the MLG, which could result in failure of the lug and consequent collapse of the MLG during takeoff or landing.
We must receive comments on this proposed AD by February 13, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France.
You may examine the AD docket on the Internet at
Tim Dulin, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2141; fax (425) 227-1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On May 15, 2006, we issued AD 2006-11-04, amendment 39-14608 (71 FR 29578, May 23, 2006), for certain Airbus Model A318, A319, A320, and A321 airplanes. AD 2006-11-04 requires repetitive detailed inspections for cracking in the forward lug of the support rib 5 fitting of both main landing gear (MLG), and repair if necessary. AD 2006-11-04 also provides optional terminating actions for certain airplanes, as well as other optional methods for complying with the inspection requirements of the existing AD. That AD resulted from a new crack that was found in the forward lug of the MLG support rib 5 fitting. We issued that AD to detect and correct cracking in the forward lug of the MLG, which could result in failure of the lug and consequent collapse of the MLG during takeoff or landing.
Since we issued AD 2006-11-04, the European Aviation Safety Agency (EASA), which is the technical agent for the Member States of the European Union, notified us that the repetitive inspection intervals must be adjusted and that the optional terminating action, which would end the repetitive inspections, must be mandated for all airplanes. In the preamble to AD 2006-11-04, we indicated that the actions required by that AD were considered “interim action,” and that we were considering further rulemaking to require the modification of the lugs of the support rib 5 fitting of both MLG, which would terminate the repetitive inspections required by AD 2006-11-04. We have now determined that further rulemaking action is indeed necessary, and this proposed AD follows from that determination.
Airbus has issued Service Bulletin A320-57-1138, Revision 01, dated October 27, 2006. The service bulletin describes procedures for (1) doing repetitive visual inspections or repetitive ultrasonic inspections for cracking in the forward lug of the support rib 5 fitting of the left and right MLG, (2) doing repetitive visual inspections for cracking in the forward lug of the support rib 5 fitting if any cracking is found during an ultrasonic inspection, and (3) contacting the manufacturer for instructions if any cracking is found during a visual inspection. The service bulletin also specifies that accomplishing Airbus Service Bulletin A320-57-1118 eliminates the need for the repetitive inspections.
Airbus has also issued Service Bulletin A320-57-1118, Revision 03, dated April 23, 2007. The service bulletin describes procedures for modifying the rib bushings of the left and right MLG. The modification includes removing the existing bushings, doing a visual inspection for corrosion and damage to the bores and spotfaces, repairing any corrosion or damage found during the detailed inspection, and installing new improved bushings and applying a certain protective sealant to the bores and spotfaces of the lugs for the pintle-pin bushings of gear rib 5. Accomplishing the modification eliminates the need for the repetitive inspections specified in Airbus Service Bulletin A320-57-1138.
Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued airworthiness directive 2007-0213, dated August 7, 2007, to ensure the continued airworthiness of these airplanes in the European Union.
These airplanes are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States.
This proposed AD would supersede AD 2006-11-04 and would retain the requirements of the existing AD, until the new inspections have been initiated. This proposed AD would also require accomplishing the actions specified in service information described previously, except as discussed under “Differences between Proposed AD and Service Bulletin.”
Although EASA airworthiness directive 2007-0213 specifies repeating the inspections at the intervals defined in Airbus Service Bulletin A320-57-1138, the intent is to require the repetitive inspections at those intervals, or before further flight after a hard landing, whichever is first. We have coordinated this difference with the EASA.
EASA airworthiness directive 2007-0213 and Airbus Service Bulletin A320-57-1138 permit further flight if cracking is found during the ultrasonic inspection but is not detected by a visual inspection. This proposed AD, however, would require repair or replacement of any cracked MLG fitting before further flight. We have determined that because of the safety implications and consequences associated with cracking in the subject area, the MLG fitting must be repaired or replaced before further flight regardless of how the crack is detected. We note that cracking found during the ultrasonic inspection may be repaired with oversized bushings, whereas cracking detected during the visual inspection would require extensive repair or replacement of the MLG fitting.
Airbus Service Bulletin A320-57-1138 specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions using a method approved by the FAA or the EASA (or its delegated agent). In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair approved by the FAA or the EASA would be acceptable for compliance with this proposed AD.
This proposed AD would affect about 466 airplanes of U.S. registry.
The actions that are required by AD 2006-11-04 and retained in this proposed AD take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $160 per airplane, per inspection cycle.
The new proposed inspections would take between 3 and 4 work hours per airplane, depending on the type of inspection accomplished, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new inspections specified in this proposed AD for U.S. operators is between $111,840 and $149,120, or between $240 and $320 per airplane, per inspection cycle.
The new proposed modification would take about 73 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost $3,850 per airplane. Based on these figures, the estimated cost of the new modification specified in this proposed AD for U.S. operators is $4,515,540, or $9,690 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by removing amendment 39-14608 (71 FR 29578, May 23, 2006) and adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 13, 2008.
(b) This AD supersedes AD 2006-11-04.
(c) This AD applies to Airbus Model A318, A319, A320, and A321 airplanes, certificated in any category, except airplanes on which
(d) This AD results from cracks found in the forward lug of the main landing gear (MLG) support rib 5 fitting. We are issuing this AD to prevent cracking in the forward lug of the MLG, which could result in failure of the lug and consequent collapse of the MLG during takeoff or landing.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 8 days after June 7, 2006 (the effective date of AD 2006-11-04), or before further flight after a hard landing, whichever is first: Perform a detailed inspection for cracking in the forward lug of the support rib 5 fitting of the left- and right-hand MLG, and, if any crack is found, replace the MLG fitting with a new fitting before further flight, in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent). Accomplishing the actions specified in the Airbus A318/A319/A320/A321 Nondestructive Testing Manual, Chapter 51-90-00, revision dated February 1, 2003, is one approved method for performing the detailed inspection. Repeat the inspection thereafter at intervals not to exceed 8 days, or before further flight after a hard landing, whichever is first. As of the effective date of this AD, the repetitive inspections required by paragraph (i) of this AD must be accomplished in lieu of the repetitive inspections required by this paragraph.
For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(g) Performing an ultrasonic inspection for cracking in the forward lug of the support rib 5 fitting of the left- and right-hand MLG in accordance with a method approved by the Manager, International Branch, ANM-116; or the EASA (or its delegated agent); is an acceptable alternative method of compliance for the initial and repetitive inspections required by paragraph (f) of this AD. Doing the actions specified in the A318/A319/A320/A321 Nondestructive Testing Manual, Chapter 57-29-03, revision dated February 1, 2005 (for Model A318, A319, and A320 airplanes), or Chapter 57-29-04, revision dated May 1, 2005 (for Model A321 airplanes), as applicable, is one approved method for performing the ultrasonic inspection.
(h) For Model A319, A320, and A321 airplanes: Repair of the forward lugs of the support rib 5 fitting of the left- and right-hand MLG in accordance with a method approved by the Manager, International Branch, ANM-116; or the EASA (or its delegated agent); constitutes terminating action for the requirements of this AD. Doing the repair in accordance with Airbus A319 Structural Repair Manual (SRM), Chapter 5.C., 57-26-13, revision dated November 1, 2004; Airbus A320 SRM, Chapter 5.D., 57-26-13, revision dated November 1, 2004; or Airbus A321 SRM, Chapter 5.D., 57-26-13, revision dated February 1, 2005; as applicable; is one approved method.
(i) At the applicable time specified in Table 1 of this AD, or before further flight after a hard landing, whichever is first: Do a visual inspection or ultrasonic inspection for cracking in the forward lug of the support rib 5 fitting of the left and right MLG, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1138, Revision 01, dated October 27, 2006. Repeat the inspection thereafter at the applicable interval specified in Table 1 of this AD or before further flight after a hard landing, whichever is first, until the modification required by paragraph (k) of this AD has been accomplished. Accomplishing the initial inspection terminates the requirements of paragraph (f) of this AD.
(j) If any cracking is found during any inspection required by paragraph (i) of this AD: Before further flight, repair or replace the cracked MLG fitting using a method approved by either the Manager, International Branch, ANM-116, or the EASA (or its delegated agent).
(k) Within 60 months after the effective date of this AD, modify the rib bushings of the left and right MLG, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1118, Revision 03, dated April 23, 2007. Accomplishing the modification terminates the requirements of this AD.
(l) For Model A319, A320, and A321 airplanes, modifying the lugs of the support rib 5 fitting of the left and right MLG is acceptable for compliance with the requirements of paragraph (k) of this AD if done before the effective date of this AD in accordance with one of the following service bulletins: Airbus Service Bulletin A320-57-1118, dated September 5, 2002; Revision 01, dated August 28, 2003; or Revision 02, dated August 2, 2006.
(m)(1) The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested in
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
(3) AMOCs approved previously in accordance with AD 2006-11-04 are approved as AMOCs for the corresponding provisions of this AD.
(n) EASA airworthiness directive 2007-0213, dated August 7, 2007, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Boeing Model 727-200 series airplanes. This proposed AD would require deactivation of auxiliary fuel tank systems installed in accordance with Supplemental Type Certificate (STC) SA1350NM. This proposed AD results from fuel tank system reviews conducted by the manufacturer that identified potential unsafe conditions for which the manufacturer has not provided corrective actions. We are proposing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
We must receive comments on this proposed AD by February 28, 2008.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Jeff Janusz, Aerospace Engineer, Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4148; fax (316) 946-4107.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC) design approval) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to design approval holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
The auxiliary fuel tank system STC consists of two fuel tank systems, a forward tank system consisting of 5 cells and an aft tank system consisting of 3 cells. Each cell or individual tank is of a double wall cylindrical design. All auxiliary fuel tank system tanks are emptied and vented into the airplane center wing tank using bleed air pressure supplied from the No. 1 (left hand) engine. All auxiliary fuel tank system tanks use some type of electrical fuel quantity indication system (FQIS), flight deck control and annunciation panels, bleed air pressure regulators, vents, bleed air, and transfer valves, pressure switches, float level switches, and associated electrical wiring connections and electrical bonding methods.
During the SFAR 88 safety assessment, it was determined that the auxiliary fuel tank system FQIS requires wire separation or other means to preclude any adjacent high power wires from shorting or inducing high electrical energy levels into the auxiliary fuel tank system or airplane fuel tank system. Additionally, the auxiliary fuel tank system fuel transfer valves were not previously tested or shown to be intrinsically safe from producing electrical arcing or explosion hazards while in the presence of fuel vapors; therefore, re-certification or relocation of these valves are mandated. Finally, STC SA1350NM has been categorized by the FAA as being a high flammability exposure installation, based on the internal fuselage location of the auxiliary fuel tank system. A means to insure low flammability exposure or to mitigate the effects of high flammability exposure time is mandated.
DTAA, Inc., has not provided the service information required under SFAR 88 that would correct these conditions; therefore, we must mandate the deactivation of all DTAA, Inc., auxiliary fuel tank systems installed in accordance with STC SA1350NM.
If operators do not wish to deactivate their auxiliary fuel tanks, we will consider requests for alternative methods of compliance (AMOCs).
Once an operator has deactivated the tank as required by this AD, the operator might wish to remove the tank. This would require a separate design approval, if an approved tank removal procedure does not exist.
We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For this reason, we are proposing this AD, which would require deactivation to prevent usage of the auxiliary fuel tank system installed in accordance with STC SA1350NM.
In most ADs, we adopt a compliance time allowing a specified amount of time after the AD's effective date. In this case, however, the FAA has already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this proposed AD, we are using this same compliance date in this proposed AD.
The following table provides the estimated costs for the 25 U.S.-registered airplanes to comply with this proposed AD. Based on these figures, the estimated costs for U.S. operators could be as high as $162,000 to prepare and report the deactivation procedures, and $90,000 to deactivate the tank.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by February 28, 2008.
(b) None.
(c) This AD applies to Boeing Model 727-200 series airplanes, certificated in any category and equipped with an auxiliary fuel tank system installed in accordance with Supplemental Type Certificate SA1350NM.
(d) This AD results from fuel tank system reviews conducted by the manufacturer. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 45 days after the effective date of this AD, submit a report to the Manager, Wichita Aircraft Certification Office (ACO), FAA. The report must include the information listed in paragraphs (f)(1) and (f)(2) of this AD. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501,
(1) The airplane registration and serial number.
(2) The usage frequency in terms of total number of flights per year and total number of flights per year for which the auxiliary fuel tank system is used.
(g) On or before December 16, 2008, deactivate the auxiliary fuel tank system, in accordance with a deactivation procedure approved by the Manager of the Wichita ACO. Any auxiliary fuel tank system component that remains on the airplane must be secured and must have no effect on the continued operational safety and airworthiness of the airplane. Deactivation may not result in the need for additional Instructions for Continued Airworthiness (ICA).
Appendix A of this AD provides criteria that must be included in the deactivation procedure. The proposed deactivation procedures should be submitted to the Wichita ACO as soon as possible to ensure timely review and approval, prior to implementation.
For technical information, contact Steve Forness, DTAA, Inc., 101 Deer Meadow Court, St. Charles, Missouri 63304, (636) 928-9606, fax (314) 749-7513.
(h)(1) The Manager, Wichita ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
The auxiliary fuel tank system deactivation procedure required by paragraph (g) of this AD should address the following actions.
(1) Permanently drain the auxiliary fuel tank system tanks, and clear them of fuel vapors to eliminate the possibility of out-gassing of fuel vapors from the emptied auxiliary tank.
(2) Disconnect all auxiliary fuel tank system electrical connections from the fuel quantity indication system (FQIS), float, pressure and transfer valves and switches, and all other electrical connections required for auxiliary fuel tank system operation, and stow them at the auxiliary fuel tank interface.
(3) Disconnect all auxiliary fuel tank system bleed-air connections, cap them at the bleed air source, and secure them.
(4) Disconnect all auxiliary fuel tank system fuel supply and fuel vent plumbing interfaces with airplane original equipment manufacturer (OEM) fuel tanks, cap them at the airplane tank side, and secure them. All disconnected auxiliary fuel tank system vent systems must not alter the OEM fuel tank vent system configuration or performance. All empty auxiliary fuel tank system tanks must be vented to eliminate the possibility of structural deformation during cabin decompression. The configuration must not permit the introduction of fuel vapor into any compartments of the airplane.
(5) Pull and collar all circuit breakers used to operate the auxiliary fuel tank system.
(6) Revise the weight and balance document, if required, and obtain FAA approval.
(7) Amend the applicable sections of the applicable Airplane Flight Manual (AFM) to indicate that the auxiliary fuel tank system is deactivated. Remove auxiliary fuel tank system operating procedures to ensure that only the OEM fuel system operational procedures are contained in the AFM. Amend the Limitations Section of the AFM to indicate that the AFM Supplement for the STC is not in effect. Place a placard in the flight deck indicating that the auxiliary fuel tank system is deactivated. The AFM revisions specified in this paragraph may be accomplished by inserting a copy of this AD into the AFM.
(8) Amend the applicable sections of the applicable airplane maintenance manual to remove auxiliary fuel tank system maintenance procedures.
(9) After the auxiliary fuel tank system is deactivated, accomplish procedures such as leak checks, pressure checks, and functional checks deemed necessary before returning the airplane to service. These procedures must include verification that the basic airplane OEM FQIS, fuel distribution, and fuel venting systems function properly and have not been adversely affected by deactivation of the auxiliary fuel tank system.
(10) Include with the proposed deactivation procedures any relevant information or additional steps that are deemed necessary by the operator to comply with the deactivation of the auxiliary fuel tank system and return of the airplane to service.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, and MD-10-10F airplanes. This proposed AD would require repetitive inspections for the presence of stray nickel or chrome plating deposits on the air filler valve bore of certain main landing gear (MLG) shock strut cylinders, and if necessary, related investigative and corrective actions. Doing the corrective action would terminate the repetitive inspections. This proposed AD results from a report of a left MLG collapse
We must receive comments on this proposed AD by February 28, 2008.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024).
You may examine the AD docket on the Internet at
Maureen Moreland, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5238; fax (562) 627-5210.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We received a report that one McDonnell Douglas Model MD-10-10 airplane experienced a left main landing gear (MLG) collapse during landing rollout, which was caused by combined fatigue and stress corrosion cracking failure of the MLG shock strut cylinder assembly. Metallurgical analysis has determined that the origin of the fracture was located in the bore of the air filler valve port located on the aft side of the MLG cylinder. The primary crack initiation point was in an area of stray nickel plating deposits on the bore. A secondary origination of the crack was initiated from a shallow corrosion pit located at the opposite side of the bore to the primary initiation point. Stray nickel or chrome plating deposits, corrosion, or cracking in the air filler valve bore of the MLG cylinder, if not corrected, could result in landing gear failure, significant damage to the airplane, and injury to personnel.
We have reviewed Boeing Alert Service Bulletin DC10-32A259, dated October 30, 2007. The service bulletin describes procedures for repetitive video probe inspections to detect the presence of stray nickel or chrome plating deposits on the air filler valve bore of certain main landing gear (MLG) shock strut cylinders, and if necessary, related investigative and corrective actions. The related investigative actions include a video probe inspection for corrosion of the air filler valve bore in the MLG shock strut cylinder and an eddy current inspection for cracking of the air filler valve bore. The corrective actions include repair of the air filler valve bore of the MLG shock strut cylinder, removal of corrosion, and replacement of the MLG cylinder. The service bulletin specifies that doing the repair or replacement ends the repetitive inspections for that MLG shock strut cylinder only.
We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously.
We estimate that this proposed AD would affect 75 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.
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
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), and
3. 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.
You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by February 28, 2008.
(b) None.
(c) This AD applies to McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-15, and MD-10-10F airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin DC10-32A259, dated October 30, 2007.
(d) This AD results from a report of a left main landing gear (MLG) collapse during landing rollout. We are issuing this AD to detect and correct stray nickel and chrome plating deposits, corrosion, and cracking of the air filler valve bore on the MLG cylinder, which could result in landing gear failure, significant damage to the airplane, and injury to personnel.
(e) Comply with this AD within the compliance times specified, unless already done.
(f) At the applicable time specified in paragraph (f)(1), (f)(2), or (f)(3) of this AD, do a video probe inspection for the presence of stray nickel or chrome plating deposits on the air filler valve bore of the MLG shock strut cylinders, and before further flight, do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin DC10-32A259, dated October 30, 2007. Repeat the video probe inspection thereafter at intervals not to exceed 2,400 flight cycles or 20 months, whichever occurs first. Accomplishment of the repair specified in Part 2 of the Accomplishment Instructions of the service bulletin or the replacement specified in Part 3 of the Accomplishment Instructions of the service bulletin terminates the repetitive inspections for that MLG shock strut cylinder.
(1) For passenger airplanes: Within 24 months after the effective date of this AD.
(2) For freighter airplanes with MLG cylinders that have accumulated fewer than 7,200 flight cycles in a freighter configuration as of the effective date of this AD: Within 24 months after the effective date of this AD.
(3) For freighter airplanes with MLG cylinders that have accumulated 7,200 flight cycles or more in a freighter configuration as of the effective date of this AD: Within 6 months after the effective date of this AD.
(g) As of the effective date of this AD, no person may install a MLG shock strut cylinder assembly, part number ARG7002-1, -501, -503, or -505, on any airplane, unless the air filler valve bore hole has been oversized and closing action has been accomplished in accordance with Boeing Alert Service Bulletin DC10-32A259, dated October 30, 2007, and the MLG shock strut cylinder assembly has been permanently identified with part number SB10320259-3 adjacent to the existing ARG7002 part number.
(h)(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, ATTN: Maureen Moreland, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5238; fax (562) 627-5210; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2) To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. 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.
Architectural and Transportation Barriers Compliance Board.
Notice of meeting.
The Architectural and Transportation Barriers Compliance Board (Access Board) has established an advisory committee to make recommendations for possible revisions to the Americans with Disabilities Act (ADA) and Architectural Barriers Act (ABA) Accessibility Guidelines to include provisions for emergency transportable housing. This notice announces the dates, time, and location of the next committee meeting.
The meeting is scheduled for January 24 and 25, 2008 from 10 a.m. to 5 p.m. on January 24 and from 9 a.m. to 5 p.m. on January 25.
The meeting will be held at the Access Board's offices, 1331 F Street, NW., Suite 1000, Washington, DC.
Marsha Mazz, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., Suite 1000, Washington, DC 20004-1111. Telephone number (202) 272-0020 (Voice); (202) 272-0082 (TTY). These are not toll-free numbers. E-mail address:
On August 23, 2007, the Architectural and Transportation Barriers Compliance
Committee meetings are open to the public and interested persons can attend the meetings and communicate their views. Members of the public will have opportunities to address the committee on issues of interest to them during public comment periods scheduled on each day of the meeting. Additionally, all interested persons will have the opportunity to comment when proposed rules regarding emergency transportable housing accessibility are issued in the
The meeting site is accessible to individuals with disabilities. Individuals who require sign language interpreters, real-time captioning, or materials in alternate formats should contact Marsha Mazz by January 17. Also, persons wishing to provide handouts or other written information to the committee are requested to provide electronic format to Marsha Mazz preferably via e-mail so that alternate formats such as large print can be distributed to committee members. Persons attending the meeting are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants.
Architectural and Transportation Barriers Compliance Board.
Notice of meeting.
The Architectural and Transportation Barriers Compliance Board (Access Board) has established an advisory committee to make recommendations on issues related to the effectiveness of emergency alarm systems for individuals with hearing loss or deafness on passenger vessels. This notice announces the dates, time, and location of the next committee meeting.
The meeting is scheduled for February 12 and 13, 2008 from 9 a.m. to 5 p.m. on both days.
The meeting will be held at the Access Board's offices, 1331 F Street, NW., Suite 100, Washington, DC.
Paul Beatty, Office of Technical and Information Services, Architectural and Transportation Barriers Compliance Board, 1331 F Street, NW., Suite 1000, Washington, DC 20004-1111. Telephone number (202) 272-0012 (Voice); (202) 272-0082 (TTY). These are not toll-free numbers. E-mail address:
On August 13, 2007, the Architectural and Transportation Barriers Compliance Board (Access Board) established an advisory committee to make recommendations on issues related to the effectiveness of emergency alarm systems for individuals with hearing loss or deafness on passenger vessels. (72 FR 45200; August 13, 2007). The next meeting of the committee will take place on February 12 and 13, 2008. The preliminary meeting agenda, along with information about the committee, is available at the Access Board's Web site (
Committee meetings are open to the public and interested persons can attend the meetings and communicate their views. Members of the public will have opportunities to address the committee on issues of interest to them during public comment periods scheduled on each day of the meeting. Additionally, all interested persons will have the opportunity to comment when proposed rules regarding passenger vessel accessibility are issued in the
The meeting site is accessible to individuals with disabilities. Sign language interpreters, an assistive listening system, and computer assisted real-time transcription (CART) will be provided. Persons attending the meeting are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the State of West Virginia for the purpose of amending the 8-hour ozone maintenance plan for the Charleston area. This revision amends the maintenance plans' 2009 and 2018 motor vehicle emissions budgets (MVEBs) by reallocating a portion of the plans' safety margins which results in an increase in the MVEBs. In the Final Rules section of this
Comments must be received in writing by February 13, 2008.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1010 by one of the following methods:
A.
B. E-mail:
C. Mail: EPA-R03-OAR-2007-1010, Carol Febbo, Chief, Energy, Radiation and Indoor Environment Branch, Mailcode 3AP23, U.S. Environmental
D. Hand Delivery: At the previously-listed EPA Region III 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.
Martin Kotsch, (215) 814-3335, or by e-mail at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia for the purpose of establishing the Fredericksburg 8-Hour Ozone Nonattainment Area (Spotsylvania County, Stafford County, and Fredericksburg City) and the Shenandoah National Park 8-Hour Ozone Nonattainment Area (portions of the park located in Page and Madison Counties) movement from the nonattainment area list to the maintenance area list. In the Final Rules section of this
Comments must be received in writing by February 13, 2008.
Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-1149 by one of the following methods:
A.
B.
C.
D.
Melissa Linden, (215) 814-2096, or by e-mail at
For further information, please see the information provided in the direct final action, Approval of Virginia's Revision to move the Fredericksburg and the Shenandoah National Park 8-Hour Ozone Areas from the list of Nonattainment Areas to the list of Maintenance Areas that is located in the “Rules and Regulations” section of this
Federal Communications Commission.
Proposed rule.
This document requests comments on a petition for rulemaking filed by George S. Flinn, Jr., requesting the allotment of Channel 267A at Linden, Tennessee to prevent removal of Linden's first potential local service. The reference coordinates for Channel 267A at Linden, Tennessee, are 35-39-45 NL and 87-44-25 WL.
Comments must be filed on or before February 11, 2008, and reply comments on or before February 28, 2008.
Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner as follows: Stephen C. Simpson, Esq., c/o George S. Flinn, Jr., Law Office of Stephen C. Simpson, 1250 Connecticut Avenue, NW., Suite 200, Washington, DC 20036.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 07-280, adopted December 19, 2007, and released December 21, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via e-mail
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Forest Service, USDA.
Notice; Request for Comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension with revision of a currently approved information collection, Perceptions of Risk, Trust, Responsibility, and Management Preferences among Fire-Prone Communities in the Western United States.
Comments must be received in writing on or before March 14, 2008 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Patricia L. Winter, Pacific Southwest Research Station, Forest Service, U.S. Department of Agriculture, 4955 Canyon Crest Drive, Riverside, CA 92507.
Comments also may be submitted via facsimile to 951-680-1501 or by e-mail to:
The public may inspect comments received at Building One Reception, 4955 Canyon Crest Drive, Riverside, CA 92507, during normal business hours. Visitors are encouraged to call ahead to (951) 680-1500 to facilitate entry to the building.
Patricia L. Winter, Pacific Southwest Research Station, Forest Service, U.S. Department of Agriculture, 951-680-1557. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
Forest Service and university researchers will contact community residents within or adjacent to national forests in the Western United States. Through those contacts, researchers will evaluate concerns about fire and fire risk; knowledge about fire; values focused on fire management; trust, objectives, and alternatives for fire management; personal experiences with fire; stressors associated with fire and fire risk; responsibility and accomplishments for fire management; sources of concern about fire; future orientation; and socio-demographics.
The results will help researchers improve the ability to provide information to natural resource managers on public perceptions of fire and fire management. To gather the information, residents within, or adjacent to, national forests in the Western United States will be contacted through mailed or e-mail correspondence or by telephone inviting their participation in a focus group study. Willing or interested parties will contact the researcher and be scheduled into sessions in their community. Those agreeing to participate will be involved in a focus group discussion and complete a self-administered survey.
A Forest Service researcher and analyst/technicians will collect and analyze the information with the assistance of a cooperating university researcher. Both researchers are experts in applied social psychology and survey research.
Participants will first complete a questionnaire focused on the individual's concern about fire, knowledge about fire, values similarity with the Forest Service, trust, objectives for fire management, personal experience with fire, stressors of fire and fire risk, responsibility for risk reduction, accomplishment of risk reduction, sources of concern about fire, future orientation, and sociodemographics. Participants (age 18 or older) residing in the selected communities are then invited via mail, e-mail, or telephone to participate in a discussion on the following topics: objectives, values, and concerns in fire management; alternatives for accomplishing objectives; values/goals and trust; and information needs and interests. When possible, multiple sessions will be held in each community to accommodate as many participants as are interested. Responses will be voluntary and anonymous.
Responses will be used to evaluate the values linked to fire and fire management among forest community residents, personal experiences with fire and how participants have addressed fire risk, perceived responsibility and accomplishments in addressing fire risk, and personal characteristics that might influence these responses. The data collected will assist researchers in determining public perception and expectations regarding fire management and risk, as well as providing information on how residents address these issues. Such data is valuable to forest resource managers, who use the information when selecting long and short-term fire management strategies, and in developing public information strategies on fire and fire management.
Without this information, managers will have to rely on the scant information otherwise available on current and changing public views regarding fire and fire management, and the anecdotal information collected through direct experiences with the public regarding impacts of fire and fire risk. The intent is to share the collected data with other researchers studying fire management, and other natural resource management values and objectives.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Forest Service, USDA.
Notice of meeting.
The Ravalli County Resource Advisory Committee will be meeting with presenter on Bitterroot Composite Lumber Company and to hold a short public forum, along with voting for new chairperson. The meeting is being held pursuant to the authorities in the Federal Advisory Committee Act (Public Law 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 Pub. L. 106-393). The meeting is open to the public.
The meeting will be held on January 22, 2008, 6:30 p.m.
The meeting will be held at the Bitterroot National Forest, 1801 N First, Hamilton, MT. Send written comments to Daniel Ritter, District Ranger, Stevensville Ranger District, 88 Main Street, Stevensville, MT 59870, by facsimile (406) 777-7423, or electronically to
Daniel Ritter, Stevensville District Ranger and Designated Federal Officer, Phone: (406) 777-5461.
On October 26, 2007, an application was filed by the Executive Secretary of the Foreign-Trade Zones (FTZ) Board submitted by the South Carolina State Ports Authority, grantee of FTZ 38, requesting temporary/interim manufacturing (T/IM) authority on behalf of Kittel Supplier USA, Inc., to assemble automotive roof/luggage racks under FTZ procedures within FTZ 38 Site 3, Duncan, South Carolina.
The application has been processed in accordance with T/IM procedures, as authorized by FTZ Board Orders 1347 (69 FR 52857, 8-30-2004) and 1480 (71 FR 55422, 9-22-2006), including notice in the
Import Administration, International Trade Administration, Department of Commerce.
January 14, 2008.
Sean Carey or Gene Calvert, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 482-3964 and (202) 482-3586, respectively.
On November 28, 2007, the Department of Commerce (the Department) initiated the countervailing duty investigation of sodium nitrite from the People's Republic of China (PRC).
On January 4, 2008, petitioner submitted a letter requesting that the Department postpone the preliminary determination of the countervailing duty investigation of sodium nitrite from the PRC. Under section 703(c)(1)(A) of the Tariff Act of 1930, as amended (the Act), the Department may extend the deadline for the preliminary determination in a countervailing duty investigation until not later than the 130th day after the date on which the administering authority initiates an investigation if the petitioner makes a timely request for an extension of the period within which the determination must be made under section 703(b) of the Act. Pursuant to section 351.205(e) of the Department's regulations, the petitioner's request for postponement of the preliminary determination was made 25 days or more before the scheduled date of the preliminary determination. Accordingly, we are extending the due date for the preliminary determination by 65 days to no later than April 6, 2008. Because April 6, 2008 is a Sunday, the
This notice is issued and published pursuant to section 703(c)(2) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on hand trucks and certain parts thereof (“hand trucks”) from the People's Republic of China (“PRC”) covering the period December 1, 2005, through November 30, 2006. We have preliminarily determined that sales have been made below normal value (“NV”) by one exporter participating in the review. We have also preliminarily rescinded the review for five exporters that did not have any exports during the period of review (“POR”) or whose request for review was timely withdrawn. We have also preliminarily determined that two companies have not demonstrated that they are entitled to separate rates and have assigned them the rate for the PRC-wide entity. If these preliminary results are adopted in the final results of these reviews, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries.
Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.
(January 14, 2008.
Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4474.
On December 1, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on hand trucks from the PRC.
On January 3, 2007, the Department received a request to conduct an administrative review from Since Hardware, an exporter of subject merchandise from the PRC. On February 2, 2007, the Department published in the
On March 1, 2007, the Department issued quantity and value (“Q&V”) questionnaires along with separate rate applications and certifications to Forecarry, Formost, Future Tool, Huatian, Shandong Machinery, Since Hardware, True Potential, and Taifa requesting each party's quantity (
On March 15, 2007, Since Hardware withdrew its request for an administrative review within the time limits specified under 19 CFR 351.213(d)(1).
On June 21, 2007, the Department determined that it was not practicable to examine individually all of the companies covered by the 2005-2006 administrative review, and thus it limited its examination to the largest producers/exporters that could reasonably be reviewed, pursuant to section 777A(c)(2)(B) of the Act. Therefore, on this date the Department selected Taifa as the sole respondent required to submit a full questionnaire response in the administrative review (
On June 22, 2007, we issued the antidumping duty questionnaire to Taifa. We received separate-rate certifications from Taifa and True Potential. On July 13, 2007, we received Taifa's responses to section A of the Department's original questionnaire. On August 14, 2007, we received Taifa's response to sections C and D of the Department's original questionnaire. On
On October 4, 2007, the Department invited interested parties to comment on surrogate country selection and to provide publicly available information for valuing the factors of production (“FOPs”). On October 31, 2007, Petitioners provided comments on surrogate country selection.
On August 31, 2007, the Department issued a
The POR covers December 1, 2005, through November 30, 2006.
The product covered by this order consists of hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof.
A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.
That the vertical frame can be converted from a vertical setting to a horizontal setting, then operated in that horizontal setting as a platform, is not a basis for exclusion of the hand truck from the scope of this petition. That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the petition. That other wheels may be connected to the vertical frame, handling area, projecting edges, or other parts of the hand truck, in addition to the two or more wheels located at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition. Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition.
Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley. They are typically imported under heading 8716.80.50.10 of the
Excluded from the scope are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular material measuring less than 5/8 inch in diameter; hand trucks that use motorized operations either to move the hand truck from one location to the next or to assist in the lifting of items placed on the hand truck; vertical carriers designed specifically to transport golf bags; and wheels and tires used in the manufacture of hand trucks.
Pursuant to 19 CFR 351.213(d)(1), the Secretary must rescind an administrative review if a party requesting a review withdraws the request within 90 days of the date of publication of the notice of initiation. As noted above, on March 15, 2007, Since Hardware timely withdrew its request for an administrative review. However, because Petitioners did not withdraw their review request with respect to Since Hardware, we are not rescinding the review for Since Hardware based on its withdrawal of its request for review. Also, on May 3, 2007, Petitioners withdrew their request for an administrative review with respect to Huatian, Taifa, and True Potential, in accordance with 19 CFR 351.213(d)(1). Because no other interested party requested a review of Huatian or True Potential, in accordance with 19 CFR 351.213(d)(1) and consistent with our practice, we are rescinding the administrative review of these companies for the POR.
On March 15, 2007, Since Hardware responded to the Department's Q&V questionnaire stating it had no POR shipments to the United States. On June 27, 2007, Petitioners submitted comments arguing that Since Hardware incorrectly stated that it exported no subject merchandise to the United States during the POR. Petitioners based their argument on the Department's new shipper verification report of Since Hardware from the 2004-2005 new shipper review.
Further, record evidence indicates that Formost, Forecarry, and Since Hardware did not have any exports of subject merchandise during the POR.
In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority.
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV on the NME producer's FOPs. The Act further instructs that valuation of the FOPs shall be based on the best available information in a surrogate market economy country or countries considered to be appropriate by the Department.
The Department first determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development.
On October 4, 2007, the Department issued a request for parties to submit comments on surrogate country selection. On October 31, 2007, Petitioners submitted comments regarding the selection of a surrogate country.
On December 10, 2007, the Department issued its surrogate country memorandum in which we addressed the parties' comments.
Therefore, we have selected India as the surrogate country and, accordingly, have calculated NV using Indian prices to value the respondents' FOPs, when available and appropriate. We have obtained and relied upon publicly available information wherever possible.
Section 776(a)(1) and (2) of the Act provides that the Department shall apply “facts otherwise available” if,
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
On March 1, 2007, we issued Q&V Questionnaires along with separate-rate applications and certifications to Future Tool and Shandong Machinery, and requested a response by March 15, 2007.
The Department issued a letter to all respondents identified in the
Additionally, because we have determined that the companies named above are part of the PRC-wide entity, the PRC-wide entity is now under review. Pursuant to section 776(a) of the Act, we further find that because the PRC-wide entity (including the companies discussed above) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC-wide entity using the facts otherwise available on the record.
According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available.
Both Future Tool and Shandong Machinery were notified in the Department's questionnaires that failure to submit the requested information by the date specified might result in the use of facts available. Generally, it is reasonable to assume that the PRC-wide entity (including Shandong Machinery and Future Tool) possessed the records necessary for this administrative review and that, by not supplying the information the Department requested, these companies failed to cooperate to the best of their ability. In addition, none of the companies in this review argued that it was incapable of providing the information the Department requested, or requested that the Department modify its reporting requirements in accordance with 782(c)(1) of the Act. Accordingly, because the PRC-wide entity (including Future Tool and Shandong Machinery) failed to respond to the Department's requests for information, we preliminarily find that the PRC-wide entity has not acted to the best of its ability in this proceeding, within the meaning of section 776(b) of the Act. Therefore, an adverse inference is warranted in selecting from the facts otherwise available.
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from: 1) the petition; 2) a final determination in the investigation; 3) any previous review or determination; or 4) any information placed on the record. In reviews, the Department normally selects as AFA the highest rate determined for any respondent in any segment of the proceeding.
Section 776(c) of the Act provides that when the Department relies on the facts otherwise available and on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The SAA states that “corroborate” means to determine that the information used has probative value.
We are applying as AFA the highest rate from any segment of this administrative proceeding, which is the rate currently applicable to all exporters subject to the PRC-wide rate. The information upon which the AFA rate is based in the current review (
With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in
Because the rate is both reliable and relevant, it has probative value. Accordingly, we determine that the highest rate determined in any segment of this administrative proceeding (
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. Taifa has provided company-specific information and has certified that it meets the standards for the assignment of a separate rate.
We have considered whether Taifa is eligible for a separate rate. The Department's separate-rate test to determine whether the exporters are independent from government control does not consider, in general, macroeconomic/border-type controls,
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
The Department considers the following
On June 22, 2007, we received Taifa's separate-rate certification. Our analysis shows that, for Taifa, the evidence on the record supports a preliminary finding of
Through previous cases, the Department has learned that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC.
We determine that, for Taifa, the evidence on the record supports a preliminary finding of
On December 7, 2007, Petitioners put on the record certain evidence that Petitioners claimed demonstrated that the PRC government owns a majority of shares in Taifa and that Taifa is therefore subject to government control and ineligible for a separate rate.
To determine whether sales of the subject merchandise by Taifa to the United States were made at prices below
For Taifa, we used EP methodology in accordance with section 772(a) of the Act for sales in which the subject merchandise was first sold prior to importation by the exporter outside the United States directly to an unaffiliated purchaser in the United States and for sales in which constructed export price was not otherwise indicated.
For Taifa, we calculated EP based on delivered prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sales price for movement expenses in accordance with section 772(c)(2)(A) of the Act. These included foreign inland freight, foreign brokerage and handling expenses, marine insurance. For a detailed description of all adjustments,
Section 773(c)(1) of the Act provides that the Department shall determine NV using an FOPs methodology if: (1) the merchandise is exported from an NME country; and (2) the information does not permit the calculation of NV using home market prices, third country prices, or constructed value under section 773(a) of the Act. When determining NV in an NME context, the Department will base NV on FOPs because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. Under section 773(c)(3) of the Act, FOPs include but are not limited to: (1) hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. We used FOPs reported by respondents for materials, energy, labor and packing.
In accordance with 19 CFR 351.408(c)(1), the Department will normally use publicly available information to find an appropriate SV to value FOPs, but when a producer sources an input from a market economy and pays for it in market-economy currency, the Department will normally value the factor using the actual price paid for the input.
It is the Department's consistent practice that, where the facts developed in the United States or third country countervailing duty findings include the existence of subsidies that appear to be used generally (in particular, broadly available, non-industry-specific export subsidies), it is reasonable for the Department to find that it has particular and objective evidence to support a reason to believe or suspect that prices of the inputs from the country granting the subsidies may be subsidized.
In avoiding the use of prices that may be subsidized, the Department does not conduct a formal investigation to ensure that such prices are not subsidized, but rather relies on information that is generally available at the time of its determination.
In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by respondents for the POR. To calculate NV, we multiplied the reported per unit factor consumption quantities by publicly available Indian SVs (except as noted below). In selecting the SVs, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import SVs a surrogate freight cost using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate (
During the POR, Taifa purchased all or a portion of certain inputs from a market economy supplier and paid for the inputs in a market economy currency. The Department has instituted a rebuttable presumption that market economy input prices are the best available information for valuing an input when the total volume of the input purchased from all market economy sources during the period of investigation or review exceeds 33 percent of the total volume of the input purchased from all sources during the period. In these cases, unless case-specific facts provide adequate grounds to rebut the Department's presumption, the Department will use the weighted-average market economy purchase price to value the input. Alternatively, when the volume of an NME firm's purchases of an input from market economy suppliers during the period is below 33 percent of its total volume of purchases of the input during the period, but where these purchases are otherwise valid and there is no reason to disregard the prices, the Department will weight-average the weighted-average market economy purchase price with an appropriate SV according to their respective shares of the total volume of purchases, unless case-specific facts provide adequate grounds to rebut the presumption. When a firm has made market economy input purchases that may have been dumped or subsidized, are not
We used contemporaneous import data from the World Trade Atlas online (“Indian Import Statistics”), published by the Directorate General of Commercial Intelligence and Statistics, Ministry of Commerce of India, to calculate SVs for the reported FOPs purchased from NME sources. Where data appeared to be aberrational within selected HTS values, we removed the aberrational data from the calculation of these selected HTS values. Among the FOPs for which we calculated SVs using Indian Import Statistics are brightening agents, carbon dioxide, cast aluminum, dye, epoxy resin, hot-rolled steel plate, nitric acid, phosphoric acid, steel rod, zinc ingots, and zinc powder. For a complete listing of all the inputs and the valuation for each mandatory respondent
Where we could not obtain publicly available information contemporaneous with the POR with which to value FOPs, we adjusted the SVs using, where appropriate, the Indian Wholesale Price Index (“WP”) as published in the International Financial Statistics of the International Monetary Fund.
For direct labor, indirect labor, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's website, Import Library, Expected Wages of Selected NME Countries, revised in January 2007, http://ia.ita.doc.gov/wages/04wages/04wages-010907.html. The source of these wage-rate data is the Yearbook of Labour Statistics 2006, ILO (Geneva: 2006), Chapter 5B: Wages in Manufacturing. The years of the reported wage rates range from 2004 and 2005. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by the respondent.
To value electricity, we used data from the International Energy Agency (“IEA”)
To calculate the value for domestic brokerage and handling, the Department used information available to it contained in the public version of two questionnaire responses placed on the record of separate proceedings. The first source was December 2003-November 2004 data contained in the public version of Essar Steel's February 28, 2005, questionnaire submitted in the antidumping duty administrative review of hot-rolled carbon steel flat products from India.
To value international freight, the Department obtained generally publicly available price quotes from Maersk Sealand at http://www.maersksealand.com/HomePage/appmanager/, a market-economy provider of international freight services.
The Department valued steam coal using the 2003/2004 Tata Energy Research Institute's Energy Data Directory & Yearbook (“TERI Data”). The Department was able to determine, through its examination of the 2003/2004 TERI Data, that: a) the annual TERI Data publication is complete and comprehensive because it covers all sales of all types of coal made by Coal India Limited and its subsidiaries, and b) the annual TERI Data publication prices are exclusive of duties and taxes. Because the value was not contemporaneous with the POR, the Department adjusted the rate for inflation.
We used Indian transport information in order to value the freight-in cost of the raw materials. The Department determined the best available information for valuing truck and rail freight to be from www.infreight.com. This source provides daily rates from six major points of origin to five destinations in India during the POR. The Department obtained a price quote on the first day of each month of the POR from each point of origin to each destination and averaged the data accordingly.
To value factory overhead, selling, general, and administrative expenses (“SG&A”), and profit, we used the audited financial statements for the fiscal year ending March 31, 2005, from the following producer: Rexello Castors Pvt. Ltd., which is an Indian producer of comparable merchandise. From this information, we were able to determine factory overhead as a percentage of the total raw materials, labor and energy (“ML&E”) costs; SG&A as a percentage of ML&E plus overhead (
We valued diesel oil using data obtained from the IEA
Finally, Taifa reported that it generated certain other by-products as a result of the production of hand trucks. We valued aluminum and steel scrap using Indian import statistics as published by the
We preliminarily determine that the following margins exist during the period December 1, 2005, through November 30, 2006:
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of publication of these preliminary results.
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer- or customer-specific
We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer- or customer-specific assessment rate calculated in the final results of this review is above
For entries of the subject merchandise during the POR from companies not subject to this review, we will instruct CBP to liquidate them at the cash deposit rate in effect at the time of entry. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) for Taifa, which has a separate rate, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Import Administration, International Trade Administration, Department of Commerce.
January 14, 2008.
Maryanne Burke or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5604 or (202) 482-0649, respectively.
On August 6, 2007, the Department of Commerce
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Tariff Act), requires the Department to issue the final results of an administrative review within 120 days after the date on which the preliminary results were published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Tariff Act allows the Department to extend the time limit for the final results up to 180 days from the date of publication of the preliminary results.
The Department finds that it is not practicable to complete this review within the original time frame due to additional analysis that must be performed with respect to certain adjustments made to the cost of production. Furthermore, our post-preliminary results cost verification forced an extension of the briefing schedule for parties' comments and rebuttals. Consequently, and in accordance with section 751(a)(3)(A) of the Tariff Act and 19 CFR 351.213(h)(2), the Department is further extending the time period for issuing the final results of review to 180 days after the publication of the preliminary results. Therefore, the final results will be due no later than February 2, 2008.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Availability.
NMFS has completed a draft Programmatic Environmental Assessment (PEA) on the Issuance of Endangered Species Act Permits for Scientific Research on Endangered and Threatened Sea Turtles in the North Atlantic Ocean, Caribbean Sea, and Gulf of Mexico.
Written, telefaxed, or e-mail comments must be received on or before February 13, 2008.
The PEA is available for review upon written request or by appointment in the following office:
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521;
Written comments should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, at the above address.
Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.
Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is
Patrick Opay, Amy Hapeman, or Kate Swails, (301)713-2289.
NMFS has authority, delegated from the Secretary of Commerce, to issue permits for research and enhancement activities under Section 10(a)(1)(A) of the Endangered Species Act (ESA; 16 U.S.C. 1531
NMFS is required by the National Environmental Policy Act (NEPA) and 40 CFR 1508.27 to consider the significance of the effects of authorizing research activities on listed species of sea turtles (proposed action). The action being considered in this PEA was analyzed as a whole, by effects on affected interests, and by short- and long-term effects. Additionally, the severity of the impacts was analyzed.
NMFS is proposing to more efficently complete its review and issuance process for ESA section 10(a)(1)(A) scientific research permits and permit modifications on sea turtle species in the North Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. To date, NMFS analyzes each proposed permit action through separate EAs, one for each permit application. The preferred alternative would allow NMFS to more efficently analyze the potential collective environmental impact of research activities over the next five years.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR Workshops for South Atlantic and Gulf of Mexico king mackerel.
The SEDAR assessments of the South Atlantic and Gulf of Mexico stocks of king mackerel will consist of a series of three workshops: a Data Workshop, an Assessment Workshop, and a Review Workshop. This is the sixteenth SEDAR. See
The Data Workshop will take place February 11-15, 2008; the Assessment Workshop will take place
The Data Workshop will be held at the Holiday Inn Airport Charleston, 5264 International Blvd., North Charleston, SC 29418, telephone: (843) 576-0300. The Assessment Workshop will be held at the Grand Bay Hotel, 2669 South Bayshore Drive, Miami, FL 33133, telephone: (305) -858-9600. The Review Workshop will be held at the Hyatt Regency Riverfront, 225 Coast Line Drive East, Jacksonville, FL 32202, telephone: (904) 588-1234.
Julie Neer, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366.
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR includes three workshops: (1) Data Workshop, (2) Stock Assessment Workshop and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Stock Assessment Workshop is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Consensus Summary documenting Panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
An assessment data set and associated documentation will be developed during the Data Workshop. Participants will evaluate all available data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery dependent and fishery independent measures of stock abundance.
Using datasets provided by the Data Workshop, participants will develop population models to evaluate stock status, estimate population benchmarks and Sustainable Fisheries Act criteria, and project future conditions. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters. Participants will prepare a workshop report, compare and contrast various assessment approaches, and determine whether the assessments are adequate for submission to the review panel.
The Review Workshop is an independent peer review of the assessment developed during the Data and Assessment Workshops. Workshop Panelists will review the assessment and document their comments and recommendations in a Consensus Summary.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of availability.
The final revised management plan for the Florida Keys National Marine Sanctuary (FKNMS) has been approved and is now available. The plan is the result of a multi-year management plan review at the FKNMS that included extensive public, as well as state, local and other federal agency involvement. The plan is available for download on the Web site:
The final revised management plan is available to the public on January 11, 2008.
Leigh Espy, Florida Keys National Marine Sanctuary, 33 East Quay Rd., Key West, Florida 33040; (305) 292-0311;
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council (Council), its Mid-Atlantic Bycatch Committee, its Research Set-Aside Committee, its Ecosystems Committee, its Protected Resources Committee, its Executive Committee, and its Surfclam/Ocean Quahog Committee, will hold public meetings.
The meetings will be held Tuesday, January 29, 2008 through Thursday, January 31, 2008. See
The meetings will be held at the Hampton Roads Convention Center, 1610 Coliseum Drive, Hampton, VA 23666; telephone: (888) 484-4722.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 674-2331, ext. 19.
The Council will convene at 9 a.m. and conclude approximately at 1 p.m.
Agenda items by day for the Council's committees and the Council itself are:
The Bycatch Committee will review the use of circle hooks in various fisheries, review hook manufacturing survey results, review use of buoy gear to reduce bycatch, and address the bycatch consequence of highgrading. The RSA Committee will discuss alternative approaches to reviewing project final results and incorporating them into the management process; discuss restructuring the RSA program to a “Cooperative Agreement” instead of traditional “Grant”; and, discuss development of a Mid-Atlantic Consortium similar to the Northeast Consortium. The Ecosystems Committee will receive an EPA report on National Coastal Condition, and receive and discuss the Magnuson-Stevens Act (MSA) Ecosystem Workshop report.
The Protected Resources Committee will receive a report on Harbor Porpoise Take Reduction Team activities, and receive a status update on the Atlantic Large Whale Take Reduction Program. The Executive Committee will review the outcome from the most recent Council Coordination Committee meeting and review the proposed changes to the Council's Statement of Organization, Practices and Procedures (SOPP) regarding the Scientific and Statistical Committee (SSC). The Surfclam/Ocean Quahog Committee will consider issues/actions to be addressed in Amendment 14 to the Surfclam and Ocean Quahog FMP. The Council will convene to receive a presentation regarding marine debris and the results of the most recent NEAMAP Trawl Survey. A Public Hearing regarding Amendment 1 to the Tilefish Fishery Management Plan will be held in the evening.
The Council will convene at 9 a.m. and remain in session until approximately 1 p.m. to receive various reports.
Although non-emergency issues not contained in this agenda may come before the Council for discussion, these issues may not be the subject of formal Council action during these meetings. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final actions to address such emergencies.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan, (302) 674-2331 ext. 18, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public hearings.
The Mid-Atlantic Fishery Management Council will hold public hearings to allow for input on Amendment 1 to the Fishery Management Plan (FMP) for the Tilefish Fishery.
The hearings will be held on Wednesday, January 30, 2008 through Wednesday, February 6, 2008. See
Send comments to: Daniel T. Furlong, Executive Director of the Mid-Atlantic Fishery Management Council, Suite 2115 Federal Building, 300 South New Street, Dover, DE 19904; fax: (302) 674-5399; e-mail: info@mafmc.org. Please indicate the subject as Tilefish 1.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19904; telephone: (302) 674-2331 ext. 19.
The purpose of the hearings is to receive public input on management actions under consideration in Amendment 1 to the Tilefish FMP. There are 19 proposed
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All hearings begin at 7 p.m. and will be tape recorded with the tapes filed as the official transcript of the hearing.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Bryan at the Mid-Atlantic Council Office, (302) 674-2331 ext. 18, at least 5 days prior to the meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Joint Canada-U.S. Review Panel for Pacific hake/whiting will hold a work session which is open to the public.
The Joint Canada-U.S. Review Panel will meet beginning at 8.30 a.m., Monday, February 11, 2008 and will continue through Thursday, February 14, 2008. The meetings will end at 5:30 p.m. each day or until business for each day is completed.
The Joint Canada-U.S. Review Panel for Pacific hake/ whiting will be held at the Hotel Deca, 4507 Brooklyn Avenue N.E., Seattle WA 98105; telephone: 1-800-899-0251.
Ms. Stacey Miller, NMFS Northwest Fisheries Science Center; telephone: (206) 437-5670; or Mr. John DeVore, Pacific Fishery Management Council; telephone: (503) 820-2280.
The purpose of the Joint Canada-U.S. Review Panel for Pacific hake/whiting is to review draft 2008 stock assessment documents and any other pertinent information for Pacific whiting, work with the Stock Assessment Team to make necessary revisions, and produce a Joint Canada-U.S. Review Panel report for use by the Council family and other interested persons for developing management recommendations for 2008 fisheries. No management actions will be decided by the Panel. The Panel's role will be development of recommendations and reports for consideration by the Council at its March meeting in Sacramento, CA.
Although non-emergency issues not contained in the meeting agenda may come before the Panel participants for discussion, those issues may not be the subject of formal Joint Canada-U.S. Review Panel action during this meeting. Panel 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 Panel participants' 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.
Department of Defense.
Notice.
Pursuant to section 10(a), Public Law 92-463, as amended, notice is hereby given of a forthcoming meeting of the Defense Department Advisory Committee on Women in the Services (DACOWITS). The purpose of the Committee meeting is to deliberate on the 2007 findings and recommendations, brief the 2007 report, and discuss the Committee's 2008 agenda. The meeting is open to the public, subject to the availability of space.
Interested persons may submit a written statement for consideration by the Defense Department Advisory Committee on Women in the Services. Individuals submitting a written statement must submit their statement to the Point of Contact listed below at the address detailed below NLT 5 p.m., Friday, 25 January 2008. If a written statement is not received by Friday, 25 January 2008 prior to the meeting, which is the subject of this notice, then it may not be provided to or considered
MSgt Robert Bowling, USAF, DACOWITS, 4000 Defense Pentagon, Room 2C548A, Washington, DC 20301-4000.
Meeting agenda.
Welcome & Administrative Remarks.
Deliberate on findings and vote on recommendations.
Public Forum.
Welcome & Administrative Remarks.
Receive briefings:
Recruiting, Retention, and Promotion Status of Active Duty Women in the Armed Forces.
Status of Forces Reserve Component Spouses 2006 Survey.
Status of Force Active Duty Spouses.
Meeting/Briefing with Dr. Chu and Mr. Dominguez.
Discuss mission, goals, and topics for 2008.
Discuss timeline and installations to visit in 2008.
Exact order may vary.
Department of the Navy, DoD.
Notice to amend a system of records.
The Department of the Navy is amending a system of records notice in its existing inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on February 13, 2008 unless comments are received which result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (DNS-36), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545.
The Department of the Navy systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the record system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
Navy Ombudsman Registry (February 3, 2007, 72 FR 5022).
Delete “Navy” and replace with “Family”.
Delete entry and replace with “Individuals who have volunteered to serve as Navy family ombudsmen in the Navy Family Ombudsmen Program.”
Delete entry and replace with “10 U.S.C. 5013, Secretary of the Navy and OPNAVINST 1750.1 Series, Navy Family Ombudsmen Program.”
In line 1, after the word “Navy”, add “family”.
Delete entry and replace with “Networked databases.”
In line 1, delete “ombudsmen” and replace with “ombudsman”.
Navy Family Ombudsman Registry.
Fleet and Family Support Program, Navy Installations Command, 2713 Mitscher Road SW., Ste. 300, Anacostia Annex, DC 20373-5802.
Individuals who have volunteered to serve as Navy family ombudsmen in the Navy Family Ombudsmen Program.
Name, addresses (home, business, and e-mail, phone numbers (home, office,
10 U.S.C. 5013, Secretary of the Navy and OPNAVINST 1750.1 Series, Navy Family Ombudsmen Program.
To identify Navy family ombudsmen; provide them with program information; collect program statistics and workload data; and maintain record of program training received.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Networked databases.
Name and organization.
Password controlled system. Access limited to program coordinators, commanding officers and/or their appointed representatives.
Destroy when ombudsman resigns from position or is replaced.
Director, Family Readiness Programs, Navy Installations Command, 2713 Mitscher Road SW., Ste. 300, Anacostia Annex, DC 20373-5802.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Director, Family Readiness Programs, Navy Installations Command, 2713 Mitscher Road SW., Ste. 300, Anacostia Annex, DC 20373-5802.
The request should include full name and should be signed.
Individuals seeking access to information about themselves contained in this system of records should address written inquiries to the Director, Family Readiness Programs, Navy Installations Command, 2713 Mitscher Road SW., Ste. 300, Anacostia Annex, DC 20373-5802.
The request should include full name and should be signed.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Individual and commanding officer and/or their appointed representative.
None.
Delaware River Basin Commission.
Notice.
Notice is hereby given that the methodology, including data sets, to be used in developing the 2008 Delaware River and Bay Integrated List Water Quality Assessment is available for review and comment.
Comments must be received by close of business on January 28, 2008.
Comments will be accepted via e-mail to
Mr. John Yagecic, Supervisor, Standards and Assessment Section, DRBC Modeling, Monitoring and Assessment Branch, via e-mail to
The Delaware River Basin Commission (“DRBC” or “Commission”) is an interstate and federal compact agency that was created in 1961 by concurrent legislation of the States of Delaware, New Jersey, and New York, the Commonwealth of Pennsylvania and the United States Government for purpose of jointly managing the water resources of the Delaware River Basin.
DRBC currently is compiling data for the 2008 Delaware River and Bay Integrated List Water Quality Assessment (“2008 Assessment”) required by the federal Clean Water Act (CWA). The 2008 Assessment will report the extent to which waters of the Delaware River and Bay are attaining designated uses in accordance with Section 305(b) of the CWA and will identify impaired waters, which consist of waters that do not meet surface water quality standards.
The assessment methodology to be used to develop the 2008 Assessment will closely track the methodology used for the most recent assessment, completed in 2006. The 2006 assessment is available for review at
In the 2008 Assessment DRBC proposes to reduce the number of assessment units from the number used in 2006 by consolidating the units into DRBC's Water Quality Management Zones 1A, 1B, 1C, 1D, 1E, 2, 3, 4, and 5, the boundaries of which are defined in DRBC's Water Quality Regulations (18 CFR Part 410), available on the Web at
Office of Elementary and Secondary Education, Department of Education.
Notice of proposed priority.
The Assistant Secretary for Elementary and Secondary Education proposes a priority under the Jacob K.
We must receive your comments on or before February 13, 2008.
Address all comments about this proposed priority to Teresa Cahalan, U.S. Department of Education, 400 Maryland Avenue, SW., Room 5W218, Washington, DC 20202-6200. If you prefer to send your comments through the Internet, use the following address:
You must include the term “Comments on FY 2008 Javits Priority” in the subject line of your electronic message.
Teresa Cahalan. Telephone: (202) 401-3947.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
We invite you to submit comments regarding this proposed priority.
We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public comments about this proposed priority in Room 5W218, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this proposed priority. If you want to schedule an appointment for this type of aid, please contact the person listed under
The purpose of the Jacob K. Javits Gifted and Talented Students Education Program is to carry out a coordinated program of scientifically based research, demonstration projects, innovative strategies, and similar activities designed to build and enhance the ability of elementary schools and secondary schools nationwide to meet the special educational needs of gifted and talented students.
Consistent with section 5465(a)(2) of the Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 7253), this proposed priority focuses on the implementation and evaluation of projects that expand interventions that identify and serve gifted and talented students who are economically disadvantaged or limited English proficient, or who have disabilities, and who may not be identified and served through typical strategies for identifying gifted children. Specifically, the priority focuses on the expansion of these projects to multiple settings and for different student populations.
In 2007, 32 percent of all 4th grade public school students scored at or above the proficient level in reading on the National Assessment of Educational Progress, compared to only 17 percent of students who are eligible for free or reduced price lunch under the National School Lunch program (i.e., students who are economically disadvantaged), 13 percent of students with disabilities, and 7 percent of students with limited English proficiency. Students from these three groups are significantly underrepresented at or above proficient levels on the 8th grade reading and 4th and 8th grade mathematics assessments.
Since its creation in 1989, the Jacob K. Javits Gifted and Talented Students Education Program has supported over 125 small-scale model projects and intervention strategies, some of which have produced statistically significant increases in student academic achievement on standardized tests. In order to have a national impact with the limited funds available for new awards under this program, the goal of this priority is to expand upon, field-test, and evaluate research-based interventions that have shown evidence of success in increasing the number of economically disadvantaged, limited English proficient, or disabled students performing at high levels of academic achievement.
Based on our experience with previous grants, we have found that successful projects require demonstrated expertise in the following areas: Education research and program evaluation, one or more of the core academic subject areas (English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography), the needs of disadvantaged or other underrepresented students, and gifted and talented education.
We will announce the final priority in a notice in the
This notice does
Under this proposed priority, grantees must “scale up” and evaluate models designed to increase the number of students from underrepresented groups who, through gifted and talented education programs, perform at high levels of academic achievement.
For this priority, “scaling up” means to expand a program with demonstrated effectiveness at one level (such as a school or other educational setting, student population, grade level, or academic subject area) for use in broader settings or with different populations. With regard to this priority, underrepresented groups refer to the following three groups of students: Economically disadvantaged individuals, individuals with limited English proficiency, and individuals with disabilities.
To meet this priority, applicants must include all of the following in their applications:
(1) Evidence from one or more scientifically based research and evaluation studies indicating that the proposed intervention has raised the achievement of students from one or more underrepresented groups in one or more core subject areas.
(2) Evidence from one or more scientifically based research and evaluation studies that the proposed intervention has resulted in increased numbers of students from underrepresented groups who are prepared to participate in gifted and talented education programs.
(3) Evidence that the applicant has significant expertise on its leadership team in each of the following areas: Research and program evaluation, content knowledge in one or more core academic subject areas, working with underrepresented groups, and gifted and talented education.
(4) A sound plan for implementing the model in multiple settings or with multiple populations.
(5) A research and evaluation plan that employs an experimental or quasi-experimental design to measure the impact of the intervention on the achievement of students who are economically disadvantaged or limited English proficient, or who have disabilities, and on the number of these students who are prepared to participate in gifted and talented education programs.
Evaluation methods using an experimental design are best for determining the effectiveness of interventions. Thus, when feasible, the project must use an experimental design under which participants (
If random assignment is not feasible, the project may use a quasi-experimental design with carefully matched comparison conditions. This alternative design attempts to approximate a randomly assigned control group by matching participants with non-participants having similar pre-intervention characteristics.
This notice of proposed priority has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the notice of proposed priority are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of proposed priority, we have determined that the benefits of the proposed priority justify the costs.
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
20 U.S.C. 7253.
Department of Education.
List of Correspondence from July 1, 2007 through September 30, 2007.
The Secretary is publishing the following list pursuant to section 607(f) of the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). Under section 607(f) of IDEA, the Secretary is required, on a quarterly basis, to publish in the
Melisande Lee or JoLeta Reynolds. Telephone: (202) 245-7468.
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of this notice in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact persons listed under
The following list identifies correspondence from the Department issued from July 1, 2007 through September 30, 2007. Included on the list are those letters that contain interpretations of the requirements of IDEA and its implementing regulations, as well as
○ Letter dated September 11, 2007 to individual (personally identifiable information redacted), regarding how a local educational agency (LEA) may address the needs of a child with a neurological impairment.
○ Letter dated August 15, 2007 to New Zion, South Carolina Walker Gamble Elementary School official Carlette Morris, regarding use of an interagency agreement between a State or LEA and a State Medicaid Agency to obtain Medicaid reimbursement for Medicaid-covered services included in a Medicaid-eligible child's individualized education program (IEP).
○ Letter dated August 7, 2007 to U.S. Representative Bill Shuster, restating the Department's policy that test protocols that do not contain personally identifiable information are not education records under either Part B of IDEA or the Family Educational Rights and Privacy Act.
○ Letter dated August 22, 2007 to Arizona Director of Exceptional Student Services Colette Chapman, clarifying that children with disabilities placed by their parents in for-profit private schools are not considered “parentally-placed private school children with disabilities,” are not included in the proportionate share calculation and are not eligible for equitable services.
○ Letter dated August 29, 2007 to Scarsdale, New York Public Schools Director of Special Education Dr. Michael Mendelson, regarding requirements in Part B of IDEA that are applicable to the LEA where the private school is located when a child with a disability is parentally-placed in a special education private school.
○ Letter dated July 27, 2007 to individual (personally identifiable information redacted) and letter dated September 24, 2007 to Mountain Plains Regional Resource Center Co-Director Dr. Carol Massanari, regarding the use of response to intervention in evaluating children suspected of having specific learning disabilities.
○ Letter dated August 15, 2007 to Lehigh University Professor Perry A. Zirkel, regarding an LEA's use of its State-adopted criteria for determining whether a child has a specific learning disability.
○ Letter dated September 5, 2007 to New York Attorney Edward J. Sarzynski, regarding whether written parental consent is required for all evaluations that are not standardized tests administered to all students.
○ Letter dated July 19, 2007 to individual (personally identifiable information redacted), regarding a State's proposed rules that relate to IEPs and other requirements in Part B of IDEA.
○ Letter dated August 24, 2007 to Disability Rights Advocate Pat Kelly, clarifying when benchmarks or short-term objectives must be included in the IEPs of students with disabilities who take alternate assessments aligned to alternate achievement standards.
○ Letter dated August 22, 2007 to Trident Literacy Association official Suzy Arents, clarifying that a private nonprofit entity has no obligation to develop IEPs for students with disabilities who have withdrawn from the public school program and who seek literacy services directly from a private nonprofit entity.
○ Letter dated September 4, 2007 to Conway, Arkansas Public Schools official Linda Boswell, regarding translation of IEP documents into a parent's native language.
○ Letter dated August 15, 2007 to Kentucky School Boards Association Senior Attorney Teresa T. Combs, regarding the Department's current position on whether a local school district must or may file a request for a due process hearing to attempt to force a child to return to the district's special education program when the parent revokes consent for the child's receipt of special education and related services.
○ Letter dated August 15, 2007 to Massachusetts Bureau of Special Education Appeals Director Richard E. Connelly, clarifying the obligation of a public agency to provide, at no cost, a copy of a written, or at the option of the parent, an electronic, verbatim record from a due process hearing, even though the applicable appeal period has expired.
○ Letter dated September 11, 2007 to Puerto Rico Special Education Attorney Roberto Maldonado, clarifying that any party to a due process hearing has the right to either a free copy of a written, or at the option of the parents, an electronic, verbatim record of the hearing, not both.
○ Letter dated September 4, 2007 to Partnership for Children's Rights Attorney Michael D. Hampden, clarifying the applicability of the requirement regarding a child's status during the pendency of administrative or judicial proceedings in a single tier or two-tier due process system when no subsequent appeals are filed.
○ Letter dated September 5, 2007 to individual (personally identifiable information redacted), clarifying whether an expulsion hearing may occur before the hearing officer determines whether the LEA had knowledge that the child was a child with a disability.
○ Letter dated September 4, 2007 to Florida Early Steps Bureau Chief Janice M. Kane, clarifying the State's obligation to provide any services that meet the Part C definition of early intervention
○ Letter dated September 24, 2007 to individual (personally identifiable information redacted), clarifying that the IFSP Team, which includes the child's parents, makes an individualized determination of whether a particular method of providing services is needed for a child to achieve the outcomes in the child's IFSP.
○ Rehabilitation Services Administration Information Memorandum RSA-IM-07-08, regarding a comprehensive transition program that uses a variety of activities and innovative approaches to expose transition-age youth with disabilities (ages 14 to 24) to careers in science, technology, engineering, and math and other technology-based professions.
You may view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Federal Energy Regulatory Commission.
Notice.
In compliance with the requirements of section 3506(c)(2)(a) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13), the Federal Energy Regulatory Commission (Commission) is soliciting public comment on the specific aspects of the information collection described below.
Comments on the collection of information are due by March 10, 2008.
Copies of sample filings can be obtained from the Commission's Web site: (
Documents filed electronically via the Internet must be prepared in WordPerfect, MS Word, Portable Document Format or ASCII format. To file the document, access the Commission's Web site at
All comments may be viewed, printed or downloaded remotely via the Internet through FERC's homepage using the
Michael Miller may be reached by telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at
The information collected under the requirements of FERC Form 73 “Oil Pipelines Service Life Data” (OMB No. 1902-0019) is used by the Commission to establish oil pipeline property depreciation rates based on the physical properties of a pipeline's equipment. Congress gave the Commission jurisdiction over oil pipeline rates, charges and valuations in Pub. L. 103-272, sec. 60502 (1994).
Depreciation rates are a factor in a pipeline's transportation cost of service. As such, companies are required to submit Form No. 73 when requesting Commission approval of: (1) The establishment of depreciation rates for new pipeline equipment or (2) revision of previously approved depreciation rates, when the depreciation is based on the physical properties of the pipeline company's equipment. The Commission may also request an oil pipeline to submit a Form No. 73 during a rate investigation.
On May 27, 2005, in Order No. 656, the Commission amended the Form No. 73 instructions to allow for filing on a diskette in a spreadsheet file format, eliminated the filing requirement for utility codes, which were no longer used by the Commission, and updated the filing instructions to delete references to outdated filing formats.
The estimated total cost to respondents is $4,861 (80 hours divided by 2,080 hours per employee
The reporting burden includes the total time, effort, or financial resources expended to generate, maintain, retain, disclose, or provide the information including: (1) Reviewing instructions; (2) developing, acquiring, installing, and utilizing technology and systems for the purposes of collecting, validating, verifying, processing, maintaining, disclosing and providing information; (3) adjusting the existing ways to comply with any previously applicable instructions and requirements; (4) training personnel to respond to a collection of information; (5) searching data sources; (6) completing and reviewing the collection of information; and (7) transmitting, or otherwise disclosing the information.
The estimate of cost for respondents is based upon salaries for professional and clerical support, as well as direct and indirect overhead costs. Direct costs include all costs directly attributable to providing this information, such as administrative costs and the cost for information technology. Indirect or overhead costs are costs incurred by an organization in support of its mission. These costs apply to activities which benefit the whole organization rather than any one particular function or activity.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology e.g. permitting electronic submission of responses.
On December 21, 2007, Puget Sound Energy, Inc. (Puget), SOCCO, Inc. (SOCCO), Sumas Pipeline Company (SPC), and Sumas Cogeneration Company, L.P. (SCCLP) (collectively, the Applicants) filed an application pursuant to section 3 of the Natural Gas Act (NGA) and section 153 of the Commission's Regulations and Executive Order No. 10485, as amended by Executive Order No. 12038, and the Secretary of Energy's Delegation Order No. 00-004.00A, effective May 16, 2006, seeking authorization to transfer SCCLP's existing NGA section 3 authorization and Presidential Permit to Puget, SOCCO, and SPC, all as more fully set forth in the application which is on file with the Commission and open to the public for inspection. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any questions regarding the application may be directed to: Pamela J. Anderson, Attorney for Puget Sound Energy, Inc., Van Ness Feldman, PC, 719 Second Avenue, Suite 1150, Seattle, Washington 98112, or call (206) 623-9372; or Matthew M. Schreck, Attorney for SOCCO, Inc., Sumas Pipeline Company, and Sumas Cogeneration Company, L.P., Corbett & Schreck, P.C., 9525 Katy Freeway, Suite 420, Houston, Texas 77024, or call (713) 444-6687.
Specifically, SCCLP, Puget, SOCCO, and Sumas, and Sword request the Commission to issue an order: (1) Transferring SCCLP's NGA section 3 authorization to Puget, SOCCO, and Sumas for the operation and maintenance of facilities for the importation of natural gas from the Province of British Columbia, Canada, into Whatcom County, Washington; and (2) authorizing the assignment of SCCLP's May 1, 1991, as subsequently amended, Presidential Permit for the operation and maintenance of facilities at the British Columbia, Canada/Washington import point.
The import facilities consist of (1) an interconnection with Westcoast Energy, Inc., at the international border between Canada and the United States, and (2) an 8-inch diameter pipeline located directly south of the Sumas gas meter station that crosses the Canada-United States border near or within the City of Sumas in Whatcom County, extending a distance of approximately 3.79 miles. The 8-inch diameter pipeline interconnects with the Sumas tie-in station at the 125-megawatt gas-fired Sumas cogeneration power plant owned and operated by SCCLP.
Applicants state that the border facilities will remain in place and operation following the requested transfer and assignment. Applicants also state that they are not proposing to construct and operate any new facilities. Applicants further state that there are no current third party service agreements associated with the facilities, service has not been offered to the public, and that the import and transportation of Canadian natural gas would be solely
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
Take notice that on December 19, 2007, Distrigas of Massachusetts LLC (DOMAC), One Liberty Square, 10th Floor, Boston, Massachusetts 02109, filed an application under section 3 and section 7 of the Natural Gas Act (NGA) to obtain authorization: (1) For the abandonment of services provided pursuant to DOMAC's FERC Gas Tariff, First Revisited Volume No. 1 (Tariff) and under DOMAC's amended certificate of public convenience and necessity; (2) for the cancellation of DOMAC's Tariff, including all of its rate schedules contained therein; and (3) to retain certain existing rate and service terms now applicable to its liquid sales only pursuant to section 3 of the NGA based upon the Commission's acceptance of their Terms of Liquid Service; to become applicable to liquid sales upon such approval.
This filing is accessible on-line at
Any questions regarding this filing should be directed to Mr. Robert A. Nailling, Vice President, General Counsel and Secretary, Distrigas of Massachusetts LLC, One Liberty Square, 10th Floor, Boston, Massachusetts 02109, or Phone: (617) 526-8300.
DOMAC states that it purchases liquefied natural gas (LNG) imported by Distrigas LLC from various international sources. Distrigas LLC is a corporate affiliate of DOMAC. DOMAC then resells the LNG in vapor and liquid form to its customers located throughout the northeastern United States. DOMAC's customers include local distribution companies, gas marketers, and end-users, including electric power generation plants. DOMAC proposes to continue to make such sales of LNG in liquid and vapor form subject only to the Commission's jurisdiction under section 3 of the NGA, as amended by the Energy Policy Act of 2005. DOMAC proposes that sales of vaporized LNG will be under flexible, negotiate contracts with market-responsive terms not subject to the Commission's jurisdiction. However, DOMAC proposes a Statement of Terms and Conditions for Liquid Service incorporating terms and conditions from the current Tariff, to apply only to liquid sales. DOMAC requests that the proposed abandonment of such sales pursuant to its amended certificate under section 7 of the NGA and the Terms of Liquid Service be effective as of April 1, 2008.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date shown below. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following open access transmission tariff filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Filed Date: 12/28/2007.
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) on the natural gas facilities proposed by Iroquois Gas Transmission System, L.P. (Iroquois) in the above-referenced docket. The Iroquois 08/09 Expansion Project would expand Iroquois' existing system to deliver up to 200,000 dekatherms per day of natural gas transportation service to KeySpan Gas East Corporation at South Commack, Long Island.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act of 1969. The staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects of the construction and operation of Iroquois' proposed 08/09 Expansion Project. Iroquois proposes to construct its project in three phases which would consist of: looping
The Phase 1 pipeline looping would include construction of 5.8 miles of 36-inch-diameter pipeline in Boonville, New York; 1.0 miles of 36-inch-diameter pipeline in Wright, New York; and 1.6 miles of 36-inch-diameter pipeline in Newtown, Connecticut. The new pipeline segments would be located adjacent to Iroquois' existing pipeline at these locations.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Copies of the EA have been mailed to federal, state, and local agencies, public interest groups, interested individuals, newspapers, and parties to this proceeding.
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your comments to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Reference Docket No. CP07-457-000;
• Label one copy of the comments for the attention of the Gas Branch 1, PJ-11.1; and
• Mail your comments so that they will be received in Washington, DC on or before February 4, 2008.
Please note that the Commission strongly encourages electronic filing of any comments or interventions or protests to this proceeding. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214).
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your comments considered.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared an environmental assessment (EA) for the natural gas pipeline facilities proposed to be constructed by PetroLogistics Natural Gas Storage, LLC (PetroLogistics) in the above-referenced docket.
The EA was prepared to satisfy the requirements of the National Environmental Policy Act of 1969. The staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major Federal action significantly affecting the quality of the human environment.
The EA assesses the potential environmental effects of constructing and operating:
• One 20,000-horsepower electric compressor station on a 2-acre site;
• One 350-foot-long 24-inch-diameter interconnect pipeline;
• 7.3 miles of 24-inch-diameter natural gas header pipeline connecting the compressor station and the Florida Gas Transmission Company (FGT), CrossTex LIG Pipeline Company (Crosstex)/Bridgeline Pipeline System (Bridgeline) and Texas Eastern Transmission Company (TETCO) interconnects;
• 5.83 miles of 16-inch-diameter interconnect pipeline from the Bridgeline/CrossTex tie-in to the Southern Natural Gas Company (SONAT) pipeline interconnect;
• A 0.60-mile-long TETCO 16-inch-diameter lateral from near the terminus of the 24-inch-diameter header pipeline to the TETCO Lateral Meter Station;
• Five meter stations/interconnects (FGT, Bridgeline, Crosstex, TETCO and SONAT Meter Stations) and two mainline valves; and
• The recasing of the existing non-jurisdictional Well No. 25.
The purpose of the proposed project is to build and operate a high-deliverability, multi-cycle natural gas storage facility and appurtenant facilities in an existing brine cavern within the Choctaw Salt Dome located 4 miles northwest of the City of Plaquemine, Louisiana.
The EA has been placed in the public files of the FERC. A limited number of copies of the EA are available for distribution and public inspection at: Federal Energy Regulatory Commission, Public Reference Room, 888 First Street, NE., Room 2A, Washington, DC 20426, (202) 502-8371.
Copies of the EA have been mailed to Federal, state and local agencies, public interest groups, interested individuals, newspapers, and parties to this proceeding.
Any person wishing to comment on the EA may do so. To ensure consideration prior to a Commission decision on the proposal, it is important that we receive your comments before the date specified below. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your comments to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St., NE., Room 1A, Washington, DC 20426;
• Label one copy of the comments for the attention of the Gas Branch 2, PJ11.2.
• Reference Docket No. CP07-427-000; and
• Mail your comments so that they will be received in Washington, DC on or before February 5, 2008.
Please note that the Commission strongly encourages the electronic filing (“eFiling”) of comments. Instructions on how to “eFile” comments can be found on the Commission's Web site at
Comments will be considered by the Commission but will not serve to make the commentor a party to the proceeding. Any person seeking to become a party to the proceeding must file a motion to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Anyone may intervene in this proceeding based on this Draft EA. Only intervenors have the right to seek rehearing of the Commission's decision. You must file your request to intervene
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you too keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. To learn more about eSubscription and to sign-up for this service please go to
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the proposed Yuma Lateral Project involving construction and operation of natural gas facilities by North Baja Pipeline, LLC (North Baja) in Yuma County, Arizona. The EA will be used by the Commission in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. Your input will help determine which issues need to be evaluated in the EA. Please note that the scoping period will close on February 4, 2008. Details on how to submit comments are provided in the Public Participation section of this notice.
If you are a landowner receiving this notice, you may be contacted by a pipeline company representative about the acquisition of an easement to construct, operate, and maintain the proposed facilities. North Baja would seek to negotiate a mutually acceptable agreement. However, if the project is approved by the Commission, that approval conveys with it the right of eminent domain. Therefore, if easement negotiations fail to produce an agreement, North Baja could initiate condemnation proceedings in accordance with state law.
This notice is being sent to affected landowners; federal, state, and local government representatives and agencies; elected officials; Native American tribes; other interested parties; and local libraries and newspapers. State and local government representatives are asked to notify their constituents of this proposed project and to encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is available for viewing on the FERC Internet Web site (
The Yuma Lateral Project would involve construction of approximately 3.3 miles of 12-inch-diameter pipeline from the international border at the Colorado River to the Yucca Power Plant, also in Yuma County, Arizona. An additional 3.1 miles would be constructed in Mexico. A meter station would be constructed at the Yucca Power Plant along with a pig receiver. The majority of the Yuma Lateral would be constructed on public lands, primarily a Bureau of Reclamation (BOR) canal right-of-way (ROW). The majority of the proposed pipeline ROW route is co-located immediately adjacent to an existing railroad ROW.
The purpose of the proposed project is to provide the Yucca Power Plant with access to existing and future power generation needs. Gas would be shipped from Sempra's Gasoducto Bajanorte pipeline through a new 3.1-mile-long lateral in Mexico to the international border, from which 81,250 Dth/day of gas would be shipped via the Yuma Lateral to supply the Yucca Power Plant.
The general location of the proposed project is shown in Appendix 1.
Construction of the proposed project would affect a total of about 29.5 acres during construction. Following construction, about 21.0 acres would be allowed to revert to its previous conditions. Disturbance associated with aboveground facilities would permanently impact 0.5 acre of land.
North Baja proposes a typical construction ROW for the proposed pipeline of between 52 and 80 feet, which is 32 to 60 feet of temporary workspace and 20 feet of permanent ROW.
We
NEPA also requires the FERC to discover and address concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this Notice of Intent, we are requesting public comments on the scope of the issues to address in the EA. All
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• geology and soils
• wetlands and waterbodies
• land use
• cultural resources
• vegetation and wildlife (including sensitive species)
• air and noise quality
Our independent analysis of the issues will be in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
Although no formal application has been filed, the FERC staff has already initiated its NEPA review under its Pre-filing Process. The purpose of the Pre-filing Process is to encourage the early involvement of interested stakeholders and to identify and resolve issues before an application is filed with the FERC. Once a formal application is filed with the FERC, a new docket number will be established.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, reasonable alternatives to the proposal including alternative locations and routes, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to: Kimberley D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First St. NE.; Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas Branch 1.
• Reference Docket No. PF07-11-000.
• Mail your comments so that they will be received in Washington, DC on or before February 4, 2008.
The Commission encourages electronic filing of comments. See 18 Code of Federal Regulations 385.2001(a)(1)(iii) and the instructions on the Commission's Internet Web site at
We may mail the EA for comment. If you are interested in receiving it, please return the Information Request (Appendix 2). If you do not return the Information Request, you will be taken off the mailing list.
Once North Baja formally files its application with the Commission, you may want to become an official party to the proceeding known as an “intervenor.” Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in a Commission proceeding by filing a request to intervene. Instructions for becoming an intervenor are included in the User's Guide under the “e-filing” link on the Commission's web site. Please note that you may not request intervenor status at this time. You must wait until a formal application is filed with the Commission.
Additional information about the project is available from the Commission's Office of External Affairs, at 1-866-208-FERC or on the FERC Internet Web site (
In addition, the Commission now offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries and direct links to the documents. Go to
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and Commission staff may attend the following Midwest ISO-related meetings:
Except as noted, all of the meetings above will be held at: Midwest ISO Headquarters, 701 City Center Drive, 720 City Center Drive, and 630 West Carmel Drive, Carmel, IN 46032.
Further information may be found at
The above-referenced meetings are open to the public.
The discussions at each of the meetings described above may address matters at issue in the following proceedings:
For more information, contact Patrick Clarey, Office of Energy Markets Regulation, Federal Energy Regulatory Commission at (317) 249-5937 or
Take notice that on December 31, 2007, the City of Vernon, California filed revisions to its Transmission Revenue Balancing Account Adjustment, to become effective January 1, 2008.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on December 28, 2007, pursuant to Rule 207 of the Commission's Rules of Practice and Procedure, 18 CFR 385.207 (2007), section 1241 of the Energy Policy Act of 2005, which adds new section 219 of the Federal Power Act, and Order No. 679, Westar Energy, Inc. filed a “Petition for Declaratory Order to Confirm Incentive Rate Treatment for High Voltage Transmission Projects.”
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
On January 29, 2008, the staff of the Federal Energy Regulatory Commission (FERC or Commission) will hold a technical conference to discuss its third-party contracting requirements and expectations with respect to preparing an environmental impact statement (EIS) on an Alaska natural gas transportation project. The staff invites those contracting companies with the relevant expertise and an interest in providing third-party contractor services to assist the FERC environmental staff with the review of the application(s) and the design and preparation of an EIS staff will prepare for the anticipated project.
The technical conference will be held at the Commission's Headquarters, 888 First St., NE., Washington, DC 20426 in room 3M-2A from 10 a.m. until 12 p.m. EST. All interested parties may attend. The conference will not be transcribed, and telephone participation will not be available.
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
If a project moves forward and starts the Pre-Filing Process to seek authorization under the Natural Gas Act, the FERC will be the lead agency for complying with the National Environmental Policy Act of 1969 (NEPA) and for preparing an EIS that consolidates the environmental review of all federal agencies with regulatory and other responsibilities relevant to such a project. In particular, the staff is interested in information and ideas regarding how a consultant would assist it with:
• Planning and supporting the public participation process;
• coordinating the information flow between the lead and cooperating agencies;
• identifying and analyzing the environmental issues associated with a large diameter trans-Alaskan pipeline project; and
• preparing an EIS that is in full compliance with NEPA.
In addition to the technical conference, the staff is seeking Statements of Interest from qualified companies. Respondents to this Request for Statement of Interest (RSI) should also submit a Capability Statement (CS) of no more than 25 pages that describes the organization's ability to perform the effort outlined above. The CS should summarize the company's experience in projects of similar scope and complexity, prior NEPA experience, and familiarity with the FERC (especially third-party contract experience). The CS should also detail the company's relevant expertise in such fields as arctic pipeline construction and restoration, pipeline engineering, geotechnical and seismic design, subsistence, and Native Alaskan consultation. The CS may be appended with the qualifications of the key personnel on the project team. In addition to the CS, respondents must include a completed Organizational Conflict of Interest Statement (see attachment).
Responses to the RSI must be submitted as detailed below:
• Send two copies to: Michael J. Boyle, Branch Chief, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street, NE., Room 62-47, Washington, DC 20426;
• reference “Alaska Natural Gas Transportation Project RSI” on both copies; and
• mail the response so that it will be received in Washington, DC, on or before January 25, 2008.
Be advised that all information submitted should be marked as “Proprietary Information—Do Not Release” in bold letters on the top of every page in order to protect the submittal from public disclosure. Companies responding to the RSI may also be interviewed individually at the Commission's offices in Washington, DC. If such interviews are scheduled, attendance would be at the interested parties' own expense.
For additional information concerning the technical conference or the RSI, please contact Laurence Sauter at 202-502-8205 or Rich McGuire at 202-502-6177.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before February 13, 2008.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2004-0058, to (1) EPA online using
Nydia Yanira Reyes-Morales, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Mail Code 6403J, Washington, DC 20460; telephone number: 202-343-9264; fax number: 202-343-2804; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On September 26, 2007 (72
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2004-0058, which is available for online viewing at
Use EPA's electronic docket and comment system at
In 2008, a new TPEM phase will start as the new, nonroad compression-ignition emission regulations (also known as Tier 4 regulations) become effective. This ICR Renewal incorporates the requirements that will be in effect during the active period of this supporting statement. The Tier 4 TPEM program is codified at 40 CFR Part 1039.625 while the Tier 1-Tier 3 program is codified at 40 CFR Part 89.102.
The information is collected for compliance purposes by the Engine Programs Group, Certification and Compliance Division, Office of Transportation and Air Quality, Office of Air and Radiation. Confidentiality of proprietary information is granted in accordance with the Freedom of Information Act, EPA regulations at 40 CFR 2, and class determinations issued by EPA's Office of General Counsel.
Environmental Protection Agency.
Amendment to Agency's General Routine Uses.
The Environmental Protection Agency is giving notice that it proposes to amend its current list of General Routine Uses to add a new routine use. The new general routine use will allow the Agency to disclose information in its systems covered under the Privacy Act to persons and entities that may be needed by the Agency to respond, prevent, minimize or remedy harm resulting from an actual or suspected breach or compromise of personally identifiable information. The Agency currently has general routine uses
Persons wishing to comment on this routine use notice must do so by February 25, 2008.
Submit your comments, identified by Docket ID No. EPA-HQ-OEI-2007-1144, by one of the following methods:
•
• E-mail:
• Fax: 202-566-1752.
• Mail: OEI Docket, Environmental Protection Agency, Mail code: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
• Hand Delivery: OEI Docket, EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Judy E. Hutt, Privacy Act Officer, U.S. Environmental Protection Agency, Office of Information Collections, Records, FOIA, and Privacy Branch (MC-2822T), Washington, DC 20460; (202) 566-1668;
The Office of Management and Budget (OMB) requires all federal agencies to be able to quickly and efficiently respond in the event of a breach of personally identifiable information and has directed agencies to publish a routine use that will allow disclosure of Privacy Act information to persons and entities in a position to assist with notifying affected individuals or playing a role in preventing, minimizing, or remedying any harm from a breach. Accordingly, the EPA is proposing to add a new routine use that will allow it to meet the OMB objective of responding quickly and efficiently should such a breach occur. This new routine use will help the Agency prevent, minimize, or remedy a data breach or compromise. All responses to a confirmed or suspected breach will be prepared on a case-by-case basis. The purpose and intent of this routine use is to allow the Agency, when necessary, to disclose information regarding the breach to individuals identified under the routine use and to give the affected individuals full and fair notice of the extent of these potential disclosures. Accordingly, the Agency is amending its prefatory statement of general routine uses to include “L” as a new routine use.
Information may be disclosed to the appropriate Federal, State, local, tribal, or foreign agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, if the information is relevant to a violation or potential violation of civil or criminal law or regulation within the jurisdiction of the receiving entity.
Information may be disclosed to any source from which additional information is requested (to the extent necessary to identify the individual, inform the source of the purpose of the request, and to identify the type of information requested,) when necessary to obtain information relevant to an agency decision concerning retention of an employee or other personnel action (other than hiring,) retention of a security clearance, the letting of a contract, or the issuance or retention of a grant, or other benefit.
Disclosure may be made to a Federal, State, local, foreign, or tribal or other public authority of the fact that this system of records contains information relevant to the retention of an employee, the retention of a security clearance, the letting of a contract, or the issuance or retention of a license, grant, or other benefit. The other agency or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses. No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action.
Information may be disclosed to the Office of Management and Budget at any stage in the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB Circular No. A-19.
Information may be disclosed to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of the individual.
Information may be disclosed to the Department of Justice, or in a proceeding before a court, adjudicative body, or other administrative body before which the Agency is authorized to appear, when:
1. The Agency, or any component thereof;
2. Any employee of the Agency in his or her official capacity;
3. Any employee of the Agency in his or her individual capacity where the Department of Justice or the Agency have agreed to represent the employee; or
4. The United States, if the Agency determines that litigation is likely to affect the Agency or any of its components,
Information may be disclosed to the National Archives and Records Administration in records management inspections.
Information may be disclosed to contractors, grantees, consultants, or volunteers performing or working on a contract, service, grant, cooperative agreement, job, or other activity for the Agency and who have a need to have access to the information in the performance of their duties or activities for the Agency. When appropriate, recipients will be required to comply with the requirements of the Privacy Act of 1974 as provided in 5 U.S.C. 552a(m).
Information from this system of records may be disclosed to an authorized appeal grievance examiner, formal complaints examiner, equal employment opportunity investigator, arbitrator or other person properly engaged in investigation or settlement of an administrative grievance, complaint, claim, or appeal filed by an employee, but only to the extent that the information is relevant and necessary to the proceeding. Agencies that may obtain information under this routine use include, but are not limited to, the Office of Personnel Management, Office of Special Counsel, Merit Systems Protection Board, Federal Labor Relations Authority, Equal Employment Opportunity Commission, and Office of Government Ethics.
Information from this system of records may be disclosed to the Office of Personnel Management pursuant to that agency's responsibility for evaluation and oversight of Federal personnel management.
Information from this system of records may be disclosed in connection with litigation or settlement discussions regarding claims by or against the Agency, including public filing with a court, to the extent that disclosure of the information is relevant and necessary to the litigation or discussions and except where court orders are otherwise required under section (b)(11) of the Privacy Act of 1974, 5 U.S.C. 552a(b)(11).
Information from this system of records may be disclosed to appropriate Federal, State, or local agencies, other entities, and persons when it is suspected or confirmed that: (1) The security or confidentiality of information in the system of records has been compromised; (2) there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs that rely upon the compromised information; and (3) and those receiving the information are reasonably necessary to assist with the Agency's efforts to respond to the suspected or confirmed compromise and to prevent, minimize, or remedy any such harm.
Environmental Protection Agency.
Notice of Availability of 2008 BEACH Act Grants.
The Beaches Environmental Assessment and Coastal Health (BEACH) Act, signed into law on October 10, 2000, amended the Clean Water Act (CWA), to incorporate provisions to reduce the risk of illness to users of the Nation's recreational waters. Section 406(b) of the CWA, as amended by the BEACH Act, authorizes the U.S. Environmental Protection Agency (EPA) to award grants to eligible States, Territories, Tribes, and local governments to develop and implement microbiological monitoring programs of coastal recreation waters, including the Great Lakes, which are adjacent to beaches or similar points of access used by the public. BEACH Act grants also develop and implement programs to notify the public of the potential exposure to disease-causing microorganisms in these waters. EPA encourages coastal and Great Lakes States and Territories to apply for BEACH Act grants for program implementation (referred to as implementation grants) to implement effective and comprehensive coastal recreation water monitoring and public notification programs. EPA also encourages coastal and Great Lakes Tribes to apply for BEACH Act grants for program development (referred to as development grants) to develop effective and comprehensive coastal recreation water monitoring and public notification programs.
States and Territories must submit applications on or before March 14, 2008. Eligible Tribes should notify the relevant Regional BEACH Act grant coordinator of their interest in applying for a grant on or before February 28, 2008. Upon receipt of a Tribe's notice of interest, EPA will establish an appropriate application deadline.
You must send your application to the appropriate Regional Grant Coordinator listed in this notice under
Rich Healy, 1200 Pennsylvania Ave., NW., (4305T), Washington, DC 20460, 202-566-0405,
The general statutory authority for BEACH Act grants is section 406(b) of the Clean Water Act, as amended by the BEACH Act, Public Law No. 106-284, 114 Stat. 970 (2000). It provides that “(T)he Administrator may make grants to States and local governments to develop and implement programs for monitoring and notification for coastal recreation waters adjacent to beaches or similar points of access that are used by the public.” CWA section 406(b)(2)(A), however, limits EPA's ability to award implementation grants only to those States, Tribes and Territories that meet certain requirements (see Section II, Funding and Eligibility, below for information on specific requirements).
In fiscal year 2008, EPA intends to award grants authorized under CWA section 406(b) to eligible States and Territories to support the implementation of coastal recreation water monitoring and public notification programs that are consistent with EPA's required performance criteria for implementation grants. Also in fiscal year 2008, EPA intends to award development grants to eligible Tribes to support the development of coastal recreation water monitoring and public notification programs that are consistent with EPA's performance criteria for grants. EPA published the required performance criteria for grants in its
Coastal and Great Lake States that meet the requirements of CWA section 406(b)(2)(A) are eligible for grants in fiscal year 2008 to implement monitoring and notification programs. The definition of the term “State” in CWA section 502 includes the District of Columbia, and current U.S. Territories: the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
CWA section 406(b)(2)(B) authorizes EPA to make a grant to a local government for implementation of a monitoring and notification program only if, after the one-year period beginning on the date of publication of the performance criteria (July 19, 2002), EPA determines that the State within which the local government has jurisdiction is not implementing a program that meets the requirements of CWA section 406(b), which includes a requirement that the program is consistent with the performance criteria in
Section 518(e) of the CWA authorizes EPA to treat eligible Indian Tribes in the same manner as States for the purpose of receiving CWA section 406 grant funding. For fiscal year 2008, EPA will make $50,000 available for development grants to eligible Tribes. In order to be eligible for a CWA section 406 development grant, a Tribe must have coastal recreation waters adjacent to beaches or similar points of access that are used by the public. The phrase “coastal recreation waters” is defined in CWA section 502(21) to mean the Great Lakes and marine coastal waters (including coastal estuaries) that are designated under CWA section 303(c) for use for swimming, bathing, surfing, or similar water contact activities. The statute explicitly excludes from the definition inland waters and waters upstream of the mouth of a river or stream having an unimpaired natural connection with the open sea. In addition, a tribe must demonstrate that it meets the “treatment in the same manner as a State” (TAS) criteria contained in CWA section 518(e) for purposes of receiving a section 406 beaches grant. To demonstrate TAS, the Tribe must show that it: (1) Is federally recognized; (2) has a governing body carrying out substantial governmental duties and powers; (3) will be exercising functions pertaining to waters within reservation; and (4) is reasonably expected to be capable of carrying out the functions consistent with the CWA and all applicable regulations. EPA encourages those Tribes with coastal recreation waters to contact their regional BEACH Act grant coordinator for further information regarding the application process as soon as possible.
Yes, there are additional eligibility requirements and grant conditions. First, CWA section 406(b)(2)(A) provides that EPA may only award a grant to implement a monitoring and notification program if:
(i) The program is consistent with the performance criteria published by the Administrator under CWA section 406(a);
(ii) the State or local government prioritizes the use of grant funds for particular coastal recreation waters based on the use of the water and the risk to human health presented by pathogens or pathogen indicators;
(iii) the State or local government makes available to the Administrator the factors used to prioritize the use of funds under clause (ii);
(iv) the State or local government provides a list of discrete areas of coastal recreation waters that are subject to the program for monitoring and notification for which the grant is provided that specifies any coastal recreation waters for which fiscal constraints will prevent consistency with the performance criteria under CWA section 406(a); and
(v) the public is provided an opportunity to review the program through a process that provides for public notice and an opportunity for comment.
Second, CWA section 406(c) requires that as a condition of receipt of a CWA section 406 grant, a State or local government program for monitoring and notification must identify:
(1) lists of coastal recreation waters in the State, including coastal recreation waters adjacent to beaches or similar points of access that are used by the public;
(2) in the case of a State program for monitoring and notification, the process by which the State may delegate to local governments responsibility for implementing the monitoring and notification program;
(3) the frequency and location of monitoring and assessment of coastal recreation waters based on—
(A) The periods of recreational use of the waters;
(B) the nature and extent of use during certain periods;
(C) the proximity of the waters to known point sources and nonpoint sources of pollution; and
(D) any effect of storm events on the waters;
(4) (A) the methods to be used for detecting levels of pathogens and pathogen indicators that are harmful to human health; and
(B) the assessment procedures for identifying short-term increases in pathogens and pathogen indicators that are harmful to human health in coastal recreation waters (including increases in relation to storm events);
(5) measures for prompt communication of the occurrence, nature, location, pollutants involved, and extent of any exceeding of, or likelihood of exceeding, applicable water quality standards for pathogens and pathogen indicators to—
(A) the Administrator, in such form as the Administrator determines to be appropriate; and
(B) a designated official of a local government having jurisdiction over land adjoining the coastal recreation waters for which the failure to meet applicable standards is identified;
(6) measures for the posting of signs at beaches or similar points of access, or functionally equivalent communication measures that are sufficient to give notice to the public that the coastal recreation waters are not meeting or are not expected to meet applicable water quality standards for pathogens and pathogen indicators; and
(7) measures that inform the public of the potential risks associated with water contact activities in the coastal recreation waters that do not meet applicable water quality standards.
Third, as required by CWA section 406(b)(3)(A), a State recipient of a CWA section 406 grant must submit to EPA, in such format and at such intervals as EPA determines to be appropriate, a report that describes:
(1) Data collected as part of the program for monitoring and notification as described in section 406(c), and
(2) actions taken to notify the public when water quality standards are exceeded. States must submit to EPA both the monitoring and notification reports for any beach season by January 31 of the year following the beach season. For the 2008 beach season, the deadline for states to submit these reports is January 31, 2009. EPA first established this report submission deadline in the
Fourth, States are required to report to EPA, latitude, longitude and mileage data on:
(1) The extent of beaches and similar points of public access adjacent to coastal recreation waters, and
(2) The extent of beaches that are monitored.
EPA first established this requirement in the
For fiscal year 2008, the total available for BEACH Act grants is expected to be $9,745,500. EPA expects to award all but $50,000 to eligible States and Territories for implementation grants. EPA intends to award the remaining $50,000 in development grants to eligible Tribes. If EPA does not award any grants to eligible Tribes, EPA will redistribute the money to eligible States and Territories using the allocation formula described below.
For fiscal year 2008, EPA expects to award grants to all eligible States and Territories who apply for funding based on the allocation formula that the Agency developed for awarding BEACH Act grant funds in 2002. EPA consulted with various States, the Coastal States Organization, and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) to develop this formula. The allocation formula uses three factors: (1) Beach season length, (2) beach miles, and (3) beach use.
EPA selected beach season length as a factor because it determines the part of the year when a government would conduct its monitoring program. The longer the beach season, the more resources a government would need to conduct monitoring. The Agency obtained the information on the length of a beach season from the National Health Protection Survey of Beaches for the States or Territories that submitted a completed survey. EPA estimated the beach season length for Alaska based on air and water temperature, available information on recreation activities, and data from the 1993 National Water Based Recreation Survey. EPA grouped the States and U.S. Territories into four categories of beach season lengths:
EPA selected miles of beach as a factor because it determines the geographical extent over which a government would conduct monitoring. The more miles of beaches, the more resources a government would need to conduct monitoring. EPA does not have beach mileage data in a format that can be used for the allocation formula at this time. Therefore, EPA is using shoreline miles as a surrogate for beach miles in the allocation formula. Shoreline miles data overestimates beach miles in some States and Territories; however, EPA and States agreed that this is the best way to estimate beach miles until complete beach mile data become available. EPA used the National Oceanic and Atmospheric Administration (NOAA) publication, The
EPA selected beach use as a factor because it reflects the magnitude of
The allocation formula sums the three parts. The first part is a base amount for all States and Territories that varies with the length of the beach season. The second part distributes 50% of the total remaining funds based on the ratio of shoreline miles in a State or Territory to the total length of shoreline miles across the entire United States. For example, if a State has 4% of the total coastal and Great Lakes shoreline, that State would receive 4% of 50% (or 2%) of total funds remaining after the Agency distributed the funds for part one. The third part distributes the remaining 50% based on the ratio of coastal population in a State or Territory to the total coastal population in the United States. For example, if a State has 2% of the total coastal and Great Lakes population, that State would receive 2% of 50% (or 1%) of the total funds remaining after the Agency distributes the funds based on the first two parts. The following table summarizes the allocation formula:
For 2008, the total available for BEACH Act grants to States and Territories is expected to be $9,695,500. Assuming all 35 States and Territories with coastal recreation waters apply and meet the statutory eligibility requirements for implementation grants (and have met the statutory grant conditions applicable to previously awarded section 406 grants), the distribution of the funds for year 2008 is expected to be:
EPA expects that all 35 States and Territories will apply for a grant. If fewer than 35 States and Territories apply for the allocated amount, or if any applicant fails to meet the statutory eligibility requirements (or the statutory conditions applicable to previously awarded section 406 grants), then EPA will distribute available grant funds to eligible States and Territories in the following order:
(1) States and Territories that meet the eligibility requirements for implementation grants and that have met the statutory conditions applicable to previously awarded section 406 grants will be awarded the full amount of funds allocated to the State under the formula described above.
(2) EPA may award program implementation grants to local governments in States and Territories that the Agency determines have not met the requirements for implementation grants.
(3) Consistent with CWA Section 406(h), EPA will use the State's and Territory's allocated funds to conduct a beach monitoring and notification program for beaches in any State and Territory that EPA determines does not have a program for monitoring and notification that is consistent with EPA's grant performance criteria.
If a State, Tribe, or Territory cannot use all of its allocation, the Regional Administrator may award the unused funds to any eligible coastal or Great Lake grant recipient in the Region for the continued development or implementation of their coastal recreation water monitoring and notification program(s). If, after re-allocation, there are still unused funds within the Region, EPA Headquarters will redistribute these funds to any eligible coastal or Great Lake BEACH Act grant recipient.
EPA expects to apportion the funds set aside for tribal grants evenly among all eligible Tribes that apply for funding.
The expected funding and project periods for implementation grants awarded in fiscal year 2008 is one year.
Recipients do not have to provide matching funds for BEACH Act grants. EPA may establish a match requirement in the future based on a review of State program activity and funding levels.
Recipients of implementation grants may use funds for activities to support implementing a beach monitoring and notification program that is consistent with the required performance criteria for grants specified in the document,
EPA Regional offices will award CWA section 406 grants through a non-competitive process. EPA expects to award grants to all eligible State, Tribe, and Territory applicants that meet the applicable requirements described in this notice.
The Administrator has delegated the authority to award BEACH Act grants to the Regional Administrators.
The number assigned to the BEACH Act Grants is 66.472, Program Code CU.
For fiscal year 2008, BEACH Act Grants cannot be included in a Performance Partnership Grant.
Your application package should contain completed:
• EPA SF-424 Application for Federal Assistance, and
• Program Summary.
In order for EPA to determine that a State or local government is eligible for an implementation grant, the applicant must submit documentation with its application to demonstrate that its program is consistent with the performance criteria. The Program Summary must contain sufficient technical detail for EPA to confirm that your program meets the statutory eligibility requirements and statutory grant conditions for previously awarded CWA section 406 grants listed in section II (Funding and Eligibility) of this notice. The Program Summary must also describe how the State used BEACH Act Grant funds to develop and implement the beach monitoring and notification program, and how the program is consistent with the nine performance criteria in
States and Territories must submit application packages to the appropriate EPA Regional Office by March 14, 2008. EPA will make an award after the Agency reviews the documentation and confirms that the program meets the applicable requirements. The Office of Management and Budget has authorized EPA to collect this information (BEACH Act Grant Information Collection Request, OMB control number 2040-0244). Please contact the appropriate EPA Regional Office for a complete application package. See Section VI for a list of EPA Regional Grant Coordinators or visit the EPA Beach Watch Web site at
The Notice of Interest should include the Tribe's name and the name and telephone number of a contact person.
Yes. Three specific QA/QC requirements must be met to comply with EPA's performance criteria for grants:
(1) Applicants must submit documentation that describes the quality system implemented by the State, Territory, Tribe, or local government. Documentation may be in the form of a Quality Management Plan or equivalent documentation.
(2) Applicants must submit a quality assurance project plan (QAPP) or equivalent documentation.
(3) Applicants are responsible for submitting documentation of the quality system and QAPP for review and approval by the EPA Quality Assurance Officer or his designee before they take primary or secondary environmental measurements. More information about the required QA/QC procedures is available in Chapter Four and Appendix H of
Recipients must submit annual performance reports and financial reports as required in 40 CFR 31.40 and 31.41. The annual performance report explains changes to the beach monitoring and notification program during the grant year. It also describes how the grant funds were used to implement the program to meet the performance criteria listed in
The regulations at 40 CFR Part 31 govern the award and administration of grants to States, Tribes, local governments, and Territories under CWA section 406(b). Allowable costs will be determined according to the cost principles outlined in 2 CFR Part 225.
Rich Healy USEPA, 1200 Pennsylvania Ave. NW.—4305, Washington DC 20460; T: 202-566-0405; F: 202-566-0409;
Matt Liebman USEPA Region I, One Congress St. Suite 1100—COP, Boston,
Helen Grebe USEPA Region II, 2890 Woodbridge Ave., MS220, Edison, NJ 08837-3679; T: 732-321-6797; F: 732-321-6616;
Mark Barath USEPA Region III, 1650 Arch Street, 3WP30, Philadelphia, PA 19103-2029; T: 215-814-2759; F: 215-814-2318;
Joel Hansel USEPA Region IV, 61 Forsyth St., 15th Floor, Atlanta, GA 30303-3415; T: 404-562-9274; F: 404-562-9224;
Holly Wirick USEPA Region V, 77 West Jackson Blvd., WT-16J, Chicago, IL 60604-3507; T: 312-353-6704; F: 312-886-0168;
Mike Schaub USEPA Region VI, 1445 Ross Ave. 6WQ-EW, Dallas, TX 75202-2733; T: 214-665-7314; F: 214-665-6689;
Terry Fleming USEPA Region IX, 75 Hawthorne St. WTR-2, San Francisco, CA 94105; T: 415-972-3462; F: 415-947-3537;
Rob Pedersen USEPA Region X, 120 Sixth Ave., OW-134, Seattle, WA 98101; T: 206-553-1646; F: 206-553-0165;
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. Sections 3501-3520. An agency may not conduct or sponsor a collection of information unless it displays a current valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid control number. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before March 14, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Leslie F. Smith via the Internet at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before February 13, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918.
The operator of every cable television system having 1,000 or more subscribers but fewer than 5,000 subscribers shall, upon request, provide the information required by Sections 76.1702, 76.1703, 76.1704, 76.1706 and 76.1715. These cable television systems shall also maintain for public inspection a file containing a copy of all records required to be kept by 47 CFR Section 76.1701.
The operator of every cable television system having 5,000 or more subscribers shall maintain for public inspection a file containing a copy of all records which are required to be kept by Sections 76.1701, 76.1702, 76.1703, 76.1704, 76.1706, and 76.1715.
47 CFR 76.1700(b) requires that the public inspection file shall be maintained at the office which the system operator maintains for the ordinary collection of subscriber charges, resolution of subscriber complaints, and other business or at any accessible place in the community served by the system unit(s) (such as a public registry for documents or an attorney's office). The public inspection file shall be available for public inspection at any time during regular business hours.
47 CFR 76.1700(d) requires the records specified in paragraph 76.1700(a) be retained for the period specified in Sections 76.1701, 76.1702, 76.1704(a), and 76.1706.
47 CFR 76.1703 requires that cable operators airing children's programming must maintain records sufficient to verify compliance with 47 CFR Section 76.225 and make such records available to the public. Such records must be maintained for a period sufficient to cover the limitations period specified in 47 U.S.C. 503(b)(6)(B).
47 CFR 76.1704(a) requires the proof of performance tests required by Section 76.601 shall be maintained on file at the operator's local business office for at least five years. The test data shall be made available for inspection by the Commission or the local franchiser, upon request.
47 CFR 76.1704(b) requires the provisions of Section 76.1704(a) shall not apply to any cable television system having fewer than 1,000 subscribers.
47 CFR 76.1707 requires that if a cable operator adopts and enforces a written policy regarding indecent leased access programming pursuant to Section 76.701, such a policy will be considered published pursuant to that rule by inclusion of the written policy in the operator's public inspection file.
47 CFR 76.1711 requires that records be kept of each test and activation of the Emergency Alert System (EAS) procedures pursuant to the requirement of 47 CFR Part 11 and the EAS Operating Handbook. These records shall be kept for three years.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before February 13, 2008. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, Office of Management and Budget, via Internet at
For additional information or copies of the information collection(s), contact Cathy Williams at (202) 418-2918.
47 CFR 76.1003(e)(1) requires a cable operator, satellite cable programming vendor, or satellite broadcast programming vendor that expressly references and relies upon a document in asserting a defense to a program access complaint filed pursuant to § 76.1003 or in responding to a material allegation in a program access complaint filed pursuant to § 76.1003, to include such document or documents as part of the answer.
47 CFR 76.1003(j) states in addition to the general pleading and discovery rules contained in § 76.7 of this part, parties to a program access complaint may serve requests for discovery directly on opposing parties, and file a copy of the request with the Commission. The respondent shall have the opportunity to object to any request for documents that are not in its control or relevant to the dispute. Such request shall be heard, and determination made, by the Commission. Until the objection is ruled upon, the obligation to produce the disputed material is suspended. Any party who fails to timely provide discovery requested by the opposing party to which it has not raised an objection as described above, or who fails to respond to a Commission order for discovery material, may be deemed in default and an order may be entered in accordance with the allegations contained in the complaint, or the complaint may be dismissed with prejudice.
Federal Communications Commission.
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 applications 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 8, 2008.
Board of Governors of the Federal Reserve System, January 9, 2008.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than February 8, 2008.
Board of Governors of the Federal Reserve System, January 9, 2008.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-4766 or send an e-mail to
Survey of 911 Emergency Treatment for Heart Disease and Stroke—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Division for Heart Disease and Stroke Prevention (DHDSP), Centers for Disease Control and Prevention (CDC).
CDC's Division for Heart Disease and Stroke Prevention (DHDSP) was established to provide national leadership to reduce the burden of disease, disability, and death from heart disease and stroke through its research and programs. CDC proposes to collect information concerning pre-hospital Emergency Medical Services (EMS) practices needed to develop solutions to the crisis in emergency care and to effectively coordinate national public health interventions in death and disability from heart attacks and stroke. The proposed survey will be conducted with approximately 1,800 local pre-hospital EMS provider organizations to examine staffing and certification configurations, medical oversight, training, and the scope of practice of pre-hospital emergency care specifically for cardiac and stroke emergencies. The survey sample includes all 2,250 local pre-hospital EMS provider organizations in nine proposed states (FL, MA, KS, MT, NM, WI, OR, SC, AR).
The information collection will also include semi-structured interviews with ten directors of sub-state EMS regions. The interviews will examine organizational and administrative aspects of pre-hospital EMS at the state and sub-state levels to explore similarities and differences from state to state. Data analysis will include descriptive statistics for data from the EMS provider survey on pre-hospital field practices and capabilities for cardiac and stroke emergencies in nine states representing all regions of the U.S. It will also include qualitative analysis of information related to state and sub-state EMS organizational and administrative contexts and their influence on local pre-hospital EMS. The information collection will provide for interaction with important stakeholders for partnering and cooperation through the selection of an expert working group to review the survey findings and assist with the development of recommendations.
There are no costs to respondents except their time. The estimated annualized burden hours are 533.
Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Field Trials to Efficacy of Natural Products for the Control of the Tick Vectors of Lyme Disease Spirochetes, Program Announcement (PA) CK08-001; Evaluation of Reservoir-Targeted Vaccine Formulations To Prevent Enzootic Transmission of Borrelia Burgdorferi (Lyme Borreliosis), PA CK08-002.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS).
Notice of a Modified or Altered System of Records (SOR).
In accordance with the Privacy Act of 1974, we are proposing to modify or alter an existing SOR, “Health Plan Management System (HPMS) ,” System No. 09-70-4004, established at 63
In addition, HPMS will collect information from health plans and Part D plan organizations pertaining to individuals who market and/or sell health insurance and prescription drug plan products on behalf of these plan organizations and who are licensed or authorized by a State Insurance Commissioner or other certifying agencies. We are sharing data pertaining to all agents/brokers to assist CMS and State Insurance Commissioners in improving oversight of the sales marketplace and in avoiding fraudulent sales practices that mislead and harm Medicare beneficiaries. We propose to assign a new CMS identification number to this system to simplify the obsolete and confusing numbering system originally designed to identify the Bureau, Office, or Center that maintained information in the Health Care Financing Administration systems of records. The new assigned identifying number for this system should read: System No. 09-70-0500.
We will delete routine use number 1 authorizing disclosure to support constituent requests made to a congressional representative. If an authorization for the disclosure has been obtained from the data subject, then no routine use is needed. The Privacy Act allows for disclosures with the “prior written consent” of the data subject. We propose to delete published routine use number 5 authorizing disclosure to a contractor for the purpose of collating, analyzing, aggregating or otherwise refining or processing records in this system or for developing, modifying and/or manipulating automated information systems software. We also propose to add a routine use for the release of information that permits disclosure to agency contractors, consultants, and CMS grantees that perform a task for the agency. CMS occasionally contracts out certain of its functions when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor, consultant or grantee whatever information is necessary for the contractor, consultant, or grantee to fulfill its duties.
We propose to delete published routine use number 2 authorizing disclosure to the Bureau of Census;
We will modify existing routine use number 6 that permits disclosure to Peer Review Organizations (PRO). Organizations previously referred to as PROs will be renamed to read: Quality Improvement Organizations (QIO). Information will be disclosed to QIOs for health care quality improvement projects. The modified routine use will be renumbered as routine use number 4. We propose to delete published routine use number 14 authorizing disclosures to any entity that makes payment for or oversees administration of health care services to combat fraud and abuse against such entity or the program or services administered by such entity. This disclosure provision falls outside the scope of the stated purpose for the collection of data maintained in this system.
We will broaden the scope of this system by including the section titled “Additional Circumstances Affecting Routine Use Disclosures,” that addresses “Protected Health Information (PHI)” and “small cell size.” The requirement for compliance with HHS regulation “Standards for Privacy of Individually Identifiable Health Information” apply when ever the system collects or maintain PHI. This system may contain PHI. In addition, our policy to prohibit release if there is a possibility that an individual can be identified through “small cell size” will apply to the data disclosed from this system.
The security classification previously reported as “None” will be modified to reflect that the data in this system is considered to be “Level Three Privacy Act Sensitive.” We are modifying the language in the remaining routine uses to provide a proper explanation as to the need for the routine use and to provide clarity to CMS's intention to disclose individual-specific information contained in this system. The routine uses will then be prioritized and reordered according to their usage. We will also take the opportunity to update any sections of the system that were affected by the impact of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) provisions and to update language in the administrative sections to correspond with language used in other CMS SORs.
The primary purpose of this modified system is to collect and maintain information on Medicare beneficiaries enrolled in Medicare Health Plans in order to develop and disseminate information required by the Balanced Budget Act of 1997 that will inform beneficiaries and the public of indicators of health plan performance to help beneficiaries choose among health plans, support quality improvement activities within the plans, monitor and evaluate quality improvement activities within the plans, monitor and evaluate care provided by health plans; provide guidance to program management and policies, and provide a research data base for CMS and other researchers. The information retrieved from this system of records will also be disclosed to: (1) Support regulatory, reimbursement, and policy functions performed within the Agency or by a contractor or consultant; (2) assist another Federal and/or state agency, agency of a state government, an agency established by state law, or its fiscal agent, for evaluating and monitoring the quality of home health care and contribute to the accuracy of health insurance operations; (3) support research, evaluation, or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects; (4) support the functions of Quality Improvement Organizations (QIO); (5) support litigation involving the Agency; (6) combat fraud and abuse in certain health care programs. We have provided background information about the modified system in the
CMS filed a modified or altered system report with the Chair of the House Committee on Government Reform and Oversight, the Chair of the Senate Committee on Homeland Security & Governmental Affairs, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on January 4, 2008. To ensure that all parties have adequate time in which to comment, the modified system, including routine uses, will become effective 30 days from the publication of the notice, or 40 days from the date it was submitted to OMB and Congress, whichever is later, unless CMS receives comments that require alterations to this notice.
The public should address comments to: CMS Privacy Officer, Division of Privacy Compliance, Enterprise Architecture and Strategy Group, Office of Information Services, CMS, Room N2-04-27, 7500 Security Boulevard, Baltimore, Maryland 21244-1850. Comments received will be available for review at this location, by appointment, during regular business hours, Monday through Friday from 9 a.m.-3 p.m., eastern time zone.
Ms. Lori Robinson, Director, Division of Plan Data, Plan Oversight and Accountability Group, Center for Beneficiary Choices, Center for Medicare & Medicaid Services, 7500 Security Boulevard, C4-14-21, Baltimore, Maryland 21244-1850. Her telephone number is (410) 786-1826 or via e-mail at
The Health Plan Management System is a database containing rates for selected performance measures for each Medicare health plan. The data are compiled by HIC number, member month contribution, and a flag to indicate if the member was counted in the rate's numerator. The system will collect rate information on categories such as the following:
• “Use of Services” measures such as the frequency of selected procedures (e.g., percutaneous transluminal coronary artery angioplasty, prostatectomy, coronary artery bypass with graft, hysterectomy, cholecystectomy, cardiac catheterization, reduction of fracture of
• “Effectiveness of Care” measures such as breast cancer screening, beta blocker treatment after a heart attack, eye exams for people with diabetes, and follow-up after hospitalization for mental illness.
• “Member Satisfaction” measures related to quality, access, and general satisfaction.
• “Functional Status” measures which are patient centered and track actual outcomes or results of care, addressing both physical and mental well-being over time.
The information from HPMS will be augmented by being linked to other CMS data and other administrative data to provide validation and greater analytic capacity. The HPMS will be used to:
• Develop and disseminate summary information required by the Balanced Budget Act of 1997 that will inform beneficiaries and the public of indicators of health plan performance to help beneficiaries choose among health plans. The information will include plan-to-plan comparisons of benefits and co-payments supplemented with consumer satisfaction information and plan performance data.
• Support quality improvement activities. Summary data will be useful for health plans' internal quality improvement, as well as to CMS and Quality Improvement Organizations in monitoring and evaluating the care provided by health plans.
• Conduct research and demonstrations addressing managed care quality, access, and satisfaction issues.
• Provide guidance for program management and policy development.
HPMS houses the results of the Health Plan Employer Data and Information Set (HEDIS) and the Consumer Assessment of Health Plans Survey (CAHPS). The system will contain information on recipients of Medicare Part A and Part B services who are enrolled in health plans and Part D plans. The total number of current enrollees in Medicare Part C health plans is approximately 9 million.
HEDIS reflects a joint effort of public and private purchasers, consumers, labor unions, health plans, and measurement experts to develop a comprehensive set of performance measures for Medicare, Medicaid, and commercial populations enrolled in managed care plans. HEDIS measures eight aspects of health care: Effectiveness of care; access/availability of care, satisfaction with the experience of care, health plan stability, use of services, cost of care, informed health care choices, and health plan descriptive information. In 1997, CMS is requiring reporting of a number of performance measures from HEDIS relevant to the Medicare managed care population. The HEDIS data is subject to audit, to ensure that plans submit accurate and complete data. Another aspect of the audit is to assess the reasonableness of the HEDIS measures. For example, if all or most health plans have problems with a particular measure, the problem could be with the measure, not the plans.
Included in HEDIS is a functional status measure which tracks both physical health and mental health status over a 2-year period through a self-administered instrument in which the beneficiary indicates whether his/her health status has improved, stayed the same, or deteriorated. The measure is risk adjusted for co-morbid conditions, income, race, education, social support, age, and gender. It will be used to compare how well plans care for seniors. It reflects the belief that high quality health care can either improve or at least slow the rate of decline in senior members' ability to lead active and independent lives.
In concert with the Agency for Health Care Policy and Research, CMS sponsored the development of a Medicare specific version of the CAHPS consumer satisfaction survey. The survey will collect information about Medicare enrollees' satisfaction, access, and quality of care within managed care plans. Beginning in 1997, CMS is requiring all Medicare contracting plans to participate in an independent third party administration of an annual member satisfaction survey.
All performance measures are subject to modification as new performance measurement sets are developed with a stronger focus on outcomes and chronic disease issues, including patient satisfaction and quality of life measures relevant to specific diseases.
The Privacy Act permits us to disclose information without the consent of individuals for “routine uses”—that is, disclosures that are compatible with the purpose for which we collected the information. The proposed routine uses in the new system meet the compatibility criteria since the information is collected to produce estimates of health care use and quality, and determinants thereof, by the aged and disabled enrolled in group health plans. We anticipate the disclosures under the routine uses will not result in any unwarranted adverse effects on personal privacy.
The HPMS Complaints Tracking Module (CTM) stores beneficiary complaints related to the Medicare Advantage (MA) and Part D programs. This module contains beneficiary complaints that have been collected by 1-800-Medicare as well as beneficiary complaints entered directly into the CTM by CMS staff. The CTM stores complaint data, including, but not limited to, the following: Date complaint received; date of incident; issue level; complainant and/or beneficiary information; complaint summary; complaint category; complaint resolution summary; and plan resolution summary. Plans use the CTM to track the beneficiary complaints assigned to their organization, enter complaint case resolutions, and close out complaints. CMS uses the CTM to enter beneficiary complaints received directly by the regional office, perform casework for those complaints not assigned to an organization, and to monitor plan progress on resolving complaints timely.
We are sharing data pertaining to all marketing agents/brokers to assist CMS and State Department of Insurance (DOI) in improving oversight of the sales marketplace and in avoiding fraudulent sales practices that mislead and harm Medicare beneficiaries. Beneficiaries that are enrolled in a health plan or prescription drug plan under false, fraudulent pretense result in plan organizations receiving payments to which they are not entitled. As a result, there is a payment policy component involved. We will require contracted health plans and prescription drug plans, though contract or program memorandum (or both) to notify all agents/brokers that sell their Medicare products that their information is being shared with CMS, its contractors, and State DOIs.
Authority for maintenance of the system is given under section 1875 of the Social Security Act (the Act) (42 U.S.C. 1395ll), entitled Studies and Recommendations; section 1121 of the Act (42 U.S.C. 1121), entitled Uniform Reporting System for Health Services Facilities and Organizations; and § 1876 of the Act (42 U.S.C. 1395mm), entitled
Information is collected and maintained on recipients of Medicare Part A (Hospital Insurance) and Part B (supplementary medical insurance) services who are enrolled in Medicare health plans and prescription drug plans. CTM will collect and maintain identifiable information on individuals who are, but not limited to, complainants, including beneficiaries, relatives and caregivers, Congresspersons and their staff, State Health Insurance Program representatives, and providers of service and their staff. The system contains demographic and identifying data, as well as survey and deficiency data. Identifying data includes, but is not limited to: Name, title, address, city, state, ZIP code, e-mail address, telephone numbers, fax number, licensure number, SSN, Federal tax identification number, alias names, date of birth, gender, date admitted and/or date discharged. In addition, the CTM stores complaint data, including, but not limited to, the following: Date complaint received; date of incident; issue level; complainant and/or beneficiary information; complaint summary; complaint category; complaint resolution summary; and plan resolution summary.
The Privacy Act permits us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such disclosure of data is known as a “routine use.” The government will only release HPMS information that can be associated with an individual as provided for under “Section III. Proposed Routine Use Disclosures of Data in the System.” Both identifiable and non-identifiable data may be disclosed under a routine use.
We will only collect the minimum personal data necessary to achieve the purpose of HPMS. CMS has the following policies and procedures concerning disclosures of information that will be maintained in the system. Disclosure of information from this system will be approved only to the extent necessary to accomplish the purpose of the disclosure and only after CMS:
1. Determines that the use or disclosure is consistent with the reason that the data is being collected,
2. Determines that:
a. The purpose for which the disclosure is to collect and maintain information on Medicare beneficiaries enrolled in Medicare Health Plans in order to develop and disseminate information required by the Balanced Budget Act of 1997 that will inform beneficiaries and the public of indicators of health plan performance to help beneficiaries choose among health plans, support quality improvement activities within the plans, monitor and evaluate quality improvement activities within the plans, monitor and evaluate care provided by health plans; provide guidance to program management and policies, and provide a research data base for CMS and other researchers;
b. the purpose for which the disclosure is to be made is of sufficient importance to warrant the effect and/or risk on the privacy of the individual that additional exposure of the record might bring; and
c. there is a strong probability that the proposed use of the data would in fact accomplish the stated purpose(s).
3. Requires the information recipient to:
a. Establish administrative, technical, and physical safeguards to prevent unauthorized use of disclosure of the record;
b. remove or destroy at the earliest time all patient-identifiable information; and
c. agree to not use or disclose the information for any purpose other than the stated purpose under which the information was disclosed.
4. Determines that the data are valid and reliable.
A. The Privacy Act allows us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The proposed routine uses in this system meet the compatibility requirement of the Privacy Act. We are proposing to establish the following routine use disclosures of information maintained in the system:
1. To agency contractors, or consultants, or to a grantee of a CMS-administered grant program who have been engaged by the agency to assist in the accomplishment of a CMS function relating to the purposes for this system and who need to have access to the records in order to assist CMS.
We contemplate disclosing this information under this routine use only in situations in which CMS may enter into a contractual or similar agreement with a third party to assist in accomplishing a CMS function relating to purposes for this system. CMS occasionally contracts out certain of its functions when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor, consultant or grantee whatever information is necessary for the contractor or consultant to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor, consultant or grantee from using or disclosing the information for any purpose other than that described in the contract and requires the contractor, consultant or grantee to return or destroy all information at the completion of the contract.
2. To another Federal and/or state agency, agency of a state government, an agency established by state law, or its fiscal agent to:
a. Contribute to the accuracy of CMS's proper payment of Medicare benefits,
b. enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds, and/or
c. assist Federal/state Medicaid programs within the state.
Other Federal or state agencies in their administration of a Federal health program may require HPMS information in order to support evaluations and monitoring of Medicare claims information of beneficiaries, including proper reimbursement for services provided;
To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States (including any State or local law enforcement agencies) for a civil or criminal law enforcement activity (e.g. police, FBI, State Attorney General's office);
In addition, other state agencies in their administration of a Federal health program may require HPMS information for the purpose of developing and operating Medicaid reimbursement
To the agency of a State government, or established by State law, for purposes of determining, evaluating and/or assessing overall or aggregate cost, effectiveness, and/or the quality of services provided in the State; and
State agencies may use HPMS data to perform Federal certification and State licensure functions, including the investigation of complaints and entity-reported incidents.
3. To assist an individual or organization for research, evaluation or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects.
The collected data will provide the research, evaluation and epidemiological projects a broader, longitudinal, national perspective of the data. CMS anticipates that many researchers will have legitimate requests to use these data in projects that could ultimately improve the care provided to Medicare patients and the policy that governs the care. CMS understands the concerns about the privacy and confidentiality of the release of data for a research use. Disclosure of data for research and evaluation purposes may involve aggregate data rather than individual-specific data.
4. To Quality Improvement Organizations (QIO) in order to assist the QIO to perform Title XI and Title XVIII functions relating to assessing and improving quality of care.
The QIO will work to implement quality improvement programs, provide consultation to CMS, its contractors, and to state agencies. The QIO will assist state agencies in related monitoring and enforcement efforts, assist CMS and intermediaries in program integrity assessment, and prepare summary information for release to CMS.
5. To the Department of Justice (DOJ), court or adjudicatory body when:
a. The agency or any component thereof, or
b. any employee of the agency in his or her official capacity, or
c. any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee, or
d. the United States Government is a party to litigation or has an interest in such litigation, and by careful review, CMS determines that the records are both relevant and necessary to the litigation and that the use of such records by the DOJ, court or adjudicatory body is compatible with the purpose for which the agency collected the records.
Whenever CMS is involved in litigation, and occasionally when another party is involved in litigation and CMS' policies or operations could be affected by the outcome of the litigation, CMS would be able to disclose information to the DOJ, court or adjudicatory body involved.
6. To assist a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program.
We contemplate disclosing information under this routine use only in situations in which CMS may enter into a contractual relationship or grant with a third party to assist in accomplishing CMS functions relating to the purpose of combating fraud and abuse.
CMS occasionally contracts out certain of its functions and makes grants when doing so would contribute to effective and efficient operations. CMS must be able to give a contractor or grantee whatever information is necessary for the contractor or grantee to fulfill its duties. In these situations, safeguards are provided in the contract prohibiting the contractor or grantee from using or disclosing the information for any purpose other than that described in the contract and requiring the contractor or grantee to return or destroy all information.
7. To assist another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.
Other agencies may require HPMS information for the purpose of combating fraud and abuse in such Federally-funded programs.
To the extent this system contains Protected Health Information (PHI) as defined by HHS regulation “Standards for Privacy of Individually Identifiable Health Information” (45 CFR Parts 160 and 164, 65 FR 82462 (12-28-00), Subparts A and E. Disclosures of such PHI that are otherwise authorized by these routine uses may only be made if, and as, permitted or required by the “Standards for Privacy of Individually Identifiable Health Information.”
In addition, our policy will be to prohibit release even of data not directly identifiable, except pursuant to one of the routine uses or if required by law, if we determine there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals could, because of the small size, use this information to deduce the identity of the beneficiary).
CMS has safeguards in place for authorized users and monitors such users to ensure against excessive or unauthorized use. Personnel having access to the system have been trained in the Privacy Act and information security requirements. Employees who maintain records in this system are instructed not to release data until the intended recipient agrees to implement appropriate management, operational and technical safeguards sufficient to protect the confidentiality, integrity and availability of the information and information systems and to prevent unauthorized access.
This system will conform to all applicable Federal laws and regulations and Federal, HHS, and CMS policies and standards as they relate to information security and data privacy. These laws and regulations may apply but are not limited to: the Privacy Act of 1974; the Federal Information Security Management Act of 2002; the Computer Fraud and Abuse Act of 1986; the Health Insurance Portability and Accountability Act of 1996; the E-Government Act of 2002; the Clinger-Cohen Act of 1996; the Medicare Modernization Act of 2003; and the corresponding implementing regulations. OMB Circular A-130, Management of Federal Resources, Appendix III, Security of Federal Automated Information Resources, also
CMS proposes to modify this system in accordance with the principles and requirements of the Privacy Act and will collect, use, and disseminate information only as prescribed therein. Data in this system will be subject to the authorized releases in accordance with the routine uses identified in this system of records.
CMS will take precautionary measures to minimize the risks of unauthorized access to the records and the potential harm to individual privacy or other personal or property rights of patients whose data are maintained in the system. CMS will collect only that information necessary to perform the system's functions. In addition, CMS will make disclosure from the proposed system only with consent of the subject individual, or his/her legal representative, or in accordance with an applicable exception provision of the Privacy Act. CMS, therefore, does not anticipate an unfavorable effect on individual privacy as a result of information relating to individuals.
“Health Plan Management System (HPMS),” HHS/CMS/CBC.
Level Three Privacy Act Sensitive Data.
The Centers for Medicare & Medicaid Services (CMS) Data Center, 7500 Security Boulevard, North Building, First Floor, Baltimore, Maryland 21244-1850 and at various co-locations of CMS agents.
Information is collected and maintained on recipients of Medicare Part A (Hospital Insurance) and Part B (supplementary medical insurance) services who are enrolled in Medicare health plans and prescription drug plans. Identifiable information will also be collected on individuals who are, but not limited to, complainants, including beneficiaries, relatives and caregivers, Congresspersons and their staff, State Health Insurance Program representatives, and providers of service and their staff.
The system contains demographic and identifying data, as well as survey and deficiency data. Identifying data includes, but is not limited to: name, title, address, city, state, ZIP code, e-mail address, telephone numbers, fax number, licensure number, SSN, Federal tax identification number, alias names, date of birth, gender, date admitted and/or date discharged. In addition, the CTM stores complaint data, including, but not limited to, the following: date complaint received; date of incident; issue level; complainant and/or beneficiary information; complaint summary; complaint category; complaint resolution summary; and plan resolution summary.
Authority for maintenance of the system is given under section 1875 of the Social Security Act (the Act) (42 U.S.C. 1395ll), entitled Studies and Recommendations; section 1121 of the Act (42 U.S.C. 1121), entitled Uniform Reporting System for Health Services Facilities and Organizations; and § 1876 of the Act (42 U.S.C. 1395mm), entitled Payments to Health Maintenance Organizations and Competitive Medical Plans. Authority for maintenance and dissemination of Health Plan information is also given under the Balanced Budget Act of 1997 (Pub. L. 105-33).
The primary purpose of this modified system is to collect and maintain information on Medicare beneficiaries enrolled in Medicare Health Plans in order to develop and disseminate information required by the Balanced Budget Act of 1997 that will inform beneficiaries and the public of indicators of health plan performance to help beneficiaries choose among health plans, support quality improvement activities within the plans, monitor and evaluate quality improvement activities within the plans, monitor and evaluate care provided by health plans; provide guidance to program management and policies, and provide a research data base for CMS and other researchers. The information retrieved from this system of records will also be disclosed to: (1) Support regulatory, reimbursement, and policy functions performed within the Agency or by a contractor or consultant; (2) assist another Federal and/or state agency, agency of a state government, an agency established by state law, or its fiscal agent, for evaluating and monitoring the quality of home health care and contribute to the accuracy of health insurance operations; (3) support research, evaluation, or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects; (4) support the functions of Quality Improvement Organizations (QIO); (5) support litigation involving the Agency; (6) combat fraud and abuse in certain health care programs.
A. The Privacy Act allows us to disclose information without an individual's consent if the information is to be used for a purpose that is compatible with the purpose(s) for which the information was collected. Any such compatible use of data is known as a “routine use.” The proposed routine uses in this system meet the compatibility requirement of the Privacy Act. We are proposing to establish the following routine use disclosures of information maintained in the system:
1. To agency contractors, or consultants, or to a grantee of a CMS-administered grant program who have been engaged by the agency to assist in the accomplishment of a CMS function relating to the purposes for this system and who need to have access to the records in order to assist CMS.
2. To another Federal and/or state agency, agency of a state government, an agency established by state law, or its fiscal agent to:
a. Contribute to the accuracy of CMS' proper payment of Medicare benefits,
b. Enable such agency to administer a Federal health benefits program, or as necessary to enable such agency to fulfill a requirement of a Federal statute or regulation that implements a health benefits program funded in whole or in part with Federal funds, and/or
c. Assist Federal/state Medicaid programs within the state.
3. To assist an individual or organization for research, evaluation or epidemiological projects related to the prevention of disease or disability, or the restoration or maintenance of health, and for payment related projects.
4. To Quality Improvement Organizations (QIO) in order to assist the QIO to perform Title XI and Title XVIII functions relating to assessing and improving quality of care.
5. To the Department of Justice (DOJ), court or adjudicatory body when:
a. The agency or any component thereof, or
b. Any employee of the agency in his or her official capacity, or
c. Any employee of the agency in his or her individual capacity where the DOJ has agreed to represent the employee, or
d. The United States Government is a party to litigation or has an interest in such litigation, and by careful review, CMS determines that the records are both relevant and necessary to the litigation and that the use of such records by the DOJ, court or adjudicatory body is compatible with the purpose for which the agency collected the records.
6. To assist a CMS contractor (including, but not necessarily limited to fiscal intermediaries and carriers) that assists in the administration of a CMS-administered health benefits program, or to a grantee of a CMS-administered grant program, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such program.
7. To assist another Federal agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States (including any State or local governmental agency), that administers, or that has the authority to investigate potential fraud or abuse in, a health benefits program funded in whole or in part by Federal funds, when disclosure is deemed reasonably necessary by CMS to prevent, deter, discover, detect, investigate, examine, prosecute, sue with respect to, defend against, correct, remedy, or otherwise combat fraud or abuse in such programs.
B. Additional Provisions Affecting Routine Use Disclosures
To the extent this system contains Protected Health Information (PHI) as defined by HHS regulation “Standards for Privacy of Individually Identifiable Health Information” (45 CFR Parts 160 and 164, 65 Fed. Reg. 82462 (12-28-00), Subparts A and E. Disclosures of such PHI that are otherwise authorized by these routine uses may only be made if, and as, permitted or required by the “Standards for Privacy of Individually Identifiable Health Information.”
In addition, our policy will be to prohibit release even of data not directly identifiable, except pursuant to one of the routine uses or if required by law, if we determine there is a possibility that an individual can be identified through implicit deduction based on small cell sizes (instances where the patient population is so small that individuals could, because of the small size, use this information to deduce the identity of the beneficiary).
All records are stored on the magnetic disk sub-system of the Sun Solaris 10 Server. Furthermore, these records are saved to magnetic tape backup on a nightly basis.
The records are retrieved by health insurance claims number or other individually identifying numbers.
CMS has safeguards in place for authorized users and monitors such users to ensure against excessive or unauthorized use. Personnel having access to the system have been trained in the Privacy Act and information security requirements. Employees who maintain records in this system are instructed not to release data until the intended recipient agrees to implement appropriate management, operational and technical safeguards sufficient to protect the confidentiality, integrity and availability of the information and information systems and to prevent unauthorized access.
This system will conform to all applicable Federal laws and regulations and Federal, HHS, and CMS policies and standards as they relate to information security and data privacy. These laws and regulations may apply but are not limited to: the Privacy Act of 1974; the Federal Information Security Management Act of 2002; the Computer Fraud and Abuse Act of 1986; the Health Insurance Portability and Accountability Act of 1996; the E-Government Act of 2002, the Clinger-Cohen Act of 1996; the Medicare Modernization Act of 2003, and the corresponding implementing regulations. OMB Circular A-130, Management of Federal Resources, Appendix III, Security of Federal Automated Information Resources also applies. Federal, HHS, and CMS policies and standards include but are not limited to: all pertinent National Institute of Standards and Technology publications; the HHS Information Systems Program Handbook and the CMS Information Security Handbook.
CMS will retain identifiable HPMS data for at least 10 years or as long as needed for program research.
Director, Division of Plan Data, Plan Oversight and Accountability Group, Center for Beneficiary Choices, Center for Medicare & Medicaid Services, 7500 Security Boulevard, C4-14-21, Baltimore, Maryland 21244-1850.
For purpose of access, the subject individual should write to the system manager who will require the system name, HICN, address, date of birth, and gender, and for verification purposes, the subject individual's name (woman's maiden name, if applicable), and SSN. Furnishing the SSN is voluntary, but it may make searching for a record easier and prevent delay.
For purpose of access, use the same procedures outlined in Notification Procedures above. Requestors should also specify the record contents being sought. (These procedures are in accordance with department regulation 45 CFR 5b.5(a)(2)).
The subject individual should contact the system manager named above, and reasonably identify the records and specify the information to be contested. State the corrective action sought and the reasons for the correction with supporting justification. (These Procedures are in accordance with Department regulation 45 CFR 5b.7).
The identifying information contained in these records is obtained from the health plan and Part D organizations (which obtained the data from the individual concerned) or the individuals themselves. Also, these data will be linked with CMS administrative data, such as claims and enrollment.
None.
Administration for Children and Families, Department of Health and Human Services (HHS).
Notice.
This notice announces the establishment of and invites nominations for members to the Secretary's Advisory Committee on Re-Designation of Head Start Grantees. The Secretary is required by section 641 of Public Law (Pub. L.) 110-134 to convene an expert panel to provide advice and recommendations on the development of a transparent, reliable and valid system for designation renewal of Head Start grantees. The panel is required to be convened by March 12, 2008.
Colleen Rathgeb, Office of Head Start, e-mail
The Secretary is required by section 641 of Public Law 110-134 to convene an expert panel to provide advice and recommendations on the development of a transparent, reliable and valid system for designation renewal to determine if a Head Start agency is delivering a high-quality and comprehensive Head Start program that meets the educational, health, nutritional, and social needs of the children and families it serves, and meets program and financial management requirements and the program performance standards.
The Charter requires that the panel meet up to three times. The panel shall consist of a non-voting chair and seven expert panel members who have expertise in the areas outlined below. Members of the panel serve terms up to two years based on the needs of the panel.
The Department will give close attention to equitable geographic distribution and to minority and female representation so long as the effectiveness of the Committee is not diminished.
All members must have technical expertise to enable them to participate fully in the work of the panel. The panel will consist of a non-voting chair and seven members, one member within each of the following demonstrated competency areas, as evidenced by training, expertise and experience:
• Early childhood program accreditation,
• research on early childhood development,
• governance and finance of nonprofit organizations,
• delivery of services to populations with special needs and their families,
• assessment and evaluation of programs serving young children,
• an employee of the Office of Head Start, and
• an executive director of a Head Start agency.
Any interested person or organization may nominate one or more qualified individuals. Self-nominations will also be accepted. Each nomination must include the following:
• Letter of nomination, including which specific expertise above the person is being nominated to fill,
• curriculum vitae of the nominee, and
• statement from the nominee that the nominee is willing to serve on the panel.
To obtain a copy of the panel's Charter, submit a written request to the above contact.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is providing notice that effective January 15, 2008, the public will no longer be able to submit electronic comments to its Dockets through FDA's Web site. Electronic comments to FDA's Dockets may continue to be submitted through the Federal eRulemaking Portal. In recent months, FDA has alerted the public through our published
The Division of Dockets Management Public Room (HFA-305), Food and Drug Administration, 5630 Fishers Lane, 1061, Rockville, MD 20852, 301-827-6860, or FAX: 301-827-6870.
FDMS is a major component of the President's e-Rulemaking Initiative, which provides easy access to the public dockets maintained by Federal agencies, while streamlining and increasing the efficiency of the internal, regulatory procedures for agencies. FDMS is designed so that the public has a single point of access to the public dockets across the Federal government and agencies have a standard, online procedure to manage and process dockets, documents, and public comments/submissions. The Initiative reduces costs by eliminating duplicative information systems and technical infrastructures.
FDMS is a full-featured electronic docket management system that gives Federal personnel and docket managers the ability to better manage their rulemakings, adjudications, and other docketed program activities. FDMS also provides the public with a one-stop site to search, view and download documents, as well as post comments/submissions to federal agencies.
FDMS makes it easier for all segments of the public with access to a computer and the Internet—whether at home, at work, or at a local library— to submit comments to agency dockets. FDMS is accessible on the Internet at
FDMS is accessible on the Internet at
FDMS provides two basic methods of searching to retrieve dockets and docket materials that are available in the system: (1) Quick Search to search using a full-text search engine and Browsing options or (2) Advance Search which displays various indexed fields such as
The public may post comments/submissions online to FDMS on the Internet at
Using a phased approach, all dockets currently managed by FDA's DDM will be moved to FDMS. After the migration, the public will be able to access FDA Dockets at
Any Docket created after January 15, 2008, will receive a docket ID established by FDMS. Any Docket created on or before January 15, 2008, and migrated to FDMS will receive a docket ID established by FDMS, but it will also include a reference to its original docket (identification) number that had been assigned by FDA (legacy numbers).
Additional details about FDMS, as well as detailed instructions and assistance for using the system, are available at
Health Resources and Services Administration, HHS.
Notice of meeting of the Advisory Council on Blood Stem Cell Transplantation.
Pursuant to Public Law 92-463, the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the first meeting of the Advisory Council on Blood Stem Cell Transplantation (ACBSCT), Department of Health and Human Services (HHS). The meeting will be held from approximately 9 a.m. to 5:30 p.m. on January 28, 2008, and from 9 a.m. to 5 p.m. on January 29, 2008, at the Hilton Washington DC/Rockville Executive Meeting Center, 1750 Rockville Pike, MD 20852. The meeting will be open to the public; however, seating is limited and pre-registration is encouraged (see below).
Pursuant to Public Law 109-129, 42 U.S.C. 274k (section 379 of the Public Health Service Act, as amended) the ACBSCT was established to advise the Secretary of HHS and the Administrator, HRSA, on matters related to the activities of the C.W. Bill Young Cell Transplantation Program (Program) and the National Cord Blood Inventory (NCBI) Program. ACBSCT is composed of up to 25 members, including the Chair, serving as Special Government Employees. The current membership includes representatives of marrow donor centers and marrow transplant centers; representatives of cord blood banks and participating birthing hospitals; recipients of a bone marrow transplant; recipients of a cord blood transplant; persons who require such transplants; family members of such a recipient or family members of a patient who has requested the assistance of the Program in searching for an unrelated donor of bone marrow or cord blood; persons with expertise in bone marrow and cord blood transplantation; persons with expertise in typing, matching, and transplant outcome data analysis; persons with expertise in the social sciences; basic scientists with expertise in the biology of adult stem cells; ethicists; hematology and transfusion medicine researchers with expertise in adult blood stem cells; persons with expertise in cord blood processing; and members of the general public.
ACBSCT will hear presentations on and discuss cord blood bank accreditation for the NCBI Program; the Food and Drug Administration's (FDA) Draft Guidance for Cord Blood Bank Licensure; Program confidentiality policies; Program registry size and composition; the Related Cord Blood Donor Demonstration Project; and the scientific factors that define a high quality cord blood unit.
The draft meeting agenda will be available on January 15, 2008, on the HRSA's Program Web site at
A registration form will be available on January 7, 2008, on the HRSA's Program Web site at
After the presentations and Council discussions, members of the public will have an opportunity to provide comments. Because of the Council's full agenda and the timeframe in which to cover the agenda topics, public comment will be limited. All public comments will be included in the record of the ACBSCT meeting. Meeting summary notes will be made available on the HRSA's Program Web site at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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 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.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
This notice is a request to extend data collection for SAMHSA's Center for Mental Health Services and Center for Substance Abuse Treatment provider-level performance measures about the screening, assessment, and treatment of co-occurring disorders. The measures were developed with active input from COSIG grantees. Their input was also sought regarding suggestions for making the implementation and reporting processes as smooth as possible. Based on suggestions from COSIG grantees, CSAT has taken the following actions to improve data quality: clarified instructions, simplified minimum required reporting, developed optional reporting methods, allowed grantees time to work out internal processes, and held monthly conference calls to answer grantee questions and to allow grantees to share experiences with implementation. These steps allow CSAT to enhance working relationships with the grantees and improve the overall quality of the data collection process.
Implementation will be limited to 15 current States with Co-occurring State Incentive Grants (COSIG) and States receiving COSIG grants in future years. COSIG grants enable States to develop or enhance their infrastructure and capacity to provide accessible, effective, comprehensive, coordinated/integrated, and evidence-based treatment services to persons with co-occurring substance abuse and mental disorders. Only the immediate Office of the Governor of States may receive COSIG grants, because SAMHSA considers the Office of the Governor to have the greatest potential to provide the multi-agency leadership needed to accomplish COSIG goals. The COSIG program is part of SAMHSA's plan to achieve certain goals regarding services for persons with co-occurring substance use and mental disorders:
• Increase percentage of treatment programs that screen for co-occurring disorders;
• Increase percentage of treatment programs that assess for co-occurring disorders;
• Increase percentage of treatment programs that treat co-occurring disorders through collaborative,
• Increase the number of persons with co-occurring disorders served.
These measures will enable SAMHSA to benchmark and track progress toward these goals within COSIG states.
Information will be collected annually about the number and percentage of programs that offer screening, assessment, and treatment services for co-occurring disorders; and the number of clients actually screened, assessed, and treated through these programs. Information will also be collected annually about providers' policies regarding screening, assessment, and treatment services for persons with co-occurring disorders.
A questionnaire, to be completed by providers, contains 47 items, answered either by checking a box or entering a number in a blank. The questionnaire is available both in printed form and electronically. Obtaining the information to enter on the questionnaire will require respondent providers to track screening, assessment, and treatment services for clients.
COSIG States will be required to report information to SAMHSA for all providers directly participating in their COSIG projects. SAMHSA will consider sampling strategies for states with large numbers of participating providers and for providers serving large numbers of clients. Annual burden for the activities is shown below:
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1044, 1 Choke Cherry Road, Rockville, MD 20857
Federal Emergency Management Agency, DHS.
Notice; 30-day notice and request for comments; Revision of a currently approved collection, OMB Number 1660-0011, FEMA Form 22-13.
The Federal Emergency Management Agency (FEMA) has submitted the following information collection to the Office of Management and Budget (OMB) for review and clearance in accordance with the requirements of the Paperwork Reduction Act of 1995. The submission describes the nature of the information collection, the categories of respondents, the estimated burden (
Requests for additional information or copies of the information collection should be made to Director, Records Management Division, 500 C Street, SW., Washington, DC 20472, Mail Drop Room 301, 1800 S. Bell Street, Arlington, VA 22202, facsimile number (202) 646-3347, or e-mail address
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of an emergency for the State of Oklahoma (FEMA-3280-EM), dated December 10, 2007, and related determinations.
January 3, 2008.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this emergency is closed effective January 3, 2008.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Oklahoma (FEMA-1735-DR), dated December 18, 2007, and related determinations.
January 3, 2008.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective January 3, 2008.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Oregon (FEMA-1733-DR), dated December 8, 2007, and related determinations.
December 21, 2007.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
The notice of a major disaster declaration for the State of Oregon is hereby amended to include the following areas among those areas determined to have been adversely affected by the catastrophe declared a major disaster by the President in his declaration of December 8, 2007.
Washington County for Individual Assistance (already designated for Public Assistance.)
Coos and Curry Counties for Public Assistance.
The Confederated Tribes of Siletz located within Lincoln County and the Confederated Tribes of the Grand Ronde located within Polk and Yamhill Counties for Public Assistance.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster for the State of Oregon (FEMA-1733-DR), dated December 8, 2007, and related determinations.
December 17, 2007.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, Washington, DC 20472, (202) 646-2705.
Notice is hereby given that the incident period for this disaster is closed effective December 17, 2007.
60-Day Notice of Information Collection Under Review: Form I-9, Employment Eligibility Verification; OMB Control No. 1615-0047.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until March 14, 2008.
Written comments and suggestions regarding items contained in this notice, and especially with regard to the estimated public burden and associated response time should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, NW., 3rd floor, Suite 3008, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352, or via e-mail at
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies' estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on 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, e.g., permitting electronic submission of responses.
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If you have additional comments, suggestions, or need a copy of the information collection instrument, please visit the USCIS 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 past funding decisions made by the Department in competitions for funding under the Notice of Funding Availability (NOFA) for the Brownfields Economic Development Initiative (BEDI). This announcement contains the names of the awardees and the amounts of the awards made available by HUD.
Otto V. Banks, Deputy Assistant Secretary, Office of Economic Development, Office of Community Planning and Development, 451 Seventh Street, SW., Room 7136, Washington, DC 20410-7000; telephone (202) 708-4091 (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 Brownfields Economic Development Initiative (BEDI) is administered by the Office of Economic Development under the Assistant Secretary for Community Planning and Development. The Office of Economic Development administers HUD's ongoing grant programs to assist local governments, nonprofit organizations and the private sector in economic development efforts.
BEDI was enacted in section 108(q) of the Housing and Community Development Act of 1974, as amended. Eligible applicants include units of general local government eligible for assistance under the Community Development Block Grant (CDBG) program, as well as urban counties that are eligible under the CDBG program. Each unit of general local government or CDBG-eligible urban county must use its BEDI award to enhance the security of a loan guaranteed by HUD under section 108 of the Housing and Community
On March 8, 2006, (71 FR 11712) HUD published a Super Notice of Funding Availability (SuperNOFA) announcing the availability of approximately $10,000,000 in FY 2006 funds for the BEDI program. The Department reviewed, evaluated and scored the applications received based on the criteria in the SuperNOFA. As a result, HUD funded the applications announced below, and, in accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, U.S.C. 3545), the Department is publishing details concerning the recipients of funding awards, as set forth below.
Office of the Secretary, National Invasive Species Council.
Request for Nominations for the Invasive Species Advisory Committee; Extension of Submission Deadline.
The U.S. Department of the Interior, on behalf of the interdepartmental National Invasive Species Council, proposes to appoint new members to the Invasive Species Advisory Committee (ISAC). The Secretary of the Interior, acting as administrative lead, is requesting nominations for qualified persons to serve as members of the ISAC.
Nominations should be sent to Lori Williams, Executive Director, National Invasive Species Council (OS/NISC), Regular Mail: 1849 C Street, NW., Washington, DC 20240; Express Mail: 1201 Eye Street, NW., 5th Floor, Washington, DC 20005.
Kelsey Brantley, Program Analyst, at (202) 513-7243, fax: (202) 371-1751, or by e-mail at
The purpose and role of the ISAC are to provide advice to the National Invasive Species Council (NISC), as authorized by Executive Order 13112, on a broad array of issues including preventing the introduction of invasive species, providing for their control, and minimizing the economic, ecological, and human health impacts that invasive species cause. NISC is Co-chaired by the Secretaries of the Interior, Agriculture, and Commerce, and is charged with providing coordination, planning and leadership regarding invasive species issues. Pursuant to the Executive Order, the Council developed a National Invasive Species Management Plan, which is available on the Web at
The role of ISAC is to maintain an intensive and regular dialogue regarding the aforementioned issues. ISAC provides advice in cooperation with stakeholders and existing organizations addressing invasive species. The ISAC meets up to three (3) times per year.
Terms for many of the current members of the ISAC will expire in June 2008. After consultation with the other members of NISC, the Secretary of the Interior will actively solicit new nominees and appoint members to ISAC. Prospective members of ISAC should be knowledgeable in and represent one or more of the following communities of interests: weed science, fisheries science, rangeland management, forest science, entomology, nematology, plant pathology, veterinary medicine, the broad range of farming or agricultural practices, biodiversity issues, applicable laws and regulations relevant to invasive species policy, risk assessment, biological control of invasive species, public health/epidemiology, industry activities, international affairs or trade, tribal or State government interests, environmental education, ecosystem monitoring, natural resource database design and integration, and Internet-based management of conservation issues.
Prospective nominees should also have practical experience in one or more of the following areas: representing sectors of the national economy that are significantly threatened by biological invasions (e.g., agriculture, fisheries, public utilities, recreational users, tourism, etc.); representing sectors of the national economy whose routine operations may pose risks of new or expanded biological invasions (e.g., shipping, forestry, horticulture, aquaculture, pet trade, etc.); developing natural resource management plans on regional or ecosystem-level scales; addressing invasive species issues, including prevention, control and monitoring, in multiple ecosystems and on multiple scales; integrating science and the human dimension in order to create effective solutions to complex conservation issues including education, outreach, and public relations experts; coordinating diverse groups of stakeholders to resolve complex environmental issues and conflicts; and complying with NEPA and other Federal requirements for public involvement in major conservation plans. Members will be selected in order to achieve a balanced representation of viewpoints, so to effectively address invasive species issues under consideration. No member may serve on the ISAC for more than two (2) consecutive terms. All terms will be limited to three (3) years in length.
Members of the ISAC and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the ISAC, members shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by section 5703 of Title 5, United States Code.
Employees of the Federal Government ARE NOT eligible for nomination or appointment to ISAC.
Nominations should be typed and must include each of the following:
1. A brief summary of no more than two (2) pages explaining the nominee's suitability to serve on the ISAC.
2. A resume or curriculum vitae.
3. At least two (2) letters of reference.
Incomplete nominations (missing one or more of the items described above) will not be considered.
The Secretary of the Interior, on behalf of the other members of NISC, is actively soliciting nominations of qualified minorities, women, persons with disabilities and members of low income populations to ensure that recommendations of the ISAC take into account the needs of the diverse groups served.
Bureau of Land Management (BLM), Interior.
Notice of intent.
The BLM Las Cruces District Office, New Mexico, intends to prepare an amendment to the Mimbres RMPA and associated EA to analyze the possible disposal, by either exchange or sale, of up to 6,002 acres of BLM-administered public land in Dona Ana County in southwestern New Mexico.
The BLM will announce public scoping meetings to identify relevant issues through local news media, newsletters, and the BLM Web site (
You may submit comments by any of the following methods:
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Documents pertinent to this proposal may be examined at the Las Cruces District Office at the above address. The 1993 Mimbres RMP is also posted on the following BLM Web site:
To have your name added to our mailing list, contact Lorraine J. Salas, Realty Specialist, at the Las Cruces District Office, 1800 Marquess Street, Las Cruces, New Mexico; telephone number (575) 525-4388; or e-mail at
This document provides notice that the BLM District Office, Las Cruces, New Mexico, intends to prepare a RMPA/EA for the Mimbres Planning Area and announces public scoping meetings.
The BLM is currently considering disposing of 6,002 acres. The public land proposed for disposal is currently identified for retention in Federal ownership in the 1993 Membres RMP. The RMP must, therefore, be amended to identify the public land as suitable for exchange and/or sale. The land proposed for disposal is described as follows:
The planning area is located in Dona Ana County, New Mexico. This planning activity encompasses approximately 6,002 acres of public land. The Plan will fulfill the needs and obligations set forth by the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and BLM management policies. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and National needs and concerns.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis and EA alternatives. These issues also guide the planning process. You may submit comments on issues and planning criteria in writing to the BLM at any public scoping meeting, or you may submit them to the BLM using one of the methods listed in the
Preliminary issues and management concerns have been identified by BLM personnel, other agencies, and in meetings with individuals and user groups. They represent the BLM's knowledge to date regarding the existing issues and concerns with current land management. The major issues that will be addressed in this planning effort include: wildlife and riparian habitat, rangeland resources, recreation, hazardous materials, and cultural resources.
After public comments, as to what issues the Plan should address are gathered, they will be placed in one of three categories:
1. Issues to be resolved in the Plan;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this Plan.
The BLM will provide an explanation in the Plan as to why an issue was placed in category two or three. In addition to these major issues, a number of management questions and concerns will be addressed in the Plan. The public is encouraged to help identify these questions and concerns during the scoping phase.
Preliminary planning criteria are:
1. The RMPA/EA process will be in compliance with FLPMA, NEPA, and applicable laws, regulations, and policies. The land use plan amendment process will be governed by the planning regulations at 43 CFR 1610 and BLM Land Use Planning Handbook H-1601-1.
2. Lands affected by the proposed plan amendment only apply to public surface and mineral estate managed by the BLM. No decisions will be made relative to non-BLM administered lands or non-Federal minerals.
3. Public participation will be an integral part of the planning process.
4. The plan amendment will recognize all valid existing rights.
5. The BLM will work with cooperating agencies, tribal governments, and other interested groups, agencies, and individuals during the RMPA/EA process.
6. The RMPA/EA will strive to be consistent with existing non-Federal plans and policies, provided the decisions in the existing plans are consistent with the purposes, policies, and programs of Federal law and regulations for BLM public land.
The BLM will use an interdisciplinary approach to develop the Plan in order to consider the variety of resource issues and concerns identified. Specialists with expertise in the following disciplines will be involved in the planning process: realty, recreation, cultural, minerals, range, wildlife, and hazardous materials.
United States International Trade Commission.
Scheduling of full five-year reviews concerning the countervailing duty order on carbon and certain alloy steel wire rod from Brazil and the antidumping duty orders on carbon and certain alloy steel wire rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine.
The Commission hereby gives notice of the scheduling of full reviews pursuant to section 751(c)(5) of the Tariff Act of 1930 (19 U.S.C. § 1675(c)(5)) (the Act) to determine whether revocation of the countervailing duty order on carbon and certain alloy steel wire rod from Brazil and the antidumping duty orders on carbon and certain alloy steel wire rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
January 8, 2008.
Olympia DeRosa Hand (202-205-3182), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 7) issued by the presiding administrative law judge (“ALJ”) granting a motion to amend the complaint and notice of investigation in the above-captioned investigation.
Paul M. Bartkowski, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
This investigation was instituted on September 18, 2007, based on a complaint filed by Pass & Seymour, Inc. (“Pass & Seymour”) of Syracuse, New York. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. **1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain ground fault interrupters and products containing the same by reason of infringement of certain claims of U.S. Patent Nos.: 5,594,398; RE38,293; 7,154,718; 7,164,564; 7,212,386; and 7,256,973. The complaint named 15 respondents.
On November 15, 2007, Pass & Seymour filed a motion to amend the
On December 6, 2007, finding good cause to amend the complaint and notice of investigation, the ALJ granted the motion by ID. No petitions for review were filed. The Commission has determined not to review the subject ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.14 and 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.14, 210.42).
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 5, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of International Business Machines Corporation of Armonk, New York. The complaint alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain computer products, computer components and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 5,008,829; 5,249,741; and 5,371,852. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Heidi E. Strain, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2606.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain computer products, computer components and products containing same by reason of infringement of one or more of claims 1 and 2 of U.S. Patent No. 5,008,829; claim 1 of U.S. Patent No. 5,249,741; and claims 1, 8, 13, 14, 22, and 23 of U.S. Patent No. 5,371,852, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—International Business Machines Corporation, New Orchard Road, Armonk, New York 10504.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Commission investigative attorney, party to this investigation, is Heidi E. Strain, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Theodore R. Essex is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or cease and a desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 7, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Tessera, Inc. of San Jose, California. Letters supplementing the complaint were filed on December 21 and 28, 2007. The complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain semiconductor chips with minimized chip package size and products containing same by reason of infringement of certain claims of U.S. Patent Nos. 5,679,977; 6,133,627; 5,663,106; and 6,458,681. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue exclusion orders and cease and desist orders.
The complaint except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Kecia J. Reynolds, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2580.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain semiconductor chips with minimized chip package size or products containing same by reason of infringement of one or more of claims 1-4, 9, 10, and 33-35 of U.S. Patent No. 5,663,106; claims 17 and 18 of U.S. Patent No. 5,679,977; claims 1-4, 6, 9-12, 15, and 16 of U.S. Patent No. 6,133,627; and claim 4 of U.S. Patent No. 6,458,681, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—Tessera, Inc., 3099 Orchard Drive, San Jose, California 95134.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Commission investigative attorney, party to this investigation, is Kecia J. Reynolds, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Suite 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Charles E. Bullock is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 4, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Seoul Semiconductor Company, Ltd. of Seoul, Korea. A letter supplementing the complaint was filed on December 11, 2007. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain short wavelength semiconductor lasers and products containing same that infringe claim 1 of U.S. Patent No. 5,321,713. The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue an exclusion order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Juan Cockburn, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2572.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2007).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain short wavelength semiconductor lasers or products containing same that infringe claim 1 of U.S. Patent No. 5,321,713, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is— Seoul Semiconductor Company, Ltd., 148-29 Kasan-Dong, Kuemchun-Gu, Seoul, 153-023, Korea.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served: Nichia Corporation, 491 Oka, Kaminaka-Cho, Anan-Shi, Tokushima 774-8601, Japan.
(c) The Commission investigative attorney, party to this investigation, is Juan Cockburn, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401Q, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondent in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of the respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 6, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Knowles Electronics, LLC of Itasca, Illinois.
The complainant request that the Commission institute an investigation and, after the investigation, issue an exclusion order and a cease and desist order.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC, 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Mareesa A. Frederick, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-3052.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain silicon microphone packages or products containing same by reason of infringement of one or more of claims 1 and 2 of U.S. Patent No. 6,781,231 and claims 1, 2, 9, 10, 15, 17, 20, 28, and 29 of U.S. Patent No. 7,242,089, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is—Knowles Electronics, LLC, 1151 Maplewood Drive, Itasca, Illinois 60143.
(b) The respondent is the following entity alleged to be in violation of section 337, and is the party upon which the complaint is to be served:
MEMS Technology Berhad, Unit 810, Block A, Pusat Dagangan Phileo II, 15 Jalan SS 16/11.
(c) The Commission investigative attorney, party to this investigation, is Mareesa A. Frederick, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401-O, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Carl C. Charneski is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(d) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or cease and desist order or both directed against a respondent.
By order of the Commission.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations concerning sodium nitrite from China and Germany. The Commission will issue a final phase notice of scheduling, which will be published in the
On November 8, 2007, a petition was filed with the Commission and Commerce by General Chemical LLC, Parsippany, NJ, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of sodium nitrite from China, and by reason of LTFV imports of sodium nitrite from China and Germany. Accordingly, effective November 8, 2007, the Commission instituted countervailing and antidumping duty investigations Nos. 701-TA-453 and 731-TA-1136-1137 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on December 26, 2007. The views of the Commission are contained in USITC Publication 3979 (January 2008), entitled
By order of the Commission.
60-Day Notice of Information Collection Under Review: Situational Policing Officer and Neighborhood Survey.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The revision of a currently approved information collection is published to obtain comments from the public and affected agencies.
The purpose of this notice is to allow for 60 days for public comment until March 14, 2008. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Rebekah Dorr, Department of Justice Office of Community Oriented Policing Services, 1100 Vermont Avenue, NW., Washington, DC 20530.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Type of Information Collection: Proposed collection; comments requested.
(2) Title of the Form/Collection: Situational Policing Officer and Neighborhood Survey.
(3) Agency form number, if any, and the applicable component of the Department sponsoring the collection: None. U.S. Department of Justice Office of Community Oriented Policing Services.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: A small number of law enforcement officers and residents in the following jurisdictions: Pittsburgh, PA, Cleveland, OH, Akron, OH, and Ohio County, WV.
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply:
It is estimated that approximately 1,600 respondents for the neighborhood survey for an average of 15 minutes per response.
It is estimated that approximately 200 respondents for the officer survey for an average of 10 minutes per response.
(6) An estimate of the total public burden (in hours) associated with the collection:
The total estimated burden is 433.5 hours.
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
30-Day Notice of Information Collection Under Review: COPS Application Guide.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the Federal Register Volume nn, Number nnn, page nnnnn on month, day, year, allowing for a 60 day comment period.
The purpose of this notice is to allow for an additional 30 days for public comment until February 13, 2008. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202) 395-5806. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Type of Information Collection: Extension of a previously approved collection, with change.
(2) Title of the Form/Collection: COPS Application Guide.
(3) Agency form number, if any, and the applicable component of the Department sponsoring the collection: None. U.S. Department of Justice Office of Community Oriented Policing Services.
(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Law enforcement agencies and other public and private entities that apply for COPS Office discretionary grants or cooperative agreements will be asked to review the COPS Application Guide: Open Competitive Programs. The COPS Application Open/Competitive Guide is the result of a COPS Office business process reengineering effort aimed at streamlining as required under the grant streamlining requirements of Public Law 106-107, the Federal Financial Assistance Management Improvement Act of 1999, as well as the President's Management Agenda E-grants Initiative. This collection combines the previously approved collection COPS Application Guide: Targeted/Invited Programs (1103-0096) with the collection COPS Application Guide: Open/Competitive Programs (1103-0095).
(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that 6,200 respondents annually will review the Guide within 1 hour.
(6) An estimate of the total public burden (in hours) associated with the collection: There are an estimated 6,200 total annual burden hours associated with this collection.
If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
Office of National Drug Control Policy (ONDCP).
ONDCP provides opportunity for public comment concerning the collection of information to identify the State and local resources that support Student Drug Testing Programs in the nation's schools.
This action proposes the collection of drug control information from State Educational Agencies regarding State and local support for the Student Drug Testing Programs.
The purpose of this survey is to gain a greater understanding of state and local level support for Student Drug Testing Programs. Currently, Federal support for SDT programs is available through discretionary grants and the Safe and Drug Free Schools State formula grant (Title IV). The information that is collected will be used to gain a greater understanding of state and local level support for Student Drug Testing (SDT) programs so as to better target scarce Federal resources.
ONDCP especially invites comments on: (a) Whether the proposed collection is necessary for the proper performance of ONDCP functions, including whether the information has practical utility; (b) ways to enhance information quality, utility, and clarity; and (c) ways to ease the burden on respondents, including the use of automated collection techniques or other forms of information technology.
Address all comments in writing within 60 days to Michael Reles. Facsimile and e-mail are the more reliable means of communication. Mr. Reles facsimile number is (202) 395-5176, and his e-mail address is
Office of National Drug Control Policy (ONDCP).
ONDCP provides opportunity for public comment concerning the collection of information to identify the State and local resources that support Student Drug Testing Programs in the nation's schools.
This action proposes the collection of drug control information from State Educational Agencies regarding State and local support for the Student Drug Testing Programs.
The purpose of this survey is to gain a greater understanding of state and local level support for Student Drug Testing Programs. Currently, Federal support for SDT programs is available through discretionary grants and the Safe and Drug Free Schools State formula grant (Title IV). The information that is collected will be used to gain a greater understanding of state and local level support for Student Drug Testing (SDT) programs so as to better target scarce Federal resources.
ONDCP especially invites comments on: (a) Whether the proposed collection is necessary for the proper performance of ONDCP functions, including whether the information has practical utility; (b) ways to enhance information quality, utility, and clarity; and (c) ways to ease the burden on respondents, including the use of automated collection techniques or other forms of information technology.
Address all comments in writing within 60 days to Michael Reles. Facsimile and e-mail are the more reliable means of communication. Mr. Reles facsimile number is (202) 395-5176, and his e-mail address is
U.S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
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Submit, by March 14, 2008 comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Margaret A. Janney (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-7245, or by e-mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of opportunity for public comment.
The U.S. Nuclear Regulatory Commission (NRC) is proposing to issue a regulatory issue summary (RIS) to inform addressees of requirements concerning the implementation of changes authorized by a 10 CFR Part 72 dry storage cask Certificate of Compliance (CoC) amendment to a cask loaded under the original CoC or an earlier amendment thereto (“previously loaded cask”). The NRC will include review of this matter in future inspections to verify compliance with these requirements.
This
Comment period expires March 31, 2008. Comments submitted after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except for comments received on or before this date.
Submit written comments to the Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Mail Stop T6-D59, Washington, DC 20555-0001, and cite the publication date and page number of this
Robert A. Nelson at 301-492-3294 or by e-mail at
All general licensees under the provisions of Subpart K, of Part 72 of Title 10 of the
The U.S. Nuclear Regulatory Commission (NRC) is issuing this regulatory issue summary (RIS) to inform addressees of requirements concerning the implementation of changes authorized by a 10 CFR Part 72 dry storage cask Certificate of Compliance (CoC) amendment to a cask loaded under the original CoC or an earlier amendment thereto (“previously loaded cask”). The NRC will include review of this matter in future inspections to verify compliance with these requirements. No specific action or written response is required.
The NRC initially considered this issue after a general licensee sought clarification about the application of a CoC amendment to a previously loaded cask. Subsequently, during the May 2007 Nuclear Energy Institute Dry Storage Information Forum, NRC staff described agency requirements for the implementation of CoC amendments to previously loaded casks. Staff told forum participants that 10 CFR Part 72 requires licensees to obtain NRC approval if licensees wish to apply any changes of a CoC amendment to a previously loaded cask, if such changes result in a change to the terms or conditions (including the technical specifications) of the CoC under which the cask was loaded.
Some licensees have asserted that 10 CFR 72.48 allows them to apply some or all of the changes of a CoC amendment to a previously loaded cask without obtaining express NRC approval. This essentially, allows an “upgrade” of the CoC. NRC's position is that such an upgrade, if it involves a change to a term, condition, or specification of the CoC, would be tantamount to amending the design basis of the previously loaded cask, and as such, express NRC approval is required.
10 CFR 72.210 grants the authority to store spent fuel in an independent spent fuel storage installation (ISFSI) at power reactor sites to persons authorized to possess or operate nuclear power reactors under the provisions of 10 CFR Part 50. Regulations at 10 CFR 72.212 set forth the conditions of such a general license, including the condition that such spent fuel must be stored in casks, the design of which is approved under the provisions of 10 CFR Part 72. The NRC issues a CoC for each approved cask design.
Further, 10 CFR 72.212 requires the general licensee to notify the NRC at least 90 days before the first storage of spent fuel under the general license.
Regulations at 10 CFR 72.212 also require that any changes made to the written evaluation required by that section must be made in accordance with 10 CFR 72.48(c), the NRC regulation governing changes, tests, and experiments made by a licensee or a certificate holder to a spent fuel storage cask design.
If the CoC holder or a general licensee (through the CoC holder) desires to amend the CoC, such that the amendment results in a change to the terms, conditions, or specifications of the CoC, then the CoC holder must submit a proposed CoC amendment to NRC. Such an amendment must be approved by NRC before it can be effective.
The NRC's practice is to consider each CoC amendment as a new design basis. Thus, each CoC amendment requires an NRC rulemaking before the amendment is effective.
Further, a previously loaded cask is bound by the terms, conditions, and specifications of the CoC under which the cask was loaded. The applicable NRC regulation states that the licensee shall:
“Maintain a copy of the Certificate of Compliance and documents referenced in the certificate for each cask model used for storage of spent fuel, until use of the cask model is discontinued. The licensee shall comply with the terms and conditions of the certificate.”
Therefore, a licensee seeking to implement changes from a later CoC amendment to a previously loaded cask must obtain NRC approval if the changes alter the terms and conditions of the CoC under which the cask was loaded. NRC approval would be in the form of an exemption.
Some general licensees have asserted that 10 CFR 72.48 provides a basis to apply CoC amendment changes to a previously loaded cask, without express NRC approval, even if such changes result in a change to the terms, conditions, or specifications of the CoC under which the cask was loaded. The NRC does not interpret 10 CFR 72.48 (nor 10 CFR 72.212) to allow for such a cask upgrade without express NRC approval. The only reference to 10 CFR 72.48 in 10 CFR 72.212 is that the licensee “shall evaluate any changes to written evaluations required by [10 CFR 72.212(b)(2)(i)] using the requirements of § 72.48(c).”
The October 4, 1999, Statement of Consideration to the rule that revised 10 CFR 72.48 explained the purpose of 10 CFR 72.48(c) as establishing the conditions that a licensee must meet to: (a) Make changes to cask design as described in the FSAR; (b) make changes to the procedures as described in the FSAR; or (c) conduct tests or experiments not described in the FSAR, without prior NRC approval.
Certainly, upon NRC approval of a new CoC amendment for a particular cask model, a licensee can load an empty cask of that model under that amendment, provided the loading is otherwise in accordance with 10 CFR 72.212. A previously loaded cask, however, relies upon an earlier design basis, and the licensee's use of that previously loaded cask is bounded by the terms, conditions, and specifications of the CoC under which that cask was loaded.
This RIS only provides clarification of 10 CFR part 72, subparts L and K requirements. This RIS does not impose a regulatory staff position or interpretation of the Commission's rules that is either new or different from a previously applicable position. Further, this RIS requires no action or written response. Any addressee action in accordance with the information contained in this RIS is strictly voluntary. Thus, under the provisions of 10 CFR 50.109 and 72.62 this RIS does not constitute a backfit. Consequently, the staff did not perform a backfit analysis.
A notice of opportunity for public comment on this RIS was published in the
This RIS is not a rule as designated by the Congressional Review Act (5 U.S.C. 801-808), and therefore it is not subject to the Act.
This RIS does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Existing requirements were approved by the Office of Management and Budget (OMB), approval number 3150-0011, which expires on June 30, 2010, and 3150-0132, which expires on April 30, 2008.
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
Please direct any questions about this matter to the technical contact listed below or to the appropriate regional office.
Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Notice of the issuance of license amendment No. 15 and the opportunity to request a hearing.
A request for a hearing must be filed by March 10, 2008.
Thomas McLaughlin, Project Manager, Materials Decommissioning Branch, Division of Waste Management and Environmental Protection, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: (301) 415-5869; fax number: (301) 415-5369; e-mail:
The Nuclear Regulatory Commission (NRC) has issued a license amendment to Facility Operating License R-115 that allows decommissioning of the University of Illinois's (University's or licensee's) Nuclear Research Laboratory (NRL) Advanced Teaching Research Isotope General Atomic (TRIGA) Mark II nuclear research reactor located on the campus of the University of Illinois at Champaign-Urbana in the city of Urbana, Illinois.
By letters dated March 28, 2006 (See ADAMS ML060900623), and August 20, 2007 (See ADAMS ML072550089), the licensee submitted a Decommissioning Plan (DP) in accordance with 10 CFR 50.82(b)(1), in order to dismantle the TRIGA Reactor, to dispose of its component parts and radioactive material, and to decontaminate the facilities in accordance with the proposed DP to meet the Commission's unrestricted release criteria. After the Commission verifies that the release criteria have been met, Facility Operating License No. R-115 will be terminated.
The University of Illinois ceased operations of the NRL TRIGA reactor on August 6, 1998, and it was placed in a Safe Storage (SAFSTOR) condition. On August 18, 2004, the reactor fuel was removed and shipped to the U.S. Department of Energy's Idaho National Laboratory.
A “Notice and Solicitation of Comments Pursuant to 10 CFR 20.1405 and 10 CFR 50.82(b)(5) Concerning Proposed Action to Decommission the University of Illinois at Urbana-Champaign Nuclear Reactor Laboratory” was published in the
The University of Illinois is planning unrestricted use for the area that would be released. The NRC Final Rule on License Termination, 10 CFR 20.1402, provides radiological criteria for release of a site for unrestricted use. Release criteria for unrestricted use is a maximum Total Effective Dose Equivalent (TEDE) of 25 mrem per year from residual radioactivity above background and doses as low as reasonably achievable (ALARA). The results of the final status survey will be used to demonstrate that the predicted dose to a member of the public from any residual radioactivity does not exceed the 25 mrem per year dose limit. The NRC will perform inspections and if necessary a confirmatory survey to verify that the decommissioning activities and the final status survey results are acceptable.
Based on the review of the specific proposed activities associated with the dismantling and decontamination of the NRL, which includes the TRIGA Reactor, the staff has determined that the proposed action will not increase the probability or consequences of accidents. No changes are being made in the types of any effluents that may be released off site, and there will be no significant increase in occupational or public radiation exposure above those during the operation of the facility. Therefore, the staff concludes that there are no significant radiological environmental impacts associated with the proposed action.
The NRC hereby provides notice that this is a proceeding on an application for a license amendment regarding the decommissioning of the University of Illinois NRL test reactor. Any person whose interest may be affected by this proceeding and who desires to participate as a party must file a request for a hearing and, a specification of the contentions which the person seeks to have litigated in the hearing, in accordance with the NRC E-Filing rule, which the NRC promulgated in August, 2007, 72 FR 49139 (Aug. 28, 2007). The E-Filing rule requires participants to submit and serve documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE
A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(c)(1)(viii). To be timely, filings must be submitted no later than 11:59 p.m. Eastern Standard Time on the due date.
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The formal requirements for documents contained in 10 CFR 2.304(c)-(e) must be met. If the NRC grants an electronic document exemption in accordance with 10 CFR 2.302(g)(3), then the requirements for paper documents, set forth in 10 CFR 2.304(b) must be met.
In accordance with 10 CFR 2.309(b), a request for a hearing must be filed by March 10, 2008.
In addition to meeting other applicable requirements of 10 CFR 2.309, the general requirements involving a request for a hearing filed by a person other than an applicant must state:
1. The name, address, and telephone number of the requester;
2. The nature of the requester's right under the Act to be made a party to the proceeding;
3. The nature and extent of the requester's property, financial or other interest in the proceeding;
4. The possible effect of any decision or order that may be issued in the proceeding on the requester's interest; and
5. The circumstances establishing that the request for a hearing is timely in accordance with 10 CFR 2.309(b).
In accordance with 10 CFR 2.309(f)(1), a request for hearing or petitions for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:
1. Provide a specific statement of the issue of law or fact to be raised or controverted;
2. Provide a brief explanation of the basis for the contention;
3. Demonstrate that the issue raised in the contention is within the scope of the proceeding;
4. Demonstrate that the issue raised in the contention is material to the findings that the NRC must make to support the action that is involved in the proceeding;
5. Provide a concise statement of the alleged facts or expert opinions which support the requester's/petitioner's position on the issue and on which the requester/petitioner intends to rely to support its position on the issue; and
6. Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the requester/petitioner disputes and the supporting reasons for each dispute, or, if the requester/petitioner believes the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the requester's/petitioner's belief.
In addition, in accordance with 10 CFR 2.309(f)(2), contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to the petitioner. On issues arising under the National Environmental Policy Act, the requester/petitioner shall file contentions based on the applicant's environmental report. The requester/petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement; and environmental assessment or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
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If the requester/petitioner believes a contention raises issues that cannot be classified as primarily falling into one of these categories, the requester/petitioner must set forth the contention and supporting bases, in full, separately for each category into which the requester/petitioner asserts the contention belongs with a separate designation for that category.
Requesters/petitioners should, when possible, consult with each other in preparing contentions and combine similar subject matter concerns into a joint contention, for which one of the co-sponsoring requesters/petitioners is designated the lead representative. Further, in accordance with 10 CFR 2.309(f)(3), any requester/petitioner that wishes to adopt a contention proposed by another requester/petitioner must do so, in accordance with the E-Filing rule, within ten days of the date the contention is filed, and designate a representative who shall have the authority to act for the requester/petitioner.
In accordance with 10 CFR 2.309(g), a request for hearing and/or petition for leave to intervene may also address the selection of the hearing procedures, taking into account the provisions of 10 CFR 2.310.
For further details with respect to the proposed action, see the licensee's letters dated March 28, 2006 (See ADAMS ML060900623), August 20, 2007 (See ADAMS ML072550089), the Environmental Assessment and Finding of No Significant Impact (See ADAMS ML073020387), and the Safety Evaluation Report (See ADAMS ML073330022), which are available for public inspection, and can be copied for a fee, at the U.S. Nuclear Regulatory Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC maintains an Agency-wide Documents Access and Management System (ADAMS), which provides text and image files of NRC(s public documents. These documents may be accessed through the NRC(s Public Electronic Reading Room on the internet at
Persons who do not have access to ADAMS or who have problems in accessing the documents located in ADAMS may contact the PDR reference staff at 1-800-397-4209, 301-415-4737 or by e-mail at
For the Nuclear Regulatory Commission.
Week of January 14, 2008.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g., braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-415-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Notice is hereby given that the Nuclear Regulatory Commission (NRC, the Commission) has received an application from AREVA NP Inc. (AREVA) dated December 11, 2007, filed pursuant to section 103 of the Atomic Energy Act and Title 10 of the
The U.S. EPR design is an approximately 1600 megawatts electric evolutionary pressurized water reactor (PWR). The primary system design, loop configuration, and main components design are similar to those of currently operating PWRs. The U.S. EPR contains unique design features, such as four redundant trains of emergency core cooling; Containment and Shield Building, and a core melt retention system for severe accident mitigation. The U.S. EPR application includes the entire power generation complex,
A copy of the application will be available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice of Commission Tours.
Postal Regulatory Commissioners and advisory staff members will tour the Valpak Manufacturing Center in St. Petersburg, Florida on January 14, 2008, and the GameFly plant in Tampa, Florida on January 15, 2008. The purpose is to observe and discuss mailing operations.
January 14-15, 2008.
Ann Fisher, Chief of Staff, Postal Regulatory Commission, 202-789-6803.
Railroad Retirement Board (RRB).
Notice of Records Used in Computer Matching Programs; Notification to individuals who are beneficiaries under the Railroad Retirement Act.
As required by the Computer Matching and Privacy Protection Act of 1988, RRB is issuing public notice of its use and intent to use, in ongoing computer matching programs, civil service benefit and payment information obtained from the Office of Personnel Management (OPM).
The purpose of this notice is to advise individuals applying for or receiving benefits under the Railroad Retirement Act of the use made by RRB of this information obtained from OPM by means of a computer match.
Interested parties may comment on this publication by writing to Ms. Beatrice Ezerski, Secretary to the Board, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092.
Ms. Lynn Harvey, Privacy Act Officer, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092, telephone number (312) 751-4869.
The Computer Matching and Privacy Protection Act of 1988, Public Law 100-503, requires a Federal agency participating in a computer matching program to publish a notice regarding the establishment of a matching program.
The notice we are giving here is in addition to any individual notice.
A copy of this notice has been or will be furnished to both Houses of Congress and the Office of Management and Budget.
By authority of the Board.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form 40-F (17 CFR 249.240f) is used by certain Canadian issuers to register securities pursuant to Section 12 of the Securities Exchange Act of 1934 (“Exchange Act”) (15 U.S.C. 78
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Form CB (17 CFR 239.800) is a tender offer statement filed in connection with a tender offer for a foreign private issuer. This form is used to report an issuer tender offer conducted in compliance with Exchange Act Rule 13e-4(h)(8) (17 CFR 240.13e-4(h)(8)) and a third-party tender offer conducted in compliance with Exchange Act Rule 14d-1(c) (17 CFR 240.14d-1(c)). Form CB takes approximately .5 hours per response to prepare and is filed by 200 issuers annually. We estimate that 25% of the .5 hours per response (.125 hours) is prepared by issuer for an annual reporting burden of 25 hours (.125 hours per response × 200 responses). The remaining 75% of the burden hours is prepared by outside counsel.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Regulation 14D (17 CFR 240.14d-1-240.14d-11) and Regulation 14E (17
Written comments are invited on: (a) Whether these collections of information are 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 the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Schedule TO (17 CFR 240.14d-100) must be filed by a reporting company that makes a tender offer for its own securities. Also, persons other than the reporting company making a tender offer for equity securities registered under section 12 of the Exchange Act (15 U.S.C. 78
Written comments are invited on: (a) Whether this 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 the burden imposed by the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, Virginia 22312; or send an e-mail to:
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
Pursuant to Rule 608(b)(3)(i) under the Act,
The CTA Plan and the CQ Plan both currently provide, in attached Schedules A-3, for a usage-based, per quote fee for non-professional Network B subscribers. The fee is based on the number of quotes disseminated during a month, and is $.0075 per quote for the first 20 million quotes, $.0050 per quote for the next 20 million quotes, and $.0025 for each additional quote thereafter. This pricing schedule is an alternative to monthly display charges. Vendors may cap at $1.00 the per-quote-packet charges payable for any month in respect of any customer that qualifies as a non-professional subscriber, regardless of how many quote-packets the customer may receive during the month.
Following a pilot program that began on June 1, 2006, the Amendments propose to permanently extend the usage-based, per query pricing schedule to professional Network B subscribers as well. However, the $1.00 monthly cap described in the preceding paragraph will not apply to such professional subscribers. The text of the proposed Amendments is available on the CTA's Web site (
Not applicable.
The proposed pricing schedule for professional Network B subscribers has previously been implemented under the pilot program that began on June 1, 2006. The Amendments will make this per query pricing permanent for professional subscribers and have become effective upon filing.
The Amendments will impose no burden on competition.
The Participants have no written understandings or agreements relating to interpretation of the CTA Plan or the CQ Plan as a result of the Amendments.
Under Section XII(b) of the CTA Plan, each Plan Participant must execute a written amendment to the CTA Plan before the amendment can become effective. Under Section IX(b) of the CQ Plan, each CQ Plan Participant must execute a written amendment to the CQ Plan before the amendment can become effective. Both Amendments are so executed.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
The Network B Participants and the vendors that the proposed Amendments would affect have already entered into the Network B Participants' standard form of agreement. No new terms of access will apply.
Not applicable.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed Amendments are consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Aampro Group, Inc. (“Aampro”) because of questions regarding the adequacy and accuracy of information in Aampro's public filings concerning, among other things: (1) The company's business operations, (2) the company's business combinations, and (3) the company's current financial condition.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the above-listed company is suspended for the period from 9:30 a.m. EST January 10, 2008, through 11:59 p.m. EST on January 24, 2008.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the Amex options specialist financial requirements to eliminate the add-on of $25,000 for each option class in excess of the initial twenty-five issues in which the specialist is registered. The text of the proposed rule change is available on the Amex's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Amex is proposing to amend Rule 950-ANTE(h). Rule 950-ANTE(h) currently requires an option specialist to maintain minimum tentative net capital in the amount of $1,000,000 plus $25,000 for each option issue (option class) in excess of the initial twenty-five issues in which the specialist is registered. The amendment would eliminate the $25,000 add-on for each option class in excess of the initial twenty-five option classes.
Amex member firms are subject to both the Amex and the Commission's net capital rule.
The Exchange believes that the proposed rule change is consistent with
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.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change; or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to expand, and make permanent, the $1 Strike Price Program (the “Program”). The text of the proposed rule change is available at Amex, the Commission's Public Reference Room, and
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The current Program
The Program prohibits the Exchange from listing $1 strikes on any series of individual equity option classes that have greater than nine (9) months until expiration. In addition, the Exchange is also restricted from listing any series that would result in strike prices being $0.50 apart.
The Exchange proposes to expand the Program to permit Amex to select a total of ten (10) individual stocks on which option series may be listed at $1 strike price intervals. The Exchange also proposes to expand the strike price range on which it may list $1 strikes. The proposed new strike price range will be $3-$50. The existing restrictions on listing strike prices will remain the same as before: (1) No strike price may be listed that is greater than $5 from the underlying stock's closing price in its primary market on the previous trading day; and (2) the Exchange is restricted from listing any series that would result in strike prices being more than $0.50 apart.
The Exchange believes that one point strike price intervals in selected equity options provide investors with more flexibility in the trading of equity options that overlie lower priced stocks by allowing investors to establish equity options positions that are better tailored to meet their investment objectives.
With regard to the impact on systems capacities, the Exchange represents that the overall impact on capacity is still minimal and that it has sufficient capacity to handle an expansion of the Program, as proposed.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
The Exchange believes that the proposed rule change will impose no burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange states that no written comments were solicited or received with respect to the proposed rule change.
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-Amex-2007-141. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
After careful review, 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.
Specifically, the Commission believes that the proposed expansion to permit the Exchange to select a total of 10 individual underlying stocks trading at less than $50 on which option series may be listed at $1 strike price intervals, and the request to make the Program permanent, should provide investors with added flexibility in the trading of equity options and further the public interest by allowing investors to establish equity options positions that are better tailored to meet their investment objectives. The Commission also believes that the proposal strikes a reasonable balance between the Exchange's desire to accommodate market participants by offering a wider array of investment opportunities and the need to avoid unnecessary proliferation of options series and the corresponding increase in quotes. The Commission notes that the existing restrictions on listing $1 strike price intervals will continue to apply,
The Commission expects the Exchange to continue to monitor for options with little or no open interest and trading activity and to act promptly to delist such options. In addition, the Commission expects that Amex will continue to monitor the trading volume associated with the additional options series listed as a result of this proposal and the effect of these additional series on market fragmentation and on the capacity of the Exchange's, OPRA's, and vendors' automated systems.
The Commission finds good cause for approving the proposed rule change before the 30th day after the date of publication of notice of filing thereof in the
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend the Boston Options Exchange (“BOX”) rules related to Contrary Exercise Advice violations. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to increase and strengthen the sanctions imposed pursuant to its Minor Rule Violation Plan (“MRVP”) on any member who fails to submit to the Exchange in a timely manner, pursuant to BOX Rules Chapter X, section 2(f), “Contrary Exercise Advice Violations” or exercise instruction relating to the exercise or nonexercise of a noncash-settled equity option. The Exchange believes that increasing the fine levels specified with
In addition, the Exchange, as a member of the Intermarket Surveillance Group (“ISG”) executed and filed on October 29, 2007 with the Commission, a final version of an Agreement pursuant to section 17(d) of the Act (the “17d-2 Agreement”).
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
BSE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange neither solicited nor received comments on the proposal.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 9, 2007, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
CBOE proposes to reduce the continuous electronic quoting obligation of DPMs in multiply-listed option classes, and make them consistent with
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to modify the fees charged for the Mutual Fund Quotation Service (“MFQS”) and to correct certain errors in the rule manual. The text of the proposed rule change is available at
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq seeks retroactive approval for the implementation of MFQS fees previously approved when MFQS was operated as a facility of The National Association of Securities Dealers (“NASD”) but not transferred to the corresponding Nasdaq rule when Nasdaq commenced operations as a national securities exchange on August 1, 2006. Nasdaq is also seeking approval effective on January 1, 2008, for changes to eliminate the fee differential between News Media and Supplemental listings.
Subsection (e) of NASD Rule 7090 was approved by the Commission in connection with its approval of SR-NASD-2003-52 effective as of August 7, 2003.
Nasdaq seeks to change the fees charged for the News Media and Supplemental Lists to reflect a conformity of effort by Nasdaq in providing both services. MFQS was created to collect and disseminate data pertaining to the value of open-end and closed-end mutual funds, money market funds, and unit investment trusts. MFQS has two “lists” in which a fund or trust may be included: (1) The News Media List and (2) the Supplemental List. The listing requirements for the News Media List are different than the listing requirements for the Supplemental List, so a fund will only qualify for one list or the other. If a fund or trust is listed on the News Media List, pricing information about the fund or trust is eligible for inclusion in the fund/trust tables of newspapers and is also eligible for dissemination over Nasdaq's Mutual Fund Dissemination Service (“MFDS”) data feed, which is distributed to market data vendors. If the fund or trust is listed on the Supplemental List, the pricing information about the fund or trust
Historically, Nasdaq spent more time and effort compiling and disseminating the News Media List, which justified its higher fee. Over time, Nasdaq has enhanced its processes and technology; as a result, the effort it takes to compile the two lists generally is the same. Nasdaq follows similar processes in the development of the Lists: both require the same processing to set up, both are disseminated to the public over the same data feed using the same message formats, and both require the same technical support. Given the uniformity of effort, Nasdaq believes that the pricing distinction between the two Lists is no longer valid and seeks with this filing to establish a uniform price for both. The new uniform price represents a decrease in fees for the News Media List and an increase for the Supplemental List, which reflects Nasdaq's enhanced system and extended reporting session.
With this filing, Nasdaq seeks to raise the Supplemental List fee by $100 and lower the News Media List by $25 as compared to the fees currently being charged, effective on January 1, 2008. The increase reflects additional services rendered in providing the Supplemental List, and the decrease is for sake of conformity. Fees were last raised over two years ago.
Nasdaq believes that the proposed rule change is consistent with section 6(b) of the Act
Nasdaq does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change; or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning 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, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Commentary .05 to Phlx Rule 1012 (Series of Options Open for Trading) to expand the $1 Strike Pilot Program (“$1 Pilot”) and to request permanent approval of the $1 Pilot.
In its filing with the Commission, Phlx included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to expand the number of options classes eligible for the $1 Pilot and the range in which $1 strikes may be listed, and to request permanent approval of the $1 Pilot, thereby providing investors with greater flexibility in the trading of equity options that overlie lower priced stocks and allowing equity options positions that are better tailored to meet investment objectives.
The $1 Pilot, under the terms set forth in Commentary .05 to Phlx Rule 1012, currently allows the Exchange to establish $1 strike price intervals on options classes overlying no more than five individual stocks designated by the Exchange where: (1) The underlying stock closes below $20 on the primary market on the trading day before selection by the Exchange; (2) the $1 strike price is from $3 to $20; (3) the $1 strike price is no more than $5 above or below the closing price of the underlying stock on the preceding day; and (4) the $1 strike price is not within $0.50 of an existing $2.50 strike price in the same series. The Exchange may not list long-term option series (“LEAPS”) at $1 strike price intervals for any class selected for the $1 Pilot. In addition, pursuant to the $1 Pilot, the Exchange may list $1 strike prices on any other option classes if those classes are specifically designated by other securities exchanges that employ a similar $1 strike price program under their respective rules.
The Exchange proposes to expand the $1 Pilot to allow it to select a total of 10, instead of the current 5, individual stocks on which option series may be listed at $1 strike price intervals. Additionally, the Exchange proposes to expand the price range on which it may list $1 strikes to $3-$50, instead of the current $3-$20. The proposed expanded and permanent $1 Pilot would be known as the “$1 Strike Program.” The Exchange notes that the existing restrictions on listing $1 strikes would continue to apply;
As stated in the Commission order approving Phlx's $1 Pilot and in the subsequent extensions of the $1 Pilot,
Phlx's last $1 Pilot report (the “Report”) reviewed the Exchange's positive experience with the $1 Pilot.
Finally, because the $1 Pilot has been very successful in allowing investors to establish equity options positions that are better tailored to meeting their investment objectives, Phlx requests that the $1 Pilot, as expanded, be approved on a permanent basis.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange states that no written comments on the proposed rule change were either solicited or received.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay so that the Exchange can immediately implement listing rules that are similar to those of other options exchanges.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new and/or currently approved information collection.
Submit comments on or before March 14, 2008.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimates are accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Jules Lichtenstein, Senior Economist, Office of Advocacy, Small Business Administration, 409 3rd Street, SW., 7th Floor, Washington, DC 20416.
Jules Lichtenstein, Senior Economist, Office of Advocacy, 202-205-6537,
Department of State.
Notice of Availability of the Final Environmental Impact Statement (FEIS) for the Proposed TransCanada Keystone Pipeline Project.
This notice advises the public that the Department of State intends to file a Final Environmental Impact Statement (FEIS) for the Proposed TransCanada Keystone Pipeline Project with the U.S. Environmental Protection Agency (EPA) and that the FEIS is now available to the public for review. The proposed action is the granting by the Department of State of a Presidential permit to TransCanada Keystone Pipeline, LLC (“Keystone”) for the construction, operation, and maintenance of pipeline facilities at the border of the U.S. and Canada for the transport of crude oil across the U.S.-Canada international boundary. The pipeline would enter the United States at the U.S.-Canada border in North Dakota and travel through South Dakota, Nebraska, Kansas, Missouri, Illinois, and Oklahoma.
On April 19, 2006, TransCanada Keystone Pipeline, LLC (“Keystone”) filed an application for a Presidential permit for the construction, operation, and maintenance of pipeline facilities at the border of the U.S. and Canada for the transport of crude oil across the U.S.-Canada international boundary. Keystone has requested authorization to construct and operate the border crossing facilities at the U.S.-Canada border at Cavalier County, North Dakota, in connection with its proposed international pipeline project (the “Keystone pipeline project”), which is designed to transport incremental Canadian crude oil production from the Western Canadian Sedimentary Basin (“WCSB”) to an existing refinery in Wood River, Illinois, and existing terminals in Patoka, Illinois, and Cushing, Oklahoma.
The Secretary of State is designated and empowered to receive all applications for Presidential permits, as referred to in Executive Order 13337, as amended, for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the exportation or importation of petroleum, petroleum products, coal, or other fuels to or from a foreign country.
The FEIS was prepared to satisfy the requirements of the National Environmental Policy Act (NEPA) and to evaluate the potential environmental impacts of the proposed Keystone pipeline project. The document also evaluates alternatives to the proposal, including system alternatives and pipeline route alternatives. The FEIS contains the Department's response to timely comments received on the draft EIS that was made available to the public for review on August 9, 2007 (72 FR 44908). The FEIS also discloses that the proposed action is the preferred alternative of the Department of State.
As noted in the October 11, 2006, Notice of Intent To Prepare an Environmental Impact Statement and To Conduct Scoping Meetings for the TransCanada Keystone Pipeline (71 FR 59849), the Department of State used the scoping process to help identify consulting parties and historic preservation issues for consideration under Section 106 of the National Historic Preservation Act and its implementing regulations (36 CFR part 800).
The FEIS addresses the potential environmental effects of the construction and operation of the United States portion of the Keystone Pipeline Project. In total, the Keystone Project would consist of the Mainline Project (approximately 1,078 miles of pipeline in the United States) and the Cushing Extension (293.5 miles of pipeline in the United States). Including the Cushing Extension, the total length of pipeline in the United States would be 1,371.5 miles.
The FEIS describes and evaluates the U.S. portion of the proposed Keystone Project, including both the Mainline Project and Cushing Extension, and the additional facilities required to increase throughput capacity of the pipeline to 591,000 bpd.
U.S. States and counties that could possibly be affected by construction of the proposed pipeline, including the proposed Cushing extension, are:
• North Dakota: Pembina, Cavalier, Walsh, Nelson, Steele, Barnes, Ransom, Dickey, and Sargent;
• South Dakota: Marshall, Brown, Day, Clark, Beadle, Kingsbury, Miner, Hanson, McCook, Hutchinson, and Yankton;
• Nebraska: Cedar, Wayne, Stanton, Platte, Colfax, Butler, Seward, Saline, Jefferson, and Gage;
• Kansas: Marshall, Nemaha, Brown, Washington, Clay, Dickinson, Marion, Butler, Cowley, and Doniphan;
• Missouri: Buchanan, Clinton, Caldwell, Carroll, Chariton, Randolph, Audrain, Montgomery, Lincoln, and St. Charles;
• Illinois: Madison, Bond, Fayette, Marion, and Clinton; and
• Oklahoma (under a possible future extension): Kay, Noble, and Payne.
Copies of the FEIS have been mailed to interested federal, state and local agencies; public interest groups; individuals and affected landowners who requested a copy of the FEIS or who provided substantive comments on the draft EIS; libraries; newspapers; and other stakeholders.
The Department intends to issue its Record of Decision (ROD) for the Keystone Pipeline Project no earlier than 30 days after the Environmental Protection Agency publishes a Notice of Availability for the FEIS in the
The TransCanada Keystone Pipeline application for a Presidential Permit, including associated maps and drawings; the FEIS; a list of libraries where the FEIS may be viewed; and other project information is available for viewing and download at the project Web site:
Those wishing to comment on the FEIS, to request a CD-ROM copy of the final EIS or with additional questions, please contact Elizabeth Orlando, OES/ENV Room 2657, U.S. Department of State, Washington, DC 20520, or by telephone (202) 647-4284, or by fax at (202) 647-5947.
Notice is hereby given of the following determinations: Pursuant to
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8048). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: (202-453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
Department of Transportation, Maritime Administration.
Notice.
Pursuant to section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA), as implemented by the Council on Environmental Quality regulations (40 CFR parts 1500-1508), the U.S. Department of Transportation Maritime Administration (MARAD) announces publication of a draft EIS for improvements to Kahului Harbor, Maui County, needed to address the community's needs for commercial harbor facilities through 2030. We are issuing this notice in compliance with NEPA and implementing regulations for the following purposes: (1) To advise other agencies and the public of our action; and (2) to announce a public meeting.
Comments on this DEA must be received by February 28, 2008. The public meeting will be held on January 23, 2008, at The Cameron Center, 95 Mahalani Street Wailuku, Maui, Hawaii 96793, from 6 p.m. to 9 p.m.
Address requests for more information related to the EIS or requests to be added to the mailing list for this project to John Kirkpatrick, Belt Collins Hawaii, 2153 N. King Street, Suite 200, Honolulu, HI, 96819, e-mail:
For access to the docket to read background documents or comments received, go to
The Hawaii State Department of Transportation (HI DOT) has previously conducted planning for Kahului Harbor, leading to a 2025 Master Plan and Environmental Assessment. However, demand for harbor facilities has been much greater than anticipated, and space for current operations is very tight. The 2025 Master Plan called for development of new pier and harbor space at the west breakwater of the harbor. HI DOT has conducted a new
The Draft EIS addresses the following issues: (1) Demand for additional space and facilities at Kahului; (2) organization of harbor space and facilities to promote and preserve orderly cargo operations, passenger operations, and recreational activity; and (3) environmental impacts of proposed alternatives. The Preferred Alternative involves development of passenger facilities in the West Breakwater area, along with expansion of Piers 1 and 2 and development of new cargo handling areas near those piers. Significant impacts could affect corals and surf sites.
Written comments will be available at the Document Management System Web site (
49 CFR 1.66.
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel PAYDIRT.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2008-0002 at
Submit comments on or before February 13, 2008.
Comments should refer to docket number MARAD-2008-0002. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel PAYDIRT is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By order of the Maritime Administrator.
In notice document E7-25297 beginning on page 774 in the issue of Thursday, January 3, 2008 make the following correction:
On page 805, in Appendix 7, under the heading “PEG index”, in the 17th line, “102.07” should be moved to the 17th line under the heading “MEG index”.
Office of Vocational and Adult Education, Department of Education.
Final regulations.
The Secretary establishes procedures for determining the suitability of tests for use in the National Reporting System for Adult Education (NRS). These final regulations also include procedures that States and local eligible providers must follow when using suitable tests for NRS reporting.
These regulations are effective February 13, 2008.
The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of February 13, 2008. However, affected parties do not have to comply with the information collection requirements in §§ 462.10, 462.11, 462.12, 462.13, and 462.14 until the Department of Education publishes in the
Mike Dean, U.S. Department of Education, 400 Maryland Avenue, SW., Room 11152, Potomac Center Plaza, Washington, DC 20202-7240. Telephone: (202) 245-7828 or via Internet:
If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed in the preceding paragraph.
These final regulations further the Department's implementation of section 212 of the Adult Education and Family Literacy Act (Act), 20 U.S.C. 9201
On October 18, 2006, the Secretary published a notice of proposed rulemaking (NPRM) for 34 CFR part 462 in the
• Rather than immediately establishing, in § 462.4, a deadline for State and local eligible providers to stop using tests that are currently listed in the Implementation Guidelines: Measures and Methods for the National Reporting System for Adult Education (Guidelines), the Secretary will announce a deadline in a notice published in the
• On April 14, 2008, the Secretary will provide test publishers the first opportunity to submit tests for review under these final regulations. In subsequent years, in accordance with § 462.10(b), test publishers must submit applications to the Secretary by October 1 of each year.
• We have revised several sections of the regulations to distinguish between (1) traditional tests, which use items that have been generated before the test is administered, and (2) computerized tests, which use an algorithm to select test items while the test is being administered. The changes affect §§ 462.3(b) regarding the definition of
• Section 462.12(e) has been revised to clarify that test publishers can request that the Secretary reconsider a decision to revoke a determination that a test is suitable before the Secretary makes a final determination about the test's suitability for measuring educational gain for the NRS.
Through these final regulations, we formalize the process for the review and approval of tests for use in the NRS. We believe that the uniform process in these regulations will facilitate test publishers' submissions of tests to the Department for review and will help strengthen the integrity of the NRS as a critical tool for measuring State performance on accountability measures. This process also will provide a means for examining tests that are currently approved for use in the NRS, but that have not been updated recently and, therefore, need to be reassessed for their continuing validity.
In response to the Secretary's invitation in the NPRM, 13 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM follows.
We group and discuss issues under the sections of the regulations to which they pertain, with the appropriate sections of the regulations referenced in parentheses. Generally, we do not address technical and minor changes—and suggested changes the law does not authorize the Secretary to make.
Commenters also recommended that, because transitioning from unsuitable tests places a burden on States' financial resources and professional development capabilities, the regulations should be deferred until the amount of funds available for State leadership becomes 15 percent of the Federal allocation. One commenter indicated that local programs often pay the significant cost of purchasing assessment instruments and that replacing an entire assessment system in a single budget year could devastate a local budget.
While we understand the desire to defer implementation of the regulations because of cost factors and timing constraints, improving the quality of State accountability systems and the data reported by the NRS is of immediate importance and should not be unduly delayed. Adult Education and Family Literacy Programs, like other Federal programs, must report on progress made, achievements, and overall program effectiveness using valid and reliable measures of performance. The regulations are designed to improve the reliability and validity of data used to report the educational gains of students, and thereby improve the reliability and validity of data on overall program effectiveness.
In light of the commenters’ concerns, and to accommodate States’ needs to make system revisions, provide training, and acquire tests, we will not specify a date in these regulations by which States and local eligible providers must cease using unsuitable tests; instead, we have provided for the Secretary to announce this deadline in a notice published in the
Test scores are only useful in this context if they can accurately classify individuals according to NRS levels. Therefore, it is necessary for test publishers to demonstrate how the range of test scores map onto the NRS levels and do so in a reliable and valid fashion. In the test development process, developers need to show that the range of test scores produced on their tests covers the range of skills depicted in the NRS levels, and more importantly, shows which range of scores corresponds to a specific NRS level.
The commenter also suggested that the regulations address the possibility that the NRS educational functioning levels might change. The commenter stated that realigning tests to revised NRS educational functioning levels would cause a burden for test publishers, and that test publishers need at least one year advance notice of any proposed changes in the NRS educational functioning levels.
With regard to providing advance notice to test publishers about changes in the NRS educational functioning levels, in the past we have customarily provided notice to all concerned parties, including test publishers, well in advance of any changes to the NRS educational functioning levels by posting notices on the Internet at
Proposed § 462.12(d) provided that a test publisher would have 30 days to request that the Secretary reconsider the decision that a test is unsuitable. Therefore, it will be after this 30-day period that the Secretary will notify the public of a decision regarding a test.
Because it is impossible to anticipate the complexities that might be involved in decisions regarding a test that was initially determined to be unsuitable, we do not believe it would be appropriate to limit the time the Secretary takes to review additional information provided by a test publisher and make a final determination regarding the suitability of a test. However, we intend to conduct the review as expeditiously as possible.
The proposed regulations were, therefore, unclear as to whether the Secretary could revoke a determination about the suitability of a test if the test had been substantially revised. We intended that revision of a test would be a valid reason for revoking a determination about test suitability.
We do not agree with the commenter that using the lowest test score might introduce systematic, rather than random, measurement error. Using the lowest test score in order to operationalize educational gain in a consistent manner across States for reporting purposes is error free. If tests have met the standards established in these regulations, they should be able to assess skills at any level with minimum error.
The change in the Functioning Level Table does not mean that adult education programs can no longer provide services to “High Advanced ESL” students. These regulations are consistent with the Act, which authorizes services below the postsecondary level, and do not change who can be served by adult education programs. The educational functioning levels largely serve to classify students for reporting purposes and should not be viewed as the standard for establishing the type of instruction that can be provided. Placement of a student in an educational functioning level for NRS purposes does not affect placement in an instructional program. A student who scores above an SPL 6 might still be served in adult education programs if he or she has an educational need below the postsecondary level. States have the flexibility to determine how programs are structured, how students are placed in programs, and how instruction is delivered.
We have reviewed these final regulations in accordance with Executive Order 12866. Under the terms of the order we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those resulting from statutory requirements and those we have determined to be necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of these final regulations,
We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
We discussed the potential costs and benefits of these final regulations in the preamble to the NPRM under the headings
The Paperwork Reduction Act of 1995 does not require you to respond to a collection of information unless it displays a valid OMB control number. With the exception of §§ 462.10 through 462.14, we display the valid OMB control number assigned to the collection of information in these final regulations at the end of the affected sections of the regulations.
These regulations are subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism by relying on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
In accordance with the order, we intend this document to provide early notification of the Department's specific plans and actions for this program.
In the NPRM we requested comments on whether the proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have determined that these final regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.
You can view this document, as well as all other Department of Education documents published in the
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Administrative practice, Adult education, Grants program—education, Incorporation by reference, and Reporting and recordkeeping requirements.
20 U.S.C. 9212, unless otherwise noted.
The regulations in this part establish the—
(a) Procedures the Secretary uses to determine the suitability of standardized tests for use in the National Reporting System for Adult Education (NRS) to measure educational gain of participants in an adult education program required to report under the NRS; and
(b) Procedures States and local eligible providers must follow when measuring educational gain for use in the NRS.
The following regulations apply to this part:
(a) The Education Department General Administrative Regulations (EDGAR) as follows:
(1) 34 CFR part 74 (Administration of Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations).
(2) 34 CFR part 76 (State-Administered Programs).
(3) 34 CFR part 77 (Definitions that Apply to Department Regulations).
(4) 34 CFR part 79 (Intergovernmental Review of Department of Education Programs and Activities).
(5) 34 CFR part 80 (Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments).
(6) 34 CFR part 81 (General Education Provisions Act—Enforcement).
(7) 34 CFR part 82 (New Restrictions on Lobbying).
(8) 34 CFR part 84 (Governmentwide Requirements for Drug-Free Workplace (Financial Assistance)).
(9) 34 CFR part 85 (Governmentwide Debarment and Suspension (Nonprocurement)).
(10) 34 CFR part 86 (Drug and Alcohol Abuse Prevention).
(11) 34 CFR part 97 (Protection of Human Subjects).
(12) 34 CFR part 98 (Student Rights in Research, Experimental Programs, and Testing).
(13) 34 CFR part 99 (Family Educational Rights and Privacy).
(b) The regulations in this part 462.
(a)
(b)
(1) Who are 16 years of age or older;
(2) Who are not enrolled or required to be enrolled in secondary school under State law; and
(3) Who—
(i) Lack sufficient mastery of basic educational skills to enable the individuals to function effectively in society;
(ii) Do not have a secondary school diploma or its recognized equivalent, and have not achieved an equivalent level of education; or
(iii) Are unable to speak, read, or write the English language.
A State or a local eligible provider may continue to measure educational gain for the NRS using a test that was identified in the Guidelines until the Secretary announces through a notice published in the
(a) The Secretary only reviews tests under this part that are submitted by a test publisher.
(b) A test publisher that wishes to have the suitability of its test determined by the Secretary under this part must submit an application to the Secretary, in the manner the Secretary may prescribe, by April 14, 2008, and, thereafter, by October 1 of each year.
(a)
(1) Include with its application information listed in paragraphs (b) through (i) of this section, and, if applicable, the information listed in paragraph (j) of this section;
(2) Provide evidence that it holds a registered copyright of a test or is licensed by the copyright holder to sell or distribute a test.
(3)(i) Arrange the information in its application in the order it is presented in paragraphs (b) through (j) of this section; or
(ii) Include a table of contents in its application that identifies the location of the information required in paragraphs (b) through (j) of this section.
(4) Submit to the Secretary three copies of its application.
(b)
(2) The name, address, e-mail address, and telephone and fax numbers of a contact person to whom the Secretary may address inquiries.
(3) A summary of the precise editions, forms, levels, and, if applicable, sub-tests and abbreviated tests that the test publisher is requesting that the Secretary review and determine to be suitable for use in the NRS.
(c)
(1) The nature of samples of examinees administered the test during pilot or field testing, such as—
(i) The number of examinees administered each item;
(ii) How similar the sample or samples of examinees used to develop and evaluate the test were to the adult education population of interest to the NRS; and
(iii) The steps, if any, taken to ensure that the examinees were motivated while responding to the test; and
(2) The steps taken to ensure the quality of test items or tasks, such as—
(i) The extent to which items or tasks on the test were reviewed for fairness and sensitivity; and
(ii) The extent to which items or tasks on the test were screened for the adequacy of their psychometric properties.
(3) The procedures used to assign items to—
(i) Forms, for tests that are constructed prior to being administered to examinees; or
(ii) Examinees, for adaptive tests in which items are selected in real time.
(d)
(1) How frequently, if ever, new forms of the test are developed;
(2) The steps taken to ensure the comparability of scores across forms of the test;
(3) The steps taken to maintain the security of the test;
(4) A history of the test's use, including the number of times the test has been administered; and
(5) For a computerized adaptive test, the procedures used to—
(i) Select subsets of items for administration;
(ii) Determine the starting point and termination conditions;
(iii) Score the test; and
(iv) Control for item exposure.
(e)
(1) Whether the items or tasks on the test require the types and levels of skills used to describe the NRS educational functioning levels;
(2) Whether the items or tasks measure skills that are not associated with the NRS educational functioning levels;
(3) Whether aspects of a particular NRS educational functioning level are not covered by any of the items or tasks;
(4) The procedures used to establish the content validity of the test;
(5) The number of subject-matter experts who provided judgments linking the items or tasks to the NRS educational functioning levels and their qualifications for doing so, particularly their familiarity with adult education and the NRS educational functioning levels; and
(6) The extent to which the judgments of the subject matter experts agree.
(f)
(1) The standard-setting procedures used to establish cut scores for transforming raw or scale scores on the test into estimates of an examinee's NRS educational functioning level;
(2) If judgment-based procedures were used—
(i) The number of subject-matter experts who provided judgments, and their qualifications; and
(ii) Evidence of the extent to which the judgments of subject-matter experts agree;
(3) The standard error of each cut score, and how it was established; and
(4) The extent to which the cut scores might be expected to differ if they had been established by a different (though similar) panel of experts.
(g)
(1) The correlation between raw (or scale) scores across alternate forms of the test or, in the case of computerized adaptive tests, across alternate administrations of the test;
(2) The consistency with which examinees are classified into the same NRS educational functioning levels across forms of the test. Information regarding classification consistency should be reported for each NRS educational functioning level that the test is being considered for use in measuring;
(3) The adequacy of the research design leading to the estimates of the reliability of the test, including—
(i) The size of the sample(s);
(ii) The similarity between the sample(s) used in the data collection and the adult education population; and
(iii) The steps taken to ensure the motivation of the examinees; and
(4) Any other information explaining the methodology and procedures used to measure the reliability of the test.
(h)
(1) The extent to which the raw or scale scores and the educational functioning classifications associated with the test correlate (or agree) with scores or classifications associated with other tests designed or intended to assess educational gain in the same adult education population as the NRS;
(2) The extent to which the raw or scale scores are related to other relevant variables, such as teacher evaluation, hours of instruction, or other measures that may be related to test performance;
(3) The adequacy of the research designs associated with these sources of evidence (
(4) Other evidence demonstrating that the test measures gains in educational functioning resulting from adult education and not from other construct-irrelevant variables, such as practice effects.
(i)
(2) Additional guidance on the interpretation of scores resulting from any modifications of the tests for an individual with a disability.
(3) The manual provided to test administrators containing procedures and instructions for test security and administration.
(4) A description of the training or certification required of test administrators and scorers by the test publisher.
(5) A description of retesting (e.g., re-administration of a test because of problems in the original administration such as the test taker becomes ill during the test and cannot finish, there are external interruptions during testing, or there are administration errors) procedures and the analysis upon which the criteria for retesting are based.
(6) Such other evidence as the Secretary may determine is necessary to establish the test's compliance with the criteria and requirements the Secretary uses to determine the suitability of tests as provided in § 462.13.
(j)
(2) For a test first published five years or more before the date it is submitted to the Secretary for review under this part, the test publisher must provide documentation of periodic review of the content and specifications of the test to ensure that the test continues to reflect NRS educational functioning levels.
(3) For a test that has not changed in the seven years since the Secretary determined, under § 462.13, that it was suitable for use in the NRS that is again being submitted to the Secretary for review under this part, the test publisher must provide updated data supporting the validity of the test for use in classifying adult learners with respect to the NRS educational functioning levels and the measurement of educational gain as defined in § 462.43 of this part.
(4) If a test has been substantially revised—for example by changing its structure, number of items, content specifications, item types, or sub-tests—from the most recent edition reviewed by the Secretary under this part, the test publisher must provide an analysis of the revisions, including the reasons for the revisions, the implications of the revisions for the comparability of scores on the current test to scores on the previous test, and results from validity, reliability, and equating or standard-setting studies undertaken subsequent to the revisions.
(a)
(2) The Secretary reviews and determines the suitability of a test only if an application—
(i) Is submitted by a test publisher;
(ii) Meets the deadline established by the Secretary;
(iii) Includes a test that—
(A) Has two or more secure, parallel, equated forms of the same test—either traditional paper and pencil or computer-administered instruments—for which forms are constructed prior to administration to examinees; or
(B) Is an adaptive test that uses computerized algorithms for selecting and administering items in real time; however, for such an instrument, the size of the item pool and the method of item selection must ensure negligible overlap in items across pre- and post-testing;
(iv) Includes a test that samples one or more of the major content domains of the NRS educational functioning levels of ABE, ESL, or ASE with sufficient numbers of questions to represent adequately the domain or domains; and
(v) Includes the information prescribed by the Secretary, including the information in § 462.11 of this part.
(b)
(2) For tests that contain multiple sub-tests measuring content domains other than those of the NRS educational functioning levels, the Secretary determines the suitability of only those sub-tests covering the domains of the NRS educational functioning levels.
(c)
(1) Notifies the test publisher of the Secretary's decision; and
(2) Annually publishes in the
(d)
(2) Within 30 days after the Secretary notifies a test publisher that its test is not suitable for use in the NRS, the test publisher may request that the Secretary reconsider the Secretary's decision. This request must be accompanied by—
(i) An analysis of why the information and documentation submitted meet the criteria and requirements in § 462.13, notwithstanding the Secretary's earlier decision to the contrary; and
(ii) Any additional documentation and information that address the Secretary's reasons for determining that the test was unsuitable.
(3) The Secretary reviews the additional information submitted by the test publisher and makes a final determination regarding the suitability of the test for use in the NRS.
(i) If the Secretary's decision is unchanged and the test remains unsuitable for use in the NRS, the Secretary notifies the test publisher, and this action concludes the review process.
(ii) If the Secretary's decision changes and the test is determined to be suitable for use in the NRS, the Secretary follows the procedures in paragraph (c) of this section.
(e)
(i) The information the publisher submitted as a basis for the Secretary's review of the test was inaccurate; or
(ii) A test has been substantially revised—for example, by changing its structure, number of items, content specifications, item types, or sub-tests.
(2) The Secretary notifies the test publisher of the—
(i) Secretary's decision to revoke the determination that the test is suitable for use in the NRS; and
(ii) Reasons for the Secretary's revocation.
(3) Within 30 days after the Secretary notifies a test publisher of the decision to revoke a determination that a test is suitable for use in the NRS, the test publisher may request that the Secretary reconsider the decision. This request must be accompanied by documentation and information that address the Secretary's reasons for revoking the determination that the test is suitable for use in the NRS.
(4) The Secretary reviews the information submitted by the test publisher and makes a final determination regarding the suitability of the test for use in the NRS.
(5) If the Secretary revokes the determination regarding the suitability of a test, the Secretary publishes in the
In order for the Secretary to consider a test suitable for use in the NRS, the test or the test publisher, if applicable, must meet the following criteria and requirements:
(a) The test must measure the NRS educational functioning levels of members of the adult education population.
(b) The test must sample one or more of the major content domains of the NRS educational functioning levels of ABE, ESL, or ASE with sufficient numbers of questions to adequately represent the domain or domains.
(c)(1) The test must meet all applicable and feasible standards for test construction and validity provided in the 1999 edition of the
(2) If requested by the Secretary, a test publisher must explain why it believes that certain standards in the 1999 edition of the
(d) The test must contain the publisher's guidelines for retesting, including time between test-taking, which are accompanied by appropriate justification.
(e) The test must—
(1) Have two or more secure, parallel, equated forms of the same test—either traditional paper and pencil or computer administered instruments—for which forms are constructed prior to administration to examinees; or
(2) Be an adaptive test that uses computerized algorithms for selecting and administering items in real time; however, for such an instrument, the size of the item pool and the method of item selection must ensure negligible overlap in items across pre- and post-testing. Scores associated with these alternate administrations must be equivalent in meaning.
(f) For a test that has been modified for individuals with disabilities, the test publisher must—
(1) Provide documentation that it followed the guidelines provided in the Testing Individuals With Disabilities section of the 1999 edition of the
(2) Provide documentation of the appropriateness and feasibility of the modifications relevant to test performance; and
(3)(i) Recommend educational functioning levels based on the information obtained from adult education students who participated in the pilot or field test and who have the disability for which the test has been modified; and
(ii) Provide documentation of the adequacy of the procedures used to translate the performance of adult education students with the disability for whom the test has been modified to an estimate of the examinees' standing with respect to the NRS educational functioning levels.
(a) The Secretary's determination that a test is suitable for use in the NRS is in effect for a period of seven years from the date of the Secretary's written notification to the test publisher, unless otherwise indicated by the Secretary. After that time, if the test publisher wants the test to be used in the NRS, the test must be reviewed again by the Secretary so that the Secretary can determine whether the test continues to be suitable for use in the NRS.
(b) If a test that the Secretary has determined is suitable for use in the NRS is substantially revised—for example, by changing its structure, number of items, content specifications, item types, or sub-tests—and the test publisher wants the test to continue to be used in the NRS, the test publisher must submit, as provided in § 462.11(j)(4), the substantially revised test or version of the test to the Secretary for review so that the Secretary can determine whether the test continues to be suitable for use in the NRS.
(a) A State must have a written assessment policy that its local eligible providers must follow in measuring educational gain and reporting data in the NRS.
(b) A State must submit its assessment policy to the Secretary for review and approval at the time it submits its annual statistical report for the NRS.
(c) The State's assessment policy must—
(1) Include a statement requiring that local eligible providers measure the educational gain of all students who receive 12 hours or more of instruction in the State's adult education program with a test that the Secretary has determined is suitable for use in the NRS;
(2) Identify the pre- and post-tests that the State requires local eligible providers to use to measure the educational gain of ABE, ESL, and ASE students;
(3)(i) Indicate when, in calendar days or instructional hours, local eligible providers must administer pre- and post-tests to students; and
(ii) Ensure that the time for administering the post-test is long enough after the pre-test to allow the test to measure educational gains according to the test publisher's guidelines;
(4) Specify the score ranges tied to educational functioning levels for placement and for reporting gains for accountability;
(5) Identify the skill areas the State intends to require local eligible providers to assess in order to measure educational gain;
(6) Include the guidance the State provides to local eligible providers on testing and placement of an individual with a disability or an individual who is unable to be tested because of a disability;
(7) Describe the training requirements that staff must meet in order to be qualified to administer and score each test selected by the State to measure the educational gains of students;
(8) Identify the alternate form or forms of each test that local eligible providers must use for post-testing;
(9) Indicate whether local eligible providers must use a locator test for guidance on identifying the appropriate pre-test;
(10) Describe the State's policy for the initial placement of a student at each NRS educational functioning level using test scores;
(11) Describe the State's policy for using the post-test for measuring educational gain and for advancing students across educational functioning levels;
(12) Describe the pre-service and in-service staff training that the State or local eligible providers will provide, including training—
(i) For staff who either administer or score each of the tests used to measure educational gain;
(ii) For teachers and other local staff involved in gathering, analyzing, compiling, and reporting data for the NRS; and
(iii) That includes the following topics:
(A) NRS policy, accountability policies, and the data collection process.
(B) Definitions of measures.
(C) Conducting assessments; and
(13) Identify the State or local agency responsible for providing pre- and in-service training.
(a)
(b)
(1) Administer a pre-test to measure a student's educational functioning level at intake, or as soon as possible thereafter;
(2) Administer the pre-test to students at a uniform time, according to its State's assessment policy; and
(3) Administer pre-tests to students in the skill areas identified in its State's assessment policy.
(c)
(1) Administer a post-test to measure a student's educational functioning level after a set time period or number of instructional hours;
(2) Administer the post-test to students at a uniform time, according to its State's assessment policy;
(3)(i) Administer post-tests with a secure, parallel, equated form of the same test—either traditional paper and pencil or computer-administered instruments—for which forms are constructed prior to administration to examinees to pre-test and determine the initial placement of students; or
(ii) Administer post-tests with an adaptive test that uses computerized algorithms for selecting and administering items in real time; however, for such an instrument, the size of the item pool and the method of item selection must ensure negligible overlap in items across pre- and post-testing; and
(4) Administer post-tests to students in the same skill areas as the pre-test.
(d)
(2) A local eligible provider may use the results of a test in the NRS only if the test was administered in a manner that is consistent with the State's assessment policy and the test publisher's guidelines.
(a) A local eligible provider must use the results of the pre-test described in § 462.41(b) to initially place students at the appropriate NRS educational functioning level.
(b) A local eligible provider must use the results of the post-test described in § 462.41(c)—
(1) To determine whether students have completed one or more educational functioning levels or are progressing within the same level; and
(2) To place students at the appropriate NRS educational functioning level.
(c)(1) States and local eligible providers are not required to use all of the skill areas described in the NRS educational functioning levels to place students.
(2) States and local eligible providers must test and report on the skill areas most relevant to the students' needs and to the programs' curriculum.
(d)(1) If a State's assessment policy requires a local eligible provider to test a student in multiple skill areas and the student will receive instruction in all of the skill areas, the local eligible provider must place the student in an educational functioning level that is equivalent to the student's lowest test score for any of the skill areas tested under § 462.41(b) and (c).
(2) If a State's assessment policy requires a local eligible provider to test a student in multiple skill areas, but the student will receive instruction in fewer than all of the skill areas, the local eligible provider must place the student in an educational functioning level that is equivalent to the student's lowest test score for any of the skill areas—
(i) Tested under § 462.41(b) and (c); and
(ii) In which the student will receive instruction.
(a)(1) Educational gain is measured by comparing the student's initial educational functioning level, as measured by the pre-test described in § 462.41(b), with the student's educational functioning level as measured by the post-test described in § 462.41(c).
A State's assessment policy requires its local eligible providers to test students in reading and numeracy. The student scores lower in reading than in numeracy. As described in § 462.42(d)(1), the local eligible provider would use the student's reading score to place the student in an educational functioning level. To measure educational gain, the local eligible provider would compare the reading score on the pre-test with the reading score on the post-test.
(2) A student is considered to have made an educational gain when the student's post-test indicates that the student has completed one or more educational functioning levels above the level in which the student was placed by the pre-test.
(b) If a student is not post-tested, then no educational gain can be measured for that student and the local eligible provider must report the student in the same educational functioning level as initially placed for NRS reporting purposes.
States and local eligible providers must use the NRS educational functioning levels in the following functioning level table:
Federal Transit Administration, DOT.
Final rule.
This final rule amends regulations which govern the provision of charter service by recipients of Federal funds from the Federal Transit Administration (FTA). Pursuant to the direction contained in the Joint Explanatory Statement of the Committee of Conference, for section 3023(d), “Condition on Charter Bus Transportation Service” of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 2005, FTA established a committee to develop, through negotiated rulemaking procedures, recommendations for improving the regulation regarding unauthorized competition from recipients of Federal financial assistance. This final rule clarifies the existing requirements, sets out a new definition of “charter service,” allows for electronic registration of private charter providers, which replaces the old “willing and able” process, includes a new provision allowing private charter operators to request a cease and desist order, and establishes more detailed complaint, hearing, and appeal procedures.
A copy of this rule and comments and material received from the public, as well as any documents indicated in the preamble as being available in the docket, are part of docket FTA-2005-22657 and are available for inspection or copying at the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor, Room W12-140, Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
You may retrieve the rule and comments online through the Federal Document Management System (FDMS) at:
An electronic copy of this document may also be downloaded from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may also reach the Office of the Federal Register's home page at:
Crystal Frederick, Ombudsman for Charter Services, Federal Transit Administration, 1200 New Jersey Ave., SE., Room E54-410, Washington, DC 20590, (202) 366-4063 or
The Federal Transit Administration was established by the Urban Mass Transportation Act of 1964 (UMT Act, the Act).
The Federal Aid Highway Act of 1973 placed an additional restriction on the use of federally funded buses for charter service. The 1973 Act prohibited Federal assistance unless the applicant had entered into an agreement with the Secretary of Transportation that it would not engage in charter bus operations in competition with private bus operators outside of the area in which the applicant provided regularly scheduled mass transportation services.
In 1974, however, Congress eased the 1973 restriction by allowing an applicant to provide charter services outside the urban area where it provided regularly scheduled mass transportation if it entered into an agreement with the Secretary of Transportation that provided “fair and equitable arrangements” to ensure that federally assisted operators did not compete with private operators of intercity charter bus service where such private operators were willing and able to provide the service.
FTA proposed its first regulation regarding charter service on June 13, 1975.
Public transportation agencies complained that this final regulation created an undue administrative burden on them. Private charter companies complained that publicly funded operators, using federally financed equipment, were forcing them out of business.
In response, FTA issued an Advance Notice of Proposed Rulemaking (ANPRM) in 1976, which sought to clarify the duties of recipients who engaged in charter bus operations outside their urban area and provide more reliable protection to private operators in the intercity charter bus industry while reducing paperwork burdens on recipients.
Another ANPRM was published in 1982, which sought to take a fresh look at the charter regulations.
The 1976 regulation and the 1987 regulation are fundamentally different in their approaches and provisions. The 1976 regulation distinguished between charter service that a recipient provided in its service area (intracity service) and charter service a recipient provided outside its service area (intercity service). The 1976 regulation made this distinction because of the new provisions of the UMT Act, which restricted only a recipient's intercity charter service. The rule required recipients to certify all costs that were attributable to the recipient's charter bus operations and maintain records that justified their costs.
In contrast, the 1987 rule did not provide different requirements for intercity and intracity service. The 1987 rule eliminated this distinction because the UMT Act definition of “mass transportation” excluded all charter operations, thereby requiring protection for all private charter operators from recipients, not just those providing intercity operations or those that earned in excess of a certain amount. Instead, the 1987 rule focused on prohibiting all charter service by a recipient if there was a willing and able private charter operator who could perform the service.
In 1988, Congress directed FTA to amend the charter service regulation to permit non-profit social service agencies with a clear need for affordable and/or accessible equipment to seek bids for charter service from publicly funded operators. On December 30, 1988, FTA amended the charter service regulations to provide for three new exceptions.
Since lingering concerns remained about the charter service regulation and FTA's enforcement of the rule, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) directed FTA to issue regulations implementing a charter service demonstration program in not more than four states.
In September 1997, FTA submitted its report to Congress regarding the demonstration program.
Congress also directed the Government Accounting Office (GAO) to analyze FTA's charter service regulations. GAO conducted a nationwide survey of public transportation operators, private charter operators, and customers.
GAO found that most private charter operators were satisfied with FTA's charter service regulations. Some private charter operators did, however, express concern about the complaint process. Specifically, some private charter operators stated that the burden of proof fell on them when a public operator violated the regulation, the burden of proof fell on them and that the complaint process was lengthy and expensive. Further, some were skeptical
The GAO also interviewed customers of charter service to find out their concerns with FTA's charter service regulation. GAO found two user groups that were dissatisfied with the regulation: those who needed accessible transportation and those who needed a large number of vehicles to serve local conventions and economic development activities.
The GAO report concluded that its data did not provide compelling evidence that there were serious widespread needs for charter service that could not be met under the current regulation. The data showed that the current exceptions to the regulation, such as contracting with private providers, were not widely used. GAO believed that many public operators, particularly those in rural areas, were unfamiliar with the process for obtaining exceptions.
Congress next addressed concerns regarding FTA's charter service regulation in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was enacted on August 10, 2005. The statute amended the statutory provision regarding charter service found at 49 U.S.C. 5323(d). Specifically, with respect to remedies, the SAFETEA-LU amendment provides that, “in addition to any remedy specified in the agreement, the Secretary shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violations of the agreement.” Previously, the statute used permissive language, “may,” rather than mandatory language, “shall,” with respect to withholding funds. Further, the previous statutory language did not state that the Secretary could determine an appropriate amount to withhold when the Secretary found a pattern of violations. Rather, if a pattern of violations was found, the Secretary only had the option to bar the recipient from receiving all of its Federal funds.
Additionally, the Joint Explanatory Statement of the Committee of Conference, for section 3023(d), “Conditions on Charter Bus Transportation Service” of SAFETEA-LU, stated “the conferees are aware that both public transportation providers and private charter bus providers have expressed strong concerns about the 1987 FTA rule enforcing section 5323(d) regarding charter bus service. The conferees direct the FTA to initiate a negotiated rulemaking seeking public comment on the regulations implementing section 5323(d).” The report also directed FTA to consider the following issues during the negotiated rulemaking:
1. Are there potential limited conditions under which public transit agencies can provide community-based charter services directly to local governments and private non-profit agencies that would not otherwise be served in a cost-effective manner by private operators?
2. How can the administration and enforcement of charter bus provisions be better communicated to the public, including the use of Internet technology?
3. How can enforcement of violations of the charter bus regulations be improved?
4. How can the charter complaint and administrative appeals process be improved?
In response to the direction contained in the Conference Committee Report, FTA established a federal advisory committee to develop, through negotiated rulemaking procedures, recommendations for improving the regulation regarding charter bus services. FTA established a Federal Advisory Committee on May 5, 2006. The Charter Bus Negotiated Rulemaking Advisory Committee (CBNRAC) consisted of persons who represented the interests affected by the proposed rule (i.e., charter bus companies, public transportation agencies—recipients of FTA grant funds) and other interested entities.
The CBNRAC included the following organizations:
The CBNRAC met in Washington, DC, on the following dates in 2006:
FTA hired Susan Podziba & Associates to facilitate the CBNRAC meetings and prepare meeting summaries. All meeting summaries, including materials distributed during the meetings, are contained in the docket for this rulemaking (#22657). During the first meeting of the CBNRAC, the committee developed ground rules for the negotiations, which are summarized briefly below:
○ The CBNRAC operates by consensus, meaning that agreements are considered reached when there is no dissent by any member. Thus, no member can be outvoted.
○ Work groups can be designated by the CBNRAC to address specific issues or to develop proposals. Work groups are not authorized to make decisions for the full CBNRAC.
○ All consensus agreements reached during the negotiations are assumed to be tentative agreements contingent upon additional minor revisions to the language until members of the CBNRAC reach final agreement on regulatory language. Once final consensus is achieved, the CBNRAC members may not thereafter withdraw from the consensus.
○ Once the CBNRAC reaches consensus on specific provisions of a proposed rule, FTA, consistent with its legal obligations, will incorporate this consensus into its proposed rule and publish it in the
○ If consensus is reached on all issues, FTA will use the consensus text as the basis of its NPRM, and the CBNRAC members will refrain from providing formal negative comments on the NPRM.
○ If the CBNRAC reaches agreement by consensus on some, but not all, issues, the CBNRAC may agree to consider those agreements as final consensus. In such a case, FTA will include the consensus-based language in its proposed regulation and decide all the outstanding issues, taking into consideration the CBNRAC discussions regarding the unresolved issues and reaching a compromise solution. The CBNRAC members would refrain from providing formal negative comments on sections of the rule based on consensus regulatory text, but would be free to provide negative comments on the provisions decided by FTA.
○ In the event that CBNRAC fails to reach consensus on any of the issues, FTA will rely on its judgment and expertise to decide all issues of the charter regulation, and CBNRAC members may comment on all components of the NPRM.
○ If FTA alters consensus-based language, it will identify such changes in the preamble to the proposed rule, and the CBNRAC members may provide formal written negative or positive comments on those changes and on other parts of the proposed rule that might be connected to that issue.
A complete description of the ground rules is contained in the docket for this rulemaking.
Finally, the CBNRAC reached consensus on the issues the committee would consider during its negotiations. The committee agreed to consider the four issues included in the Conference Committee report, noted in the previous section of this preamble, and these four additional issues:
1. A new process for determining if there are private charter bus companies willing and able to provide service that would utilize electronic notification and response within 72 hours.
2. A new exception for transportation of government employees, elected officials, and members of the transit industry to examine local transit operations, facilities, and public works.
3. Review and clarify, as necessary, the definitions of regulatory terms.
4. FTA policies relative to the enforcement of charter rules and the boundary between charter and mass transit services in specific circumstances, such as university transportation and transportation to/from special events.
The facilitator, Susan Podziba, submitted her report to FTA on March 6, 2007. The final report summarizes the proceedings of the CBNRAC including the agreement reached on regulatory language for the NPRM and identifies outstanding issues. The facilitator noted in her final report that:
As a result of the negotiated rulemaking process initiated by FTA, the revised Charter Service regulations will account for the interests, concerns, and nuances that were raised by all CBNRAC members. Though the negotiations remained difficult, and, at times, antagonistic throughout the seven months of meetings, CBNRAC members remained committed and worked hard to identify consensus solutions for each issue. As a result of the intensive discussions and multiple proposals and counter-proposals offered to resolve the twelve outstanding sub-issues, FTA has a clear understanding of the interest and concerns of both the public transit and private charter stakeholders as well as the range of options available for deciding those issues. (Final Report, page 20.)
We would like to underscore the facilitator's conclusion and thank all members of the CBNRAC for their efforts. We also agree with the facilitator that, as a result of the negotiations, we have a clear understanding of the interests involved with the revision of the Charter Service regulations.
On February 15, 2007, FTA published a NPRM in the
We received over 300 comments in response to our NPRM. We heard from 160 public transit agencies, 65 private charter operators, 25 public associations, 16 members of the public, 13 state departments of transportation, 11 private charter associations, 11 cities, 10 universities, four public officials, three air transport groups, and three anonymous comments.
We received several comments from participants on the CBNRAC. Some comments were in full support of the proposals contained in the NPRM and other comments rejected the proposals. Even though some of the comments submitted by members of the CBNRAC did not conform to the agreement reached on December 6, 2006, FTA retained much of the consensus language. In addition, we received many helpful comments on ways to improve the regulatory language and we made changes based on those comments.
There were a number of comments on cross-cutting issues that we address before the section-by-section analysis. Specifically, we received comments about the lack of appendices in the NPRM, fully allocated costs, and when a customer specifies the type of equipment. In addition, we received several comments questioning our intentions regarding some of the proposals included in the NPRM.
When we published the NPRM, we made reference to appendices we intended to include in the final rule. Appendix A would be a list of the 64 Federal programs discussed and provided during the CBNRAC negotiations. This list is not unique; rather, other Federal agencies reference this list and the list is available on FTA's public Web site,
Regarding the lack of appendices in the NPRM, a large public transportation association and several public transit agencies stated “we are troubled by the absence of a draft Appendix A (listing the federal programs that would qualify a social service agency to receive services under an exception). Although we anticipate that all of the more than five dozen federal programs under the United We Ride umbrella will be included, we believe FTA should state
Appendices are not regulatory text and do not carry the force and effect of law. In fact, the Office of Federal Register specifically prohibits an appendix from containing regulatory requirements:
Rules and proposed rules. Use an appendix to improve the quality or use of a rule but not to impose requirements or restrictions.
You may not use the appendix as a substitute for regulatory text. Present regulatory material as an amendment to the CFR, not disguised as an appendix.
Further, as noted above, an appendix is explanatory, and, therefore, according to the Administrative Procedure Act, notice and comment is not required:
Except when notice or hearing is required by statute, this subsection does not apply—
(A) To interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) When the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
Based on the above, and the fact that proposed information for the appendices was widely available to the public before publication of the NPRM, we made the decision not to include appendices at the NPRM stage.
Our proposed rulemaking did not include a requirement for recipients to calculate their fully allocated costs. We decided not to include the provision primarily because a fully allocated cost requirement has the potential to interfere with our efforts to support public transit agencies as mobility managers within their communities. In addition, we are very concerned that a fully allocated cost requirement would hinder our attempts to negotiate with other federal agencies to develop cost allocation principles to share fairly the cost of human service transportation.
Private charter operators submitted comment urging us to reconsider our proposal. One comment, which represents a consolidated opinion of several of the private charter operators on the CBNRAC, stated that “the admonition to develop ‘fair charges’ and to recover some percentage of marginal operating costs consistent with the public purpose of the service is useless as either a regulatory tool or guidance to transit agencies. It also provides no protection to private operators. The need for transit agencies to recover fully allocated costs is present even for service provided under one of the many exceptions in this proposed rule.” They contend that, like other social programs, if the Federal Government wishes to subsidize charter service for certain social service organizations, it can make direct subsidy payments to those organizations instead of creating subsidized public bus service that undercuts the price structure in the private market.
In addition, one international private charter association suggested that FTA impose a new fully allocated cost requirement: “A system-wide cost per revenue hour dollar figure (approved operating budget divided by revenue hours of bus service) is the fairest and simplest way of estimating what it would cost per hour to provide bus service to a third party. This method does not necessarily capture the capital cost consumed, overtime driver hours or preparation time or the infrastructure shared to make this service available to a third party, but on balance a system-wide cost per revenue vehicle hour times total hours of the requested service is the closest to what the actual cost would be to provide the service.”
We understand this point of view, but disagree that requiring fully allocated costs is necessary. The rule as written prohibits a public transit agency from providing charter service if a private charter operator expresses interest in providing the service. In addition, the exceptions contained in the rule are areas of charter service that the private charter coalition conceded are areas where public transit agencies can provide community-based charter services that would not otherwise be served in a cost-effective manner by private operators.
Not including fully allocated cost provisions in the final rule is appropriate given our efforts to establish coordinated public transit human service transportation and the protections provided for private charter operators in the final rule such as notification procedures and cease and desist orders.
In the NPRM, we did not address specifically what would occur if a customer specifies certain equipment in their request for charter service. The only reference we made to specific equipment was in the preamble where we discussed the fact that rubber tire trolley buses are considered buses for purposes of this rulemaking.
We received several comments on this topic unrelated to our discussion of including rubber tire trolley buses within the scope of buses generally. Public transit agencies encouraged us to allow a customer to specify the type of equipment they would like use. A member of the public encouraged us to exclude electrically powered trolleys from the scope of the rule. Another member of the public suggested that the notice recipients send to private providers “should also include a description of the specific equipment requested by the customer and not just ‘buses or vans.’ This comment goes on to state “any new rule allows the purchaser of the service to decide what kind of equipment it needs. To that end, the notice to private providers should allow for a reasonable amount of specificity regarding the requirements for a particular service.”
Another comment echoed the above sentiment by stating “I should not be forced to obtain services from private charter operators who do not have the proper coach equipment, to spend more money for single door highway coaches, with high floors that take longer to load and unload, that are not geared for city street/shuttle operations, thereby forcing me to obtain more equipment for frequency of service * * *.”
The comments regarding types of equipment raise a tricky issue in balancing protections for private charter operators with the need for transit agencies to satisfy community demands. In order to provide attractive “fun” alternatives to encourage downtown employees or tourists to use transit in congested corridors, transit agencies may acquire rubber tire replica trolleys. These trolleys can become a popular enough local attraction that they may be sought for private leisure charters such as weddings. The statute, however, addresses charter without regard to equipment type. The FTA regulation relates to the provision of transportation service, not entertainment, which is why sightseeing is also excluded from the statutory definition of “public transportation.” If there is sufficient demand for such equipment, private charter operators may eventually
Likewise, if there were sufficient public demand for low-floor, double door vehicles, or size compatibility with streets to be traveled, and private charter operators do not have that equipment, then private charter operators may eventually acquire new equipment to serve that market as well. But, again we decline to amend the rule to allow for such an exception for public transit agencies.
We received several comments questioning the intentions of the FTA in proposing the NPRM provisions that we did. One comment from a transit agency stated “The tone of this proposed rule suggests a presumption of ‘guilt’ on the part of all transit providers.” Another transit agency put it this way: “Transit providers should not have to prove, on a daily basis, that they are following the rules.” One public citizen asked: “When was legislation passed that authorized FTA to stop supporting transit.” Or, as a Midwestern transit agency stated “I am opposed to federal requirements that squash our attempt to generate some extra revenue to support the transit system.”
FTA went to great lengths to involve all of the affected and interested parties in the CBNRAC negotiations. We prepared background materials, brought in speakers to assist the committee, and hired a highly competent and effective facilitator to assist throughout the process. In addition, all of the materials and notes were posted to the docket so that members of the public could follow the proceedings and each meeting had a public comment period should any member of the public wish to make comments about the proceedings. We were able to reach consensus on 80 percent of the rulemaking. This means the CBNRAC, which included small, medium, and large transit agencies from the West, South, Midwest, North and East, were able to agree on a vast majority of the regulatory text for the NPRM. The provisions were developed with the intention of promoting public transit and protecting the private charter industry. As indicated in the history section of this document, achieving the right balance has been a challenge for many years. We accepted this challenge because a negotiated rulemaking was a novel approach to addressing the issues that have plagued this regulation for years.
Given the above, we regret that some commenters perceived the proposed rule to be anti-transit. The tone of this rulemaking is the same as the current regulation and the same as any regulation that prescribes certain behavior. We are in the business of promoting and supporting transit agencies in their mission to provide community-based services. We recognized and promulgated exceptions to the charter service regulation that support transit agencies providing charter services to the elderly, persons with disabilities, and people with low income.
In addition, we carefully considered the interests of parties impacted by this rulemaking. The negotiated rulemaking was a powerful tool for collecting that information. We also considered all of the comments received on the proposal and modified some of the regulatory text based on the suggestions included in comments.
In addressing the comments received, we divided the comments according to the applicable rulemaking section. For each section for which we received substantive comments, we provide a brief summary of the purpose of the regulatory text, we summarize the relevant and representative comments received, and then we describe our decision whether to modify that particular provision. If we modified the provision, then we describe the modification. If we decided not to accept the proposed modification, then we explain why and adopt the language as proposed in the NPRM. For sections of the rule where we did not receive substantive comments, those provisions are hereby adopted as final.
The purpose of this provision was to state early on in the regulation that is required to comply with this rulemaking, who is exempt from the rule's requirements, and to set out certain situations in which this rule does not apply.
One public transportation association noted that “the draft rule provides for application to all activities of FTA grantees that are public transit agencies, without regard to the presence or absence of federal funding * * *” We also heard this comment from several public transit agencies. In addition, one transit agency suggested that this rulemaking not apply to those that receive a minimal amount of Federal funds.
We do not believe setting a minimum amount of Federal funding to trigger application of this rule is necessary. A transit agency always has the option to segregate locally funded and maintained vehicles and use those vehicles to provide charter service. To be clear, however, it is not just purchasing a vehicle with Federal dollars that triggers the application of these requirements. Housing the vehicle in FTA-funded facilities or using FTA-funded equipment to maintain the vehicle also triggers application of this rule. A complete segregation is necessary to avoid the application of the requirements of this rule.
We also received a comment from a state association asking us whether the charter service regulations apply to tribal nations. Under our Notice of Funding Availability for the Tribal Transit Program, published in the
FTA considered the comments on this subsection, but does not believe the comments warrant a change to the proposed language, and, therefore, the language is adopted as proposed.
This provision exempts from the rule's coverage private charter operators who receive Federal financial assistance either directly or indirectly under 49
The main comment received regarding this subsection stated: “In removing private charter operators from its scope, it excludes up to 40 percent of the rural transit network from these rules, thus forcing half the network to follow rules and procedures that are waived for the private sector partners.” Another transit agency stated “we do not believe that private charter operators should be treated different from other organizations that receive Federal funds. Allowing some private charter operators to not comply with the charter regulation and receive Federal funds put those private charter operators at a competitive advantage over other private operators that do not receive Federal dollars. Either the receipt of Federal funds is an important factor or it isn't.”
First, we think some comments may have confused the many private not-for-profit agencies that provide public transit service in rural areas with the private charter operators protected by this rule. It is not FTA's intent to apply the requirements of the rule differently to public transit agencies depending on whether they are governmental or non-governmental entities.
Second, FTA's Over-the-Road Bus Program is specifically designed to provide Federal assistance to private charter operators so that they can retrofit their vehicles to make them accessible and comply with the Americans with Disabilities Act. This is a federally sanctioned activity, and, thus, to apply the charter regulations would run counter to this Federal program. The same argument also holds true for those private charter operators that receive Federal funds under 49 U.S.C. section 5311(f), which provides a limited amount of Federal support for running routes in rural areas. The point here is that there are clear situations under which the Federal government sees a benefit to providing Federal tax dollars to private charter operators.
Third, public transit agencies may enter into a contract with private charter operators to purchase transportation services using the private charter operator's vehicles. The fact that a private charter operator contracts with a public transit agency should not have the unintended consequence of preventing the operator from using those vehicles, or other vehicles in its fleet, to provide charter service. If a private charter operator, however, provides fixed route public transportation using federally funded buses or vans under contract to a transit agency or other public entity such as a State Department of Transportation, the private charter operator stands in the shoes of the transit agency and is subject to the charter service regulations in regard to the use of those FTA-funded vehicles. That private charter operator, however, would not be prevented from using other vehicles in its private fleet to provide charter service.
Finally, the comment regarding this section's provisions placing one private charter operator in a competitive advantage over another private charter operator strikes us as disingenuous. No private charter operator raised this issue, and if it truly was a concern, we have to believe at least one private charter operator would have raised it.
Thus, while FTA rejects the proposed modifications to this section, we include language to clarify that the charter service regulations do not apply to private charter operators that receive, directly or indirectly, Federal financial assistance under the programs listed or to the non-FTA funded activities of private charter operators that receive assistance under section 3038 of TEA-21.
This provision exempts from the charter service regulation recipients who receive funds under 49 U.S.C. sections 5310, 5316, or 5317 and provide charter service consistent with the Federal program purpose.
We heard from numerous public transit agencies encouraging us to expand this provision. The most common request was to expand this provision to include recipients under 49 U.S.C. section 5311. The second most common request was to expand the provision to exclude 49 U.S.C. section 5307 recipients that operate 50 or fewer buses in peak hour service.
We believe that this section can be expanded safely to include recipients of section 5311 funds for two reasons. First, section 604(2)(e) already limits the exception “to program purposes only.” We added a definition of program purposes that states: “transportation that serves the needs of either human service agencies or targeted populations (elderly, individuals with disabilities, and or low income individuals); this does not include exclusive service for other groups formed for purposes unrelated to the special needs of these targeted populations.”
Second, we believe this expansion is appropriate given FTA's efforts to support coordinated public transit human service transportation activities. Some of the comments received noted that without the exemption this provision could have a chilling effect on those activities, which is something FTA wants to avoid. Thus, limiting section 5311 recipients” provision of charter service to program purposes, as defined in the regulations, provides a limitation on those services we believe will protect private charter operators. In addition, the revised enforcement provisions will also provide a counterbalance to this expansion if it is abused.
We reject the second request—excluding 5307 recipients with 50 or fewer buses—because the change might unduly weaken the protections provided by the rule to private charter operators. In an urbanized area, even one served by a small transit system with 50 or fewer vehicles, there are more likely to be private charter operators available than in rural areas. In other instances, the transit system would be able to provide charter service under other exceptions of the rule, so this new exception would be unnecessary.
We have therefore amended 604.2(e) to include 49 U.S.C. section 5311 in the list of programs exempted from the requirements of the charter service regulation when the charter service provided supports program purposes.
This proposed provision exempts recipients from the charter service requirements in the event of a national,
We heard from several public transit agencies regarding the three day limitation. Many expressed disappointment that the provision would limit a public transit agency's ability to assist in the event of an emergency. Others expressed concern that local emergencies are not included, but could pose an equal amount of danger to the surrounding community. One example provided was a train derailment where noxious fumes engulfed the community where public transit is the logical choice for evacuating the community quickly and efficiently. Another comment asked why this provision does not include security training exercises.
This provision sets up a mechanism by which transit agencies may “opt out” of the charter service regulations.
We heard from transit agencies that this provision is not necessary, the certification procedures were burdensome, and there appears to be no purpose for the affidavit.
This provision sets out the applicable definitions for this part. Since the section contains several definitions, we will only discuss those definitions where the public submitted comments. All other definitions are adopted as proposed. We also added several new definitions as a result of changes we made to the regulation based on the comments we received.
This is a key provision in the charter service regulation. The definition of charter service identifies what service by public transit agencies is considered charter service.
Generally, public transit agencies voiced concern that the proposed definition does not “recognize the realities of local public transportation service by having the flexibility to add and modify service for temporary situations, such as community events and employers opening temporary facilities.” A member of the public submitted a comment that noted the proposed definition “potentially undermines coordinated efforts between local governments and risks decreasing the efficiency and cost-effectiveness of service while jeopardizing ridership incentives for universities and transit systems.” In addition, several transit agencies submitted comments stating “while the proposed rulemaking does address the issues raised in the conference committee report, it also far exceeds what seems to be the intent of Congress by providing a vague and poorly explained definition of charter that could have the impact of redefining the very definition of public transportation.”
In fact, most transit agencies submitted concerns about the definition not including the term “exclusive.” One public transportation association noted that “the concept of exclusivity—often referred to as “closed door” service—has been integral to the definition of charter service for more than 20 years and is necessarily the primary means of determining whether transportation is public transportation or a private service.” A public transit agency warned that “the failure to include exclusivity in the charter definition has the potential to change the definition of public transportation.” One airport ground transportation association requested that “the proposed federal definition of charter service not supersede local state, city and airport regulatory definitions currently in place for private motor carriers of passengers to and from airports by maintaining the concept of exclusivity.”
Some public transit agencies offered alternatives to the proposed definition of charter service. A Midwestern city provided the American Bus Association's quick reference guide on the definitions of charter, mass transportation, and sightseeing. Three members of the public suggested that the definition should be “a point to point service that is not open to the public, and not of a routine nature.” An air transport company recommended that the definition include “at a fixed charge for a motor vehicle.” An east coast public transit authority set forth the following indicia of charter service: “for the sole use of a distinct group of people; routing and frequency of service solely determined by those people using the service or their sponsor; not open to the general public; identification or affiliation required to board; one-time, nonrecurring event, with no regular pattern; and service not on a pre-published schedule or Web site.”
We also heard from public transit agencies that the examples included in the definition of charter service should be removed. Several public transit agencies stated the examples were unclear and inconsistent. One east coast public transit association noted that “there is no simple, rigid template that can simply and routinely be applied to every situation to determine whether or not a service is or is not mass transit. Attempting to impose one at the federal level will inevitably result in a great disservice to the public at large. However, reasonable and fair guidelines would be appropriate and useful to all involved parties.”
From the private sector side, we heard from two private charter operator coalitions regarding the definition of charter service. They stated that while the CBNRAC did not reach consensus on the definition, the parties did agree that “charter service has three components: (1) Transportation of a group of persons pursuant to a single contract with a third party; (2) a fixed charge; and (3) according to an itinerary determined by someone other than the public transit agency.” In addition, the coalitions urged FTA to not “impose a black or white approach to defining charter service, but should continue to look at the intent of the service and whom the service is designed to benefit.” They also noted that the lack of a written contract should not be dispositive in determining that service is charter service. One of the coalitions recommended a definition of charter service as “providing transportation service, using buses or vans, principally to benefit a group of riders with mutual purpose and destinations.” This association also questioned the need to indicate who controls the service as it may conflict with interpretations and the intention of the rules: “Who ‘controls’ the itinerary has certainly been an interpretation recipients have long abused, particularly in special
First, we added back the concept of exclusivity to the definition of charter service. In the past, this word has caused problems because a few public transit agencies have used the term as a loophole to avoid the requirements of this rule. We address this issue by adding a definition of “exclusive”—service that a reasonable person would conclude is intended to exclude members of the public—to the list of definitions. Further while we do not agree that a 20 year history is reason enough to add the term exclusive back in the definition, we do believe that exclusivity is a good indication of intent to perform charter service.
Second, we removed all of the examples included in the definition of charter service. Instead, we provide factors that we will consider in determining the intent of the service. We also believe that this revised definition will allow transit agencies the flexibility needed to provide public transportation to address traffic mitigation associated with an event, as well as being able to serve community-based public transportation.
Third, we make clear in the definition that it does not apply to demand response services provided to an individual. We also provide a definition of “demand response,” which is discussed in the next section.
Finally, we have added a provision to the definition of charter service to address events that are limited in duration and for which the public transit agency charges a premium fare or for which a third party pays for the service in whole or in part. While the new definition does not prevent a public transit agency from establishing, on its own, temporary or irregular routes to respond to community demands, we believe that the nature of such service should be to fulfill a public purpose. Thus, the definition of charter service includes service by a public transit that is irregular or on a limited basis for a premium fare that is greater than the usual or customary fixed route fare or service for which a third party pays all or part of the costs for the service. We believe service that fits in either of those categories represents an opportunity for private sector participation, and, therefore, if the public transit agency wishes to provide such service it must give prior notification to registered charter providers in its geographic service area.
This section is new and is based on comments we receiving asking us to define the term as used in the definition of “charter service.”
We have taken the definition of “demand response” from our New Freedom Circular, which states: “any non-fixed route system of transporting individuals that requires advanced scheduling by a customer, including services provided by public entities, nonprofits, and private providers.”
This provision defines who is an interested party for purposes of filing a complaint with FTA.
We received only one comment regarding this definition and it stated that the definition was overly broad and hard to determine who, in fact, could file a complaint.
This provision defines what constitutes a pattern of violations for purposes of 49 U.S.C. section 5323, which states in relevant part: “In addition to any remedy specified in the agreement, the Secretary shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violations of the agreement.”
We received several comments expressing concern about our proposal to define pattern of violations as “more than one finding of non-compliance with this Part by FTA beginning with the most recent finding of non-compliance and looking back over a period of 72 months.”
Comments received focused on two aspects of this proposed definition. First, most were concerned that a finding of non-compliance should be for the same provision and not different provisions. Second, several comments stated that it was unfair to examine 72 months and the time period should be two or three years at the most. There was also a misconception that the new rule would retroactively look back over a recipient's compliance record. One comment, which is typical of the comments we received from recipients, stated the issue as follows: “We suggest that the definition be revised to indicate that there must be at least three violations in three years and the application of this new definition should occur when the rule is final. Also, the violations must be related in nature (i.e., not totally disparate issues) in order to show a pattern.”
Private charter operators, on the other hand, agreed with the proposed definition, but requested that FTA settle the issue of whether a single complaint against a recipient can establish a pattern of violations.
That being said, it is possible to establish a pattern of violations in one complaint. For instance, if one complaint properly documents three distinct charter service trips that are in violation of Part 604, then FTA could consider those three allegations as constituting a pattern of violations. We believe this is a reasonable resolution to the concern of private charter operators that a single complaint could establish a pattern of violations.
To be clear, however, each instance of a charter service violation must be related to an event and not a single
In addition, we decline to shorten the examination period to two or three years. While we considered including a three year period to correspond with triennial reviews, not all recipients are subject to triennial reviews and the six year period is consistent with other operating administrations within the Department of Transportation that examine a six year compliance history. Thus, we retain the six year period, which begins on the effective date of this rule.
This provision defines who is a recipient.
We received several comments about this definition because some were confused as to whether the term includes “subrecipients.”
This is a new provision to the final rule and it would define what constitutes a violation for purposes of the charter service regulations.
Several public transit agencies asked us to define what a “violation” is.
This section discusses the terms of the Charter Service Agreement which is part of the Certifications and Assurances recipients are required to enter into as a condition of receiving Federal funds (49 U.S.C. section 5323(d)).
One transportation association noted that there was an inconsistency between our intention not to apply the charter service requirements to third party contractors and the terms of the charter service agreement.
This provision set out an exception for recipients to provide charter service to government officials on official business. We also proposed not to apply this provision to transit agencies with 1,000 or more buses in peak hour service.
We received numerous comments from public transit agencies on this provision to limit the number of bus hours to 80 annually, as proposed by the private charter caucus.
Comments we received were along the following lines: “The limit is arbitrary and does not support or respect local cooperation. The transportation of public officials by a public agency should not be considered charter.” One comment on this topic stated: “How about whoever wrote this NPRM comes on down here to tell our government officials who sponsor the taxes that keep our transit systems operating that they have limited number of hours that they can utilize the charter service of the transit system.” The same comment stated that they do not have resources “to conduct boarding surveys that distinguish the government officials from anyone else that may join them on a charter trip.” Some public transit agencies applauded our effort to recognize this service as an exception and felt the provision to allow the Administrator to grant additional hours was sufficient. Those who were not pleased with the NPRM suggested that FTA modify the provision to allow for a greater number of hours for public transit agencies located in state capitols. Others suggested that the limit be based on the size of the recipient's geographic service area.
A private charter operator coalition objected to our provision to allow additional hours upon request from a recipient. They urged that such additional hours should only be granted in extenuating circumstances, which should be “invoked very rarely.” They also warned that this exception should not “swallow up the general prohibition” of recipients providing charter service. This commenter also requested at least 72 hours notice of all requests for additional hours under this exception.
Finally, regarding our proposal not to apply this provision to recipients with 1,000 or more buses in peak hour public transit service, we heard from three of the largest east coast transit agencies that strongly opposed the provision. Specifically, they noted opposition to “any regulatory change that imposes a different application based on the size of the transit property.”
This exception is designed to allow recipients to provide charter service to government officials for official government business. Recipients may not provide charter service to governmental officials for non-governmental purposes. We have added language to the regulatory text to clarify this point. We have also added a definition of government official, which states “ `government official' means an individual appointed or elected at the local, state, or Federal level.”
Since the transportation of government officials for government purposes is charter service under the current regulations, as noted in the NPRM, we believe that the 80 charter service hours per year is appropriate because it is the baseline number of hours the private charter operators on the CBNRAC agreed to. On the other hand, we recognize that there may be special circumstances that might arise that could call for additional bus hours during the year. If these circumstances arise, we have a provision that allows the FTA Administrator flexibility to allow those additional hours in extenuating circumstances. Private charter operators requested that they have the opportunity to comment on any request for additional hours. To address this concern, we will add a Government Officials docket (
Regarding the exception of transit agencies with 1,000 or more buses in peak hour service, this provision was the subject of consensus during the CBNRAC. During the negotiations, a CBNRAC member urged this exception to prevent large public transit agencies from being inundated with requests for charter service from government officials and qualified human service organizations. Private charter operators on the CBNRAC agreed to this provision. The response to this proposal, however, was negative. We heard from three large east coast transit agencies and we are convinced by their argument that large transit agencies should not be treated differently, and, therefore, we removed this provision from the final rule.
To conclude, we decline to modify the 80-hour annual limit. Since the transportation of government officials for government purposes was unauthorized charter service when provided by recipients under the old regulation, we believe the 80-hour limit per year is a legitimate threshold number for the new exception. In addition, we have eliminated the language treating transit agencies with more than 1,000 buses in peak hour public transit service differently.
This section provides an exception to the prohibition against recipients providing charter service if they provide charter service to qualified human service organizations (QHSO). We also proposed not to apply this provision to transit agencies with 1,000 or more buses in peak hour service.
The CBNRAC reached consensus on this provision because it recognized FTA's efforts to establish coordinated public transit human service transportation planning. In addition, this provision recognizes the President's Executive Order on coordinated transportation (Executive Order on Human Service Transportation Coordination, February 24, 2004).
The comments we received on this section primarily centered on the assertion that charter service provided to QHSOs should be completely exempt from the charter service regulations. Specifically, comments stated “although the negotiators agreed that services could appropriately be provided to qualified social service agencies, the draft process is unnecessarily complicated and incomplete.” These comments went on to state “it is unclear how these additional criteria are to be evaluated (i.e., would a qualified social service agency certify such a mission? Would a public transit agency be obligated to investigate the basis for such a claim?) and it is unclear why FTA perceives a need for the additional criteria at all.” These public transit agencies and associations advocated that the additional criteria should be eliminated from the rule. We also heard from several Midwestern transit agencies supporting our provision on QHSOs: “We fully support the exceptions in 604.7 and 604.8 for government officials and qualified human service organizations.” A private charter operator expressed a similar sentiment: “FTA's new disclosure procedures for human service agencies and public operator trips are a positive step forward.”
Finally, we received several comments asking us to define the term “struggling for self-sufficiency.”
In addition, regarding the comment as to whether a transit agency must investigate information provided by a QHSO, the FTA Charter Registration Web site is a tool for tracking registered charter providers and QHSOs. There is no requirement for public transit agencies to independently verify the information submitted by a registered charter provider or QHSO. Further, since registration on the Web site constitutes submission of information to the government, false submissions would be subject to sanctions under 18 U.S.C. section 1001, which includes potential criminal fines and imprisonment.
Regarding the exemption of transit agencies with 1,000 or more buses in peak hour service, we removed this provision from this exception based on comments received. (See discussion under “Government Officials” exception above.)
Finally, we changed the phrase “struggling for self-sufficiency” to “low income,” which is a more commonly understood term in the transportation industry.
This section is modified to remove the exception for recipients with 1,000 or more buses in peak hour public transit service, and change “struggling for self-sufficiency” to “low income.”
In this provision we proposed to allow a transit agency in a non-urbanized area to provide charter service to an organization if a registered charter provider imposes minimum trip duration or the registered charter provided would have deadhead time that exceeds the total trip length.
Public transit agencies support this exception, but requested that it be extended to small urban areas with populations under 200,000. One public transit agency commented that “FTA's proposed hardship exception is well-crafted and provides a reasonable objective standard for determining whether available private charter providers are too far away to be expected to provide cost-efficient service and scale that definition to the size of a particular charter. Expanding that provision to, at minimum, small, urban areas would allow those areas to be better served without impinging on the interests of private charter operators.”
Private charter operators opposed this exception. They contend that “hardship is largely a myth and any rule addressing `hardship' is likely obsolete and more likely to be used to harm private operators than relieve `hardship.' ” In addition, they assert that the rule as written assumes the private market may not desire to serve certain needs, even if fulfilling the service may be at an economic loss and businesses routinely discount services, have sales, offer loss leaders, and utilize yield-pricing strategies. In theory, a recipient creates a “hardship dependency” when failing to allow the marketplace to respond.
On the other hand, we recognize that businesses often set minimum trip durations and to allow public transit agencies to provide charter service simply because the minimum trip duration exceeds the trip duration of the requested charter service could have a
Therefore, we amended the regulatory text to include small urbanized areas under 200,000 in population and removed the provision that would allow a rural public transit agency to provide service when the minimum trip duration exceeds the length of the requested service. In addition we collapsed this provision into a new section called “Petitions to the Administrator,” which is located in section 604.11. Because we have established a docket for this exception (Petitions to the Administrator docket
This section discusses the ability of a public transit agency to lease equipment to a private charter operator.
Private charter operators submitted comments requesting that FTA advise “recipients it is their responsibility to comply with the [leasing exception requirements] with emphasis placed on the requirement to certify the registered charter provider has exhausted all available vehicles of all registered charter providers in the recipient's geographic service area.”
Public transit agencies responded to this provision with the general concern that a recipient does not have the ability to determine if the private charter operator has capacity: “The grantee should not be responsible for verifying the validity of any information provided by the leasing charter operator.” Another comment stated it slightly differently: “FTA will require public agencies to maintain proof offered by the lessor that no privately owned equipment is available but is unclear on whether the public agency must investigate independently or may take the proffer at face value.” Yet another comment pointed out that “while this is a well-intentioned and defensible condition, the rule should make it clear that recipient's obligation in this area is to ask whether this has been done and that a recipient may rely on the private charter operator's representation that it has, supported by documentation provided by the charter operator.”
Finally, one additional comment submitted by a public transit agency advocates against this exception because of the impact it will have on small private charter operators: “There are two problems with this proposed exception. First it would be difficult to impossible for any private operator to guarantee that it has exhausted all of the available vehicles of all registered charter providers in a large municipal area. This would force recipients out of the charter leasing business and thereby deprive the recipient of much needed funds. Second, this provision also severely impacts smaller private charter operators who would either have to pay whatever fee is set by the larger private operator or turn away business. Such a scenario could eventually force smaller private charter operators out of business, which would then impact FTA's certification that this regulation would not have an impact on small businesses.”
Private charter operators also expressed concern with this provision. One of the consolidated responses for private charter operators who participated on the CBNRAC expressed concern that the current leasing provision allowed for sham transactions between a private charter operator with no vehicles and a public transit agency. The consolidated response noted support for the new provision because a private charter operator should have the first opportunity to provide charter bus service in the geographic service area.
Furthermore, we added a requirement that a private charter operator identify the number of vehicles it owns when it registers. Then, when a registered charter provider certifies that it has exhausted all of the private vehicles in the area, a recipient need only go to the Charter Registration Web site, note all of the registered charter providers in the geographic service area and the number of vehicles identified in the registration to verify that the registered charter provider's certification is accurate. No independent verification beyond this process is required by the regulations.
In addition, if the registered charter provider fails to exhaust the vehicles of other registered charter providers in the geographic service area, then the registered charter provider may be subject to a complaint for removal from the FTA Charter Registration Web site.
We have retained the requirement to exhaust all available privately owned vehicles in the geographic service area. This is a protection that the private charter caucus requested during the CBNRAC negotiations and the public transit caucus agreed to. We received a couple of comments indicating that a private charter operator should not have to contract with another private charter operator known to be ineffective. In order to address this concern we do not require a registered charter provider to lease vehicles from another registered charter provider against whom the first registered charter provider has filed a complaint for removal from FTA's Charter Registration Web site. To succeed on this point, however, a registered charter provider would have to allege facts sufficient to support removal as set out in 49 CFR section 604.21. (See also Appendix C for examples.)
Finally, since we moved the hardship exception to the new Petitions to the Administrator exception, the leasing exception has been renumbered to section 604.8.
This section allows for the provision of charter service by public transit agencies for events of regional or national significance.
Private charter operators supported this provision, but requested that any petitions received by the Administrator should be subject to a notice and comment provision for registered charter providers. They also requested that FTA provide a clarification that only if all private operator vehicles have been exhausted should a recipient be allowed to provide charter service.
Public transit agencies were concerned that this provision would apply to events that have already been planned. In addition, one public transit agency stated “public transit providers should be able to provide public transportation services for special events in their locality that promote economic development and show their community without the express approval of the Administrator or the requirement for consultation with private charter operators.” One east coast transit agency stated “This provision does not account for those events that are time sensitive in which the public transit agency does not have time to consult with all of the private charter operators in their area, for example, a presidential inauguration.”
In addition, in response to the public transit agencies comments, for events in the planning process, any service provided by a public transit agency after the effective date of this rule must conform to the requirements of the rule, including the requirement for the recipient to exhaust all available vehicles of registered charter providers. In other words, if the event will occur after the effective date of this rule and the public transit agency intends to provide service to that event, then the service must meet the special events requirements contained in section 604.11. If the event occurs before the effective date of this rule, then the requirements of the rule do not apply.
We have also added a requirement that the request for this exception include the date of the event. We added this requirement to make it clear that the approval, if granted, would be for a one time event only.
This section sets out the requirements for public transit agencies when no registered charter provider responds to a notice requesting charter service.
Public transit agencies submitted a variety of comments on this provision. Some disagreed with the proposed time frames included in the regulation. Others complained that providing notice was essentially providing free advertising/dispatch services to registered charter providers. Still others requested that FTA consider modifying the proposed language to allow a public transit agency to provide the service in the event that the registered charter provider and customer are unable to agree upon terms.
Private charter operators agreed with the provisions of this section and noted that “many recipients confuse the public by inasmuch as they [sic] advertise charter service to the degree consumers may not discern between a transit agency and a private provider. This often has the effect of artificially creating ‘demand’ and allowing transit agencies to inject their tax subsidized pricing in the private market equation, thereby indirectly stifling operating margins.” This comment went on to state “the proposed rule further establishes the ‘first option’ to offer charter service inasmuch [sic] that recipients are not required to notify registered charter parties of all inquiries regarding charter bus service.”
We added language to this section clarifying that upon receipt of a request for charter service that does not fit within one of the exceptions outlined in subpart B, and the recipient is interested in providing the charter service, the recipient shall provide notice to registered charter providers in the recipient's geographic service area. Further, due to the fact that we have moved the hardship and special events exceptions, this provision is renumbered as section 604.9.
This section allows a public transit agency to provide charter service in its geographic service area if it obtains an agreement from all of the registered charter providers in the geographic service area.
Private charter operators recognized that this exception is a continuation of an existing exception, but objected to the provision because “the rule as proposed places an unfair and unintended restriction and subjects taxpayer subsidized competition on new registered charter parties. It is our assertion that on the date new private charter operators register, existing agreements will no longer permit recipients to continue under those agreements until an agreement may be obtained from all registered charter parties.” The comment goes on to propose that an agreement can be fulfilled if a contractual obligation is completed no later than thirty days from the date a newly registered charter provider becomes registered. Further, this comment goes on to state that the charter service agreement should be a fluid document that represents a meeting of the minds.
Public transit agencies submitted comments opposing the timeframes of January 30th of each year and February 15th of each year.
This new section is designed to provide the Federal Transit Administrator with the discretion to allow public transit agencies to provide charter service in certain extraordinary situations.
We did not receive comments from public transit agencies on this new exception, but we did hear from private charter operators who are opposed to the exception. Specifically, they believe this exception “may serve as an impediment to the private sector filling the needs, while ultimately creating an unwarranted entitlement.” They base this belief on the fact that the examples provided of the funerals of Presidents Reagan and Ford required advanced planning for those events and the private sector could have been involved if the public transit agency had contacted the private sector. Furthermore, the private charter operator coalition noted that this exception is “a solution in search of a problem” because there is no reason private charter operators couldn't receive notice of the request for service and provide buses for these kinds of events should they arise unexpectedly.
The basis for the discretionary exception is to provide the Administrator with discretion to respond to extraordinary circumstances—those events where there is no time for prior planning. While some preparations may be made in anticipation, we believe the actual day of the event would not be known in advance and the capability of a particular city to handle the event would likewise not be known in advance. We intend to allow this exception only under extraordinary circumstances. Private charter operators may track these requests and FTA's responses through the Petitions to the Administrator docket (
In addition, we added a requirement to identify the date of the event because we want to make absolutely clear that the approval is only for the date specified in the request.
This section set out the reporting requirements for public transit agencies that provide charter service pursuant to an exception. We proposed quarterly electronic reporting of standard information regarding charter service trips.
Private charter operators supported this provision as providing the type of transparency necessary to ensure that public transit agencies are not providing unauthorized charter service. While some raised concern about the ability to omit origination and destination for safety and security reasons, if the reason is recorded, then most thought this exception would be acceptable. In addition, we heard from one association that encouraged us to increase the time period from three years to six years for maintaining the records electronically. To support this request, they point to the fact that our definition of pattern of violations examines the past six years and to maintain records less than six years would be inconsistent with this provision.
Public transit agencies opposed this provision because they believe it to be too onerous. In addition, one commenter suggested that the reporting provisions be consolidated so that the same information in the same format is submitted. Other comments submitted requested that the public Web site for storing the reports be replaced with a local Web site for the agency or with records kept at the transit agency's place of business, which would be publicly available. One public transit agency stated it this way: “Only basic information should be reported under the exceptions. If the reporting is made too onerous, grantees will have to charge the administrative cost to the human service or government entity. For the other exceptions, that information is reported through other mechanisms and this additional reporting is unnecessary.” Others recommended maintaining the records in a single charter log. A Midwestern state department of transportation stated: “We recommend that the charter logs required by 604.7(a)(3), 604.8(d), 604.9(b), 604.10(b) and 604.12(c) be consolidated into a single charter log. The information that must be maintained according to the regulations can be categorized and tracked in a spreadsheet or database.”
In addition, by limiting the applicability of this regulation—excluding recipients of section 5311 funds when providing charter service for program purposes serving the elderly, persons with disabilities, or persons with low income—we have substantially reduced the reporting burden on rural and non-urbanized areas for most of the service they operate.
Furthermore, we decline to extend the reporting period to six years. We believe the private charter operators are confusing complaints with reports. When we examine six years of the recipient's compliance history we are looking at complaints filed. Since FTA maintains the Charter Registration Web site, we will have access to quarterly reports for purposes of reviewing a recipient's compliance history. The regulatory requirement simply applies to a grantee's retention of its quarterly reports, not FTA's retention of quarterly reports.
This section sets out the required information a private charter provider must submit in order to be considered a registered charter provider.
We received comments from public transit agencies urging us to limit where a private charter operator can register. Specifically, one representative comment stated that it trusts “FTA will be vigilant and act quickly to correct abuses by removing private operators that act in bad faith * * * but such a process will not address the scenario in which a registered private operator who cannot in actuality provide service responds to a recipient's notice.”
In addition, the Web site is designed to allow quick and efficient removal of a private charter operator once a decision has been made that satisfies the requirements of section 604.26, “Removal.” We have, therefore, adopted as final the proposed language.
This section requires public transit agencies to provide notice to registered charter providers when the public transit agency is interested in providing the requested charter service.
We heard from public transit agencies and a public transit association indicating that a clarification is necessary in this section. Specifically, according to the association, “as drafted, section 604.14(b) would require pre-notification to private charter providers upon receiving a request for service under any exception. We believe this is a drafting error since it is inconsistent with the language immediately proceeding in section 604.14(a) and our understanding of the intent of the negotiators.” In addition, the association raised a concern regarding when an e-mail is returned “undeliverable.” A transit agency stated “the regulations require that the transit agency provide notice of a request for service by the close of business if the request is received before 2 p.m. that day, or the next business day if received after 2 p.m. This short time does not allow the public transit provider to evaluate the request and make sure that all the information is complete, before notifying the registered private charter companies.” One Midwestern transit agency commented that “the Web site will greatly reduce the private operator's financial risk. They will no longer need to market, advertise, or promote their business. Every morning they can just log on to FTA's version of `Make Me a Millionaire' Web site to see what contracts they can bid.”
Further, we are not convinced that the time period provided does not give public transit agency enough time to decide whether it is interested in providing the requested charter service. The time frames included in this particular provision were developed by the CBNRAC, which included small, medium, and large public transit agencies. Therefore, we retain that provision and adopt it as final.
In addition, we agree with the transportation association that a clarification should be added to the regulatory text to take into account when an e-mail is returned as “undeliverable.” In those instances, we have required a public transit agency to also send notification of the requested charter service by facsimile. In that instance, the public transit agencies must maintain a record of the “undeliverable” e-mail notification and confirmation that a facsimile was sent to the number provided by the registered charter provider.
This section set forth the registration requirements for qualified human service organizations (QHSO). Besides the basic information of organization name, address, and telephone, etc., the requirements also include basic financial information and a certification that funding received from a state or local program includes funding for transportation.
We heard from several public transit agencies regarding these registration requirements. Most opposed the requirement to certify that state or local funds include funds for transportation. One transportation association stated “it is the lack or dearth of transportation funding that keeps these social service agencies from contracting with private charter providers.” This association requests that the requirement be eliminated from the rule because “the rule's new complaint and appeals process is sufficient to ensure that non-deserving organizations do not receive service.”
Regarding the requirement to certify funds for transportation, one transportation authority noted that “many agencies may not know the terms of the original federal grant and social service agencies that are funded for transportation would not necessarily need the free or reduced cost services this system is intended to facilitate.” Another transit agency stated: “[the requirement presents a problem] since most federal funds are passed through one or more levels of state and local government with no indication of the original purposes. Social services organizations that are funded for transportation would not necessarily need the free or reduced cost services this system is intended to facilitate.”
From the private charter operator side, we received comments from an association urging us to “place the burden of qualification on the recipient and make clear that a failure to qualify an organization will result in a finding of violation and enforcement action.”
We also added a clarification in the final rule that a QHSO is required to provide certain information and demonstrate that it is qualified. Public transit agencies should ensure that the QHSO has a valid registration in the FTA Charter Registration Web site that was provided at least sixty days in advance of the requested service before providing charter services to that organization.
Finally, we added a clarification in the final rule that a QHSO, as part of its registration, must explain what types of future requests for charter service it may request from a recipient and how those charter service trips are related to the QHSO's mission.
This section provides minimum requirements for recipients of FTA funds with respect to the Charter Registration Web site.
We received comments from public transit agencies urging us to provide training and a training manual for the new Web site.
We have also modified the language of this provision to require a public transit agency to ensure that its employees and contractors affected by this regulation have the competency to effectively use the Web site.
This subpart allows for public transit agencies and private charter operators to request an advisory opinion from the Office of the Chief Counsel at FTA.
We heard from several public transit agencies opposing this provision. A large public transportation association went so far as to challenge whether the CBNRAC reached consensus on this provision. Other public transit agencies said that FTA should “withdraw the provision on advisory opinions because this means advice will be given on a regional basis which will lead to inconsistencies.” Another comment stated “while the intent of the advisory opinions portion of the rule is laudable as a practical matter, our management believes it has the potential to create more problems than it solves so we urge FTA to eliminate it.”
Private charter operators support the advisory opinion provision. Specifically, one southern private charter operator stated “I commend the committee on the consensus reached in the Advisory Opinion issue. This rule should be invaluable to both the private and the public operator in obtaining a clear opinion from FTA on the appropriateness of a proposed charter movement. If executed timely, this avenue will give a transit operator the opportunity to refrain from providing an illegal charter.”
On the other hand, we also heard from several private charter operates expressing concern over FTA's decision to not include cease and desist provisions in the rule. One private charter operator stated its concern as “our main disagreement with the FTA proposed rule is the lack of a process by which a complainant may apply to FTA for a cease and desist order to stop a publicly funded transit agency from beginning an illegal charter. Allowing private operators to apply for a cease and desist order prior to the charter would prevent the operator from filing and the transit agency from responding to the full complaint, hearing, and appeals process. FTA's reluctance to propose a cease and desist process stems solely from the agency's estimation of the workload and human capital required to implement it. While we are mindful of the agency's budget constraints we feel that a cease and desist order process need not be, and should not be long and drawn out.”
Another private charter association noted that “since FTA cannot recoup lost revenues when recipients are found in violation of the Charter Service rules, it is imperative the FTA maintain a cease and desist provision and not to include such a provision is inconsistent with FTA's duty and fails to protect the private charter operator.”
Further, we are also persuaded by the comments from the private charter operators requesting a cease and desist provision. This provision was considered during the CBNRAC negotiations, but no consensus was reached on this point. We rejected the provision in the NPRM because we believed it would be too burdensome. Since then, we have examined our practices, especially with respect to past decisions, and confirmed that we have provided cease and desist orders in the past. Therefore, we have included in the Advisory Opinion section a provision to allow private charter operators the option of requesting a cease and desist order. We have created an Advisory Opinion/Cease and Desist Order docket at
We have also included a provision to require that registered charter providers seeking a cease and desist order serve a copy of the request on the affected public transit agency by e-mail or facsimile. In addition, the registered charter provider must certify that it telephoned the public transit agency and informed an appropriate official of the submission of the request for cease and desist order in its request for an advisory opinion.
This section sets out the content requirements for complaints and provides timeframes for the filing of complaints, answers, replies, and rebuttals. This section also allows a complainant to withdraw its complaint at any time.
We received a variety of comments on this section. Generally, most public transit agencies expressed concern over the new, detailed complaint procedures. One southern public transit agency stated “the complaint process appears to be unwieldy, complicated, and potentially expensive for small operators.” A southern association of regional councils stated “the complaint process is overly harsh. As written, private providers can “tie up” a public provider with litigation for almost any perceived wrong. Public providers are left to stand alone and incur significant legal fees to defend every complaint.” This comment also advocated for a process that addresses honest mistakes, is administrative in nature and is free of any need for lawyers. One state representative submitted a comment on behalf of his public transit agency constituents stating the “NPRM is nine and one half pages and five of the pages address the procedures for filing a complaint that cannot be done without the services of an attorney. The additional administrative requirements will result in significant additional costs—direct and indirect.” In addition, we heard from public transit agencies that complaints should be filed within a certain time frame. One western transit district suggested “FTA's jurisdiction over complaints should be limited to complaints that are filed within the earlier of: (a) 90 days after the event giving rise to the complaint or (b) 30 days after the complainant knew or should have known about the event that is the subject of the complaint.”
Private charter operators were supportive of the proposed complaint provisions. A private charter operator stated that the “FTA charter bus complaint and appeals process required revision in order to achieve consistent and timely decisions. The new process will require additional information on the part of the complainant and should result in complaints with enough information to determine the violation of the charter regulations.”
Further, the new complaint provision requires a registered charter provider to provide specific factual allegations regarding an alleged charter violation.
On the other hand, we agree with comments submitted that only “ripe” complaints should be considered. Thus, we modified the language in the final rule to require that a complaint must be filed within 90 days of the date the alleged unauthorized charter service.
Further, we asked for comment regarding the role of state departments of transportation in the complaint process. We proposed to allow a state department of transportation to make a first attempt to resolve a complaint between a private charter operator and a sub-recipient. We heard from several state transportation departments that did not agree with our proposal. We heard from one state transportation department that did support the idea of allowing a state to attempt to resolve the matter initially.
Private charter operators did not support state involvement in the complaint process. Just like the public transit comments, private charter operators saw state involvement as leading to inconsistent decisions and a lengthier process.
We agree with the majority of comments received and will retain the proposed language in the final rule. The requirement in the final rule would notify a state department of transportation that a complaint has been filed against a sub-recipient. There are no requirements for the state in the complaint process.
Finally, we added a clarification that complaints for removal of registered charter provider or QHSO must be submitted within 90 days of discovering facts that merit removal. This 90-day deadline does not mean, however, that QHSOs that register and then are not challenged within 90 days after registration cannot later be challenged. Rather, when a registered charter provider or recipient finds evidence supporting removal, then the 90-day clock begins.
This provision allows FTA to appoint a presiding official (PO) in the event that a hearing is necessary.
Public transit agencies submitted comments expressing concern that the qualifications of a PO were not set out in the proposed rule. Specifically, “without reasonable criteria, vetted through public comment, the credibility and qualifications of any particular PO will necessarily be the first order of business in any proceeding. Must a PO be neutral and detached? Is FTA Regional Counsel available for assignment as a PO? Other FTA personnel? Is there a means of challenging a PO for cause, bias, or prejudice?”
Conversely, private charter operators support this provision and “presume that such officials will have no predisposed transit affiliation and have proper training and experience that will instill confidence in the complaint process.”
To address the comments received, we modified the language with respect to a PO to indicate that a PO will be appointed for hearing purposes only, and, regarding qualifications, we have added language that the official or agency representative appointed to preside as a PO shall be a person who has had no previous contact with the parties concerning the issue in the proceeding.
This section requires that FTA personnel involved in proceedings under this subpart must not be involved with other matters relating to the same case.
Public transit agencies raised a concern that “could one FTA attorney prosecute a complaint before another FTA attorney? The internal inconsistency appears based on the iterative nature of the drafting process. Both sections of the rule clearly place responsibility for prosecution of any complaint on the complainant.” In addition, several transit agencies asked the question of who bears the costs of litigation before a PO: “FTA has created a substantial quasi-judicial forum and process that will almost certainly be expensive to comply with. Who will be responsible for litigation costs?”
While these new hearing procedures may appear “substantial” in comparison to the existing hearing procedures, which are nonexistent, the procedures set out in the new rule set out a basic framework for conducting a hearing. The new provisions cover all of the basics of a hearing in the rare event that one is necessary.
This section sets out the standard of proof that must be met during a hearing and before a PO can rule in favor of a party.
An east coast transit agency recommended that the standard of proof should not be “substantial evidence” rather it should be “a preponderance of the reliable and probative evidence contained in the record and is in accordance with the law.”
This section sets out the burden of proof in a hearing asserting noncompliance with this Part.
A transportation association submitted a comment that this section does not give an “indication of what affirmative defense might be available in the complaint process. FTA must clarify when it feels a complainant no longer
This section set out the remedies that FTA may pursue if a recipient is found in noncompliance with this Part.
We heard from public transit agencies on a variety of issues regarding this section. First, some recipients asserted that FTA has no statutory authority to order a recipient to refund funds to the U.S. Treasury. Another argument is that FTA can only withhold a portion of funds if a pattern of violations is found. Further, others stated that remedies should only be ordered for violations of the same provisions and not dissimilar provisions. A private charter operator pointed out that “shall mitigate the remedy” should be “may mitigate the remedy.” Another comment submitted requested that FTA include a provision indicating where the funds will go. Others urged FTA to be reasonable in assessing remedies because any withdrawal of funds from a public transit agency will mean a lessening of public transit services. Another comment submitted requested that FTA provide a range of remedies so as to provide public transit agencies with an idea of how a violation of this Part will result in a certain amount of withheld funds.
Further, we believe that we do have the authority to withhold funds for a single violation of this Part. Comments on this topic do not take into account the statutory provision on remedies. Specifically, the statute provides: “If the Secretary decides that a violation has occurred, the Secretary shall correct the violation under terms of the agreement.” 49 U.S.C. 5323((d)(2)(B). The agreement referenced in the statute is the Master Agreement and the terms and conditions that all recipients agree to in order to receive financial assistance from FTA. (See Master Agreement, Section 11—Right of Federal Government to Terminate: “Upon written notice, the Recipient agrees that the Federal Government may suspend or terminate all or any part of the Federal assistance to be provided if the Recipient has violated the terms of the Grant Agreement or Cooperative Agreement for the Project including this Master Agreement * * *.”) Thus, under the terms of the agreement, FTA can withhold financial assistance for a single violation of the charter service regulations. We view the new statutory provision as direction from Congress that Federal financial assistance must be withheld if a pattern of violations is found. In contrast, previously under the Master Agreement, FTA had the discretion to determine whether to withhold Federal financial assistance for a pattern of violations. Now the Master Agreement reflects the new statutory provision regarding “Additional Remedies,” which states FTA “shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violation of the agreement.” 49 U.S.C. 5323(d)(2)C). We view the “Additional Remedies” section of SAFETEA-LU to mean that this remedy is in addition to the remedies specified in the Master Agreement. We therefore adopt these remedies as proposed.
In response to the concern that the violations must be similar in nature in order to constitute a pattern of violations, we believe this concern has merit. It is FTA's intention to view paperwork violations differently from service violations. Thus, we have clarified in the final rule that only unauthorized service violations can be counted toward a pattern of violations. In determining the remedy to be applied, however, we will consider whether the violation is service, paperwork, or reporting.
We also believe that the examination period of six years is appropriate to determine a pattern or practice. For urbanized area recipients, FTA conducts triennial reviews of compliance with FTA requirements. The six year period allows FTA to look at findings in two consecutive compliance reviews. The six year period will provide a true picture as to whether a public transit agency consistently violates the charter service regulations. Moreover, we know that a vast majority of transit agencies diligently comply with the charter service regulations. So, we doubt there will be many cases in which this provision will come into play.
We also want to respond to the private charter companies' concern that a single complaint could establish a pattern of violations. We believe that a single instance of unauthorized charter service cannot establish a pattern of violations. If a public transit agency provides unauthorized charter service for the flower show, then that is one instance of unauthorized charter service even though the flower show lasts for one week. In other words, multiple days of unauthorized charter service for a single event does not establish a pattern or practice of violating the charter service regulations. A complaint may, however, include several distinct instances of potential charter violations. In that case, the several distinct violations mentioned in the single complaint could form a basis for a finding of a pattern.
That being said, with the addition of a cease and desist provision to the final rule, registered charter providers can protect their interests in advance of an event. In addition, we will consider the issuance of a cease and desist order as an aggravating factor—if the recipient ignores the order and provides the service despite the issuance of a cease and desist order—in determining the amount of remedy to apply.
Public transit agencies also wanted to know where the withheld funds will go if FTA finds a violation of the charter service regulations. If FTA finds a violation of the charter service regulations, FTA will make every effort to ensure that the funds may be used by other recipients for transit services. For example, in instances where there are multiple recipients in a large urbanized area, FTA could withhold funds from the violating transit agency, while still allowing the funds to flow to other transit providers in the same urbanized area to which the funds were apportioned. For funds apportioned to the State for small urbanized areas, FTA could penalize one recipient while still allowing the Governor to allocate the funds to other urbanized areas in the State. Similarly, if a rural transit system were penalized for violations of the charter rule, the State could allocate the funds to other rural transit systems. In
Finally, we agree with the comments requesting notice of the range of penalties that may be applied for a violation. We have created a new Appendix D that contains a matrix of a range of potential remedies. While each case is fact specific and FTA will decide what remedy to apply on a case-by-case basis, this matrix provides guidance to recipients as to what FTA may withhold.
This rulemaking is not a significant regulatory action within the meaning of Executive Order 12866, and, therefore, this rulemaking was not reviewed by the Office of Management and Budget. Further, this rule is not significant under Department of Transportation regulatory policies and procedures. This final rule contains revisions that are clarifying in nature. Where possible, we have adopted provisions to lessen the burden on public transit agencies while ensuring that those entities do not engage in unfair competition with private charter operators.
This rule is not anticipated to adversely affect, in a material way, any sector of the economy. This rulemaking clarifies and sets forth provisions to protect private charter operators from unfair competition by public transit agencies; the changes should increase opportunities for private charter operators when the requested service is not subject to one of the community-based exceptions. Likewise, we have adopted provisions to be the least burdensome on small transit agencies—many of these agencies are now exempted from the rule's reporting requirements when they provide charter services in accordance with program purposes, as defined in the regulation, under 49 U.S.C. 5310, 5311, 5316, and 5317. In addition, this proposed rule would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.
FTA estimates the costs associated with this rule to be minimal. This rule simply clarifies existing procedures and sets out more efficient procedures for reporting, registration, and notification. The only costs we have identified for this rulemaking are the training costs to familiarize employees with the FTA Charter Registration Web site so that they can properly find the registered charter providers in their geographic service areas. Even so, FTA will provide training manuals for a recipient's use, which should further minimize a recipient's training costs.
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis,” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The nature of this rulemaking is to prevent unfair competition by public transit agencies with private charter operators. We have added provisions that are also supportive of small governmental entities. Thus, any economic impact on small entities will be a positive one. FTA hereby certifies that the final rule for the charter service regulation will not have a significant economic impact on a substantial number of small entities.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This final rule will not result in the expenditure of non-Federal funds by State, local, and Tribal governments, in the aggregate, or by the private sector, of $120.7 million in any one year (2 U.S.C. 1532).
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FTA has determined that the final rule would not have sufficient federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this final rule would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
FTA has an existing approved information collection (OMB Control Number 2132-0543) that expires on January 31, 2008. FTA has determined that the revisions in this final rule will require an update to the information collection request. However, FTA believes there will be a decrease in burden hours per submission because of the use of electronic technology.
FTA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the final rule does not have substantial direct effects on one or more Indian Tribes; does not impose substantial direct compliance costs on Indian Tribal governments; and does not preempt Tribal laws. Therefore, a Tribal summary impact statement is not required.
We have analyzed this action under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” dated May 18, 2001. We have determined that this final rule is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.
For ease of reference, we provide a distribution table to indicate changes in section numbering and titles.
Administrative practice and procedure, Charter service, Mass transportation.
(a) The purpose of this part is to implement 49 U.S.C. 5323(d), which protects private charter operators from unauthorized competition from recipients of Federal financial assistance under the Federal Transit Laws.
(b) This subpart specifies which entities shall comply with the charter service regulations; defines terms used in this part; explains procedures for an exemption from this part; and sets out the contents of a charter service agreement.
(a) The requirements of this part shall apply to recipients of Federal financial assistance under the Federal Transit Laws, except as otherwise provided in paragraphs (b) through (g) of this section.
(b) The requirements of this part shall not apply to a recipient transporting its employees, other transit system employees, transit management officials, transit contractors and bidders, government officials and their contractors and official guests, to or from transit facilities or projects within its geographic service area or proposed geographic service area for the purpose of conducting oversight functions such as inspection, evaluation, or review.
(c) The requirements of this part shall not apply to private charter operators that receive, directly or indirectly, Federal financial assistance under section 3038 of the Transportation Equity Act for the 21st Century, as amended, or to the non-FTA funded activities of private charter operators that receive, directly or indirectly, FTA financial assistance under any of the following programs: 49 U.S.C. 5307, 49 U.S.C. 5309, 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49 U.S.C. 5317.
(d) The requirements of this part shall not apply to a recipient transporting its employees, other transit system employees, transit management officials, transit contractors and bidders, government officials and their contractors and official guests, for emergency preparedness planning and operations.
(e) The requirements of this part shall not apply to a recipient that uses Federal financial assistance from FTA, for program purposes only, under 49 U.S.C. 5310, 49 U.S.C. 5311, 49 U.S.C. 5316, or 49 U.S.C. 5317.
(f) The requirements of this part shall not apply to a recipient, for actions directly responding to an emergency declared by the President, governor, or mayor or in an emergency requiring immediate action prior to a formal declaration. If the emergency lasts more than 45 days, the recipient shall follow the procedures set out in subpart D of 49 CFR 601.
(g) The requirements of this part shall not apply to a recipient in a non-urbanized area transporting its employees, other transit system employees, transit management officials, and transit contractors and bidders to or from transit training outside its geographic service area.
All terms defined in 49 U.S.C. 5301
(a)
(b)
(c)
(1) Transportation provided by a recipient at the request of a third party for the exclusive use of a bus or van for a negotiated price. The following features may be characteristic of charter service:
(i) A third party pays the transit provider a negotiated price for the group;
(ii) Any fares charged to individual members of the group are collected by a third party;
(iii) The service is not part of the transit provider's regularly scheduled service, or is offered for a limited period of time; or
(iv) A third party determines the origin and destination of the trip as well as scheduling; or
(2) Transportation provided by a recipient to the public for events or functions that occur on an irregular basis or for a limited duration and:
(i) A premium fare is charged that is greater than the usual or customary fixed route fare; or
(ii) The service is paid for in whole or in part by a third party.
(d)
(1) Hours operated while carrying passengers for hire, plus
(2) Associated deadhead hours.
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(a) A recipient seeking Federal assistance under the Federal Transit Laws to acquire or operate any public transportation equipment or facilities shall enter into a “Charter Service Agreement” as set out in paragraph (b) of this section.
(b) A recipient shall enter into a Charter Service Agreement if it receives Federal funds for equipment or facilities under the Federal Transit Laws. The terms of the Charter Service Agreement are as follows: “The recipient agrees that it, and each of its subrecipients, and third party contractors at any level who use FTA-funded vehicles, may provide charter service using equipment or facilities acquired with Federal assistance authorized under the Federal Transit Laws only in compliance with the regulations set out in 49 CFR 604, the terms and conditions of which are incorporated herein by reference.”
(c) The Charter Service Agreement is contained in the Certifications and Assurances published annually by FTA for applicants for Federal financial assistance. Once a recipient receives Federal funds, the Certifications and Assurances become part of its Grant Agreement or Cooperative Agreement for Federal financial assistance.
The purpose of this subpart is to identify the limited exceptions under which recipients may provide community-based charter services.
(a) A recipient may provide charter service to government officials (Federal, State, and local) for official government business, which can include non-transit related purposes, if the recipient:
(1) Provides the service in its geographic service area;
(2) Does not generate revenue from the charter service, except as required by law; and
(3) After providing such service, records the following:
(i) The government organization's name, address, phone number, and e-mail address;
(ii) The date and time of service;
(iii) The number of passengers (specifically noting the number of government officials on the trip);
(iv) The origin, destination, and trip length (miles and hours);
(v) The fee collected, if any; and
(vi) The vehicle number for the vehicle used to provide the service.
(b) A recipient that provides charter service under this section shall be limited annually to 80 charter service hours for providing trips to government officials for official government business.
(c) A recipient may petition the Administrator for additional charter service hours only if the petition contains the following information:
(1) Date and description of the official government event and the number of charter service hours requested;
(2) Explanation of why registered charter providers in the geographic service area cannot perform the service (e.g., equipment, time constraints, or other extenuating circumstances); and
(3) Evidence that the recipient has sent the request for additional hours to registered charter providers in its geographic service area.
(d) FTA shall post the request for additional charter service hours under this exception in the Government Officials Exception docket, docket number FTA-2007-0020 at
(a) A recipient may provide charter service to a qualified human service organization (QHSO) for the purpose of serving persons:
(1) With mobility limitations related to advanced age;
(2) With disabilities; or
(3) With low income.
(b) If an organization serving persons described in paragraph (a) of this section receives funding, directly or indirectly, from the programs listed in Appendix A of this part, the QHSO shall not be required to register on the FTA charter registration Web site.
(c) If a QHSO serving persons described in paragraph (a) of this
(d) A recipient providing charter service under this exception, whether or not the QHSO receives funding from Appendix A programs, and after providing such charter service, shall record:
(1) The QHSO's name, address, phone number, and e-mail address;
(2) The date and time of service;
(3) The number of passengers;
(4) The origin, destination, and trip length (miles and hours);
(5) The fee collected, if any; and
(6) The vehicle number for the vehicle used to provide the service.
(a) A recipient may lease its FTA-funded equipment and drivers to registered charter providers for charter service only if the following conditions exist:
(1) The private charter operator is registered on the FTA charter registration Web site;
(2) The registered charter provider owns and operates buses or vans in a charter service business;
(3) The registered charter provider received a request for charter service that exceeds its available capacity either of the number of vehicles operated by the registered charter provider or the number of accessible vehicles operated by the registered charter provider; and
(4) The registered charter provider has exhausted all of the available vehicles of all registered charter providers in the recipient's geographic service area.
(b) A recipient leasing vehicles and drivers to a registered charter provider under this provision shall record:
(1) The registered charter provider's name, address, telephone number, and e-mail address;
(2) The number of vehicles leased, types of vehicles leased, and vehicle identification numbers; and
(3) The documentation presented by the registered charter provider in support of paragraphs (a)(1) through (4) of this section.
(c) In accordance with § 604.26, if a registered charter provider seeking to lease vehicles has filed a complaint requesting that another registered charter provider be removed from the FTA charter registration Web site, then the registered charter provider seeking to lease vehicles is not required to exhaust the vehicles from that registered charter provider while the complaint is pending before leasing vehicles from a recipient.
(a) A recipient may provide charter service, on its own initiative or at the request of a third party, if no registered charter provider responds to the notice issued in § 604.14:
(1) Within 72 hours for charter service requested to be provided in less than 30 days; or
(2) Within 14 calendar days for charter service requested to be provided in 30 days or more.
(b) A recipient shall not provide charter service under this section if a registered charter provider indicates an interest in providing the charter service set out in the notice issued pursuant to § 604.14 and the registered charter provider has informed the recipient of its interest in providing the service.
(c) After providing the service, a recipient shall record:
(1) The group's name, address, phone number, and e-mail address;
(2) The date and time of service;
(3) The number of passengers;
(4) The origin, destination, and trip length (miles and hours);
(5) The fee collected, if any; and
(6) The vehicle number for the vehicle used to provide the service.
(a) A recipient may provide charter service directly to a customer consistent with an agreement entered into with all registered charter providers in the recipient's geographic service area.
(b) If a new charter provider registers in the geographic service area subsequent to the initial agreement, the recipient may continue to provide charter service under the previous agreement with the other charter providers up to 90 days without an agreement with the newly registered charter provider.
(c) Any of the parties to an agreement may cancel the agreement at any time after providing the recipient a 90-day notice.
(a) A recipient may petition the Administrator for an exception to the charter service regulations to provide charter service directly to a customer for:
(1) Events of regional or national significance;
(2) Hardship (only for non-urbanized areas under 50,000 in population or small urbanized areas under 200,000 in population); or
(3) Unique and time sensitive events (e.g., funerals of local, regional, or national significance) that are in the public's interest.
(b) The petition to the Administrator shall include the following information:
(1) The date and description of the event;
(2) The type of service requested and the type of equipment;
(3) The anticipated number of charter service hours needed for the event;
(4) The anticipated number of vehicles and duration of the event; and
(i) For an event of regional or national significance, the petition shall include a description of how registered charter providers were consulted, how registered charter providers will be utilized in providing the charter service, a certification that the recipient has exhausted all of the registered charter providers in its geographic service area, and submit the petition at least 90 days before the first day of the event described in paragraph (b)(1) of this section;
(ii) For a hardship request, a petition is only available if the registered charter provider has deadhead time that exceeds total trip time from initial pick-up to final drop-off, including wait time. The petition shall describe how the registered charter provider's minimum duration would create a hardship on the group requesting the charter service; or
(iii) For unique and time sensitive events, the petition shall describe why the event is unique or time sensitive and how providing the charter service would be in the public's interest.
(c) Upon receipt of a petition that meets the requirements set forth in paragraph (b) of this section, the Administrator shall review the materials and issue a written decision denying or granting the request in whole or in part. In making this decision, the Administrator may seek such additional information as the Administrator deems necessary. The Administrator's decision shall be filed in the Petitions to the Administrator docket, number FTA-2007-0022 at
(d) Any exception granted by the Administrator under this section shall be effective only for the event identified in paragraph (b)(1) of this section.
(e) A recipient shall send its petition to the Administrator by facsimile to (202) 366-3809 or by e-mail to
(f) A recipient shall retain a copy of the Administrator's approval for a period of at least three years and shall include it in the recipient's quarterly report posted on the charter registration Web site.
(a) A recipient that provides charter service in accordance with one or more of the exceptions contained in this subpart shall maintain the required notice and records in an electronic format for a period of at least three years from the date of the service or lease. A recipient may maintain the required records in other formats in addition to the electronic format.
(b) In addition to the requirements identified in paragraph (a) of this section, the records required under this subpart shall include a clear statement identifying which exception the recipient relied upon when it provided the charter service.
(c) Beginning on July 30, 2008, a recipient providing charter service under these exceptions shall post the records required under this subpart on the FTA charter registration Web site 30 days after the end of each calendar quarter (i.e., January 30th, April 30th, July 30th, and October 30th). A single document or charter log may include all charter service trips provided during the quarter.
(d) A recipient may exclude specific origin and destination information for safety and security reasons. If a recipient excludes such information, the record of the service shall describe the reason why such information was excluded and provide generalized information instead of providing specific origin and destination information.
(a) Private charter operators shall provide the following information at
(1) Company name, address, phone number, e-mail address, and facsimile number;
(2) Federal and, if available, state motor carrier identifying number;
(3) The geographic service areas of public transit agencies, as identified by the transit agency's zip code, in which the private charter operator intends to provide charter service;
(4) The number of buses or vans the private charter operator owns;
(5) A certification that the private charter operator has valid insurance; and
(6) Whether willing to provide free or reduced rate charter services to registered qualified human service organizations.
(b) A private charter operator that provides valid information in this subpart is a “registered charter provider” for purposes of this part and shall have standing to file a complaint consistent with subpart F.
(c) A recipient, a registered charter provider, or their duly authorized representative, may challenge a registered charter provider's registration and request removal of the private charter operator from FTA's charter registration Web site by filing a complaint consistent with subpart F.
(d) FTA may refuse to post a private charter operator's information if the private charter operator fails to provide all of the required information as indicated on the FTA charter registration Web site.
(e) A registered charter provider shall provide current and accurate information on FTA's charter registration Web site, and shall update that information no less frequently than every two years.
(a) Upon receiving a request for charter service, a recipient may:
(1) Decline to provide the service, with or without referring the requestor to FTA's charter registration Web site (
(2) Provide the service under an exception provided in subpart B of this part; or
(3) Provide notice to registered charter providers as provided in this section and provide the service pursuant to § 604.9.
(b) If a recipient is interested in providing charter service under the exception contained in § 604.9, then upon receipt of a request for charter service, the recipient shall provide e-mail notice to registered charter providers in the recipient's geographic service area in the following manner:
(1) E-mail notice of the request shall be sent by the close of business on the day the recipient receives the request unless the recipient received the request after 2 p.m., in which case the recipient shall send the notice by the close of business the next business day;
(2) E-mail notice sent to the list of registered charter providers shall include:
(i) Customer name, address, phone number, and e-mail address (if available);
(ii) Requested date of service;
(iii) Approximate number of passengers;
(iv) Whether the type of equipment requested is (are) bus(es) or van(s); and
(v) Trip itinerary and approximate duration; and
(3) If the recipient intends to provide service that meets the definition of charter service under § 604.3(c)(2), the e-mail notice must include the fare the recipient intends to charge for the service.
(c) A recipient shall retain an electronic copy of the e-mail notice and the list of registered charter providers that were sent e-mail notice of the requested charter service for a period of at least three years from the date the e-mail notice was sent.
(d) If a recipient receives an “undeliverable” notice in response to its e-mail notice, the recipient shall send the notice via facsimile. The recipient shall maintain the record of the undeliverable e-mail notice and the facsimile sent confirmation for a period of three years.
(a) Qualified human service organizations (QHSO) that seek free or reduced rate services from recipients, and do not receive funds from Federal programs listed in Appendix A, but serve individuals described in § 604.7 (i.e., individuals with low income, advanced age, or with disabilities), shall register on FTA's charter registration Web site by submitting the following information:
(1) Name of organization, address, phone number, e-mail address, and facsimile number;
(2) The geographic service area of the recipient in which the qualified human service organization resides;
(3) Basic financial information regarding the qualified human service organization and whether the qualified human service organization is exempt from taxation under sections 501(c) (1), (3), (4), or (19) of the Internal Revenue Code, and whether it is a unit of Federal, State or local government;
(4) Whether the qualified human service organization receives funds directly or indirectly from a State or local program, and if so, which program(s); and
(5) A narrative statement describing the types of charter service trips the qualified human service organization may request from a recipient and how that service is consistent with the mission of the qualified human service organization.
(b) A qualified human service organization is eligible to receive charter services from a recipient if it:
(1) Registers on the FTA Web site in accordance with paragraph (a) of this section at least 60 days before the date of the requested charter service; and
(2) Verifies FTA's receipt of its registration by viewing its information on the FTA charter registration Web site (
(c) A registered charter provider may challenge a QHSO's status to receive charter services from a recipient by requesting removal of the QHSO from FTA's charter registration Web site by filing a complaint consistent with subpart F.
(d) A QHSO shall provide current and accurate information on FTA's charter registration Web site, and shall update that information no less frequently than every two years.
Each recipient shall ensure that its affected employees and contractors have the necessary competency to effectively use the FTA charter registration Web site.
The purpose of this subpart is to set out the requirements for requesting an advisory opinion from the Chief Counsel's Office. An advisory opinion may also request that the Chief Counsel issue a cease and desist order, which would be an order to refrain from doing an act which, if done, would be a violation of this part.
(a) An interested party may request an advisory opinion from the Chief Counsel on a matter regarding specific factual events only.
(b) A request for an advisory opinion shall be submitted in the following form:
(c) The Chief Counsel may request additional information, as necessary, from the party submitting the request for an advisory opinion.
(d) A request for an advisory opinion may be denied if:
(1) The request contains incomplete information on which to base an informed advisory opinion;
(2) The Chief Counsel concludes that an advisory opinion cannot reasonably be given on the matter involved;
(3) The matter is adequately covered by a prior advisory opinion or a regulation;
(4) The Chief Counsel otherwise concludes that an advisory opinion would not be in the public interest.
(a) A request for an advisory opinion shall be sent to the Chief Counsel at
(b) The Chief Counsel shall make every effort to respond to a request for an advisory opinion within ten days of receipt of a request that complies with § 604.18(b). The Chief Counsel shall send his or her decision to the interested party, the docket, and the recipient, if appropriate.
(a) An advisory opinion represents the formal position of FTA on a matter, and except as provided in § 604.25 of this subpart, obligates the agency to follow it until it is amended or revoked.
(b) An advisory opinion may be used in administrative or court proceedings to illustrate acceptable and unacceptable procedures or standards, but not as a legal requirement and is limited to the factual circumstances described in the request for an advisory opinion. The Chief Counsel's advisory opinion shall not be binding upon a Presiding Official conducting a proceeding under subpart I of this part.
(c) A statement made or advice provided by an FTA employee constitutes an advisory opinion only if it is issued in writing under this section. A statement or advice given by an FTA employee orally, or given in writing, but not under this section, is an informal communication that represents the best judgment of that employee at the time but does not constitute an advisory opinion, does not necessarily represent the formal position of FTA, and does not bind or otherwise obligate or commit the agency to the views expressed.
Based on new facts involving significant financial considerations, the Chief Counsel may take appropriate enforcement action contrary to an advisory opinion before amending or revoking the opinion. This action shall be taken only with the approval of the Administrator.
(a) An interested party may also request a cease and desist order as part of its request for an advisory opinion. A request for a cease and desist order shall contain the following information in addition to the information required for an advisory opinion:
(1) A description of the need for the cease and desist order, a detailed description of the lost business opportunity the interested party is likely to suffer if the recipient performs the charter service in question, and how the public interest will be served by avoiding or ameliorating the lost business opportunity. A registered charter provider must distinguish its loss from that of other registered charter providers in the geographic service area.
(2) A detailed description of the efforts made to notify the recipient of the potential violation of the charter service regulations. Include names, titles, phone numbers or e-mail addresses of persons contacted, date and times contact was made, and the response received, if any.
(b) A request for a cease and desist order may be denied if:
(1) The request contains incomplete information on which to base an informed a cease and desist order;
(2) The Chief Counsel concludes that a cease and desist order cannot
(3) The matter is adequately covered by a prior a cease and desist order; or
(4) The Chief Counsel otherwise concludes that a cease and desist order would not be in the public interest.
(c) A recipient who is the subject of a request for a cease and desist order shall have three business days to respond to the request. The response shall include a point-by-point rebuttal to the information included in the request for a cease and desist order.
(d) The time period for a response by the recipient begins once a registered charter provider files a request in the Advisory Opinion/Cease and Desist Order docket (FTA-2007-0023 at
(a) Issuance of a cease and desist order against a recipient shall be considered as an aggravating factor in determining the remedy to impose against the recipient in future findings of noncompliance with this part, if the recipient provides the service described in the cease and desist order issued by the Chief Counsel.
(b) In determining whether to grant the request for a cease and desist order, the Chief Counsel shall consider the specific facts shown in the signed, sworn request for a cease and desist order, applicable statutes and regulations, and any other information that is relevant to the request.
(a) The Chief Counsel may grant a request for a cease and desist order if the interested party demonstrates, by a preponderance of the evidence, that the planned provision of charter service by a recipient would violate this part.
(b) In determining whether to grant the request for a cease and desist order, the Chief Counsel shall consider the specific facts shown in the signed, sworn request for a cease and desist order, applicable statutes, regulations, agreements, and any other information that is relevant to the request.
This subpart describes the requirements for filing a complaint challenging the registration of a private charter operator or qualified human service organization on the FTA charter registration Web site and filing a complaint regarding the provision of charter service by a recipient. Note: To save time and expense for all concerned, FTA expects all parties to attempt to resolve matters informally before beginning the official complaint process.
(a) A recipient, a registered charter provider, or its duly authorized representative, may challenge the listing of a registered charter provider or qualified human service organization on FTA's charter registration Web site by filing a complaint that meets the following:
(1) States the name and address of each entity who is the subject of the complaint;
(2) Provides a concise but complete statement of the facts relied upon to substantiate the reason why the private charter operator or qualified human service organization should not be listed on the FTA charter registration Web site;
(3) Files electronically by submitting it to the Charter Service Removal Complaint docket number FTA-2007-0024 at
(4) Serves by e-mail or facsimile if no e-mail address is available, or by overnight mail service with receipt confirmation, and attaches documents offered in support of the complaint upon all entities named in the complaint;
(5) Files within 90 days of discovering facts that merit removal of the registered charter provider or qualified human service organization from the FTA Charter Registration Web site; and
(6) Contains the following certification:
(b) The registered charter provider or qualified human service organization shall have 15 days to answer the complaint and shall file such answer, and all supporting documentation, in the Charter Service Removal Complaint docket number FTA-2007-0024 at
(c) A recipient, qualified human service organization, or a registered charter provider, or its duly authorized representative, shall not file a reply to the answer.
(d) FTA shall determine whether to remove the registered charter provider or qualified human service organization from the FTA charter registration Web site based on a preponderance of the evidence of one or more of the following:
(1) Bad faith;
(2) Fraud;
(3) Lapse of insurance;
(4) Lapse of other documentation; or
(5) The filing of more than one complaint, which on its face, does not state a claim that warrants an investigation or further action by FTA.
(e) FTA's determination whether or not to remove a registered charter provider or qualified human service organization from the registration list shall be sent to the parties within 30 days of the date of the response required in paragraph (b) of this section and shall state:
(1) Reasons for allowing the continued listing or removal of the registered charter provider or qualified human service organization from the registration list;
(2) If removal is ordered, the length of time (not to exceed three years) the private charter operator or qualified human service organization shall be barred from the registration list; and
(3) The date by which the private charter operator or qualified human service organization may re-apply for registration on the FTA charter registration Web site.
(a) A registered charter provider, or its duly authorized representative (“complainant”), affected by an alleged noncompliance of this part may file a complaint with the Office of the Chief Counsel.
(b) Complaints filed under this subpart shall:
(1) Be titled “Notice of Charter Service Complaint”;
(2) State the name and address of each recipient that is the subject of the complaint and, with respect to each recipient, the specific provisions of this part that the complainant believes were violated;
(2) Be served in accordance with § 604.31, along with all documents then available in the exercise of reasonable diligence, offered in support of the complaint, upon all recipients named in the complaint as being responsible for the alleged action(s) or omission(s) upon which the complaint is based;
(3) Provide a concise but complete statement of the facts relied upon to
(4) Describe how the complainant was directly and substantially affected by the things done or omitted by the recipients;
(5) Identify each registered charter provider associated with the complaint; and
(6) Be filed within 90 days after the alleged event giving rise to the complaint occurred.
(c) Unless the complaint is dismissed pursuant to § 604.28 or § 604.29, FTA shall notify the complainant, respondent, and state recipient, if applicable, within 30 days after the date FTA receives the complaint that the complaint has been docketed. Respondent shall have 30 days from the date of service of the FTA notification to file an answer.
(d) The complainant may file a reply within 20 days of the date of service of the respondent's answer.
(e) The respondent may file a rebuttal within 10 days of the date of service of the reply.
(f) The answer, reply, and rebuttal shall, like the complaint, be accompanied by the supporting documentation upon which the submitter relies.
(g) The answer shall deny or admit the allegations made in the complaint or state that the entity filing the document is without sufficient knowledge or information to admit or deny an allegation, and shall assert any affirmative defense.
(h) The answer, reply, and rebuttal shall each contain a concise but complete statement of the facts relied upon to substantiate the answers, admissions, denials, or averments made.
(i) The respondent's answer may include a motion to dismiss the complaint, or any portion thereof, with a supporting memorandum of points and authorities.
(j) The complainant may withdraw a complaint at any time after filing by serving a “Notification of Withdrawal” on the Chief Counsel and the respondent.
(a) Within 20 days after the receipt of a complaint described in § 604.27, the Office of the Chief Counsel shall provide reasons for dismissing a complaint, or any claim in the complaint, with prejudice, under this section if:
(1) It appears on its face to be outside the jurisdiction of FTA under the Federal Transit Laws;
(2) On its face it does not state a claim that warrants an investigation or further action by FTA; or
(3) The complainant lacks standing to file a complaint under subparts B, C, or D of this part.
(b) [Reserved]
If a complaint is not dismissed under § 604.28, but is deficient as to one or more of the requirements set forth in § 604.27, the Office of the Chief Counsel may dismiss the complaint within 20 days after receiving it. Dismissal shall be without prejudice and the complainant may re-file after amendment to correct the deficiency. The Chief Counsel's dismissal shall include the reasons for the dismissal without prejudice.
(a)
(b)
(1) The date of personal delivery;
(2) The mailing date shown on the certificate of service;
(3) The date shown on the postmark if there is no certificate of service; or
(4) The mailing date shown by other evidence if there is no certificate of service and no postmark.
(c)
(d)
(e)
(f)
(1) Consistent with this part;
(2) Warranted by existing law or that a good faith argument exists for extension, modification, or reversal of existing law; and
(3) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of the administrative process.
(a)
(1) The title of the document;
(2) The name, post office address, telephone number; and
(3) The facsimile number, if any, and e-mail address(es), if any.
If any of the above items change during the proceeding, the person shall promptly file notice of the change with FTA and the Presiding Official, if appropriate, and shall serve the notice on all other parties to the proceeding.
(b)
(c)
(d)
(e)
(1) When acknowledgment of receipt is by a person who customarily or in the ordinary course of business receives mail at the address of the party or of the person designated under this section; or
(2) When a properly addressed envelope, sent to the last known address has been returned as undeliverable, unclaimed, or refused.
(a) If, based on the pleadings, there appears to be a reasonable basis for investigation, FTA shall investigate the subject matter of the complaint.
(b) The investigation may include a review of written submissions or pleadings of the parties, as supplemented by any informal investigation FTA considers necessary and by additional information furnished by the parties at FTA request. Each party shall file documents that it considers sufficient to present all relevant facts and argument necessary for FTA to determine whether the recipient is in compliance.
(c) The Chief Counsel shall send a notice to complainant(s) and respondent(s) once an investigation is complete, but not later than 90 days after receipt of the last pleading specified in § 604.27 was due to FTA.
(a) Notwithstanding any other provision under these regulations, FTA may initiate its own investigation of any matter within the applicability of this Part without having received a complaint. The investigation may include, without limitation, any of the actions described in § 604.32.
(b) Following the initiation of an investigation under this section, FTA sends a notice to the entities subject to investigation. The notice will set forth the areas of FTA's concern and the reasons; request a response to the notice within 30 days of the date of service; and inform the respondent that FTA will, in its discretion, invite good faith efforts to resolve the matter.
(c) If the matters addressed in the FTA notice are not resolved informally, the Chief Counsel may refer the matter to a Presiding Official.
(a) After receiving a complaint consistent with § 604.27, and conducting an investigation, the Chief Counsel may:
(1) Issue a decision based on the pleadings filed to date;
(2) Appoint a PO to review the matter; or
(3) Dismiss the complaint pursuant to § 604.28.
(b) If the Chief Counsel appoints a PO to review the matter, the Chief Counsel shall send out a hearing order that sets forth the following:
(1) The allegations in the complaint, or notice of investigation, and the chronology and results of the investigation preliminary to the hearing;
(2) The relevant statutory, judicial, regulatory, and other authorities;
(3) The issues to be decided;
(4) Such rules of procedure as may be necessary to supplement the provisions of this Part;
(5) The name and address of the PO, and the assignment of authority to the PO to conduct the hearing in accordance with the procedures set forth in this Part; and
(6) The date by which the PO is directed to issue a recommended decision.
(a) Proceedings under this part shall be handled by an FTA attorney, except that the Chief Counsel may appoint a PO, who may not be an FTA attorney.
(b) After issuance of an initial decision by the Chief Counsel, the FTA employee or contractor engaged in the performance of investigative or prosecutorial functions in a proceeding under this part shall not, in that case or a factually related case, participate or give advice in a final decision by the Administrator or his or her designee on written appeal, and shall not, except as counsel or as witness in the public proceedings, engage in any substantive communication regarding that case or a related case with the Administrator on written appeal.
A PO may:
(a) Give notice of, and hold, pre-hearing conferences and hearings;
(b) Administer oaths and affirmations;
(c) Issue notices of deposition requested by the parties;
(d) Limit the frequency and extent of discovery;
(e) Rule on offers of proof;
(f) Receive relevant and material evidence;
(g) Regulate the course of the hearing in accordance with the rules of this part to avoid unnecessary and duplicative proceedings in the interest of prompt and fair resolution of the matters at issue;
(h) Hold conferences to settle or to simplify the issues by consent of the parties;
(i) Dispose of procedural motions and requests;
(j) Examine witnesses; and
(k) Make findings of fact and conclusions of law and issue a recommended decision.
(a) Any party to the hearing may appear and be heard in person and any party to the hearing may be accompanied, represented, or advised by an attorney licensed by a State, the District of Columbia, or a territory of the United States to practice law or appear before the courts of that State or territory, or by another duly authorized representative. An attorney, or other duly authorized representative, who represents a party shall file according to the filing and service procedures contained in § 604.30 and § 604.31.
(b) The parties to the hearing are the respondent(s) named in the hearing order, the complainant(s), and FTA, as represented by the PO.
(c) The parties to the hearing may agree to extend for a reasonable period of time the time for filing a document under this part. If the parties agree, the PO shall grant one extension of time to each party. The party seeking the extension of time shall submit a draft order to the PO to be signed by the PO and filed with the hearing docket. The PO may grant additional oral requests for an extension of time where the parties agree to the extension.
(d) An extension of time granted by the PO for any reason extends the due date for the PO's recommended decision and for the final agency decision by the length of time in the PO's extension.
(a) Permissible forms of discovery shall be within the discretion of the PO.
(b) The PO shall limit the frequency and extent of discovery permitted by this section if a party shows that:
(1) The information requested is cumulative or repetitious;
(2) The information requested may be obtained from another less burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity to obtain the information through other discovery methods permitted under this section; or
(4) The method or scope of discovery requested by the party is unduly burdensome or expensive.
(a) For good cause shown, the PO may order that the testimony of a witness may be taken by deposition and that the witness produce documentary evidence in connection with such testimony. Generally, an order to take the deposition of a witness is entered only if:
(1) The person whose deposition is to be taken would be unavailable at the hearing;
(2) The deposition is deemed necessary to perpetuate the testimony of the witness; or
(3) The taking of the deposition is necessary to prevent undue and excessive expense to a party and will not result in undue burden to other parties or in undue delay.
(b) Any party to the hearing desiring to take the deposition of a witness according to the terms set out in this subpart, shall file a motion with the PO, with a copy of the motion served on each party. The motion shall include:
(1) The name and residence of the witness;
(2) The time and place for the taking of the proposed deposition;
(3) The reasons why such deposition should be taken; and
(4) A general description of the matters concerning which the witness will be asked to testify.
(c) If good cause is shown in the motion, the PO in his or her discretion, issues an order authorizing the deposition and specifying the name of the witness to be deposed, the location and time of the deposition and the general scope and subject matter of the testimony to be taken.
(d) Witnesses whose testimony is taken by deposition shall be sworn or shall affirm before any questions are put to them. Each question propounded shall be recorded and the answers of the witness transcribed verbatim. The written transcript shall be subscribed by the witness, unless the parties by stipulation waive the signing, or the witness is ill, cannot be found, or refuses to sign. The reporter shall note the reason for failure to sign.
(a) Except as provided in this section, the hearing shall be open to the public.
(b) The PO may order that any information contained in the record be withheld from public disclosure. Any person may object to disclosure of information in the record by filing a written motion to withhold specific information with the PO. The person shall state specific grounds for nondisclosure in the motion.
(c) The PO shall grant the motion to withhold information from public disclosure if the PO determines that disclosure would be in violation of the Privacy Act, would reveal trade secrets or privileged or confidential commercial or financial information, or is otherwise prohibited by law.
The PO shall issue a recommended decision or shall rule in a party's favor only if the decision or ruling is supported by a preponderance of the evidence.
(a) The burden of proof of noncompliance with this part, determination, or agreement issued under the authority of the Federal Transit Laws is on the registered charter provider.
(b) Except as otherwise provided by statute or rule, the proponent of a motion, request, or order has the burden of proof.
A party whose evidence has been excluded by a ruling of the PO, during a hearing in which the respondent had an opportunity to respond to the offer of proof, may offer the evidence on the record when filing an appeal.
(a) The transcript of all testimony in the hearing, all exhibits received into evidence, all motions, applications requests and rulings, and all documents included in the hearing record shall constitute the exclusive record for decision in the proceedings and the basis for the issuance of any orders.
(b) Any interested person may examine the record by entering the docket number at
(a) The PO shall waive such procedural steps as all parties to the hearing agree to waive before issuance of an initial decision.
(b) Consent to a waiver of any procedural step bars the raising of this issue on appeal.
(c) The parties may not by consent waive the obligation of the PO to enter a recommended decision on the record.
(a) The PO shall issue a recommended decision based on the record developed during the proceeding and shall send the recommended decision to the Chief Counsel for ratification or modification not later than 110 days after the referral from the Chief Counsel.
(b) The Chief Counsel shall ratify or modify the PO's recommended decision within 30 days of receiving the recommended decision. The Chief Counsel shall serve his or her decision, which is capable of being appealed to the Administrator, on all parties to the proceeding.
(a) If the Chief Counsel determines that a violation of this part occurred, he or she may take one or more of the following actions:
(1) Bar the recipient from receiving future Federal financial assistance from FTA;
(2) Order the withholding of a reasonable percentage of available Federal financial assistance; or
(3) Pursue suspension and debarment of the recipient, its employees, or its contractors.
(b) In determining the type and amount of remedy, the Chief Counsel shall consider the following factors:
(1) The nature and circumstances of the violation;
(2) The extent and gravity of the violation (“extent of deviation from regulatory requirements”);
(3) The revenue earned (“economic benefit”) by providing the charter service;
(4) The operating budget of the recipient;
(5) Such other matters as justice may require; and
(6) Whether a recipient provided service described in a cease and desist order after issuance of such order by the Chief Counsel.
(c) The Chief Counsel office may mitigate the remedy when the recipient can document corrective action of alleged violation. The Chief Counsel's decision to mitigate a remedy shall be determined on the basis of how much corrective action was taken by the recipient and when it was taken. Systemic action to prevent future violations will be given greater consideration than action simply to remedy violations identified during FTA's inspection or identified in a complaint.
(d) In the event the Chief Counsel finds a pattern of violations, the remedy ordered shall bar a recipient from receiving Federal transit assistance in an amount that the Chief Counsel considers appropriate.
(e) The Chief Counsel may make a decision to withhold Federal financial assistance in a lump sum or over a period of time not to exceed five years.
(a) Each party adversely affected by the Chief Counsel's office decision may file an appeal with the Administrator within 21 days of the date of the Chief Counsel's issued his or her decision. Each party may file a reply to an appeal within 21 days after it is served on the party. Filing and service of appeals and replies shall be by personal delivery consistent with §§ 604.30 and 604.31.
(b) If an appeal is filed, the Administrator reviews the entire record and issues a final agency decision based on the record that either accepts, rejects, or modifies the Chief Counsel's decision within 30 days of the due date of the reply. If no appeal is filed, the Administrator may take review of the case on his or her own motion. If the Administrator finds that the respondent is not in compliance with this part, the final agency order shall include a statement of corrective action, if appropriate, and identify remedies.
(c) If no appeal is filed, and the Administrator does not take review of the decision by the office on the Administrator's own motion, the Chief Counsel's decision shall take effect as the final agency decision and order on the twenty-first day after the actual date the Chief Counsel's decision was issued.
(d) The failure to file an appeal is deemed a waiver of any rights to seek judicial review of the Chief Counsel's decision that becomes a final agency decision by operation of paragraph (c) of this section.
(a) If the Administrator takes review on the Administrator's own motion, the Administrator shall issue a notice of review by the twenty-first day after the actual date of the Chief Counsel's decision that contains the following information:
(1) The notice sets forth the specific findings of fact and conclusions of law in the decision subject to review by the Administrator.
(2) Parties may file one brief on review to the Administrator or rely on their post-hearing briefs to the Chief Counsel's office. Briefs on review shall be filed not later than 10 days after service of the notice of review. Filing and service of briefs on review shall be by personal delivery consistent with § 604.30 and § 604.31.
(3) The Administrator issues a final agency decision and order within 30 days of the due date of the briefs on review. If the Administrator finds that the respondent is not in compliance with this part, the final agency order shall include a statement of corrective action, if appropriate, and identify remedies.
(b) If the Administrator takes review on the Administrator's own motion, the decision of the Chief Counsel is stayed pending a final decision by the Administrator.
(a) A person may seek judicial review in an appropriate United States District Court of a final decision and order of the Administrator as provided in 5 U.S.C. 701-706. A party seeking judicial review of a final decision and order shall file a petition for review with the Court not later than 60 days after a final decision and order is effective.
(b) The following do not constitute final decisions and orders subject to judicial review:
(1) FTA's decision to dismiss a complaint as set forth in § 604.29;
(2) A recommended decision issued by a PO at the conclusion of a hearing; or
(3) A Chief Counsel decision that becomes the final decision of the Administrator because it was not appealed within the stated timeframes.
The following is an explanation of terms contained in Section 604.27(d) concerning reasons for which FTA may remove a private charter operator or a qualified human service from the FTA charter registration Web site.
Bad faith is the actual or constructive fraud or a design to mislead or deceive another or a neglect or refusal to fulfill a duty or contractual obligation. It is not an honest mistake. Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, Minn., 1968.
For example, it would be bad faith for a registered charter provider to respond to a recipient's notification to registered charter providers of a charter service opportunity stating that it would provide the service with no actual intent to perform the charter service. It would not be bad faith for a registered charter operator to fail to provide charter service in response to a recipient's notification when it honestly mistook the date, place or time the service was to be provided.
Fraud is the suggestion or assertion of a fact that is not true, by one who has no reasonable ground for believing it to be true; the suppression of a fact by one who is bound to disclose it; one who gives information of other facts which are likely to mislead; or a promise made without any intention of performing it. Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, Minn., 1968.
Examples of fraud include but are not limited to: (1) A registered charter operator indicates that it has a current state or Federal safety certification when it knows that it does not in fact have one; (2) a broker that owns no charter vehicles registers as a registered charter provider; (3) a registered charter provider intentionally misrepresents its legal geographic service area.
A lapse of insurance occurs when there is no policy of insurance is in place. This may occur when there has been default in payment of premiums on an insurance policy and the policy is no longer in force. In addition, no other policy of insurance has taken its place.
Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, Minn., 1968.
A lapse of other documentation means for example, but is not limited to, failure to have or loss or revocation of business license, operating authority, failure to notify of current company name, address, phone number, e-mail address and facsimile number, failure to have a current state or Federal safety certification, or failure to provide accurate Federal of state motor carrier identifying number.
Black's Law Dictionary, Revised Fourth Edition, West Publishing Company, St. Paul, Minn., 1968.
A complaint is a document describing a specific instance that allegedly constitutes a violation of the charter service regulations set forth in 49 CFR 604.28. More than one complaint may be contained in the same document. A complaint does not state a claim that warrants investigation when the allegations made in the complaint, without considering any extraneous material or matter, do not raise a genuine issue as to any material question of fact, and based on the undisputed facts stated in the complaint, there is no violation of the charter service statute or regulation as a matter of law. Based on Federal Rules of Civil Procedure, Rule 56(c).
Examples of complaints that would not warrant an investigation or further action by FTA include but are no limited to: (1) A complaint against a public transit agency that does not receive FTA funding; (2) a complaint brought against a public transit agency by a private charter operator that is neither a registered charter provider nor its duly authorized representative; (3) a complaint that gives no information as to when or where the alleged prohibited charter service took place.
The following questions were taken from comments submitted to the Notice of Proposed Rulemaking. Some questions have been modified slightly from the original text.
(a) Applicability
(1) Q: How do I know if these charter regulations apply to my transit agency?
A: If your transit agency accepts FTA financial assistance, the charter regulations probably apply. Your next step is to look at the exemptions contained in section 604.2 (“Applicability”). If none of these exemptions apply, look at the definition of charter service contained in section 604.3 (“Definitions”). Determine if the activity your agency is about to engage in fits within that definition. If not, then the charter regulations do not apply. If the activity does fit within the definition of charter service, then you need to determine whether the activity fits within one of the exceptions contained in subpart B (“Exceptions”). Remember that you may not provide the service if a registered charter provider indicates an interest in providing the service. This is true even if the registered charter provider does not ultimately reach an agreement with the customer.
(2) Q: How are registered private charter providers identified? Is there some kind of proof requirement that charter operators can actually provide service to a particular area? Or, do charter operators have to have a history of providing service to the area they claim to serve?
A: A registered charter provider is a private operator who wishes to receive notification of pending charter service requests directed to public transit agencies and has registered on FTA's charter registration Web site. When registering, charter providers are required to provide specific information, including areas served. They are not required to provide proof of such service. Additionally, the entire registration process is a self-certification process; FTA does not confirm the representations or information that the registered charter provider provides. Finally, a registered charter provider also does not have to demonstrate a history of providing service in the areas it claims to serve.
(3) Q: Is there any geographical limitation on where a private charter operator can register?
A: No. There is no geographical limitation on which areas a private charter operator may register. This means a private charter operator may register for several states or across the United States. If a registered charter provider, however, indicates interest in providing charter service to a particular customer and fails to negotiate in good faith with the customer, and a public transit agency was willing to provide the service, then the public transit agency can file a complaint under 49 CFR section 604.26 against the registered charter provider.
(4) Q: Who is considered a “private charter operator?” What are the criteria to establish that classification?
A: A “private charter operator” is any private, for-profit entity (i.e., individual, group or company) that provides chartered transportation on a regular basis with its own equipment (e.g., bus and/or van).
(5) Q: Is there a definition of “geographic service area?”
A: Yes. Geographic service area is defined under 49 CFR section 604.3(j) as, “the entire area in which a recipient is authorized to provide public transportation service under appropriate local, state and Federal law.”
(6) Q: Do charter service hours include time spent waiting for passengers where the vehicle is not available for other services?
A: Yes. Charter service hours include both time spent transporting passengers and time spent waiting for passengers. Charter service hours also include “deadhead” hours which is the time spent getting from the garage to the origin of the trip and then the time spent from the trip's ending destination back to the garage, since the vehicle is unavailable during that time period as well.
(7) Q: Qualified Human Service Organizations (QHSOs) that do not receive funds from Federal programs listed in Appendix A are required to certify that their federal funds include funding for transportation. However, most Federal funds are passed through one or more levels of state and local government, so how can we be certain what the original purposes of the Federal funds were?
A: The regulation, 49 CFR 604.15(b), has been modified. That provision no longer requires QHSOs to certify that their funding included funding for transportation.
(8) Q: What is the status of sub-grantees and entities with equipment and operations not assisted with federal funds?
A: The regulations do not apply to equipment that is fully funded with local funds and is stored in a locally funded
(9) Q: Must a private charter provider that provides public transportation services under contract or agreement with a public transit agency abide by the limitations in the proposed rule?
A: Yes. Private charter providers that provide public transportation service under contract with a public transit agency are covered by the new regulation when they are operating FTA funded equipment or services. These private charter operators are standing in the shoes of the public transit agency, and therefore cannot use federally funded equipment to provide charter services. This does not mean, however, that a private charter operator that contracts with a public transit agency and uses one of the private charter operator's own vehicles is subject to the charter service regulations (see section 604.2(c)).
(10) Q: Does the analysis change under different contractual scenarios (e.g., turnkey operations, operation and maintenance of vehicles provided by the public transit agency, or operation of contractor owned buses maintained in a federally funded facility owned by a public transit agency)?
A: Yes. The regulations, however, only apply when the contract is funded with FTA funds or the buses are funded with FTA funds or the equipment is maintained in an FTA funded facility.
(11) Q: May a private charter operator that qualifies as a sub-grantee of a state, under an FTA-administered program, use vehicles purchased with federal assistance to provide private charter services?”
A: It depends. A private charter operator that receives FTA assistance can use FTA-funded equipment to provide service for program purposes (see section 604.2(e)), but not for other charter service. Under the provisions of section 604.2(c), however, the regulations do not apply to non-FTA funded activities of private charter operators that receive directly or indirectly FTA financial assistance under programs such as sections 5307, 5309, 5310, 5311, 5316, and 5317. Further, an intercity bus operator that receives assistance under section 5311(f) to provide rural intercity bus service may provide charter service using a FTA-funded vehicle only if one of the exceptions applies. A vehicle equipped with a lift using FTA assistance under section 3038 of TEA-21 may be used for charter service.
(12) Q: Is there an emergency charter exception for ‘actual, imminent or anticipated possibility of injury, loss of life, or loss of property?' For instance, there could be a poison gas plume or threat of one from an industrial accident or railcar derailment. A transit agency could be called to do a rapid evacuation of an apartment, hospital, school, elder care facility or some other facility requiring group or individual evacuation. Must the public transit agencies wait for the Administrator to declare this incident an event of ‘regional or national significance’ so that transit buses can be used?
A: Yes, there is an exception for emergencies. Section 604.2(f) contains an exemption that allows for public transit agencies to respond to emergencies that last fewer than 45 days. If an emergency lasts longer than 45 days, the public transit agency must follow the procedures set out in subpart D of 49 CFR part 601. The Administrator does not declare an emergency. Rather, the President, Governor, or Mayor declares the emergency.
(13) Q: If an emergency is exactly 45 days long, is the emergency services exception still applicable?
A: Yes. If the emergency lasts exactly 45 days the emergency services exception is still applicable. The regulation refers to calendar days, not business days. Therefore, if the emergency lasts more than 45 calendar days, the public transit agency must follow the procedures set out in subpart D of 49 CFR part 601.
(14) Q: Do emergency situations include matters of security—e.g., when the Secret Service requests vehicles with no under-vehicle luggage compartments?
A: No. Situations involving the Secret Service would fall under the government officials section of the regulation (49 CFR section 604.7), which allows up to 80 hours annually of charter service to government officials on official government business, which can include non-transit purposes.
(15) Q: Are rural transit operators (section 5311) exempt from the rule? What about recipients of 5310 vehicles or JARC or New Freedom grants?
A: Recipients under section 5311, 5310, 5316, and 5317 are not subject to the charter rule when using FTA-funded vehicles to provide public transportation or coordinated human service transportation or to serve groups of individuals with disabilities, the elderly, or low income individuals. The charter rule does apply, however, if the FTA recipient wants to provide other charter service using FTA-funded or maintained vehicles. A rural transit operator may provide other charter service only under the exemptions/exceptions contained in the rule.
(b) Exemptions
(16) Q: Does the exemption of demand response service from the definition of charter service exclude rural and small urban systems entirely?
A: No. The exemption of demand response service from the definition of charter service is intended to exclude service provided to individuals, as opposed to a group, who request service such as paratransit service. In addition, the exception contained in section 604.7 does not include service provided to QHSOs (organizations providing service to persons with disabilities, low income individuals, and the elderly).
(17) Q: Is there an expedited process to obtain the Administrator's decision and signature for time sensitive events so that there could be sufficient time to plan and implement service?
A: Petitions to the Administrator for events of regional or national significance will be processed as quickly as practicable.
(c) Definitions
(18) Q: If a transit agency provides service that is irregular or on a limited basis for an exclusive group of individuals, but provides the service free of charge, is the service exempt from the charter regulation?
A: Yes. So long as the transit agency does not charge a premium fare for the service and there is no third party paying for the service in whole or in part.
(19) Q: Does “qualified human service agency” include any non-profit entity that provides services to the disabled, or economically disadvantaged without reference to age?
A: Yes, so long as the QHSO either receives funding from one of the programs listed in Appendix A or registers as a QHSO on the FTA charter Web site. Under section 604.7, a recipient may provide charter service to entities that meet the definition of “qualified human service organization.” This includes organizations that serve persons who qualify for human service or transportation-related programs or services due to a disability, income or advanced age. All three are not required, however, so an organization may qualify as a QHSO but serve only persons with low income.
(20) Q: Is it charter service when the local transit authority provides event or fair service, that is open to the public, with or without charge, where the transit authority determines the routes and times and it is scheduled for the same time every year, but the Fair Association subsidizes all or part of the costs?
A: Yes. The fact that the Fair Association pays for the service in whole or in part means the service is charter under section 604.3(c)(2).
(21) Q: What qualifies as indirect financial assistance?
A: The inclusion of “indirect” financial assistance as part of the definition of “recipient” is covers “subrecipients.” We modified the definition of recipient in the final rule to make this point clear.
(22) Q: When a transit authority contracts out its smaller accessible vehicles for use during football games to offer service free of charge for persons with disabilities and their escorts, is it charter service?
A: Yes. Under the facts presented, this type of service falls under the definition of charter service in section 604.3(c)(1). Since “contracting out” involves a third party, exclusive use, and a negotiated price. Thus, the transit authority would need to determine whether one of the exceptions under subpart B applies.
(23) Q: Is it considered charter service when the transit authority funds shuttles to and from football games? Regularly scheduled service is suspended on these days, but this service partially follows the existing route and is open to the public at the regular fare.
A: No. If the service provided by the public transit agency costs the same as the customary fixed route fare and it is open to the public then it is not charter.
(24) Q: Is shuttle service for a one-time event considered charter service, if the service is open to the public, widely advertised, and the itinerary is determined by the transit operator? What if the service has been provided for decades?
A: No. So long as the transit authority charges its customary fixed route fare for the shuttle service, and there is no third party involvement, then the service is not charter. Widely advertising the service or providing the service for decades has no bearing on whether the service is charter.
(25) Q: Is demand response service included in the definition of charter service?
A: No. Demand response service is excluded from the definition of charter service under section 604.3(c).
(26) Q: Is it charter service when a university pays a public transit agency a fixed charge to allow all faculty, staff, and students to ride the transit system for free?
A: No. So long as the public transit agency provides the service on a regular basis, along a fixed route, and the service is open to the public, the fact that the university may be subsidizing student and faculty rides, does not convert the service to charter.
(27) Q: Can a transit agency provide service when the customer wants a particular type of equipment such as a (rubber tire) trolley bus, vintage bus, or CNG bus that the private operators do not have?
A: No. Public transit agencies cannot provide charter service solely based on a customer's vehicle preferences. FTA only recognizes two categories of vehicles: buses and vans.
(28) Q: What is a “qualified human service organization?”
A: A qualified human service organization is an organization that provides service to individuals that qualify for federally conducted or assisted transportation related programs due to disability, income or advanced age. See section 604.3(q).
(29) Q: If a transit agency has restored or preserved historic electric buses for limited, special use, are the buses subjected to charter bus restrictions?
A: Yes, if the public transit agency purchased the historic electric buses with Federal funds or maintains those vehicles in federally funded facilities.
(30) Q: If a grantee operates assets that are locally funded are such assets subject to the charter regulations?
A: It depends. If a recipient receives FTA funds for operating assistance or stores its vehicles in a FTA-funded facility or receives indirect FTA assistance, then the charter regulations apply. The fact that the vehicle was locally funded does not make the recipient exempt from the charter regulations. If both operating and capital funds are locally supplied, then the vehicle is not subject to the charter service regulations.
(31) Q: Does “pattern of violations” apply from the effective date of the final rule?
A: Yes. The new definition of pattern of violations applies from the effective date of the final rule. In other words, in order to establish a pattern of violations, the violation had to occur after the effective date of the final rule.
(32) Q: What is a violation? Does it require an official charter decision or could it also include an oversight finding or other means of identifying shortcomings?
A: The new rule defines “violation” as a finding by FTA of a failure to comply with one of the requirements of this part. A finding may be an official charter decision by the Chief Counsel or the Administrator. An oversight finding would also qualify as an FTA finding.
(33) Q: Are sightseeing trips still not charter?
A: Yes. “Sightseeing” is excluded from the definition of “public transportation” under 49 U.S.C. Section 5302(a)(10). Therefore, it is not permissible for public transit agencies to provide sightseeing service with FTA-funded assets.
(34) Q: If a transit agency provides vehicles to a special event, but the event is open to the public, the route is controlled by the transit agency, the route is advertised similarly to the transit agency's regular routes, the buses are not identified as “special service” or any other different markings, and the vehicles go to and from fixed stops in an express bus manner, is this charter?
A: No. So long as the transit authority does not charge a premium fare for the service and a third party does not pay for the service in whole or in part. Advertising or different markings on the bus are longer determinative of whether the service is charter.
(35) Q: Does FTA consider wait time as a factor, in and of itself, when determining whether service is charter service?
A: No. Wait time is not, in and of itself, considered a characteristic of charter service.
(36) Q: What if there is no “contract” under the “single contract” factor and the transit agency merely sees a need and provides the charter-type service on its own initiative, is that charter?
A: No. If a transit agency sees a need and wants to provide service for a limited duration at the customary fixed route fare, then that service is not charter service. The existence of a contract is no longer determinative of whether service is charter service.
(d) Exceptions
(37) Q: If the federal government calls on a public transit agency for transit service and it will exceed the proposed 80 hour limitation, are public operators to refuse this service or seek a waiver directly from the federal government?
A: A public transit agency can petition for more service hours if it exceeds the 80 hour annual allowance. Instructions on how to file a petition are more fully described under 49 CFR Section 604.6(c) of the new regulation. Public transit agencies should be mindful that the Administrator will grant such requests under extraordinary circumstances only.
(38) Q: What kind of events qualify for the “Events of Regional and National Significance” exception?
A: First, this exception is now located in section 604.11 and is called “Petitions to the Administrator.” Second, the exception is designed to allow public transit agencies to participate in providing service to large events that will attract a lot of visitors. Some examples are: the Kentucky Derby, the Indianapolis 500, a bridge opening, or a new transit facility opening. If a transit authority is unsure whether a particular event fits within the exception, the transit authority may request an Advisory Opinion from FTA according to section 604.17.
(39) Q: What should a transit agency do when it is in the process now of planning for an event of regional significance? Will the new rules terminate these plans?
A: The new rule will impact a transit authority's planning process for an event of regional significance. Any service provided by the transit authority after the effective date of the rule—April 30, 2008—is subject to the provisions of the new rule.
(40) Q: What can a public transit agency do if there is a time sensitive event in which the agency does not have time to consult with all the private charter operators in their area? For example, the presidential inauguration.
A: Section 604.11 provides a process to petition the FTA Administrator for permission to provide service for a unique and time sensitive event. A presidential inauguration, however, is not a good example of a unique and time sensitive event. A presidential inauguration is an event with substantial advance planning and a transit agency should have time to contact private operators.
(41) Q: How should a public transit agency handle the situation of a regional or nationally significant event when there is a requirement to plan significant events (e.g., the Super Bowl) many years in advance long before the list of registered charter service providers is compiled?
A: If the transit agency plans to provide service to an event of regional or national significance after the effective date of the rule—April 30, 2008—then that service is subject to the requirements of the new rule.
(42) Q: Does the hardship exception apply to small urban operators?
A: Yes. Under section 604.11, the hardship exception applies to non-urbanized areas under 50,000 in population or a small urbanized area under 200,000 in population.
(e) Notice
(43) Q: May a transit agency indicate in the notice that goes out to registered charter providers that the customer requested specific equipment?
A: No. In terms of type of vehicles, the notice can include whether the customer needs a bus or a van. The registered charter provider, when it contacts the customer will learn of the specific customer needs. At that time, the registered charter provider can determine whether to seek out the specialized equipment from other private charter operators or a public transit agency.
(44) Q: Must a public transit agency provide notice of all potential charter trips to registered charter providers?
A: No. A public transit agency needs to provide notice only for charter trips that it is interested in providing. If an exemption or one of the exceptions applies, then the public transit would, after providing the service, record the service as required by section 604.12.
(45) Q: What does “notifying private operators” entail? What actions are to be taken when a notification e-mail is undeliverable? Is it sufficient to provide phone numbers of private operators when people call in for charter service?
A: Only “registered charter providers” need to be contacted. In order to qualify as a “registered charter provider” the information provided, including contact information, must be valid. If the e-mail is undeliverable, then the notice should be faxed to the registered charter provider. If the public transit agency declines to provide the service to the customer, then they should
(46) Q: May a recipient provide service that allows customers to park at a distant location, like a museum, and then have a transit vehicle take them to a sporting event for a fare that is higher than the normal fixed route fare? May a recipient prevent a private charter operator from providing a similar service from the same starting point to the same destination?
A: No. In this case, since the recipient charges a premium fare for the service, it meets the definition of charter. In order to provide the service, the recipient must give notice to registered charter providers in accordance with section 604.14. A recipient may not prevent a private charter operator from providing a similar service. This is true whether or not the private charter operator is registered on the FTA Charter Registration Web site.
(f) Complaint & Investigation Process
(47) Q: May a trade association or other operators that are unable to provide requested charter service have the right to file a complaint under the new rule?
A: Yes. A registered charter operator or its duly authorized representative, who can include a trade association, may file a complaint under section 604.26(a). Under the new rule, a private charter operator that is not registered with FTA's charter registration Web site may not file a complaint.
(48) Q: Is there a time limit for making complaints?
A: Yes. Complaints must be filed within 90 days of the alleged unauthorized charter service.
(49) Q: Are there examples of the likely remedies FTA may impose for a violation of the charter service regulations?
A: Yes. Appendix D contains a matrix of likely remedies that FTA may impose for a violation of the charter service regulations.
(50) Q: When a complaint is filed, who is responsible for arbitration or litigation costs?
A: FTA will pay for the presiding official and the facility for the hearing, if necessary. Each party involved in the litigation is responsible for its own litigation costs.
(51) Q: What affirmative defenses might be available in the complaint process?
A: An affirmative defense to a complaint could state the applicability of one of the exceptions such as 49 CFR Section 604.6 which states that the service that was provided was within the allowable 80 hours of government official service.
(52) Q: May a state waive participation in the complaint proceedings and forward the complaint directly to FTA after initial receipt and review?
A: A state is no longer involved in the complaint process, and, therefore, no waiver is necessary. In order for a complaint to be filed, it must be filed directly with the Office of the Chief Counsel.
(53) Q: What can a transit agency do if it believes that a private provider is not bargaining in good faith with a group and responds to a notice with a price or terms that are not acceptable to that group?
A: If a transit agency believes that a registered charter provider is not bargaining in good faith, the transit agency may file a complaint for removal from FTA's Charter Registration Web site.
(54) Q: What actions can a private charter operator take when it becomes aware of a transit agency's plan to engage in charter service just before the date of the charter?
A: As soon as a registered charter provider becomes aware of an upcoming charter event that it was not contacted about, then it should request an advisory opinion and cease and desist order. If the service has already occurred, then the registered charter provider may file a complaint.
(55) Q: When a registered charter provider indicates that there are no privately owned vehicles available for lease, must the public transit agency investigate independently whether the representation by the registered charter provider is accurate?
A: No. The public transit agency is not required to investigate independently whether the registered charter provider's representation is accurate. Rather, the public transit agency need only confirm that the number of vehicles owned by all registered charter providers in the geographic service area is consistent with the registered charter provider's representation.
(56) Q: Who qualifies as a presiding official, what are the duties, and what other limitations are imposed?
A: A presiding official will have training and/or experience in conducting hearings. More important, the person may not have any conflicts of interest or previous contact with the parties concerning the issue in the proceeding. A presiding official's duties include, but are not limited to, convening a hearing, issuing orders, ruling on motions, and drafting recommended decisions.
(57) Q: What recourse does a transit operator have when a registered charter provider indicates interest in providing the charter service set out in the notice and then does not do so?
A: A transit operator can and should file a complaint for removal against the registered charter provider. This notifies FTA of the registered charter provider's alleged actions. FTA will then investigate the allegations and potentially remove the registered charter provider from the registration list.
(58) Q: Are there any measures to regulate who is considered a registered charter provider? And, are there any penalties for those that register and actually are not in a position to perform the needed services—for example an individual who owns a taxicab.
A: Yes. Through the self-registration process, a registered charter provider certifies that the information it provides on the charter registration Web site is true and accurate. The penalty for providing inaccurate or untrue information is removal from the registration Web site and possibly criminal penalties under 18 U.S.C. 1001.
(59) Q: If a customer hosts a large community event and the public transit agency cannot provide service because of the charter regulations and private operators will not provide service because the payment is not sufficient, is there any alternative means or does the service not get provided at all?
A: A public transit agency may provide the service if, after providing the notice required in section 604.14, no registered charter providers in the transit agency's geographic service area are interested in providing the service.
(60) Q: What will result if a registered charter operator cannot actually provide the service, but responds to a recipient's notice anyway?
A: If a registered charter provider responds to a notice, then it is expected to negotiate in good faith with the customer to provide the service. If a registered charter provider vindictively responds to a notice in order to prevent a public transit agency from providing the service, then that registered charter provider may be subject to a complaint for removal from the charter registration Web site.
(61) Q: What method will the decision maker employ in determining the penalty for violating the charter regulations?
A: Remedies will be based upon the facts of the situation, including but not limited to, the extent of deviation from the regulations and the economic benefit from providing the charter service. See section 604.47 and Appendix D for more details.
(62) Q: Can multiple violations in a single finding stemming from a single complaint constitute a pattern of violations?
A: Yes. A pattern of violations is defined as more than one finding of unauthorized charter service under this part by FTA beginning with the most recent finding of unauthorized charter service and looking back over a period not to exceed 72 months. While a single complaint may contain several violations, the complaint must contain more than a single event that included unauthorized charter service in order to establish a pattern of violations.
(g) Recordkeeping
(63) Q: What if the public transit provider does not have sufficient time to evaluate a request and make sure that all the information is complete before notifying the registered private charter companies?
A: A recipient should wait to provide notice that is consistent with 49 CFR Section 604.14.
(h) Miscellaneous
(64) Q: Are body-on-van-chassis vehicles classified as buses or vans under this provision?
A: Body-on-van-chassis vehicles are treated as vans under the regulation.
(65) Q: Are there adequate provisions to ensure that the registry site will be maintained in such a way that carriers provide evidence of insurance?
A: Registered charter providers are required to certify that they have insurance but are not required to provide evidence of insurance. If there is information that indicates the provider has provided a false certification, then it can be subject to criminal penalties under 18 U.S.C. 1001 and removed from the FTA Charter Registration Web site.
(66) Q: Will the registration Web site be fully functional and grantees receive training on how to use the Web site before the rule's effective date?
A: Yes. The Web site will be fully functional before the rule's effective date. A
(67) Q: When a new operator registers, may recipients continue under existing contractual agreements for charter service?
A: Yes. If the contract was signed before the new private operator registered, the arrangement can continue for up to 90 days. During that 90 day period, however, the public transit agency must enter into an agreement with the new registrant. If not, the transit agency must terminate the existing agreement for all registered charter providers.
(68) Q: Do FTA's attorneys have the necessary training to serve as administrative law judges and makes rulings on motions, a task that heretofore has not been a part of the day-to-day activities of regional counsel?
A: Yes. FTA attorneys who have the delegated responsibility to serve as a Presiding Official may rule on motions and will possess the necessary qualifications to carry out their delegated tasks and responsibilities.
(69) Q: Must a public transit agency continue to serve as the lead for events of regional or national significance, if after consultation with all registered charter providers in its geographic service area, registered charter providers have enough vehicles to provide all of the service to the event?
A. No. If after consultation with registered charter providers and there is no need for the public transit vehicles, then the public transit agency may decline to serve as the lead and allow the registered charter providers to work directly with event organizers. Alternatively, the public transit entity may retain the lead and continue to coordinate with event organizers and registered charter providers.
Remedy Assessment Matrix:
FTA's Remedy Policy:
(1) The nature and circumstances of the violation;
(2) The extent and gravity of the violation (“extent of deviation from regulatory requirements”);
(3) The revenue earned (“economic benefit”) by providing the charter service;
(4) The operating budget of the recipient;
(5) Such other matters as justice may require; and
(6) Whether a recipient provided service described in a cease and desist order after issuance of such order by the Chief Counsel.
Federal Deposit Insurance Corporation (“FDIC”).
Notice of proposed rulemaking.
The FDIC is seeking comment on a proposed rule composed of two parts. The first part would establish the FDIC's practice for determining deposit account balances at a failed insured depository institution. The second part would require the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure: provide the FDIC with standard deposit account and customer information; and allow the FDIC to place and release holds on liability accounts, including deposits. The first part of the proposal would apply to
Comments must be submitted on or before April 14, 2008.
You may submit comments by any of the following methods:
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James Marino, Project Manager, Division of Resolutions and Receiverships, (202) 898-7151 or
The proposed rule comprises two parts. The first part would establish the FDIC's practice for determining deposit account balances at a failed insured depository institution.
Upon the failure of an FDIC-insured depository institution, the FDIC must determine the total insured amount for each depositor. 12 U.S.C. 1821(f). To make this determination, the FDIC must ascertain the balances of all deposit accounts owned by the same depositor in the same ownership capacity at a failed institution as of the day of failure.
The second part of this proposed rule, among other things, would require certain large depository institutions to place holds on liability accounts, including deposits, in the event of failure. The amount held would vary depending on the account balance, the nature of the liability (whether it is a deposit or non-deposit for insurance purposes) and the expected losses resulting from the failure. In order to calculate these hold amounts, the rules used by the FDIC to determine account balances as of the day of failure must be clearly established.
A deposit account balance can be affected by transactions
In the past, the FDIC usually took over an institution as receiver after it had closed on a Friday. For institutions with a few branches in one state, deposit account transactions for the day were completed and determining account balances on that day was relatively straightforward. The growth of interstate banking and branching over the past two decades and the increasing complexity of bank products and practices (such as sweep accounts) has made the determination of account balances on the day of closing much more complicated. Financial institutions are much larger and the industry is more concentrated than in the past, factors further complicating the determination.
Under the proposed rule, the FDIC would establish the FDIC Cutoff Point, defined as a point in time after it takes control of the failed institution as receiver. If the institution's ordinary cutoff time on the day of failure
Transactions occurring after the Applicable Cutoff Time would be posted to the next day's business, if the operations of the failed institution were carried on by a successor institution. In a depository institution failure where deposit operations are not continued by a successor institution, account transactions on the day of failure would be posted to the applicable deposit accounts until the FDIC takes control of the institution as receiver. This practice would be consistent with the FDIC's current practice in handling deposit account transactions in deposit insurance
Upon taking control of a failed institution as receiver, the FDIC would take steps necessary to limit additional transactions to ensure, to the extent practicable, that funds would not be received by or removed from the failed institution. These steps might include the suspension of wire activities and new deposit account transactions. For example, wire transactions not yet executed by the FDIC Cutoff Point would not be allowed to occur.
For a failed institution operating in several time zones, the FDIC Cutoff Point, which would set the latest possible time for any particular transaction's Applicable Cutoff Time, would be translated into local time. For example, a 6 p.m. Eastern Time FDIC Cutoff Point on the day an institution was closed would mean a 5 p.m. FDIC Cutoff Point in the Central Time zone. As receiver, the FDIC would attempt, as it has customarily done in the past, to close all offices of the failed institution as soon as practicable after taking over as receiver.
To illustrate the Applicable Cutoff Time, consider an institution whose normal cutoff time for teller transactions is 3 p.m. local time. Assume that the institution has branches in both the Eastern and Pacific Time zones. Assume also that the FDIC designates 5 p.m. Eastern Time as the FDIC Cutoff Point. The Applicable Cutoff Time for teller transactions would then be 3 p.m. Eastern Time for branches in the east and 2 p.m. Pacific Time for branches in the west. Thus, a deposit made at a teller station at a branch in the west at 1 p.m. local time would be posted to (and included in) the end-of-day ledger balance on the day of failure. A deposit made at a teller station at a branch in the west at 2:30 p.m. local time (assuming that the FDIC could not immediately close the branch) would not be posted to (or included in) the end-of-day ledger balance on the day of failure. Instead, the deposit would be included in the next day's business, unless no successor institution continued the operations of the failed institution, in which case it would either be included in the day-of-failure's business or returned. The deposit insurance implications of including or not including the deposit in the end-of-day ledger balance on the day of failure are discussed below.
For example, assume an agreement between a depository institution and its customer provides that, at the close of every business day, the funds in excess of a designated amount are to be transferred from the customer's checking account at the institution's domestic branch to a Eurodollar account at the institution's foreign branch. Under the proposed rule, the transfer of funds to the foreign branch would be deemed to have been completed on the day of failure, regardless of the FDIC Cutoff Point, because the transfer was authorized as of that day as part of the agreement between the institution and its customer.
The proposed treatment of internal zero balance and other sweep accounts has important implications for a customer's depositor and creditor status and chances of recovery from the receivership estate. The implications are discussed below.
Under the proposed rule, in determining deposit account balances at a failed insured depository institution, the FDIC would deem all checks deposited into and posted to a deposit account by the Applicable Cutoff Time as part of the deposit account balance for insurance purposes. This approach means that the FDIC would use the “ledger balance” of the account for purposes of its deposit insurance determination, in contrast to using either “available funds” or “collected funds” account balances.
The FDIC proposes to use deposit account ledger balances for deposit insurance purposes for several reasons:
• Depository institutions use and calculate the ledger balance in a more consistent way than other balances.
• It is consistent with the way that depository institutions report deposits on Call Reports and Thrift Financial Reports and it is the balance the FDIC uses to determine an institution's deposit base for calculating the institution's deposit insurance assessments.
• It is the easiest balance for depositors to understand, and it is the most frequently used balance on financial statements provided to customers.
Using ledger balances also is consistent with the definition of “deposit” in the Federal Deposit Insurance Act (“FDI Act”), which includes balances both “conditionally” or “unconditionally” credited to a deposit account. 12 U.S.C. 1813(l).
Further, especially in a large depository institution failure, using ledger balances may be the only operationally feasible means for the FDIC to make deposit insurance determinations timely and expeditiously. As discussed in more detail in the second part of this rulemaking, the FDIC is statutorily obligated to pay insured deposits “as soon as possible” after an insured depository institution fails. 12 U.S.C. 1821(f)(1). The FDIC places a high priority on providing access to insured deposits promptly and, in the past, has usually been able to allow most depositors access to their deposits on the business day following closing. The largest insured institutions are much bigger than any institution has been in the past and are growing increasingly complex. Providing prompt access to depositors if one of these institutions were to fail would prove difficult if adjustments for uncollected funds were necessary.
The proposed rule differs from the FDIC's past and current practice in an important way. In the past, for a check that was posted to an account but not yet collected at the time of failure—including a check already forwarded by the failed institution for collection but not yet collected—the FDIC acted as agent or trustee for the depositor and remitted or credited payments received on these checks to the depositor in full. These checks were not included in deposits on the day of failure for insurance purposes and were not subject to deposit insurance limits.
To illustrate, assume again that the FDIC Cutoff Point for teller transactions at a failed institution is 2 p.m. Pacific Time for branches in the west. In the past, the receiver, as agent or trustee, would collect any deposit made to the account (whether before or after 2 p.m. local time) that was uncollected on the day of failure and credit or remit the proceeds to the depositor without regard to insurance limits. The amount of the checks would not have counted against the depositor's deposit total for insurance purposes. Under the proposed rule, however, any deposit made at a teller station at a branch in the west up to 2 p.m. local time (possibly including deposits made in previous days) would be included in the end-of-day ledger balance on the day of failure (unless previously withdrawn by the depositor). If such a deposit caused the depositor's total deposits to exceed the maximum deposit insurance amount for that ownership capacity, the depositor would have uninsured deposits.
Some depositors may receive less favorable treatment under the proposed rule than if the FDIC were to continue to use its current approach to handling uncollected deposited checks. The increasing speed with which checks are processed as a result of electronic check processing, the use of checking account debit cards and other developments, however, should limit the effect of the proposed rule in this regard. Moreover, the current approach would not be feasible in a larger bank failure, and the FDIC must plan for all contingencies.
Most agreements between sweep customers and a depository institution expressly provide that the institution's liability, once the sweep occurs, is not a
As in the
Customers could either lose or gain from having internal sweeps completed. Eurodollar sweeps and sweeps to IBF accounts are two examples of internal sweep arrangements that would result in customers losing due to the sweep being completed. The Eurodollar and IBF sweep arrangement typically begins each business day with balances only in a domestic deposit account. At the end of the day, the customer's claim is denominated a Eurodollar account (typically associated with the bank's branch in the Cayman Islands or Bahamas) or an IBF account. At the start of the next business day, the depository institution will sweep the balance back to the domestic deposit account. The cycle typically repeats itself daily.
Usually the underlying contract for a Eurodollar sweep specifies that the obligation at the foreign branch is not payable in the United States and, hence, is not a
Thus, under the proposed rule, the sweep to the IBF described in the Adagio decision would be completed by the receiver on the day of failure and the account holders, who held IBF accounts after the sweep, would be deemed to be general creditors of the receivership, rather than depositors, under the deposit preference statute.
Completing repurchase agreement sweeps could—if the accounts are properly structured—benefit the customer. In a repurchase sweep, the process is similar to that of a Eurodollar or IBF sweep. At the start of the business day, the customer balances reside in a deposit account. At some point during the day the obligation is changed to an interest-bearing, non-deposit liability account, and is so reported by the institution as of the close of business. In some cases, the institution sells securities to the customer (and agrees to repurchase them later). At the start of the next business day, the depository institution will repurchase the securities by re-crediting the deposit account. The cycle repeats itself daily.
Under the proposed rule, internal repurchase account sweeps would be
Some repurchase sweep agreements provide for an actual sale of securities by the depository institution to a customer (followed by the institution's “repurchase” of the securities from the customer). When the customer uses a deposit account to make the purchase, the bank's deposit liability to the customer is extinguished. In other cases, however, the so-called repurchase agreement does not provide for the actual sale and repurchase of securities. Rather, the agreement provides for the transfer of the customer's claim from a deposit account at the depository institution to another liability account, collateralized by either specific securities or a pool of securities, at the same institution. In this regard, the FDIC seeks comment on specific questions: Do some or all repurchase arrangements as actually executed: (1) Pass title to the customer in a transaction that is enforceable against the FDIC? or (2) create perfected security interests that are enforceable against the FDIC? Comments also are requested as to whether the nature of some or all repurchase sweep arrangements satisfies the definition of “deposit” in section 3(l) of the FDI Act. In addition, comments are requested as to what arguments may be made that repurchase arrangements in which the institution collateralizes its liability are permissible, given restrictions on collateralizing private deposits.
The proposed rule would apply differently to sweep accounts involving the transfer of funds outside the depository institution. In those situations, the status of the funds as of the institution's day of failure would depend on whether the funds left the institution (via wire transfer or otherwise) before the FDIC Cutoff Point. For example, assume the customer and the institution have an agreement that funds in excess of a certain amount are to be wired to a mutual fund (outside the institution) at 5 p.m. each business day. The institution fails and the FDIC Cutoff Point is set at 4 p.m. If the funds have not been wired out of the institution by 4 p.m., the FDIC would consider the funds to be part of the deposit account balance upon which the FDIC would make a deposit insurance determination. Conversely, under the same facts, except that the FDIC Cutoff Point is set at 6 p.m., the wire transfer would be executed at 5 p.m., and the wired funds would no longer be part of the deposit account balance upon which the FDIC would make a deposit insurance determination.
Where funds subject to a prearranged, automated external sweep have been temporarily transferred to an intermediate deposit account (or omnibus account) at the failed institution awaiting transfer to an external source, but have not actually been transferred to the external source (for example, the mutual fund) by the FDIC Cutoff Point, those funds would still be considered part of the customer's deposit account balance for deposit insurance and receivership purposes.
External sweep arrangements typically provide that invested funds remain outside the institution on a day-to-day basis. In this regard, at the point of failure the preponderance of a customer's funds would reside in the external sweep investment vehicle and not be considered a deposit for Call Report, assessment or insurance purposes. Such external funds typically would not be subject to loss in the event of failure. The proposed rule would affect only those balances leaving the institution on the day of failure. Thus, the proposed treatment of external sweep arrangements is consistent with the FDIC's practice, upon taking control of a failed institution as receiver, to limit the removal of funds from the failed institution.
In addition to requesting responses to the specific questions posed above and requesting comments on all aspects of this part of the proposed rulemaking, the FDIC requests comments on alternative approaches for determining deposit account balances at a failed insured depository institution, including whether the FDIC should have the discretion to establish a universal cut-off time for such determinations at the time it takes control of a failed insured depository institution.
As mentioned above, the second part of the proposed rule would require the largest insured depository institutions to adopt mechanisms that would, in the event of the institution's failure: (1) Provide the FDIC with standard deposit account and customer information and (2) allow the placement and release of holds on liability accounts, including deposits.
This part of the proposed rule applies to large FDIC-insured institutions, defined in the proposed rule as “Covered Institutions.” The definition would encompass insured depository institutions having at least $2 billion in domestic deposits and at least either: (1) 250,000 deposit accounts; or (2) $20 billion in total assets, regardless of the number of deposit accounts. Currently, the combined total number of
• Allow automatic posting of provisional holds on large liability accounts in any percentage specified by the FDIC on the day of failure.
• Provide the FDIC with deposit and customer account data in a standard format.
• Allow automatic removal of the provisional holds and posting of the results of insurance determinations as specified by the FDIC.
When handling a depository institution failure the FDIC is required to structure the least costly of all possible resolution transactions, except
The largest insured depository institutions are growing increasingly complex. The proposed rule would help facilitate an insurance determination and dramatically improve upon access to depositor funds if one of these institutions were to fail. The proposed rule is intended to allow the deposit operations of a failed institution to be continued on the day following failure. It is also intended to permit the FDIC to meet its legal mandates regarding the resolution of failed insured institutions, provide liquidity to depositors promptly, enhance market discipline, ensure equitable treatment of depositors at different institutions and reduce the FDIC's costs by preserving the franchise value of a failed institution.
The larger the
All of the insured institution failures using the FDIC's current processes and procedures have been of modest size, the largest being NetBank (2007) with total deposits at the time of closure of $1.9 billion and roughly 175,000 deposit accounts. With this proposed rule, the FDIC's processes and procedures for determining deposit insurance coverage would be improved to avoid delays.
Table 1 reflects the increasing number of deposit accounts at the largest insured institutions over the past 10 years. If this trend continues, the largest institutions will hold even more deposit accounts in the future.
In most instances, larger institutions are considerably more complex, have more deposit accounts, are more geographically dispersed and have more diverse systems and data-integration issues than small institutions. This is especially true of large institutions that have engaged in merger activity.
Table 2 shows some of the differences between
Even when a smaller institution fails, making insurance determinations is a time consuming process. The FDIC typically needs several months of advance planning to make deposits available to insured depositors on the next business day. In the past, insured institution closures typically have occurred on a Friday, which has allowed the FDIC two days to prepare for the next business day. But Friday closures are not always the case and the FDIC must be prepared for all contingencies.
Option 2 was similar to Option 1 except that the standard data set would have included only information that institutions currently possessed. The option would not have required institutions to create a unique identifier for each depositor or to classify each account by ownership category, similar to the requirements in this proposed rule.
Option 3 was to require the largest ten or twenty insured institutions (in terms of the number of deposit accounts) to know the insurance status of their depositors and to be able to deduct expected losses from uninsured deposit accounts in the event of failure.
Sixty-four percent of the 28 comment letters on the 2005 ANPR opposed the proposal, citing high costs and regulatory burden.
In response, the FDIC published a second advance notice of proposed rulemaking (the 2006 ANPR)
The comment letters from the trade associations nevertheless still cited high costs and regulatory burden and argued that the benefits to the FDIC would be low and might never materialize.
In response, the FDIC has further reduced the potential costs and burdens in this NPR by dropping the requirement that the largest, most complex
In each ANPR the FDIC requested comment on other alternatives allowing it to meet its objectives in a less costly or burdensome manner. No alternative strategies have been proposed. Some trade organizations proposed delaying implementation of these requirements until a
In response to the 2006 ANPR, the Board of Governors of the Federal Reserve System noted that the options reduced the likelihood of a too-big-to-fail resolution structure, promoted market discipline, lowered resolution costs and should be in place and tested before a large institution becomes troubled. The Federal Reserve Bank of Minneapolis also argued that the FDIC must revamp its systems for determining insurance at large institutions, should work with the industry to minimize the costs of the proposed options (but still ensure they meet the FDIC's objectives) and should not wait to implement the options until a bank becomes troubled.
Use of the terms “deposit,” “foreign deposit” and “international banking facility deposit.”
In this part of the proposed rule, the term “deposit” continues to be used as defined in section 3(l) of the Federal Deposit Insurance Act (12 U.S.C. 1813(l)). A deposit—also called a “domestic deposit”—includes only deposit liabilities payable in the United States, typically those deposits maintained in a domestic office of an insured depository institution. Insured depository institutions may maintain deposit liabilities in a foreign branch (“foreign deposits”), but these liabilities are not deposits in the statutory sense (for insurance or depositor preference purposes) for the time that they are payable solely at a foreign branch or branches. Insured depository institutions also may maintain deposit liabilities in an international banking facility (IBF). An “international banking facility deposit,” as defined by the Board of Governors of the Federal Reserve System in Regulation D (12 CFR 204.8(a)(2)), also is not a deposit for insurance purposes under section 3(l) or depositor preference purposes.
This part of the proposed rule would apply to a
In the event
As discussed in part one of the proposed rule, in the event of failure, the FDIC would complete daily account processing to generate the deposit balances used by the FDIC for insurance purposes. Under part two of the proposed rule, after completion of the failed
The FDIC requests comment on all aspects of this proposed approach, including costs, benefits and alternative approaches that would allow the FDIC to accomplish its objectives of affording a timely deposit insurance determination, a prompt release of funds to depositors, while preventing depositors and creditors from receiving more than they are entitled to under applicable law.
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The more effective the hold mechanism is at preventing access to held amounts, the more likely it is to generate NSF checks. Holding balances in a separate account or using a persistent provisional hold protects the FDIC's interests by blocking customer access to held amounts at all times. These hold types thus may have the most severe effect on items returned due to insufficient funds. However, it may be possible to reduce the volume of returned items to a manageable level by instructing account officers, who would be reviewing the larger deposit account relationships, to limit the number of returned items if doing so would alleviate operational difficulties and the risk of loss due to nonpayment is expected to be low.
A memo-type provisional hold would allow transactions to be processed business-as-usual during the nightly cycle. In an institution with a “pay-all” policy, in which NSF items are processed during the batch nightly processing cycle and the return decision is made the following morning, either through automated decision rules or by account officer review, each of the three types of provisional holds might be equally effective. On the other hand, if the institution has a “pay-none” policy, in which NSF items not protected by a pre-existing overdraft agreement are slated for return the following business day, a memo-type hold may allow the FDIC more latitude in managing returned items and be less costly for the
A persistent provisional hold may require greater systems development and other implementation costs on the part of the
The FDIC is considering the desirability of each hold format discussed above, or whether to allow any combination of the three depending on the circumstances of the
1. Consumer demand deposit, negotiable order of withdrawal (“NOW”) and money market deposit accounts (“MMDA”).
2. Other consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs).
3. Non-consumer demand deposit, NOW accounts and MMDAs.
4. Other non-consumer deposit accounts (time deposit and savings accounts, excluding NOW accounts and MMDAs).
The likely value of the account balance threshold for deposit accounts would be between $30,000 and $80,000. Based on data provided by a sample of insured institutions, this range of values would make only about 10 percent of deposit accounts subject to the provisional hold at most institutions. Given the historical loss experience for large institutions and their general liability structure, the FDIC expects that the provisional hold percentage on domestic deposits would usually be less than 15 percent.
Some sweep accounts would be subject to the same provisional hold requirements as a deposit account. These are defined as “Class A” sweep accounts and include:
• Base sweep accounts where the sweep investment vehicle is another deposit account in an office of the same institution. Both the base sweep account and the sweep investment vehicle are deposits that will be subject to the provisional hold requirements of a deposit account.
• Base sweep accounts where funds are wired from the
All other sweep accounts—defined as “Class B” sweep accounts—would have a dual provisional hold methodology. For the fund balance remaining in the base sweep account as of the institution's customary close-of-business on the day of failure, the provisional hold methodology would be the same as applied to other deposit accounts. For the funds residing in the sweep investment vehicle as of the institution's customary close-of-business, the provisional hold methodology would have the capability of a separate account balance threshold and provisional hold percentage.
The proposed rule would not require mechanisms to stop the processing of any prearranged deposit account sweep transactions in the event of failure. The provisional holds described above would allow for the transfer of balances from a deposit account to a sweep investment vehicle. The provisional holds would apply to liability accounts as they are designated on the books and records of the institution at its customary close-of-business.
Consider, for example, a prearranged automated sweep transaction in which a customer's entire deposit account balance is swept to the institution's Cayman Island branch prior to the institution's customary close-of-business. Under part one of the proposed rule, the Cayman Island branch deposit would be classified and treated as a foreign deposit. In the event of failure the FDIC could request a provisional hold on the Cayman Island foreign deposit with an account balance threshold of $0 and a provisional hold percentage of 100. The funds booked as a Cayman Island branch deposit as of the institution's customary close-of-business could be swept back to a deposit account the morning following failure, but only if the provisional hold remains in place.
Automated credit accounts would have a dual provisional hold methodology. For the fund balance remaining in the automated credit account as of the institution's customary close-of-business the provisional hold methodology would be the same as applied to other deposit accounts. For the funds residing in the investment vehicle as of the institution's customary close-of-business, the provisional hold methodology would have the capability of a separate account balance threshold and provisional hold percentage.
The FDIC requests specific comments on all aspects of these proposed requirements concerning provisional holds on deposits.
The processing would work as follows. The FDIC would notify the
The debit and credit transaction file would be transmitted to the
In some cases provisional holds would be replaced by a second FDIC hold. These holds would be removed over time as further information is gathered from depositors needed to complete the insurance determination. These additional FDIC holds would be removed using the same file format described in Appendix 3.
A
1.
2.
3.
4.
5.
The criteria defining a
The FDIC will conduct an initial test at each
The FDIC is contemplating development of a XML validation service which would be provided to each
A
To reduce the frequency of FDIC testing and ensure ongoing compliance, the FDIC expects to require
In addition, the FDIC would have to test certain other requirements inside the institution, including but not limited to the ability to place and remove provisional holds, place new holds and implement debits and credits using a data set that meets the FDIC standards.
To protect financial privacy, the FDIC's testing process would not require that
Knowing the identity of each depositor is an important aspect of a deposit insurance determination. The previous ANPRs contemplated requiring a unique ID for each depositor under certain options. This proposed rule does not require a unique depositor ID, rather the FDIC would rely upon customer information already maintained by the Covered Institution to link commonly owned accounts. Nevertheless, a unique depositor ID could prove helpful and speed the insurance determination process, especially for Covered Institutions with a large number of deposit accounts. Should the FDIC require a unique depositor ID to be assigned by Covered Institutions when a new account is opened? What would be the relative costs of such a requirement?
The FDIC realizes that the proposed requirements for
1. The definition of a
2. The desirability and structure of requiring the provisional hold, once placed, to be apparent if the customer views account information on-line or through other means.
3. The cost and effectiveness of the proposed provisional holds requirements.
4. The various mechanisms for transmitting data to the FDIC.
5. The cost and effectiveness of the proposed testing process.
6. The desirability of a unique depositor ID requirement for new deposit accounts.
Also, section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113 Stat. 1338, 1471 (Nov. 12, 1999), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. We invite your comments on how to make this proposal easier to understand. For example:
• Have we organized the material to suit your needs? If not, how could this material be better organized?
• Are the requirements in the proposed regulation clearly stated? If not, how could the regulation be more clearly stated?
• Does the proposed regulation contain language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes to the format would make the regulation easier to understand?
• What else could we do to make the regulation easier to understand?
Between 2004 and 2007, the FDIC met with six would-be
Implementation costs will vary widely among the
Comments from the 2005 and 2006 ANPRs provided some indication of implementation and on-going costs. Further, during November 2007 the FDIC had conversations with several
For
Using this methodology overall industry implementation costs are estimated to range between $50 million and $100 million. The best estimate of implementation costs is the mid-point of this range, or $75 million. In reviewing implementation costs as part of the comments received from previous ANPRs the FDIC viewed them relative to a one basis point assessment against deposits. In this context the estimated implementation costs range between 11 and 21 percent of a one basis point assessment against deposits of
On-going costs for testing, maintenance and other periodic items is estimated to range between $6,000 and $13,000 for those
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• A copy of the comments may also be submitted to the OMB desk officer for the FDIC, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 3208, Washington, DC 20503.
The Regulatory Flexibility Act (“RFA”) requires an agency publishing a notice of proposed rulemaking to prepare and make available for public comment an initial regulatory flexibility analysis that describes the impact of the final rule on small entities. 5 U.S.C. 603(a). Pursuant to regulations issued by the Small Business Administration (13 CFR 121.201), a “small entity” includes
Pursuant to section 605(b) of the RFA (5 U.S.C. 605(b)), the FDIC certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule consists of two parts. The first part would establish the FDIC's practice for determining deposit account balances at a failed insured depository institution. It would impose no requirements on insured depository institutions. The second part of the proposed would require the largest insured depository institutions to adopt systems that would, in the event of the institution's failure: (1) Provide the FDIC with standard deposit account and customer information; and (2) allow the FDIC to place and release holds on liability accounts, including deposits. This part of the proposed rule would apply only to
The FDIC has determined that the proposed rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
The FDIC received 28 comment letters in response to the 2005 ANPR and 13 from the 2006 ANPR. While most of the comment letters touched on multiple points, they generally focused on a common theme. The various themes of the letters are summarized in Table 3. In response to the 2005 ANPR 64 percent of the comment letters indicated opposition due to the view that implementation costs of the options outweighed any potential benefits, high potential costs and regulatory burdens, or the options simply are not needed, compared to 62 percent of the 2006 ANPR comments. In other words, these commenters expressed the general belief during both years that the FDIC failed to make a compelling case in favor of any of the options in light of their perceptions of the costs.
The 2005 ANPR noted that the FDIC was considering expanding the definition of a
During both comment periods, some commenters were expressly supportive of one or more of the options, but in some cases indicated concern over costs. In particular, the letter from Dollar Bank stated it “understands and supports the need for the FDIC to have a rapid and effective process for determining insurance coverage. Not only does this benefit the FDIC directly, but effective performance by the FDIC also benefits the entire banking system by assuring the public of the reliability of federal insurance of deposits. The FDIC asked in this Proposal for suggestions on alternative approaches that might achieve approximately the same benefits for the FDIC at lower costs for banks. Because Dollar sees no reasonable alternative, it supports the general thrust of the Proposal.”
In response to the 2006 ANPR the Board of Governors of the Federal Reserve indicated it “strongly supports the goal of the 2006 ANPR, which is to ensure that the largest and most complex insured depositories and the FDIC have in place data and other management systems that would enable the FDIC to promptly identify insured deposits and resolve the institution in an orderly manner that is least costly to the FDIC and to taxpayers. Moreover, the Board fully agrees that it is important for these systems to be in place and operationally tested before a large or complex institution becomes troubled.”
The FDIC received comment letters from the Federal Reserve Bank of Minneapolis in response to both ANPRs. Its letter regarding the 2006 ANPR provided three recommendations to the FDIC.
• “Given the net benefits of its suggested reforms, the FDIC must revamp the current insurance determination procedures; the question, therefore, is “how” not “if.”
• The FDIC should reject, as time-inconsistent, proposals to address flaws in the status quo only when banks become riskier.
• The FDIC should adjust its proposals, based on industry input, to minimize costs while ensuring that the recommended approach remains credible and covers institutions for which the current system would not facilitate least-cost resolution.”
The 2005 and 2006 ANPRs solicited comment on alternative means of meeting the objective of conducting a timely insurance determination on Covered insured institutions.” No alternative suggestions were received.
Since such a large portion of the comment letters raised concerns about costs versus benefits, this topic will be discussed in the next section. This will be followed by a discussion of other issues raised in the comment letters.
Many commenters also argued that the likelihood of a Covered-Institution failure was remote. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”), the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FIDICA”) and the Federal Deposit Insurance Reform Act of 2005 (“FDIRA”) were cited as containing provisions reducing the likelihood of large-institution failures. It was noted that the FDIC is undergoing the longest period in its history without a failure. Furthermore, responders pointed out that the most recent failures were of institutions not proposed to be covered by the regulation. It also was argued that the FDIC likely will have ample warning of a large-institution failure, thereby allowing for adequate preparation time.
The 2005 ANPR noted that
With regard to potential benefits, The Financial Services Roundtable “recommends that the FDIC publish for public comment the stages that a large bank and its supervisor would go through before the bank reached the point where it would be deemed to be a ‘failed’ institution. This analysis is needed so that the probability of a large institution becoming a failure can be assessed. These stages, which almost certainly would be spread over several years, include recapitalizations, downsizing, management changes, strategic redirections, acquisition by a healthy bank, supervisory interventions, and other actions which would steer the institution away from failure long before it became a failed institution. As a point of fact, there have been instances when this has occurred among larger banks—most recently when Riggs Bank was acquired by PNC. It may be that, given these stages, the probability of a large bank failing at a cost to the FDIC is so low and the cost upon failure being so low, that the
Also, with regard to potential costs, The Financial Services Roundtable “is concerned that the FDIC has not properly estimated the cost of implementing the proposed rule and maintaining the related information systems. In particular, the Roundtable is concerned that the FDIC has not gathered any cost information in a systematic manner as to what it would cost
The paucity of data provided on Option 3 reflects the view among most commenters that it is unfeasible. Wachovia Corporation indicated, for example, that Option 3 was “wholly unacceptable,”
For Options 1 and 2 the cost estimates provided in the table are fairly modest when matched against other potential deposit insurance costs. Compared to a 1-basis point annual FDIC assessment, the estimated implementation costs of Options 1 or 2 ranged from 5 to 44 percent. The FDIC expects that implementation costs will vary across institutions. The deposit systems at
Both ANPRs noted that many
Two commercial banks also provided cost information for the 2006 ANPR requirements. Union Bank of California indicated “the proposed functionality by all banks system-wide could be in the billions of dollars,” although no documentation was provided in support of this estimate.
Any option will impose industry costs, but benefits also will accrue. The FDIC must balance these costs and benefits.
Many responders to both ANPRs noted the low likelihood of a Covered-Institution failure. Historical evidence indicates this to be the case. The FDIC also agrees that the reforms implemented in FIRREA, FDICIA and FDIRA serve to reduce the probability of a Covered-institution failure. However, even if the likelihood of a failure among
Effective market discipline also limits the size of troubled institutions and results in a more rapid course toward failure. Both serve to mitigate overall resolution losses. Lower resolution losses benefit insured institutions through lower insurance assessments.
In response to both ANPRs several commenters suggested delaying the implementation of any options until a
Several commenters also provided insights into the potential time needed to implement the proposed rules. The Clearing House, for example, noted that “material information system changes take significant time. Our member banks have discussed the ANPR with their technical staffs and have determined that any of the requested changes
The FDIC is concerned that a
The 2006 ANPR solicited comments on whether
This is the structure of the data file the FDIC will provide to remove or add a FDIC hold for an individual account or sub-account. The file will be in a tab-or pipe-delimited format and provided through FDIC
This is the structure of the data file the FDIC will provide to apply debits and credits to an individual account or sub-account after the removal of FDIC holds. The file will be in a tab-or pipe-delimited format and provided through FDIC
Banks, banking, savings associations.
For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation proposes to amend part 360 of title 12 of the Code of Federal Regulations as follows:
1. The authority citation for part 360 continues to read as follows:
12 U.S.C. 1821(d)(1), 1821(d)(10)(c), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub. L 101-73, 103 Stat. 357.
2. Add new §§ 360.8 and 360.9 to read as follows:
(a)
(b)
(2) The
(3)
(c)
(2) A check posted to the close-of-business deposit account balance but not collected by the depository institution will be included as part of the balance, subject to the correction of errors and omissions and adjustments for uncollectible items that the FDIC may make in its role as receiver of the failed depository institution.
(3) For deposit insurance and receivership purposes in connection with the failure of an insured depository institution, a depositor's rights will be determined as of the point the close-of-business deposit account balance is calculated, irrespective of the continuation of the institution's computer and other systems after this point. These rights may be adjusted as necessary to account for funds that are received by or removed from the institution after the FDIC cutoff point.
(a)
(b)
(i) 250,000 deposit accounts; or
(ii) $20 billion in total assets, regardless of the number of deposit accounts.
(2)
(3)
(4)
(5)
(6)
(c)
(2) The system requirements under paragraph (c)(1) of this section must have the capability of placing the provisional holds prescribed under that provision no later than 9 a.m. local time the day following the FDIC Cutoff Point, as defined in § 360.8(b)(3).
(3) Pursuant to instructions to be provided by the FDIC,
(4) For deposit accounts held in domestic offices of an insured depository institution, the provisional hold algorithm must be designed to exempt accounts below a specific account balance threshold, as determined by the FDIC. The account balance threshold could be any amount, including zero. For accounts above the account balance threshold determined by the FDIC, the algorithm must be designed to calculate and place a hold equal to the dollar amount of funds in excess of the account balance threshold multiplied by the provisional hold percentage determined by the FDIC. The provisional hold percentage could be any amount, from zero to one hundred percent. The account balance threshold as well as the provisional hold percentage could vary for the following four categories, as the
(i) Consumer demand deposit, NOW and money market deposit accounts;
(ii) Other consumer deposit accounts (time deposit and savings accounts, excluding NOW and money market deposit accounts);
(iii) Non-consumer demand deposit, NOW and money market deposit accounts; and
(iv) Other non-consumer deposit accounts (time deposit and savings accounts, excluding NOW and money market deposit accounts).
(5) For deposit accounts held in foreign offices of an insured depository institution, other than those connected to a Class B sweep or automated credit arrangements, the provisional hold algorithm will be the same as for deposit accounts, except that the account balance threshold and the hold percentage may vary based on the country in which the account is located.
(6) For international banking facility deposits, other than those connected to a Class B sweep or automated credit arrangements, the provisional hold algorithm will be the same as for deposit accounts, except that the account balance threshold and the hold percentage may differ.
(7) For the interest-bearing investment vehicle of a Class B sweep arrangement, the provisional hold algorithm must be designed with the capability to place a provisional hold on the interest-bearing investment vehicle with possibly a different account balance threshold and a different hold percentage according to the type of interest-bearing investment vehicle.
(8) For the interest-bearing investment vehicle of an automated credit account arrangement, the provisional hold algorithm must be designed with the capability to place a provisional hold on the interest-bearing investment vehicle with possibly a different account balance threshold and a different hold percentage according to the type of interest-bearing investment vehicle.
(9) The automated process for provisional holds required by paragraph (c)(1) of this section must include the capability of removing provisional holds in batch mode and, during the same processing cycle, applying debits, credits or additional holds on the deposit accounts from which the provisional holds were removed, as determined by the FDIC.
(d)
(2) The requirements of paragraph (d)(1) of this section shall be provided in five separate files, as indicated in the appendices to this Part 360.
(3) Upon request by the FDIC, a covered institution must submit the data required by paragraph (d)(1) of this section to the FDIC, in a manner prescribed by the FDIC.
(4) In providing the data required under paragraph (d)(1) of this section to the FDIC, the
(e)
(2) An insured depository institution not within the definition of a covered institution on the effective date of this section must comply with the requirements of this section no later than eighteen months following the end of the second calendar quarter for which it meets the criteria for a covered institution.
(3) Upon the merger of two or more non-covered institutions, if the resulting institution meets the criteria for a covered institution, that covered institution must comply with the requirements of this section no later than eighteen months after the effective date of the merger.
(4) Upon the merger of two or more covered institutions, the merged institution must comply with the requirements of this section within eighteen months following the effective date of the merger. This provision, however, does not supplant any preexisting implementation date requirement, in place prior to the date of the merger, for the individual covered institution(s) involved in the merger.
(5) Upon the merger of one or more covered institutions with one or more non-covered institutions, the merged institution must comply with the requirements of this section within eighteen months following the effective date of the merger. This provision, however, does not supplant any preexisting implementation date requirement for the individual covered institution(s) involved in the merger.
(6) Notwithstanding the general requirements of this paragraph (e), on a case-by-case basis, the FDIC may accelerate, upon notice, the implementation timeframe of all or part of the requirements of this section for a covered institution that either: Has a composite rating of 3, 4, or 5 under the Uniform Financial Institution's Rating System; or is undercapitalized as defined under the prompt corrective action provisions of 12 CFR part 325. In implementing this paragraph (e)(6), the FDIC must consult with the covered institution's primary federal regulator and consider the:
(i) Complexity of the institution's deposit systems and operations;
(ii) Extent of the institution's asset quality difficulties;
(iii) Volatility of the institution's funding sources;
(iv) Expected near-term changes in the institution's capital levels; and
(v) Other relevant factors appropriate for the FDIC to consider in its roles as insurer and possible receiver of the institution.
(7) Notwithstanding the general requirements of this paragraph (e), a covered institution may request, by letter, that the FDIC extend the deadline for complying with the requirements of this section. A request for such an extension is subject to the FDIC's rules of general applicability under 12 CFR 303.251.
(f)
3. Add new Appendices A through F to Part 630 to read as follows:
A. This is the structure for the data file to provide deposit data to the FDIC. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab-or pipe-delimited format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a deposit file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit to the
B. The total deposit balances and the number of deposit accounts in each deposit file must be reconciled to the subsidiary system control totals.
C. The FDIC intends to fully utilize a
D. The deposit data elements provide information specific to deposit account balances and account data. The sequencing of these elements, their physical data structures and the field data format and field length must be provided to the FDIC along with the data structures identified below.
E. A header record will also be required at the beginning of this file. This record will contain the number of accounts to be included in this file, the maximum number of characters contained in largest account title field maintained within the deposit file and the maximum number of characters contained in largest address field maintained within the deposit file.
Each record must contain the account title/name and current account statement mailing address. Fields 16-32 relate to the account name and address information. Some systems provide for separate fields for account title/name, street address, city, state, ZIP, and country, all of which are parsed out. Others systems may simply provide multiple lines for name, street address, city, state, ZIP, with no distinction. Populate fields that best fit the system's data, either fields 16-26 or fields 27-32.
A. This is the structure of the data file to provide information to the FDIC on funds residing in investment vehicles linked to each non-closed deposit account or sub-account: Involved in Class B sweep activity; or which accepts automated credits. A single record should be used for each instance where funds affiliated with the deposit account are held in an alternative investment vehicle. For any alternative investment vehicle, a separate account may or may not exist. If an account exists for the investment vehicle it should be noted in the record. If no account exists then a null value for the Class B Sweep/Automated Credit Account Identifiers should be provided, but the remainder of the data fields defined below should be populated.
B. For data provided in the Class B Sweep/Automated Credit Account File the total
This is the structure of the data file to provide information to the FDIC for each legal or collateral hold placed on a deposit account or sub-account. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab-or pipe-delimited format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a hold data file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC
This is the structure of the data file to provide to the FDIC information related to each customer who has an account or sub-account reported in the deposit data or Class B sweep/automated credit account file. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab- or pipe-delimited format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a customer file type and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC
Each record must contain the customer's name and permanent legal address. Fields 4-12 relate to the customer name for individuals only. Fields 13-14 relate to the customer name for entities other than individuals. Some systems provide for separate fields for name, street address, city, state, ZIP, and country, all of which are parsed out. Other systems may simply provide multiple lines for name, street address, city, state, ZIP, with no distinction. In this case, certain name and address data elements must be parsed and provided in the appropriate fields.
A. This is the structure of the data file to provide to the FDIC information necessary to link the records in the deposit and customer files. If data or information are not maintained or do not apply, a null value in the appropriate field should be indicated. The file will be in a tab- or pipe-delimited format. Each file name will contain the institution's FDIC Certificate Number, an indication that it is a join file type, and the date of the extract. The files will be encrypted using an FDIC-supplied algorithm. The FDIC will transmit the encryption algorithm over FDIC
B. The deposit-customer join file will have one or more records for each deposit account, depending on the number of relationships to each account. A simple individual account, for example, will be associated with only one record in the deposit-customer join file indicating the owner of the account. A joint account with two owners will be associated with two records in the deposit-customer join file, one for each owner. The deposit-customer join file will contain other records associated with a deposit account to designate, among other things, beneficiaries, custodians, trustees, and agents. This methodology allows the FDIC to know all of the possible relationships for an individual account and also whether a single customer is involved in many accounts.
A
Multiple combinations of deposit, sweep, hold, customer, customer address and deposit-customer join files are permissible, but only in the following circumstances:
1. Each separate deposit file must have companion hold and deposit-customer join files covering the same deposit accounts.
2. Each separate customer file must have a companion customer address file covering the same customers.
3. A single customer file may be submitted covering customers affiliated with deposit accounts in one or more deposit files as long as the customer file contains information on all of the customers affiliated with the deposit files.
4. Several customer files may be submitted as long as each separate customer file contains information on all of the customers affiliated with the associated deposit files.
Figure 3 shows a permissible file configuration using a single Customer File affiliated with Deposit File A and Deposit File B. As required, Deposit File A has a companion Hold File A and Deposit-Customer Join File A. The same is true for Deposit File B.
Another permissible combination of files is shown in Figure 4, which is a variation of the basic data file structure shown in Figure 2.
By order of the Board of Directors.
This priority supports projects that enhance, expand, document, evaluate, and disseminate innovative, cohesive models that are based on research and have demonstrated their effectiveness in (1) integrating standards-based arts education into the core elementary or middle school curriculum, (2) strengthening standards-based arts instruction in the elementary or middle school grades, and (3) improving the academic performance of students in elementary or middle school grades, including their skills in creating, performing, and responding to the arts.
In order to meet this priority, an applicant must demonstrate that the model project for which it seeks funding (1) serves only elementary school or middle school grades, or both, and (2) is linked to State and national standards intended to enable all students to meet challenging expectations and to improve student and school performance.
When using the priority to give competitive preference to an application, we will review the applications using a two-stage review process. In the first stage, we will review the applications without taking the priority into account. In the second stage of the process, we will review the applications rated highest in the first stage of the process to determine whether they receive the competitive preference points. We will consider awarding additional (competitive preference) points only to those applicants with top-ranked scores on their selection criteria. We expect that approximately 30 applicants will receive these additional competitive preference points.
The Secretary establishes a priority for projects proposing an evaluation plan that is based on rigorous scientifically based research methods to assess the effectiveness of a particular intervention. The Secretary intends that this priority will allow program participants and the Department to determine whether the project produces meaningful effects on student achievement or teacher performance.
Evaluation methods using an experimental design are best for determining project effectiveness. Thus, when feasible, the project must use an experimental design under which participants—
If random assignment is not feasible, the project may use a quasi-experimental design with carefully matched comparison conditions. This alternative design attempts to approximate a randomly assigned control group by matching participants—
In cases where random assignment is not possible and participation in the intervention is determined by a specified cut-off point on a quantified continuum of scores, regression discontinuity designs may be employed.
For projects that are focused on special populations in which sufficient numbers of participants are not available to support random assignment or matched comparison group designs, single-subject designs such as multiple baseline or treatment-reversal or interrupted time series that are capable of demonstrating causal relationships can be employed.
Proposed evaluation strategies that use neither experimental designs with random assignment nor quasi-experimental designs using a matched comparison group nor regression discontinuity designs will not be considered responsive to the priority when sufficient numbers of participants are available to support these designs. Evaluation strategies that involve too small a number of participants to support group designs must be capable of demonstrating the causal effects of an intervention or program on those participants.
The proposed evaluation plan must describe how the project evaluator will collect—before the project intervention commences and after it ends—valid and reliable data that measure the impact of participation in the program or in the comparison group.
Points awarded under this priority will be determined by the quality of the proposed evaluation method. In determining the quality of the evaluation method, we will consider the extent to which the applicant presents
(1) The type of design to be used (that is, random assignment or matched comparison). If matched comparison, include in the plan a discussion of why random assignment is not feasible.
(2) Outcomes to be measured.
(3) A discussion of how the applicant plans to assign students, teachers, classrooms, or schools to the project and control group or match them for comparison with other students, teachers, classrooms, or schools.
(4) A proposed evaluator, preferably independent, with the necessary background and technical expertise to carry out the proposed evaluation. An independent evaluator does not have any authority over the project and is not involved in its implementation.
In general, depending on the implemented program or project, under a competitive preference priority, random assignment evaluation methods will receive more points than matched comparison evaluation methods.
While we will not score applicants based on the invitational priorities, we encourage applicants to take advantage of the competitive preference priority if their model allows them to do so.
To be eligible for AEMDD funds, applicants must propose to address the needs of low-income children by carrying out projects that serve at least one elementary or middle school in which 35 percent or more of the children enrolled are from low-income families (based on data used in meeting the poverty criteria in Title I, Section 1113(a)(5) of the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA)).
As used in the absolute priority in this notice—
As used in the competitive preference priority in this notice—
(A) Means research that involves the application of rigorous, systematic, and objective procedures to obtain reliable and valid knowledge relevant to education activities and programs; and
(B) Includes research that—
(i) Employs systematic, empirical methods that draw on observation or experiment;
(ii) Involves rigorous data analyses that are adequate to test the stated hypotheses and justify the general conclusions drawn;
(iii) Relies on measurements or observational methods that provide reliable and valid data across evaluators and observers, across multiple measurements and observations, and across studies by the same or different investigators;
(iv) Is evaluated using experimental or quasi-experimental designs in which individuals, entities, programs, or activities are assigned to different conditions and with appropriate controls to evaluate the effects of the condition of interest, with a preference for random-assignment experiments, or other designs to the extent that those designs contain within-condition or across-condition controls;
(v) Ensures that experimental studies are presented in sufficient detail and clarity to allow for replication or, at a minimum, offer the opportunity to build systematically on their findings; and
(vi) Has been accepted by a peer-reviewed journal or approved by a panel of independent experts through a comparably rigorous, objective, and scientific review.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2009 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
The first 12 months of the project period may be used to build capacity to effectively carry out the comprehensive activities involved in the evaluation plan described in the competitive preference priority.
1.
(1) One or more local educational agencies (LEAs), including charter schools that are considered LEAs under State law and regulations, that may work in partnership with one or more of the following:
• A State or local non-profit or governmental arts organization,
• A State educational agency (SEA) or regional educational service agency,
• An institution of higher education, or
• A public or private agency, institution, or organization, such as a community- or faith-based organization; or
(2) One or more State or local non-profit or governmental arts organizations that must work in partnership with one or more LEAs and may partner with one or more of the following:
• An SEA or regional educational service agency,
• An institution of higher education, or
• A public or private agency, institution, or organization, such as a community- or faith-based organization.
If more than one LEA or arts organization wishes to form a consortium and jointly submit a single application, they must follow the procedures for group applications described in 34 CFR 75.127 through 75.129 of EDGAR.
2. a.
b.
3.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.351D.
You can obtain the application package for the program via the Internet at the following address:
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
Applicants that fail to provide this e-mail notification may still apply for funding.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the page limit does apply to all of the application narrative section (Part III).
3.
Applications Available: January 14, 2008.
Deadline for Notice of Intent to Apply: February 13, 2008.
Deadline for Transmittal of Applications: March 14, 2008.
Applications for grants under this competition must be submitted electronically using the
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: May 13, 2008.
4.
5.
6.
Applications for grants under the AMEDD Program, CFDA Number 84.351D, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for AMEDD Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this program to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Diane Austin, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W223, Washington, DC 20202-5950.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the applicable following address:
U.S. Department of Education,
Application Control Center,
400 Maryland Avenue, SW.,
Washington, DC 20202-4260;
or
U.S. Department of Education,
Application Control Center, Stop 4260,
7100 Old Landover Road,
Landover, MD 20785-1506.
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address:
U.S. Department of Education,
Application Control Center,
550 12th Street, SW.,
Room 7041, Potomac Center Plaza,
Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
(1)
(a) The extent to which the proposed project will provide services or otherwise address the needs of students at risk of educational failure.
(b) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses.
(2)
(a) The importance or magnitude of the results or outcomes likely to be attained by the proposed project, especially improvements in teaching and student achievement.
(b) The likely utility of the products (such as information, materials, processes, or techniques) that will result from the proposed project, including the potential for their being used effectively in a variety of other settings.
(c) The extent to which the results of the proposed project are to be disseminated in ways that will enable others to use the information or strategies.
(3)
(a) The extent to which the design of the proposed project reflects up-to-date knowledge from research and effective practices.
(b) The extent to which the proposed project is part of a comprehensive effort to improve teaching and learning and support rigorous academic standards for students.
(c) The extent to which the design for implementing and evaluating the proposed project will result in information to guide possible replication of project activities or strategies, including information about the effectiveness of the approach or strategies employed by the project.
(d) The extent to which the proposed project is designed to build capacity and yield results that will extend beyond the period of Federal financial assistance.
(4)
(a) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(b) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(c) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(5)
(a) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and will produce quantitative and qualitative data to the extent possible.
(b) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
A strong evaluation plan should be included in the application narrative and should be used, as appropriate, to shape the development of the project from the beginning of the grant period. The evaluation plan should include benchmarks to monitor progress toward specific project objectives and also outcome measures to assess the impact on teaching and learning, or other important outcomes for project participants. More specifically, the plan should identify the individual or organization that has agreed to serve as evaluator for the project and describe the qualifications of that evaluator. The plan should describe the evaluation design, indicating: (1) What types of data will be collected; (2) when various types of data will be collected; (3) what methods will be used; (4) what instruments will be developed and when these instruments will be developed; (5) how the data will be analyzed; (6) when reports of results and outcomes will be available; and (7) how the applicant will use the information collected through the evaluation to monitor progress of the funded project and to provide accountability information both about success at the initial site and about effective strategies for replication in other settings. Applicants are encouraged to devote an appropriate level of resources to project evaluation.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
5.
Diane Austin, U.S. Department of Education, 400 Maryland Avenue, SW., room 4W223, Washington, DC 20202-5950.
If you use a TDD, call the Federal Relay Service (FRS) at 1-800-877-8339.
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The official version of this document is the document published in the