Federal Crop Insurance Corporation
Food and Nutrition Service
Forest Service
International Trade Administration
Federal Energy Regulatory Commission
Management and Budget Office
Presidential Documents
Agency for Healthcare Research and Quality
Food and Drug Administration
Fish and Wildlife Service
Mine Safety and Health Administration
Management and Budget Office
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Transit Administration
Maritime Administration
Surface Transportation Board
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.
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Office of Personnel Management.
Interim rule.
The Office of Personnel Management is issuing an interim regulation to allow Peace Corps volunteers who are FEHB Program enrolled annuitants, survivors, and former spouses to suspend their FEHB enrollments and then return to the FEHB Program during the Open Season, or return to FEHB coverage immediately, if they involuntarily lose health benefits coverage under the Peace Corps. The intent of this rule is to allow these beneficiaries to avoid the expense of continuing to pay FEHB Program premiums while they have other health coverage as Peace Corps volunteers, without endangering their ability to return to the FEHB Program in the future.
Michael W. Kaszynski, Policy Analyst, Insurance Policy, OPM, Room 3425, 1900 E Street, NW., Washington, DC 20415-0001. Phone number: 202-606-0004. E-mail:
The Office of Personnel Management (OPM) allows certain Medicare, Medicaid, CHAMPVA or TRICARE or TRICARE-for-Life eligible FEHB Program annuitants, survivors, and former spouses to suspend their FEHB enrollments and then return to the FEHB Program during the Open Season; or return to FEHB coverage immediately, if they involuntarily lose coverage. This has allowed these beneficiaries to avoid the expense of continuing to pay FEHB Program premiums while they are using certain Medicare, Medicaid, TRICARE or TRICARE-for-Life or CHAMPVA coverage without endangering their ability to return to the FEHB Program in the future. We have determined that individuals eligible for coverage under the Peace Corps should be allowed the same right to suspend FEHB coverage and reenroll in the FEHB Program as we afford these other groups.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation affects only health insurance carriers under the Federal Employees Health Benefits Program.
This regulation has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professionals, Hostages, Iraq, Kuwait, Lebanon, Military Personnel, Reporting and recordkeeping requirements, Retirement.
Office of Personnel Management.
5 U.S.C. 8913, sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; sec. 890.102 also issued under secs. 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and sec. 721 of Pub. L. 105-261, 112 Stat. 2061, unless otherwise noted.
Federal Crop Insurance Corporation, USDA.
Interim rule.
The Federal Crop Insurance Corporation (FCIC) amends the Common Crop Insurance Regulations, Basic Provisions (Basic Provisions) to conform to the requirements of section 780 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006 (2006 Appropriations Act) regarding written agreements and the use of similar agricultural commodities.
This rule is effective November 25, 2005. Written comments and opinions on this rule will be accepted until the close of business January 30, 2006 and will be considered when the rule is to be made final.
Interested persons are invited to submit written comments to the Director, Product Development Division, Risk Management Agency, United States Department of Agriculture, 6501 Beacon Drive, Stop 0812, Room 421, Kansas City, MO 64133-4676. Comments titled “Basic Provisions Interim Rule” may be sent via the Internet to
For further information contact Erin Reid, Risk Management Specialist, Research and Development, Product Development Division, Risk Management Agency, at the Kansas City, MO, address listed above, telephone (816) 926-6321.
This rule has been determined to be nonsignificant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the Office of Management and Budget (OMB).
Pursuant to the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through November 30, 2007.
FCIC is committed to compliance with the GPEA, which requires Government agencies, in general, to provide the public with the option of submitting information or transacting business electronically to the maximum extent possible. FCIC requires that all reinsured companies be in compliance with the Freedom to E-File Act and section 508 of the Rehabilitation Act.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Written agreement requirements for the Federal crop insurance program are the same for all producers regardless of the size of their operations. For instance, all producers requesting this type of written agreement must submit actual yields for at least the most recent three crops years in which the crop was planted during the base period. Any producer who did not produce the crop for at least three years, for which the written agreement is requested, must submit actual yields for a similar crop, or a combination of actual yields for the crop and a similar crop in the county for which the written agreement is being requested. Whether a producer has 10 acres or 100 acres there is no difference in the kind of information required for requesting a written agreement. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this change helps ensure that small entities are given the same opportunities as large entities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605).
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.
This interim rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC or to require the insurance provider to take specific action under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.
This action is not expected to have a significant economic impact on the quality of the human environment, health, or safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.
Section 508(a)(4)(B) of the Federal Crop Insurance Act (Act) involves areas in the United States where crop insurance is not available for a particular commodity and authorizes FCIC to offer to enter into a written agreement with producers in such areas if the producer has actuarially sound data relating to the production by the producer of the commodity and the data is acceptable to FCIC. FCIC interpreted this provision to mean producers would have to provide verifiable records of actual yields of the crop to be insured for the last three years the crop was grown and incorporated this requirement into the Basic Provisions.
Section 780 of the 2006 Appropriations Act amended section 508(a)(4)(B) to allow FCIC to offer to enter into a written agreement with producers in such areas if the producer has actuarially sound data relating to the production by the producer of a similar commodity and the data is acceptable to FCIC. To incorporate this change into the policy, FCIC must revise those provisions of the Basic Provisions that limit records of actual yields to the commodity to be insured to allow records of yields for similar commodities to be used in underwriting written agreements.
Specifically, FCIC is amending section 18(f)(2)(i) of the Basic Provisions to differentiate between when the producer has records of production for the crop to be insured under the written agreement and when the producer has records of a similar crop or a combination of records for a similar crop and records of the same crop that will be insured. FCIC is adding provisions that specify that to be considered a crop that is similar to the crop for which a written agreement is being requested, it must fit into one of a broad grouping of crops the producer has grown in the past (
Good cause is shown to make this rule effective upon filing for public inspection at the Office of the Federal Register. Good cause to make the rule effective upon filing at the Office of the Federal Register exists when the 30 day delay in the effective date is impracticable, unnecessary, or contrary to the public interest. The changes in this rule are statutorily mandated.
With respect to the provisions of this rule, it would be contrary to the public interest to delay its implementation. Further, such changes regarding written agreements for producers in areas of the United States where crop insurance is not available for a particular commodity are in the public interest. This is because the changes will allow a producer to submit records of a crop that is similar to the crop for which insurance is being requested, and expand the availability of insurance for a producer who may not have previously qualified.
If FCIC is required to delay the implementation of this rule 30 days after the date it is published, the provisions of this rule could not be implemented until the next crop year for those crops having a contract change date prior to the effective date of this publication. This would mean that the affected producers would be without the benefits described above for an additional year.
For the reasons stated above, good cause exists to make these policy changes effective upon filing with the Office of the Federal Register.
Crop insurance, Reporting and recordkeeping requirements.
7 U.S.C. 1506(l), 1506(p).
The revised sections read as follows:
18. Written Agreements
(f) * * *
(2) * * *
(i) A completed APH form (except for policies that do not require APH) based on verifiable records of actual yields for:
(A) The crop and county for which the written agreement is being requested (the actual yields do not necessarily have to be from the same physical acreage for which you are requesting a written agreement) for at least the most recent three crop years in which the crop was planted during the base period; or
(B) A similar crop in the county, or a combination of actual yields for a similar crop in the county and the crop in the county for which the written agreement is being requested if you have not produced the crop for which the written agreement is being requested for at least three crop years.
(
(
(
(
(
(
(ii) Acceptable production records for at least the most recent three crop years in which the crop or a similar crop was planted;
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued to Garmin AT, Inc., 2345 Turner Rd. SE, Salem, OR 97302, for a Supplemental Type Certificate for the Mooney M20M and M20R. These airplanes will have novel and unusual design features when compared to the state of technology envisaged in the applicable airworthiness standards. These novel and unusual design features include the installation of an electronic flight instrument system (EFIS) display, Model G-1000, manufactured by Garmin International, for which the applicable regulations do not contain adequate or appropriate airworthiness standards for the protection of these systems from the effects of high intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to the airworthiness standards applicable to these airplanes.
The effective date of these special conditions is November 3, 2005. Comments must be received on or before December 30, 2005.
Comments may be mailed in duplicate to: Federal Aviation Administration, Regional Counsel, ACE-7, Attention: Rules Docket Clerk, Docket No. CE234, Room 506, 901 Locust, Kansas City, Missouri 64106. All comments must be marked: Docket No. CE234. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.
Wes Ryan, Aerospace Engineer, Standards
The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval design and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.
Interested persons are invited to submit such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE234.” The postcard will be date stamped and returned to the commenter.
On August 13, 2004, Garmin AT, Inc., 2345 Turner Rd. SE, Salem, OR 97302, made an application to the FAA for a new Supplemental Type Certificate for the Mooney M20M and M20R. The Mooney M20M and M20R are currently approved under TC No. 2A3. The proposed modification incorporates a novel or unusual design feature, such as digital avionics consisting of an EFIS that is vulnerable to HIRF external to the airplane.
Under the provisions of 14 CFR 21.101, Garmin AT, Inc. must show that the Mooney M20M and M20R meet their original certification basis, as listed on Type Data Sheet 2A3, the additional certification requirements added for the G1000 system, exemptions, if any; and the special conditions adopted by this rulemaking action. The additional certification requirements for the G1000 system include §§ 23.1301, 23.1309, 23.1311, 23.1322, 23.1353 and other rules at the amendment appropriate for the date of application. Further details of the certification basis for the installation of the G1000 EFIS are available on request.
If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of § 21.16.
Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38 after public notice and become part of the type certification basis in accordance with § 21.101.
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model already included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.
Garmin AT, Inc. plans to incorporate certain novel and unusual design features into the Mooney M20M and M20R for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include EFIS, which are susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.
Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.
The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.
These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:
(2) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:
(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.
A preliminary hazard analysis must be performed by the applicant for approval by the FAA to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions, whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.
Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.
As discussed above, these special conditions are applicable to the Mooney M20M and M20R. Should Garmin AT, Inc. apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, and because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.
Aircraft, Aviation safety, Signs and symbols.
49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19.
1.
2. For the purpose of these special conditions, the following definition applies:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for McCauley Propeller Systems propeller assemblies, models 2D34C53/74E-X; D2A34C58/90AT-X; 3AF32C87/82NC-X; D3AF32C87/82NC-X; D3A32C88/82NC-X; D3A32C90/82NC-X; and 3AF34C92/90LF-X. This AD requires, within 10 flight hours or 10 days after the effective date of this AD, whichever occurs first, removing certain serial number propeller hubs from service. This AD results from a report by the manufacturer that they manufactured and released 40 propeller hubs with improperly machined socket retention threads. We are issuing this AD to prevent cracked propeller hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane.
This AD becomes effective December 15, 2005.
We must receive any comments on this AD by January 30, 2006.
Use one of the following addresses to comment on this AD:
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Contact McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 67277-7704, U.S.A.; telephone (800) 621-7767, for the service information identified in this AD.
Jeff Janusz, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Wichita, KS 67209, telephone: (316) 946-4148; fax: (316) 946-4107.
In August of 2005, McCauley Propeller Systems reported to the FAA that a repair facility found a single, new, unused propeller hub with improperly machined socket retention threads. Further investigation revealed that McCauley Propeller Systems improperly machined socket retention threads on 40 propeller hubs, manufactured in 2004 and 2005. Using a propeller hub with improperly machined socket retention threads could cause concentrated loading on the threads, resulting in cracking of the hub and blade separation. This condition, if not corrected, could result in failure of the propeller hub, blade separation, and loss of control of the airplane.
The unsafe condition described previously is likely to exist or develop on other McCauley Propeller Systems propeller assemblies, models 2D34C53/74E-X; D2A34C58/90AT-X; 3AF32C87/82NC-X; D3AF32C87/82NC-X; D3A32C88/82NC-X; D3A32C90/82NC-X; and 3AF34C92/90LF-X of the same type design. For that reason, we are issuing this AD to prevent cracked hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane. This AD requires, within 10 flight hours or 10 days after the effective date of this AD, whichever occurs first, removing affected propeller hubs from service, and sending those propeller hubs to a McCauley Service Center. This AD also requires, before assembly into a replacement propeller hub, visually inspecting the retention nut threads with a 10-power magnifier, and replacing the nut if necessary.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable. Good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. We invite you however, to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective December 15, 2005.
(b) None.
(c) This AD applies to McCauley Propeller Systems propeller assemblies, models 2D34C53/74E-X; D2A34C58/90AT-X; 3AF32C87/82NC-X; D3AF32C87/82NC-X; D3A32C88/82NC-X; D3A32C90/82NC-X; and 3AF34C92/90LF-X, with the propeller hubs listed by serial number in the following Table 1:
(d) Because a propeller hub can be interchanged and re-identified as a different model with the installation of different studs or adapters, any of the affected hubs could have been re-identified as a different model. Each propeller hub model listed in Table 1 of this AD is the original hub configuration when shipped from McCauley.
(e) The propeller hubs listed in Table 1 of this AD are installed on, but not limited to, the airplanes listed in the following Table 2:
(f) This AD results from a report by the manufacturer that they manufactured and released 40 propeller hubs with improperly machined socket retention threads. We are issuing this AD to prevent cracked propeller hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane.
(g) You are responsible for having the affected propeller hubs removed from service within 10 flight hours or 10 days after the effective date of this AD, whichever occurs first, unless the actions have already been done.
(h) Remove from service propeller assemblies with affected propeller hubs, listed in Table 1 of this AD.
(i) Send propeller assemblies with affected propeller hubs listed in Table 1 of this AD to a McCauley Service Center for disassembly, inspection, and propeller hub replacement with a serviceable propeller hub.
(j) Send uninstalled propeller hubs listed in Table 1 of this AD to a McCauley Service Center for replacement with a serviceable propeller hub.
(k) For retention nuts that were removed from an affected propeller hub, visually inspect the retention nut threads with a 10-power magnifier before assembly into a replacement propeller hub. Reject the nut for any signs of galling, heavy localized loading, thread deformation, or chipped threads that may have been caused by thread interference in the propeller hub.
(l) Report within 10 calendar days of finding affected propeller hubs to:
(1) The FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, KS 67209, Attention: Jeff Janusz, telephone (316) 946-4148; e-mail:
(2) McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 97277-7704.
(3) Reporting requirements have been approved by the Office of Management (OMB) and assigned OMB control number 2120-0056.
(m) McCauley Alert Service Bulletin No. ASB251A, dated September 28, 2005 contains information on a credit program for affected hubs.
(n) The Manager, Wichita Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(o) Under 39.23, we are limiting the special flight permits for this AD by the following conditions:
(1) The propeller must have an oil-filled propeller hub and have no history of hub oil leakage.
(2) You must visually examine the propeller hub, and it must have no evidence of existing cracks.
(3) You are allowed a single-occupant (pilot only), non-revenue flight to a base of maintenance or FAA-approved propeller repair facility only.
(4) Your total flight time must not exceed 10 hours.
(p) McCauley Propeller Systems Alert Service Bulletin No. ASB251A, dated September 28, 2005, pertains to the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain McCauley Propeller Systems propeller assemblies installed on BAE Systems (Operations) Limited Jetstream model 4100 series airplanes. This AD requires removing certain propeller hubs from service at new reduced life limits and eddy current inspections (ECIs) of the propeller hub. This AD results from three reports of cracked propeller hubs. We are issuing this AD to prevent cracked propeller hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane.
This AD becomes effective December 15, 2005. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of December 15, 2005.
We must receive any comments on this AD by January 30, 2006.
Use one of the following addresses to comment on this AD:
• DOT Docket Web site: Go to
• Government-wide rulemaking Web site: Go to
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Contact McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 97277-7704, for the service information referenced in this AD.
Jeff Janusz, Aerospace Engineer, Wichita Aircraft Certification Office, FAA, Small Airplane Directorate, 1801 Airport Road, Wichita, KS 67209, telephone: (316) 946-4148; fax: (316) 946-4107.
In August 2003, we issued AD 2003-17-10 which requires initial and repetitive fluorescent penetrant inspection or ultrasonic inspection of propeller blade retention areas for cracks, replacement of high time propeller blades, and a onetime inspection of propeller hubs. That AD resulted from four earlier reports of cracks in propeller blade shanks. Since we issued AD 2003-17-10, we received three more reports of cracked hubs. In November 2004, we issued AD 2004-23-16 which requires a onetime ECI of the propeller hub for cracks, and if necessary, replacing the propeller assembly. That AD also captured inspection results for the propeller hubs installed on the Jetstream model 4100 fleet.
We received field reports that during taxi and ground maneuvering, certain airplane operators might be violating the published and placarded propeller ground revolutions-per-minute (rpm) restrictions. Operating in the restricted rpm range during ground operation can excite a natural propeller blade frequency that creates damaging stress loadings on the propeller blades and hub. The stress loadings can cause cracks, leading to propeller structural failure.
Additionally, some operators use a water-methanol assist system to provide more engine power during certain operating conditions. The operating procedures for the water-methanol assist system define an airplane brakes-locked condition. Testing has shown that using the water-methanol assist system with airplane brakes locked creates propeller loadings exceeding structural fatigue limits of the propeller hub. This condition, if not corrected, could result in cracked hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane.
We reviewed and approved the technical contents of McCauley Alert Service Bulletin (ASB) No. ASB250, dated September 12, 2005. This ASB introduces new lower life limits for the propeller hubs identified in this AD, and describes ECI procedures for them.
The unsafe condition described previously is likely to exist or develop on other McCauley propeller assemblies, P/Ns B5JFR36C1101/114GCA-0, C5JFR36C1102/L114GCA-0, B5JFR36C1103/114HCA-0, and C5JFR36C1104/L114HCA-0, installed on BAE Systems (Operations) Limited Jetstream model 4100 series airplanes. We are issuing this AD to prevent cracked hubs, which could cause failure of the propeller hub, blade separation, and loss of control of the airplane. This AD requires:
• Removing any propeller hub from service that is currently, or ever was, operated on an engine with a water-methanol assist system, not later than 6,000 hours time-in-service (TIS).
• Removing any other propeller hub from service not later than 18,000 hours TIS.
• Removing any propeller hub from service that exceeds its life limit on the effective date of this AD, within 50 hours TIS after the effective date of this AD.
• That any propeller hub removed from service after exceeding its life limit must not be returned to service on any installation.
• For all installed propeller hubs, performing an ECI within 200 hours TIS or 60 days after the effective date of this AD, whichever occurs first.
• Thereafter, for all installed propeller hubs with 12,000 or more hours TIS, performing repetitive ECIs within 1,800 hours TIS or 12 months, whichever occurs first.
You must use the service information described previously to perform the actions required by this AD. This AD does not require repetitive inspections for propeller hubs that ever operated on, or are currently operating on, engines with a water-methanol assist system,
Since an unsafe condition exists that requires the immediate adoption of this AD, we found that notice and opportunity for public comment before issuing this AD are impracticable. Good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This airworthiness directive (AD) becomes effective December 15, 2005.
(b) None.
(c) This AD applies to McCauley Propeller Systems propeller assemblies, part numbers (P/Ns) B5JFR36C1101/114GCA-0, C5JFR36C1102/L114GCA-0, B5JFR36C1103/114HCA-0, and C5JFR36C1104/L114HCA-0. These propeller assemblies are installed on BAE Systems (Operations) Limited Jetstream Model 4100 series airplanes.
(d) This AD results from three reports of cracked propeller hubs. We are issuing this AD to prevent cracked propeller hubs, which could cause failure of the propeller hub, blade separation, and loss of control 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) Remove any propeller hub from service that is currently, or ever was, operated on an engine with a water-methanol assist system, not later than 6,000 hours time-in-service (TIS).
(g) Remove any other propeller hub from service not later than 18,000 hours TIS.
(h) Remove any propeller hub from service that exceeds its life limit on the effective date of this AD, within 50 hours TIS after the effective date of this AD.
(i) Any propeller hub removed from service after exceeding its life limit must not be returned to service on any installation.
(j) For all installed propeller hubs, perform an eddy current inspection (ECI) within 200 hours TIS or 60 days after the effective date of this AD, whichever occurs first. Use the Accomplishment Instructions of McCauley Alert Service Bulletin (ASB) No. ASB250, dated September 12, 2005, to do the inspection.
(k) Thereafter, for all installed propeller hubs with 12,000 or more hours TIS:
(1) Perform repetitive ECIs within 1,800 hours TIS or 12 months, whichever occurs first.
(2) Use the Accomplishment Instructions of McCauley ASB No. ASB250, dated September 12, 2005, to do the inspections.
(l) This AD does not require repetitive inspections for propeller hubs that ever operated on, or are currently operating on, engines with a water-methanol assist system, due to the 6,000 hours TIS hub reduced life limit.
(m) Report within 10 calendar days of the inspection, the results that equal or exceed the reject criteria to:
(1) The FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Wichita, KS 67209, Attention: Jeff Janusz, telephone (316) 946-4148; e-mail:
(2) McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 97277-7704.
(3) Reporting requirements have been approved by the Office of Management and Budget (OMB) and assigned OMB control number 2120-0056.
(n) The Manager, Wichita Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19.
(o) None.
(p) You must use McCauley Alert Service Bulletin No. ASB250, dated September 12, 2005, to perform the inspections required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact McCauley Propeller Systems, P.O. Box 7704, Wichita, KS 97277-7704, for a copy of this service information. You may review copies at the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001, on the Internet at
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.
0901 UTC, December 22, 2005.
Donald P. Pate, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.
The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Airspace, Navigation (air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.
Federal Energy Regulatory Commission, DOE.
Order on rehearing.
The Federal Energy Regulatory Commission (Commission) grants rehearing in part, denies rehearing in part, and clarifies certain determinations in Order No. 2006. Order No. 2006 requires all public utilities that own, control, or operate facilities for transmitting electric energy in interstate commerce to file revised open access transmission tariffs containing standard small generator interconnection procedures and a standard small generator interconnection agreement, and to provide interconnection service under them to small generating facilities of no more than 20 megawatts.
December 30, 2005.
1. Under Federal Power Act (FPA) sections 205 and 206,
The Energy Policy Act of 2005 establishes new FPA section 211A, which gives the Commission the option to require an unregulated transmitting utility to provide transmission service. Energy Policy Act of 2005, Pub. L. 109-58, § 1231, 119 Stat. 594, 955 (2005). The Commission has not yet taken action under section 211A, but it is seeking comment on this new authority in Docket No. RM05-25-000, Preventing Undue Discrimination and Preference in Transmission Services, Notice of Inquiry, 70 FR 55796 (Sep. 23, 2005), FERC Stats. & Regs. ¶ 35,553 at P 34-36 (2005).
2. In this order, we grant rehearing in part, deny rehearing in part, and clarify certain determinations in Order No. 2006. As the Commission noted in that order, adoption of the SGIP and SGIA will reduce interconnection time and costs for Interconnection Customers and Transmission Providers, preserve reliability, increase energy supply where needed, lower wholesale prices for customers by increasing the number and types of new generation that will compete in the wholesale electricity market, facilitate development of non-polluting alternative energy sources, and help remedy undue discrimination, as FPA sections 205 and 206 require.
3. The Commission received nine timely requests for rehearing or for clarification of Order No. 2006. SoCal Edison also submitted a letter to the Commission noting typographical errors it had identified in the SGIP and SGIA. Certain of those errors are included in Appendix B. AWEA
4. Since Order No. 2006 was issued on May 12, 2005, the Commission has received a number of compliance filings by various Transmission Providers. In the course of evaluating those filings and review of the SGIP and SGIA, we have noted a number of typographical errors and minor clarifications.
5. In Order No. 2006, the Commission adopted the Small Generator Interconnection Procedures document (SGIP), which describes how the Interconnection Customer's Interconnection Request (
6. In Order No. 2006, the Commission also adopted the Small Generator Interconnection Agreement (SGIA), which is executed after the Interconnection Request has been successfully reviewed under the provisions in the SGIP. The SGIA (sometimes called the interconnection agreement or Agreement) describes the legal relationships of the Parties,
7.
8. Small Generator Coalition contends that requiring the Parties to split the costs of any dispute resolution disadvantages the Interconnection Customer because the Transmission Provider is likely to have significantly more resources than does the Interconnection Customer. Instead, the neutral party providing the dispute resolution service should be permitted to assign costs to each Party and to apportion greater cost responsibilities to a Party presenting frivolous or non-substantive arguments.
9. We are sensitive to concerns about the costs of resolving disputes, and Order No. 2006 does not mandate that the Parties use a particular process to settle their disputes. Instead, it provides alternative sources of dispute resolution services that are available to the Parties at little cost, such as the Commission's own Dispute Resolution Service, and encourages the Parties to use any state regulatory resources that may be available. By broadening the Commission's approach to dispute resolution and giving the Parties the flexibility to choose alternative dispute resolution services, Order No. 2006 gives the Parties the ability to limit costs and the problems Small Generator Coalition describes. Regarding frivolous or non-substantive arguments, the SGIA already requires the Parties to operate in good faith. Should one Party operate in bad faith by advancing frivolous arguments, the other Party may raise the issue with the Commission.
10.
11. MSAT asks the Commission to distinguish more clearly the roles of the Transmission Provider and the Transmission Owner. It argues that the lack of clarity is confusing and could slow down the interconnection process.
12. The definition of the term “Transmission Provider” in Order No. 2006 is the same as in Order No. 2003.
13.
14. Southern Company proposes revising section 2.2.1.2 to permit measurement at the substation “or applicable automatic sectionalizing device.” It claims this is simply a ministerial change that permits the peak load to be measured at the automatic sectionalizing device, which may not be located at the substation.
15. SGIP section 2.2.1.2 is a critical component of the screens, which were debated at great length in the stakeholder process.
16.
17. Southern Company argues that the special treatment afforded an affiliate of the Transmission Provider is discriminatory because it does not apply to other competitors. This puts the affiliate at a competitive disadvantage. The Commission is treating similarly situated entities differently, according to Southern Company, and the requirement should therefore be eliminated.
18. The treatment of affiliates in Order No. 2006 is identical to the requirement for Large Generating Facilities, which the Commission addressed in Order No. 2003-B.
19.
20. Southern Company asserts that the SGIP does not give the Transmission Provider enough time to perform the interconnection studies, especially if it must evaluate Interconnection Requests for numerous generators at one time.
21. Small Generator Coalition argues that the Interconnection Customer should pay for the feasibility study only if the study shows harm to the Transmission Provider's electric system; otherwise, the Transmission Provider should pay for the study. Without this allocation of cost responsibility, the Interconnection Customer could be subject to unneeded feasibility studies and excessive cost responsibility.
22. SoCal Edison seeks clarification that the Transmission Provider may restudy when a higher-queued Interconnection Customer drops out of the queue
23. Southern Company repeats the same arguments the Commission rejected in Order No. 2006. There, the Commission stated that the SGIP deadlines strike a balance between giving the Transmission Provider enough time to complete the studies and ensuring that the Small Generating Facility can be interconnected within a reasonable time.
24. Small Generator Coalition repeats its earlier argument that the Transmission Provider should pay for the feasibility study only if the study shows no adverse impact, and the Interconnection Customer should pay if it does. The Commission rejected this argument in Order No. 2006 and we deny this request for those same reasons.
25. Finally, there is no reason to reverse the prohibition in Order No. 2006 against the restudy of Small Generating Facility interconnections.
26.
27. Small Generator Coalition argues that using the maximum rated capacity of the Small Generating Facility is appropriate for the fault study, but not for the power flow analysis.
28. The Commission examined the issue of evaluating the Small Generating Facility using less than its maximum rated capacity at great length in Order No. 2006.
29.
30. SoCal Edison complains that five Business Days to prepare, review, and transmit an executable interconnection agreement to the Interconnection Customer is not enough time. According to SoCal Edison, there is no rationale for giving the Interconnection Customer six times as much time to sign and return the agreement as the Transmission Provider has to prepare it. It proposes that the Transmission Provider be given 20 Business Days to tender the executable SGIA to the Interconnection Customer.
31. SoCal Edison also complains that SGIP section 3.5.7 has no deadline for the Interconnection Customer to agree to pay for the Interconnection Facilities and Network Upgrades. It notes that the Transmission Provider may not tender the executable SGIA to the Interconnection Customer until the latter so agrees. According to SoCal Edison, the Interconnection Customer could withhold agreeing to pay for the Interconnection Facilities and Network Upgrades and keep its place in the queue indefinitely at the expense of lower-queued generators. SoCal Edison suggests that the Interconnection Customer be given 15 Business Days to (1) agree to pay for the Interconnection Facilities and Upgrades, (2) withdraw the Interconnection Request, or (3) ask the Transmission Provider to tender an unexecuted interconnection agreement with the Commission. In the alternative, the Commission should clarify that the Transmission Provider may develop consistent and nondiscriminatory internal policies to prevent stalling on the part of the Interconnection Customer.
32. We deny SoCal Edison's request to give the Transmission Provider additional time to tender an executable SGIA to the Interconnection Customer. It offers no explanation why a Transmission Provider cannot meet the deadline. In addition, the SGIA is a standardized document that only requires Attachments 2 through 6 to be completed before it is tendered to the Interconnection Customer. The information required in those attachments is readily available, being contained in the Interconnection Request and the recently-completed interconnection studies.
33. We also decline to establish a deadline for the Interconnection Customer to agree to pay for the Interconnection Facilities and Network Upgrades, withdraw its Interconnection Request, or ask that the unexecuted SGIA be filed with the Commission. While the Interconnection Customer could purposefully withhold its agreement to pay for the facilities as SoCal Edison hypothesizes, it is in the Interconnection Customer's best interests to get its project up and running as soon as possible. However, more importantly, once the facilities study is complete and the costs of the Interconnection Facilities and Upgrades are known, the Interconnection Customer needs time to evaluate the study results and finalize any necessary financing arrangements. Nonetheless, we expect the Parties to act in good faith during this phase of the interconnection process. If either Party believes that the interconnection process is not moving forward within a reasonable time during this waiting period, it may initiate dispute resolution or file a complaint with the Commission. In addition, the Transmission Provider may file the interconnection agreement in unexecuted form with the Commission, explaining that it was unable to obtain the Interconnection Customer's agreement to pay for the Interconnection Facilities and Upgrades.
34.
35. NRECA states that exempting wind generators from the SGIA's reactive power requirement inappropriately shifts the burden of preserving the reliability of the electric system to the Transmission Provider. It notes that Order No. 661
36. SoCal Edison also argues that wind powered Small Generating Facilities should have to supply reactive power. It argues that the Commission failed to consider (1) the aggregate reactive power effects of many wind-powered Small Generating Facilities interconnected in one area (
37. SGIA article 1.8.1 does not endanger reliability or shift the burden of preserving the reliability of the electric system from the Interconnection Customer to the Transmission Provider. This provision only addresses whether the Small Generating Facility itself must be designed to provide reactive power within a certain band. As noted in Order No. 661, “conventional generators inherently provide reactive power, whereas most induction-type generators used by wind plants currently can only provide reactive power through the addition of external devices.”
38. The provisions of SGIA article 1.8.1 notwithstanding, the SGIP still requires the Interconnection Customer to mitigate any adverse safety and reliability effects its Small Generating Facility may have on the Transmission Provider's Transmission System. The Small Generating Facility (whether wind-powered or not) must still pass either the SGIP's Study Process or technical screens before interconnecting. If additional facilities are needed to safely interconnect the Small Generating Facility with the Transmission Provider's electric system, whether due to safety or reliability (including reactive power) reasons, the Transmission Provider shall identify them and assign costs as specified in SGIA articles 4 and 5. This clarification responds to SoCal Edison's and NRECA's concerns.
39.
40. Southern Company claims that the Transmission Provider must be allowed to witness the testing of the Generating Facility and Interconnection Facilities, and argues that the Interconnection Customer should reimburse the Transmission Provider for its cost of witnessing testing; otherwise, those expenses will be subsidized by the Transmission Provider's other customers.
41. The SGIA provides that the Transmission Provider and the Interconnection Customer shall each be responsible for their own staff, equipment, and other costs associated with testing. The witnessing of testing is at the option of the Transmission Provider. While Southern Company may routinely witness such tests in its system, other Transmission Providers may review test reports at minimal cost without being actually present for the testing itself. We conclude that the witnessing of testing, if deemed necessary, is a routine responsibility of the Transmission Provider, and as such is an appropriate cost to be borne by all users of the Transmission System.
42.
43. Southern Company argues that the standards for parallel operation should be contained in the SGIA. Also, the Transmission Provider should not have to authorize the Small Generating Facility to begin operations without assurance that the Interconnection Customer has actually met those requirements. Southern Company notes that SGIA article 2.2.2 requires only that the Interconnection Customer notify the Transmission Provider that it has complied with the parallel operation requirements. It argues that the Transmission Provider should be allowed to reasonably confirm for itself that all the requirements have been met before it has to authorize operations.
44. We agree with Southern Company that all parallel operation requirements should be listed in the SGIA when practicable, and article 2.2.1 already states that the Transmission Provider “shall use Reasonable Efforts to list applicable parallel operation requirements in Attachment 5 of this Agreement.” Moreover, SGIA Attachment 5 specifies that the Transmission Provider “shall also provide requirements that must be met by the Interconnection Customer prior to initiating parallel operation with the Transmission Provider's Transmission System.” We believe that the SGIA already addresses Southern Company's concerns.
45. Southern Company also argues that having the Interconnection Customer notify the Transmission
46.
47. Southern Company argues that the SGIA should allow the Transmission Provider to permanently disconnect the Small Generating Facility if there is a termination. The Interconnection Customer should also be held responsible for all reasonable expenses the Transmission Provider incurs when permanently disconnecting the Small Generating Facility.
48. SGIA article 3.3.3 already allows the Transmission Provider to permanently disconnect the Small Generating Facility upon termination. This provision also states that termination does not relieve either Party of liabilities and obligations upon termination. However, Southern Company's petition highlights an oversight in the drafting of article 3.3. Accordingly, we are including a provision, consistent with article 2.5 of the LGIA, that provides that all disconnection costs are to be borne by the terminating Party, unless the termination results from the non-terminating Party's Default of the SGIA, or the non-terminating Party otherwise is responsible for the disconnection costs under the SGIA. This provision precludes cost recovery when the Transmission Provider causes the agreement to be terminated, because in those instances it may be appropriate for the Transmission Provider to bear some or all of the costs of disconnection. This responds to Southern Company's concern.
49.
50. Southern Company argues that this provision should state that the Small Generating Facility only has to be reconnected once the problem causing the disconnection has been fixed.
51. The SGIA requires the Parties to cooperate to restore the Small Generating Facility, as well as other facilities, to normal operation as soon as reasonably practicable. We do not see the provision as ambiguous. To clarify, however, the Transmission Provider is required to reconnect the Small Generating Facility after a temporary disconnection as soon as it can be reconnected safely and reliably consistent with system conditions and Good Utility Practice.
52.
53. North Carolina Commission states that the Commission erred by requiring a non-independent Transmission Provider to “socialize” Network Upgrades while allowing an RTO or ISO to use participant funding. The Commission should adopt a “but for” policy for both independent and non-independent Transmission Providers to ensure that the costs of Upgrades and expansions that are necessary to support new loads or demands on the Transmission Provider's Transmission System are borne by those causing the Upgrade or expansion to be undertaken. It asks that participant funding, including the use of a “but for” approach, not be limited to only RTOs or ISOs. North Carolina Commission states that, if the Commission is concerned that the cost allocation decisions of a non-independent entity could be unfair or subjective, any unfairness or subjectivity can be cured by the opportunity for review of the allocation process and its results by an independent third party, such as the Commission, without the involvement of an RTO or ISO.
54. Southern Company raises a number of issues that the Commission has addressed in other proceedings. Specifically, Southern Company states as follows: the “at or beyond” test has been vacated by the D.C. Circuit Court of Appeals
55. Small Generator Coalition asks the Commission to provide that an Interconnection Customer willing to interconnect its Small Generating Facility ahead of a higher-queued applicant may do so without paying system upgrade costs until the higher-queued applicant's interconnection actually makes the system upgrades necessary. The Final Rule should not let the Transmission Provider demand system upgrade costs from the Interconnection Customer when the interconnection is made based on a prior claim to system transfer capacity by a generator that is higher in the queue. Small Generator Coalition also asks the Commission to provide that when the facilities study identifies the Upgrades needed to interconnect the Small Generating Facility, the Transmission Provider must agree to a not-to-exceed estimate of those costs, subject if necessary to an inflation adjustment, so that the Interconnection Customer will have financial certainty for its project. This keeps the Transmission Provider from using its leverage to extract unreasonable payments when the Upgrades are not constructed until years after the actual interconnection.
56. Small Generator Coalition also says that an Interconnection Customer interconnecting its Small Generating Facility with the Transmission Provider's Distribution System should have the same protection against paying for Upgrades that benefit others that it would have if it interconnected with the Transmission System. The costs of Upgrades should be assigned based on the benefits from those Upgrades, regardless of whether the portion of the system on which the Upgrades are made is deemed to be transmission or distribution. Small Generator Coalition argues that, as with Network Upgrades, Distribution Upgrades may offer benefits to other customers or to the Transmission Provider's electric system.
57. SoCal Edison notes that, in Order No. 2003-B, the Commission held: “In the case of an Affected System that is jointly owned, it is the responsibility of the Affected System Operator to provide the credits and seek reimbursement for any amounts that it believes it is owed by the other owners.”
58. The Commission addressed North Carolina Commission's arguments in Order Nos. 2003 and 2003-A.
59. The Commission addressed all of the issues raised by Southern Company in the Large Generator Interconnection proceeding and will not repeat those conclusions here.
60. North Carolina Commission also contends that the Interconnection Customer is protected from unfair conduct because it has recourse to the Commission. However, as the Commission stated in Order No. 2003-A,
61. Small Generator Coalition seeks assurance that an Interconnection Customer willing to interconnect its Small Generating Facility ahead of a higher-queued applicant may do so without paying system upgrade costs until the higher-queued applicant's interconnection actually makes the
62. Small Generator Coalition also proposes that the Transmission Provider commit to a not-to-exceed estimate of Upgrade costs. We deny this request. A basic tenet of the Commission's policy for the recovery of interconnection costs is that the Interconnection Customer pays the actual costs of Interconnection Facilities and Distribution Upgrades and initially funds the cost of Network Upgrades. However, we recognize that postponing the construction of Upgrades, and the possibility that a generator higher in the queue could drop out, can create uncertainty for the Interconnection Customer. Therefore, as in the Large Generator Interconnection proceeding,
63. Small Generator Coalition argues that Distribution Upgrades may offer benefits to other customers or to the Transmission Provider's electric system that should be reflected by a contribution from other customers or the Transmission Provider toward the costs of the Upgrades. We disagree for several reasons. First, as stated in Order No. 2003, distribution facilities typically deliver electricity to particular localities, and do not serve a bulk delivery service for the entire system, as is the case for transmission facilities.
64. In response to SoCal Edison's request, we clarify that the operator of a jointly-owned Affected System does not have to pay credits for the portion of the facilities that it does not own. The Commission addressed this issue in Order No. 2003-C,
65.
66. SoCal Edison argues that the Transmission Provider should have at least six months (and preferably 12 months) to prepare the final accounting report because some vendors do not supply invoices until several months after the work is completed. LGIA article 12.2, in contrast, gives the Transmission Provider six months to prepare a final cost accounting for a Large Generating Facility. SoCal Edison contends that the final accounting deadline for all size projects should be the same.
67. SGIA article 6.1 requires the Transmission Provider to bill the Interconnection Customer on a monthly basis as costs are incurred, or as otherwise agreed to by the Parties, and the Interconnection Customer has 30 calendar days to pay the bill. SoCal Edison does not claim that it cannot process vendor invoices on a monthly basis, and we see no reason why the final accounting should be especially difficult. However, we do recognize that a vendor may, infrequently, cause the final accounting report to be delayed. As with all other actions under the SGIA, we expect the Transmission Provider to use Reasonable Efforts to obtain timely invoices from its vendors. When the delay is outside the Transmission Provider's control, however, the Parties may develop a revised schedule for that portion of the final accounting that is still outstanding. Thus, there is no need to extend the deadline for submitting all final accounting reports to accommodate the occasional delay.
68.
69. Southern Company requests that SGIA article 6.3 specify that the Interconnection Customer not just provide security, but maintain it for the duration of the Interconnection Agreement. Additionally, the SGIA should not require the Transmission Provider to reduce the required security until 90 days after the Transmission Provider receives payment. This, Southern Company argues, “is necessary to reflect the commercial reality that payments have not really been ‘made’ to the transmission provider * * * until such time as such
70. SGIA article 6.3.2 states that any letter of credit or surety bond provided by the Interconnection Customer “specify a reasonable expiration date.” Thus, Southern Company's concern that the Interconnection Customer would not have to maintain the security is misplaced, as the article requires that “sufficient” security be maintained for a “reasonable” period of time.
71. We are also not convinced that the Transmission Provider should be able to delay reducing the Interconnection Customer's security to avoid the risk posed by a bankruptcy court deciding that a payment to the Transmission Provider was “preferential” or otherwise improper. The risk to the Transmission Provider is outweighed by the additional burden placed on the Interconnection Customer.
72.
73. Southern Company proposes that the Interconnection Customer be allowed to assign the SGIA as collateral only with the written consent of the Transmission Provider. Otherwise, an assignee or purchaser in foreclosure could assume the rights under the agreement without also assuming the obligations. Southern Company also argues that without approval by the Transmission Provider, the assignee would not have to cure any existing defaults. It urges limiting assignment to “eligible customers” who can carry out the Interconnection Customer's obligations under the SGIA.
74. Southern Company argues that the Transmission Provider should be indemnified by the Interconnection Customer and the Interconnection Customer's assignee for any costs or expenses associated with the assignment.
75. Southern Company also requests clarification of the conditions under which the Transmission Provider must recognize foreclosure rights and assignments, including the possibility of multiple assignments. It notes that the Uniform Commercial Code does not cover such a situation. The SGIA should specify that the Transmission Provider “not hav[e] received a contrary court order or notice of an unresolved contrary claim” before being required to accept an assignment. It also asks that the Transmission Provider be able to stop cooperating with the assignee if the Transmission Provider receives a contrary court order or notice of unresolved claim.
76. Finally, Southern Company proposes that the SGIA require the Interconnection Customer to promptly notify the Transmission Provider of any assignment.
77. Southern Company argues that the Interconnection Customer should obtain the Transmission Provider's consent before assigning its rights under the SGIA as security. As explained in Order No. 2003-A for Large Generating Facilities, such assignments are permitted to allow the Interconnection Customer to better secure financing because the Transmission Provider faces little to no risk from an assignment to an affiliate having an equal or superior credit rating.
78. As to Southern Company's issue of competing assignments or court orders regarding the assignment, the SGIA specifies that the laws of the state in which the Point of Interconnection is located govern, so any contractual dispute regarding foreclosure or assignment is to be settled under state contract law.
79. Finally, Southern Company notes that SGIA article 7.1 does not require the assigning Party to notify the other Party of an assignment under certain circumstances. We agree that the assigning Party should notify the other Party of any assignment and are so revising SGIA article 7.1.1. This provision is also consistent with LGIA article 19.1.
80.
81. Southern Company argues that the Interconnection Customer should have to maintain reasonable amounts of general liability, hazard, employer's liability, and worker's compensation insurance. It notes that several states where it operates do not require that businesses maintain such types of insurance.
82. Small Generator Coalition points out that section 7.0 of the 10 kW Inverter-Based Terms and Conditions Document,
83. The SGIA's insurance requirements are sufficient to protect the interests of the Transmission Provider. General liability insurance is the broadest type of insurance and supplements any insurance that may be mandated by state law. Additionally, not all types of insurance are required for all Small Generating Facilities. For instance, some facilities may not have any employees and, thus, not require certain types of insurance such as worker's compensation. Finally, we agree that section 7.0 of the 10 kW Inverter-Based Interconnection Agreement is inconsistent with Order No. 2006, and are amending that provision accordingly.
84.
85. Southern Company argues that the SGIA should contain a generating balancing service provision. In the alternative, the Commission should clarify that the Transmission Provider may require the Interconnection Customer to enter into a generator balancing service agreement that is separate from the SGIA.
86. We are not including a generator balancing provision in the SGIA for the reasons set forth in Order Nos. 2003-B and 2006.
87.
88. Several petitioners
89. NARUC argues that it is not always clear whether a particular facility is covered by an OATT and that a Transmission Provider's accounting system may not so indicate. NARUC notes that costs for distribution facilities are generally recovered under the OATT on a rolled-in basis. It fears that this may lead the Commission to find that all of a Transmission Provider's distribution facilities are covered by the OATT. NARUC claims that merely including a facility in an OATT does not give the Commission jurisdiction over that facility.
90. Con Edison asserts that Order No. 2006 impermissibly bases jurisdiction on the “intent” of a generator, rather than its actions. Because jurisdiction can change based on the use of a facility or the generator's intent, the Parties would not know whether Order No. 2006 applies until after the fact. Con Edison poses a hypothetical case where a generator intending to sell at wholesale interconnects with a previously state jurisdictional line under state rules. A second generator interconnecting with the same line, but not seeking to sell power at wholesale, would be obliged to interconnect under the Commission's rules. Thus, Con Edison contends, the generator seeking to sell at wholesale interconnects under state law, while the generator seeking to sell at retail would be forced to interconnect under federal law. Similarly, if the first generator decides not to sell at wholesale, the second generator would have to interconnect under state rules, even if it intends to sell at wholesale.
91. Con Edison, NARUC, NRECA, and Southern Company also assert that Order No. 2006 contradicts the “seven factor test” laid out in Order No. 888 for distinguishing transmission facilities from local distribution facilities. NRECA argues that jurisdiction over a wholesale transaction does not confer jurisdiction over the local distribution facility itself or over an interconnection with such a facility.
92. Southern Company argues that section FPA 201(a) limits the Commission's jurisdiction to matters “which are not subject to regulation by the States.”
93. Conversely, Small Generator Coalition and SoCal Edison argue that the Commission should exercise jurisdiction over all interconnections for selling power at wholesale and should not limit application of this rule to facilities covered by an OATT at the time interconnection service is requested. Small Generator Coalition argues that the Commission's jurisdiction over a wholesale sale includes jurisdiction over the interconnection necessary to facilitate the sale. It proposes that the Commission clarify that if the Transmission Provider has an OATT, all interconnections made to sell power at wholesale are subject to Commission jurisdiction, whether or not the specific facility being interconnected with is jurisdictional or not. Otherwise, Small Generator Coalition argues, the Transmission Provider has unfettered discretion to determine which distribution facilities are covered by its OATT at the time interconnection service is requested.
94. The Commission's assertion of jurisdiction in Order No. 2006 is identical to the jurisdiction asserted in Order Nos. 2003 and 888.
There is no intent to expand the jurisdiction of the Commission in any way; if a facility is not already subject to Commission jurisdiction at the time interconnection is requested, the Final Rule will not apply. Thus, only facilities that already are subject to the Transmission Provider's OATT are covered by this rule.[
95. Since the Commission issued Order No. 2006 in May 2005, the third rehearing of the Large Generator Interconnection final rule, Order No. 2003-C, was issued. That order further discussed the Commission's jurisdiction over generator interconnections.
96. Several petitioners suggest that the Commission's exercise of jurisdiction is contrary to the seven factor test laid out in Order No. 888 to differentiate transmission facilities from local distribution facilities. Petitioners misapply the seven factor test. As the Commission has explained, “[t]he discussion of transmission and [local] distribution classification (and the use of the seven factor test) in Order No. 888 was in the context of unbundled retail transmission service [and] determining which facilities were for the local distribution segment of unbundled retail services.”
97. NARUC also argues that it may be unclear whether a particular facility is covered by an OATT. In addressing a similar comment in Order No. 2003-A, the Commission noted that “in most cases, there will be no controversy about whether a facility is under the OATT [and] the Transmission Provider [shall] make this information available to the Interconnection Customer during the Scoping Meeting or earlier.”
98. NARUC cites
99. Con Edison is correct that an Interconnection Customer interconnecting its generator with an electric facility used exclusively to make retail sales, but not currently available for transmission service under an OATT, will do so under state interconnection rules. It does not matter whether the Interconnection Customer intends to sell power at wholesale or retail. However, Con Edison appears to misunderstand what would happen if the Interconnection Customer seeks to interconnect with a facility carrying both energy sold at wholesale and energy sold at retail and plans to sell power only at retail. In that case, because there is no wholesale sale involved, the interconnection would be subject to the state's rules.
100.
101. NARUC, supported by Con Edison, argues that the Commission's assertion of jurisdiction over a QF selling power to an entity other than the host utility is overly broad in that it extends jurisdiction over QFs selling power, at wholesale
102. NARUC is correct that a QF selling at retail is not eligible to interconnect under either Order No. 2003 or Order No. 2006. Under the Public Utility Regulatory Policies Act of 1978,
103.
104. CT DPUC, NARUC, and North Carolina Commission ask the Commission to grandfather both existing and future state-run interconnection rules. CT DPUC points to the extensive efforts in several states to develop and encourage the interconnection of small generators. It argues that Order No. 2006 could be read as superseding Connecticut's own small generator interconnection rules. NARUC and the North Carolina Commission express similar concerns and argue that Order No. 2006 will encourage forum-shopping and inefficient siting decisions. They also ask the Commission to clarify that existing interconnections accomplished under state rules are grandfathered. Finally, the Commission should grant deference to future state interconnection rules.
105. Order No. 2006 in no way affects rules adopted by the states for the interconnection of generators with state-jurisdictional facilities. We expect that the vast majority of small generator interconnections will be with state jurisdictional facilities. The Commission encourages development of state interconnection programs, and interconnections with state jurisdictional facilities continue to be governed by state law. However, if an Interconnection Customer seeks to interconnection with a facility under federal jurisdiction, a state program cannot displace federal rules for interconnections. Furthermore, the Commission has attempted to minimize the inconstancies between federal and state interconnection rules by adopting many of the provisions suggested by NARUC and other state bodies, and encouraging the states to consider using the streamlined SGIP and SGIA for their own use. Finally, we emphasize that Order No. 2006 and this order do not affect any existing interconnection agreements, whether they were entered into under state or federal law.
106.
107. NRECA repeats here the same request it made in the Large Generator Interconnection proceeding that the Commission create a safe harbor to allow non-jurisdictional utilities to avoid the sometimes cumbersome process of interconnecting new generators under FPA sections 210, 211, and 212. NRECA also points out that many cooperatives are not “transmitting utilities” as defined in the FPA and that section 211 only applies to interconnections with “transmitting utilities.” Specifically, NRECA asks the Commission to clarify that a cooperative may settle a section 211 case and agree to provide wheeling services without that settlement being considered a “voluntary” service offering.
108. As the Commission stated in Order No. 2006, FPA section 211 already allows a non-public utility to safeguard its non-jurisdictional status. We see no need to create a second method of doing the same thing. NRECA also asks whether a cooperative may settle a section 211 case and agree to provide wheeling services without that settlement being considered a “voluntary” service offering. That issue is outside the scope of this rulemaking. In this rulemaking proceeding, the Commission is acting under its FPA section 205 authority, and does not address obligations under sections 210, 211, or 212.
109. Order No. 2006 contains information collection requirements for which the Commission obtained approval from the Office of Management and Budget (OMB). The OMB Control Number for this collection of information is 1902-0203. This order denies most rehearing requests, clarifies the provisions of Order No. 2006, and grants rehearing on only three minor issues. This order does not make substantive modifications to the Commission's information collection requirements and, accordingly, OMB approval for this order is not necessary. However, the Commission will send a copy of this order to OMB for informational purposes.
110. In addition to publishing the full text of this document in the
111. Changes to Order No. 2006 made in this Order on Rehearing will become effective on December 30, 2005.
Electric power rates, Electric utilities, Reporting and recordkeeping requirements.
By the Commission.
The Appendices will not be published in the
Department of Veterans Affairs.
Final rule.
This document amends VA medical regulations to codify VA policy regarding advance health care planning. The final rule sets forth a mechanism for the use of written advance directives, i.e., a VA living will, a VA durable power of attorney for health care, and a State-authorized advance directive. The final rule also sets forth a mechanism for honoring verbal or non-verbal instructions from a patient when the patient is admitted to care when critically ill and loss of capacity may be imminent
Effective Date: December 30, 2005.
Ruth Cecire, Ph.D., Policy Analyst, Ethics Policy Service, National Center for Ethics in Health Care (10E), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; 202-501-0364 (this is not a toll-free number).
In a document published in the
This final rule sets forth a mechanism for the use of written advance directives, i.e., a VA living will, a VA durable power of attorney for health care, and a State-authorized advance directive. The rule also sets forth a mechanism for honoring verbal or non-verbal instructions from a patient when the patient is admitted to care when critically ill and loss of capacity may be imminent
One commenter requested clarification regarding proposed § 17.32(h)(2), which describes “Instructions in Critical Situations,” particularly with respect to the meaning of “non-verbal instructions.” The commenter suggests that “specific guidelines must be established” to define what would constitute acceptable instructions. We agree with the commenter's point that this paragraph could be more explicit, but do not believe it would be possible, for example, to specify all of the possible variety and appearances in the way that a patient who is unable to speak or write might use to communicate. In the final rule we are modifying this paragraph to state more clearly the circumstances and types of instructions to which this paragraph would apply. Those changes include adding that the patient must have decision-making capacity and the patient's verbal or non-verbal instructions must be unambiguous.
A second commenter suggested that the language in proposed § 17.32(h)(1), which describes “Witnesses,” was overly restrictive, and could be interpreted to prevent appropriate individuals from serving as a witness. The commenter stated: “Since a witness” sole function is to attest to the fact that the witness saw the patient sign the VA Living Will or VA Durable Power of Attorney for Health Care, the general rule should be that a witness' potential conflict of interest in making that attestation may be raised by any person seeking to challenge the validity and enforceability of the VA Living Will or VA Durable Power of Attorney for Health Care, as part of an attempt to discredit the truth of the witness' attestation.” We agree and in the final rule are modifying this paragraph to make the requirements less restrictive. However, we continue to think it best, in order to avoid even the appearance of a conflict of interest, that persons named in the patient's will, or as health care agent in the advance directive, or financially responsible for the patient's care, should not sign as witnesses on the advance directive form. In the final rule we are removing the proposed rule's requirement that the witness not be “entitled to, or a claimant against, any portion of the patient's estate; or be financially responsible for the patient's care” and replacing it with the requirement that the witness not “to the witnesses” knowledge be named in the patient's will, appointed as health care agent in the advance directive, or financially responsible for the patient's care.” The VA Advance Directive: Living Will and Durable Power of Attorney for Health Care form expressly provides that by signing the form, the witness attests to the fact that he or she lacks such knowledge. In the final rule, we are also removing, because we have concluded that it is unnecessarily restrictive, the proposed rule's requirement that VA employees of the Chaplain Service, Psychology Service, Social Work Service, or nonclinical employees (e.g., Medical Administration Service, Voluntary Service or Environmental Management Service) may serve as witnesses only “when other witnesses are not reasonably available.”
The third commenter expressed concern that the proposed rule “is supposed to address VA employees’ responsibilities in following patient's expressed desires in end-of-life decisions,” but did not go far enough to clarify the weight carried by the patient's expressed desires, e.g., when there is a dispute about the legitimacy of a State-authorized advance directive. Such a dispute might occur, for example, if the veteran completed the State-authorized advance directive while living in one State and later relocated to another jurisdiction. It is our intention that the reference to “applicable State law” in the definition of State-authorized advance directive be broadly interpreted for the convenience and benefit of VA patients. Indeed, the chief purpose of the rule is to assure that VA employees and surrogates comply with patients' clearly expressed wishes to the greatest extent possible. We are therefore in the final rule specifying that, “[f]or the purposes of this paragraph and paragraph (h) of this section, ‘applicable State law’ means the law of the State where the advance directive was signed, the State where the patient resided when the advance directive was signed, the State where the patient now resides, or the State where the patient is receiving treatment. VA will resolve any conflict between those State laws regarding the validity of the advance directive by following the law of the State that gives effect to the expressed wishes in the advance directive.” We also are making changes in the opening paragraph of § 17.32(h) to clarify that “[a]n advance directive that is valid in one or more States under applicable State law, as defined in paragraph (a) of this section, will be recognized throughout the VA health care system.”
We are also adding in the final rule nonsubstantive changes for purposes of clarification. These include adding a revision of the authority citation for § 17.32 to reflect that this rule is issued under the authority of 38 U.S.C. 7331 through 7334.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.
Two collection of information requirements that are related to 38 CFR 17.32 are currently approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521). OMB has approved collection of information requirements for § 17.32 under OMB control number 2900-0583. In addition, OMB has approved the information collection requirements in VA Form 10-0137, VA Advance Directive: Living Will and Durable Power of Attorney for Health Care, under OMB control number 2900-0556. The references in the final rule to a VA Living Will or to a VA Durable Power of Attorney for Health Care are to that form. No new collections of information are associated with this final rule.
This document has been reviewed by the Office of Management and Budget under Executive Order 12866.
The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule will affect only individuals and will not directly affect any small entities.
There are no applicable Catalog of Federal Domestic Assistance program numbers.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
38 U.S.C. 501, 1721, and as stated in specific sections.
The revisions and additions read as follows:
(a) * * *
(i)
(ii)
(iii)
(h)
(1)
(2)
(3)
(4)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the New Jersey State Implementation Plan (SIP) for ozone concerning the control of volatile organic compounds. The SIP revision consists of amendments to Subchapter 23 “Prevention of Air Pollution From Architectural Coatings” of 7:27 of the New Jersey Administrative Code, which are needed to meet the shortfall in emissions reduction identified by EPA in New Jersey's 1-hour ozone attainment demonstration SIP. The intended effect of this action is to approve a control strategy required by the Clean Air Act, which will result in emission reductions that will help achieve attainment of the national ambient air quality standard for ozone.
EPA has established a docket for this action under Regional Material in EDocket (RME) Docket ID Number R02-OAR-2005-NJ-0002. All documents in the docket are listed in the Regional Material in EDocket (RME) index at
Paul Truchan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10278, (212) 637-3711.
EPA is approving a revision to New Jersey's ozone State Implementation Plan (SIP) submitted on July 28, 2004. This SIP incorporates adopted rule amendments to Title 7, Chapter 27, Subchapter 23 “Prevention of Air Pollution from Architectural Coatings” which was adopted on May 21, 2004. This adoption was published in the New Jersey Register on June 21, 2004 and became effective on July 20, 2004. The Subchapter 23 amendments are applicable to the entire State of New Jersey. The reader is referred to the proposed rulemaking (July 21, 2005, 70 FR 42019) for additional details.
Subchapter 23 contains provisions allowing for limited exemptions and variances where such exemptions and variances have been approved by other states with equivalent regulations. While these provisions are acceptable, each specific application of those provisions will only be recognized as meeting Federal requirements after the specific exemption or variance is approved by EPA as a SIP revision. Therefore, EPA is approving the regulation as part of the New Jersey SIP with the exception that any specific application of provisions associated with variances or exemptions, must be submitted as SIP revisions.
EPA received no comments on the proposal.
When EPA evaluated New Jersey's 1-hour ozone attainment demonstrations, EPA determined that additional emission reductions were needed for the State's two severe nonattainment areas in order for the State to attain the 1-hour ozone standard with sufficient surety (December 16, 1999, 64 FR 70380). EPA provided that the states in the Ozone Transport Region could achieve these emission reductions through local or regional control programs. New Jersey decided to participate with the other states in the Northeast in an Ozone Transport Commission (OTC) regulatory development effort which developed six model control measures. This rulemaking incorporates one of the OTC model control measures into the New Jersey ozone SIP: architectural coatings. The emission reductions from this control measure will provide a portion of the additional emission reductions needed to attain the 1-hour ozone standard. The emission reductions from this measure will also help to attain the 8-hour ozone standard.
EPA has evaluated the submitted Subchapter 23 submission for consistency with EPA regulations, policy and guidance. Consistent with EPA policy and guidance, EPA is approving the rule submitted as part of the New Jersey SIP with the exception that any specific application of provisions associated with variances or exemptions, must be submitted as SIP revisions for EPA approval. This rule will strengthen the SIP by providing for additional VOC reductions. Accordingly, EPA is approving the Subchapter 23 revisions as adopted on May 21, 2004 and effective on July 20, 2004 with the limitation identified above.
Statutory and Executive Order Reviews 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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(78) Revisions to the State Implementation Plan submitted on July 28, 2004 by the State of New Jersey Department of Environmental Protection that establishes an expanded control program for architectural coatings.
(i) Incorporation by reference:
(A) Regulation Subchapter 23 of Title 7, Chapter 27 of the New Jersey Administrative Code, entitled “Prevention of Air Pollution From Architectural Coatings,” adopted on May 21, 2004 and effective on July 20, 2004.
(ii) Additional material:
(A) Letter from State of New Jersey Department of Environmental Protection dated July 28, 2004, requesting EPA approval of a revision to the Ozone SIP which contains amendments to the Subchapter 23 “Prevention of Air Pollution From Architectural Coatings.”
Environmental Protection Agency (EPA).
Direct final rule.
The EPA is taking direct final action to approve a State Implementation Plan revision, submitted by the California Air Resources Board on November 8, 2004, that includes the
Also, in this action, EPA is notifying the public that we have found that the carbon monoxide motor vehicle emissions budgets contained in the submitted maintenance plan are adequate for conformity purposes. As a result of this finding, the various metropolitan planning organizations in the ten planning areas and the U.S. Department of Transportation must use the CO motor vehicle emissions budgets from the submitted maintenance plan for future conformity determinations.
Lastly, EPA is correcting certain errors made in our 1998 final rule approving California's redesignation request for these ten planning areas.
This rule is effective on January 30, 2006 without further notice, unless EPA receives adverse comments by December 30, 2005. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number R09-OAR-2005-CA-0010, by one of the following methods:
1. Agency Web site:
2. Federal eRulemaking Portal:
3. E-mail:
4. Mail or deliver: Toby Tiktinsky (Air-2), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Toby Tiktinsky, EPA Region IX, (415) 947-4223,
Throughout this document, the terms “we,” “us,” and “our” refer to U.S. EPA.
Under section 110(k)(3) of the Clean Air Act (CAA or “Act”), we are approving a State Implementation Plan (SIP) revision submitted by the California Air Resources Board (ARB) on November 8, 2004. This SIP revision consists of the
In connection with the MVEBs, we are denying a request by the California Air Resources Board for EPA to limit the duration of our approval of the budgets. Also, in this notice, EPA is notifying the public that we have found that the MVEBs contained in the submitted maintenance plan are adequate for transportation conformity purposes.
Lastly, we are also correcting, pursuant to section 110(k)(6) of the Act, certain errors that we made in our 1998 final rule approving California's redesignation request for these ten planning areas.
All ten planning areas that are the subject of this rulemaking were originally designated as nonattainment areas for the CO National Ambient Air Quality Standards (NAAQS) in 1978.
Once an area achieves the NAAQS, and the area demonstrates in a maintenance plan that it can continue to meet the air quality standards, the State can request that EPA redesignate the area to attainment. Before an area can be redesignated to attainment, EPA must ensure the maintenance plan meets the criteria established in section 175A of the CAA. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment.
In 1996, California submitted the
One of the control measures that the 1996 CO Maintenance Plan relies upon is the State's wintertime oxygenated gasoline requirement. Due to concerns over the effects of the predominant oxygenate used to comply with the wintertime gasoline requirements, methyl tertiary butyl ether (MTBE), on water quality, the ARB rescinded the wintertime oxygenated gasoline requirement as it relates to the ten planning areas covered by the 1996 CO Maintenance Plan. In November 1998, ARB amended the 1996 CO Maintenance Plan to remove the CO emissions reductions benefits associated with the wintertime oxygenated gasoline requirement, and submitted the revised maintenance plan,
Section 175A(b) of the Act requires the State to submit, eight years after redesignation of any area to attainment, an additional revision of the SIP that provides for maintenance of the applicable NAAQS for the 10-year period following the initial maintenance period. ARB's current submission updates the maintenance plan to cover the remainder of the twenty year maintenance period (1998 to 2018) required by the CAA and is intended to satisfy the section 175A(b) requirement for a subsequent maintenance plan.
ARB held a public hearing on the 2004 CO Maintenance Plan on July 22, 2004 and adopted the plan on the same day. Thirty days prior to that date, ARB arranged for publication of notices of the July 22, 2004 public hearing in major newspapers that circulate in each of the ten planning areas. By letter dated November 8, 2004, ARB submitted the 2004 CO Maintenance Plan for approval by EPA as a revision to the California SIP. As enclosures to the November 8, 2004 letter, ARB provided evidence of adoption (ARB resolution 04-20), the necessary legal authority under State law to adopt and implement the plan, copies of public hearing notices in which ARB was to address the contents of the plan revision, and minutes from the July 22, 2004 public hearing produced by a certified court reporting service. ARB is the Governor's designee for submitting SIP revisions.
The 2004 CO Maintenance Plan provides a summary of ambient CO concentration data collected within the ten planning areas since the areas attained the CO NAAQS. The data, which is summarized in Table 1 below, indicate that the CO NAAQS has been maintained in the ten planning areas since the mid-1990s, that design values are currently well below the CO NAAQS, and that, with one exception, there is a continuing downward trend in the CO design values in these areas.
In developing plans for improving or maintaining air quality under the CAA, regions must estimate the total emissions from motor vehicles. These estimates act as a budget or ceiling for emissions from motor vehicles. EPA evaluates these budgets to ensure that current and future motor vehicle emissions will not prevent a region from attaining or maintaining the NAAQS. Metropolitan Planning Organizations (MPOs) must ensure that transportation plans and programs do not lead to increases in motor vehicle emissions that would exceed the established budgets and, consequently, hinder a region from attaining or maintaining the NAAQS.
We are evaluating this SIP revision submittal under sections 110 and 175A of the Act.
Section 110(k) of the Act requires EPA to approve, disapprove, or conditionally approve all SIP submittals found or deemed to be complete. As noted above, ARB's SIP submittal containing the 2004 CO Maintenance Plan was deemed complete by operation of law.
Section 110(l) of the Act requires that each SIP revision submitted by a State be adopted by such State after reasonable notice and public hearing. As noted above, ARB adopted the 2004 CO Maintenance Plan on July 22, 2004 after having provided for reasonable notice and a public hearing. We find the public process ARB used to develop and adopt this SIP revision to be acceptable under section 110(l) of the Act.
Section 110(l) also states that EPA shall not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. We evaluate the potential for this SIP revision to interfere with continued maintenance in Section III.B (“Maintenance Demonstration”) of this notice in the context of approving the wintertime oxygenated gasoline requirement as a contingency measure.
Section 175A(b) of the Act requires the State to submit, eight years after redesignation of any area to attainment, an additional revision of the SIP that provides for maintenance of the applicable NAAQS for the 10-year period following the initial maintenance period. Section 175A(d) requires that plan revisions submitted under section 175A contain such contingency provisions as EPA deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such contingency provisions must include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area.
Maintenance plans submitted under section 175A of the Act should include the following core provisions: An attainment inventory, a maintenance demonstration, commitment to continue operating an appropriate monitoring network, commitment to verify continued attainment, and a contingency plan.
For maintenance plans, a State should develop a comprehensive, accurate inventory of actual emissions for an attainment year to identify the level of emissions which is sufficient to maintain the NAAQS. A State should develop these inventories consistent with EPA's most recent guidance on emissions inventory development.
The 1996 CO Maintenance Plan included attainment inventories for each of the ten planning areas. As part of the 2004 CO Maintenance Plan, ARB updated the emissions inventories for year 1993, which was the common attainment year for all ten planning areas in the 1996 CO Maintenance Plan, to reflect better calculation methods and emissions factors. ARB also developed a CO emissions inventory for a more recent attainment year, 2003. Table 2 presents a summary of the 2004 CO Maintenance Plan's emissions estimates for these two attainment years (1993 and 2003) as well as the plan's updated projections of emissions for 2010 (the horizon or out-year of the 1996 CO Maintenance Plan) and a projection of emissions for 2018 (the out-year of the 2004 CO Maintenance Plan). Table 2 shows wintertime seasonal CO emissions decreasing steadily over the next thirteen years. ARB attributes the continuing decline in emissions, despite growth in population and vehicle miles traveled (VMT), to the benefits of increasingly tighter emissions standards for new engines, fuel requirements, and turnover of the vehicle fleet to lower-emitting models.
Appendix B of the 2004 CO Maintenance Plan shows emission inventories by major source category. ARB prepared the motor-vehicle portion of the emissions inventories by using the current version of California's motor
EPA has reviewed the emissions inventories included in the 2004 CO Maintenance Plan and the related emissions inventory preparation documentation and concludes that the inventories are comprehensive and reflect acceptable methods and emissions factors and that the inventories present reasonably accurate estimates of actual and projected CO emissions in the ten planning areas.
Generally, a State may demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emissions rates will not cause a violation of the NAAQS. For areas that are required under the Act to submit modeled attainment demonstrations, the maintenance demonstration should use the same type of modeling. In areas where modeling is not required, the State may rely on the attainment inventory approach. For subsequent maintenance plans, to comply with section 175A(b) of the Act, the State's maintenance demonstration must extend 10 years after the expiration of the 10-year maintenance period covered by the initial maintenance plan.
In the 1996 CO Maintenance Plan, ARB provided maintenance demonstrations (through 2010) for nine of the 10 areas based on the attainment inventory approach and provided a maintenance demonstration (through 2010) based on modeling (rollback method) for the one area (Fresno) for which modeling had been required for attainment demonstration purposes under the Act.
In the 2004 CO Maintenance Plan, ARB updated the emissions inventories for all ten areas (
We find the maintenance demonstrations for the ten planning areas in the 2004 CO Maintenance Plan to be acceptable for the purposes of CAA section 175A(b). Further, we find that, based on the maintenance demonstrations contained in the 2004 CO Maintenance Plan, the revision in the status of one of the principal control measures relied upon in the 1996 CO Maintenance Plan, the wintertime oxygenated gasoline requirement, from “active” status to “contingent” status is approvable under section 110(l) because it will not interfere with continued maintenance of the CO NAAQS in the ten planning areas.
Once an area has been redesignated, the State should continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. The maintenance plan should contain provisions for continued operation of air quality monitors that will provide such verification. The maintenance plan should also indicate how the State will track the progress of the maintenance plan, such as by periodically updating the emissions inventory.
In the 1996 CO Maintenance Plan, ARB indicates that it intends to continue to comply with the monitoring criteria set forth in 40 CFR part 58, and that it will annually review data from the two most recent, consecutive years in order to verify continued attainment of the CO NAAQS. In the 2004 CO Maintenance Plan, ARB reiterates its intent to continue to collect air quality data and to review data on an annual basis from the two most recent consecutive years to verify continued attainment of the CO NAAQS.
Based on the compilation of information in appendix A of the 2004 CO Maintenance Plan, we note that, in the aggregate, ten CO monitoring sites in the ten planning areas have closed since redesignation of these areas to attainment for the CO NAAQS, but 33 sites remain open with at least one CO monitoring site continuing to operate in each planning area, except for the Lake Tahoe North Shore Area. The reduction in the number of CO monitoring sites is acceptable in light of the sharp decline in maximum CO concentrations in each of the ten planning areas and the need to shift resources to address other air quality priorities. We also believe that the lack of a CO monitoring site in the Lake Tahoe North Shore Area is acceptable given the very low CO concentrations measured there. In addition, audits of a number of the
Under EPA's Consolidated Emissions Reporting Rule, published in the
We find ARB's stated intention to continue to collect air quality data and to verify continued attainment of the CO NAAQS to be acceptable for the purposes of CAA section 175A(b) based on our conclusion that ARB has consistently operated its monitoring networks in compliance with 40 CFR part 58 and continues to operate an appropriate number of CO monitoring sites in the planning areas covered by the 2004 CO Maintenance Plan.
CAA section 175A(d) requires that “Each plan revision submitted under this section shall contain such contingency provisions as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard which occurs after the redesignation of the area as an attainment area. Such provisions shall include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the State implementation plan for the area before redesignation of the area as an attainment area.” The following sections discuss the contingency provisions included in the 2004 CO Maintenance Plan.
The EPA-approved 1996 CO Maintenance Plan included seven contingency measures: improved basic I/M program requirements (Chico, Lake Tahoe North Shore, Lake Tahoe South Shore, and San Francisco-Oakland-San Jose Areas); enhanced I/M program requirements (Bakersfield, Fresno, Modesto, and Sacramento Areas); on-board diagnostics systems testing requirements in I/M programs (Statewide); California Cleaner-Burning Gasoline regulations (Statewide); Off-Highway Recreational Vehicles standards (Statewide); lawn and garden equipment—tier II requirements (Statewide); and low-emission vehicles and clean fuels (post-1995) standards (Statewide). At the time of ARB's adoption of the 1996 CO Maintenance Plan, these measures had already been adopted and were anticipated to be implemented during the 1996 through 2001 period regardless of any triggering event associated with high CO concentrations. The CO emissions reductions associated with these seven contingency measures were not included in the maintenance demonstrations for the ten planning areas and thus were surplus to the CO emissions reductions assumed in the 1996 CO Maintenance Plan.
CAA section 211(m) establishes particular requirements for adopting provisions requiring the use of oxygenated fuels in areas designated nonattainment for the CO NAAQS and registering design values above 9.5 ppm.
Pursuant to this section of the CAA, ARB submitted its motor vehicle fuels regulations, including its requirements for wintertime oxygen content, to EPA for approval on November 15, 1994. Eight areas in California were required to provide for the sale of oxygenated gasoline during winter months under section 211(m): Chico, Fresno, Modesto, Sacramento, San Diego and Sacramento MSAs, and the Los Angeles-Anaheim-Riverside and San Francisco-Oakland-San Jose CSMAs. Because of the number of carbon monoxide nonattainment areas, however, ARB required the use of wintertime oxygenates for the entire State. EPA approved the State's wintertime oxygenated gasoline regulations on August 21, 1995 (60 FR 43379).
California succeeded in reducing significantly CO emissions, prompting ARB to request that EPA redesignate the ten planning areas to attainment and to submit a maintenance plan (adopted by ARB April 25, 1996) and referred to herein as the 1996 CO Maintenance Plan that demonstrates how the State will continue to meet NAAQS for CO. The 1996 CO Maintenance Plan (which EPA approved March 31, 1998 [63 FR 15305]) identified the wintertime oxygenated gasoline requirement as one of the principal control measures and relied on the associated emissions reductions to demonstrate continued attainment.
On November 19, 1998, ARB approved an amendment to California's CO maintenance plan rescinding in most areas the wintertime oxygenated gasoline requirement (
Because certain areas of the State needed to rely on the benefits of oxygenated fuels to ensure attainment and maintenance of the CO NAAQS, ARB retained the wintertime oxygenated gasoline requirement in the counties of Los Angeles, Orange, Riverside, San Bernardino, Ventura and Imperial, but not in the ten planning areas.
Additionally, in adopting the 1998 CO Maintenance Plan, which revised the 1996 CO Maintenance Plan, ARB committed to the following: “* * * the Board directs ARB staff to review carbon monoxide air quality data in the areas no longer subject to the wintertime oxygen requirement; if violations are monitored in any of the areas, staff will propose that appropriate action be taken regarding reinstatement of the minimum wintertime oxygen content in gasoline previously contained in section 2262.5, title 13, CCR, in the area at the beginning of the following winter season * * *” (ARB Resolution 98-52, November 19, 1998;
In the 2004 CO Maintenance Plan, ARB brings forward the seven contingency measures included in the 1996 Maintenance Plan, identifies several additional regulatory measures that have already been adopted and implemented as contingency measures (tighter emission standards for cars, truck, buses, off-road equipment), and, as noted above, brings forward the commitment from the 1998 Maintenance Plan SIP revision submittal to reinstate the wintertime oxygenated gasoline requirement. The CO emissions reductions associated with the seven contingency measures adopted as part of the 1996 CO Maintenance Plan and the additional contingency measures described in the 2004 CO Maintenance Plan are accounted for in the inventories that provide the basis for the maintenance demonstrations for the ten planning areas. Although we find early implementation of contingency measures to be acceptable (
However, we find that the commitment to reinstate the wintertime oxygenated gasoline requirement, originally made in Resolution 98-52 and reaffirmed in Resolution 04-20, in the event that CO violations are monitored provides a sufficient basis for us to determine that the 2004 CO Maintenance Plan meets the minimum contingency requirements under section 175A(d) given the extent to which California's motor vehicle control program will continue to provide CO emissions reductions in the ten planning areas over and above those necessary for continued attainment of the CO NAAQS.
Maintenance plan submittals must specify the maximum emissions of transportation-related CO emissions allowed in the last year of the maintenance period. The submittal must also demonstrate that these emissions levels, when considered with emissions from all other sources, are consistent with maintenance of the NAAQS. In order for us to find these emissions levels or “budgets” adequate and approvable, the submittal must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5), and be approvable under all pertinent SIP requirements.
The existing CO motor vehicle emissions budgets (MVEBs) for the areas addressed in this notice derive from California's first maintenance plan (
In addition to establishing new MVEBs for the final year of the second maintenance period (2018), the 2004 CO Maintenance Plan also revises the current CO MVEBs. Page 14 of the 2004 CO Maintenance Plan identifies 2003 and 2018 as budget years and states that “These emission budgets will apply to all subsequent analysis years * * * including: Any interim year conformity analyses, the 2018 horizon year, and years beyond 2018.” EPA requested clarification from ARB because the Agency was unsure whether the State had intended to set budgets for every year after 2003. ARB submitted a letter on December 23, 2004 confirming ARB's intent to remove and entirely replace the emissions budgets established by the first ten year plan with new budgets for 2003 and 2018.
Because the transportation conformity regulations (described above) require States to demonstrate conformity to the last year of the maintenance plan, EPA requested further clarification from ARB concerning the MVEBs in the submitted 2004 CO Maintenance Plan for year 2010. On May 23, 2005, ARB submitted a letter to EPA clarifying their intent to update the MVEBs from the first maintenance plan by setting new, more stringent MVEBs starting in 2003. These MVEBs would also apply for 2010 and 2018. The letter included a table showing the MVEBs and applicable budget years (
In setting MVEBs, States generally use motor vehicle emission inventories. California took this approach, for example, in the 1996 CO Maintenance Plan. As Table 5 illustrates, motor vehicle emissions are expected to fall to comparatively low levels by 2018. California need not, however, cap MVEBs at projected motor vehicle emissions levels. Because overall projected levels of emissions from all sources (as demonstrated in Table 2) are expected to be less than the levels necessary to maintain the CO NAAQS, California has a “safety margin” that the State may use to set MVEBs at a higher level. As long as emissions from all sources are lower than needed to provide for continued maintenance, the State may allocate additional emissions to the MVEBs (
In the 2004 CO Maintenance Plan, ARB's proposed MVEBs (Table 4, above) meet the safety margin test. Take, for example, Fresno, which attained the CO NAAQS in 1993 with a CO wintertime emissions level of 627 tons per day. By 2018, ARB predicts that Fresno's emissions will be 244 tons per day of CO (77 from motor vehicles, 167 from all other sources) [
Our detailed evaluation of the 2004 CO Maintenance Plan and related MVEBs under 40 CFR 93.118(e)(4) and (5) is provided in section IV of this notice. Based on that evaluation and the discussion provided above, we approve the CO MVEBs for each of the ten planning areas as set forth in the 2004 CO Maintenance Plan and clarified by ARB in its letter dated May 23, 2005 because the plan and budgets meet the requirements under 40 CFR 93.118(e)(4) and (5) and because we find that ARB has met all statutory requirements for submittals of maintenance plans under sections 110 and part D of the Act.
In the submittal letter dated November 8, 2004, ARB requested that EPA limit the duration of our approval of the MVEBs in the 2004 CO Maintenance Plan to last only until the
In this notice, we announce our finding that the motor vehicle emissions budgets (MVEBs) in the submitted
Transportation conformity is required by section 176(c) of the CAA. Our transportation conformity rule (codified in 40 CFR part 93, subpart A) requires that transportation plans, programs, and projects conform to SIPs and establishes the criteria and procedures for determining whether or not they do. Conformity to the SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
On March 2, 1999, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in
ARB submitted the 2004 CO Maintenance Plan to EPA by letter dated November 8, 2004, and we received this plan on November 12, 2004. The plan identifies CO MVEBs (calculated as winter seasonal emissions in tons per day) for each of the ten planning areas for years 2003 and 2018.
We announced receipt of the plan on the Internet and requested public comment by December 27, 2004. We requested clarification from ARB because we were unsure whether ARB had intended to set budgets for every year after 2003. ARB submitted a letter on December 23, 2004 explaining ARB's intent to replace the 1996 CO Maintenance Plan budgets with new budgets for 2003 and 2018. Subsequently, we extended the comment period until February 10, 2004, although we had not received any comments in response to our Internet posting on December 27, 2004. We did not receive any comments during the extended comment period either.
Because the transportation conformity regulations require States to demonstrate conformity to the last year of the maintenance plan, EPA requested further clarification from ARB on the status of the MVEBs for 2010 (the last year of the EPA-approved 1996 CO Maintenance Plan). On May 23, 2005, ARB submitted a letter to EPA indicating that their intent was to update the MVEBs from the 1996 CO Maintenance Plan by setting new, more stringent MVEBs starting in 2003. These new MVEBs would apply to 2003, 2010 and 2018. Table 4, above, shows the 2004 CO Maintenance Plan MVEBs for 2003, 2010 (the last year of the 1996 CO Maintenance Plan), and 2018 (the last year of the 2004 CO Maintenance Plan).
The criteria by which we determine whether a SIP's MVEBs are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4) and (5). The following paragraphs provide our review of ARB's 2004 CO Maintenance Plan SIP submittal against our adequacy criteria and, based on that review, we conclude that all of the criteria have been met and that the MVEBs in the submitted 2004 CO Maintenance Plan are adequate for transportation conformity purposes.
Under 40 CFR 93.118(e)(4)(i), we review a submitted plan to determine whether the plan was endorsed by the Governor (or designee) and was subject to a public hearing. The transmittal letter for the submitted 2004 CO Maintenance Plan was signed by Catherine Witherspoon, Executive Officer, ARB, the Governor's designee for CAA SIP purposes. ARB Resolution 04-20, included as enclosure 2 of the SIP submittal, provides evidence of adoption and legal authority. Enclosure 3 of the SIP submittal contains documentation of a public hearing on the 2004 CO Maintenance Plan that was held on July 22, 2004. As such, the submitted plan meets the criterion under 40 CFR 93.118(e)(4)(i).
Under 40 CFR 93.118(e)(4)(ii), we review a submitted plan to determine whether the plan was developed through consultation with Federal, State and local agencies and whether full implementation plan documentation was provided to EPA and EPA's stated concerns, if any, were addressed. Consultation for development of this plan largely consisted of public hearing notices that were published in newspapers of general circulation in each of the ten planning areas. Given the nature of this subsequent maintenance plan submittal, which includes no new control measures but simply shifts one control measure (the wintertime oxygenated gasoline requirement) from active to contingent status, and updates a previous plan to reflect better emission estimates (based on improved calculation methods and updated source type and activity data) and to extend the maintenance demonstrations further into the future, such limited consultation is sufficient for the purposes of 40 CFR 93.118(e)(4)(ii).
Under 40 CFR 93.118(e)(4)(iii), we review a submitted plan to determine whether the MVEBs are clearly identified and precisely quantified. The 2004 CO Maintenance Plan clearly identifies and precisely quantifies the CO MVEBs for each of the ten planning
Under 40 CFR 93.118(e)(4)(iv), we review a submitted plan to determine whether the MVEBs, when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to a given SIP submission). The 2004 CO Maintenance Plan shows how the CO MVEBs and related safety margins are consistent with continued maintenance of the CO NAAQS in each of the ten planning areas through 2018 (see pages 13 through 17 of the plan). In particular, Table 12 on page 17 of the maintenance plan shows the extent to which maximum potential 2018 emissions (
Under 40 CFR 93.118(e)(4)(v), we review a submitted plan to determine whether the MVEBs are consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy plan or maintenance plan. The 2004 CO Maintenance Plan contains no new measures but the budgets appropriately reflect the State's adopted emissions standards, fuel regulations (including repeal of the wintertime oxygenated gasoline requirements), and the vehicle inspection and maintenance program, as applicable in each of the ten planning areas. Thus, the submitted plan meets this criterion for adequacy.
Under 40 CFR 93.118(e)(4)(vi), we review a submitted plan to determine whether revisions to previously submitted plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins; and reasons for the changes (including the basis for any changes related to emissions factors or estimates of vehicle miles traveled). The 2004 CO Maintenance Plan explains and documents the various changes that have been made to the CO emissions inventories, motor vehicle emissions budgets, safety margins, and control measures, including updates to the emissions factor model (EMFAC2002 for the 2004 CO Maintenance Plan versus EMFAC7F for the 1996 CO Maintenance Plan), updates to the travel activity data from the local transportation agencies, and the shift of the wintertime oxygenated gasoline requirements from active to contingent status. Thus, the submitted plan meets this criterion for adequacy.
Under 40 CFR 93.118(e)(5), we review the State's compilation of public comments and response to comments that are required to be submitted with any SIP revision. Enclosure 4 of the SIP submittal contains one comment letter that was received on the proposed 2004 CO Maintenance Plan. This comment letter supported ARB approval of the proposed plan. Enclosure 6 of the SIP submittal contains minutes from the July 22, 2004 public hearing. No further comments on the plan were submitted on the proposed plan at the public hearing. Thus, the submitted plan meets this criterion for adequacy.
Therefore, we find the CO MVEBs contained in the submitted 2004 CO Maintenance Plan to be adequate for transportation conformity purposes. Under 40 CFR 93.118(e)(1), motor vehicle emissions budgets in submitted plans do not supersede the motor vehicle emissions budgets in approved plans for the same CAA requirement and the period of years addressed by the previously approved implementation plan, unless EPA specifies otherwise in its approval of a SIP. See 69 FR 40004, at 40078 (July 1, 2004). In this instance, the submitted plan (the 2004 CO Maintenance Plan) is a maintenance plan that establishes MVEBs that are intended to supersede previously approved budgets from an earlier maintenance plan (the 1996 CO Maintenance Plan) for year 2010, the out year of the 1996 plan. However, in a final rule published on November 15, 2002, we limited the duration of our approvals of the MVEBs in the 1996 CO Maintenance Plan to last only until the effective date of our adequacy finding for new budgets that replace the existing approved budgets for the same pollutant, CAA requirement, and year.
The effective date for our adequacy finding will coincide with the effective date for our approval of the budgets as part of our overall approval of the 2004 CO Maintenance Plan as a SIP revision if we do not withdraw this direct final rule in response to receipt of adverse comments. If we receive adverse comments on this direct final action, we will withdraw the final rule as it relates to the approval of the 2004 CO Maintenance Plan (and budgets), but the adequacy determination will remain in effect until we either make a subsequent inadequacy determination or take subsequent final action to approve or disapprove the plan.
In 1996, ARB submitted the 1996 CO Maintenance Plan covering the ten planning areas and requested they be redesignated to attainment for the CO NAAQS. On March 31, 1998, EPA approved the 1996 Plan as a revision to the California SIP and redesignated the ten planning areas to attainment effective June 1, 1998 (63 FR 15305). To codify this rulemaking, we amended the table in 40 CFR part 81, section 305 (40 CFR 81.305), that lists the designations for air quality planning areas in California, but in doing so, we incorrectly identified April 30, 1998 as the effective date for redesignation of the ten planning areas to attainment for CO. The correct date is June 1, 1998. In addition, in our March 31, 1998 final rule, we inadvertently deleted from the California-Carbon Monoxide table the detailed descriptions of three of the ten planning areas: the Lake Tahoe North Shore Area, the Lake Tahoe South Shore Area, and the San Diego Area.
Section 110(k)(6) of the Clean Air Act provides, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.” Under the authority vested in EPA under section 110(k)(6) of the Act, we are taking direct final action to amend the California-Carbon Monoxide table in 40 CFR 81.305 by changing the effective date for redesignation from April 30, 1998 to June 1, 1998 for each of the ten areas addressed in this notice and by re-codifying the previous detailed descriptions of the Lake Tahoe North Shore, Lake Tahoe South Shore, and San Diego Areas.
Under section 110(k)(3) of the CAA, EPA is approving as a revision to the California SIP the
In so doing, EPA has determined that this submittal meets the CAA requirement under section 175A(b) to prepare and submit a SIP revision that provides for continued maintenance of the CO NAAQS for a period of 10 years following the initial 10-year maintenance period that began with redesignation of the following ten planning areas from nonattainment to attainment: Bakersfield, Chico, Fresno, Lake Tahoe North Shore, Lake Tahoe South Shore, Modesto, Sacramento, San Diego, San Francisco-Oakland-San Jose, and Stockton.
As part of our overall approval of the 2004 CO Maintenance Plan, we approve the following specific plan elements:
• Emission inventory updates and projections, as well as the maintenance demonstrations through 2018, for the ten planning areas covered by the plan;
• Commitment to continue monitoring for the purpose of verifying continued attainment;
• Contingency provisions under CAA section 175A(d), specifically, the State's commitment related to the wintertime oxygenated gasoline requirements contained in ARB Resolution 98-52 and included as Appendix C of the 2004 CO Maintenance Plan; and
• CO motor vehicle emissions budgets (in terms of winter seasonal emissions in tons per day) for the years 2003, 2010, and 2018, for each of the ten planning areas as follows:
In connection with the motor vehicle emissions budgets, we are denying ARB's request to limit our approval of the above budgets to last only until the effective date of future EPA adequacy findings for replacement budgets, but our denial of ARB's request does not affect our approval of the plan itself or the budgets contained therein.
Also, in connection with the motor vehicle emissions budgets, we are finding them adequate for the purposes of transportation conformity. As a result of this finding, the various metropolitan planning organizations in the ten planning areas and the U.S. Department of Transportation must use the CO motor vehicle emissions budgets from the submitted maintenance plan for future conformity determinations.
Lastly, under CAA section 110(k)(6), we are correcting our 1998 final rule in which we approved ARB's submittal of the 1996 CO Maintenance Plan and redesignated the ten planning areas to attainment for the CO NAAQS by fixing the erroneous effective date listed in the table entitled “California—Carbon Monoxide” in 40 CFR part 81.305 and by re-codifying in that same table detailed descriptions of the Lake Tahoe North Shore, Lake Tahoe South Shore, and San Diego areas that had inadvertently been deleted in that same 1998 rulemaking.
We do not anticipate any objections to this action, so we are finalizing the correction action without proposing it in advance. However, in the Proposed Rules section of this
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from
In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 30, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations. Reporting and recordkeeping requirements.
Air pollution control, National Parks, Wilderness areas.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(c) * * *
(341) The 2004 Revision to the California State Implementation Plan for Carbon Monoxide, Updated Carbon Monoxide Maintenance Plan for the Ten Federal Planning Areas, submitted on November 8, 2004 by the Governor's designee.
(i) Incorporation by reference.
(A) California Air Resources Board.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule; correction.
EPA issued a direct final rule in the
This final rule is effective on November 30, 2005.
Follow the detailed instructions as provided under the
Susan Sharkey, Project Manager, Economics, Exposure and Technology Division (7406M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 564-8789; e-mail address:
The Agency included in the direct final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under
In addition to using EDOCKET at
In FR Doc. 05-20771 appearing on page 60217, the following correction is made:
On page 60221 in the second column, the section heading for § 710.46 is corrected to read: “§ 710.46 Chemical substances for which information is not required.”
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(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 final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because the use of notice and comment procedures are unnecessary to effectuate this correction. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
No. This action only corrects an inadvertent error in the section heading of the regulatory text for a previously published final rule and does not impose any new requirements. EPA's compliance with the statutes and Executive Orders for the underlying rule is discussed in Unit V. of the October 17, 2005, direct final rule (70 FR 60217).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Chemicals, Hazardous materials, 1,2,3-Propanetriol, Reporting and recordkeeping requirements.
Federal Communications Commission.
Final rule.
In response to a
Effective December 27, 2005.
R. Barthen Gorman, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Federal Communications Commission.
Final rule.
This document grants a petition filed by Linda A. Davidson by allotting Channel 290A at Milner, Georgia, as its first local service and Channel 290A at Plains, Georgia, as its first local service.
Effective December 27, 2005.
Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Rolanda F. Smith, Media Bureau, (202) 418-2180.
This is a summary of the Commission's
Channel 290A can be allotted to Milner in compliance with the Commission's rules provided there is a site restriction of 11.9 kilometers (7.4 miles) northeast at coordinates 33-09-44 NL and 84-04-51 WL. Channel 290A can be allotted to Plains in compliance with the Commission's rules provided there is a site restriction of 14.7 kilometers (9.1 miles) northeast at coordinates 32-06-51 NL and 84-16-10 WL. Channel 232A can be allotted to Ellaville in compliance with the Commission's rules provided there is a site restriction of 14.5 kilometers (9.0 miles) east at coordinates 32-16-53 NL and 84-09-52 WL.
This document also dismissed a counterproposal filed jointly by Radio Georgia, Inc., licensee of Station WTGA-FM, Channel 266A, Thomaston, Georgia and Southern Broadcasting Companies, Inc., requesting the reallotment of Channel 266A from Thomaston to Milner, Georgia, as its first local service and modification of the Station WTGA-FM license accordingly; the allotment of Channel 295A at Plains, Georgia, as its first local service; the allotment of Channel 290A at Oglethorpe, Georgia, as it first local service; and the substitution of Channel 232A for vacant Channel 290A at Ellaville, Georgia.
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334 and 336.
Federal Communications Commission.
Final rule.
In response to a
Effective December 27, 2005.
R. Barthen Gorman, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
Federal Highway Administration (FHWA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
The FHWA is requesting comments on a proposed amendment to the design standards that apply to highway construction and reconstruction projects on the Interstate System. A 2005 revision of the American Association of State Highway and Transportation Officials' (AASHTO) publication entitled
Comments must be received on or before January 30, 2006.
Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590, or submit electronically at
For technical information: Mr. Jon Obenberger, Office of Program Administration (HIPA-20), (202) 366-2221. For legal information: Mr. Robert Black, Office of the Chief Counsel (HCC-32), (202) 366-1359, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays.
You may submit or retrieve comments online through the Document Management System (DMS) at:
An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at:
The standards, policies, and standard specifications that have been approved by the FHWA for application on all construction and reconstruction projects on the National Highway System (NHS) are incorporated by reference in 23 CFR part 625 (Design Standards for Highways). For the Interstate System, the current document specified in § 625.4(a)(2) is the 1991 edition of
The Interstate Standards, being only 6 pages, are not intended to be a “stand alone” document for all of the geometric design standards that are used in the development of projects on the Interstate System. The Interstate Standards contain criteria that were developed specifically in keeping with the importance of the Interstate System as the backbone of the Nation's highway system. Specific examples include: Design traffic, right-of-way, geometric design controls and criteria, cross section elements, interchanges, and bridges and other structures. Other publications, such as A
The policies, standards, and standard specifications FHWA has adopted for all construction and reconstruction projects on the National Highway System (NHS) are incorporated by reference in 23 CFR part 625. The NHS was established by the National Highway System Designation Act of 1995, Pub. L. 104-59, Nov. 28, 1995, 109 Stat. 568. The NHS includes the Interstate System and other principal arterials serving major travel destinations and transportation needs, connectors to major transportation terminals, the Strategic Highway
The AASHTO is an organization which represents 52 State highway and transportation agencies (including the District of Columbia and Puerto Rico). Its members consist of the duly constituted heads and other chief officials of those agencies. The Secretary of Transportation is an ex officio member, and U.S. DOT officials participate in various AASHTO activities as non-voting representatives. Among other functions, the AASHTO develops and issues standards, specifications, policies, guides and related materials for use by the States for highway projects. Many of the standards, policies, and standard specifications approved by the FHWA and incorporated into 23 CFR part 625 were originally developed and issued by the AASHTO. Revisions to AASHTO policies, standards, and standard specifications are independently reviewed, considered, and where appropriate adopted by the FHWA for their application to projects on the NHS.
The changes in the Interstate Standards were developed as the result of information contributed by AASHTO and FHWA staff experts. The changes made to the Interstate Standards (January 2005 edition) consist of the following:
1. Metric values have been added for all dimensions. The previous edition contained only U.S. Customary values.
2. In “Design Speed,” the sentence specifying a separate design speed for rolling terrain has been deleted. The impacts of construction in level and rolling terrain are considered sufficiently close that individual criteria are no longer considered necessary.
3. In “Gradients,” the table for maximum grade has been expanded to include higher design speeds and intermediate design speeds. All of the values in the previous edition have been incorporated in the new table without any changes. The wording of the table footnote has been revised.
4. In “Shoulders,” the discussion of shoulder width in mountainous terrain has been revised to clarify the values that may be used.
5. In “Horizontal Clearance to Obstructions,” the discussion of horizontal clearance to obstructions has been revised and updated.
6. In “Curbs,” the discussion of curbs has been revised and expanded to clarify the use of curbs in conjunction with guardrail.
7. In “Existing Bridges to Remain in Place,” the wording has been revised to include bridges on future additions to the Interstate System.
8. In “Tunnels,” the discussion of the minimum width of a tunnel has been revised and a discussion of a safety shape barrier at the tunnel wall in lieu of a safety walk has been added.
The FHWA proposes to amend the design standards that apply to highway construction and reconstruction projects on the Interstate System by adopting the 2005 edition of AASHTO's A Policy on Design Standards Interstate System.
All comments received on or before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable. In addition to late comments, the FHWA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period.
The FHWA has determined preliminarily that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or would not be significant within the meaning of the U.S. Department of Transportation regulatory policies and procedures. It is anticipated that the economic impact of this rulemaking would be minimal because the basic design standard criteria remain essentially the same. The proposed changes would not adversely affect, in a material way, any sector of the economy. In addition, the changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this proposed action on small entities and has determined that the proposed action would not have a significant economic impact on a substantial number of small entities. As stated above the basic design standard criteria remain essentially the same. Additionally, the proposed changes address design standards for States to follow in constructing or reconstructing the Interstate System. States are not included in the definition of small entity set forth in 5 U.S.C. 601. For these reasons, the FHWA certifies that this action would 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 proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532).
Further, in compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will evaluate any regulatory action that might be proposed in subsequent stages to assess the effects on States, local, and tribal governments and the private sector. Additionally, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal government. The Federal-aid Highway Program permits this type of flexibility.
This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and the FHWA has determined that this proposed action would not have sufficient federalism implications to warrant the preparation of a Federalism assessment. The FHWA has also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
The agency has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this proposed action would not have any effect on the quality of the environment.
The FHWA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.
This action 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. The FHWA certifies that this proposed action would not cause an environmental risk to health or safety that might disproportionately affect children.
The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The proposed rulemaking addresses obligation of Federal funds to States for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. 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 it is not a significant energy action under that order since 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. Therefore, a Statement of Energy Effects is not required.
A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.
Design standards, Grant programs—transportation, highways and roads, Incorporation by reference.
In consideration of the foregoing, the FHWA proposes to amend title 23, Code of Federal Regulations, part 625, as set forth below:
1. The authority citation for part 625 continues to read as follows:
23 U.S.C. 109, 315, and 402; Sec. 1073 of Pub. L. 102-240, 105 Stat. 1914, 2012; 49 CFR 1.48(b) and (n).
2. In § 625.4, revise paragraph (a)(2) to read as follows:
(a) * * *
(2) A Policy on Design Standards Interstate System, AASHTO, January 2005. [See § 625.4(d)(1)]
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve a State Implementation Plan revision, submitted by the California Air Resources Board on November 8, 2004, that includes the
Comments on this proposal must be received by December 30, 2005.
Submit comments, identified by docket number R09-OAR-2005-CA-0010, by one of the following methods:
1.
2.
3.
4.
Toby Tiktinsky, EPA Region IX, (415) 947-4223,
In the Rules and Regulations section of this
In addition, EPA is notifying the public that we have found that the carbon monoxide motor vehicle emissions budgets contained in the submitted maintenance plan are adequate for transportation conformity purposes. Related to the motor vehicle emissions budgets, however, we are denying a request by ARB for EPA to limit the duration of our approval of the budgets. Our denial of ARB's request, however, does not affect our approval of the plan itself or the budgets contained therein. Lastly, we are also correcting, pursuant to section 110(k)(6) of the Act, certain errors that we made in our 1998 final rule approving California's redesignation request for these ten planning areas.
We are taking these actions without prior proposal because we believe that the revision and request are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding and initiation of status review.
We, the U.S. Fish and Wildlife Service (Service), announce our 90-day finding on a petition to delist
The finding announced in this document was made on November 30, 2005. To be considered in the 12-month finding for this petition, comments and information must be submitted to the Service by January 30, 2006.
Submit new information, materials, comments, or questions concerning this species to Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, California 92011; by facsimile to 760/431-9618; or by electronic mail to
Jim Bartel, Carlsbad Fish and Wildlife Office (see
When we make a finding that substantial information is presented to indicate that a delisting action may be warranted, we are required to promptly commence a review of the status of the species. Based on results of the status review, we will make a 12-month finding as required by section 4(b)(3)(B) of the Act. To ensure that the status review is complete and based on the best available scientific and commercial data, we are soliciting information on
If you wish to comment, you may submit your comments and materials concerning this finding to the Field Supervisor, Carlsbad Fish and Wildlife Office (see
Section 4(b)(3)(A) of the Act requires that the Service make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. This finding is based on information contained in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the finding. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of the finding promptly in the
Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a review of the status of the species.
In making this finding, we relied on information provided by the petitioners and otherwise available in our files at the time of the petition review, and evaluated that information in accordance with 50 CFR 424.14(b). Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial scientific or commercial information” threshold.
Our 90-day finding considers whether the petitioners have stated a reasonable case that delisting may be warranted. Thus, our finding expresses no view as to the ultimate issue of whether the species should be delisted. We reach a conclusion on that issue only after a thorough review of the taxon's status. In that review, which will take approximately 9 more months, we will perform a rigorous, critical analysis of the best available commercial and scientific information. We will ensure that the data used to make our determination as to the status of the species (
On July 8, 2005, we received a petition to delist
This petition and its associated documents also include claims and information previously addressed in our 90-day and 12-month findings on the previous petition to delist Peirson's milk-vetch. Those claims that are not substantially different from those addressed in our previous findings or that are not supported by additional information will not be addressed in this 90-day finding. However, all available information, including information provided by the petitioners in supplements to the petition dated September 8, 2005 and October 4, 2005, will be considered in our status review and 12-month finding.
The taxonomic status of Peirson's milk-vetch was discussed in the final listing rule (63 FR 53596). Although Peirson's milk-vetch was originally described at the species rank, it is currently recognized as a variety as
Two other
Based on current understanding of the species' life history, sufficient rain in conjunction with cooler-than-average fall weather appears to trigger germination events. Seedlings may be present in suitable habitat throughout the dunes, especially during above-normal precipitation years. In drier years, plant numbers decrease as individuals die and are not replaced by new seedlings. The long-term survival of the species likely depends on the production of viable seeds in the wetter years, the continual replenishment of the seed bank, and the persistence of the seed bank. The seed bank allows the species to persist until appropriate conditions for germination, growth, and reproduction occur. Large annual fluctuations in the numbers of plants present have been consistently found (Phillips and Kennedy 2005; Willoughby 2004, 2005).
The relative contribution of first year plants of Peirson's milk-vetch to the seed bank and survival of the taxon is not fully understood. Available data (Phillips and Kennedy 2002, 2004, 2005) and previous research (Romspert and Burk 1979) suggest that older age classes produce substantially more seeds than first-year plants and that, therefore, the older persisting plants (
In desert plants, the majority of seedlings may die at the onset of the drier season as noted by previous reports. Phillips and Kennedy (2002) reported that 26 percent of the plants recorded in Spring 2001 counts survived to late 2001. These authors (Phillips and Kennedy 2003) also report the nearly complete loss of the 2003 seedling cohort of Peirson's milk-vetch. Pavlik and Barbour (1988) studied the establishment and survivorship pattern of
The fruits of Peirson's milk-vetch are 0.8 to 1.4 in (2 to 3.5 cm) long, one-chambered, hollow, and inflated. Peirson's milk-vetch fruits contain 11 to 16 large flattened black seeds. The seeds, among the largest seeds of any
In a given year, an annual or short-lived species can fluctuate between large numbers of plants to few or even no plants. Many species, and Peirson's milk-vetch may be one of them, have periodic “rescue” episodes from the seed bank where large flushes appear when germination conditions are suitable (Elzinga
When considering an action for listing, delisting, or reclassifying a species, we are required to determine whether a species is endangered or threatened based on one or more of the five listing factors as described at 50 CFR 424.11. These factors are given as: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting the continued existence of the species. Delisting a species must be supported by the best scientific and commercial data available and only considered if such data substantiates that the species is neither endangered nor threatened for one or more of the following reasons: (1) The species is considered extinct; (2) the species is considered to be recovered; and/or (3) the original data available when the species was listed, or the interpretation of such data, were in error. In making this finding, we evaluated whether or not the petition and associated documents and other information available to us present substantial information that delisting Peirson's milk-vetch may be warranted. Our evaluation, based on information provided in the petition and available in our files, is presented below.
The petitioners provided us with four reports completed since our 2004 12-month finding (69 FR 31523). These new reports include the work by BLM (Willoughby 2004, 2005) and reports by Phillips and Kennedy (2004, 2005).
The petition restates claims made in the October 2001 petition that (1) the original listing was made without a plant count and (2) the original listing relied on field studies that BLM has since indicated were biased. As noted above in the Background section, we will not be addressing in this 90-day finding those claims that are not substantially different from those addressed in our previous findings or are not supported by additional information.
The petition states that its point is “to demonstrate, through four years of additional data collection, that the Peirson's milk-vetch is even more abundant than was reported in ASA
Using, in particular, the results of the monitoring by BLM (Willoughby 2004, 2005) and Phillips and Kennedy (2004, 2005), the petitioners state that the “anticipated threats to the Peirson's milk-vetch and its habitat have not materialized” (ASA 2005 p. 47). Instead, they state that threats to its “continuous existence are negligible” (ASA 2005 p. 48).
A primary threat that led to the listing of the Peirson's milk-vetch in 1998 was the destruction of individuals and habitat from OHV use and associated recreational development (63 FR 53596). The current petition (ASA 2005) and associated new documents provide information that bears on the impact of OHV activity on Peirson's milk-vetch. Monitoring studies conducted by BLM (Willoughby 2004, 2005) provide updated information on Peirson's milk-vetch abundance classes, use of a new monitoring protocol, estimates of density and population, and OHV impacts. Studies conducted by Phillips and Kennedy (2004, 2005) provide information on germination events and their timing, survivorship, seed bank, estimates of density and population size, OHV impacts, and additional surveys for Peirson's milk-vetch.
Willoughby (2004) summarizes multiple years of monitoring of Peirson's milk-vetch and
Phillips and Kennedy (2004, 2005) provide information on survivorship, germination, seed bank, and population estimates of Peirson's milk-vetch based on counts at their study sites. They report actual plant counts of 77,922 individuals in March 2005 and 66,931 individuals in April 2005 at 25 sample sites. Within 56 ha (138 ac) of potential habitat, Phillips and Kennedy (2005) estimate an approximate minimum population of 173,328 plants in March 2005 and 142,243 plants in April 2005. They describe finding approximately 30 seedlings in Anza-Borrego Desert State Park (an area outside of Algodones Dunes).
To summarize, the petitioners have presented new information on the demography of Peirson's milk-vetch. Some of this information may be relevant to the potential impacts of OHV activities on the plant and its habitat. They support their arguments that Peirson's milk-vetch is healthy and stable and that OHV impacts are minimal with information from four reports (Willoughby 2004, 2005 and Phillips and Kennedy 2004, 2005) that were not available at the time of the previous 12-month finding (69 FR 31523). We find that these documents present substantial information that the petitioned action may be warranted and that they justify further detailed analysis in a 12-month finding. Additional information in our files includes a study on the biology of Peirson's milk-vetch (Porter 2005) and a Service study on plant densities in the Algodones Dunes (Service 2005b). All of these materials will be included in the species status review as part of the 12-month finding.
This petition (ASA 2005) does not present any information regarding this factor as a threat to Peirson's milk-vetch nor did we identify any threats relative to Factor B in our previous 12-month finding (69 FR 31523). If new information becomes available in public comments, we will analyze it in our 12-month finding.
The petition (ASA 2005) states that Peirson's milk-vetch is largely free of threats from disease or predation. This is the same statement made in the original (ASA 2001) petition. We addressed the impact of seed-eating beetles (Bruchidae) on the seeds and evidence of rodent and insect herbivory in our previous 12-month finding (69 FR 31523). In 2004, BLM recorded numbers and distribution of plants with damage. Damage that was not from OHV impacts was attributed principally to insects (Willoughby 2005).
We identified potential additive Factor C threats in our previous 12-month finding (69 FR 31523), but the current petition does not identify threats in this category. Therefore, the petition does not present substantial information related to Factor C. However, our new 12-month finding will consider Factor C threats.
This petition (ASA 2005) and the previous petition (ASA 2001) both state that Peirson's milk-vetch has received adequate protection from BLM since 1977. The claim in the current petition that BLM has adequately protected Peirson's milk-vetch does not appear to constitute substantial information in and of itself because the petitioners' discussion of the issue was brief. However, the issue may be clarified by further analysis in a 12-month finding, which would also consider the Service's biological opinion, signed January 25, 2005, for the Imperial Sand Dunes Recreational Area Management Plan (Plan) (Service 2005a). We will analyze the Plan and the biological opinion as part of the 12-month finding.
This petition (ASA 2005) and the earlier petition (ASA 2001) both state that there are no other natural or manmade threats to Peirson's milk-vetch. We discussed threats from purposeful impacts to Peirson's milk-vetch by OHVs, rangewide natural threats during years when the numbers of individuals is very low, and the role of pollinators in our previous 12-month finding (69 FR 31523).
We identified Factor E threats in our previous 12-month finding (69 FR 31523), but the current petition does not identify threats in this category. Therefore, the petition does not present substantial information related to Factor E. However, the information presented by the petition may affect our analysis of the existence and relative magnitude of the identified Factor E threats and our new 12-month finding will consider these threats in light of the new information.
The petitioners have presented new information regarding the ecology and demography of Peirson's milk-vetch at the Algodones Dunes. Phillips and Kennedy (2004) include new information on seedling growth, documentation of a late winter germination in 2004, and a count of seedlings in 2004. Phillips and Kennedy (2005) provide new information on plant densities in three study areas, population estimates for those areas, results of a new survey area, and indicate that Peirson's milk-vetch “colonies” are increasing in three different areas open to OHV use. Willoughby (2004, 2005) includes new information regarding population trends of Peirson's milk-vetch plants in the Algodones Dunes, abundance class differences for 2002, number of occupied cells per transect, seedling survival, OHV impacts, and the use of a new monitoring protocol for special status plants, including Peirson's milk-vetch, in the Algodones Dunes. These reports constitute substantial information that the petitioned action may be warranted and thus justify further detailed analysis in a status review and 12-month finding.
We have reviewed the petition and associated documents and other information available in our files. Based on this review, and the reasons discussed above, we find that the petition and information in our files present substantial information that delisting of Peirson's milk-vetch may be warranted.
A complete list of all references cited herein is available, upon request, from the Carlsbad Fish and Wildlife Office (see
The primary author of this notice is the Carlsbad Fish and Wildlife Office.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service (FNS) is publishing for public comment notice of a proposed information collection. The proposed collection is an extension of a collection currently approved for the National School Lunch Program, the School Breakfast Program, the Commodity Schools Program, and the Special Milk Program.
Comments on this notice must be received by January 30, 2006 to be assured of consideration.
Send comments and requests for copies of this information collection to Alan Rich, Program Reports, Analysis, and Monitoring Branch, Budget Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302.
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 of the proposed collection of information including the validity of the methodology and assumptions used; (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 those who are to respond, including use of appropriate, automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments will be summarized and included in the request for Office of Management and Budget approval of the information collection. All comments will become a matter of public record.
Alan Rich, (703) 305-2109.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Food and Nutrition Service (FNS) is publishing for public comment a summary of a proposed information collection. The proposed collection is an extension of a collection currently approved for the Child and Adult Care Food Program.
Comments on this notice must be received by January 30, 2006 to be assured of consideration.
Send comments and requests for copies of this information collection to Alan Rich, Program Reports, Analysis, and Monitoring Branch, Budget Division, Food and Nutrition Service, USDA, 3101 Park Center Drive, Alexandria, VA 22302.
All comments will be summarized and included in the request for Office of Management and Budget approval of the information collection. All comments will become a matter of public record.
Alan Rich, (703) 305-2109.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the anticipated environmental effects of the Arapahoe Basin Ski Area and Montezuma Bowl Projects. The Proposed Action would upgrade and expand infrastructure within the existing Special Use Permit (SUP) area to accommodate parking demands and improve skiing opportunities for existing and proposed visitation, thereby enhancing the quality of the recreation experience.
The major aspects of the Proposed Action include:
• Install a new fixed-grip triple of quad chairlift in Montezuma Bowl. Adding lift-served skiing within Montezuma Bowl would increase A-Basin's existing overall skiable acreage for approximately 487 to 812 acres. The Montezuma Bowl area would add approximately 175 acres of intermediate terrain and 149 acres of advanced and expert terrain, all accessible for round-trip skiing via one proposed chairlift.
• Install snowfencing west of the proposed lift terminal, below (south) of the ridgeline, to aid in snow retention.
• Install a raised “avalauncher” platform to allow A-Basin ski patrol to safely conduct snow safety operations in Montezuma Bowl.
• Replace the existing Exhibition lift (fixed-grip triple) with a high speed detachable quad chair accommodating 2,60 people per hour in a slightly modified alignment.
• Create an additional 231 parking spaces by widening and re-grading the Lower Overflow Lot and the High Noon Lot, bringing total parking capacity at A-Basin's five lots to 1,781 vehicles. In conjunction with the re-grading of the High Noon lot, a series of sediment detention basins are proposed along the west edge of the parking area, parallel with Highway 6.
Comments concerning the scope of the analysis should be received by January 6, 2006.
Written comments concerning this notice should be addressed to Maribeth Gustafson, Forest Supervisor, c/o Peech Keller, Project Leader, Dillon Ranger District, PO Box 620, Dillon, CO 80498; (970) 468-7735 (fax); or by submitting an e-mail to:
Peech Keller, Project Leader, at the Dillon Ranger District via telephone at (970) 468-5400 or e-mail at
The Proposed Action addresses issues related to the recreation experience. Presently, alpine skiing/snowboarding and other resort activities are provided to the public through a SUP issued by the Forest Service and administered by the White River National Forest. All elements of the proposal remain within the existing SUP boundary area.
The proposed improvements are consistent with the 2002 Revised White River National Forest Land and Resource Management Plan (Forest Plan). The proposed improvements are considered necessary in light of current resort deficiencies and projected future visitation.
The Forest Service and A-Basin cooperatively identified a purpose for this proposal, which is to upgrade and expand infrastructure within the existing SUP area to accommodate parking demands and improve skiing opportunities for existing and proposed visitation, thereby enhancing the quality of the recreation experience.
The responsible official is Maribeth Gustafson, Forest Supervisor for the White River National Forest, 900 Grand Ave., P.O. Box 948, Glenwood Springs Colorado 81602. The responsible official will document the decision and reasons for the decision in a Record of Decision. That decision will be subject to appeal under 36 CFR part 215 or part 251.
Based on the analysis that will be documented in the forthcoming EIS, the responsible official for this project, the Forest Supervisor of the White River National Forest, will decide whether or not to implement, in whole or in part, the Proposed Action or another alternative developed by the Forest Service.
Public questions and comments regarding this proposal are an integral part of this environmental analysis process. Comments will be used to identify issues and develop alternatives to A-Basin's proposal. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments should be as specific as possible.
Input provided by interested and/or affected individuals, organizations and governmental agencies will be used to identify resource issues that will be analyzed in the Draft EIS. The Forest Service will identify significant issues raised during the scoping process, and use them to formulate alternatives, prescribe mitigation measures, or analyze environmental effects.
This notice of intent initiates the scoping process which guides the development of the draft environmental impact statement, including the identification of the range of alternatives to be considered. While public participation is strictly optional at this stage, the Forest Service believes that it is important to give reviewers notice of several court rulings related to public
Because of these court rulings, it is very important that those interested in this proposed action participate during the scoping period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the development of the alternatives. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the proposed action should be as specific as possible.
Import Administration, International Trade Administration, Department of Commerce.
On April 4, 2005, the Department of Commerce (the Department) published a notice of initiation of changed circumstance review of the antidumping order on certain circular welded carbon steel pipes and tubes from Taiwan to determine whether Yieh Phui Enterprise, Ltd. (Yieh Phui) is a successor-in-interest to Yieh Hsing Enterprise, Ltd. (Yieh Hsing).
November 30, 2005.
Angela Strom or Robert James at (202) 482-2704 or (202) 482-0649, respectively; AD/CVD Operations, Office 7, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Ave. NW., Washington DC 20230.
On February 15, 2005, Yieh Phui requested the Department to conduct an expedited changed circumstance review of the antidumping duty order on certain circular welded carbon steel pipes and tubes from Taiwan. The Department determined that the information submitted by Yieh Phui was sufficient to warrant initiation of changed circumstance review and, on April 4, 2005, the Department published the
The evidence on the record shows that Yieh Phui operates in essentially the same manner in terms of production, management and customer base as did Yieh Hsing prior to the transfer of its pipe facilities. In analyzing the totality of the factors on the record with respect to the transfer of the pipe operations, the Department preliminarily concluded that Yieh Phui was the successor-in-interest to Yieh Hsing and ought to be accorded the same antidumping duty treatment as its predecessor.
Imports covered by this order are shipments of certain circular welded carbon steel pipes and tubes. The Department defines such merchandise as welded carbon steel pipes and tubes of circular cross section, with walls not thinner than 0.065 inch and 0.375 inch or more but not over 4.5 inches in outside diameter. These products are commonly referred to in the industry as “standard pipe” and are produced to various American Society for Testing Materials specifications, most notably A-53, A-120 and A-135. Standard pipe is currently classified under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.5025, 7306.30.5032, 7306.30.5040, and 7306.30.5055. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive.
For the reasons stated in the
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance
The notice is in accordance with sections 751(b)(1) and 777(I)(1) of the Act, and 19 CFR 351.216.
Import Administration, International Trade Administration, Department of Commerce.
November 30, 2005.
P. Lee Smith, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-1655.
On December 1, 2004, the Department published an opportunity to request a review for porcelain-on-steel cooking ware from the People's Republic of China (“PRC”) for the period of December 1, 2003, to November 30, 2004.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), the Department shall issue preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order for which a review is requested and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within the specified time periods, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
Completion of the preliminary results within the originally anticipated time limit, December 1, 2005, is impracticable because this review requires the Department to analyze complex issues regarding Watex's corporate structure and its affiliations and corporate relationships. Because it is not practicable to complete the review within the time specified under the Act, the Department is extending the time limit for completion of the preliminary results by 14 days to December 15, 2005, in accordance with section 751(a)(3)(A) of the Act. The deadline for the final results of this administrative review continues to be 120 days after the publication of the preliminary results. We are issuing and publishing this notice in accordance with section 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
November 30, 2005.
Maisha Cryor, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone: (202) 482-5831.
On August 8, 2005, the Department of Commerce (the Department) published the preliminary results of this administrative review of silicon metal from Brazil.
The Department is extending the time limit for the final results of the administrative review of the antidumping duty order on silicon metal from Brazil. This review covers the period July 1, 2003, through June 30, 2004.
Section 751(a)(3)(A) of the Act states that if it is not practicable to complete the review within the time specified, the administering authority may extend the 120-day period, following the date of publication of the preliminary results, to issue its final results by an additional 60 days. Completion of the final results within the 120-day period is not practicable due to a delay in the schedule for submission of interested party arguments and given the number and complexity of issues raised in this review segment, including issues regarding depreciation and financial expenses.
Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for issuing
Import Administration, International Trade Administration, Department of Commerce.
November 30, 2005.
Andrew Smith or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone (202) 482-1276 and 482-0182, respectively.
On March 7, 2002, the Department of Commerce (“the Department”) published an antidumping duty order on stainless steel bar from Germany.
On March 1, 2005, the Department published its
In accordance with 19 CFR 351.221(b)(1), we published a notice of initiation of this antidumping duty administrative review on April 22, 2005.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended, (“the Act”) requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an antidumping duty order for which a review is requested and issue the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
Due to the Department's recent determination to collapse the affiliated companies comprising the BGH Group of Companies, Inc., determining the accuracy of reported home market sales, and the complexity of sales and cost issues, it is not practicable to complete the preliminary results of this review within the original time limit (i.e., December 1, 2005). Therefore, the Department is extending the time limit for completion of the preliminary results to no later than January 30, 2006, in accordance with section 751(a)(3)(A) of the Act.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 30, 2005.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jaffe at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 30, 2005.
Written comments and recommendations on the proposed information collection should be sent to Mr. Laity at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 30, 2005.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jaffe at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD/Information Management Division, 1777 North Kent Street, RPN, Suite 11000, Arlington, VA 22209-2133.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 30, 2005.
Written comments and recommendations on the proposed information collection should be sent to Mr. Kraemer at the Office of Management and Budget, Desk Officer for DoD Health, Room 10102, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should
Department of Defense, Defense Security Cooperation Agency.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated 21 July 1996.
Ms. J. Hurd, DSCA/DBO/ADM, (703) 604-6575.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 06-15 with attached transmittal and policy justification.
DoD, Per Diem, Travel and Transportation Allowance Committee.
Notice of revised non-foreign overseas per diem rates.
The Per Diem, Travel and Transportation Allowance Committee is publishing Civilian Person Per Diem Bulletin Number 242. This bulletin lists revisions in the per diem rates prescribed for U.S. Government employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern Mariana Islands and Possessions of the United States. AEA changes announced in Bulletin Number 194 remain in effect. Bulletin Number 242 is being published in the
This document gives notice of revisions in per diem rates prescribed by the Per Diem Travel and Transportation Allowance Committee for non-foreign areas outside the continental United States. It supersedes Civilian Personnel Per Diem Bulletin Number 241. Distribution of Civilian Personnel Per Diem Bulletins by mail was discontinued. Per Diem Bulletins published periodically in the
Department of Energy.
Notice of revision of listing of covered facilities.
Periodically, the Department of Energy (“Department” or “DOE”) publishes a list of facilities covered under the Energy Employees Occupational Illness Compensation Program Act of 2000 (“Act”), Title 36 of Public Law 106-398 (66 FR 4003; 66 FR 31218). This notice revises the previous lists because it has been found that some designated atomic weapons employers should not have been so designated. Previous lists were published on August 23, 2004, July 21, 2003, December 27, 2002, June 11, 2001 and January 17, 2001.
Michael A. Montopoli, MD, MPH, Acting Director, Office of Health Services (EH-54) 202-586-6178.
The Department welcomes comments on this list. Comments should be addressed to: Michael A. Montopoli, MD, MPH, Acting Director, Office of Health Services (EH-54), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
The Energy Employees Occupational Illness Compensation Program Act of 2000 (“Act”), Title 36 of Public Law 106-398, establishes a program to provide compensation to certain employees who developed illnesses as a result of their employment with the Department of Energy, its predecessor agencies and certain of its contractors and subcontractors. Section 3621 defines an atomic weapons employer (AWE) as an entity, other than the United States, that (A) processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and (B) is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program. Section 3621 goes on to define an atomic weapons employer facility as a facility, owned by an atomic weapons employer, that is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling.
It has recently come to the attention of the Department that a number of entities previously designated as AWE's failed the basic definitional test for an AWE because the designated entities were agencies of the United States Government. Since the definition of an AWE specifically excludes the United States, these previously-made designations are invalid. To make it clear that these entities are not covered under the Act, this notice formally removes the following entities from the list.
• Frankford Arsenal, previously designated as an AWE in Philadelphia, Pennsylvania
• National Bureau of Standards, Van Ness Street, previously designated as an AWE in the District of Columbia
• Seneca Army Depot, previously designated as an AWE in Romulus, New York
• Picatinny Arsenal, previously designated as an AWE in Dover, New Jersey
Take notice that on November 21, 2005, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, one firm transportation service agreement (FTSA) and the following tariff sheets to become effective December 22, 2005:
CIG states that the FTSA is being submitted for the Commission's review and acceptance and has been listed on Sheet No. 1 as a non-conforming agreement. Further, CIG is revising Sheet No. 380J to add an additional fuel exemption route to the Tariff.
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 in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 18, 2005, El Paso Natural Gas Company (EPNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1-A, the following tariff
EPNG states that the tariff sheets are being submitted to revise certain bid evaluation options available for capacity release transactions to provide for multi-month releases with varying monthly contract quantities.
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 in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 16, 2005, Entrega Gas Pipeline LLC (Entrega) filed its FERC Gas Tariff, Original Volume 1, in compliance with Ordering Paragraph (B)(4) of the Order Issuing Certificates, issued by the Commission on August 9, 2005 in the captioned dockets. Entrega requests an effective date of December 17, 2005, the earliest date that service is expected to commence on Segment 1 (36-inch diameter pipeline from the Meeker Hub in Rio Blanco County, Colorado to Wamsutter in Sweetwater County, Wyoming) of the Entrega Pipeline.
Entrega states that copies of its transmittal letter and the unmarked tariff sheets have been mailed to all parties to this proceeding, Entrega's shipper and interested state regulatory agencies.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed on or before the date as indicated below. Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 17, 2005, Gas Transmission Northwest Corporation (GTN) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1-A, Sub Twenty-Sixth Revised Sheet No. 15, to become effective November 1, 2005.
GTN states that this sheet is being submitted to correct an error in GTN's reporting of negotiated rate transactions that it has entered into.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 18, 2005, Gas Transmission Northwest Corporation (GTN) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1-A, the following tariff sheets, to become effective November 19, 2005:
GTN states that these sheets are being filed to update GTN's reporting of negotiated rate transactions that it has entered into.
GTN further states that a copy of this filing has been served on GTN's jurisdictional customers and interested state regulatory agencies.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 18, 2005, Gulf South Pipeline Company, LP (Gulf South) tendered for filing as part of its FERC Gas Tariff, Sixth Revised Volume No. 1, the following tariff sheets, to become effective October 1, 2005:
Gulf South states that the purpose of this filing is to update Gulf South's tariff to reflect the Annual Charge Adjustment (ACA) factor to be effective beginning October 1, 2005.
Gulf South states that copies of this filing have been served upon Gulf South's customers, state commissions and other interested parties.
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 in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
New York Industrial Energy Buyers, LLC (NYIEB) and New York Commercial Energy Buyers, LLC (NYCEB) filed an application for market-based rate authority, with accompanying tariffs. The proposed market-based rate tariffs provides for the sales of capacity and energy at market-based rates. NYIEB and NYCEB also requested waiver of various Commission regulations. In particular, NYIEB and NYCEB requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by NYIEB and NYCEB.
On November 17, 2005, pursuant to delegated authority, the Director, Division of Tariffs and Market Development—South, granted the request for blanket approval under part
Notice is hereby given that the deadline for filing motions to intervene or protests is December 19, 2005.
Absent a request to be heard in opposition by the deadline above, NYIEB and NYCEB are authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of NYIEB and NYCEB, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of NYIEB's and NYCEB's issuances of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Noble Thumb Windpark I LLC (Noble Thumb) filed an application for market-based rate authority, with an accompanying rate tariff. The proposed rate tariff provides for wholesale sales of energy, capacity and ancillary services at market-based rates. Noble Thumb also requested waiver of various Commission regulations. In particular, Noble Thumb requested that the Commission grant blanket approval under 18 CFR part 34 of all future issuances of securities and assumptions of liability by Noble Thumb.
On November 17, 2005, the Commission granted the request for blanket approval under part 34, but stated that:
Any person desiring to be heard or to protest the blanket approval of issuances of securities or assumptions of liability by Noble Thumb should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure. 18 CFR 385.211, 385.214 (2004).
Absent a request to be heard in opposition by the deadline above, Noble Thumb is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of Noble Thumb, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approval of Noble Thumb's issuances of securities or assumptions of liability.
Copies of the full text of the Commission's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on November 21, 2005, Sabine Pipe Line LLC (Sabine) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets, to become effective December 1, 2005:
Sabine states that it is submitting the Agreement for Commission approval because the Agreement deviates from the Form of Service Agreement in Sabine's tariff by omitting Section 8.1 from Article VIII. The tariff sheets are filed to add Section 25 “Non-conforming Agreements” to the General Terms and Conditions of Sabine's tariff.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date
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
San Diego Gas & Electric Co. v. Sellers of Energy and Ancillary Services; Investigation of Practices of the California Independent System Operator and the California Power Exchange; Fact-Finding Investigation into Possible Manipulation of Electric and Natural Gas Prices; Enron Power Marketing, Inc. and Enron Energy Services, Inc.; Enron Power Marketing, Inc. and Enron Energy Services, Inc.; Portland General Electric Company; Enron Power Marketing, Inc.; El Paso Electric Company, Enron Power Marketing, Inc., and Enron Capital and Trade Resources Corporation; and Enron Power Marketing, Inc.
Take notice that on November 18, 2005, Enron
According to the Parties, expedited filing of comments on the Settlement will facilitate Commission consideration of the Settlement, and will also streamline the captioned proceedings by removing issues surrounding the Nevada Companies' dealings with Enron from the proceedings without prejudicing participants. The Parties have requested that the Commission establish the following schedule: Initial comments on the Settlement should be filed by November 30, 2005, reply comments should be filed by December 7, 2005, and the Commission's decision should be rendered by January 31, 2006. The Parties also request that the Commission review the Settlement without prior certification by an Administrative Law Judge and an expedited decision by January 31, 2006, “to achieve the full benefits of the Settlement, to eliminate additional litigation expenses, to effectuate judicial economy, and to protect the interests of all Remaining Participants.
Upon consideration, the Commission establishes the following shorted comment procedures, as requested by the Parties: Initial comments on the Settlement must be filed no later than November 30, 2005, and reply comments must be filed no later than December 7, 2005.
Take notice that on November 9, 2005, Texas Gas Transmission, LLC (Texas Gas), 3800 Frederica Street, Owensboro, Kentucky 42301, filed in Docket No. CP06-22-000, an application pursuant to Sections 157.205, 157.208, and 157.216 of the Commission's Regulations under the Natural Gas Act (NGA) as amended, for authorization to construct the West Greenville—Elkton Lateral in Muhlenberg and Todd Counties, Kentucky, to decrease the risk of service interruption during periods of peak customer demand, under Texas Gas' blanket certificate issued in Docket No. CP82-407-000, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
Texas Gas states that it proposes to construct and operate the West Greenville—Elkton Lateral, which would consist of approximately 27.5 miles of natural gas pipeline (12.8 miles of 12-inch diameter and 14.7 miles of 10-inch diameter pipe) and appurtenant facilities, to provide an additional means of transporting natural gas to the Bowling Green, Kentucky, market area. Texas Gas also states that the proposed lateral would decrease the risk of service interruptions during customer demand periods. Texas Gas estimates that it would spend $14,165,000 to construct the proposed lateral.
Any questions concerning this application may be directed to counsel for Texas Gas, Kathy D. Fort, Manager of Certificates and Tariffs, Texas Gas Transmission, LLC, P.O. Box 20008,
This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Any person or the Commission's staff may, within 45 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the Regulations under the Natural Gas Act (18 CFR 157.205) a protest to the request. If no protest is filed within the time allowed therefor, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to Section 7 of the Natural Gas Act.
Take notice that on November 16, 2005, TransColorado Gas Transmission Company (TransColorado) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing, with an effective date of January 1, 2006.
TransColorado states that it is filing the above-referenced tariff sheets in compliance with the Commission's “Order Issuing Certificate” dated May 27, 2005 in Docket No. CP05-45-000.
TransColorado states that a copy of this filing has been served upon all parties on the official service list for this proceeding, as well as interested state commissions, customers, and other interested parties.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 17, 2005, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, First Revised Fifty-Ninth Revised Sheet No. 50 and Substitute Sixtieth Revised Sheet No. 50, to become effective November 1, 2005 and November 15, 2005, respectively.
Transco states that the purpose of the instant filing is to track fuel percentage changes attributable to transportation service purchased from Texas Gas Transmission, LLC (Texas Gas) under its Rate Schedule FT, the costs of which are included in the rates and charges payable under Transco's Rate Schedule FT-NT. This filing is being made pursuant to tracking provisions under Section 4 of Transco's Rate Schedule FT-NT.
Transco states that included in Appendix B attached to the filing is the explanation of the fuel percentage changes and details regarding the computation of the revised FT-NT rates.
Transco states that copies of the filing are being mailed to each of its FT-NT customers and interested State Commissions.
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 in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the
This filing is accessible on-line at
Take notice that on November 17, 2005, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, the tariff sheets listed on Appendix A to the filing.
Transco states that the purpose of the instant filing is to track rate changes attributable to storage services purchased from Dominion Transmission, Inc. (DTI) under its Rate Schedule GSS, the costs of which are included in the rates and charges payable under Transco's Rate Schedule GSS and LSS. This filing is being made pursuant to tracking provisions under Section 3 of Transco's Rate Schedule GSS and Section 4 of Transco's Rate Schedule LSS.
Transco states that included in Appendix B attached to the filing is the explanation of the rate changes and details regarding the computation of the revised GSS and LSS rates.
Transco states that copies of the filing are being mailed to each of its GSS and LSS customers and interested State Commissions.
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 in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on November 17, 2005, Viking Gas Transmission Company (Viking) tendered for filing to become part of its FERC Gas Tariff, First Revised Volume No. 1, the tariff sheets attached to the filing, to become effective on January 1, 2006.
Viking states that the purpose of this filing is to comply with Article XIII of the Stipulation and Agreement (Settlement) in Docket No. RP02-132-002 approved by Letter Order dated November 8, 2002. Article XIII of the Settlement provides that Viking would file to cancel Rate Schedule FT-D and remove all references to service under this rate schedule upon completion of Stage 4 of the rolled-in rate treatment of its expansion facilities approved by the Commission in Docket No. RP98-761-000. Accordingly, Viking is proposing herein to implement rates reflecting Stage 4 of the rolled-in rate treatment to be effective on January 1, 2006 and to delete all references to Rate Schedule FT-D.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing 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. Such protests must be filed in accordance with the provisions of section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on November 10, 2005, the Deputy Secretary of the Department of Energy, confirmed and approved Rate Schedules P-SED-F8 and P-SED-FP8, specified in Rate Order No. WAPA-126, for the Pick-Sloan Missouri Basin Program—Eastern Division (P-SMBP-ED).
Take notice that on November 10, 2005, the Deputy Secretary of the Department of Energy, confirmed and approved L-F6, specified in Rate Order No. WAPA-125 for Loveland Area Projects firm electric service.
Take notice that on November 16, 2005, Cinergy Entities submitted revised sheets for tariff filed and in this proceeding pursuant to a July 15, 2005 Commission Order.
Take notice that on October 31, 2005, the New York Independent System Operator, Inc. (NYISO) tendered for filing a report on its plan and schedule for shortening time periods for posting notices of price corrections and for correcting prices under its Temporary Extraordinary Procedures (TEP), as well as eventually phasing out the TEP altogether.
Take notice that on November 9, 2005, Hot Spring Power Company, LP, submits under protest a Conditional Notice of Cancellation of its Rate Schedule FERC No. 2.
Take notice that on November 8, 2005, the New York Independent System Operator, Inc. (NYISO) tendered for filing a report on certain errors that were made in the changes to the Market Mitigation Measures, Attachment H to its Market Administration and Control Area Services Tariff.
Take notice that on November 10, 2005, Southern California Edison Company (SCE) tendered for filing a revision to its Transmission Owner Tariff, FERC Electric Tariff, Section Revised Volume No. 6 with an effective date of January 10, 2006.
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
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on November 14, 2005, The Potomac Edison Company (Potomac Edison) and Allegheny Energy Service Corporation (AESC) (jointly referred to as Applicants), jointly tendered for filing an application under section 203 of the Federal Power Act for Commission authorization for Potomac Edison to assign its interest in the Borderline Interchange Agreement between The Potomac Edison Company of Virginia and Virginia Electric and Power Company (Borderline Interchange Agreement) to its affiliate, AESC as agent for Potomac Edison, Monongahela Power Company (Mon Power) and West Penn Power Company (West Penn). Mon Power and West Pennstate that they are affiliates of AESC and Potomac Edison. Also, pursuant to section 205 of the FPA, AESC tendered for filing the Borderline Interchange Agreement designated as an AESC rate schedule and Potomac Edison tendered for filing cancellation documents to terminate its Borderline Interchange Agreement. Virginia
The Applicants request that the Commission accept the Application and authorize the proposed assignment within sixty days of the date of filing, which is January 13, 2006. AESC requests that its Borderline Interchange Agreement become effective on January 13, 2006. Potomac Edison requests that the cancellation documents become effective on January 13, 2006. Dominion Virginia Power requests that its revised version of the Borderline Interchange Agreement become effective on January 13, 2006.
Applicants state that copies of the filing were served upon the Virginia State Corporation Commission and Virginia Electric and Power Company.
On November 14, 2005, Rugby Wind, LLC (Rugby Wind), located at 1125 NW Couch, Suite 700, Portland, OR 97209, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Rugby Wind, states that it is an Oregon limited liability company, will be engaged directly and exclusively in the business of owning all or part of one or more eligible facilities, and selling electric energy at wholesale. Rugby Wind further states that it is developing an approximately 150 megawatt wind power generation facility to be located in Pierce County, North Dakota. Rugby Wind explains that the Project will be an eligible facility pursuant to section 32(a)(2) of PUHCA.
Rugby Wind states it has served a copy of the filing on the Securities and Exchange Commission, the California Public Utilities Commission, the Oregon Public Utilities Commission, the Washington Utilities and Transportation Commission, the Utah Public Service Commission, the Idaho Public Utilities Commission, and the Wyoming Public Service Commission.
On November 14, 2005, Manzana Wind, LLC (Manzana), located at 1125 NW Couch, Suite 700, Portland, OR 97209, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to part 365 of the Commission's regulations.
Manzana, states that it is an Oregon limited liability company, will be engaged directly and exclusively in the business of owning all or part of one or more eligible facilities, and selling electric energy at wholesale. Manzana further states it is developing an approximately 300 megawatt wind power generation facility to be located in Kern County, California. Manzana explains that the project will be an eligible facility pursuant to section 32(a)(2) of PUHCA.
Manzana states it has served a copy of the filing on the Securities and Exchange Commission, the California Public Utilities Commission, the Oregon Public Utilities Commission, the Washington Utilities and Transportation Commission, the Utah Public Service Commission, the Idaho Public Utilities Commission, and the Wyoming Public Service Commission.
On November 14, 2005, Klondike Wind Power III, LLC (Klondike III), located at 1125 NW Couch, Suite 700, Portland, OR 97209, filed with the Federal Energy Regulatory Commission an application for determination of exempt wholesale generator status pursuant to Part 365 of the Commission's regulations.
Klondike III, states that it is an Oregon limited liability company, will be engaged directly and exclusively in the business of owning all or part of one or more eligible facilities, and selling electric energy at wholesale. Klondike III is developing an approximately 300 megawatt wind power generation facility to be located in Sherman County, Oregon. Klondike III further states that the Project will be an eligible facility pursuant to section 32(a)(2) of PUHCA.
Klondike III states that it has served a copy of the filing on the Securities and Exchange Commission, the California Public Utilities Commission, the Oregon Public Utilities Commission, the Washington Utilities and Transportation Commission, the Utah Public Service Commission, the Idaho Public Utilities Commission, and the Wyoming Public Service Commission.
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
Parties and interested persons are invited to attend a technical conference in the above-referenced California Independent System Operator Corp (CAISO) proceeding on Wednesday, December 7, 2005, at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, from 9:30 a.m. until 5 p.m. (e.s.t.).
The technical conference will address the issues identified in the interventions and protests filed in this docket, as well as the responses in the CAISO's answer to those interventions and protests.
Questions about the conference should be directed to: Connie Caldwell; Office of the General Counsel; Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426; (202) 502-6489;
Parties are invited to attend a technical conference in the above-referenced Oklahoma Gas and Electric Company (OG&E) proceeding on December 1, 2005 at Commission Headquarters, 888 First Street, NE., Washington, DC 20426. The technical conference will be held from 10 a.m. until 5 p.m, in Conference Room 3M2-A. Arrangements have been made for parties to listen to the technical conference by telephone.
On July 2, 2004, the Commission approved OG&E's Offer of Settlement in this proceeding subject to certain modifications. In the Offer of Settlement, OG&E offered a number of permanent and interim mitigation measures. Among these mitigation measures was a commitment to construct a 600 MW Bridge between InterGen's Redbud Energy Project and OG&E's control area that would create an additional 600 MWs of available transmission capacity. See Oklahoma Gas and Electric and NRG McClain LLC, 105 FERC ¶ 61,297 (2003), order approving settlement, 108 FERC ¶ 61,004 (2004). On May 31, 2005, OG&E filed a letter informing the Commission that, as of May 19, 2005, all of the facilities that OG&E committed to construct under the Offer of Settlement were placed into commercial operation.
The purpose of the conference is to discuss whether the upgrades completed by OG&E resulted in an additional 600 MWs of available transmission capacity, as required in the July 2004 Order.
Questions about the conference and the telephone conference call arrangements should be directed to: David Hunger,
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 30, 2005.
Submit your comments, referencing docket ID Number OPPT-2005-0009, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Barbara Cunningham, Acting Director, Environmental Assistance Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, Mailcode: 7408, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 202-554-1404; 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 March 23, 2005 (70 FR 14674), EPA sought comments on this renewal ICR pursuant to 5 CFR 1320.8(d). EPA received two comments during the comment period, which are addressed in the Supporting Statement of the ICR. Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. OPPT-2005-0009, which is available for online viewing at
EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as
EPA uses the information obtained through this collection to evaluate the health and environmental effects of the significant new use. EPA may take regulatory actions under TSCA sections 5, 6 or 7 to control the activities for which it has received a SNUR notice. These actions include orders to limit or prohibit the manufacture, importation, processing, distribution in commerce, use or disposal of chemical substances. If EPA does not take action, section 5 also requires EPA to publish a
Responses to the collection of information are mandatory (
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act, this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. This ICR is scheduled to expire on December 31, 2005. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. This ICR describes the nature of the information collection and its estimated burden and cost.
Additional comments may be submitted on or before December 30, 2005.
Submit your comments, referencing docket ID number OECA-2005-0018, to (1) EPA online using EDOCKET (our preferred method), by e-mail to
Mari
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 6, 2005 (70 FR 24020), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments.
EPA has established a public docket for this ICR under Docket ID Number OECA-2005-0018, which is available for public viewing at the Enforcement and Compliance Docket and Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for
Any comments related to this ICR should be submitted to EPA and OMB within 30 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI) or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket,
Owners or operators of the affected facilities described must make the following one-time only reports: Notification of the date of construction or reconstruction; notification of the anticipated and actual dates of startup; notification of any physical or operational change to an existing facility which may increase the regulated pollutant emission rate; notification of the date of the initial performance test; and the results of the initial performance test. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. In general, these notifications, reports and records are required of all sources subject to NSPS.
Monitoring requirements specific to this NSPS provide information regarding which components are leaking VOCs. This rule references the compliance requirements of 40 CFR part 60, subpart VV. On a periodic basis, which varies depending on equipment type and leak history, owners or operators are required to record: (1) Information identifying leaking equipment; (2) repair methods used to stop the leaks; and (3) dates of repair. Semiannual reports are required to measure compliance with the standards of NSPS subpart VV as referenced by NSPS subpart GGG . These notifications, reports, and records are essential in determining compliance and in general, are required of all sources subject to NSPS.
This information is being collected to assure compliance with 40 CFR part 60 subpart GGG. Any owner or operator subject to the provisions of this part will maintain a file of these records, and retain the file for at least two years following the date of such records. The reporting requirements for this industry currently include only the initial notifications and initial performance test report listed above. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's Reregistration Eligibility Decision (RED) for the pesticide dodine, and opens a public comment period on this document. The
Comments, identified by docket identification number (ID) number OPP-2005-0266, must be received on or before January 30, 2006.
Comments may be submitted electronically, by mail, or through hand delivery/courier. Follow the detailed instructions as provided in Unit I. of the
Cathryn O'Connell, Special Review and Reregistration Division (7508C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0136; fax number: (703) 308-8041; e-mail address: oconnell.cathryn
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although, not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or on paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your response. It would also be helpful, if you provided the name, date, and
Under section 4 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is reevaluating existing pesticides to ensure that they meet current scientific and regulatory standards. EPA has completed a Reregistration Eligibility Decision (RED) for the pesticide, dodine under section 4(g)(2)(A) of FIFRA. Dodine is a fungicide used primarily on fruits and nuts and is registered for control of a range of pathogenic fungi that affect a number of agricultural and some ornamental crops. There are no registered residential uses of dodine. The dodine RED addresses the tolerance reassessment for all the currently registered uses of dodine. Another active ingredient of similar chemical composition and properties, dodecylguanidine hydrochloride (DGH), is included with dodine in case number 0161. DGH has only antimicrobial uses, some of which may occur in a residential environment, i.e., treatment of paper that comes into contact with food, paint additives, and anti-bacterial treatment of diapers. Because of the similarity of these compounds, EPA has considered the contribution to overall risk of the DGH uses in its aggregate assessment for dodine. However, the RED for the antimicrobial uses of DGH will be issued at a later date.
EPA has determined that the data base to support reregistration is substantially complete and that products containing dodine are eligible for reregistration provided the risks are mitigated in the manner described in the RED. Upon submission of any required product-specific data under section 4(g)(2)(B) and any necessary changes to the registration and labeling (either to address concerns identified in the RED or as a result of product-specific data), EPA will make a final reregistration decision under section 4(g)(2)(C) for products containing dodine.
EPA must review tolerances and tolerance exemptions that were in effect when the Food Quality Protection Act was enacted in August 1996, to ensure that these existing pesticide residue limits for food and feed commodities meet the safety standard established by the new law. Tolerances are considered reassessed once the safety finding has been made or a revocation occurs. EPA has reviewed and made the requisite safety finding for the dodine tolerances included in this notice.
EPA is applying the principles of public participation to all pesticides undergoing reregistration and tolerance reassessment. The Agency's Pesticide Tolerance Reassessment and Reregistration; Public Participation Process, published in the
The reregistration program is being conducted under Congressionally mandated time frames, and EPA recognizes the need both to make timely decisions and to involve the public. The Agency is issuing the dodine RED for public comment. This comment period is intended to provide an opportunity for public input and a mechanism for initiating any necessary amendments to the RED. All comments should be submitted using the methods in Unit I. of the
The Agency will carefully consider all comments received by the closing date in the Docket and electronic EDOCKET. If any comment significantly affects the document, EPA will also publish an amendment to the RED in the
Section 4(g)(2) of FIFRA as amended directs that, after submission of all data concerning a pesticide active ingredient, the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration, before calling in product-specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Section 408(q) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(q), requires EPA to review tolerances and exemptions for pesticide residues in effect as of August 2, 1996, to determine whether the tolerance or exemption meets the requirements of section 408(b)(2) or (c)(2) of FFDCA. This review is to be completed by August 3, 2006.
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of the fungicide metiram: a mixture of 5.2 parts by weight of ammoniates of ethylenebis(dithiocarbamato) zinc with 1 part by weight ethylenebis (dithiocarbamic acid) bimolecular and trimolecular cyclic anhydrosulfides and disulfides, calculated as zinc ethylenebisdithiocarbamate in or on imported bananas (whole fruit) and grapes
.Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0308 and pesticide petition (PP) number PP9E6006, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Lisa Jones, Registration Division (7505C), Office of Pesticide Programs, U. S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460-0001; phone number: 703-308-9424; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is printing notice of filing of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the fungicide metiram: a mixture of 5.2 parts by weight of ammoniates of ethylenebis(dithiocarbamate) zinc with 1 part by weight ethylenebis(dithiocarbamic acid) bimolecular and trimolecular cyclic anhydrosulfides and disulfides, calculated as zinc ethylenebisdithiocarbamate in or on bananas (whole fruit) and grapes. EPA has determined that the pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
PP 9E6006. BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709, proposes to establish tolerances for the combined residues of the fungicide metiram: a mixture of 5.2 parts by weight of ammoniates of ethylenebis(dithiocarbamato) zinc with 1 part by weight ethylenebis(dithiocarbamic acid) bimolecular and trimolecular cyclic anhydrosulfides and disulfides, calculated as zinc ethylenebisdithiocarbamate in or on the food commodities imported bananas (whole fruit) at 5.0 parts per million (ppm) and grapes at 7.0 ppm. The nature of the residue in grapes and bananas is also adequately understood. The residues of concern are the parent compound, metiram and its metabolite ethylenethiourea (ETU). BASF has developed an analytical method converting metiram to carbon disulfide (CS2) and quantitating using photometric measurement of the Ultraviolet (UV) absorption at 302 nm. An analytical method using high performance liquid chromatography with electrochemical detection for the determination of ETU was also developed. These methods have been confirmed through independent laboratory validations.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of the fungicide prothioconazole and its desthio metabolite in or on barley, bran/grain/hay/pearled/straw; black mustard/borage/canola/ crambe/field mustard/flax/Indian mustard/Indian rapeseed/rapeseed, seed; flax, grain and aspirated fractions; peas and beans, dried shelled (except soybeans); peanut, nutmeat/hay/ meal; rice, grain/straw/hulls; and wheat, grain/bran/forage/germ/hay/straw; and for residues of prothioconazole, its desthio and 4-hydroxy metabolites, and conjugates of each in cattle, meat/meat byproducts/fat/milk.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0312 and pesticide petition (PP) number PP 4F6830, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Lana Coppolino, Registration Division (7505C), Office of Pesticide Programs, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 703-305-0086; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary of interest in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is printing a summary of the pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the fungicide prothioconazole and its desthio metabolite in or on barley, bran/grain/hay/pearled/straw; black mustard/borage/canola/ crambe/field mustard/flax/Indian mustard/Indian rapeseed /rapeseed, seed; flax, grain and aspirated fractions; peas and beans, dried shelled (except soybeans); peanut, nutmeat/hay/ meal; rice, grain/straw/hulls; and wheat, grain/bran/ forage/germ/hay/straw; and for residues of prothioconazole, its desthio and 4-hydroxy metabolites, and conjugates of each in cattle, meat/meat byproducts/fat/milk. EPA has determined that this pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on this pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of the herbicide diuron in or on catfish, edible portions.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0272 and pesticide petition (PP) number PP6F4680, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Jim Tompkins, Product Manager (25), Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5697; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do
1
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is printing a summary of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the herbicide diuron in or on catfish, edible portions. EPA has determined that the pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on the pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of the fungicide mancozeb in or on almond nuts and hulls; broccoli, cabbage, lettuce and peppers; and imported mandarin oranges/mandarins.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0307 and pesticide petition (PP) numbers PP 3E6536, 4F4324, and PP 4F4333, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Lisa Jones, Registration Division (7505C), Office of Pesticide Programs, U. S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW, Washington, DC 20460-0001; phone number: 703-308-9424; e-mail address:
You may be potentially affected by this action if you an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed at the end of the pesticide petition summary of interest.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary of interest in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and the
EPA is printing notice of filing of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the fungicide mancozeb in or on almond nuts and hulls; broccoli, cabbage, lettuce and peppers; and imported mandarin oranges/mandarins. EPA has determined that these pesticide petitions contain data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
1.
2.
3.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of the fungicide fenhexamid in or on cilantro, ginseng, non-bell pepper, and pomegranate.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0245 and pesticide petition (PP) numbers 4E6859 and 4E6860, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Maria I. Rodriguez, Registration Division, (7505C), Office of Pesticide Programs, U. S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; (703) 305-6710; e-mail:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary of interest in the subject line on the first page of your response. It would also be helpful if you would provide the name, date, and
EPA is printing a summary of each pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. EPA has determined that these pesticide petitions contain data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of pesticide petitions proposing the establishment of regulations for residues of the insect growth regulator buprofezin, 2-[(1,1-dimethylethyl)imino]tetrahydro-3(1-methylethyl)-5-phenyl-4H-1,3,5-thiadiazin-4-one in or on citrus, fruit; citrus, dried pulp; citrus, oil; and the amendment of regulations for residues in or on almond, hulls; cotton, gin byproducts, cotton, undelinted seed; and tomato.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0289 and pesticide petition (PP) numbers PP 0F6087 and PP 5F6968, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Melody Banks, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5413; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
1.
i.
ii.
iii.
2.
3.
Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary of interest in the subject line on the first page of your response. You may also provide the name, date, and
EPA is printing a summary of each pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the insect growth regulator buprofezin in or on citrus, fruit; citrus, dried pulp; citrus, oil; and the amendment of regulations for residues in or on almond, hulls; cotton, gin byproducts, cotton, undelinted seed; and tomato. EPA has determined that these pesticide petitions contain data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical methods available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the amendment of a regulation for residues of the plant-pesticide
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0282 and pesticide petition (PP) number PP 3G6547, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Leonard Cole, Biopesticides and Pollution Prevention Division (7511C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-5412; e-mail:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide
1.
2.
An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number in the subject line on the first page of your response. You may also provide the name, date, and citation.
EPA is printing a summary of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the amendment of a regulation in 40 CFR part 180 for residues of the plant-pesticide
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical method available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for residues of the herbicide flumiclorac pentyl ester in or on cotton, undelinted seed and gin byproducts.
Comments must be received on or before December 30, 2005.
Comments, identified by docket identification (ID) number OPP-2005-0311 and pesticide petition (PP) number PP3F6767, may be submitted electronically, by mail, or through hand delivery or courier. Follow the detailed instructions as provided in Unit I. of the
Joanne Miller, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6224; e-mail address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. To the extent feasible, publicly available docket materials will be made available in EPA's electronic public docket. When a document is selected from the index list in EPA Dockets, the system will identify whether the document is available for viewing in EPA's electronic public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.B.1. EPA intends to work towards providing electronic access to all of the publicly available docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.
You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket ID number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments. If you wish to submit CBI or information that is otherwise protected by statute, please follow the instructions in Unit I.D. Do not use EPA Dockets or e-mail to submit CBI or information protected by statute.
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Do not submit information that you consider to be CBI electronically through EPA's electronic public docket or by e-mail. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket and EPA's electronic public docket. If you submit the copy that does not contain CBI on disk or CD ROM, mark the outside of the disk or CD ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person listed under
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Make sure to submit your comments by the deadline in this notice.
7. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action and the pesticide petition number of the summary in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
EPA is printing a summary of a pesticide petition received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, proposing the establishment of regulations in 40 CFR part 180 for residues of the herbicide flumiclorac pentyl ester in or on cotton, undelinted seed and gin byproducts. EPA has determined that the pesticide petition contains data or information regarding the elements set forth in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petition. Additional data may be needed before EPA rules on the pesticide petition.
Pursuant to 40 CFR 180.7(f), a summary of the petition, prepared by the petitioner along with a description of the analytical method available for the detection and measurement of the pesticide chemical residues is available on EPA's Electronic Docket at
PP 3F6767. Valent U.S.A. Corporation, 1600 Riviera Ave., Suite 200, Walnut Creek, CA 94596-8025, proposes to establish a tolerance for residues of the herbicide flumiclorac pentyl ester, pentyl [2-chloro-4-fluoro-5-(1,3,4,5,6,7-hexahydro-1,3-dioxo-2
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Environmental Protection Agency.
Notice of proposed settlement; request for public comment.
In accordance with section 122(h) of the Comprehensive Environmental Response Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past costs concerning the Zimble Drum Superfund Site in Norwood,
The Agency's response to any comments received will be available for public inspection at One Congress Street, Boston, MA 02114-2023 (Telephone No. 617-1440).
Comments must be submitted within thirty (30) days of publication of this notice.
Comments should be addressed to Audrey Zucker, Enforcement Counsel, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100 (SES), Boston, Massachusetts 02114-2023 (Telephone No. 617-918-1788) and should refer to: In re: Zimble Drum Superfund Site, U.S. EPA Docket No. 01-2005-0023.
A copy of the proposed settlement may be obtained from Audrey Zucker, Enforcement Counsel, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100 (SES), Boston, Massachusetts 02114-2023 (Telephone No. 617-918-1788; E-mail
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's receipt of test data on 1,1,2-Trichloroethane (1,1,2-TCE)(CAS No. 79-00-5). These data were submitted pursuant to an Enforceable Consent Agreement (ECA) and Testing Consent Order issued by EPA under section 4 of the Toxic Substances Control Act (TSCA).
Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (202) 554-1404; e-mail address:
This action is directed to the public in general. This action may, however, be of interest to those persons who are concerned about data on health and/or environmental effects and other characteristics of this chemical. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
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An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at
Under 40 CFR 790.60, all TSCA section 4 ECA orders must contain a statement that results of testing conducted pursuant to ECA orders will be announced to the public in accordance with section 4(d) of TSCA.
Test data for 1,1,2-TCE, a Hazardous Air Pollutant (HAP) listed under section 112 of the Clean Air Act Amendments of 1990, were submitted by the HAP Task Force. These data were submitted pursuant to a TSCA section 4 ECA order and were received by EPA on May 5, 2005, August 9, 2005, October 13, 2005, and October 13, 2005. The submission includes the following final reports titled:
1. “A Prenatal Development Toxicity Study of 1,1,2-Trichloroethane via Drinking Water in Rats.”
2. “1,1,2-Trichloroethane: Subchronic Neurotoxicity Study in F344/DUCRL Rats.”
3. “Route-to Route Extrapolation of 1,1,2-Trichloroethane Studies from the Oral Route to Inhalation Using Physiologically Based Pharmacokinetic Models: Subchronic Neuroticicity.”
4. “Route-to-Route Extrapolation of 1,1,2-Trichloroethane Studies from the Oral Route to Inhalation Using Physiologically Based Pharmacokinetic Models: Developmental Toxicity.”
The air pollutant, 1,1,2-TCE is used as an intermediate in the production of vinylidene chloride and some tetrachloroethanes. It is also used as a solvent, and in adhesives, lacquers, in electronic components, and in the production of Teflon®.
EPA has initiated its review and evaluation process for this submission. At this time, the Agency is unable to provide any determination as to the completeness of the submission.
15 U.S.C. 2603.
Environmental protection, Hazardous substances, Toxic substances.
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 (PRA) of 1995, Public Law No. 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 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 January 30, 2006. 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 your Paperwork Reduction Act (PRA) comments by e-mail or U.S. postal mail. To submit your comments by e-mail send them to
For additional information about the information collection(s) send an e-mail to
47 CFR 73.1615(d) requires the licensee of an AM station holding a construction permit which authorizes both a change in frequency and directional facilities to obtain authority from the FCC prior to using any new installation authorized by the permit, or using temporary facilities. This request is to made by letter 10 days prior to the date on which the temporary operation is to commence. The letter shall describe the operating modes and the facilities to be used.
Federal Communications Commission.
Notice.
In this document, the Commission seeks comment on a petition for rulemaking to mandate captioned telephone relay service and to approve Internet-Protocol (IP) captioned telephone relay service. Captioned telephone service is a form of telecommunications relay service (TRS) that permits persons, on the same device, to simultaneously listen to what the other party is saying and read captions of what the other party is saying. Presently the service is eligible for compensation from the Interstate TRS Fund (Fund), but is not mandatory. The petition asks the Commission to initiate a rulemaking for the purpose of making captioned telephone service a mandatory form of TRS and approving IP captioned telephone service as eligible for compensation from the Fund.
Comments are due on or before December 30, 2005. Reply comments are due on or before January 17, 2006.
You may submit comments identified by [docket number and/or rulemaking number], by any of the following methods:
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For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Dana Jackson, (202) 418-2247 (voice), (202) 418-7989 (TTY), or e-mail
This is a summary of the Commission's document DA 05-2961, released November 14, 2005. Pursuant to §§ 1.415 and 1.419 of the Commission rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.
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▪ For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to
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▪ The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
▪ Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
▪ U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554.
Pursuant to § 1.1206 of the Commission's rules, 47 CFR 1.1206, this proceeding will be conducted as a permit-but-disclose proceeding in which
The full text of document DA 05-2961 and copies of any subsequently filed documents relating to this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document and copies of subsequently filed documents in this matter may also be purchased from the Commission's contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact the Commission's contractor at their Web site
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
Petitions for Reconsideration have been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of these documents is available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). Oppositions to these petitions must be filed by December 15, 2005. See Section 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions have expired.
In the Matter of Amendment of Section 73.202(b) Table of Allotments, FM Broadcast Stations, Elberton and Union Point, Georgia (MB Docket 05-191).
Petition for Reconsideration has been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). Oppositions to the petition must be filed by December 15, 2005. See Section 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions have expired.
The Federal Maritime Commission hereby gives notice that the following Ocean Transportation Intermediary licenses have been revoked pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, effective on the corresponding date shown below:
License Number: 002105F
Name: A.P. Champagne Co., Inc.
Address: 822 Perdido Street, Suite 301, New Orleans, LA 70112.
Date Revoked: October 31, 2005.
Reason: Surrendered license voluntarily.
License Number: 000128F
Name: “AA” Pacific Express, Enterprises
Address: 2145 North Tyler Avenue, Suite B, South El Monte, CA 91733.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 017441N
Name: Al G. Wichterich Inc. dba Worldwide Express
Address: 9327 Tranquil Park Drive, Spring, TX 77379.
Date Revoked: October 29, 2005.
Reason: Failed to maintain a valid bond.
License Number: 013013N
Name: Alelqui Lines, Inc.
Address: 59-46 64th Street, Maspeth, NY 11378.
Date Revoked: August 13, 2005.
Reason: Failed to maintain a valid bond.
License Number: 002708F
Name: Aloyd Forwarding Company, Inc.
Address: 45 Rason Road, Inwood, NY 11096.
Date Revoked: October 21, 2005.
Reason: Failed to mantain a valid bond.
License Number: 015507N
Name: Ampac Freight Service, Inc.
Address: 3234 Arden Road, Hayward, CA 94554.
Date Revoked: October 26, 2005.
Reason: Failed to maintain a valid bond.
License Number: 019380N
Name: Autolog Forwarding Corp.
Address: 1701 East Linden Avenue, Linden, NJ 07036.
Date Revoked: October 21, 20005.
Reason: Failed to maintain a valid bond.
License Number: 017614N
Name: E-Z Express Corporation
Address: 58 N. Virginia Court, Englewood Cliffs, NJ 07632.
Date Revoked: September 2, 2005.
Reason: Failed to maintain a valid bond.
License Number: 004239F
Name: Emery Global Logistics, Inc.
Address: One Lagoon Drive, Suite 400, Redwood City, CA 94065.
Date Revoked: October 20, 2005.
Reason: Failed to maintain a valid bond.
License Number: 019348NF
Name: Full Package Logistics Inc.
Address: 1890 NW. 82nd Avenue, Suite 101, Miami, FL 33126.
Date Revoked: October 29, 2005.
Reason: Failed to maintain valid bonds.
License Number: 017926N
Name: GQ Logistics, Inc.
Address: 11222 La Cienega Blvd., Suite 510, Inglewood, CA 90304 Date Revoked: October 9, 2005.
Reason: Failed to maintain a valid bond.
License Number: 002953F
Name: General Brokerage Services, Inc.
Address: 5253 NW. 36th Street, Miami Springs, FL 33166.
Date Revoked: November 16, 2005.
Reason: Failed to maintain a valid bond.
License Number: 017080N
Name: General Cargo & Logistics
Address: 3405 Rindge Lane, Redondo Beach, CA 90278.
Date Revoked: November 7, 2005.
Reason: Failed to maintain a valid bond.
License Number: 017443N
Name: Grace Cargo, Inc.
Address: 648 Marsat Court, Suite B, Chula Vista, CA 91911
Date Revoked: October 9, 2005.
Reason: Failed to maintain a valid bond.
License Number: 017129N
Name: Hercules Packing Shipping & Moving Co., Inc.
Address: 23-96 48th Street, Astoria, NY 11103.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 019033F
Name: HUA Feng (USA) Logistics Inc.
Address: 11222 S. La Cienega Blvd., Suite 608, Inglewood, CA 90304.
Date Revoked: October 15, 2005.
Reason: Failed to maintain a valid bond.
License Number: 004268F
Name: J & S Universal Services, Inc. dba, Patrick & Rosenfeld Shipping Corp.
Address: 12972 SW. 133 Court, Suite A, Miami, FL 33186.
Date Revoked: October 30, 2005.
Reason: Failed to maintain a valid bond.
License Number: 000379F
Name: Joseph C. Murray & Co., Inc.
Address: 139 Fulton Street, New York, NY 10038.
Date Revoked: November 11, 2005.
Reason: Failed to maintain a valid bond.
License Number: 017848N
Name: K2 International, LLC dba All-Ways Cargo Services.
Address: 2782 Eagandale Blvd., Eagan, MN 55121.
Date Revoked: October 8, 2005.
Reason: Failed to maintain a valid bond.
License Number: 003444N
Name: Kosmo International, Inc.
Address: 2125 Center Avenue, Suite 207A, Fort Lee, NJ 07024.
Date Revoked: October 15, 2005.
Reason: Failed to maintain a valid bond.
License Number: 000128F
Name: Lusk Shipping Company, Inc.
Address: 408 Magazine Corner, New Orleans, LA 70130.
Date Revoked: November 9, 2005.
Reason: Failed to maintain a valid bond.
License Number: 000016F
Name: Major Forwarding Company, Inc.
Address: 159-15 Rockaway Blvd., Jamaica, NY 11434.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 003957F
Name: Marmara, Inc.
Address: 6 Self Boulevard, Carteret, NJ 07008.
Date Revoked: October 8, 2005.
Reason: Failed to maintain a valid bond.
License Number: 003326F
Name: Modern Cargo Services, Inc.
Address: 12870 NW 107th Court, Miami, FL 33178.
Date Revoked: November 2, 2005.
Reason: Failed to maintain a valid bond.
License Number: 012361N
Name: North American Van Lines, Inc.
Address: 5001 U.S. Highway 30 West, Ft. Wayne, IN 46618.
Date Revoked: November 1, 2005.
Reason: Surrendered license voluntarily.
License Number: 002474F
Name: Projects Transportation International Ltd.
Address: 10607 Southwest Hwy 1C, P.O. Box 613, Worth, IL 60432.
Date Revoked: November 8, 2005.
Reason: Failed to maintain a valid bond.
License Number: 002946F
Name: R.C.A. Shipping Corp.
Address: 23-41 33rd Avenue, Long Island City, NY 11106.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 019170N
Name: Seabound Freight, LLC
Address: 12972 133rd Court, Suite A, Miami, FL 33182.
Date Revoked: October 30, 2005.
Reason: Failed to maintain a valid bond.
License Number: 018110F
Name: Sirva Freight Forwarding, Inc. dba North American International.
Address: 5001 U.S. Highway 30 West, Ft. Wayne, IN 46818.
Date Revoked: November 1, 2005.
Reason: Surrendered license voluntarily.
License Number: 015932N
Name: Solomon Shipping & Trading Inc.
Address: 206 Main Street-Rear, Orange, NJ 07050.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 003643F
Name: Suren K. Demirjian dba Surdem International
Address: 136 East 56th Street, Suite 3-K, New York, NY 10022.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
License Number: 003363N and 003363F
Name: Transportation Services International, Inc.
Address: 1418 E. Linden Avenue, Linden, NJ 07036.
Date Revoked: September 14, 2005 and October 20, 2005.
Reason: Failed to maintain valid bonds.
License Number: 019402N
Name: Ubique Logistics, Inc.
Address: 179-14 149th Road, Jamaica, NY 11434.
Date Revoked: November 15, 2005.
Reason: Surrendered license voluntarily.
License Number: 017952N
Name: Uniworld Cargo Shipping Lines, LLC
Address: 4000 West Side Avenue, North Bergen, NJ 07047.
Date Revoked: October 14, 2005.
Reason: Failed to maintain a valid bond.
License Number: 019009NF
Name: Vivek Shipping Company, LLC
Address: 106 Country Mill Lane, Stockbridge, GA 30281.
Date Revoked: October 6, 2005.
Reason: Failed to maintain valid bonds.
License Number: 016535N
Name: World Trans Logistic Inc. dba World Air Logistic Co.
Address: 841 E. Sandhill Avenue, Carson, CA 90746.
Date Revoked: November 6, 2005.
Reason: Failed to maintain a valid bond.
Notice is hereby given that the following Ocean Transportation Intermediary license has been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel-Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. app. 1718 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
Notice is hereby given that the Order revoking the following license is being rescinded by the Federal Maritime Commission pursuant to sections 14 and 19 of the Shipping Act of 1984 (46 U.S.C. app. 1718) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 15, 2005.
Board of Governors of the Federal Reserve System, November 25, 2005.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination of the waiting period provided by law and the premerger notification rules. The grants were made by the Federal Trade Commission and the Assistant Attorney General for the Antitrust Division of the Department of Justice. Neither agency intends to take any action with respect to these proposed acquisitions during the applicable waiting period.
Sandra M. Peay, Contact Representative or Renee Hallman, Contact Representative.
Federal Trade Commission, Premerger Notification Office, Bureau of
By direction of the Commission.
Office of the Secretary, DHHS.
Notice.
The Federal Medical Assistance Percentages and Enhanced Federal Medical Assistance Percentages for Fiscal Year 2007 have been calculated pursuant to the Social Security Act (the Act). These percentages will be effective from October 1, 2006 through September 30, 2007. This notice announces the calculated “Federal Medical Assistance Percentages” and “Enhanced Federal Medical Assistance Percentages” that we will use in determining the amount of Federal matching for State medical assistance (Medicaid) and State Children's Health Insurance Program (SCHIP) expenditures, and Temporary Assistance for Needy Families (TANF) Contingency Funds, the Federal share of Child Support Enforcement collections, Child Care Mandatory and Matching Funds of the Child Care and Development Fund, Foster Care Title IV-E Maintenance payments, and Adoption Assistance payments. The table gives figures for each of the 50 States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Programs under title XIX of the Act exist in each jurisdiction; programs under titles I, X, and XIV operate only in Guam and the Virgin Islands; while a program under title XVI (Aid to the Aged, Blind, or Disabled) operates only in Puerto Rico. Programs under title XXI began operating in fiscal year 1998. The percentages in this notice apply to State expenditures for most medical services and medical insurance services, and assistance payments for certain social services. The statute provides separately for Federal matching of administrative costs.
Sections 1905(b) and 1101(a)(8)(B) of the Act require the Secretary of Health and Human Services to publish the Federal Medical Assistance Percentages each year. The Secretary is to calculate the percentages, using formulas in sections 1905(b) and 1101(a)(8)(B), from the Department of Commerce's statistics of average income per person in each State and for the Nation as a whole. The percentages are within the upper and lower limits given in section 1905(b) of the Act. The percentages to be applied to the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands are specified in statute, and thus are not based on the statutory formula that determines the percentages for the 50 states.
The “Federal Medical Assistance Percentages” are for Medicaid. Section 1905(b) of the Act specifies the formula for calculating Federal Medical Assistance Percentages as follows:
“Federal medical assistance percentage” for any State shall be 100 per centum less the State percentage; and the State percentage shall be that percentage which bears the same ratio to 45 per centum as the square of the per capita income of such State bears to the square of the per capita income of the continental United States (including Alaska) and Hawaii; except that (1) the Federal medical assistance percentage shall in no case be less than 50 per centum or more than 83 per centum, (2) the Federal medical assistance percentage for Puerto Rico, the Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa shall be 50 per centum.
Section 4725 of the Balanced Budget Act of 1997 amended section 1905(b) to provide that the Federal Medical Assistance Percentage for the District of Columbia for purposes of titles XIX and XXI shall be 70 percent. For the District of Columbia, we note under the table of Federal Medical Assistance Percentages the rate that applies in certain other programs calculated using the formula otherwise applicable, and the rate that applies in certain other programs pursuant to section 1118 of the Social Security Act.
Section 2105(b) of the Act specifies the formula for calculating the Enhanced Federal Medical Assistance Percentages as follows:
The “enhanced FMAP”, for a State for a fiscal year, is equal to the Federal medical assistance percentage (as defined in the first sentence of section 1905(b)) for the State increased by a number of percentage points equal to 30 percent of the number of percentage points by which (1) such Federal medical assistance percentage for the State, is less than (2) 100 percent; but in no case shall the enhanced FMAP for a State exceed 85 percent.
The “Enhanced Federal Medical Assistance Percentages” are for use in the State Children's Health Insurance Program under Title XXI, and in the Medicaid program for certain children for expenditures for medical assistance described in sections 1905(u)(2) and 1905(u)(3) of the Act. There is no specific requirement to publish the Enhanced Federal Medical Assistance Percentages. We include them in this notice for the convenience of the States.
The percentages listed will be effective for each of the 4 quarter-year periods in the period beginning October 1, 2006 and ending September 30, 2007.
Kate Bloniarz or Robert Stewart, Office of Health Policy, Office of the Assistant Secretary for Planning and Evaluation, Room 447D—Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201, (202) 690-6870.
In accordance with section 10(d) of the Federal Advisory Committee Act (5 U.S.C., Appendix 2), announcement is made of a Health Care Policy and Research Special Emphasis Panel (SEP) meeting.
A Special Emphasis Panel is a group of experts in fields related to health care research who are invited by the Agency for Healthcare Research and Quality (AHRQ), and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly-scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to particpate in particular review meetings which require their type of expertise.
Substantial segments of the upcoming SEP meeting listed below will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications for “The Building Research Infrastructure Capacity” (BRIC) RFA, are to be reviewed and discussed at this meeting. These discussions are likely to reveal personal information concerning individuals associated with the applications. This information is exempt from mandatory disclosure under the above-cited statutes.
Agenda items for this meeting are subject to change as priorities dictate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of Guidance for Industry and FDA Staff entitled “Guidance for Records Access Authority Provided in Title III, Subtitle A, of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.” The document finalizes the draft guidance entitled “Draft Guidance for Records Access Authority Provided in Title III, Subtitle A, of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002.” The guidance clarifies the circumstances under which FDA may access and copy records under the Public Health Security and Bioterrorism Preparedness and Response Act of 2002. (“Bioterrorism Act”), and describes the procedure that FDA intends to follow to exercise its authority to inspect records under the Federal Food, Drug, and Cosmetic Act (the act).
Submit written or electronic comments on agency guidance documents at any time.
Submit written requests for single copies of the guidance entitled “Guidance for Records Access Authority Provided in Title III, Subtitle A, of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002” to the Division of Compliance Policy (HFC-230), Office of Enforcement, Office of Regulatory Affairs, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857. Send two self-addressed adhesive labels to assist that office in processing your request, or fax your request to 240-632-6861. Submit written comments on the final guidance to the Division of Dockets Management (HFA-305), 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Diane Kelley, Office of Regulatory Affairs (HFC-230), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 240-632-6860, or e-mail
In the
FDA received a number of comments in response to the draft guidance. The agency considered those within the scope of this document carefully and is making two changes to the draft guidance. First, we have expanded the answer to question III.C, which describes records FDA may not access, to clarify that FDA has authority to access lists of ingredients (sections 414(a) and 704(a) of the act. Second, we have changed the answer to question III. E, which describes how FDA intends to make a records request, to indicate that FDA intends to use a new form to make such a request. FDA has decided to create a specific form to document a request to access and copy records under the Bioterrorism Act. The form FDA 482c “Notice of Inspection—Request for Records” will be presented to the owner, operator, or agent in charge, once FDA determines that the threshold for requesting records has been attained. This form will assist industry and the agency in distinguishing this type of notice from a routine Notice of Inspection.
This Level 1 guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the agency's current thinking on how it will exercise its authority to access records under the Bioterrorism Act (sections 414(a) and 704(a) of the act (21 U.S.C. 350c and 374)). It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute, regulations, or both.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork
Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the final guidance at
Fish and Wildlife Service, Department of the Interior.
Notice of receipt of priority list.
The U.S. Fish and Wildlife Service (FWS) is publishing in the
Pam Matthes, Multistate Conservation Grants Program Coordinator, Division of Federal Assistance, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4020, Arlington, Virginia 22203; phone (703) 358-2156; or e-mail
The Wildlife and Sport Fish Restoration Programs Improvement Act of 2000 (Improvement Act) amended the Pittman-Robertson Wildlife Restoration Act (16 U.S.C. 669
To be eligible for funding, a project must benefit fish and/or wildlife conservation in at least 26 States, a majority of the States in a region of the FWS, or a regional association of State fish and wildlife agencies. Grants may be awarded to a State or group of States as well as to non-governmental organizations. For the purpose of carrying out the National Survey of Fishing, Hunting and Wildlife-Associated Recreation, grants may be awarded to the FWS or to a State or a group of States. Also, IAFWA requires all project proposals to address its National Conservation Needs, which are announced annually by the IAFWA at the same time as its request for proposals. Further, applicants must provide certification that no activities conducted under a Multistate Conservation Grant will promote or encourage opposition to the regulated hunting or trapping of wildlife or to the regulated angling for or taking of fish.
Eligible project proposals are reviewed and ranked by IAFWA Committees and interested non-governmental organizations that represent conservation organizations, sportsmen organizations, and industries that support or promote fishing, hunting, trapping, recreational shooting, bow hunting, or archery. A final list of priority projects is recommended by the IAFWA's Committee on National Grants to the Directors of State fish and wildlife agencies for their approval by majority vote. The final approved list is then recommended to the FWS for funding under the Multistate Conservation Grant Program and must be submitted to the FWS by October 1.
This year, the FWS received a list of 23 IAFWA-recommended projects, 4 of which are recommended as contingent projects. They are recommended for funding in 2006, contingent on the Multistate Conservation Grant Program receiving additional funds as specified in the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 (Pub. L. 109-059) passed in August 2005. The list recommended by IAFWA follows:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to terminate the above-captioned proceeding.
Jean Jackson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-3104. Copies of 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
The Commission instituted this enforcement proceeding on July 31, 2001, based on a complaint filed by Fuji Photo Film Co., Ltd. (“Fuji”). Fuji sought to enforce a general exclusion order issued as a result of an investigation conducted by the Commission in 1999, Inv. No. 337-TA-406,
During the enforcement proceedings, VastFame pled as a defense that claim 15 of the ‘087 patent was invalid under 35 U.S.C. 102 and 103(a). The presiding administrative law judge refused to consider invalidity, ruling that no defense could be raised in the enforcement proceeding. The Commission adopted this ruling. VastFame appealed this ruling to the Federal Circuit, which reversed and remanded the case for further proceedings.
On June 23, 2005, the ALJ precluded VastFame from raising new invalidity defenses under 35 U.S.C. 112, and, on June 25-26, 2005, the ALJ conducted an evidentiary hearing on the remaining invalidity issues. The ALJ held that the asserted prior art references, Japanese Unexamined Utility Model Publication Nos. 53-127934 and 48-46622, do not anticipate claim 15 of the ‘087 patent and that they do not render the claimed invention obvious in combination with Dutch Patent No. 6,708,486.
On September 23, 2005, VastFame filed a petition for review, arguing that the ALJ improperly concluded that claim 15 is not invalid. On September 30, 2005, the Commission's investigative attorney filed a response to VastFame's petition, and on October 3, 2005, Fuji also filed a response. Both asserted that VastFame had not shown any clear error of fact, error of law, or abuse of discretion in the ALJ's final initial determination (ID) that would merit Commission review.
On October 27, 2005, after examining the record of this investigation, including the ALJ's final ID, the petitions for review, and the responses thereto, the Commission determined to review in part the ALJ's ID. Specifically, the Commission determined to review the portion of the ALJ's claim interpretation that relies on law of the case. On review, the Commission determined to take no position with respect to that analysis, but affirmed the ALJ's claim construction based on his independent finding that the preamble to claim 15 is a claim limitation.
The Commission requested that the parties provide written submissions indicating whether there are any further proceedings required by the Commission to complete this remand. All parties responded that no further proceedings were required. Accordingly, the Commission has terminated the remand proceedings.
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).
By order of the Commission.
The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977.
Bridger Coal Company, P.O. Box 68, Point of Rocks, Wyoming 82942 has filed a petition to modify the application of 30 CFR 75.1101-8 (Water sprinkler systems; arrangement of sprinklers) to its Bridger Underground Mine (MSHA I.D. No. 48-01646) located in Sweetwater County, Wyoming. The petitioner requests to modify the application of 30 CFR 75.1101-8 (Water sprinkler systems arrangement of sprinklers) if the belt controller and take-up control units comply with existing safety standards 30 CFR 75.340 and 75.1107-1(a)(3). The petitioner states that the units presently are electric and are located in transformer rooms which comply with the safety standards 75.340 and 75.1107-1(a)(3). The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Brooks Run Mining Company, LLC, 25 Little Birch Road, Sutton, West Virginia 25601 has filed a petition to modify the application of 30 CFR 75.1002 (Installation of electric equipment and conductors; permissibility) to its Saylor Mine (MSHA I.D. No. 46-09126) located in Braxton County, West Virginia. The petitioner requests a modification of the existing standard to permit a production stream to be maintained from the 2,400-volt continuous miners at the Saylor Mine. The petitioner has listed in this petition specific terms and conditions that will be followed when the proposed
AMFIRE Mining Company, LLC, P.O. Box 157, Clymer, Pennsylvania 15728 has filed a petition to modify the application of 30 CFR 75.1710-1 (Canopies or cabs; self-propelled diesel-powered and electric face equipment; installation requirements) to its Nolo Mine (MSHA I.D. No. 36-08850) located in Indiana County, Pennsylvania. The petitioner proposes to operate self-propelled electric face equipment without cabs and canopies in coal seams of 48″ or less. The petitioner asserts that using cabs and canopies on the equipment in areas of 48′ or less results in a diminution of safety causing the roof support to be dislodged. In addition, the operator's visibility is decreased which poses a hazardous situation to persons traveling on foot. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Persons interested in these petitions are encouraged to submit comments via e-mail:
National Science Foundation.
Notice of Permit Modification Received under the Antarctic Conservation Act of 1978, Pub. L. 95-541.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at Title 45 Part 670 of the Code of Federal Regulations. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by December 30, 2005. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nadene G. Kennedy at the above address or (703) 292-7405.
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
The applicant requests a modification to his permit to attach satellite tags on approximately 20 Killer whales to monitor their distribution. The tabs will be embedded at the base of the dorsal fin until such time the tissue rejects it and the tag falls off.
Nuclear Regulatory Commission.
Weeks of November 28, December 5, 12, 19, 26, 2005, January 2, 2006.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of December 19, 2005.
There are no meetings scheduled for the Week of December 26, 2005.
There are no meetings scheduled for the Week of January 2, 2006.
*The schedule for commission meetings is subject to change on short
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, August Spector, at 301-415-7080, 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
Nuclear Regulatory Commission.
Notice of a Proposed Agreement with the State of Minnesota.
By letter dated July 6, 2004, Governor Tim Pawlenty of Minnesota requested that the U.S. Nuclear Regulatory Commission (NRC) enter into an Agreement with the State as authorized by Section 274 of the Atomic Energy Act of 1954, as amended (Act).
Under the proposed Agreement, the Commission would discontinue, and Minnesota would assume, portions of the Commission's regulatory authority exercised within the State. As required by the Act, NRC is publishing the proposed Agreement for public comment. NRC is also publishing the summary of a Draft Staff Assessment of the Minnesota Program. Comments are requested on the proposed Agreement and the NRC Draft Staff Assessment which finds the Program adequate to protect public health and safety and compatible with NRC's program for regulation of agreement material.
The proposed Agreement would release (exempt) persons who possess or use certain radioactive materials in Minnesota from portions of the Commission's regulatory authority. The Act requires that NRC publish those exemptions. Notice is hereby given that the pertinent exemptions have been previously published in the
The comment period expires December 9, 2005. Comments received after this date will be considered if it is practical to do so, but the Commission cannot assure consideration of comments received after the expiration date.
Written comments may be submitted to Mr. Michael T. Lesar, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Washington, DC 20555-0001. Comments may be submitted electronically at
The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at
Copies of comments received by NRC may be examined at the NRC Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21, Rockville, Maryland. Copies of the request for an Agreement by the Governor of Minnesota including all information and documentation submitted in support of the request, and copies of the full text of the NRC Draft Staff Assessment are also available for public inspection in the NRC's Public Document Room—ADAMS Accession Numbers: ML041960496, ML041960499, ML052440344, ML050130375, ML050140452, ML051330043, ML051740384, ML051650073, ML052200424, and ML053060372.
Cardelia Maupin, Office of State and Tribal Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone (301) 415-3340 or e-mail
Since section 274 of the Act was added in 1959, the Commission has entered into Agreements with 33 States. The Agreement States currently regulate approximately 17,200 agreement material licenses, while NRC regulates approximately 4,700 licenses. Under the proposed Agreement, approximately 167 NRC licenses will transfer to Minnesota. NRC periodically reviews the performance of the Agreement States to assure compliance with the provisions of section 274.
Section 274e requires that the terms of the proposed Agreement be published in the
(a) Section 274d of the Act provides the mechanism for a State to assume regulatory authority, from the NRC, over certain radioactive materials
In a letter dated July 6, 2004, Governor Pawlenty certified that the State of Minnesota has a program for the control of radiation hazards that is adequate to protect public health and safety within Minnesota for the materials and activities specified in the proposed Agreement, and that the State desires to assume regulatory responsibility for these materials and activities. Included with the letter was the text of the proposed Agreement, which is shown in Appendix A to this Notice.
The radioactive materials and activities (which together are usually referred to as the “categories of materials”) which the State of Minnesota requests authority over are: (1) The possession and use of byproduct materials as defined in section 11e.(1) of
(b) The proposed Agreement contains articles that:
The Commission reserves the option to modify the terms of the proposed Agreement in response to comments, to correct errors, and to make editorial changes. The final text of the Agreement, with the effective date, will be published after the Agreement is approved by the Commission, and signed by the Chairman of the Commission and the Governor of Minnesota.
(c) Minnesota currently registers users of naturally-occurring and accelerator-produced radioactive materials. Authority for Minnesota's radiation control unit and proposed Agreement State activities is primarily found in Minnesota Statutes, sections 144.12-144.121, and in the Minnesota Rules Chapter 4731. Section 144.1202 provides the authority for the Governor to enter into an Agreement with the Commission and contains provisions for the orderly transfer of regulatory authority over affected licensees from NRC to the State. After the effective date of the Agreement, licenses issued by NRC would continue in effect as Minnesota licenses until the licenses expire or are replaced by State-issued licenses.
(d) The NRC Draft Staff Assessment finds that the Minnesota Program is adequate to protect public health and safety, and is compatible with the NRC program for the regulation of agreement materials.
NRC staff has examined the Minnesota request for an Agreement with respect to the ability of the Minnesota radiation control program to regulate agreement materials. The examination was based on the Commission's policy statement “Criteria for Guidance of States and NRC in Discontinuance of NRC Regulatory Authority and Assumption Thereof by States Through Agreement” (referred to herein as the “NRC criteria”), published on January 23, 1981 (46 FR 7540), as amended by policy statements published on July 16, 1981 (46 FR 36969), and on July 21, 1983 (48 FR 33376).
(a) Organization and Personnel. The agreement materials program will be located within the existing Environmental Health Division (Program) of the Minnesota Department of Health (MDH). The Program will be responsible for implementation of all regulatory activities related to the proposed Agreement.
The educational requirements for the Program staff members are specified in the Minnesota State personnel position descriptions, and meet the NRC criteria with respect to formal education or combined education and experience requirements. All current staff members hold at least bachelor's degrees in physical or life sciences, or have a combination of education and experience at least equivalent to a bachelor's degree. Several staff members hold advanced degrees, and all staff members have had additional training plus working experience in radiation protection. The Program supervisor has more than 20 years work experience in radiation protection.
The Program performed, and NRC staff reviewed, an analysis of the expected Program workload under the proposed Agreement. Based on the NRC staff review of the State's staff analysis, Minnesota has an adequate number of staff to regulate radioactive materials under the terms of the Agreement. The Program will employ a staff of 3.5 full-time professional/technical and administrative employees for the agreement materials program. The distribution of the qualifications of the individual staff members will be balanced to the distribution of categories of licensees transferred from NRC.
(b) Legislation and Regulations. The MDH is designated by law in Section 144.1202 of the Minnesota Statutes to be the radiation control agency. The law provides the MDH the authority to issue licenses, issue orders, conduct inspections, and to enforce compliance with regulations, license conditions, and orders. Licensees are required to provide access to inspectors. The MDH is authorized to promulgate regulations.
The State's regulations are found in Minnesota Rules Chapter 4731 effective June 2004. The NRC staff reviewed and forwarded comments on these regulations to the Minnesota staff. The NRC staff review verified that, with the comments incorporated, the Minnesota rules, and with the addition of legally binding requirements to incorporate recent changes to 10 CFR Part 35 and 71 contain all of the provisions that are necessary in order to be compatible with the regulations of the NRC on the effective date of the Agreement between the State and the Commission. The MDH has extended the effect of the rules, where appropriate, to apply to naturally-occurring or accelerator-produced radioactive materials (NARM), in addition to agreement materials. The NRC staff is satisfied that the Minnesota Program, will not regulate in areas reserved to the NRC in matters concerning or affecting the proposed Agreement.
(c) Storage and Disposal. Minnesota has also adopted NRC compatible requirements for the handling and storage of radioactive material. Minnesota will not seek authority to regulate the land disposal of radioactive material as waste. The Minnesota waste disposal requirements cover the preparation, classification and manifesting of radioactive waste, generated by Minnesota licensees, for transfer for disposal to an authorized waste disposal site or broker.
(d) Transportation of Radioactive Material. Minnesota has adopted regulations compatible with NRC regulations in 10 CFR Part 71. Part 71 contains the requirements that licensees must follow when preparing packages containing radioactive material for transport. Part 71 also contains requirements related to the licensing of packaging for use in transporting radioactive materials.
(e) Recordkeeping and Incident Reporting. Minnesota has adopted the sections compatible with the NRC regulations which specify requirements for licensees to keep records, and to report incidents, accidents, or events involving materials.
(f) Evaluation of License Applications. Minnesota has adopted regulations compatible with the NRC regulations that specify the requirements which a person must meet in order to get a license to possess or use radioactive
(g) Inspections and Enforcement. The Minnesota radiation control program has adopted a schedule providing for the inspection of licensees as frequently as the inspection schedule used by NRC. The Program has adopted procedures for the conduct of inspections, the reporting of inspection findings, and the reporting of inspection results to the licensees. The Program has also adopted, by rule based on the Minnesota Statutes, procedures for the enforcement of regulatory requirements.
(h) Regulatory Administration. The MDH is bound by requirements specified in State law for rulemaking, issuing licenses, and taking enforcement actions. The Program has also adopted administrative procedures to assure fair and impartial treatment of license applicants. Minnesota law prescribes standards of ethical conduct for State employees.
(i) Cooperation with Other Agencies. Minnesota law deems the holder of an NRC license on the effective date of the proposed Agreement to possess a like license issued by Minnesota. The law provides that these former NRC licenses will expire on the date of expiration specified in the NRC license.
Minnesota also provides for “timely renewal.” This provision affords the continuance of licenses for which an application for renewal has been filed more than 30 days prior to the date of expiration of the license. NRC licenses transferred while in timely renewal are included under the continuation provision. Minnesota Rules Chapter 4731 provides exemptions from the State's requirements for licensing of sources of radiation for NRC and U.S. Department of Energy contractors or subcontractors. The proposed Agreement commits Minnesota to use its best efforts to cooperate with the NRC and the other Agreement States in the formulation of standards and regulatory programs for the protection against hazards of radiation and to assure that the Minnesota Program will continue to be compatible with the NRC's program for the regulation of agreement materials. The proposed Agreement stipulates the desirability of reciprocal recognition of licenses, and commits the Commission and Minnesota to use their best efforts to accord such reciprocity.
Subsection 274d of the Act provides that the Commission shall enter into an agreement under subsection 274b with any State if:
(a) The Governor of the State certifies that the State has a program for the control of radiation hazards adequate to protect public health and safety with respect to the agreement materials within the State, and that the State desires to assume regulatory responsibility for the agreement materials; and
(b) The Commission finds that the State program is in accordance with the requirements of Subsection 274o, and in all other respects compatible with the NRC's program for the regulation of materials, and that the State program is adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.
On the basis of its Draft Staff Assessment, the NRC staff concludes that the State of Minnesota meets the requirements of the Act. The State's program, as defined by its statutes, regulations, personnel, licensing, inspection, and administrative procedures, is compatible with the program of the NRC and adequate to protect public health and safety with respect to the materials covered by the proposed Agreement.
NRC will continue the formal processing of the proposed Agreement which includes publication of this Notice once a week for four consecutive weeks for public review and comment.
For the Nuclear Regulatory Commission.
Subject to the exceptions provided in Articles II, IV, and V, the Commission shall discontinue, as of the effective date of this Agreement, the regulatory authority of the Commission in the State under Chapters 6, 7, and 8, and section 161 of the Act with respect to the following materials:
A. Byproduct materials as defined in section 11e.(1) of the Act;
B. Source materials;
C. Special nuclear materials in quantities not sufficient to form a critical mass.
This Agreement does not provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to:
A. The regulation of the construction and operation of any production or utilization facility or any uranium enrichment facility;
B. The regulation of the export from or import into the United States of byproduct, source, or special nuclear materials, or of any production or utilization facility;
C. The regulation of the disposal into the ocean or sea of byproduct, source, or special nuclear materials waste as defined in the regulations or orders of the Commission;
D. The regulation of the disposal of such other byproduct, source, or special nuclear materials as the Commission from time to
E. The evaluation of radiation safety information on sealed sources or devices containing byproduct, source, or special nuclear materials and the registration of the sealed sources or devices for distribution, as provided for in regulations or orders of the Commission.
F. The regulation of the land disposal of byproduct, source, or special nuclear materials waste received from other persons;
G. The extraction or concentration of source material from source material ore and the management and disposal of the resulting byproduct material.
With the exception of those activities identified in Article II, paragraphs A through D, this Agreement may be amended, upon application by the State and approval by the Commission, to include one or more of the additional activities specified in Article II, paragraphs E, F, and G, whereby the State may then exert regulatory authority and responsibility with respect to those activities.
Notwithstanding this Agreement, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear materials shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission.
This Agreement shall not affect the authority of the Commission under Subsection 161b or 161i of the Act to issue rules, regulations, or orders to protect the common defense and security, to protect restricted data, or to guard against the loss or diversion of special nuclear materials.
The Commission will cooperate with the State and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against hazards of radiation and to assure that Commission and State programs for protection against hazards of radiation will be coordinated and compatible. The State agrees to cooperate with the Commission and other Agreement States in the formulation of standards and regulatory programs of the State and the Commission for protection against hazards of radiation and to assure that the State's program will continue to be compatible with the program of the Commission for the regulation of materials covered by this Agreement.
The State and the Commission agree to keep each other informed of proposed changes in their respective rules and regulations, and to provide each other the opportunity for early and substantive contribution to the proposed changes.
The State and the Commission agree to keep each other informed of events, accidents, and licensee performance that may have generic implication or otherwise be of regulatory interest.
The Commission and the State agree that it is desirable to provide reciprocal recognition of licenses for the materials listed in Article I licensed by the other party or by any other Agreement State. Accordingly, the Commission and the State agree to develop appropriate rules, regulations, and procedures by which such reciprocity will be accorded.
The Commission, upon its own initiative after reasonable notice and opportunity for hearing to the State, or upon request of the Governor of the State, may terminate or suspend all or part of this Agreement and reassert the licensing and regulatory authority vested in it under the Act if the Commission finds that (1) such termination or suspension is required to protect public health and safety, or (2) the State has not complied with one or more of the requirements of section 274 of the Act. The Commission may also, pursuant to section 274j of the Act, temporarily suspend all or part of this Agreement if, in the judgment of the Commission, an emergency situation exists requiring immediate action to protect public health and safety and the State has failed to take necessary steps. The Commission shall periodically review actions taken by the State under this Agreement to ensure compliance with section 274 of the Act which requires a State program to be adequate to protect public health and safety with respect to the materials covered by this Agreement and to be compatible with the Commission's program.
This Agreement shall become effective on [date], and shall remain in effect unless and until such time as it is terminated pursuant to Article VIII.
For the United States Nuclear Regulatory Commission.
For the State of Minnesota.
Office of Management and Budget.
Notice of proposed guidelines and request for comments.
The Office of Management and Budget (OMB) is proposing policies and procedures for agencies to develop, issue, and use guidance documents. This Bulletin is intended to increase the quality and transparency of agency guidance practices and the guidance documents produced through them.
Written comments regarding OMB's Proposed Bulletin for Good Guidance Practices are due by December 23, 2005.
Due to potential delays in OMB's receipt and processing of mail, respondents are strongly encouraged to submit comments electronically to ensure timely receipt. We cannot guarantee that comments mailed will be received before the comment closing date. Electronic comments may be submitted to:
Lisa Jones, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., New Executive Office Building, Room 10201, Washington, DC 20503. Telephone: (202) 395-5897.
OMB is seeking comments on its Proposed Bulletin for Good Guidance Practices by December 23, 2005. The draft Bulletin for Good Guidance Practices is posted on OMB's Web site,
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Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611-2092 or
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 12(d)(1) of the Act, under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act, under section 6(c) of the Act for an exemption from sections 18(f) and 21(b) of the Act, and under section 17(d) of the Act and Rule 17d-1 under the Act to permit certain joint arrangements.
Secretary, SEC, 100 F Street, NE., Washington, DC 20549-9303; Applicants, c/o Coleen Downs Dinneen, Esq., IXIS Asset Advisors, L.P., 399 Boylston Street, Boston, MA 02116.
Deepak T. Pai, Senior Counsel, at (202) 551-6876, or Stacy L. Fuller, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the Application. The complete application may be obtained for a fee at the SEC's Public Reference Branch, 100 F Street, NE., Washington, DC 20549-0102 at telephone (202) 551-5850.
1. Each of the Existing Funds is a management investment company registered under the Act, and is organized as a Massachusetts business trust or a Maryland corporation. All but one of the Existing Funds are open-end investment companies (“open-end Funds”); the AEW Real Estate Income Fund is a closed-end investment company (“closed-end Fund”). Certain of the open-end Funds are money market funds subject to the requirements of Rule 2a-7 under the Act (each, a “Central Fund”). Any Funds that are not Central Funds are referred to herein as “Participating Funds.”
2. Applicants request that any relief granted pursuant to the Application also apply to any future series of the Trusts and to any other existing or future registered management investment companies, or series thereof, for which an Applicant Adviser, or a company controlling, controlled by, or under common control with an Applicant Adviser (together with the Applicant Advisers, the “Advisers”), acts as investment adviser or sub-adviser (“Future Funds” and together with the Existing Funds, the “Funds”).
1. Each Participating Fund has, or may be expected to have, cash reserves that have not been invested in portfolio securities (“Uninvested Cash”) held by its custodian. Uninvested Cash may result from a wide variety of sources, including dividends or interest received on portfolio securities, unsettled securities transactions, strategic reserves, matured investments, liquidations of investment securities, and new investor monies. In addition, certain of the Participating Funds also may participate in a securities lending program (“Securities Lending Program”) under which the Participating Funds lend their securities to registered broker-dealers or other institutional investors. These loans are continuously secured by collateral equal at all times to at least the market value of the securities loaned. Collateral for these loans may include cash (“Cash Collateral,” and together with Uninvested Cash, “Cash Balances”). Any Securities Lending Program, including any investment of Cash Collateral will comply with all present and future Commission and staff positions regarding securities lending arrangements.
2. Applicants request an order to permit each Participating Fund to use its Cash Balances to purchase shares of one or more of the Central Funds that are in the same group of investment companies (as defined in section 12(d)(1)(G) of the Act) as the Participating Fund, and each Central Fund to sell its shares to, and redeem its shares from, Participating Funds that are in the same group of investment companies as the Central Fund (“Cash Sweep”). Investment by a Participating Fund of Cash Balances in shares of the Central Funds will be in accordance with each Participating Fund's investment restrictions and will be consistent with each Participating Fund's policies as set forth in its prospectus or statement of additional information (“SAI”). Applicants believe that by investing Cash Balances in the Central Funds, Participating Funds may reduce their transaction costs, create more liquidity, increase returns, and diversify holdings.
3. In connection with the proposed Cash Sweep transactions, applicants request an order under (i) section 12(d)(1)(J) of the Act granting relief from sections 12(d)(1)(A) and (B) of the Act; (ii) sections 6(c) and 17(b) of the Act granting relief from section 17(a) of the Act; (iii) section 17(d) of the Act and Rule 17d-1 under the Act to permit certain joint arrangements.
1. Under current arrangements, the Funds may lend money to banks, brokers or other entities by entering into repurchase agreements or purchasing other short-term instruments. In addition, the open-end Funds may borrow money from the same or other banks for temporary or emergency purposes to satisfy redemption requests or to cover unanticipated cash shortfalls, such as trade “fails” in which cash payments for a portfolio security sold by a Fund have been delayed. The open-end Funds may have credit arrangements with their custodians under which a custodian may, but is not obligated to, lend money to the Funds to meet their temporary or emergency cash needs. The open-end Funds may also borrow money from banks, brokers and other entities by entering into reverse repurchase agreements and economically similar transactions.
2. If an open-end Fund borrows money from any bank under its current arrangements or under other arrangements, the Fund will pay interest on the borrowed cash at a significantly higher rate than the rate that would be earned by other (non-borrowing) Funds on repurchase agreements and other short-term instruments of the same maturity as the bank loan. Applicants believe this differential represents the bank's profit for serving as a middleman between a borrower and lender. Other bank loan arrangements, such as committed lines of credit, may require a borrowing Fund to pay substantial commitment fees in addition to the interest rate to be paid by the Fund on outstanding loans.
3. Applicants request an order that would permit Funds that are in the same group of investment companies to enter into lending agreements (“Interfund Lending Agreements”) to lend and borrow money for temporary purposes directly to and from each other through a credit facility (“Interfund Loans”).
4. Applicants state that the Credit Facility would likely provide a borrowing Fund with significant savings when its cash position is insufficient to meet temporary cash requirements. This situation could arise when redemptions exceed anticipated volumes and the borrowing Fund has insufficient cash on hand to satisfy such redemptions. When the Funds liquidate portfolio securities to meet redemption requests, which normally are effected immediately, they often do not receive payment in settlement for up to three days (or longer for certain foreign transactions). The Credit Facility would provide a source of immediate, short-term liquidity pending settlement of the sale of portfolio securities.
5. Applicants also propose using the Credit Facility when a sale of securities fails due to circumstances beyond a Fund's control, such as delay in the delivery of cash to the Fund's custodian or improper delivery instructions by the broker effecting the transaction (“sales fails”). Sales fails may present a cash shortfall if the Fund has undertaken to purchase a security with the proceeds from securities sold. Under such circumstances, the Fund could fail on its intended purchase due to lack of funds from the previous sale, resulting in additional costs to the Fund, or sell a security on a same day settlement basis, earning a lower return on the investment. Use of the Credit Facility would enable the Funds to have access to immediate short-term liquidity without incurring overdraft or other charges.
6. While bank borrowings generally could supply needed cash to cover unanticipated redemptions and sales fails, under the Credit Facility a borrowing Fund would pay lower interest rates than those that would be payable under short-term loans offered by banks. In addition, Funds making short-term cash loans directly to other Funds would earn interest at a rate higher than they otherwise could obtain from investing their cash in repurchase agreements or purchasing shares of Central Funds. Thus, Applicants assert that the Credit Facility would benefit both borrowing and lending Funds.
7. The interest rate to be charged on Interfund Loans (the “Interfund Rate”) would be determined daily and would be the average of (i) the higher of (x) the “OTD Rate,” as defined below, and (y) the “Repo Rate,” as defined below, and (ii) the “Bank Loan Rate,” as defined below. The OTD Rate on any day would be the highest rate available to the lending Funds from investments in
8. The Credit Facility would be administered by personnel at Reich & Tang Asset Management, LLC (“Reich & Tang”) who have accounting experience, are members of its mutual fund administration group or the financial analysis department, and who are not portfolio managers of a Fund (“Interfund Lending Team”). No portfolio manager from any Fund would participate in the administration of the Credit Facility. Under the Credit Facility, the portfolio managers for each Fund could provide standing instructions to participate daily as a borrower or lender. On each business day the Interfund Lending Team would collect data on the uninvested cash and borrowing requirements of the Funds from each Fund's custodian, portfolio managers and/or administrators. Once it had determined the aggregate amount of cash available for loans and borrowing demand, the Interfund Lending Team would allocate loans among borrowing Funds without any further communication from portfolio managers. Applicants expect there to be far more available cash each day than borrowing demand. After allocating cash for Interfund Loans, the Interfund Lending Team would invest any remaining cash in accordance with the standing instructions of the relevant Fund's portfolio managers or return remaining amounts for investment directly by the portfolio manager of the Fund.
9. The Interfund Lending Team would allocate borrowing demand and cash available for lending among the Funds on what the Interfund Lending Team believed to be an equitable basis, subject to certain administrative requirements applicable to all Funds, such as the time of filing requests to participate, minimum loan sizes, and the need to minimize the number of transactions and associated administrative costs. To reduce transaction costs, each Interfund Loan may be allocated to minimize the number of participants necessary to complete that Interfund Loan transaction. The Interfund Lending Team would not solicit cash for loans from any Funds or publish or disseminate the amount of current borrowing demand to portfolio managers.
10. The Interfund Lending Team would (i) monitor the interest rates charged and the other terms and conditions of the Interfund Loans, (ii) limit the borrowings and loans entered into by each Fund to ensure that they comply with the Fund's investment policies and limitations, (iii) ensure equitable treatment of each Fund under the Credit Facility, and (iv) make quarterly reports to the Funds' Boards concerning any transactions by the Funds under the Credit Facility and the Interfund Rates. The method of allocation and related administrative procedures would be approved by each Fund's Board, including a majority of trustees who are not interested persons of the Fund, as defined in section 2(a)(19) of the Act (“Independent Trustees”), to ensure that both borrowing Funds and lending Funds participate in the Credit Facility on an equitable basis.
11. Reich & Tang would administer the Credit Facility pursuant to a form of Interfund Lending Agreement (to which Reich & Tang and each Fund participating in the Credit Facility would be a party). Reich & Tang would not receive any fees in connection with its administration of the Credit Facility.
12. No Fund would participate in the Credit Facility unless (i) it had fully disclosed all material information concerning the Credit Facility in its prospectus or SAI, or, in the case of a closed-end Fund, in its registration statement or shareholder reports, (ii) it had obtained shareholder approval to participate in the Credit Facility, if shareholder approval were required by the Fund's fundamental investment policies, and (iii) the Fund's participation in the Credit Facility was consistent with its investment policies and restrictions and its organizational documents.
13. In connection with the Credit Facility, Applicants request an order under (i) section 6(c) granting relief from sections 18(f) and 21(b) of the Act; (ii) section 12(d)(1)(J) granting relief from sections 12(d)(1)(A) and (B) of the Act; (iii) sections 6(c) and 17(b) granting relief from sections 17(a) and (iv) section 17(d) and Rule 17d-1 to permit certain joint arrangements.
1. Section 12(d)(1)(A) provides that no registered investment company may acquire securities of another investment company representing more than 3% of the acquired company's outstanding voting stock, more than 5% of the acquiring company's total assets, or, together with the securities of other investment companies, more than 10% of the acquiring company's total assets. Section 12(d)(1)(B) provides that no registered open-end investment company, its principal underwriter or any broker or dealer, may sell the company's securities to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies.
2. Section 12(d)(1)(J) provides that the Commission may exempt any person, security, or transaction, or classes of persons, securities or transactions, from any provision of section 12(d)(1) if and to the extent that the exemption is consistent with the public interest and the protection of investors. Applicants request relief under section 12(d)(1)(J) from the limitations of sections 12(d)(1)(A) and (B) to permit each Participating Fund to invest its Cash Balances in the Central Funds that are in the same group of investment companies as the Participating Fund; under the requested order, the Participating Fund's aggregate investment of Uninvested Cash in the Central Funds would not exceed the greater of 25% of such Participating Fund's total assets or $10 million.
3. Applicants state that the proposed investment of Cash Balances in the Central Funds will not result in the abuses meant to be addressed by section 12(d)(1), including undue influence, layering of fees and complexity. Applicants state that because each Central Fund will maintain a highly liquid portfolio and both the Participating Fund and the Central Fund are in the same group of investment companies, there should not be a concern about undue influence by a Participating Fund over a Central Fund.
4. Section 17(a) makes it unlawful for any affiliated person of a registered investment company, or any affiliated person of the affiliated person (“Second Tier Affiliate”), acting as principal, knowingly to sell any security to or purchase any security from the investment company. Section 2(a)(3) of the Act defines an “affiliated person” to include any person directly or indirectly owning, controlling, or holding with power to vote 5% or more of the outstanding voting securities of the other person; any person directly or indirectly controlling, controlled by, or under common control with the other person; and, in the case of an investment company, its investment adviser. Applicants state that because the Funds share a common Adviser or have Advisers that are under common control, the Funds may be deemed to be under common control and, thus, affiliated persons of each other. In addition, applicants state that a Participating Fund may acquire more than 5% of a Central Fund's outstanding voting securities and, as a result, the Participating Fund and the Central Fund may be deemed to be affiliated persons of each other. The sale of shares by the Central Funds to the Participating Funds and the redemption of such shares would thus be prohibited under section 17(a).
5. Section 17(b) authorizes the Commission to exempt a transaction from section 17(a) if the terms of the proposed transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policy of each registered investment company concerned and with the general purposes of the Act. Section 6(c) authorizes the Commission to exempt any person or transaction from any provision of the Act if the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
6. Applicants submit that the request for relief to permit the purchase and redemption of shares of the Central Funds by the Participating Funds satisfies the standards in sections 6(c) and 17(b). Applicants note that shares of the Central Funds will be purchased and redeemed at their net asset value, the same consideration paid and received for these shares by any other shareholder. In addition, Applicants state that the Participating Funds will retain their ability to invest Cash Balances directly in money market or other instruments as authorized by their respective investment objectives and policies if they believe they can obtain a higher rate of return or for any other reason. Each Central Fund reserves the right to discontinue selling shares to any of the Participating Funds if its Board determines that the sale will adversely affect its portfolio management and operations.
7. Section 17(d) and Rule 17d-1 prohibit any affiliated person of a registered investment company, acting as principal, from participating in or effecting any transaction in connection with any joint enterprise or joint arrangement in which the investment company participates. Applicants state that each Participating Fund (by purchasing shares of the Central Funds), the Advisers (by managing the assets of the Participating Funds and the Central Funds, including the Participating Funds' investments in the Central Funds), and each Central Fund (by selling shares to the Participating Funds) could be deemed to be participants in a “joint enterprise or other joint arrangement” within the meaning of section 17(d) and Rule 17d-1.
8. Rule 17d-1 permits the Commission to approve a joint arrangement covered by the terms of section 17(d). In determining whether to approve a transaction, the Commission considers whether the investment company's participation in the joint enterprise is consistent with the provisions, policies, and purposes of the Act, and the extent to which the participation is on a basis different from or less advantageous than that of other participants. Applicants submit that investments by the Participating Funds will be at net asset value and will be indistinguishable from any other shareholder account maintained by the Central Funds, and that the transactions will be consistent with the Act. Applicants further submit that the arrangement is not intended to increase the fees earned by the Advisers. Thus, applicants contend that the proposed transactions meet the standards for relief under Rule 17d-1.
1. Section 17(a)(3) of the Act generally prohibits any affiliated person or Second-Tier Affiliate from borrowing money or other property from a registered investment company. Section 21(b) generally prohibits any registered management company from lending money or other property to any person if that person controls or is under common control with the company. As discussed above, Applicants believe that the Funds may be deemed to be under common control and, as a result, prohibited from participating in the Credit Facility because of sections 17(a)(3) and 21(b).
2. Applicants submit that sections 17(a)(3) and 21(b) were intended to prevent a party with potential adverse interests to, and some influence over the investment decisions of, a registered investment company from causing or inducing the investment company to engage in lending transactions that unfairly benefit that party and that are detrimental to the best interests of the investment company and its shareholders. Applicants assert that the proposed transactions do not raise such concerns for the following reasons: (i) Reich & Tang would receive no
3. Applicants also seek exemptions from section 17(a)(1) under sections 6(c) and 17(b) and from section 12(d)(1) under section 12(d)(1)(J) with respect to the Credit Facility. Applicants state that the obligation of a borrowing Fund to repay an Interfund Loan may constitute a security under sections 17(a)(1) and 12(d)(1). Applicants contend that the standards under sections 6(c), 17(b), and 12(d)(1)(J), as stated above, are satisfied for all the reasons set forth in the two preceding paragraphs in support of their request for relief from sections 17(a)(3) and 21(b) and for the reasons set forth below.
4. As discussed above, Applicants state that section 12(d)(1) was intended to prevent the pyramiding of investment companies in order to avoid, among other things, duplicative costs and fees that are generated by multiple layers of investment companies. Applicants submit that the Credit Facility does not involve these types of abuses. Regarding duplicative costs, Applicants state that Reich & Tang would administer the Credit Facility pursuant to an Interfund Lending Agreement between it and the relevant Fund and would not receive any compensation for its services. Applicants further state that the purpose of the Credit Facility is to provide economic benefits for all participating Funds.
5. Section 18(f)(1) prohibits open-end investment companies from issuing any senior security, except that a company may borrow from any bank so long as immediately after the borrowing there is asset coverage of at least 300% for all borrowings of the company. Under section 18(g) of the Act, the term “senior security” includes any bond, debenture, note, or similar obligation or instrument constituting a security and evidencing indebtedness. Applicants request exemptive relief from section 18(f)(1) to the limited extent necessary to implement the Credit Facility (because the lending Funds are not banks).
6. Applicants believe that granting relief under section 6(c) is appropriate. Based on the conditions and safeguards described in the Application, Applicants also submit that to allow the Funds to borrow from other Funds under the Credit Facility is consistent with the purposes and policies of section 18(f)(1).
7. Applicants also request an order under Rule 17d-1 with respect to the Credit Facility. Applicants state that the Credit Facility could be deemed to be a “joint enterprise or other joint arrangement” within the meaning of section 17(d) and Rule 17d-1. Applicants submit that the proposed transactions meet the standards of Rule 17d-1 because the Credit Facility offers both reduced borrowing costs to borrowing Funds and enhanced returns on loaned funds to lending Funds. Applicants note that each Fund would have an equal opportunity to borrow and lend on equal terms consistent with its investments policies and fundamental investment limitations and that Reich & Tang would not receive any compensation for administering the Credit Facility. Applicants therefore believe that each Fund's participation in the Credit Facility would be on terms that are no different from or less advantageous than those of other participants.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The shares of the Central Funds sold to and redeemed by the Participating Funds will not be subject to a sales load, redemption fee, distribution fee under a plan adopted in accordance with Rule 12b-1 under the Act, or service fee (as defined in NASD Conduct Rule 2830(b)(9)).
2. No Central Fund will acquire securities of any other investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except as permitted by an SEC order governing interfund loans.
3. Before the next meeting of the Board of a Participating Fund is held for the purpose of voting on an investment advisory contract of the Participating Fund under section 15 of the Act, the investment adviser to the Participating Fund will provide the Board with specific information regarding the approximate cost to the investment adviser of, or the portion of the investment advisory fee under the existing investment advisory agreement attributable to, managing the Uninvested Cash of the Participating Fund that may be invested in the Central Funds. Before approving any investment advisory contract for a Participating Fund, the Board of the Participating Fund, including a majority of the Independent Trustees, shall consider to what extent, if any, the investment advisory fees charged to the Participating Fund should be reduced to account for reduced services provided to the Participating Fund as a result of Uninvested Cash being invested in the Central Funds. The minute books of the Participating Fund will record fully the Board's consideration in approving the investment advisory contract, including the considerations relating to the fees referred to above.
4. A Participating Fund may invest Uninvested Cash in, and hold shares of, the Central Funds only to the extent that such Participating Fund's aggregate investment of Uninvested Cash in the Central Funds does not exceed the greater of 25% of the Participating Fund's total assets or $10 million.
5. Each Participating Fund and Central Fund shall be advised by an Adviser. Each Participating Fund may only invest in Central Funds that are in the same group of investment companies, as defined in section 12(d)(1)(G) of the Act, as the Participating Fund. A Participating Fund that is subadvised by an Adviser may rely on the order provided that the Adviser manages Cash Balances.
6. Investment of Cash Balances by a Participating Fund in shares of the Central Funds will be consistent with each Participating Fund's respective investment restrictions and policies as set forth in its prospectus and SAI or, in the case of a closed-end Fund, in its registration statement or shareholder reports.
7. Before a Participating Fund may participate in a Securities Lending Program, a majority of the Board, including a majority of the Independent Trustees, will approve the Participating Fund's participation in the Securities Lending Program. The Board also will evaluate the Securities Lending Program and its results no less frequently than annually and determine that any investment of Cash Collateral in the Central Funds is in the best interest of the shareholders of the Participating Fund.
8. The Board of any Participating Fund will satisfy the fund governance standards as defined in rule 0-1(a)(7) under the Act by the compliance date for the rule.
1. The interest rate to be charge to the Funds under the Credit Facility will be the average of (i) the higher of (x) the OTD Rate and (y) the Repo Rate and (ii) the Bank Loan Rate.
2. The Interfund Lending Team on each business day will compare the Bank Loan Rate with the Repo Rate and the OTD Rate and will make cash available for Interfund Loans only if the Interfund Rate is (i) more favorable to the lending Fund than both the Repo Rate and the OTD Rate and (ii) more favorable to the borrowing Fund than the Bank Loan Rate.
3. If a Fund has outstanding borrowings, then any Interfund Loans to the Fund (i) will be at an interest rate equal to or lower than any outstanding bank loan, (ii) will be secured at least on an equal priority basis with at least an equivalent percentage of collateral to loan value as any outstanding bank loan that requires collateral, (iii) will have a maturity no longer than any outstanding bank loan (and in no event more than seven days) and (iv) will provide that if an event of default occurs under any agreement evidencing an outstanding bank loan to the Fund, that event of default will automatically (without need for action or notice by the lending Fund) constitute an immediate event of default under the Interfund Lending Agreement. This event of default will entitle the lending Fund to call the Interfund Loan and exercise all rights with respect to the collateral, if any. Such call will be made if a lending bank or banks exercise their rights to call their loan under an agreement with the borrowing Fund.
4. A Fund may make an unsecured borrowing through the Credit Facility if its outstanding borrowings from all sources immediately after the interfund borrowing total 10% or less of its total assets, provided that if the Fund has a secured loan outstanding from any other lender, including but not limited to another Fund, the Fund's interfund borrowing will be secured on at least an equal priority basis with at least an equivalent percentage of collateral to loan value as any outstanding loan that requires collateral. If a Fund's total outstanding borrowings immediately after an interfund borrowing would be greater than 10% of its total assets, the Fund may borrow through the Credit Facility only on a secured basis. A Fund may not borrow through the Credit Facility or from any other source if its total outstanding borrowings immediately after the interfund borrowing would be more than 33
5. Before any Fund that has outstanding interfund borrowings may, through additional borrowings, cause its outstanding borrowings from all sources to exceed 10% of its total assets, the Fund must first secure each outstanding Interfund Loan by the pledge of segregated collateral with a market value at least equal to 102% of the outstanding principal value of the loan. If the total outstanding borrowings of a Fund with outstanding Interfund Loans exceed 10% of its total assets for any other reason (such as a decline in net asset value or shareholder redemptions), the Fund will within one business day thereafter (i) repay all of its outstanding Interfund Loans, (ii) reduce its outstanding indebtedness to 10% or less of its total assets or (iii) secure each outstanding Interfund Loan by a pledge of segregated collateral with a market value at least equal to 102% of the outstanding principal value of the loan until the Fund's total outstanding borrowings cease to exceed 10% of its total assets, at which time the collateral called for by this condition (5) will no longer be required. Until each Interfund Loan that is outstanding any time that a Fund's total outstanding borrowings exceed 10% is repaid or the Fund's total outstanding borrowings cease to exceed 10% of its total assets, the Fund will mark the value of the collateral to market each day and will pledge such additional collateral as is necessary to maintain the market value of the collateral that secures each outstanding Interfund Loan at least equal to 102% of the outstanding principal value of the Interfund Loan.
6. No Fund may loan funds through the Credit Facility if the loan would cause its aggregate outstanding loans through the Credit Facility to exceed 15% of its net assets at the time of the loan.
7. A Fund's Interfund Loans to any one Fund shall not exceed 5% of the lending Fund's net assets.
8. The duration of Interfund Loans will be limited to the time required to receive payment for securities sold, but in no event more than seven days. Loans effected within seven days of each other will be treated as separate loan transactions for purposes of this condition (8).
9. Unless the Fund has a policy that prevents it from borrowing for other than temporary or emergency purposes, its borrowing through the Credit Facility, as measured on the day the most recent Interfund Loan was made to it, will not exceed the greater of 125% of the Fund's total net cash redemptions or 102% of sales fails for the preceding seven calendar days.
10. Each Interfund Loan may be called on one business day's notice by the lending Fund and may be repaid on any day by the borrowing Fund.
11. A Fund's participation in the Credit Facility must be consistent with its investment policies and limitations and organizational documents.
12. The Interfund Lending Team will calculate total Fund borrowing and lending demand through the Credit Facility, and allocate Interfund Loans on an equitable basis among Funds, without the intervention of any portfolio manager of any Fund. The Interfund Lending Team will not solicit cash for the Credit Facility from any Fund or prospectively publish or disseminate loan demand data to portfolio managers. The Interfund Lending Team will invest amounts remaining after satisfaction of borrowing demand in accordance with standing instructions from portfolio managers or return remaining amounts for investment directly by the relevant Fund's portfolio managers.
13. The Interfund Lending Team will monitor the interest rates charged and the other terms and conditions of the Interfund Loans and will make a quarterly report to each Fund's Board concerning the participation of the Fund in the Credit Facility and the terms and other conditions of any extensions of credit under the Credit Facility.
14. Each Fund's Board, including a majority of the Independent Trustees: (i) Will review no less frequently than quarterly the Fund's participation in the Credit Facility during the preceding quarter for compliance with the conditions of any order permitting such transactions; (ii) will establish the Bank Loan Rate formula used to determine the interest rate on Interfund Loans, and review no less frequently than annually the continuing appropriateness of such Bank Loan Rate formula; and (iii) will review no less frequently than annually the continuing appropriateness of the Fund's participation in the Credit Facility.
15. If an Interfund Loan is not paid according to its terms and such default is not cured within two business days from its maturity or from the time the lending Fund makes a demand for payment under the provisions of the Interfund Lending Agreement, the Interfund Lending Team promptly will refer such loan for arbitration to an independent arbitrator who has been selected by the Board of any Fund involved in the loan who will serve as
16. Each Fund will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any Interfund Loan occurred, the first two years in an easily accessible place, a written record of all such transactions setting forth a description of the terms of the transaction, including the amount, the maturity and the rate of interest on the loan, the OTD Rate, the rate of interest available at the time on overnight repurchase agreements and bank borrowings, and such other information presented to the Fund's Board in connection with the review required by conditions (13) and (14).
17. The Interfund Lending Team will prepare and submit to the Board of each Fund for review an initial report describing the operations of the Credit Facility and the procedures to be implemented to ensure that all Funds are treated fairly. After the Credit Facility commences operations, the Interfund Lending Team will report to the Board quarterly on the operations of the Credit Facility.
In addition, for two years following the commencement of the Credit Facility, the independent public accountant for each Fund shall prepare an annual report that evaluates the Interfund Lending Team's assertion that it has established procedures reasonably designed to achieve compliance with the conditions of the order. The report shall be prepared in accordance with the Statements on Standards for Attestation Engagements No. 10 and it shall be filed pursuant to Item 77Q3 of Form N-SAR, as such Statements or Form may be revised, amended, or superseded from time to time. In particular, the report shall address procedures designed to achieve the following objectives: (i) That the Interfund Rate will be higher than both the Repo Rate and the OTD Rate but lower than the Bank Loan Rate; (ii) compliance with the collateral requirements described in this application; (iii) compliance with the percentage limitations on interfund borrowing and lending; (iv) allocation of interfund borrowing and lending demand in an equitable manner and in accordance with procedures established by the Board: and (v) that the interest rate on any Interfund Loan does not exceed the interest rate on any third party borrowings of a borrowing Fund at the time of the Interfund Loan.
After the final report is filed, the Fund's external auditors, in connection with their Fund audit examinations, will continue to review the operation of the Credit Facility for compliance with the conditions of the Application and their review will form the basis, in part, of the auditor's report on internal accounting controls in Form N-SAR.
18. No Fund will participate in the Credit Facility unless it has fully disclosed in its prospectus or SAI or, in the case of a closed-end Fund in its registration statement or shareholder reports, all material facts about its intended participation.
19. The Board of each borrowing and lending Fund will satisfy the fund governance standards as defined in Rule 0-1(a)(7) under the Act by the compliance date for the rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to modify the fee structure for the “Browse/Query” function in the trade reporting service of the Nasdaq Market Center.
The text of the proposed rule change is available on the NASD's Web site 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 customers using the trade reporting service of the Nasdaq Market Center can view a summary of their trade reporting activity by using the “Browse/Query” function of the Nasdaq Workstation.
Nasdaq has implemented new technology that modifies the “Browse/Query” function. The modified “Browse/Query” function has been renamed the “Query” function and each “Query” request now provides a complete summary of all trade reporting activity per request. Nasdaq customers no longer have to use the “More” function to view the next 18 records. Under the proposed rule change, users of the new “Query” function will be charged $.50 per request.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A of the Act,
Nasdaq does not believe that the proposed rule change will impose any inappropriate burden on competition.
Written comments on the proposed rule change were neither solicited nor received.
The foregoing proposed rule change has become immediately effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303.
All submissions should refer to File Number SR-NASD-2005-127. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”),
The NYSE proposes to list and trade the iShares® Dow Jones U.S. Energy Sector Index Fund and iShares Dow Jones U.S. Telecommunications Sector Index Fund, both exchange-traded
In its filing with the Commission, the NYSE included statements concerning the purpose of, and basis for, the proposed rule change. The text of these statements may be examined at the places specified in Item III, below, and is set forth in sections A, B, and C below.
The Exchange has adopted listing standards applicable to ICUs that are consistent with the listing criteria currently used by other national securities exchanges, and trading standards pursuant to which the Exchange may either list and trade ICUs, or trade such ICUs on the Exchange on an unlisted trading privileges (“UTP”) basis.
The Exchange now proposes to list and trade under Section 703.16 of the NYSE Listed Company Manual (“Manual”) and NYSE Rule 1100
On March 3, 2004, the Trust filed with the Commission an Amended and Restated Application for an Amended Order under sections 6(c) and 17(b) of the Investment Company Act and on September 8, 2004, the Trust filed with the Commission a Second Amended and Restated Application to Amend Orders under sections 6(c) and 17(b) of the Investment Company Act for the purpose of exempting the Fund from various provisions of the Investment Company Act and the rules thereunder (the “Application”). The Application requested that the Commission amend a prior Order received by the Advisor, the Trust and the Distributor on August 15, 2001, as amended (the “Prior Order”). On October 5, 2004, the SEC acted on the Application by approving an order amending certain prior orders under section 6(c) of the Investment Company Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d) and 22(e) of the Investment Company Act and Rule 22c-1 under the Investment Company Act, and under sections 6(c) and 17(b) of the Investment Company Act for an exemption from sections 17(a)(1) and (a)(2) thereof. Investment Company Act Release No. 26626 (October 5, 2004) (“Amended Order”).
As set forth in detail below, the Funds will hold certain securities (“Component Securities”) selected to correspond generally to the performance of the Dow Jones U.S. Oil and Gas Index and the Dow Jones U.S. Telecommunications Sector Index (the “Underlying Indexes”), respectively. Each Fund intends to qualify as a “regulated investment company” (a “RIC”) under the Internal Revenue Code (the “Code”). Barclays Global Fund Advisors (the “Advisor” or “BGFA”) is the investment advisor to the Funds. The Advisor is registered under the Investment Advisers Act of 1940.
The investment objective of the Funds will be to provide investment results that correspond generally to the price and yield performance of the Underlying Indexes.
From time to time, adjustments may be made in the portfolio of the Funds in accordance with changes in the composition of the Underlying Indexes or to maintain compliance with requirements applicable to a “registered investment company” (“RIC”) under the Internal Revenue Code.
The Exchange states that an index is a theoretical financial calculation, while each Fund is an actual investment portfolio. The performance of the Funds and the Underlying Indexes will vary somewhat due to transaction costs, market impact, corporate actions (such as mergers and spin-offs) and timing variances. It is expected that, over time, the correlation between each Funds' performance and that of its respective Underlying Index, before fees and expenses, will be 95% or better. A figure of 100% would indicate perfect correlation. Any correlation of less than 100% is called “tracking error.”
The Funds will not concentrate their investments (
Each Fund will invest at least 90% of its assets in the securities of its Underlying Index or in American Depositary Receipts (“ADRs”) based on securities in the Underlying Index. A fund may invest the remainder of its assets in securities not included in its Underlying Index, which BGFA believes will help the Fund track its Underlying Index. For example, a Fund may invest in securities not included in its Underlying Index in order to reflect various corporate actions (such as mergers) and other changes in its Underlying Index (such as reconstitutions, additions and deletions). A Fund also may invest its other assets in futures contracts, options on futures contracts, options, and swaps related to its Underlying Index, as well as cash and cash equivalents, including shares of money market funds affiliated with BGFA.
The Exchange believes that these requirements and policies prevent the Funds from being excessively weighted in any single security or small group of securities.
The Dow Jones U.S. Oil and Gas Index measures the performance of the oil and gas sector of the U.S. equity market. The Index includes companies in the following sectors: oil and gas producers and oil equipment, services and distribution. The Fund will concentrate its investments in a particular industry or group of industries to approximately the same extent as the Index is so concentrated. As of the close of business on December 17, 2004, the Index was concentrated in the integrated oil and gas industry group which comprised 56% of the market capitalization of the Index.
As of September 23, 2005, the Dow Jones U.S. Oil and Gas Index's top three holdings were Exxon Mobil Corp., Chevron Corp., and ConocoPhillips. The Index's top industries were Energy Equipment and Services, and Oil, Gas & Consumable Fuels.
As of September 23, 2005, the Dow Jones U.S. Oil and Gas Index components had a total market capitalization of approximately $1.27 trillion. The average total market capitalization was approximately $15.3 billion; the lowest market capitalization figure was $529.6 million. The ten largest constituents represented approximately 68.2% of the Index weight while the five highest weighted stocks represented 56.4% of the Index weight. During the past two months (from September 23, 2005), the five highest weighted stocks had an average daily trading volume in excess of 8.1 million shares. From March 23, 2005 through September 23, 2005, 91.8% of the component stocks traded at least 1.8 million shares. During August 23, 2005 through September 23, 2005, the minimum monthly trading volume for the lowest performing Index component was at least 1.9 million shares.
The Dow Jones U.S. Telecommunications Sector Index measures the performance of the telecommunications sector of the U.S. equity market. The Index includes companies in the following sectors: fixed-line telecommunications and mobile telecommunications.
The Fund will concentrate its investments in a particular industry or group of industries to approximately the same extent as the Index is so concentrated. As of the close of business
As of September 23, 2005, the Dow Jones U.S. Telecommunications Sector Index's top three holdings were Verizon Communications Inc., SBC Communications Inc., and Sprint Nextel Corp. The Index's top industry was Telecommunication Services.
As of September 23, 2005, the Dow Jones U.S. Telecommunications Sector Index components had a total market capitalization of approximately $368.2 billion. The average total market capitalization was approximately $16.7 billion; the lowest market capitalization figure was $209.3 million. The ten largest constituents represented approximately 93.5% of the Index weight while the five highest weighted stocks represented approximately 83.3% of the Index weight. For July 23, 2005 through September 23, 2005, the five highest weighted stocks had an average daily trading volume in excess of 7.1 million shares. From March 23, 2005 through September 23, 2005, 99.9% of the component stocks traded at least 850,000 shares. During August 23, 2005 through September 23, 2005, the minimum monthly trading volume for the lowest performing Index component was at least 1.2 million shares.
The Dow Jones U.S. Oil & Gas Index is a subset of the Dow Jones U.S. Total Market Index. The Index is capitalization weighted and includes companies in the oil and gas industries of the Dow Jones U.S. Total Market Index.
The Dow Jones U.S. Telecommunications Index is also a subset of the Dow Jones U.S. Total Market Index. The Index is capitalization-weighted and includes only companies in the telecommunications industry of the Dow Jones U.S. Total Market Index. The component stocks are weighted according to the total market value of their outstanding shares. The impact of a component's price change is proportional to the issue's total market value, which is the share price multiplied by the number of shares outstanding. The Index is adjusted to reflect changes in capitalization resulting from mergers, acquisitions, stock rights, substitutions and other capital events.
The Dow Jones Indexes are calculated continuously, and real-time index values are available from major data vendors at least every 15 seconds during the hours that the Shares trade on the Exchange.
(i)
As with other open-end investment companies, iShares will be issued at the net asset value (“NAV”) per share next determined after an order in proper form is received.
The NAV per share of the Funds is determined as of the close of the regular trading session on the Exchange on each day that the Exchange is open. The Trust sells Creation Unit Aggregations of the Funds only on business days at the next determined NAV of the Fund. Creation Unit Aggregations generally will be issued by the Funds in exchange for the in-kind deposit of equity securities designated by the Advisor to correspond generally to the price and yield performance of the Fund's Underlying Index (the “Deposit Securities”) and a specified cash payment. Creation Unit Aggregations generally will be redeemed by the Fund in exchange for portfolio securities of the Fund (“Fund Securities”) and a specified cash payment. Fund Securities received on redemption may not be identical to Deposit Securities deposited in connection with creations of Creation Unit Aggregations for the same day.
All orders to purchase iShares in Creation Unit Aggregations must be placed through an Authorized Participant. An Authorized Participant must be either a “Participating Party,”
The Funds impose a transaction fee in connection with the issuance and
(ii)
The identity and number of shares of the Deposit Securities required for the Fund Deposit for each Fund will change from time to time. The composition of the Deposit Securities may change in response to adjustments to the weighting or composition of the Component Securities in the Underlying Index. In addition, the Trust reserves the right to permit or require the substitution of an amount of cash—
Creation Unit Aggregations of the Funds will be redeemable at the NAV next determined after receipt of a request for redemption. Creation Unit Aggregations of the Funds generally will be redeemed in-kind, together with a balancing cash payment (although, as described below, Creation Unit Aggregations may sometimes be redeemed for cash). The value of the Funds' redemption payments on a Creation Unit Aggregation basis will equal the NAV per the appropriate number of iShares of the Funds. Owners of iShares may sell their iShares in the secondary market, but must accumulate enough iShares to constitute a Creation Unit Aggregation in order to redeem through the Funds. Redemption orders must be placed by or through an Authorized Participant.
Shares may be redeemed only in Creation Unit Aggregations at their NAV next determined after receipt of a redemption request in proper form by the Fund through IBT and only on a business day. A Fund will not redeem shares in amounts less than Creation Unit Aggregations.
With respect to each Fund, BGFA, through the NSCC and through the Distributor, makes available prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time) on each business day, the identity of the Fund securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form (as described below) on that day (“Fund Securities”). Fund Securities received on redemption may not be identical to Deposit Securities that are applicable to creations of Creation Unit Aggregations.
Unless cash redemptions are available or specified for a Fund, the redemption proceeds for a Creation Unit Aggregation generally consist of Fund Securities—as announced on the business day of the request for redemption received in proper form—plus cash in an amount equal to the difference between the NAV of the shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities (the “Cash Redemption Amount”), less a redemption transaction fee as noted above. In the event that the Fund Securities have a value greater than the NAV of the shares, a compensating cash payment equal to the difference is required to be made by or through an Authorized Participant by the redeeming shareholder.
Prior to the opening of business on the Exchange (currently 9:30 a.m. Eastern time) on each business day, BGFA, through NSCC, will make available the list of names and amount of each security constituting the current Deposit Securities of the Fund Deposit (subject to possible amendment or correction) and the Balancing Amount effective as of the previous business day, per outstanding share of each Fund.
The NAV for the Fund will be calculated and disseminated daily. The Funds' NAV will be published in a number of places, including
An amount per iShare representing the sum of the estimated Balancing Amount effective through and including the previous business day, plus the current value of the Deposit Securities in U.S. dollars, on a per iShare basis (the “Intra-day Optimized Portfolio Value” or “IOPV”) will be calculated by a third party independent of the issuer (the “Value Calculator”), at least every 15 seconds during the Exchange's regular trading hours and disseminated at least every 15 seconds on the Consolidated Tape. In addition, the values of the Underlying Indexes will be disseminated by one or more major market vendors at least every 15 seconds during the Exchange's regular trading hours.
The IOPV reflects the current value of the Deposit Securities and the Balancing Amount. Since the Funds will utilize a representative sampling strategy, the IOPV may not reflect the value of all securities included in the Underlying Indexes. In addition, the IOPV does not necessarily reflect the precise composition of the current portfolio of securities held by the Funds at a particular point in time. Therefore, the IOPV on a per Fund share basis disseminated during the Exchange's trading hours should not be viewed as a real time update of the NAV of the Funds, which is calculated only once a day. While the IOPV disseminated by the Exchange at 9:30 a.m. is expected to be generally very close to the most recently calculated Fund NAV on a per Fund share basis, it is possible that the value of the portfolio of securities held by each Fund may diverge from the Deposit Securities values during any trading day. In such case, the IOPV will not precisely reflect the value of each Fund's portfolio.
However, during the trading day, the IOPV can be expected to closely approximate the value per Fund share of the portfolio of securities for each Fund except under unusual circumstances (
The Exchange believes that dissemination of the IOPV based on the Deposit Securities provides additional information regarding the Funds that is not otherwise available to the public and is useful to professionals and investors in connection with Fund shares trading on the Exchange or the creation or redemption of Fund shares.
As noted, the Dow Jones Indexes are calculated continuously, and real-time index values are available from major data vendors at least every 15 seconds during the hours that the Shares trade on the Exchange.
Other information on the Funds, regarding NAV, premium or discount to NAV, distributions, shares outstanding total returns, tracking error, holdings and other information is available on
General Policies. Accrued dividends from net investment income, if any, are declared and paid at least annually by each Fund. Distributions of net realized securities gains, if any, generally are declared and paid once a year, but the Trust may make distributions on a more frequent basis for certain Funds. The Trust reserves the right to declare special distributions if, in its reasonable discretion, such action is necessary or advisable to preserve the status of each Fund as a RIC or to avoid imposition of income or excise taxes on undistributed income.
Dividends and other distribution in shares are distributed on a pro rata basis to Beneficial Owners of such shares. Dividend payments are made through DTC Participants and Indirect Participants to Beneficial Owners then of record with proceeds received from the Funds.
Dividend Reinvestment Service. No dividend reinvestment service is provided by the Trust. Broker-dealers may make available the DTC book-entry Dividend Reinvestment Service for use by Beneficial Owners of Funds for reinvestment of their dividend distributions. Beneficial Owners should contact their broker to determine the availability and costs of the service and the details of participation therein. Brokers may require Beneficial Owners to adhere to specific procedures and timetables. If this service is available and used, dividend distributions of both income and realized gains will be automatically reinvested in additional whole shares of the same Fund purchased in the secondary market.
Beneficial owners of the Funds will receive all of the statements, notices, and reports required under the Investment Company Act and other applicable laws. They will receive, for example, annual and semi-annual reports, written statements accompanying dividend payments, proxy statements, annual notifications detailing the tax status of distributions, IRS Form 1099-DIVs, etc. Because the Trust's records reflect ownership of iShares by DTC only, the Trust will make available applicable statements, notices, and reports to the DTC Participants who, in turn, will be responsible for distributing them to the beneficial owners.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
NYSE believes that the proposed rule change is consistent with section 6(b)(5) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Jonathan G. Katz, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-9303.
The Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder,
The Commission believes that the proposed rule change raises no issues that have not been previously considered by the Commission.
Given the market capitalization and liquidity of the Underlying Indexes and Funds' component securities, the Commission does not believe that the Funds' shares will be susceptible to manipulation, despite the concentration of individual components. Nevertheless, the Exchange represents that its surveillance procedures are adequate to properly monitor the trading of the Funds, taking into account the concentration of the individual components. The Commission expects the Exchange to employ adequate surveillance for detecting manipulations of both the Shares and the underlying components, especially given the concentration of individual components.
With respect to pricing, once each day, the NAV for the Fund will be calculated and disseminated by IBT, to various sources, including the NYSE, and made available on
The Commission notes that a variety of additional information about each Fund will be readily available. Information with respect to recent NAV, shares outstanding, estimated cash amount and total cash amount per Creation Unit Aggregation will be made available prior to the opening of the Exchange. Information on the Funds, regarding NAV, premium or discount to NAV, distributions, shares outstanding total returns, tracking error, holdings and other information is available on
Based on the representations made in the NYSE proposal, the Commission believes that pricing and other important information about the Fund is adequate and consistent with the Act.
The Exchange represents that it will circulate an Information Memorandum detailing applicable prospectus and product description delivery requirements. The memo will also discuss exemptive, no-action and interpretive relief granted by the Commission from certain rules under the Act. The memo also will address NYSE members' responsibility to deliver a prospectus or product description to all investors (in accordance with NYSE Rule 1100(b)) and highlight the characteristics of the Funds. The memo will also remind members of their suitability obligations, including NYSE Rule 405 (Diligence as to Accounts).
The Commission finds that adequate rules and procedures exist to govern the listing and trading of the Fund's shares. Fund shares will be deemed equity securities subject to NYSE rules governing the trading of equity securities, including, among others, rules governing trading halts, responsibilities of the specialist, account opening and customer suitability requirements,
In addition, the Exchange states that iShares are subject to the criteria for initial and continued listing of ICUs in section 703.16 of the NYSE Manual. The Commission believes that the listing and delisting criteria for Fund shares should help to ensure that a minimum level of liquidity will exist in the Fund to allow for the maintenance of fair and orderly markets.
The Commission finds good cause, pursuant to section 19(b)(2) of the Act,
Accordingly, the Commission finds that there is good cause, consistent with section 6(b)(5) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Federal Aviation Administration (FAA), DOT.
Monthly Notice of PFC Approvals and Disapprovals. In June 2005, there were six applications approved. This notice also includes information on three applications, two approved in November 2004 and one approved in May 2005, inadvertently left off the November 2004 and May 2005 notices, respectively. Additionally, 16 approved amendments to previously approved applications are listed.
The FAA publishes a monthly notice, as appropriate, of PFC approvals and disapprovals under the provisions of the Aviation Safety and Capacity Expansion Act of 1990 (Title IX of the Omnibus Budget Reconciliation Act of 1990) (Pub. L. 101-508) and Part 158 of the Federal Aviation Regulations (14 CFR part 158). This notice is published pursuant to paragraph d of § 158.29.
Replace snow removal equipment and airfield snow broom.
Acquire snow removal equipment and airfield snow broom.
Replace aircraft rescue and firefighting vehicle.
Lorna K. Sandridge, Central Region Airports Division, (816) 329-2641.
Lorna K. Sandridge, Central Region Airports Division, (816) 329-2641.
Environmental assessment for runway 6/24 extension.
Site security phase II.
Command vehicle.
Airfield access road.
Acquire Orchard Park mobile home estates.
Replace high intensity runway lighting system.
9/11 security costs.
Construct two passenger loading bridges.
Aircraft rescue and firefighting vehicle (pumper).
Acquire runway friction tester vehicle.
Lori Ledebohm, Harrisburg Airports District Office, (717) 730-2835.
Gordon Nelson, Minneapolis Airports District Office, (612) 713-4358.
Terminal area study (phase I).
Environmental assessment for midfield terminal.
PFC consulting services.
6 Chris Schaffer, Denver Airports District Office, (303) 342-1258.
Benefit cost analysis for proposed runway extension.
Security enhancement/terminal modification.
Environmental assessment for proposed runway extension.
Rehabilitate runway 1/19.
Rehabilitate taxiways B and G.
Replace aircraft rescue and firefighting vehicle.
PFC administrative costs.
Construct/improve airfield drainage.
Reconstruct/rehabilitate runway 9/27.
Joseph Rodriguez, San Francisco Airports District Office, (650) 876-2778, extension 610.
Pedestrian bridge from C gates to A/B gates.
In-line explosive detection system.
Taxiway B renovation/taxiway C extension.
Ramp rehabilitation.
Satellite D apron.
Central plant upgrade.
Heating, ventilation, and air conditioning upgrades in concourse A/B.
Construct terminal and ramp.
Airport traffic control tower.
Design of terminal 3.
Russell Road relocation.
Brief Description of Project Approved for Collection at LAS for Future Use at LAS at a $3.00 PFC Level: Russell Road park.
Joseph Rodriguez, San Francisco Airports District Office, (650) 876-2778, extension 610.
Security infrastructure project.
Airport operations area vehicle service roads.
Resurfacing entry/exit roads.
Security checkpoint expansion.
Building modifications—explosive trace detection equipment relocation.
Pavement condition survey—taxiways E, E1-8, G, and H.
Taxiway H.
Christopher Schaffer, Denver Airports District Office, (303) 342-1258.
Airfield service roadway.
Security access road and fencing—phase II.
2005 terminal improvements.
Closed-circuit television system and bomb-blast analysis—phase II.
Purchase snow removal equipment.
Acquisition of a hazardous materials vehicle/mobile command vehicle.
Snow removal equipment building.
Terminal area roadway improvements.
Study for technology-based security improvements.
Purchase four patrol cars.
Terminal heating, ventilation, and air conditioning upgrades.
East side expansion of aircraft apron.
Environmental assessment—concourse.
East concourse security expansion.
Glycol storage facility.
Construct service road.
Terminal baggage claim upgrades.
Snow removal equipment building.
Improve airport access road—north end.
Runway 10/28 rehabilitation.
Dan Vornea, New York Airports District Office, (516) 227-3812.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of applications for exemption from the vision standard; request for comments.
This notice announces FMCSA's receipt of applications from 22 individuals for an exemption from the vision requirement in the Federal Motor Carrier Safety Regulations. If granted, the exemptions will enable these individuals to qualify as drivers of commercial motor vehicles (CMVs) in interstate commerce without meeting the vision standard prescribed in 49 CFR § 391.41(b)(10).
Comments must be received on or before December 30, 2005.
You may submit comments by any of the following methods. Please label your comments with DOT DMS Docket Number FMCSA-2005-22727.
• Web site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
All submissions must include the agency name and docket number for this notice. Note that all comments received will be posted without change to
Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, (202) 366-4001, FMCSA, Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 8 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays.
Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” FMCSA can renew exemptions at the end of each 2-year period. The 22 individuals listed in this notice each have requested an exemption from the vision requirement in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce. Accordingly, the agency will evaluate the qualifications of each applicant to determine whether granting the exemption will achieve the required level of safety mandated by statute.
Mr. Baxter, 52, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/25 and in the left, 20/200. His optometrist examined him in 2005 and noted, “In my professional opinion, Mr. Baxter has sufficient vision to perform the driving tasks required to operate a commercial motor vehicle.” Mr. Baxter reported that he has driven tractor-trailer combinations for 31 years, accumulating 4.7 million miles. He holds a Class A CDL from Utah. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr.Bierwirth, 35, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/20 and in the left, 20/140. Following an examination in 2005, his optometrist noted, “In my medical opinion, Donald has sufficient vision to drive commercial vehicles safely.” Mr. Bierwirth reported that he has driven straight trucks for 4 years, accumulating 180,000 miles. He holds a Class A CDL from Connecticut. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—speeding—in a CMV. He exceeded the speed limit by 10 mph.
Mr. Bousema, 48, has had ambloyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/700 and in the left, 20/25. His optometrist examined him in 2005 and noted, “In my medical opinion you have sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Bousema reported that he has driven straight trucks for 30 years, accumulating 300,000 miles and tractor-trailer combinations for 30 years, accumulating 300,000 miles. He holds a Class A CDL from California. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Caddy, 40, has had retinal detachment in his right eye since 2002. The best corrected visual acuity in his right eye is hand motion at 6 feet and in the left eye, 20/20. Following an examination in 2005, his ophthalmologist noted, “In my professional opinion, Mr. Caddy has sufficient vision to perform the visual tasks necessary for a commercial driver.” Mr. Caddy reported that he has driven straight trucks for 18 years, accumulating 812,000 miles. He holds a Class B CDL from California. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Crouch, 52, has had a congenital cataract is his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in the left, 20/200. Following an examination in 2005, his optometrist noted, “He has sufficient vision, in my opinion, to perform the driving tasks required to operate a commercial vehicle as he has displayed in the past.” Mr. Crouch reported that he has driven straight trucks for 14 years, accumulating 72,000 miles. He holds a Class C operators license from Oregon. His driving record for the last 3 years shows no crashes or convictions for moving violation in a CMV.
Mr. Daggs, 45, lost his left eye due to a traumatic injury he sustained seven years ago. The best corrected visual acuity in his right eye is 20/20. His optometrist examined him in 2005 and noted, “In my opinion, the patient has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Daggs reported that he has driven straight trucks for 18 years, accumulating 387,000 miles and tractor-trailer combinations for 15 years, accumulating 30,000 miles. He holds a Class A CDL from Missouri. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Date, 42, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/200 and in the left, 20/20. Following an examination in 2005, his optometrist noted, “I certify that Mr. Date has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Date reported that he has driven straight trucks for 20 years, accumulating 200,000 miles and tractor-trailer combinations for 17 years, accumulating 765,000 miles. He holds a Class A CDL from Maryland. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Fuller, 55, is blind in his right eye due to a retinal detachment that occurred in 1993. The best corrected visual acuity in his left eye is 20/20. Following an examination in 2005, his optometrist noted, “In my opinion, Mr. Fuller has sufficient vision to operate a commercial vehicle.” Mr. Fuller reported that he has driven straight trucks for 38 years, accumulating 1.9 million miles, and tractor-trailer combinations for 15 years, accumulating 600 miles. He holds a Class A CDL from Illinois. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Grzybowski, 39, has had refractive amblyopia in his right eye since birth. The best corrected visual acuity in his right eye is light perception and in the left, 20/20. His optometrist examined him in 2005 and noted, “This patient has sufficient vision to perform driving tasks required to operate a commercial vehicle.” Mr. Grzybowski reported that he has driven straight trucks for 20 years, accumulating one million miles. He holds a Class C operator's license from Maryland. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Jones, 60, has had amblyopia in his left eye since birth. The best corrected visual acuity in his right eye is 20/20 and in the left, 20/200. Following an examination in 2005, his optometrist noted, “Because this has been a lifelong condition, Mr. Jones
Mr. Kimmet, 35, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in the left, 20/200. His optometrist examined him in 2005 and noted that “Mr. Kimmet's condition seems stable and he has adapted very well for his visual requirements. Visually he seems functional to fulfill the demands of a CMV license.” Mr. Kimmett reported that he has driven straight trucks for 4 years, accumulating 110,000 miles. He holds a Class B CDL from Washington. His driving record for the last 3 years shows no crashes and one conviction for a moving violation—failure to obey a traffic sign—in a CMV.
Mr. Light, 26, has an aphakia right eye, as a result of an injury that occurred when he was 15 years old. The best corrected visual acuity in his right eye is count-finger-vision at 3 feet and in the left, 20/20. His optometrist examined him in 2005 and noted, “Mr. Light has sufficient vision to perform driving tasks, and operate commercial vehicles.” Mr. Light reported that he has driven straight trucks for 3 years, accumulating 88,000 miles and tractor-trailer combinations for 2
Mr. Mauton, 56, has had retinal vein occlusion in his left eye since 1996. The best corrected visual acuity in his right eye is 20/20 and in the left, count-finger-vision at 5 feet. Following an examination in 2005, his optometrist noted, “In my medical opinion, Mr. Mauton has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Mauton reported that he has driven straight trucks for 30 years, accumulating 3,000 miles and tractor-trailer combinations for 25 years, accumulating 425,000 miles. He holds a Class A CDL from Kansas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Maxcy, 47, has optic nerve damage in his left eye as a result of a childhood injury. The visual acuity in his right eye is 20/20 and in the left, peripheral vision only. Following an examination in 2005, his optometrist noted, “I feel Mr. Maxcy has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Maxcy reported that he has driven straight trucks for 10 years, accumulating 450,000 miles. He holds a Class A CDL from New York. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Mollicone, 35, has an open globe injury from childhood and a retinal detachment, repaired 8 years ago, both in his left eye. The best corrected visual acuity in his right eye is 20/15 and in the left, 20/100. Following an examination in 2005, his ophthalmologist noted, “I certify in my medical opinion that Mr. Mollicone has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Mollicone reported that he has driven straight trucks for 2 years, accumulating 60,000 miles and tractor-trailer combinations for 12 years, accumulating 280,000 miles. He holds a Class CA CDL from Michigan, which allows him to operate a vehicle with a gross weight of 26,001 pounds or more, as well as a vehicle with a gross weight of 26,001 pounds or less. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Murphy, 65, has had amblyopia in his right eye since birth. The best corrected visual acuity in his right eye is 20/80 and in the left, 20/20. Following an examination in 2005, his ophthalmologist noted, “In my medical opinion, William Murphy has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Murphy reported that he has driven straight trucks for 44 years, accumulating 1.8 million miles and tractor-trailer combinations for 17 years, accumulating 510,000 miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Nehls, 53, has had refractive ambloypia in his left eye since birth. The best corrected visual acuity in his right eye is 20/15 and in the left, 20/200. Following an examination in 2005, his optometrist noted, “In my medical opinion, Mr. Nehls has sufficient vision to operate a commercial vehicle.” Mr. Nehls reported that he has driven tractor-trailer combinations for 32 years, accumulating 4 million miles. He holds a Class A CDL from South Dakota. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Ponte, 37, has had amblyopia in his left eye since childhood. The best corrected visual acuity in his right eye is 20/15 and in the left, 20/60. Following an examination in 2005, his optometrist noted, “It is my opinion that he has sufficient vision to operate a commercial vehicle.” Mr. Ponte reported that he has driven straight trucks for 15 years, accumulating 300,000 miles and tractor-trailer combinations for 3 years, accumulating 90,000 miles. He holds a Class A CDL from Massachusetts. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Rodrigues, 58, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/100 and in the left, 20/20. Following an examination in 2005, his optometrist noted, “It is my medical opinion that Mr. Rodrigues has sufficient vision to operate a commercial vehicle.” Mr. Rodrigues reported that he has driven straight trucks for 20 years, accumulating 1 million miles and tractor-trailer combinations for 20 years, accumulating 1.5 million miles. He holds a Class A CDL from Texas. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Schnautz, 57, has had a central scotoma in his left eye since childhood. The best corrected visual acuity in his right eye is 20/20 and in the left, 20/400. His optometrist examined him in 2005 and noted, “It is my opinion, Mr. Schnautz has sufficient vision to perform the driving tasks required to operate a commercial vehicle.” Mr. Schnautz reported that he has driven straight trucks for 14 years, accumulating 560,000 miles, and
Mr. Sherry, 48, has had amblyopia in his right eye since childhood. The best corrected visual acuity in his right eye is 20/400 and in the left, 20/15. His optometrist examined him in 2005 and noted “Uncorrected visual acuity meets criteria to operate a commercial vehicle.” Mr. Sherry reported that he has driven straight trucks for 5 years, accumulating 25,000 miles and tractor-trailer combinations for 30 years, accumulating 1.95 million miles. He holds a Class A CDL from Pennsylvania. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Mr. Voyles, 53, has had histoplasmosis retinitis in his left eye since 1999. The best corrected visual acuity in his right eye is 20/15 and in the left, count-finger-vision at 10 feet. His optometrist examined him in 2005 and noted “It is my opinion that Thomas E. Voyles, Jr. has adequate vision to safely operate a commercial motor vehicle.” Mr. Voyles reported that he has driven straight trucks for 30 years, accumulating 150,000 miles. He holds a Class M chauffer license from Indiana. His driving record for the last 3 years shows no crashes or convictions for moving violations in a CMV.
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before December 30, 2005.
Gilda Lee, Maritime Administration, 400 Seventh Street Southwest, Washington, DC 20590. Telephone: 202-366-3971; FAX: 202-366-3746; or E-MAIL:
Maritime Administration (MARAD).
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street Northwest, Washington, DC 20503, Attention MARAD Desk Officer.
49 CFR 1.66.
Union Pacific Railroad Company (UP) has filed a notice of exemption under 49 CFR 1152 Subpart F—
UP has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.7 (environmental reports), 49 CFR 1105.8 (historic reports), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on December 30, 2005, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to UP's representative: Mack H. Shumate, Jr., Senior General Attorney, 101 North Wacker Drive, Room 1920, Chicago, IL 60606.
If the verified notice contains false or misleading information, the exemption is void
UP has filed a combined environmental report and historic report which addresses the effects, if any, of the abandonment on the environment and historic resources. SEA will issue an environmental assessment (EA) by December 5, 2005. Interested persons may obtain a copy of the EA by writing to SEA (Room 500, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 565-1539. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), UP shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by UP's filing of a notice of consummation by November 30, 2006, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Blackwell Northern Gateway Railroad Company (BNGR), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to operate 35.26 miles of the rail line, owned by the State of Oklahoma by and through the Oklahoma Department of Transportation and Blackwell Industrial Authority. The rail line extends: (1) Between milepost 34.3 at Blackwell, OK, and milepost 18 + 1712.9 feet at the Oklahoma/Kansas State line near Hun Newell, KS; (2) between milepost 35 + 1848 feet, west of Blackwell, OK, and milepost 34.3 at Blackwell, OK; and (3) between milepost 18 + 1712.9 feet at the Oklahoma/Kansas State line near Hun Newell, KS, and milepost 0 + 466.3 feet, at Wellington, KS. BNGR will replace Blackwell & Northern Railway Company, which has been operating over the line, and will become a class III rail carrier.
The transaction was scheduled to be consummated no earlier than November 7, 2005, the effective date of the exemption (7 days after the exemption was filed).
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34777, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on, Thomas F. McFarland, Thomas F. McFarland, P.C., 208 South LaSalle Street, Suite 1890, Chicago, IL 60604-1112.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
U.S.-China Economic and Security Review Commission.
Notice of open public hearing.
Notice is hereby given of the following hearing of the U.S.-China Economic and Security Review Commission.
The Commission is mandated by Congress to investigate, assess, evaluate and report to Congress annually on “the national security implications of the bilateral trade and economic relationship between the United States and the People's Republic of China.” Pursuant to this mandate, the Commission will be holding a public hearing in Washington, DC on December 8, 2005.
This event is the first in a series of public hearings the Commission will hold during its 2005-2006 report cycle to collect input from leading experts in academia, business, industry, government and the public on the impact of U.S-China trade and economic relations. The December 8 hearing is being conducted to secure commentary about issues connected to the Hong Kong Ministerial Conference of the Doha Round of the World Trade Organization's trade expansion negotiations that will occur on December 13-18, 2005. Information on
The December 8 hearing will be co-chaired by Commissioners George Becker of Pittsburgh and Professor June Teufel Dreyer of The University of Miami.
The hearing is designed to assist the Commission in fulfilling its mandate by examining the issues to be addressed at the Hong Kong Ministerial Conference of the Doha Round of the World Trade Organization's Trade Expansion Negotiations. Invited witnesses include international trade law experts, administration officials, and labor and industry representatives.
The hearing will focus on the process whereby U.S. trade objectives are determined and pursued. It will also address the results of the U.S. trade policies toward China, discuss the results of the Doha Round of WTO negotiations, and provide an assessment of the Administration's fulfillment of Congressional objects as defined under the Trade Promotion Authority.
Copies of the hearing agenda will be made available on the Commission's Web site at
The hearing will be held in the Capitol Hill complex, Washington, DC, in a hearing room to be announced. Public Seating is limited to about 70 people on a first come, first served basis.
Any member of the public wishing further information concerning the hearing should contact Kathy Michels, Associate Director for the U.S.-China Economic and Security Review Commission, 444 North Capitol Street, NW., Suite 602, Washington, DC 20001; phone 202-624-1409, or via e-mail at
The Commission was established in October 2000 pursuant to the Floyd D. Spence National Defense Authorization Act Section 1238, Pub. L. 106-398, 114 STAT. 1654A-334 (2000) (codified at 22 U.S.C. Section 7002 (2001), as amended, and the “Consolidated Appropriations Resolution of 2003,” Pub. L. No. 108-7 dated February 20, 2003.
In rule document 05-23007 beginning on page 70964 in the issue of Wednesday, November 23, 2005, make the following correction:
On page 70969, the table titled “AIRMAIL PARCEL POST” is corrected in part to read as follows:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
CDC is committed to protecting the health and safety of the American public by preventing the introduction of communicable disease into the United States. Having updated regulations in place is an important measure to ensure swift response to public health threats. CDC proposes to update existing regulations related to preventing the introduction, transmission, or spread of communicable diseases from foreign countries into the U.S. and from one State or possession into another.
Written comments must be received on or before January 30, 2006. Written comments on the proposed information collection requirements should also be submitted on or before January 30, 2006. Comments received after January 30, 2006 will be considered to the extent practicable.
You may submit written comments to the following address: Centers for Disease Control and Prevention, Division of Global Migration and Quarantine, ATTN: Q Rule Comments, 1600 Clifton Road, NE., (E03), Atlanta, GA 30333. Comments will be available for public inspection Monday through Friday, except for legal holidays, from 9 a.m. until 5 p.m. at 1600 Clifton Road, NE., Atlanta, GA 30333. Please call ahead to 1-866-694-4867 and ask for a representative in the Division of Global Migration and Quarantine to schedule your visit. Comments also may be viewed at
Mail written comments on the proposed information collection requirements to the following address: Office of Information and Regulatory Affairs, OMB, New Executive Office Building, 725 17th Street, NW., rm. 10235, Washington, DC 20503, Attn: Desk Officer for CDC.
Jennifer Brooks, Centers for Disease Control and Prevention, Division of Global Migration and Quarantine,1600 Clifton Road, NE., (E03), Atlanta, GA 30333; telephone (404) 498-2395.
The Preamble to this notice of proposed rulemaking is organized as follows:
These regulations are proposed under the authority of 25 U.S.C. 198, 231, and 1661; 42 U.S.C. 243, 248, 249, 264-272, and 2001.
The primary authorities supporting this rulemaking are §§ 361-368 of the Public Health Service Act (42 U.S.C. 264-271). Section 361 authorizes the Secretary to make and enforce regulations as are necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the United States and from one State or possession into another.
Recent experiences with emerging infectious diseases such as West Nile Virus, SARS, and monkeypox have illustrated the rapidity with which disease may spread throughout the world and the impact communicable diseases, when left unchecked, may have on the global economy. As noted by the Institute of Medicine, National Academy of Sciences in a recent study, “Whether naturally occurring or intentionally inflicted, infections can cause illness, disability, and death in persons while disrupting whole populations, economies, and governments. And because national borders offer trivial impediment to such threats, especially in the highly interconnected and readily traversed “global village” of our time, one nation's problem soon becomes every nation's problem.” (Microbial Threats to Health: Emergence, Detection and Response”, Institute of Medicine, March, 2003). As diseases evolve naturally or as a result of human intervention, it is important to ensure that containment procedures reflect new threats and uniform ways to respond to them.
Stopping an outbreak—whether it is naturally occurring or intentionally caused—requires the use of the most rapid and effective public health tools available. These tools include basic public health practices such as disease reporting requirements and identification and notification of contacts who may have been exposed to a communicable disease so that they may receive preventive measures. Quarantine is defined as the restriction of the movement of persons exposed to infection to prevent them from infecting others, including family members, friends, and neighbors. Quarantine of exposed persons may be the best initial way to prevent the uncontrolled spread of highly dangerous biologic agents such as smallpox, plague, and Ebola fever—especially when combined with other health strategies such as vaccination, prophylactic drug treatment, patient isolation, and other appropriate infection control measures. Quarantine may be particularly important if a biologic agent has been rendered contagious, drug-resistant, or vaccine-resistant through bioengineering, making other disease control measures less effective.
The Secretary's authority to quarantine persons is limited to those communicable diseases published in an Executive Order of the President. This list currently includes cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, and viral hemorrhagic fevers, such as
Regulations that implement federal quarantine authority are currently promulgated in 42 CFR parts 70 and 71. Part 71 deals with foreign arrivals and part 70 deals with interstate matters. The Secretary has delegated to the Director of the Centers for Disease Control and Prevention the authority for implementing 42 CFR part 71, which was last substantively updated in 1985. On August 16, 2000, the Secretary transferred the authority for interstate quarantine over persons from FDA to CDC, which became 42 CFR part 70. FDA retained, pursuant to 21 CFR part 1240, regulatory authority over animals and other products that may transmit or spread communicable diseases. The Secretary took this action in order to consolidate regulations designed to control the spread of communicable diseases, thereby increasing the agencies' efficiency and effectiveness. This proposed rule is not intended to have any effect upon FDA's authority in 21 CFR part 1240. In 2003, in response to the emergence of Severe Acute Respiratory Syndrome (SARS), Health and Human Services (HHS) amended 42 CFR 70.6 and 71.3 to incorporate by reference the Executive Order listing the communicable diseases subject to quarantine, thereby eliminating the administrative delay involved in separately publishing the list of diseases through rulemaking. Also in 2003, CDC published an interim final rule that added § 71.56 African rodents and other animals that may carry the monkeypox virus. Finally, on January 25, 2005, the Secretary added section 70.9 to establish vaccination clinics and a user fee in connection with administration of vaccine services and vaccine.
The intent of the proposed updates to 42 CFR parts 70 and 71 is to clarify and strengthen existing procedures to enable CDC to respond more effectively to current and potential communicable disease threats.
The primary statutory authority to enact regulations for the purpose of communicable disease control is found at section 361 (42 U.S.C. 264) of the Public Health Service Act. Section 361 is divided into four subsections. Subsection (a) authorizes the Secretary
As prescribed in 42 U.S.C. 271 and 18 U.S.C. 3559 and 3571(c), criminal sanctions exist for violating regulations enacted under section 361. Specifically, individuals in violation of such regulations are subject to a fine of no more than $250,000 or one year in jail, or both. Violations by organizations are currently subject to a fine no greater than $500,000 per event. Federal district courts also have jurisdiction to enjoin individuals and organizations from violating regulations implemented under section 361.
Prevention of communicable diseases has long been the subject of federal regulation. In 1796, Congress enacted the first federal quarantine law in response to a yellow fever epidemic, which gave federal officials the authority to assist states in the enforcement of quarantine laws. In 1799, Congress repealed the 1796 Act and replaced it with one establishing the first federal inspection system for maritime quarantines. In 1878, Congress amended the Quarantine Act to assign responsibilities to the Marine Hospital Service, which had been established in 1798 to provide for the health needs of merchant seaman. The 1878 Quarantine Act, however, was extremely limited and provided that federal quarantine regulations could not conflict with those of state or municipal authorities.
In 1893, Congress expanded the role of the Marine Hospital Service by enacting “An Act Granting Additional Quarantine Powers and Imposing Additional Duties upon the Marine Hospital Service.”
Acknowledging the critical importance of protecting the public's health, long-standing court decisions uphold the ability of Congress and the States to enact quarantine and other public health laws, and to have them executed by public health officials.
In addition to Congress' authority to regulate foreign commerce, the U.S. Supreme Court has identified three broad categories of interstate activity that Congress may regulate under its Commerce Clause authority: (1) The use of the channels of interstate commerce (e.g., prohibitions on the shipment in interstate commerce of noxious articles or kidnapped persons); (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat to interstate commerce may come only from intrastate activities (e.g., regulations on railway rates); and (3)
The proposed regulation also is consistent with the “search and seizure” requirements of the Fourth Amendment. Authority to “search and seize” in the form of inspections, detentions, and quarantine has long existed under the Public Health Service Act and the current regulations. The Fourth Amendment to the U.S. constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, shall not be violated, and no warrants shall issue, but upon probable cause. * * *” Courts have held, however, that not all types of searches and seizures necessarily require probable cause and a warrant. Searches and seizures conducted with the consent of an authorized person and those searches and seizures that are conducted to avert an imminent threat to health or safety do not run afoul of the Fourth Amendment even when conducted without probable cause and a warrant.
The U.S. Supreme Court has also recognized a reduced expectation of privacy concerning commercial industries that are “closely regulated” and thus searches and seizures of such commercial industries do not require probable cause and a warrant.
Section 361(a) of the PHS Act (42 U.S.C. 264(a)) provides that regulations enacted by the Secretary may provide for inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated to be sources of dangerous infection to human beings, and other measures that in the Secretary's judgment may be necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States or from one state or possession into another. The statute also authorizes the apprehension, detention, and conditional release of persons reasonably believed to be infected with specified communicable diseases and arriving into the United States or traveling from one state into another. In carrying out this statutory authority, the proposed regulations authorize the Director to detain and inspect carriers and articles on board carriers for purposes of determining whether they may require the application of sanitary measures to prevent the introduction, transmission, or spread of communicable diseases.
The Director's delegated authority under section 361 is distinct from legal authority afforded to other federal agencies, such as USDA, which, among other things, includes the legal authority to prohibit or restrict the importation or entry of any animal, article, or means of conveyance, or the use of any means of conveyance or facility, if the USDA Secretary determines that the prohibition or restriction is necessary to prevent the introduction into or dissemination within the United States of any pest or disease of livestock. See 7 U.S.C. 8303. In implementing measures necessary to prevent the introduction, transmission, and spread of communicable diseases that affect both human and livestock health, e.g., avian influenza, CDC would work collaboratively with USDA.
As previously noted, there are circumstances where courts have held that the Fourth Amendment does not require probable cause and a warrant, including searches conducted upon the consent of the individual and those necessary to avert an imminent threat to human health or safety. Inspections conducted by quarantine officers at ports of entry and other locations will most often fall into one of these two categories. In addition, under the proposed regulations, the Director may compel inspections of carriers and the application of sanitary measures through written order. Furthermore, the proposed regulations provide the owners with an opportunity for a written appeal in the event that the Director orders the detention of a carrier or the destruction of animals, articles, or things, on board the carrier. Regarding individuals, the proposed regulation authorizes the provisional quarantine of persons arriving into the United States reasonably believed to be infected with or exposed to a quarantinable disease and persons who the Director reasonably believes to be in the qualifying stage of a quarantinable disease and traveling from one state into another or who are a probable source of infection to others who may be traveling from one state into another.
The routine inspection of persons or property for purposes of determining the presence of communicable disease is authorized by statute and does not run afoul of the Fourth Amendment because of the reduced expectation of privacy inherent in travel and at border crossings.
It is well recognized that freedom from physical restraint is a “liberty” interest protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution.
The proposed regulation establishes administrative procedures that afford individuals with due process commensurate with the degree of deprivation and the circumstances of controlling the spread of communicable disease. CDC quarantine officers are typically the first line of defense in preventing the importation of communicable diseases into the United States. Quarantine officers routinely conduct rapid assessments of ill passengers at airports and other ports of entry to assess the presence of communicable disease. Such assessments generally occur on a voluntary basis with the consent of the ill passenger. Where the quarantine officer reasonably believes that an ill passenger has a quarantinable disease, and the passenger is otherwise non-compliant, the quarantine officer may order the provisional quarantine of the passenger by serving the passenger with a written order, verbally ordering that the passenger be provisionally quarantined, or by ordering that actual restrictions be placed on a non-compliant passenger. The quarantine officer's reasonable belief would be informed by objective scientific evidence such as clinical criteria indicative of one of the specified quarantinable diseases, e.g., high fever, respiratory distress, and/or chills, accompanied by epidemiologic criteria such as travel to or from an affected area and/or contact with known cases. Provisionally quarantined individuals are provided with a written order in support of the agency's determination at the time that provisional quarantine commences or as soon thereafter as the circumstances reasonably permit. The written provisional quarantine order provides the individual with notice regarding the legal and scientific basis for their provisional quarantine, the location of detention, and the suspected quarantinable disease. Under the proposed regulations, CDC may provisionally quarantine an individual for up to three business days unless the Director determines that the individual should be released or served with a quarantine order. CDC does not intend to provide individuals with administrative hearings during this initial three-day period of provisional quarantine, but rather will afford an opportunity for a full administrative hearing in the event that the individual or group of individuals is served with a quarantine order, which potentially would involve a longer period of detention.
While there are no federal cases establishing a specific time period for holding persons in quarantine-type detentions, there are several analogous federal cases dealing with “alimentary canal” smugglers, i.e., persons who smuggle drugs in their intestines by swallowing balloons. In
Under 28 U.S.C. 2241, an opportunity for judicial review of the agency's decision exists via the filing of a petition for a writ of habeas corpus. This judicial review mechanism affords individuals under quarantine with the full panoply of due process rights typical of a court hearing. A petition for a writ of habeas corpus is the traditional mechanism by which individuals may contest their detention by the federal government.
In addition to this judicial review mechanism, as previously mentioned, the proposed regulations establish a procedure for individuals under quarantine to request an administrative hearing. The purpose of the administrative hearing is not to review any legal or constitutional issues that may exist, but rather only to review the factual and scientific evidence concerning the agency's decision, e.g., whether the individual has been exposed to or infected with a quarantinable disease. Such an administrative hearing would comport with the basic elements of due process. Under the proposed regulations, the Director would notice the hearing and designate a hearing officer to review the available evidence of exposure or infection and make findings as to whether the individual should be released or remain in quarantine. The proposed regulations authorize the Director to take such measures as the Director determines to be reasonably necessary to allow an individual in quarantine to communicate with their authorized representative to participate in the hearing.
In addition to section 361 of the PHS Act (42 U.S.C. 264), HHS also relies on the following legal authorities with respect to this notice of proposed rulemaking: 25 U.S.C. 198, 231, and 1661; 42 U.S.C. 243, 248, 249, 265-272, and 2001. 25 U.S.C. 198, 231, 1661 and 42 U.S.C. 2001 contain legal authorities primarily relevant to public health measures taken with respect to Indian country. 42 U.S.C. 265-272 contain legal authorities primary relevant to HHS operations and activities with respect to quarantine and other public health measures. These authorities are discussed in depth in Section IV.
Several new sections have been added to 42 CFR Part 70. Most of these sections are provided to update and streamline practices to reflect modern quarantine practice. Imposition of quarantine needs to be based on clear legal authorities and applied safely and effectively while according respect to the individual.
The following is a section-by-section analysis:
Section 70.1 is renamed scope and definitions. Section 70.1 explains that, except where otherwise stated, regulations to prevent the spread of disease among possessions or from a possession to a State are contained in 42 CFR Part 71.
A number of terms have been added or modified to be consistent with modern quarantine concepts and current medical principles and practice. Specifically, definitions for “aircraft commander,” “airline,” “airline agent,” “business day,” “carrier,” “detention,” “emergency contact information,” “flight information,” “hearing officer,” “Indian country,” “Indian tribe,” “infectious agent,” “interstate traffic,” “medical monitoring,” “military service,” “possession,” “provisional quarantine”, “public health emergency,” “qualifying stage,” “quarantine,” “quarantinable disease,” “sanitary measure,” “Secretary,” “State” and “vector” have been added or modified. The definition of an ill person has been modified to include the signs or symptoms commonly associated with diseases for which provisional quarantine or quarantine may be necessary. This definition is of particular importance because it determines the scope of the reporting requirement specified in § 70.2. Because reporting is dependent on recognition of an ill passenger by non-medical personnel and without the benefit of a medical examination, such as by the flight crew, this definition relies on descriptive terms that are overt and commonly understood by lay persons. The definition is broad by design for two reasons: (1) To ensure that all situations for which the Director must take action in order to prevent the introduction and spread of communicable diseases are reported, and (2) the reporting of ill passengers relies on personnel without medical training. While a narrower definition might reduce the number of situations reported for which action by the Director is unnecessary, such a definition would necessarily include findings or terms that cannot be accurately assessed by those without medical training. Moreover, a narrower definition would likely exclude situations of public health significance thus circumventing the very purpose for which the reporting requirement is designed. Therefore, the more prudent course has been chosen, whereby reporting is required for a broad range of signs and symptoms, allowing the
As noted previously, the Director has a responsibility to prevent the spread of communicable diseases between states. The purpose of the disease reporting requirement is to ensure that CDC can mobilize appropriate personnel to respond efficiently to the arrival of an ill person with a communicable disease. This response may require evaluation of the ill passenger by trained medical personnel, evaluation of other passengers who may have been exposed to the disease en route, and secure transport of individuals to a designated isolation facility where they may receive appropriate care while minimizing the risk of transmission to others. Because the entire panel of responders may not be onsite at the airport it is imperative that notification be received by CDC as soon as the illness is identified and, whenever possible, at least one hour prior to arrival.
Under current regulations (§ 70.4), the person in charge of any carrier engaged in interstate traffic on which a case or suspected case of a communicable disease develops, as soon as practicable, is required to notify the local health authorities at the next port of call, station, or stop and take such measures as the local health authority directs. Paragraph (a) of § 70.2 in the proposed revision eliminates the requirement that carriers report to local health authorities, requiring instead that reports be made to the Director. By providing a single point of contact for disease reports, the burden on carriers to identify and maintain points of contact with local health authorities is significantly reduced. The Director would assume responsibility for notifying local health authorities as indicated. It is common, but not universal, that FAA officials (e.g., air traffic control) are included among those notified by the airline of an ill passenger. Current CDC procedure dictates that FAA personnel and other emergency response personnel are notified by Quarantine Station staff of the impending arrival of a plane carrying a passenger with other than routine illness. However, this notification is contingent on CDC awareness of the situation prior to flight arrival, as this provision requires.
The regulation was drafted to afford the carrier maximum flexibility in establishing a system to ensure that the advance reporting requirement is met. We do not intend to mandate a particular pathway of communication as long as a report is made by the designated airline official within the specified time frames. Individuals typically involved in the notification process include the crew, including the pilot or captain, flight operations on the ground, air traffic controllers, other ground personnel, and other airline representatives.
Paragraph (b) of this section enables the Director to order airlines engaged in interstate traffic to distribute to passengers and crew, at a time specified by the Director, public health notices and other materials that describe recommended measures for preventing spread of communicable diseases. During SARS and in the time since the outbreak was controlled, CDC has distributed Health Alert Notices to advise passengers on international flights who may have been exposed to a communicable disease as to how to monitor their health and how to proceed should certain symptoms develop. These notices were an important component of the CDC response to SARS. The effectiveness of this measure, however, was limited by CDC's inability to ensure that all passengers received the notices, a goal that was particularly difficult if distribution occurred after passengers already had entered the terminal and were focused on getting to distant gates or their final destinations. The routine delay in passenger dispersal following disembarkation that accompanies international arrivals (i.e., while they undergo immigration and customs processing) is absent from interstate arrivals, thereby making distribution of this information post-disembarkation even more challenging. By requiring airline staff to distribute these materials prior to disembarkation, for example, Director can better ensure that potentially exposed passengers have access to information critical to maintaining their own health and to preventing spread in the community. CDC expects to exercise this requirement in situations where a significant outbreak of a quarantinable disease is detected abroad and there is the potential for exposure among interstate travelers. CDC might also require airlines to distribute notices in the period between the outbreak of a new communicable disease and the addition of the disease to the list of quarantinable diseases.
In order to ensure that all parties are aware of the appropriate lines of communication between airlines and CDC for reporting, and that policies and procedures are in place to facilitate such communication, this section requires airlines engaged in interstate travel to develop a written plan sufficient to ensure the reporting of ill passengers and deaths on board flights and submit it to the Director within 90 days of the final publication of this rule. Airlines that intend to commence operation of flights in interstate traffic after this effective date shall submit a written plan to the Director before commencing operations.
The plan may be submitted electronically to an e-mail address or permanent address that will be provided in the final rule. This plan would identify the designated airline “point of contact” or “agent” for issues related to reporting of any deaths or ill passengers. In addition, the plan would identify the members of the flight team (e.g., cabin crew, captain, airline flight operations, flight controllers, or other airline-designated agent for reporting) who will be responsible for making the required report to the Director.
The plan must be implemented within 180 days of the final publication of the rule. CDC believes that a 90-day time frame for development of a written plan and an additional 90 days for implementation to be appropriate because airlines should already have such procedures in place to satisfy the existing ill passenger reporting requirement currently contained in 42 CFR 70.4. Airlines commencing operations after the rule is in effect must implement their written plans by the later of the following: 180 days after the final publication of the rule or upon commencement of operations. CDC solicits comment on whether these timeframe are appropriate. During the phase-in period established in this section, airlines are still expected to comply with the reporting requirements contained in current § 70.4.
Airlines are required to review the plan one year after implementation and annually thereafter and make revisions as necessary. Airlines that have not reported ill passengers or deaths on board a flight under the requirements in 70.2 in the prior 365 days are required to conduct drills or exercises to test and evaluate the effectiveness of the plan. Any revisions as a result of the annual review or the drills or exercises must be
Among the fundamental components of the public health response to the report of a person with a communicable disease is the identification and evaluation of those who may have been exposed. Public health authorities may then offer these individuals treatment, vaccination, or other preventive measures as may be available. These treatments, by preventing the development or progress of the disease, serve the dual purpose of providing direct benefit to those exposed along with benefit to the community at large by preventing further person-to-person spread. Thus, in order to carry out her delegated responsibility to control spread of communicable diseases between states, the Director must, for a limited time, be able to efficiently identify and locate persons who may have been exposed to a communicable disease during travel. The identification and notification of those exposed is an essential first step in providing the exposed access to potentially life-saving medical follow-up and disease prevention measures, including vaccination. Preventing secondary cases among contacts, in turn, helps prevent further propagation and spread of disease within the community. As such, travelers and the public at large derive direct benefit from a system, such as is proposed, that ensures that, if an exposure has occurred, affected passengers can be identified, located, and notified within the incubation period of the disease. If notification does not occur by the conclusion of the incubation period, the effectiveness of medical follow-up and disease prevention measures and, therefore, the benefit to the public is severely reduced.
The worldwide outbreak of SARS, an illness that was originally reported in Asia in late 2002 and quickly spread to North America and Europe, provided a clear example of the rapidity with which an infectious disease may spread through air travel, while exposing clear limitations in the current system of identifying and notifying those who may have been exposed during travel. During this outbreak, CDC attempted to gather contact information on persons exposed and received significant cooperation from the airlines. CDC met flights containing suspected contagious passengers and obtained location and contact data from both passengers and crew members before disembarkation. Ill passengers on planes from affected areas were met by CDC staff members for evaluation and referred for medical care when appropriate. However, if a suspected case of SARS was identified after disembarkation, CDC staff had to manually gather, compile, and process data from flight manifests, customs declarations, and any other available sources relevant to the case.
Utilizing this manual process, CDC staff encountered the following difficulties:
• Manifests provided by carriers contained only the name and the seat number.
• Custom declarations were completed by the passenger by hand and were often illegible.
• Names on the customs declarations did not necessarily match those on the manifests.
• Phone numbers were not included on customs forms, and only one customs form was filled out per family.
Since the data gathered from manifests and customs declarations were only available in hard copy, it often took several days to obtain. Photocopies were sent by express mail to CDC where the data were keyed into a database. Entering the data and verifying the addresses usually took several more days. The time required to track passengers was routinely longer than the incubation period of the SARS virus.
While CDC received good cooperation from the industry, the primary responsibility for locating passengers rests with public health authorities as recognized by International Air Transport Association (IATA) Recommended Practices 1788, as shown in the following excerpts:
When a Member is advised by a health authority that it may have transported a passenger with an infectious disease, it shall co-operate with such health authority, with the understanding that it is not the Member's responsibility to trace and notify other passengers who may have been exposed to the infectious disease.
If the health authority requests a list of other passengers who may have been exposed to the infectious disease, the health authority should be advised to first utilize immigration records of the arriving passengers, such as landing cards, in order to determine the names and addresses of such passengers. If the health authority advises the Member that it was unable to determine from immigration records, the names of other passengers who may have been exposed to the infectious disease, the Member should ask the health authority to make a formal request for a list of passengers.
In the aftermath of SARS, CDC has continued to enjoy good overall cooperation from airline industry partners. However, citing information privacy concerns, some airlines have increasingly required that CDC accompany its request for passenger information with a written order explaining CDC's legal authority for requesting such information.
In November 2003, the University of Louisville School of Medicine prepared a report entitled “Quarantine and Isolation: Lessons Learned from SARS,” that recommended:
In the event that an international traveler develops an infectious disease, there is an urgent need to be able to locate crew members and other passengers from the same flight or ship. Public health officials must have immediate access to passenger manifests or be able to require all arriving passengers to complete a public health form containing, for example, the individual's health status, seat number, countries visited, and contact information. This information must be in electronic form.
Collection of this information finds strong support in public opinion. While a significant number of air passengers expressed concerns with increased reservation or check-in time, a Harvard School of Public Health study, Project on the Public and Biological Security, finds that 94% of air travelers would want public health authorities to contact them if they might have been exposed to a serious contagious disease on an airplane. In addition, 93% of domestic air travelers and 89% of international air travelers expressed a willingness to provide some type of contact information.
In its April 2004 report on Emerging Diseases, GAO-04-564, the U.S. Government Accountability Office concluded:
The Centers for Disease Control and Prevention * * * tried to contact passengers from flights and ships on which a traveler was diagnosed with SARS after arriving in the United States. However, these efforts were hampered by airline concerns and procedural issues.
On the basis of that conclusion, the GAO recommended that the
Secretary of HHS complete steps to ensure that the agency can obtain passenger contact information in a timely manner, including, if necessary, the promulgation of specific regulations.
This provision seeks to address this recommendation by GAO.
As stated previously, under 42 U.S.C. 264, the Secretary of HHS is authorized to make and enforce regulations necessary to prevent the introduction, transmission, and spread of communicable diseases from foreign countries into the United States and from one state or possession into another. The Director has been delegated the responsibility for carrying out these regulations. The Director's authority to investigate suspected cases
The proposed regulation requires that airlines operating interstate flights arriving in or departing from any of the airports listed in Appendix A to request certain information from passengers, maintain it in an electronic database for 60 days from the end of the flight, and transmit the information to CDC within 12 hours of a request. This information includes, as specified in paragraph (e), full name (first, last, middle initial, suffix); current home address (street, apartment number, city, state/province, postal code); at least one of the following current phone numbers in order of preference: (mobile, home, pager, or work ); e-mail address; passport or travel document, including the issuing country or organization; traveling companions or group; flight information; returning flight (date, airline number, and flight number); and emergency contact information as defined in § 70.1. The following table summarizes the data elements that would be collected under the proposed NPRM, those items currently collected by airlines and the frequency of collection, and items which the Department of Homeland Security collects under its Advanced Passenger Information System (APIS). Based on CDC's experience with previous contact tracing efforts using passenger data, the data elements are ordered according to the relative utility of each piece of data with respect to contract tracing.
The data are to be collected from each crewmember and passenger or head of household if the passenger is a minor and must be maintained by the airline for 60 days from the end of the voyage. Upon request of the Director, the data are to be transmitted to CDC within 12 hours. This time period is considered longer than will actually be necessary once the plan for data transmission developed pursuant to § 70.5 has been implemented. In addition, paragraph (f) enables the Director to compel, through order, transmittal of additional information in the airline's possession that may be necessary to prevent the introduction, transmission, or spread of communicable diseases. For example, information regarding the airline's food service provider may be relevant to an investigation of a foodborne outbreak on board an airline.
The provision does not require airlines to verify the accuracy of the information collected from passengers. Airlines, however, are expected to accurately transmit information collected from passengers. Based in part on data from a public opinion survey, it is believed likely that passengers will voluntarily provide this information so that CDC could contact the passenger in the case of that passenger's exposure to a communicable disease. However, passengers who decline to provide contact information will not be prohibited from traveling.
CDC invites comments on any and all aspects of this data collection. Specifically, CDC solicits comments on the following subjects:
• Although we assume travelers will be willing to provide accurate information in the interest of being contacted for public health reasons, we are interested in further strategies that may increase the likelihood of receiving accurate information from travelers
• Whether a shorter list of contact data would improve the willingness to provide information or the accuracy of the information provided.
• The degree to which airlines and shiplines currently collect each proposed data element, the feasibility and cost of collecting each data element, and the extent that the additional data collection would require changes in IT systems or operating procedures.
• The utility of each proposed data element for the purposes of contact tracing.
Information and records provided to CDC will be maintained and stored in accordance with HHS and CDC policies and in accordance with Privacy Act (5 U.S.C. 552a) and its implementing regulations (45 CFR Part 5b), which
The Federal Records Management retention guidelines require that we develop a specific approved records control schedule through the established records disposition process. CDC intends to propose a records control schedule for these records that would establish a legal retention period of one year. This would allow CDC to properly respond to outbreaks, and to ensure the health of airline passengers and the American public. The review process (as defined in 36 CFR part 1228) will involve significant internal CDC review (including substantive legal review), a review by HHS and the National Archives and Records Administration (NARA), and finally the publishing of a proposed retention schedule for these records in the
Airlines are expected to safeguard the confidentiality of the information collected. Under the proposed regulation, information collected solely in order to comply with this rule may only be used for the purposes for which it is collected. Airlines shall ensure that passengers are informed of the purposes of this information collection at the time passengers arrange their travel. CDC solicits comments on the privacy aspects of collecting information to be used solely in order to comply with this rule, including the practicality of informing passengers of the purposes of the information collection and the safeguarding of passenger information.
The airports listed in Appendix A are derived from a list that the Federal Aviation Administration uses to apportion its Airport Improvement Program grants base. As part of this program, FAA assigns the status of airport hubs based upon that airport's passenger boardings as a percent of total U.S. passenger boardings. CDC has listed in Appendix A the 67 large and medium hubs assigned by FAA in 2004, which is the latest list published by FAA. CDC is focusing upon the 67 large and medium hubs because this captures a majority (approximately 90%) of annual passenger boardings without burdening airlines that operate only in small hubs where passenger boardings are considerably lighter. CDC may revise this list in the future through notice and comment rulemaking.
This provision as outlined in paragraph (a) requires airlines engaged in interstate commerce to designate an agent as a CDC single point of contact for communications related to passenger manifests. In addition, airlines must develop, within six months of the final publication of this rule, a written plan sufficient to ensure the electronic transmission to the Director of data that are collected from passengers and crew pursuant to § 70.4. Paragraph (f) explains that airlines meeting the provisions in (a) that intend to commence operations after the effective date in (a) shall submit a written plan to the Director prior to commencing operations.
The plan may be submitted electronically to an e-mail address or permanent address that will be provided in the final rule. The written plan must include policies and procedures for the transmission of the data in an electronic format available to both the airline and the Director using industry standards for data encoding, transmission, and security. Airlines are required to submit their written plans for transmission of passenger manifest information to the Director and implement the plan within 2 years of the final publication of this rule. Airlines commencing operations after the effective date in (a) are required to implement the plan on the later of these two dates: 2 years after the final publication of this rule or upon commencement of operations. CDC is soliciting comments specifically in regard to these timeframes.
Upon implementation of the plan, airlines are required to conduct drills or exercises to test and evaluate the effectiveness of the plan. Airlines are required to review the plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the airline has transmitted passenger and crewmember information under § 70. 4 in the prior 365 days. Airlines shall make revisions as necessary as result of the review and submit them to the Director within 60 days.
This provision requires any person who knows that he or she is in the qualifying stage, as defined in § 70.1, of any quarantinable disease to obtain a travel permit from the Director if he/she intends to travel in interstate traffic or from one state or possession into any other state or possession.
Section 70.6 prohibits interstate carriers from knowingly transporting or accepting for transport any person in the qualifying stage of a quarantinable disease without a travel permit issued by the Director. If a person possesses a travel permit, the carrier is required to take all steps necessary to prevent spread of the disease during transport.
Persons who know that they are in the qualifying stage of a quarantinable disease are prohibited from traveling in interstate traffic or from one state or possession into another without a permit issued by the Director. The person issued a permit is required to maintain possession of the permit at all times during travel, and to comply with its conditions. Persons whose application for a travel permit has been denied may submit a written appeal within two business days in accordance with 70.31.
An order of the CDC Director is not necessary for travel permits to be required under this section, rather these are ongoing requirements. CDC expects that the need to issue a travel permit will arise infrequently. CDC envisions that the circumstances under which the use of travel permits would be necessary include (1) to prevent spread of quarantinable disease in interstate traffic or from one state or possession into any other state or possession; (2) upon request of a health authority; and (3) in the event of inadequate local control. The requirement of travel permits pertains to individuals who know they are in the qualifying stage of quarantinable disease and thus requires actual knowledge of one's condition. Similarly, section 70.6 provides that a
The Director may additionally apply the provisions of this section to persons and carriers traveling entirely within the boundaries of a state or possession upon the request of a cognizant health authority or in the event of inadequate local control if the Director determines that such persons' travel or the operations of the carrier have an effect on interstate commerce. In such cases, the Director will issue an order advising persons of the application of this provision to intrastate traffic that affects interstate commerce. CDC believes that travel permits may be an important public health tool in the event of a public health emergency that necessitates the control of intrastate movement or the orderly evacuation of infected individuals to other locations within a state or possession.
This section clarifies that parents, guardians, physicians, nurses, and other persons may not procure transportation for children, wards, or patients whom they know to be in the qualifying stage of a quarantinable disease without obtaining a travel permit from the Director if such a permit is required under this part. Because minor children, wards, and hospitalized persons may not be able to procure transportation on their own, the responsibility for obtaining the travel permit falls to their guardians and/or other persons in whom their care is entrusted. This provision is a carryover from existing § 70.7, with the exception that the provision has been changed to specifically reference travel permits. Persons whose application for a travel permit has been denied may submit a written appeal within two business days in accordance with 70.31.
Under section 361 of the PHS Act (42 U.S.C. 264), the HHS Secretary has broad authority to enact regulations to prevent the introduction, transmission, and spread of communicable diseases. This is a statute of general applicability and thus applies to the military and its service members traveling on military carriers. Section 70.8, however, exempts the military services and their members traveling on military carriers from certain provisions of Part 70. Specifically, the military services and their members traveling on military carriers are exempt from the following provisions: § 70.6(a) (travel permits requirements relating to carriers), § 70.11 (sanitary measures), and § 70.12 (detention of carriers affecting interstate commerce). A limited exemption is also created with respect to § 70.6(c) (travel permit requirements relating to persons who know that they are in the qualifying stage of a quarantinable disease) and § 70.7 (Responsibility with respect to minors, wards, and patients), provided that the person authorizing the service member's travel on a military carrier takes measures consistent with those prescribed by the Director to prevent the possible transmission of infection to others during travel. This section is largely carried over from existing § 70.8. Furthermore, while not specifically exempt, carriers belonging to the military services are not subject to requirements relating to reporting of deaths or illness on board flights (§ 70.2 & § 70.3) and passenger information (§ 70.4 & § 70.5) because aircraft operated by the military services do not operate “commercially.” These exemptions exist because the U.S. military has established mechanisms to prevent disease spread on board its carriers and among its personnel. HHS also wishes to minimize any potential disruption of military activities.
This provision replaces current § 70.9, recently promulgated as an interim final rule. The current section authorizes the Director to establish vaccination clinics and to charge persons not enrolled in Medicare Part B a user fee to cover costs associated with administration of vaccine. The proposed regulation contains similar authority, and additionally requires vaccination clinics to comply with recordkeeping and other instructions issued by the Director to ensure safe administration, handling, monitoring and storage of vaccines. These requirements include collection and maintenance of information on vaccine recipients including age, gender, date of vaccination, vaccine lot number, prior vaccination, concurrent vaccinations, Vaccine Adverse Events Reporting System Report/Adverse Event Report Number (if applicable), and verification that the vaccination conferred immunity. In addition, the reason for vaccination (
This provision authorizes the Director to enter into voluntary agreements with public or private institutions for the purpose of establishing places for care and treatment. This provision is based upon legal authority provided in 42 U.S.C. 267. With the approval of the Secretary, the Director may select suitable sites for the establishment of quarantine stations and places for care and treatment. Additional legal authorities relevant to the control, management, and control of institutions, hospitals, and stations established by the Secretary are also contained in 42 U.S.C. 248.
Section 361(a) of the PHS Act (42 U.S.C. 264(a)) provides that in carrying out regulations, the Secretary
Section § 70.11 implements this statutory provision by authorizing the Director, in consultation with other Federal agencies as appropriate, to inspect and order the application of such sanitary measures (as that term is defined) to any carrier affecting interstate commerce or to things on board the carrier that the Director reasonably believes to be infected or contaminated by a communicable disease.
Paragraph (a) updates, consolidates and makes applicable to interstate situations the “disinfection,” “disinfestations,” “disinsection,” and other provisions contained in current 42 CFR Part 71. It explains that the Director, in consultation with other federal agencies as appropriate, may inspect and order the carrier, or other entity specified in the order, as the party responsible for applying such measures as the Director deems necessary to prevent the introduction, transmission, or spread of communicable diseases.
Paragraph (b) explains that CDC shall not bear the expense of applying the sanitary measure or, expenses related to things on board. While the preceding paragraph states that CDC shall not bear related expenses, paragraph (c) indicates that CDC does not intend to prevent an entity conducting sanitary measures required by the Director from seeking reimbursement “through contractual arrangements or other available means from entities other than the CDC.”
A written order to the carrier operator or owner of the cargo would be one method that CDC could use for ordering the application of sanitary measures, but would not be the exclusive method. Depending on the circumstances of the disease, CDC, for example, could notify carrier operators through publication in the
Under paragraph (c), the Director may apply sanitary measures to persons who are not in the qualifying stage of a quarantinable disease. Provisions specifically dealing with respect to persons who may be in the qualifying stage of a quarantinable disease may be found in §§ 70.6, and 70.14 through 70.24. When applied to a person or group of persons, a sanitary measure involves the application or direct exposure to such chemical, physical, or other processes that are designed to destroy the presence of infectious agents that may be outside the body. Under paragraph (c), such procedures may be carried out only with the consent of the person. Sanitary measures applied to a person or group of persons are intended to kill agents (or vectors capable of conveying infectious agents) outside the body by direct exposure to a chemical, physical or other process designed to destroy such infectious agents or vectors. During an outbreak of avian influenza, for example, persons exiting a farm containing infected birds would have all visible organic matter removed from their shoes with disposable towels. Those persons would then transit through a foot bath containing an effective virucidal solution. As an additional example, persons infected with body lice during an outbreak of epidemic typhus would be treated with appropriate antibiotics and an effective topical pediculocidal agent, and would have their clothing washed in hot water and detergent. The sanitary measures applicable to carriers, animals or things include detention, destruction, seizure, disinfection, disinfestations, disinsection and any other measures deemed necessary to prevent the introduction, transmission or spread of communicable diseases. If the Director orders the destruction or export of animals, articles, or things in accordance with this section, the owner of such animals, articles, or things may appeal the measure, within two business days, in accordance with Section 70.31.
CDC invites comments on any and all aspects of the proposed process for issuing orders to conduct sanitary measures and the appeals process.
In addition to the provisions listed in Section 70.11, this provision further authorizes the Director, in consultation with such other federal agencies as appropriate, to detain a carrier until the necessary measures outlined in Section 70.11 have been completed. The expense of applying sanitary measures and detention shall not be borne by CDC. If the Director orders the detention of a carrier in accordance with this section, the carrier owner may appeal the detention, within two business days, in accordance with Section 70.31.
CDC invites comments on any and all aspects of the proposed process for issuing orders to conduct sanitary measures and the appeals process.
This section authorizes the Director at airports and other locations to conduct screenings to detect the presence of ill persons. The definition of “ill persons” appears in the definitions section. Methods of screening may include visual inspection, electronic temperature monitors, and other methods determined appropriate by the Director to detect the presence of ill persons.
Quarantine officers routinely conduct short term examinations of ill passengers at airports and other ports of entry to assess the presence of disease. Such examinations generally occur on a voluntary basis with the consent of the ill passenger. In situations where a passenger withholds his or her consent though those situations are few in number, the Director may nevertheless need to detain that person to determine whether the person may be in the qualifying stage of a quarantinable disease. This section is primarily intended to deal with those situations.
Section 361(b) of the Public Health Service Act (42 U.S.C. 264(b)) authorizes the “apprehension, detention, or conditional release” of persons to prevent the introduction, transmission, and spread of specified communicable diseases from foreign countries into the United States and from one State or possession into another. Section 70.1 3(a) authorizes the Director to provisionally quarantine a person or group of persons believed to be in the qualifying stage of a quarantinable disease. Ordinarily, provisional quarantine will be ordered by the quarantine officer at the port of entry, but may also be ordered by other authorized agents of the Director. In accordance with sections 311 and 365 of the PHS Act (42 U.S.C. 243 and 268), the Director may seek the assistance of state and local authorities and of U.S. Customs and Coast Guard officials, respectively, in the enforcement of quarantine rules and regulations.
Under § 70.14, paragraph (b), provisional quarantine commences on the occurrence of any one of three events: (i) Service of a written provisional quarantine order on the person or group of persons; (ii) a verbal order from an authorized party (typically the quarantine officer at the port of entry) that the person or group of persons are being provisionally quarantined; or (iii) placement of actual movement restrictions on the person or group of persons. “Actual movement restrictions” occur when, as determined by the Director, a person under the same circumstances would understand that he or she is being detained and thus is not free to leave. In most circumstances, provisional quarantine is a brief detention lasting only as long as necessary for the quarantine officer (or other authorized agent) to ascertain whether the person or groups of persons are a possible carrier of disease. Under paragraph (c), however, provisional quarantine may continue for up to three business days, provided that persons subject to provisional quarantine may be released sooner if the Director determines that detention is no longer necessary. In the event it is necessary to quarantine an individual beyond three business days, the Director will serve the individual with a quarantine order.
A time frame of up to three business days for provisional quarantine is necessary to confirm whether certain disease-causing microorganisms are present in samples that may be obtained from ill or deceased persons.
A time frame of up to three business days comports with the requirements of due process. While there are no federal cases establishing a bright line for quarantine-type detentions, there are several federal cases dealing with “alimentary canal” smugglers,
Under paragraph (e), persons subject to provisional quarantine may be offered medical treatment, prophylaxis, or vaccination as the Director deems necessary to prevent the transmission or spread of disease. Medical treatment, prophylaxis, or vaccination will typically occur in a hospital setting, but may occur in other settings as the Director deems necessary. Medical treatment, prophylaxis, or vaccination shall occur on a voluntary basis, provided that persons who refuse remain subject to provisional quarantine. Medical treatment, prophylaxis, or vaccination may be provided in accordance with the provisions set forth in § 70.21.
Paragraph (f) explains that nothing in § 70.14 shall be construed to limit the Director's ability to detain a person or group of persons on a voluntary basis or offer such persons medical treatment, prophylaxis, or vaccination on a voluntary basis.
This section explains the content of a provisional quarantine order issued in accordance with § 70.11 and the process for serving an order on a person or group of persons. Paragraph (a) explains that the provisional quarantine order shall be served by the Director at the time that provisional quarantine commences or as soon thereafter as the Director determines that the circumstances reasonably permit. Service will typically occur through personal service, for example, by the quarantine officer or another authorized representative serving the person or group of persons with a copy of the provisional quarantine order at the port of entry or hospital facility, but may also occur through other methods of personal service. Due process requires that the method of serving the order in any case be reasonably designed to accomplish actual service. Because personal service may be impracticable or undesirable in certain circumstances, for example, when it is necessary to provisionally quarantine a large group of persons on a very short time-frame, paragraph (b) authorizes service through posting or publishing the order in a conspicuous location when the Director deems it necessary. Under paragraph (c), in circumstances where the Director deems public posting or publishing necessary or desirable, the Director may omit the names and/or identities of the persons and take other measures respecting the privacy of persons, for example, using initials, instead of full names, or other pseudonyms.
Paragraph (d) describes the information contained in the provisional quarantine order and states that the order shall be in writing and signed by the Director. While due process is a flexible concept that varies depending upon the particular circumstances of the event, a key element of due process is a written order that provides sufficient notice to the person of the actions that the government proposes to take and describes how to contest the government's decision. In order to comply with this fundamental concept of due process, paragraph (d) requires that the order advise the person or group of persons of the following:
• The Director's reasonable belief that the person or group of persons is in the qualifying stage of a quarantinable disease based on information available to the Director at the time, such as travel history, clinical manifestations, or any other evidence of infection or exposure;
• The Director's reasonable belief that either: (i) the person or group of persons is moving or about to move from a State to another State; or (ii) is a probable source of infection to persons who will be moving from a State to another State;
• The suspected quarantinable disease;
• That the person or group of persons may be provisionally quarantined for three business days and that at the end of such period the person or group shall be released or, if determined by the Director, served with a quarantine order;
• That the person or group of persons may be released earlier if the Director determines that provisional quarantine is no longer warranted;
The Director has historically recommended medical isolation and/or home quarantine of persons with suspected quarantinable diseases. Isolation and quarantine have generally been carried out with the consent of persons or their authorized representatives. This section is primarily intended to deal with the small number of situations where the person refuses to comply on a voluntary basis with the Director's instructions, or in situations where the Director otherwise believes that the mandatory quarantine is necessary. It describes the Director's authority to quarantine persons that the Director believes are in the qualifying stage of a quarantinable disease.
The quarantine of persons believed to be infected with communicable diseases is a prevention measure that has been used effectively to contain the spread of disease. Quarantine differs from provisional quarantine in its potentially longer duration, generally determined by the disease's periods of incubation and communicability. Under paragraph (a), the Director may issue a quarantine
Under paragraphs (b), (c), and (d), as with provisional quarantine, the Director may offer medical treatment, prophylaxis, or vaccination to persons subject to quarantine as the Director deems necessary to prevent the transmission or spread of disease. Medical treatment, prophylaxis, or vaccination may occur in a hospital or other settings, including homes, as the Director deems necessary. Medical treatment, prophylaxis, or vaccination will occur on a voluntary basis, provided that persons who refuse remain subject to quarantine until the period of incubation and communicability have passed. In the event such persons are quarantined, they may request an administrative hearing.
Under paragraph (d), the Director may also order quarantine where examination, medical treatment, prophylaxis, or vaccination is medically contra-indicated or not reasonably available.
Under paragraph (e), the length of quarantine shall not exceed the period of incubation and communicability, as determined by the Director, for the quarantinable disease. While flexibility regarding the length of quarantine must be maintained by the Director in order to allow for the possibility of new variant or bioengineered strains of specified communicable diseases, in general the periods of incubation and communicability are as follows:
The periods of incubation and communicability are intended to provide an estimate of the time an individual might be placed in quarantine or isolation, respectively. These time frames are based on accepted medical facts related to these diseases and would be considered part of the basic knowledge possessed by physicians familiar with the diagnosis and treatment of these diseases. For many of the diseases, such as tuberculosis and viral hemorrhagic fever, the range of possible periods of incubation and communicability, based on published individual case reports, is significantly longer. To provide a more realistic sense of the time during which isolation or quarantine may be necessary, CDC listed ranges that, in the opinion of subject matter experts, encompass the vast majority of cases of these diseases. In all cases, the listed ranges are shorter than the upper limit of documented periods of incubation or communicability.
For this purpose, it is important to distinguish between the two terms: Quarantine and isolation. Quarantine refers to the restriction of movement of persons who have been exposed to a communicable disease, but have not yet become ill or able to transmit that disease to others. Isolation, on the other hand, is the restriction of movement of persons ill with a communicable disease in a stage where transmission is possible. In general, when a person is exposed to one of the diseases listed in this table, existing authority allows the Director to place that person under quarantine up to the length of time listed under the incubation period for each disease. If, during the time of quarantine, the person becomes ill, the authorities allow for them to be isolated for a period up to that listed under period of communicability.
For example, a person with a potential exposure to SARS could be under quarantine for up to 10 days. However, if that person became ill, he or she would no longer be in quarantine, but would be isolated for the duration of illness or period of communicability (up to 21 days). If the person under quarantine for the incubation period did not become ill within 10 days of the time the exposure was thought to have occurred, he or she would be released.
An opportunity to request an administrative hearing for purposes of reviewing the quarantine order is provided for under these regulations. The person or group may also seek judicial review of the quarantine order through a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. Habeas corpus is the traditional legal mechanism for contesting detention by the government.
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Paragraph (g) explains that nothing in § 70.16 shall be construed to limit the
This section requires that quarantine orders issued by CDC be signed by the Director and describes the content of the order. A written order that provides sufficient notice to the person of the actions that the government proposes to take and describes how to contest the government's decision is a key element of due process. In order to comply with this fundamental concept of due process and the requirements of Section 361 of the Public Health Service Act (42 U.S.C. 264), this section requires that the quarantine order contain the following information:
• The identity of the person or group of persons to be quarantined, if known;
• The location where such person or group of persons is to be quarantined;
• The date and time at which quarantine commences and ends;
• The suspected quarantinable disease;
• A statement that the Director reasonably believes that (i) such person or group of persons is in the qualifying stage of a quarantinable disease; and that either (ii) such person or group of persons will move or is about to move from one State to another State; or (iii) is a probable source of infection to persons who will be moving from a State to another State;
• A statement regarding the basis for the Director's belief that such person or group of persons is in the qualifying stage of a quarantinable disease,
• A statement that persons shall comply with conditions of quarantine, including, but not limited to, examination, medical monitoring, medical treatment, prophylaxis, or vaccination, or other conditions of quarantine deemed by the Director to be necessary to prevent the transmission or spread of communicable disease;
• A statement that persons may refuse examination, medical monitoring, medical treatment, prophylaxis, or vaccination, but that if they choose to do so they remain subject to quarantine;
• A statement that persons under quarantine, any time while the quarantine order is in effect, may request that the Director hold a hearing to review the quarantine order.
This section explains the process for serving a quarantine order on a person or group of persons. Paragraph (a) explains that a copy of the quarantine order shall be served at the time that quarantine commences or as soon thereafter as the Director determines that the circumstances reasonably permit. Service will typically occur through personal service, for example, by an agent authorized to enforce quarantine serving the person or group of persons with a copy of the quarantine order at home or at a hospital or other quarantine facility, but may also occur through other methods of service. Because personal service may be impracticable in certain circumstances, for example, when it is necessary to quarantine a large group of persons, paragraph (b) also authorizes service through posting or publishing the order in a conspicuous location when the Director deems it necessary or desirable. In any case, due process requires that the method of serving the order be reasonably designed to accomplish actual service. Under paragraph (b), in circumstances where the Director deems public posting or publishing necessary or desirable, the Director may omit the names and/or identities of the persons and take other measures respecting the privacy of persons, for example, using initials, instead of full names, or pseudonyms.
This provision authorizes the Director to order medical examination or monitoring of persons believed to be in the qualifying stage of a quarantinable disease. Production of information concerning familial and social contacts, travel itinerary, medical history, place of work and vaccination status may also be ordered by the Director. This information will permit determinations to be made concerning the scope of potential exposure, the identity of those in recent contact with the person, and the potential vulnerability of the person to the disease. Persons may refuse medical examination and monitoring, but remain subject to provisional quarantine or quarantine. In the event that persons who refuse medical examination or monitoring are served with a quarantine order, they may request an administrative hearing.
This section describes the procedures for an administrative hearing relating to a quarantine order. An administrative review by the agency is in addition to and apart from any judicial review of the Director's determination that may be available, for example, through the filing of a petition for a writ of habeas corpus under 28 U.S.C. 2241. The opportunity to contest the government's actions in a meaningful time, place, and manner is a fundamental element of due process. An administrative hearing under this section is an informal proceeding conducted by the agency where the hearing officer reviews the determination to quarantine a person or group of persons. Under paragraph (a), a person or group of persons (or an authorized representative) must specifically request that the CDC Director hold an administrative hearing. The CDC Director will then schedule the administrative hearing to take place within one business day of the request for a hearing. As part of the quarantine order, the CDC Director will provide the person or group with information concerning how to request an administrative hearing,
Under paragraph (d), the CDC Director may designate a hearing officer to review the available medical or other evidence of exposure or infection available and make findings as to whether the person or group of persons are in the qualifying stage of a quarantinable disease and recommendations as to whether the person or group of persons should be released or remain in quarantine. Under section 369 of the Public Health Service Act (42 U.S.C. 272), medical officers of the United States, when performing duties as quarantine officers at any port or place within the U.S., are authorized to take declarations and administer oaths in matters pertaining to the administration of quarantine laws and regulations.
The hearing officer may be someone within the agency, but will not be the same person who ordered the quarantine. While the hearing officer retains ultimate discretion regarding
The administrative hearing will ordinarily be closed to the public to protect the medical privacy of the person or group of persons under quarantine, unless the person or group of persons request that the hearing be open. The hearing officer, however, may record the hearing through transcription, audio or video tape, summary notes of the proceeding, or other means. At the discretion of the hearing officer, the administrative hearing may be based on written submission. A hearing involving live testimony should, to the extent practicable, provide opportunity for participation via telephone or other remote means. Under paragraph (e), a person or group of persons in quarantine may authorize a representative to appear at the hearing. Under paragraph (f), the CDC Director shall take such measures as the CDC Director determines to be reasonably necessary to allow a person or group of persons under quarantine to communicate with their authorized representatives. Measures may, for example, include establishment of video-conferencing facilities, e-mail terminals, telephone or cellular phone services, and other similar devices or technologies.
During the administrative hearing, the person or group of persons subject to quarantine will be given an opportunity to call witnesses and present testimony. Within the discretion of the hearing officer, administrative hearings may be consolidated when the number of persons or other factors renders individual participation impracticable or when factual issues affecting the group are typical of those affecting the individual. The hearing officer retains ultimate discretion to determine the conduct of hearings, but will generally follow these procedures:
• The hearing officer will ask the parties if they wish to make a short statement outlining their concerns and desired outcomes. This is not part of the testimony, but a summary preview of the testimony and evidence for the hearing officer;
• The hearing officer will ask the parties to present evidence to support their positions and desired outcomes of the hearing. Witnesses may be called and the parties may ask questions. The hearing officer will swear in any witnesses offering testimony;
• The hearing officer will ask each party for comments regarding the evidence or testimony presented by the other party and for a short summary of reasons for the desired outcome;
• The hearing officer will inform the parties that a report and recommendation outlining the hearing officer's findings regarding the evidence of exposure or infection will be presented to the CDC Director for final agency determination.
Under paragraph (g), the hearing officer may order a medical examination of the person or group of persons under quarantine when a medical examination would assist in reasonably determining whether the person or group is in the qualifying stage of a quarantinable disease. Persons requested to undergo a medical examination by the hearing officer may refuse, but remain subject to quarantine.
Under paragraph (h), at the conclusion of the administrative hearing, the hearing officer will, based upon his or her review of the evidence of exposure or infection made available to the hearing officer, make findings and a written recommendation to the CDC Director whether the person or group of persons should be released or remain in quarantine. The hearing officer will provide the CDC Director with the hearing report and recommendation as soon as possible after the conclusion of the hearing. Under paragraph (h), the CDC Director, based upon the hearing officer's findings and written recommendation and the administrative record, shall within one business day after the conclusion of the hearing, order the release or continued quarantine of the person or group of persons. The CDC Director's order will be carried out without delay. Furthermore, because it is difficult to foresee all of the circumstances under which persons may request to be heard, paragraph (h)(2) permits the CDC Director to issue additional instructions and guidelines considered necessary to govern the conduct of hearings.
Paragraph (k) states that the quarantine order will be deemed final administrative action either when the Director has accepted or rejected the hearing officer's written recommendation or three business days after the request for a hearing, whichever comes first.
Under section 322(a) of the PHS Act (42 U.S.C. 249) persons detained in accordance with quarantine laws may be treated and cared for by HHS. Such persons may receive care and treatment at the expense of HHS at a public or private medical or hospital facility, when authorized by the officer in charge of the quarantine station at which the application is made. CDC, in its sole discretion and subject to available appropriations, is authorized to pay, as a payer of last resort, expenses of care and treatment for persons detained in accordance with quarantine laws. For quarantinable diseases, eligible expenses are limited to those for costs and items reasonable and necessary for the care and treatment of the person from the time the person is referred to a hospital or other medical facility for treatment until the time that quarantine expires. For other diseases, eligible expenses are limited to those associated with services and items relating to care and treatment prior to diagnosis; expenses associated with care and treatment following diagnosis will not be paid by CDC.
This section sets forth procedures for notifying consular offices of the provisional quarantine or quarantine of their foreign nationals. These procedures are consistent with requirements found in the Vienna Convention on Consular Relations regarding consular notification. In general, U.S. government requirements regarding the detention of foreign nationals may be accessed at:
Another key element of due process is the existence of a record describing the agency's actions for a court to review. This section describes the content of a person's administrative record. An administrative record will consist of the following, where applicable:
• Provisional quarantine and/or quarantine order;
• Any medical, laboratory, epidemiologic, or other information in support thereof;
• Evidence submitted by the person under provisional quarantine and/or quarantine;
• Written findings and recommendation of the hearing officer; and
• Hearing transcript, if any, or summary notes of the hearing.
This provision authorizes the Director to take whatever steps necessary to prevent the introduction, transmission or spread of communicable diseases upon the request of a health authority. Expressly referred to in the provision are requests for issuance of a provisional quarantine order or a quarantine order. Under section 311 of the PHS Act (42 U.S.C. 243), the Secretary is authorized to cooperate with and aid states and local authorities in the enforcement of their quarantine and other health regulations. Paragraph (c) clarifies that nothing in this section is intended to impose a condition or limit the ability of the Director to exercise any of the public health measures provided for in part 70, or in the case of possessions, part 71.
This section is a carryover from existing § 70.2 which authorizes the CDC Director to take measures to prevent the spread of communicable diseases between States or between States and possessions whenever the Director determines that the measures taken by any State or possession (including political subdivisions) are insufficient. Under Section 361(a) of the PHS Act, the measures that the Director may take include inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection, and other measures. The proposed regulatory language is consistent with that appearing in Section 361(a) of the PHS Act. The proposed section also makes clear that the Director may make a determination of inadequate local control with respect to public health measures taken by Indian Tribes in Indian country. While a determination of inadequate local control under this section does not require the concurrence of the IHS Director, to the extent practicable, when taking actions in Indian Country the Director will consult with the IHS Director prior to such action and once a determination has been made, the Director will send notification to both the Director, IHS and to the Tribe or tribes affected.
This section clarifies that, in addition to the public health measures outlined in part 70, the Director may take whatever further public health measures or combination of measures the Director deems necessary with respect to facilities owned or operated by the federal government. The federal government has a variety of different jurisdictional and proprietary arrangements with State and local governments, as well as with private entities, concerning federal facilities. In some cases, the federal government maintains exclusively federal campuses, while in other cases, jurisdiction with respect to activities occurring on federal facilities is shared with State and local governments. This section simply clarifies that the Director may take public health measures with respect to federal facilities. Pursuant to 42 U.S.C. 243, the Director may request the assistance of State and local authorities in enforcing federal quarantine rules and regulations. Paragraph (b) clarifies that this section does not preclude the Director from requesting such assistance with respect to facilities owned or operated by the federal government.
This section is intended to implement provisions appearing in 25 U.S.C. 198 and 231; 25 U.S.C. 1661; and 42 U.S.C. 2001.
Pursuant to 25 U.S.C. 198, the Secretary of the Interior may quarantine any Indian found to be afflicted with “tuberculosis, trachoma, or other contagious or infectious disease.” The Secretary of the Interior, through 25 U.S.C. 231, may also permit State agents and employees to enter upon Tribal lands for the purposes of making inspections of health and educational conditions and enforcing sanitation and quarantine regulations.
42 U.S.C. 2001 transferred all functions, responsibilities, authorities, and duties relating to the conservation of the health of Indians, including 25 U.S.C. 198 and 231, from the Secretary of the Interior to the Secretary of HHS, which were redelegated to the Director of the Indian Health Service (IHS) by 25 U.S.C. 1661. Any action the Director of CDC takes under these sections must be in concurrence with the Director of IHS after consultation with the affected Tribe or Tribes.
The grant of authority in 25 U.S.C. 198 and 231 is in addition to the Director's authority under 42 U.S.C. 264, and this section of the proposed rule supplements the Director's authority to impose public health measures to prevent interstate disease transmission. In other words, with respect to carriers in Indian country, the Director may apply any of the public health measures appearing in this part if such carriers have an effect on interstate commerce. Similarly, with respect to a person or group of persons in Indian country, the Director may exercise public health measures appearing in this part provided that such person or group of persons is in the qualifying stage of a quarantinable disease and either (i) moving or about to move from a State to another State; or (ii) a probable source of infection to persons who will be moving from a State to a State.
Under this section, the Director, with the concurrence of the IHS Director and after consulting with the affected Tribes or Tribes may enter onto Indian country for the purpose of enforcing federal quarantine rules and regulations. This section provides that, in addition to the public health measures outlined in Part 70, the Director may impose public health measures with regard to provisional quarantine under § 70.14 and § 70.15, quarantine under § 70.16-§ 70.18, § 70.20, and medical examination and monitoring under § 70.19, in Indian country without making a finding that such person or group of persons is moving or about to move from a State to another State or is a probable source of infection to persons who will be moving from a State to another State. In such circumstances, a finding that such persons are in the “qualifying stage of a quarantinable disease” would be required.
Paragraph (b) provides that any quarantine authorized by paragraph (a) must take place in a hospital or other place for treatment and that any person who is subject to provisional quarantine or quarantine may refuse medical examination, monitoring, treatment, prophylaxis, or vaccination, but remain subject to provisional quarantine or quarantine. Paragraph (c) further explains that any person who is the subject of a provisional quarantine order or quarantine order authorized by paragraph (a) has the same rights as provided for elsewhere in this part.
Furthermore, under paragraph (d), the Director, with the concurrence of the IHS Director and after consulting with the affected Tribes or Tribes, may authorize agents and employees of any State to enter Indian country for the sole purpose of enforcing federal quarantine rules and regulations. This authority is subject to any rules or regulations the IHS Director may choose to promulgate under 25 U.S.C. 231.
This section implements statutory authority contained in section 363 of the PHS Act (42 U.S.C. 266). Under this authority, the Director, in consultation
This section describes the penalties for violating federal quarantine rules and regulations. Under 42 U.S.C. 271, criminal penalties exist for violating regulations enacted under the authority of Section 361 of the PHS Act (42 U.S.C 264). Under the sentencing classification provisions of 18 U.S.C. 3559 and 3571, violations of the quarantine regulations, classified as Class A misdemeanors, are subject to greater penalties. Violation by an individual is punishable by a fine of up to $250,000 or one year in jail, or both. Organizations may be fined up to $500,000 per violation.
This section explains that the Director may implement any of the provisions of this part through an order issued and signed by the Director. In the recent past, the Director has issued a variety of orders to deal with urgent public health threats, including: Notice of embargo of civets (January 13, 2004); Notice of embargo of birds (Class: Aves) from specified Southeast Asian countries (February 4, 2004); Order lifting the ban of bird and bird products from specified Southeast Asian countries (March 10, 2004), and Joint Order (issued with the FDA) prohibiting transportation or distribution of certain rodents associated with the monkeypox outbreak (June 11, 2003) followed by promulgation of an Interim Final Rule (November 4, 2003). This section codifies the preexisting practice of the agency with respect to implementation through an order.
A new 70.31 would allow a written appeal to the Director within two business days in the event that the Director denies an application for a travel permit pursuant to 70.6 or 70.7, orders the destruction of animals, articles, or things, pursuant to 70.11, or the detention of a carrier pursuant to 70.12. The Director may nevertheless immediately implement the actions allowed in 70.6, 70.7, 70.11 and 70.12.
Following is a summary of changes to the current regulations:
The foreign quarantine regulations are used to control and prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States. Sections of this regulation are used in the day-to-day activities of quarantine officers. The proposed rule reduces the number of subparts from six to two. Many of the new sections further clarify current activities. Proposed subpart B, Importations, contains the restrictions on importation of nonhuman primates, certain kinds of animals, etiological agents, hosts, and vectors, and dead bodies. CDC proposes to change only § 71.55 in subpart B.
The following is a section-by-section analysis:
This section explains that 42 CFR Part 71 contains regulations to prevent the introduction, transmission, and spread of communicable diseases from foreign countries into the United States. This part also contains the regulations to prevent the spread of disease among possessions of the United States and from a possession into a State. The definitions contained in this part are comparable to those appearing in Part 70. The following definitions have been added or modified to be consistent with modern quarantine concepts and current medical principles and practice: “airline,” “airline agent,” “business day,” “bill of health,” “commander,” “deratting certificate,” “deratting exemption certificate,” “detention,” “Director,” “emergency contact information”, “flight information,” “hearing officer,” “ill person,” “infectious agent,” “International Health Regulations,” “medical monitoring,” “military services,” “possession,” “provisional quarantine,” “quarantine,” “quarantinable disease,” “sanitary measures,” “State,” “ship,” “shipline,” “shipline's agent,” and “United States.”
The definition of an ill person as it applies to this part was modified to be consistent to that which applies to Part 70.
In contrast with the requirement in Section 361(d)(1) (42 U.S.C. 264(d)(1)) of the PHS Act that the Director make findings under Part 70 that a person is (1) in a qualifying stage of a quarantinable disease and (2) is moving or about to move from a State to another State or who is a probable source of infection to persons so moving or about to move, there are no such requirements when a person is entering the United States from a foreign country or a possession of the United States.
This section contains provisions comparable to those contained in current § 71.3.
According to Annex 7 of the WHO International Health Regulations, member states must designate yellow fever vaccination centers authorized to administer yellow fever vaccine. Licensed medical providers become certified as centers through issuance of a Uniform Stamp Number by a designated health authority. CDC, pursuant to current § 71.3, delegated this authority to state and territorial health departments (SHDs). SHDs file duplicate listings of all certified vaccination centers with CDC. The authorization requirements and certification processes are determined by each SHD, and are not the same in every State.
Upon certification, the SHD sends a notice of the new certification to the vaccine manufacturer and to CDC. Upon receipt, CDC sends a letter to the new center, confirming contact information and offering inclusion on CDC's secure Web-based registry of certified vaccination centers. The Web site is maintained by CDC and SHDs, and is updated upon notice of certification termination or changes in contact information. Several SHDs now file duplicated listings via the website.
This section contains provisions comparable to those contained in § 70.9.
Section 366 of the PHS Act (42 U.S.C. 269) provides that, except as otherwise prescribed in regulations, any vessel at any foreign port or place clearing or departing for any port or place in a State or possession shall be required to obtain from the consular officer of the United States, Public Health Service officer, or other medical officer of the U.S., a bill of health setting forth the sanitary history of the vessel. Under existing § 71.11, carriers at any foreign port clearing or departing for any U.S. port are not required to obtain or deliver a bill of health. Under proposed § 71.4, the Director, to the extent permitted by law and in consultation with such other federal agencies as the Director may deem necessary, may require a carrier at any foreign port clearing or departing for any U.S. port to obtain a bill of health. While the Director does not intend to require a bill of health for carriers engaged in routine traffic, concern over bioterrorism and rapidly emerging infectious diseases makes inclusion of this important public health tool imperative.
This section implements statutory authority contained in section 362 of the PHS Act (42 U.S.C. 265). Under this authority, the Director, to the extent permitted by law and in consultation with such other federal agencies as the Director may deem necessary, may prohibit, in whole or in part, the introduction of persons and property from foreign countries or places whenever the Director determines that the risk of introduction of a disease into the United States is increased by the introduction of persons or property from such foreign countries or places. In carrying out this section, the Director, through order, would designate the persons and property from the foreign countries or places subject to the prohibition on introduction, as well as the period of time that such prohibition would remain in effect.
This section contains provisions applicable to airlines operating flights on an international voyage, destined for a U.S. port, comparable to those established for airlines engaged in interstate traffic under § 70.2.
This section contains provisions applicable to airlines operating flights on an international voyage, destined for a U.S. port, comparable to those established for airlines engaged in interstate traffic under § 70.3
Paragraph (a) of this section establishes requirements applicable to a shipline operating ships on an international voyage comparable to the requirements applicable to airlines in section 71.6. Ships operating between Canadian ports and ports on the Puget Sound or on the Great Lakes and connected waterways are not covered by this section.
Paragraphs (b)-(e) of this section require any shipline operating ships on an international voyage destined for a U.S. port to report to the quarantine station nearest the port of arrival any death or ill person as soon as made known to the ship's commander and, where possible, at least 24 hours before arrival. The shipline shall also report any deaths or ill persons onboard ships during the 15-day period prior to expected arrival, or since departure from a U.S. port (whichever period of time is shorter). Cases or suspected cases of communicable disease during an international voyage from one U.S. port to another are required to be reported to the quarantine station, and the ship must take measures to prevent spread of the disease as directed by the Director. Any death or ill person during a stay in port must be reported. The number of cases (including zero) of diarrhea, febrile respiratory disease, febrile rash illness, or febrile neurologic illness during an international voyage must be reported through a method designated in the shipline's written plan under § 71.9.
Paragraph (f) enables the Director to order shiplines with ships on an international voyage destined for a U.S. port to disseminate to passengers and crew public health notices and other information deemed necessary to prevent the introduction, transmission, or spread of communicable diseases. This provision is comparable to that described for airlines on in international voyage in § 71.6.
This provision creates a requirement for shiplines with ships on an international voyage destined for a U.S. port comparable to that created for airlines on an international voyage in § 71.7. Ships operating between Canadian ports and ports on the Puget Sound or on the Great Lakes and connected waterways are not covered by this section. CDC believes that a 90-day time frame for development of a written plan and an additional 90 days for implementation after the final publication of this rule to be appropriate because ships should already have such procedures in place. CDC is soliciting comment on whether this timeframe is appropriate. During the phase-in period established by new § 71.7, ships are still expected to comply with the reporting requirements contained in current 71.21(a) and (c) (Radio report of death or illness) and 71.35 (Report of death or illness on carrier during stay in port).
This section contains provisions comparable to those contained in § 70.4, except that this section is also applicable to ships on an international voyage. Ships operating between Canadian ports and ports on the Puget Sound or on the Great Lakes and connected waterways are not covered by this section.
This section contains provisions comparable to those contained in § 70.5, except that this section is also applicable to shiplines operating ships on an international voyage destined for a U.S. port. Ships operating between Canadian ports and ports on the Puget Sound or on the Great Lakes and connected waterways are not covered by this section.
This section consolidates provisions contained in current 42 CFR Part 71.
This section contains provisions comparable to those contained in § 70.11.
This section contains provisions comparable to those contained in § 70.12 and current § 71.31(b).
This section carries over provisions contained in current § 71.34.
This section contains procedures comparable to those contained in § 70.13 at U.S. ports.
This section contains procedures comparable to those contained in § 70.14.
This section contains procedures comparable to those in § 70.15.
This section contains procedures comparable to those in § 70.16.
This section contains procedures comparable to those in § 70.17.
This section contains procedures comparable to those in § 70.18.
This section contains provisions comparable to those contained in § 70.19.
This section contains procedures comparable to those in § 70.20.
This section contains provisions comparable to those contained in § 70.21.
This section contains provisions comparable to those contained in § 70.22. In general, U.S. government requirements regarding the detention of foreign nationals may be accessed at:
This section contains procedures comparable to those in § 70.23.
This section carries over provisions contained in current § 71.45.
This section carries over provisions contained in current § 71.46.
Under 8 CFR 234.4, in order to be designated an “international airport,” an airport must fulfill requirements established by the Secretaries of Commerce, Transportation, Health and Human Services, and Homeland Security. The list of airports designated as “international airports” may be found at 19 CFR 122.13. The proposed section carries over existing authority requiring each U.S. airport which receives international traffic to provide, without cost to the Government, suitable office, isolation, and other exclusive space for carrying out the federal responsibilities under this part. The proposed section also adds a new provision requiring U.S. airports receiving international traffic to provide suitable quarantine space. The specifications for space requirements to carry out quarantine activities are incorporated into the Federal Inspection Service manual. In carrying out this provision, CDC intends to collaborate closely with the U.S. Department of Homeland Security.
This section contains provisions comparable to those in § 70.10.
The penalties listed in this section are the same as those listed in § 70.29.
This section contains measures comparable to those in § 70.30.
A new 71.33 would allow a written appeal to the Director within 2 business days in the event that the Director orders the export or destruction of animals, articles, or things, pursuant to 71.13 or the detention of a carrier pursuant to 71.14. The Director may nevertheless immediately implement the actions provided in 71.13 and 71.14.
This section remains unchanged. The text has been set out for the convenience of the reader, however, CDC does not invite comments on this section.
This section remains unchanged. The text has been set out for the convenience of the reader, however, CDC does not invite comments on this section.
This section remains unchanged. The text has been set out for the convenience of the reader, however, CDC does not invite comments on this section.
This section remains unchanged. The text has been set out for the convenience of the reader, however, CDC does not invite comments on this section.
Embalming is no longer an option for avoiding a permit when importing dead bodies. Additionally, the Director can impose additional conditions.
This section remains unchanged. The text has been set out for the convenience of the reader, however, CDC does not invite comments on this section.
Following is a summary of changes to the current regulations:
We have examined the impacts of the proposed regulation under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
We believe that the proposed regulation is a significant regulatory action under the Executive Order. We also believe that it is a major rule under the Congressional Review Act. At this time we are not certifying that the proposed rule would not have a significant impact on a substantial number of small entities under the Regulatory Flexibility Act and have prepared an Initial Regulatory Flexibility Analysis, as required.
A “significant regulatory action” is defined in the Executive Order in the relevant part as:
Any regulatory action that is likely to result in a rule that may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
The Regulatory Flexibility Act and the Congressional Review Act (Subtitle E of SBREFA) similarly define “significant impact” and “major rule,” respectively.
Finally, our Unfunded Mandates Reform Act analysis concludes that the proposed rule will not have any significant economic impact on State, local, or Tribal governments. However, the proposed rule would have a significant impact on the private sector, particularly air carriers. This impact is more than offset by the benefits of the proposed rule, which is designed to enhance our ability to effectively counter the threat of introduction, transmission, and spread of infectious disease via travel. The benefits accruing to public health and safety will also extend to the airline industry and the economy generally.
The analyses undertaken to meet the above requirements are presented in detail in the report titled Regulatory Impact Analysis of Proposed 42 CFR part 70 and 42 CFR part 71, which can be found in the Rulemaking Record (CDC, 2005) (hereinafter referred to as the RIA).
The rule is necessary to minimize the risk of introduction, transmission, and spread of infectious disease via travel. In a recent study, the Institute of Medicine, National Academy of Sciences, found:
Whether naturally occurring or intentionally inflicted, infections can cause illness, disability, and death in persons while disrupting whole populations, economies, and governments. And because national borders offer trivial impediment to such threats, especially in the highly interconnected and readily traversed “global village” of our time, one nation's problem soon becomes every nation's problem (Institute of Medicine, 2003).
Stopping an outbreak—whether it is naturally occurring or caused intentionally—requires the use of the most rapid and effective public health tools available. One of those tools is quarantine—restricting the movement of persons exposed to infection to prevent them from infecting others, including family members, friends, and neighbors. Quarantine of exposed persons may be the best initial way to prevent the uncontrolled spread of highly dangerous biologic agents such as smallpox, plague, and Ebola fever—especially when combined with other health strategies such as vaccination, prophylactic drug treatment, patient isolation, and other appropriate infection control measures.
We commissioned the Volpe National Transportation Systems Center (2005) to undertake a study concerning the need for access to data enabling us to rapidly identify and locate at-risk persons to control the spread of infectious diseases. In the course of the study, airlines expressed concern over business and cost considerations associated with future data sharing. We would pursue collection of this vital data with a commitment to minimize the effect on airline operations. Full advantage would be taken of the trend toward online booking and passenger information input. Every effort would be made to merge our data collection efforts with those already undertaken by the airlines for national security and other purposes. During the course of rule development, we will seek comment from the airlines and their passengers concerning the most efficient means of data collection.
Failure to efficiently address the health-related effects of infectious disease spread through travel poses substantial adverse economic consequences. Reliable estimates are that the SARS' economic impacts in Asia in 2003 might have totaled as much as U.S. $28.4 billion, as discussed in Fan (2003). In Toronto, after SARS was detected, hotel occupancy rates were cut in half, and conventions were cancelled. CBS News Online (2003) reported that the Canadian Government spent $40M (CAN) to counteract both the medical impacts (surgical backlogs) of SARS quarantines and the public concern about safe travel into Ontario. To the extent that economic activity shifts from on region to another, estimates of regional impacts overstate national or international impacts. Nevertheless, the SARS experience proves that fear of contagion and the reaction to that fear can have severe economic impacts on nations where such contagions are detected.
Airlines were severely affected by SARS, with the St. Louis Business Journal (2003) stating “the outbreak of SARS has had a greater impact on the global airline industry than the war in Iraq, according to a study by OAG, a firm that provides flight schedule information.”
Since the mere threat of an outbreak can affect the public health system and damage the economies of affected nations and the travel industry, it must be contained promptly to mitigate public reaction. Automated tools to acquire passenger information would enable CDC to more effectively employ its staff in tracing and identifying travelers.
The major impacts of this rule will fall on the airlines and the global distribution systems (GDSs), travel agencies, and other reservation booking operations to gather the data from passengers and submit the proposed required crew manifest and passenger data, as needed. It will also fall on the passengers themselves, who must take time to supply the information (see Sections F and G below for more detail). Our current belief is that any data collection-related costs borne by these entities will be substantially outweighed by avoidance of public health and economic costs associated with infectious disease outbreaks spread via travel.
The other requirements of the proposed rule are primarily clarifications or cover tasks that are currently being performed by agencies at the state and local levels. In particular, for sanitary measures, the proposed regulation duplicates CDC regulatory language from 42 CFR part 71, related to international commerce in
Second, the economic impact of a sanitation order may differ significantly depending on the circumstances. Experience shows that, in some cases, public health officials' sanitation orders do not generate costs over and above the costs that the outbreak itself creates. Affected markets often respond immediately to health risk information. For example, demand for pet prairie dogs collapsed virtually overnight when they were identified as potential carriers of monkeypox. Thus, the value of the pet prairie dog inventory was destroyed by the loss of a market even before health authorities sequestered them. In other cases, such as a sanitation order affecting a standard commodity such as chicken or beef, whose price would likely not collapse in the presence of an outbreak, the order itself may be the vehicle that destroys at least part of the value of the shipment. Because a sanitation order restricts the supply of a product, in yet other cases it may even cause prices to rise. Regardless, government intervention ensures that those with less information are not made vulnerable to the disease and can reestablish safe conditions and public trust in the product.
We invite comment concerning the economic impact of this proposed regulation.
As discussed in more detail above, we believe that the rule is necessary to minimize the risk of introduction, transmission, and spread of infectious disease via travel. The need for the regulation is driven by a demonstrated market failure. An externality exists when one person's or party's actions impose uncompensated costs to other parties. By exposing fellow travelers to potential illness and possible death, an ill traveler imposes uncompensated costs on the fellow travelers, travel providers, and the individuals that they, in turn, might expose. Due to the national and international nature of travel and the transmission of communicable diseases, regulation at the Federal level is the most appropriate mechanism for protecting public health.
A first step in economic analysis of a regulatory action is the identification of a baseline, a depiction of the world in the absence of any action, from which to calculate the effects of the regulation. In the absence of the changes proposed in this regulation, we would continue to use the approaches taken during the SARS outbreak. We would meet flights containing suspected contagious passengers and attempt to obtain location and contact data from both passengers and crew members before disembarkation. Ill passengers on planes from affected areas would be evaluated and referred for medical care when appropriate.
As with SARS, data concerning cases identified after disembarkation would have to be manually gathered, compiled, and processed from flight manifests, customs declarations, and any other available sources relevant to the case. This manual process has the following shortcomings:
• Manifests contain only the passenger name and seat number.
• Custom declarations are completed by the passenger by hand and are often illegible.
• Names on the customs declarations do not necessarily match those on the manifests. Phone numbers are not included on customs forms, and only one customs form is filled out per family.
Hard copy data gathered from manifests and customs declarations frequently takes several days to obtain. Data must then be keyed into a database. Entering the data and verifying addresses may take several more days. The time to do manual tracking of passengers could frequently be expected to take longer than the incubation period of many infectious diseases.
Economic analysis of a regulation is based on the concept of incremental change: What would happen without a rule versus what would happen with it. The current regulatory environment provides a base case against which the changes in behavior precipitated by the new rule are compared.
Overall, the proposed rule seeks to:
• Clarify administrative procedures to ensure due process rights to quarantined individuals.
• Mandate that carriers maintain and provide to CDC passenger information in electronic formats.
• Clarify requirements for reporting sick passengers.
• Clarify sanitary measures taken with respect to interstate commerce.
• Clarify coordination with state and tribal authorities.
CDC performed a section-by-section comparison of the current and proposed rule. Many provisions of the proposed rule codify practices that have evolved over the years. As these practices are part of current practice at CDC and in the industry, their codification does not impose new costs upon society.
The major cost component of the proposed regulation is creation and maintenance of a passenger information database including home address, emergency contact, and itinerary information. Under current regulations, the airlines do not typically collect this information in an easily accessible format, nor do they maintain it for the proposed 60-day period. Airlines, Global Distribution Systems (GDSs), and travel agencies may already collect some of it, however. If the information can be shared, then this data collection may be relatively invisible to the traveler and primarily a programming problem for the airlines, although passengers will incur some opportunity costs of their time to provide information and travel agencies and similar entities will incur some costs to collect the data. This scenario is CDC's “Point of Sale” (POS) scenario. However, CDC also examined the situation where a wholly separate information collection must be undertaken at departure; this process could add to check-in times and entail gathering information that is already gathered by many travel agencies, generating additional real and opportunity costs for carriers and passengers. This is the “Point of Departure” (POD) scenario.
The proposed rule defines a basic set of information to be collected from all passengers. The information includes permanent address, e-mail address, passport information, traveling companions or group, emergency contact information (including at least name of an alternate person or business and a phone number), phone number(s) for the passenger, itinerary, and other flight information. This set of data is greater than the set of information currently collected by the airlines, GDSs, or travel agencies. The incremental costs of collecting, storing, and producing this information on
CDC looked at three options for the proposed rule. The first option (Option 1—International Only) would cover international flight arrivals and trips on vessels arriving from non-U.S. locations only. The second option would cover these international flights and vessel trips and would add domestic flights landing in or taking off from large and medium size U.S. airports specified by CDC (Option 2—International plus Large and Medium Hubs) (see Appendix A for this list). The third option would also cover international flights and vessel trips and would add all domestic flights (Option 3—International plus All Domestic). CDC proposes Option 2 for this rulemaking.
CDC compared the estimated costs and monetized benefits associated with the proposed rule (Section I). CDC also examined whether any costs should be considered regarding sanitary measures taken with interstate commerce (Section B).
Under the proposed rule, costs to industry will be incurred primarily by the airline and cruise ship industries. Additional sectors would also incur some costs to collect additional passenger information. (See the RIA [CDC, 2005] for profile information on these other sectors, which include travel agencies and GDSs.) Compliance costs can be broadly categorized into one-time costs, such as computer reprogramming for each airline or cruise line, and recurring costs that will be incurred for each passenger traveling with that carrier. Foreign carriers incur costs under all three options and are included for projecting the total cost of the proposed rule. However, the financial impact to carriers is projected only for U.S.-owned companies.
Commercial air carriers are classified according to the size of the aircraft and type of service provided. Airlines operating aircraft with more than 60 seats are classified as large certificated carriers, and further distinguished as major, national, and regional according to annual revenues. Carriers operating aircraft with 60 seats or fewer may be classified as small certificated carriers and commuter airlines. Some commercial air carriers operate under code-sharing partnerships with other, typically major, airlines. Generally, reservations are made with, and flight manifests are generated by, the parent airline, not the codeshare airline (Franz, 2005). We estimate that 23 codeshare airlines fly exclusively under other airlines' codes (RAA, 2005).
Table VI.F-1 presents flight operation and passenger information for air carriers likely to be affected by the proposed rule (BTS 2005a, 2005b, 2005c) under Option 3; that is, passenger-carrying arrivals from foreign countries, as well as interstate and intrastate flights within the U.S. This option covers 217 airlines, carrying 696 million passengers on 10.4 million flights. Option 1 (International Only) covers 184 airlines, 10 percent of Option 3 passengers, and 6 percent of the Option 3 flights, while Option 2 (International Only plus Large and Medium Hubs) covers 217 airlines, 90 percent of the Option 3 passengers, and 77 percent of the Option 3 flights.
The cruise ship industry provides international water transportation to passengers. The well-known portion of this industry comprises large-to-very large firms, best typified by the “big three” of the global industry: Carnival, Royal Caribbean, and Star Cruises. A second tier includes smaller cruise lines that serve similar markets and niche markets. A third, much smaller segment comprises small operations that provide shorter-distance international water transportation to passengers traveling from outside the U.S. in regions such as the Great Lakes and the Pacific Northwest, or from Canada and the Caribbean. Finally, there are also lines that own and operate ferries that carry passengers between, for example, Seattle, WA, and Vancouver, B.C., Canada, or between Ohio and Ontario, Canada.
In theory, any vessel could be affected by the rule because ships are inherently mobile. Nevertheless, the general itineraries of the lines as currently posted on Web sites were considered the likeliest indicator of whether they would be affected by the proposed regulation in the near future. Affected cruise lines were identified on the basis that: (1) They serve U.S. ports, and (2) they have itineraries with at least one international destination.
Most of the largest cruise lines are members of the International Council of Cruise Lines (ICCL); of the 16 cruise lines in this category, two are U.S.-owned. The second tier consists of 16 cruise or ferry lines that are not members of ICCL, but are considered
Under the POS scenario, CDC assumed that legal and logistical barriers to carriers accessing DHS and GDS databases were removed, and therefore they could access information that passengers input directly into a database when they make their reservations. These databases might belong to DHS, the airline or a GDS. Travel agents, however, would need to collect additional information to complete the purchase of tickets. Thus, the only data collection costs to industry under this scenario would be borne by travel agencies. There are, however, opportunity costs to passengers, since passengers must devote time to providing additional information when they make reservations (discussed later in this section).
Under the POD scenario, CDC assumed that airlines would incur the data gathering costs and that the amount of incremental data to be gathered is greater than the amount of incremental data to be gathered under the POS scenario. Unless a passenger is a frequent flier customer, much of the information that travel agencies routinely gather, such as home or business address and telephone number and/or e-mail address, is not collected by the airlines routinely.
CDC based its assumptions for incremental data collection time on industry estimates for and comments on DHS' proposed implementation of Section 231 of the Enhanced Border Security and Visa Reform Act of 2002, and direct industry discussions (FR, 2003; IATA, 2003; Qantas, 2003; Volpe, 2004). Providing an address, for example, is expected to add 45 seconds to information collection time, according to industry estimates. To estimate the cost of data collection by travel agents under the POS scenario, CDC assumed that approximately 30 percent of passengers will book through travel agents, and travel agents need an additional 45 seconds to gather information from passengers to cover the new data needs. Travel agencies already collect much of the information required, but a few pieces of information might not be universally collected. These might include e-mail address, passport information, and emergency contact information. This information was considered equivalent to the amount of information that would need to be gathered for an address. Thus 45 seconds was considered a reasonable estimate under the POS scenario.
Under the POD scenario, CDC assumed that somewhat longer times, such as 1.5 minutes per non-frequent flier passenger, are needed to compile the additional information and to obtain or verify emergency contact information. Additionally, airlines are forecast to hire additional personnel to facilitate information gathering at the time of airport check-in. Such workers would be provided with portable workstations so that information could be gathered while passengers are waiting in line or at the departure gates. These additional workers would be needed to avoid excessive queuing time for passengers.
The incremental costs for gathering information by travel agencies are estimated to be $5.2 million to $53.7 million yearly, depending on option under the POS scenario. Under the POD scenario, these costs will fall on the airlines and cruise lines and will total $65.1 to $316.3 million annually, depending on the option.
Each of the regulatory options also involves potentially substantial reprogramming by carriers so that a variety of information from several different databases can be linked to information compiled prior to or at departure and saved electronically with the manifest data currently collected by the airlines. Discussions with industry indicate that this reprogramming might cost from $5 million to $15 million per major airline. These reprogramming costs are primarily a function of the need to add data fields and integrate data systems, but are relatively invariant with respect to the number of fields added. Smaller airlines appear to have IT systems that are less complex and more flexible than those of major airlines, so reprogramming costs should be substantially lower (Airline Web Sites, 2005; Delta, 2005; FR, 2003; Pace, 2005; Sun Country, 2005).
CDC assumed major and foreign airlines will each incur reprogramming costs of $10 million. These costs are assumed to decrease with airline size; small certificated/commuter airlines are projected to incur costs of $10,000 each.
In addition to air carriers and cruise lines, under the POS scenario (but not the POD scenario), GDS operators and travel agents will also incur reprogramming costs. Companies that own and operate GDSs will need to modify databases to accept additional fields from Web-based systems and travel agencies. CDC estimated that four major GDS systems dominate the U.S. market, and these companies will incur reprogramming costs on the order of $5 million each. Travel agencies and other tour-booking companies are assumed to incur reprogramming costs of $1,000 per establishment to update their Web links with the GDS. CDC estimates that about 18,000 establishments will incur these costs.
Reprogramming costs are annualized at 7 percent over 10 years. CDC estimates that reprogramming will cost the airlines $105.9 million to $107.5 million on an annualized basis under either scenario. For cruise lines, the estimated costs of reprogramming total $0.6 million (annualized) over all options and scenarios. For travel agencies, GDSs, and similar entities, CDC estimates that reprogramming will cost $5.4 million on an annualized basis over all options, which is added to the totals for reprogramming for airlines and cruise lines under the POS scenario. Total costs for reprogramming under the POS scenario range from $111.9 million to $113.5 million per year, depending on option. Under the POD scenario, because the burden of data collection shifts to airlines, these costs are slightly less—$106.5 million to $108.1 million per year.
Major airlines tend to keep flight manifests in electronic format for only a few days because their intensive flight operations would otherwise result in massive storage requirements (United, 2005; Volpe, 2004). Incremental costs will be incurred for archiving manifest and passenger information in electronic format up to 60 days, as well as administrative costs for submitting data each time CDC requests data and for documenting how they will collect data and submit it to CDC. This includes time to provide passenger lists and data for the 10-12 times per month CDC expects to routinely request this information. It is assumed that, with the software modifications in place, such routine requests will require only a small amount of time to process and submit data. CDC assumed major, national, and foreign airlines would require 5 percent of a full-time-equivalent airline database manager to handle these tasks, declining to 1 percent for small certificated/commuter airlines. For cruise lines, ICCL members are assigned 5 percent, other large lines are assigned 3 percent, and small lines and ferries are assigned 1 percent. The average wage for this occupation is taken to be $44.00 per hour fully loaded (BLS, 2005). CDC assumed archiving will occur on 50-gigabyte tapes, and airlines will need a maximum of 12 tapes over a 3-month period. Because these tapes can be recycled and reused for a number of years, annualized costs of tapes are assumed minimal. Storage space requirements are also considered negligible. CDC estimated annual archiving and administrative tasks (under either scenario) would cost $676,000 to $710,000 for airlines, depending on option, and $140,000 for cruise lines across all options, for a total of $816,000 to $855,000 depending on option. GDSs and travel agencies would not have an equivalent responsibility to provide data to CDC, so no archiving or administrative costs are assumed for these entities.
Passengers incur an opportunity cost for the time they use in providing additional information to the carriers or others. Under the POS scenario, passenger time providing information at a minimum equals the time travel agencies require to collect that information (45 seconds). An additional amount of time (15 seconds) is assumed, on average, to allow time for those passengers using the Internet to input additional information into Web pages or for any passengers who must locate certain information, such as emergency contact telephone number or passport number. Thus, on average, all passengers are assumed to need one minute to provide additional information. (This figure has not been discounted to account for families and groups that may be able to provide the data more efficiently.) Under the POD scenario, CDC assumed it takes an average of 1.5 minutes for passengers to provide the required additional information to airlines/cruise lines.
The opportunity cost of passenger time is set at the value of passenger time on air carriers recommended by FAA (FAA-APO, 2003) of $28.60 per hour. This same value is used for cruise line passengers. CDC estimates that the opportunity costs to passengers of providing additional data total $67.6 to $367.3 million annually under the POS scenario and $90.5 million to $439.9 million annually under the POD scenario, depending on option. The opportunity cost to passengers is a non-industry social cost of the rule.
CDC discounted future costs to their present value using the 7 percent discount rate recommended by OMB over 10 years. Costs are annualized so that options with costs occurring in different years can be compared. Tables VI.F-3a and VI.F-3b show the annualized national costs of the three options under the POS and POD scenarios, respectively. The biggest difference in costs among the three options within each scenario is the opportunity cost to passengers. Costs to industry rise only about 42 percent from Option 1 to Option 3 and only 38 percent from Option 1 to Option 2 under the POS scenario. Under the POD scenario, costs to industry more than double from Option 1 to Option 2, and increase slightly more for Option 3. Additionally, costs to the industries directly affected by the rulemaking (the rule does not directly affect GDSs or travel agencies) rise negligibly from one option to the next, with Option 1 costing about $107 million and the other two costing about $109 million annually under the POS scenario. Under the POD scenario, airlines and cruise ship industries incur all compliance costs as they are collecting and compiling all required passenger information.
Under the alternative scenario (Point of Departure Scenario) Option 3 would be associated with costs totaling $425.3 million to industry. Adding the $439.9 million opportunity costs to passengers to the industry costs yields a total for this scenario of $865.2 million per year.
Impacts on industry, including airlines, cruise lines, travel agencies, and GDSs, were measured using a comparison of annualized costs per firm to each firm's revenues, if available. Impacts were identified where the annualized costs exceeded 1 percent of revenues and/or where the annualized costs exceeded the net income of a firm (airlines only). For airlines, we used a second test, comparing annualized costs to net income (similar baseline net income figures are not available for the other entities). Impacts were identified where annualized compliance costs exceeded net income, where net income was currently positive.
Under the Point of Sale scenario, CDC determined that no airlines, cruise lines, GDSs, or travel agencies, would experience annualized costs in excess of 1 percent of revenues under any of the options analyzed. For those airlines for which net income is available and positive, CDC estimates one airline would incur compliance costs exceeding net income.
Under the Point of Departure scenario, CDC estimates that one airline would incur annualized compliance costs greater than 1 percent of revenues under Option 1, and two airlines would exceed the 1 percent level under Option 2. Four airlines are expected to incur costs exceeding 1 percent of revenues under Option 3. Furthermore, one airline would incur annualized compliance costs exceeding its baseline net income under all three options. There is no change to the impact results among the other affected entities.
As discussed above, the benefits of the proposed regulation are associated with the faster suppression of infectious disease outbreaks spread via travel. More efficient traceback of infectious individuals can lead to more complete and effective prophylaxis and quarantine. The reduction of the frequency and scale of outbreaks should result in a commensurate reduction in the opportunity costs of outbreak-related public health efforts to Federal, State, and local governments.
In addition to the avoided illnesses and deaths from the proposed rule, more effective control of an outbreak will reduce the economic impact of infectious disease outbreaks. The SARS outbreak is estimated to have reduced incomes in East and Southeast Asia by $12.3 billion to 28.4 billion (Fan, 2003). Such regional impact measurements overstate the global impact of disease outbreaks because they generally do not take into account the redirection of investment, travel, and purchasing from affected areas to unaffected areas. The global impact would be the net loss of consumer and producer surpluses (
Other potentially sizeable benefits that could not be quantified include reductions in stress on health care systems due to disease outbreaks, reductions in cases of common illnesses, such as measles, through an ability to rapidly contact passengers who might have been exposed, and reductions in anxiety among those who
The most direct effect of the CDC rule changes is improved contact tracing leading to better health outcomes when an outbreak threatens. In epidemiological models, the speed of response is often more important than the specific action taken (Barrett
To estimate the effect of faster contact tracing, CDC applied a Susceptible-Exposed-Infectious-Recovered (SEIR) epidemiological model that includes the effects of vaccination, quarantine, isolation, and asymptomatic carriers. The model forecasts the number of deaths, illness days, isolation days, and quarantine days given parameters that characterize the illness and the public health intervention. Each outcome measure is monetized by the public's willingness to pay (WTP) to avoid death and illness.
The risks of illness and death from an infectious disease are similar to risks from some environmental hazards in that they are involuntary, pervasive, and random. Thus, we updated values from the Environmental Protection Agency's evaluation of the benefits of the Clean Air Act (Kochi,
The parameters of the model were selected to simulate the first 200 days of a SARS-like disease spreading in a large city. In the base case intended to represent current practice, intervention began in the sixth week after introduction, isolated 40 percent of infectious patients, and quarantined 30 percent of contacts. To model the three options, ERG assumes interventions begin in the fifth week, 70 percent of infectious patients are isolated, and 60 percent of contacts are quarantined. Table VI.H-1 shows the improvement in outcomes with earlier public health intervention.
Table VI.H-2 shows the WTP values for the deaths and days of incapacity avoided in a single outbreak by implementing each option. However, the rule will presumably be in place for many years and be effective in many situations. In order to show the long run benefits of the rule, it is necessary to forecast the frequency and scale of epidemic events. CDC assumed that epidemics on the scale of the modeled outbreak would occur once every 5 years over the 10-year planning horizon. Table VI.H-2 shows the WTP in current dollars as well as the 10-year annualized discounted values at three and seven percent.
The effect of the earlier intervention reducing the number of deaths from 900 to 37 is remarkable but not inconceivable; compare the 43 SARS deaths in Canada where preparations were made and there were effective public health measures with the 299 SARS deaths in Hong Kong. A Monte Carlo simulation demonstrated that the set of parameters used in the analysis yielded a benefit estimate at the 42nd percentile of a range of possible parameter choices. While some alternative assumptions could result in considerably smaller benefits estimates, many other alternative assumptions could result in much larger estimates. Although we cannot know the appropriate assumptions to model the epidemics that will be encountered in the future, it is not difficult to imagine outbreaks whose control would exceed this level of benefits. We invite comments on the benefits model, which is described in detail in the RIA (CDC, 2005).
The primary cost impact of the proposed rule is the collection and maintenance of crew and passenger data. The economic analysis focused primarily on air and water carriers, and secondarily, under the POS scenario, on GDSs and travel agencies, all of which are likely to modify computer systems and collect passenger information in order to come into compliance or meet airline/cruise line requirements. Some data sought by CDC is already or soon may be collected by other government agencies (
Tables VI.I-1a and VI.I-1b summarize the estimated annualized costs and benefits associated with the proposed rule under the POS and POD scenarios, respectively. Table VI.I-1c presents these same results assuming the actual costs are at the midpoint between the two bounding scenarios. The benefits of the rule are measured in terms of the number of deaths and illnesses prevented by rapid intervention. The costs and benefits of the rule are considered over a 10-year period. As the table shows, under all options, the benefits substantially outweigh the costs under either scenario and assuming actual costs are the midpoint of costs under the two scenarios.
As a second analysis, the cost effectiveness of the options was considered. In order to include both mortality and morbidity effects in a single metric for cost effectiveness analysis, these measures were converted to Quality Adjusted Life-Years (QALYs). (See the RIA for more information on how QALYs are calculated.)
The QALY losses avoided by implementation of the proposed rule annualized at 7 percent are presented in Tables VI.I-2a (POS scenario),VI.I-2b (POD scenario), and VI.I-2c (midpoint). As with the dollar denominated benefit estimates, the number of deaths avoided is the largest component of benefits. Costs per QALY for Options 1 and 2 are less than $300,000 under the higher-cost POD scenario.
In the cost-effectiveness analysis, the options are ranked in order of ascending numbers of QALYs. The average cost effectiveness of the options is calculated as the cost of each option divided by the number of QALYs associated with each option ($/QALY). To calculate the incremental cost-effectiveness of each option, each option's costs and QALYs are first calculated as the incremental cost and incremental number of QALYs going from that option to the next higher option. The incremental cost is then divided by the incremental number of QALYs. This method is also used for Option 1, which is incremental to the no-action alternative (not explicitly shown). The no-action alternative has zero cost and zero QALYs.
As Tables VI.I-2a and VI.I-2b show, after Option 1 (international flights and cruise lines only) under either scenario, costs rise quickly. Option 2 (international plus large and medium hubs) is associated with a slightly lower average cost effectiveness value compared to Option 3 (international plus all domestic), but a significantly lower incremental cost effectiveness value compared to Option 3 under either scenario.
In a third analysis of costs and benefits, a breakeven analysis was performed. In a breakeven analysis, the number of years between outbreaks that would need to occur for benefits to equal costs is calculated. The benefits of one outbreak were discounted as if the outbreak would occur five years in the future and annualized to be comparable to annualized costs. Dividing annualized costs by annualized benefits indicates the number of outbreaks that would need to occur during the planning period for benefits to equal costs. Dividing the planning period, 10 years, by this number shows the expected period of time between outbreaks. If this period is longer than the expected recurrence of serious outbreaks, then the expected benefits outweigh the expected costs.
Table VI.I-3 shows these results for the three options considered under the POS and POD scenarios, as well as under a midpoint cost assumption. Whether or not one believes that there will be two outbreaks of this magnitude in the next 10 years, it may be reasonable to expect that there may be one such outbreak in 9 to 27 years, as represented for the midpoint cost assumption.
CDC considered the proposed regulation's effects on small entities, as required by the Regulatory Flexibility Act (RFA; 5 U.S.C.
The Small Business Administration defines small airlines as those with fewer than 1,500 employees and small water carriers as those with fewer than 500 employees. Department of Transportation (DOT) data indicates that there are 43 airlines (NAICS 481111) with fewer than 1,500 employees (BTS, 2005a and 2005b). Employment is not reported for an additional 32 airlines and another 19 airlines have no financial data whatsoever. We assume that all 32 with no employment data are small, there are 75 small airlines that might be affected by the proposed rule. International ownership links complicate estimation of the number of small cruise lines (NAICS 438112). When ferry and charter boat companies operating in the Great Lakes, Gulf of Mexico, Pacific Northwest, or Florida with foreign port itineraries are considered, we estimate that there are approximately 20 small firms in the cruise industry subject to the regulation.
GDSs and travel agencies might also be affected by the proposed regulation under the POS scenario. Census Bureau data indicate there are 21,679 small travel agency (NAICS 561510) establishments in the U.S. (Census, 2004). Larger travel companies own 4,559 of these establishments, so we estimate that the remaining 17,120 are
CDC, as discussed earlier, considered three options under two scenarios. The first option requires information to be collected from passengers only for those arriving on international flights and cruise lines with international to domestic itineraries. Option 2 adds domestic flights from medium and large airports to Option 1, and Option 3 adds all domestic flights to Option 1. The two scenarios are the Point of Sale scenario, under which CDC assumes that the airlines will be able to gain access to data collected by travel agencies and GDSs and will not have to collect data from passengers at the point of departure. In the second scenario, CDC assumes that the logistical and legal barriers to this information sharing are such that all information would need to be collected by the airlines at the point of departure (the Point of Departure scenario).
CDC did consider Option 1, which represents an option for minimizing the number of affected small firms and their associated costs (since it covers fewer flights and passengers). Small firms are less likely to provide international flights than large firms. CDC did not select this option because CDC believes that Option 2 provides better protection of human health with only slightly greater potential impacts (and only under the POD scenario). Although CDC could have considered an option in which some or all airlines and cruise lines considered small by Small Business Administration Standards were exempted from providing data, CDC did not believe that this approach would adequately protect human health. Although the airlines defined as small carry only 5-10 percent of passengers (depending on option), this represents as many as 35 million passengers annually and as many as 22 percent of flights. Furthermore, the nature of the airline industry is such that some of the smaller airlines, which comprise a major portion of the codeshare airlines, would avoid some of the major costs of the proposed rule. The codeshare airlines do not have their own reservation systems. These are managed by their larger airline partners. A significant cost of the proposed rule entails the reprogramming of the reservation system software. CDC does not believe any codeshare airline will share in any of these costs, since the larger airlines are very dependent on the codeshare airlines to fill the gaps in their itinerary offerings.
CDC applied a revenue test to assess the impact of added costs on small businesses. Under the POS scenario, costs are less than 1 percent of revenues for all affected airlines and cruise lines under Option 2. Even among the small travel agencies, costs are less than one-half of one percent of small travel agencies' average revenues. These small businesses are estimated to incur costs of less than $700 per year per firm under Option 3.
Under the Point of Departure scenario, Option 2, CDC estimates that two small airlines out of 91 small airlines and cruise lines analyzed might incur annualized compliance costs in excess of one percent of revenues, should the carriers themselves need to collect all of the passenger information required prior to passenger boarding.
Executive Order 13045 requires HHS to determine whether the proposed rule is economically significant. The Executive Order further requires HHS to determine whether the proposed rule would create an environmental health or safety risk disproportionately affecting children. HHS has determined that this proposed rule of general applicability is consistent with the principles set forth in the Executive Order.
The Centers for Disease Control and Prevention has determined that this notice of proposed rulemaking contains information collections that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520). A description of these provisions is given below with an estimate of the annual reporting burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information. Comments are invited on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of the publication of this notice. Please send written comments to Seleda Perryman, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS D-74, Atlanta, GA 30333.
At present, CDC maintains clearance to collect certain information and impose recordkeeping requirements related to quarantine responsibilities under two separate OMB control numbers: 0920-0488 for 42 CFR Part 70 Interstate quarantine and 0920-0134 Foreign Quarantine. CDC proposes to revise reporting and recordkeeping requirements under the current OMB control numbers for sections in the rule that have been modified or retained. Additionally, CDC proposes to add new sections containing reporting and recordkeeping requirements for interstate and foreign quarantine to the existing 0920-0488 and 0920-0134, respectively.
Under OMB control number 0920-0488, the following section will be modified: 70.6 Travel permits. CDC proposes to add the following sections: 70.2 Report of death or illness on board flights; 70.3 Written plan for reporting of deaths or illness on board flights and designation of an airline agent; 70.4 Passenger information; 70.5 Written plan for passenger information and designation of an airline agent; and, 70.19 Medical examination and monitoring.
Control of disease transmission within the United States is largely considered to be the province of state and local health authorities, with federal assistance being sought by those authorities on a cooperative basis, without application of federal regulations. Interstate quarantine regulations administered by CDC were developed to facilitate federal action in the event of large outbreaks requiring a coordinated effort involving several states, or in the event of inadequate local control. While it is not known whether, or to what extent, situations may arise in which these regulations would be invoked, contingency planning for domestic emergency preparedness is not uncommon. Should a domestic emergency occur, the reporting and record keeping requirements contained in the regulations will be used by CDC to carry out quarantine responsibilities as required by law, specifically, to prevent the spread of communicable diseases from one state or possession into any other state or possession. The information would only be collected when it is required, and is the minimum necessary to meet statutory obligations. CDC uses one form to collect essential information in the following sections:
42 CFR 70.3: All communicable diseases.
42 CFR 70.4: Report of disease.
42 CFR 70.5: Certain communicable diseases; special requirements.
CDC's proposed rule cancels § 70.3 and modifies 70.4 and 70.5 into a new section 70.6. The current permit form will be modified to reflect that the application is now made only to the Director as set forth in 70.6(c)(2).
In addition to 70.6, CDC proposes adding reporting requirements at the following sections:
70.2 Report of death or illness on board flights. This requirement, currently only in the foreign quarantine regulations, now extends to airlines operating flights in interstate traffic in this proposed rule.
70.3 Written plan for reporting of deaths or illness on board flights and designation of an airline agent. The first year in which the plan is required after the final rule takes effect imposes the largest burden. However, the time to assemble the initial plan is expected to be minimal as airlines are already required to have these procedures in place under the current regulation. In subsequent years, airlines are required to annually review the plan and make revisions as necessary. Airlines are also required to conduct drills or exercises to annually test and evaluate the effectiveness of the plan. Any revisions as a result of the annual review or the drills or exercises must be submitted to the Director.
70.4 Passenger information. This is a new requirement for any airline operating flights in interstate traffic to collect certain information, including name and best contact information, from passengers arriving in or departing from any of the airports listed in Appendix A. This information will be used to notify passengers in case of exposure to a communicable disease. CDC recognizes that other federal agencies—in particular the Department of Homeland Security—currently collects some of the information that CDC is requesting in the proposed rule. To that end, CDC and DHS are exploring options to reduce the potential burden of dual reporting.
70.5 Written plan for passenger information and designation of an airline agent. The burden for this section is greatest in the first year. In subsequent years, airlines are required to annually review the plan and make revisions as necessary. Airlines are also required to conduct drills or exercises to annually test and evaluate the effectiveness of the plan. Any revisions as a result of the annual review or the drills or exercises must be submitted to the Director.
70.19(b) Medical examination and monitoring. Persons believed to be in the qualifying stage of a quarantinable disease may be asked to provide the Director with information related to familial and social contacts, travel itinerary, medical history, place of work, and vaccination status.
Under OMB control number 0920-0134, the following sections will be modified: 71.6 and 71.8. These reporting requirements currently fall under 71.21.
New reporting and recordkeeping requirements proposed to be added to 0920-0134 include: 71.7 Written plan for reporting of deaths or illness on board ships and designation of an airline agent; 71.9 Written plan for reporting of deaths or illness on board ships and designation of a shipline agent; 71.10 Passenger information; 71.11 Written plan for passenger information and designation of an airline or shipline agent; and, 71.22 Medical examination and monitoring.
Currently, 42 CFR Part 71 comprises the following citations that require reporting or recordkeeping:
42 CFR 71.21 Radio report of death and illness.
42 CFR 71.33(c) Report of persons held in isolation or surveillance.
42 CFR 71.35 Report of death or illness on carrier during stay in port.
42 CFR 71.51(b)(3) and (d) Requirements for admission of dogs and cats.
42 CFR 71.52(d) Application for permits to import turtles.
42 CFR 71.53(d) and (e) Requirements for registered importers of nonhuman primates.
The proposed rule modifies these recordkeeping and reporting requirements as follows:
71.6 Reports of death or illness on board flights and 71.8 Report of death or illness on board ships. These requirements clarify the current section 71.21 Radio report of death and illness.
71.7 Written plan for reporting of deaths or illness on board flights and designation of an airline agent and 71.9 Written plan for reporting of deaths or illness on board ships and designation of a shipline's agent. These requirements are comparable to requirements in Sections 70.3.
71.10 Passenger information. This requirement applies to any airline operating flights or shipline operating ships on an international voyage destined for a U.S. port and contains reporting requirements comparable to 70.4.
71.11 Written plan for passenger information and designation of an airline or shipline agent. This requirement is comparable to requirements found in 70.5.
71.22 Medical examination and monitoring. This section contains reporting requirements comparable to 70.19.
The reporting and recordkeeping requirements in § 71.51, 71.52, and 71.53 do not change in this proposed rule.
Our estimates are based on experience to date with current recordkeeping and reporting requirements of 42 CFR Parts 70 and 71. In addition, the estimate for proposed new reporting requirements at 70.4 Passenger Information is based on statistics from the Bureau of Transportation Statistics showing passengers carried by airlines affected by the rule for the period July 1, 2003-June 30, 2004. The number of passengers on domestic flights for this period was estimated to be 556.8 million; this number was reduced by 50% based on quarterly calculations from mid 2003 to mid 2004, which consistently showed that about 54% of domestic flights contained trip segments of 1.85 on average (i.e., an adjustment was made for the fact that about half of all domestic travel includes one or more connecting flights). Estimates for reporting requirements at 71.10 Passenger information were also obtained from the Bureau of Transportation Statistics (for international airline passengers) and from available data for U.S. cruise lines. An estimated 142,213,640 passengers on airlines and shiplines will report information under 71.10.
A detailed analysis of the costs to the airline and shipline industries for the reporting and recordkeeping requirements of this propose rule, including the opportunity costs to passengers providing this information, can be found under Part VI of this NPRM.
The Director has determined that provisions amending 42 CFR Parts 70 and 71 will not have a significant impact on the human environment.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (published at 65 FR 67249 on November 9, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations and other policy statements or actions that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”
This proposed rule will have a substantial direct effect as defined by the Executive Order requiring consultation with Tribal representatives and an analysis of Tribal impacts.
Current federal law (42 U.S.C. 243, 264) gives the Secretary of Health and Human Services (HHS) the authority to implement disease control measures in situations that could impact interstate commerce, including quarantine of persons suspected of carrying certain communicable diseases who are (1) traveling from one state to another or (2) likely to infect others traveling from one state to another. The Secretary has delegated this statutory authority to the Director. Under current law (25 U.S.C. 198, 231, 2001), the Secretary, acting through the IHS Director, also has the authority to implement disease control measures, such as quarantine, in Indian country, if necessary. There are currently no federal regulations that implement the IHS Director's statutory authority to quarantine persons with communicable diseases.
The federal regulations that implement CDC's statutory authorities for communicable disease control are in the Code of Federal Regulations, 42 CFR Parts 70 and 71. These regulations implement CDC's existing statutory authority to detain and/or quarantine persons suspected of carrying certain communicable diseases that pose a threat to the public's health. CDC's authority to quarantine persons extends only to the communicable diseases listed in an Executive Order of the President, including cholera, diphtheria, tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, SARS, and influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic.
Under proposed section 70.24, Tribal health authorities will be able to ask the Director for assistance to prevent the spread of communicable diseases from State to State. Under proposed section 70.25, the Director may determine that the measures taken by a Tribe are inadequate to prevent the spread of communicable diseases. Under the proposed section 70.27, the Director, with the concurrence of the of the IHS Director and after consulting with the affected Tribe, may impose provisional quarantine under 70.14-70.15, quarantine under 70.16-70.18, 70.20 and medical examination and monitoring under 70.19 in Indian country. The Director may act under this section without making a finding that the person or group of persons is moving or about to move from a State to another State or is a probable source of infection to persons who will be moving from a State to another State.
Furthermore, under Section 70.27, subsection (d), the Director, with the concurrence of the Director of the Indian Health Service and after consulting with the affected Tribe or Tribes may authorize agents and employees of any State government to enter Indian country for the sole purpose of enforcing federal quarantine rules and regulations. This authority is subject to any rules or regulations the Director of the Indian Health Service may choose to promulgate under 25 U.S.C. 231. This section is intended to implement provisions appearing in 25 U.S.C. 198 and 231, 25 U.S.C. 1661, and 42 U.S.C. 2001.
Pursuant to 25 U.S.C. 198, the Secretary of the Interior may quarantine Native Americans on Tribal lands for “tuberculosis, trachoma, or other contagious or infectious disease.” Under 25 U.S.C. 231, the Secretary of the Interior may also permit State agents and employees to enter upon Tribal lands for purposes of making inspection of health and educational conditions and enforcing sanitation and quarantine regulations. All Indian health programs and functions were transferred from the Secretary of the Interior to the Secretary of HHS by 42 U.S.C. 2001, and delegated to the Director of IHS by 25 U.S.C. 1661. The authority found in 25 U.S.C. 198 and 231 supplements the Director's authority under section 361 of the PHS Act (42 U.S.C. 264). Any action the Director takes under these sections must be in concurrence with the Director of the Indian Health Service after consultation with the affected Tribe or Tribes. CDC's Division of Global Migration and Quarantine has technical expertise in quarantine. Such cooperation between the Indian Health Service and the CDC would potentially streamline operations and clarify procedures regarding quarantine on Tribal lands.
Furthermore Indian Tribes, like States, are sovereign entities with police power authority to enact their own quarantine rules and regulations. Thus, Tribal governments are able to enforce any Tribal quarantine law to the extent that such laws exist. The proposed rule would not preempt the enactment of Tribal quarantine rules and regulations, to the extent that such Tribal laws do not conflict with the exercise of federal quarantine law under the proposed rule.
Tribal participation in and support of planned revisions of regulations governing the control of communicable diseases is critical. HHS Tribal Consultation Policy calls for a tribal impact statement and appropriate
Under Executive Order 12630, if the contemplated rule would require a Federal taking of private property, then a takings analysis is required. The agency must address the merits of the rule and the implications for constitutionally protected property rights.
The Fifth Amendment to the United States Constitution prohibits the taking of private property for public use without just compensation. Though courts may find that a per se taking has occurred due to government action requiring a property owner to sacrifice “all economically beneficial use” of the property
Section 361(a) of the PHS Act (42 U.S.C. 264(a)) provides that in carrying out regulations the Secretary “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.” This authority was carried out in the preexisting rule in § 71.32(b), which authorized the Director to require the application of a variety of measures (detention, disinfection, disinfestations, fumigation, and other related measures) whenever the Director had reason to believe that an arriving carrier or any article or thing on board the carrier may be infected or contaminated with a communicable disease. Furthermore, under preexisting § 71.31(b), the Director could require the detention of the carrier until the completion of such measures. This authority is carried forward in the proposed rule in § 71.13 (Sanitary measures) and 71.14 (detention of carriers). The proposed rule also makes these requirements applicable to carriers affecting interstate commerce or things on board such carriers in § 70.11 (Sanitary measures). These sections clarify that the expense of applying sanitary measures are borne by the affected carrier or, in the case of things on board the carrier, expenses are borne by the owners.
Thus, the character of regulatory actions that would be taken under the proposed regulation is most accurately characterized as protection of the public health in the form of avoidance of the introduction, transmission or spread of infectious disease. Owners of property posing a threat of introduction, transmission or spread of infectious disease cannot have a reasonable investment-backed expectation that their property should move freely while posing such a threat.
The Director's use of these regulations must, of course, be reasonable and based on the judgment that such steps are necessary to prevent the introduction, transmission or spread of communicable diseases. On the facts of a particular case, a court could ultimately find that the Director's belief was unreasonable, the steps taken were unnecessary, a nuisance did not exist, and a taking therefore occurred. Proper use, however, of the “reasonable belief” and “necessity” provisions contained in the proposed regulation would result in a finding of “no taking” under the requisite analysis.
Under Executive Order 13132, if the contemplated rule would limit or preempt State authorities, then a Federalism analysis is required. The agency must consult with State and local officials to determine whether the rule would have a substantial direct effect on State or local governments, as well as whether it would either preempt State law or impose a substantial direct cost of compliance on them.
Section 361(e) of the PHS Act (42 U.S.C. 264(e)) provides that “[n]othing in this section or Section 266 of this title [relating to special quarantine powers in time of war], or the regulations promulgated under such sections, may be construed as superseding any provision under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or Section 266 of this title.” The proposed rule is consistent with this statutory provision.
Through numerous forums such as conferences, tabletop exercises, response efforts, and meetings, CDC has consulted with state and local public health officials and health-care providers about the appropriate role of the federal government in exercising public health powers such as those described in the proposed rule. CDC seeks to continue this consultation through solicitation of comments from
HHS is required by Executive Order 13211 to produce a statement of energy effects if the proposed rule is significant or economically significant and likely to have a significant adverse effect on the supply, distribution, or use of energy. HHS has determined that the proposed rule does not have that effect and that a statement of energy is therefore not required.
This Act, 15 U.S.C. 272, requires adoption of technical standards developed or adopted by voluntary consensus standard bodies in rules promulgated by HHS. No voluntary consensus standards are applicable and feasible with regard to the proposed rule.
Title 5 U.S.C. 601 requires agencies to determine whether a proposed rule would affect family well-being. Section 70.7 of the proposed regulation makes parents or guardians responsible for obtaining travel permits prior to procuring transportation for children or wards known by the parents or guardians to be in the qualifying stage of a communicable disease. While the proposed provision undoubtedly places responsibility on parents and guardians, it would be unreasonable to conclude that this responsibility adversely affects family well-being, particularly in view of the beneficial effects on families and the population as a whole associated with preventing the spread of infectious disease.
HHS has completed the required reviews and has determined that the proposed rule meets the standards in Executive Order 12988. The preemptive effect of the rule is explained in section VII.F., Federalism, above. The rule has no retroactive effect. With respect to administrative hearings, the rule allows persons or groups of persons made subject to a quarantine order to request a hearing to dispute the genuine and substantial issues of fact. The rule clearly states that the quarantine order is not final until the Director approves or rejects the hearing officer's recommendation, or 3 business days after the request for hearing is made.
Executive Order 12866 requires each agency to write all rules in plain language. We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Jennifer Brooks at the address listed above.
CDC solicits comments on various issues specifically identified in the preamble as well as any other issues that are relevant to the proposed regulation. Specifically, CDC solicits information, data, and comment on the following topics:
• Whether the time frames to develop and submit the plans described in following sections are sufficient. and, if it is not, what are the difficulties in meeting each of these schedules:
• In addition to soliciting comment on relative merits of the fully analyzed alternative options presented in Section VI, CDC also solicits comment on regulatory options that may fall outside the scope of the options analyzed in the regulatory impact analysis, including but not limited to the scope of the passenger information collected and the extent of the coverage of interstate travel.
• The most efficient means of collecting accurate passenger contact information, particularly from airlines and passengers:
○ § 70.4 Passenger information
○ § 71.10 Passenger information
• The economic analysis in this proposal, including the estimated costs.
• The paperwork reduction analysis, including the accuracy of the burden estimates and the practical utility of the data.
• The estimated costs based on the assumption that data collection efforts could be coordinated with contemporary rulemaking efforts by other Federal agencies.
• Whether the rule, particularly those sections pertaining to quarantine, hearings, and appeals (§§ 70.14-70.20; 70.31; 71.17-71.23; 71.33), provide adequate due process to individuals and entities that may be affected by them.
Communicable diseases, Public health, Quarantine, Reporting and recordkeeping requirements, Travel restrictions.
Airports, Animals, Communicable diseases, Harbors, Imports, Pesticides and pests, Public health, Quarantine, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, we propose to amend 42 CFR Parts 70 and 71 to read as follows:
1. Part 70 is revised to read as follows:
25 U.S.C. 198, 231, and 1661; 42 U.S.C. 243, 248, 249, 264-272, and 2001.
(a) The purpose of this part is to prevent the introduction, transmission, and spread of communicable diseases from one State into any other State. Regulations to prevent the spread of disease from foreign countries into the States are contained in 42 CFR Part 71. Except where otherwise indicated, regulations to prevent the spread of disease among possessions of the United States or from a possession into a State are contained in 42 CFR Part 71.
(b) As used in this part, the terms listed below in alphabetical order shall have the following meanings:
(i) The full name (first, last, middle initial, suffix) of the person or business name of the entity;
(ii) The permanent address; and
(iii) A phone number (either home, work, or mobile).
(i) Has a temperature of 100.4° F (or 38° C) or greater accompanied by one or more of the following: Rash, swelling of the lymph nodes or glands, headache with neck stiffness, or changes in level of consciousness or cognitive function; or
(ii) Has a temperature of 100.4° F (or 38° C) or greater that has persisted for more than 48 hours; or
(iii) Has diarrhea, defined as the occurrence in a 24-hour period of three or more loose stools or of stools in an amount greater than normal (for the person); or
(iv) Has one or more of the following: Severe bleeding, jaundice, or severe, persistent cough accompanied by bloody sputum, respiratory distress, or a temperature of 100.4° F (or 38° C) or greater; or
(v) Displays other symptoms or factors that are suggestive of communicable disease, which the Director may describe in an order as the Director determines necessary.
(i) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;
(ii) All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and
(iii) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(i) The movement of any carrier or the transportation of persons or property, including any portion of such movement or transportation that is entirely within a State—
(A) From a point of origin in any State to a point of destination in any other State; or
(B) Between a point of origin and a point of destination in the same State but through any contiguous State or foreign country.
(ii) Interstate traffic does not include the following:
(A) The movement of any carrier or the transportation of persons or property on an international voyage as defined in 42 CFR Part 71; or
(B) The movement of any carrier which is solely for the purpose of its repair, reconstruction, rehabilitation, or storage.
(i) Any disease event as determined by the Director with either documented or significant potential for regional, national, or international disease spread or with actual or potential interference with the free movement of people or goods between States and possessions within the United States or other countries or sovereignties; or
(ii) Any disease event designated as a public health emergency by the Secretary pursuant to section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)).
(i) A communicable stage of the disease; or
(ii) A precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other persons.
(i) When applied to carriers, animals, articles, or things: Detention; destruction of animals, articles, or things that the Director deems to be sources of dangerous infection to human beings; disinfection; disinfestations; disinsection; fumigation; pest extermination; seizure; or any other measure or combination of measures, whether voluntary or involuntary, that the Director deems necessary or desirable to prevent the introduction, transmission, or spread of communicable diseases; or
(ii) When applied to a person or group of persons, the killing of infectious agents (or vectors capable of conveying infectious agents) outside the body by direct exposure to any chemical, physical, or other process designed to destroy such infectious agents.
(a) Any airline operating flights in interstate traffic shall, pursuant to the written plan required under § 70.3, report any deaths or ill persons that occur on board to the Director as soon as such occurrences are made known to the aircraft commander and, where possible, at least one hour before arrival.
(b) The Director, whenever necessary for purposes of preventing the introduction, transmission or spread of communicable diseases, may order airlines operating a flight in interstate traffic to disseminate to passengers and crew public health notices, recommended public health measures, and other public health information. Such information shall be disseminated at the time and in a manner specified in the Director's order.
(a) Within 90 days of the final publication of this rule, any airline operating flights in interstate traffic shall develop a written plan sufficient to ensure reporting of deaths or illness on board flights as required by § 70.2.
(b) The written plan shall include the full name (i.e., first, last, middle initial, suffix), official title, business telephone number, and e-mail address (if available), of an airline agent who shall serve as a point of contact between the Director and the airline concerning reports of deaths or ill persons.
(c) The written plan shall include policies and procedures necessary to facilitate communication between the Director and the airline agent on a 24-hour basis, 7 days a week.
(d) Within 90 days of the final publication of this rule, a copy of the written plan shall be submitted to the Director.
(e) Airlines shall implement the written plan within 180 days of the final publication of this rule.
(f) Airlines shall review the written plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the airline has reported ill passengers or deaths on board a flight under § 70.2 in the prior 365 days. Airlines shall revise the plan as necessary after any review. Any revisions of the written plan shall be submitted to the Director within 60 days.
(g) Airlines that intend to commence operation of flights in interstate traffic after the effective date in paragraph (a) of this section shall submit a written plan meeting the requirements of this section to the Director before commencing operations. The airline shall implement the written plan by the later of the two following dates: Either 180 days after the final publication of this rule, or upon commencement of operations.
(a) Any airline operating flights in interstate traffic shall, pursuant to the written plan required under § 70.5, solicit from each passenger (or head of household if the passenger is a minor) and crewmember traveling on those flights in interstate traffic arriving in or departing from any of the airports listed in Appendix A the information contained in the data fields specified in paragraph (e) of this section.
(b) Any information obtained by the airline pursuant to paragraph (a) in this section shall be maintained by the airline in an electronic database for 60 days from the end of the flight.
(c) For each passenger (or head of household if the passenger is a minor) and crewmember traveling on an interstate flight, the airline may solicit the information in paragraph (e) of this section from such person's authorized agent.
(d) Within 12 hours of a request by the Director to the airline's agent, the airline, pursuant to the written plan under § 70.5, shall transmit to the Director in an electronic format the data fields specified in paragraph (e) of this section.
(e) The data fields as applicable to the individual passenger (or head of household if the passenger is a minor) or crewmember, shall include the following:
(1) Full name (first, last, middle initial, suffix);
(2) Emergency contact information;
(3) E-mail address;
(4) Current home address (street, apartment #, city, state/province, postal code);
(5) Passport number or travel document number, including the issuing country or organization (in the case of foreign nationals only);
(6) Names of traveling companions or group;
(7) Flight information;
(8) Returning flight (date, airline number, and flight number);
(9) At least one of the following current phone numbers (in order of preference): mobile, home, pager, or work.
(f) In addition to data fields specified in paragraph (e) of this section, when necessary to prevent the introduction, transmission, or spread of communicable diseases, the Director through order may also require that airlines transmit additional information in the airline's possession.
(g) Information collected solely in order to comply with this regulation may only be used for the purposes for which it is collected.
(h) Airlines shall ensure that passengers are informed of the purposes of this information collection at the time passengers arrange their travel.
(a) Within six months of the final publication of this rule, any airline operating flights in interstate traffic shall develop a written plan sufficient to ensure transmission of passenger and crew information for those flights in interstate traffic arriving in or departing from any of the airports listed in appendix A to part 70 as required by § 70.4.
(b) The written plan shall include:
(1) Policies and procedures for the transmission of data in an electronic format available to both the airline and the Director using industry standards for data encoding, transmission, and security;
(2) Policies and procedures for the transmission of the data within 12 hours of a request by the Director to the airline's agent;
(3) The full name (
(4) Policies and procedures necessary to facilitate communication between the Director and the airline's agent on a 24-hour basis, 7 days a week;
(5) Policies and procedures for soliciting the information contained in the data fields required by § 70.4(e) from the passenger (or head of household if the passenger is a minor), crewmember, or such persons' authorized agent; and
(6) Policies and procedures for maintaining responsive information obtained by the airline in an electronic database for 60 days from the end of the flight as required by § 70.4(b).
(c) Within six months of the final publication of this rule, a copy of the written plan shall be submitted to the Director.
(d) Airlines shall implement the written plan within 2 years of the final publication date of this rule. Within 60 days of implementation, airlines shall conduct drills or exercises to test and evaluate the effectiveness of the written plan and revise the plan as necessary after any drill or exercise. Any revisions of the written plan shall be submitted to the Director within 60 days.
(e) Airlines shall review the written plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the airline has transmitted passenger and crewmember information under § 70.4 in the prior 365 days. Airlines shall revise the plan as necessary after any review. Any revisions of the written plan shall be submitted to the Director within 60 days.
(f) Airlines that intend to commence operation of flights in interstate traffic arriving in or departing from any of the airports listed in appendix A to part 70 after the effective date in paragraph (a) of this section shall submit a written plan meeting the requirements of this section to the Director before commencing operations. The airline shall implement the written plan by the later of the two following dates: either 2 years after the final publication of this rule, or upon commencement of operations.
(g) Pending the development or implementation of the written plan as required by this section, the Director, through order, may require that airlines transmit to the Director, in a format available to both the airline and the Director, any of the information required by § 70.4 that may be in the airline's possession.
(a) The operator of any carrier operating in interstate traffic or moving from one state or possession into another shall not:
(1) Accept for transportation any person whom the operator knows to be in the qualifying stage of a quarantinable disease, unless such person presents a permit issued by the Director authorizing such travel; or
(2) Transport any person whom the operator knows to be in the qualifying stage of a quarantinable disease in violation of any of the terms or conditions prescribed in the travel permit issued by the Director.
(b) Whenever a carrier operating in interstate traffic or moving from one state or possession into another transports a person who is in the qualifying stage of a quarantinable disease bearing a travel permit issued by the Director, the operator of the carrier shall take such measures to prevent the spread of the disease, including submission of the carrier to inspection, sanitary measures and the like, as the Director deems necessary.
(c) Requirements relating to travelers who know that they are in the qualifying stage of a quarantinable disease:
(1) No such person shall travel in interstate traffic or from one state or possession to another without a written permit of the Director.
(2) Application for a permit authorizing travel may be made directly to the Director.
(3) Upon receipt of an application, the Director, taking into consideration the risk of introduction, transmission, or spread of the disease in interstate traffic or from one state or possession into another, shall reject it or issue a permit that may be conditioned upon compliance with such precautionary measures as the Director shall prescribe.
(4) A person to whom a permit has been issued shall retain it in his/her possession throughout the course of his/her authorized travel and comply with all conditions prescribed therein, including presentation of the permit to the operators of carriers, as required by its terms.
(5) A person who has had his/her request for a permit denied may submit a written appeal in accordance with § 70.31.
(d) The Director may additionally apply the provisions in paragraphs (a) through (c) of this section to persons and carriers traveling entirely within a state or possession whenever the Director determines that such person's travel or the carrier's operations will have an effect on interstate commerce upon the request of a health authority in accordance with § 70.24 or whenever the Director, with the concurrence of the Secretary, makes a determination of
(a) A parent, guardian, physician, nurse, or other such person shall not transport, nor procure or furnish transportation for any minor child or ward, patient or other such person whom they know to be in the qualifying stage of a quarantinable disease, without a travel permit issued by the Director if such a permit is required under this part.
(b) A parent, guardian, physician, nurse, or other such person who has had his/her request for a permit denied may submit a written appeal in accordance with § 70.31.
(a) The Director may exempt carriers belonging to the military services from § 70.6(a) and §§ 70.11 and 70.12, provided that such carriers take adequate sanitary measures to prevent the introduction, transmission, and spread of communicable diseases.
(b) The requirements of §§ 70.6(c) and 70.7 shall not apply to members of the military service or Public Health Service, or to the medical care or hospital beneficiaries of the military service, Department of Veterans Affairs, or Public Health Service, provided that:
(1) Such persons are traveling on military carriers under competent orders; and
(2) The person authorizing the travel on a military carrier has taken public health measures consistent with those prescribed by the Director to prevent the introduction, transmission, or spread of quarantinable diseases during the travel period.
(a) The Director may establish vaccination clinics, through contract or otherwise, authorized to issue certificates of vaccination and administer vaccines and/or other prophylaxis. When authorized by the Director, certificates of vaccination may be issued and authenticated by electronic means.
(b) A vaccination clinic established by the Director shall collect and maintain, for such time as determined by the Director, the following information from vaccine recipients:
(1) Gender;
(2) Age;
(3) Vaccination date;
(4) Vaccine lot number;
(5) Prior vaccinations;
(6) Reason for vaccination (
(7) Concurrent vaccinations;
(8) Vaccine Adverse Events Reporting System Report/Adverse Event Report Number; and
(9) Verification that the vaccine conferred immunity (if applicable).
(c) In addition to the requirements in paragraph (b) of this section, a vaccination clinic established by the Director shall comply with such additional recordkeeping requirements and other instructions that the Director may issue for the safe administration, handling, monitoring, and storage of vaccines.
(d) In the event of a public health emergency, the Director may waive or modify any of the requirements in paragraph (b) of this section.
(e) A vaccination fee may be charged for individuals not enrolled in Medicare Part B to cover costs associated with administration of the vaccine and/or other prophylaxis. Such fee is to be collected at the time that the vaccine is administered. The vaccination fee, if imposed, is shown in the following table:
(a) The Director, with the approval of the Secretary, may, from time to time, select sites suitable for, and establish such institutions, hospitals, and stations in the States and possessions of the United States as the Director, with the approval of the Secretary, deems necessary or desirable for carrying out the functions in this part.
(b) The Director may enter into voluntary agreements with public or private institutions as the Director deems necessary or desirable for carrying out the functions in this part.
(a) Whenever the Director reasonably believes that any carrier affecting interstate commerce, or animal, article, or thing on board such carrier is or may be infected or contaminated with a communicable disease, the Director, may, in consultation with other federal agencies as appropriate:
(1) Inspect the carrier, animal, article, or thing on board the carrier, and/or
(2) Order the carrier, or other entity specified in the order, to apply such sanitary measures as the Director deems necessary to prevent the introduction, transmission, or spread of communicable diseases.
(b) CDC shall not bear the expense of any sanitary measures required or ordered by the Director. The carrier or other entity specified in the order issued pursuant to 70.11(a) shall bear the responsibility for the application of such measures.
(c) Sections 70.11(a) and 70.11(b) shall not preclude any entity ordered to conduct sanitary measures pursuant to § 70.11(a) from arranging to have such measures conducted by other entities through contractual or other arrangements, or from seeking reimbursement for any costs associated with sanitary measures through contractual or other arrangements.
(d) The Director may apply such sanitary measures to persons who are not in the qualifying stage of a quarantinable disease, with their consent, as may be required to destroy the presence of infectious agents or vectors.
(a) The Director whenever necessary to prevent the introduction, transmission, or spread of communicable diseases and in consultation with such other federal agencies as the Director deems necessary may require the detention of any carrier affecting interstate commerce and all animals, articles, or things onboard the carrier until the completion of the measures outlined in this part.
(b) CDC shall not bear any expenses relating to the detention of the carrier; or any associated expenses related to animals, articles, or things on board the carrier.
(c) Section 70.12(b) shall not preclude any entity from seeking reimbursement for any costs associated with detention of a carrier pursuant to section 70.12(a) through contractual arrangements or other available means from entities other than the CDC.
The Director may, at airports or other locations, conduct screenings of persons or groups of persons to detect the presence of ill persons. Such screenings may be conducted through visual inspection, electronic temperature monitors, or other means determined appropriate by the Director to detect the presence of ill persons.
(a) The Director may provisionally quarantine a person or group of persons who the Director reasonably believes to
(1) Moving or about to move from one State to another State; or
(2) A probable source of infection to persons who will be moving from a State to another State.
(b) Provisional quarantine shall commence upon:
(1) The service of a written provisional quarantine order;
(2) A verbal provisional quarantine order; or
(3) Actual movement restrictions placed on the person or group of persons.
(c) Provisional quarantine shall end three business days after provisional quarantine commences, except that the person or group of persons shall be released earlier if the Director determines that provisional quarantine is no longer warranted.
(d) In the event that the Director determines that it is necessary to provisionally quarantine a person or group of persons beyond three business days, then the Director shall serve the person or group of persons with a written quarantine order in accordance with this part.
(e) A person or group of persons subject to provisional quarantine may be offered medical treatment, prophylaxis, or vaccination, as the Director deems necessary to prevent the introduction, transmission or spread of the disease; such persons may refuse such medical treatment, prophylaxis, or vaccination, but remain subject to provisional quarantine.
(f) Nothing in this section shall be construed to limit the Director's ability to detain a person or group of persons on a voluntary basis or to offer such persons medical treatment, prophylaxis, or vaccination on a voluntary basis.
(a) Provisional quarantine orders shall be served by the Director:
(1) At the time that provisional quarantine commences; or
(2) As soon thereafter as the Director determines that the circumstances reasonably permit.
(b) Provisional quarantine orders shall be served either through personal service or, in circumstances where the Director deems it necessary by posting or publishing the order in a conspicuous location.
(c) In circumstances where the Director deems public posting or publishing necessary, the Director may omit the names and/or identities of persons and take other measures respecting the privacy of persons.
(d) The provisional quarantine order shall be in writing, signed by the Director, and include the following information:
(1) A statement regarding the basis for the Director's reasonable belief that the person or group of persons is in the qualifying stage of a quarantinable disease based on information available to the Director at the time, such as travel history, clinical manifestations, or any other evidence of infection or exposure;
(2) A statement setting forth the Director's reasonable belief that either:
(i) The person or group of persons is moving or about to move from a State to another State; or
(ii) A probable source of infection to persons who will be moving from a State to another State;
(3) The suspected quarantinable disease;
(4) A statement advising the person or group or persons that they may be under provisional quarantine for three business days and that at the end of such period they shall be released or, if determined by the Director, served with a quarantine order;
(5) A statement advising the person or group of persons that they may be released earlier if the Director determines that provisional quarantine is no longer warranted;
(6) The location of provisional quarantine;
(e) When authorized by the Director, provisional quarantine orders may be issued and signed by electronic means.
(a) The Director may issue a quarantine order whenever the Director reasonably believes that:
(1) A person or group of persons are in the qualifying stage of a quarantinable disease based on, but not limited to, any of the following: clinical manifestations, diagnostic tests or other medical tests, epidemiologic information, laboratory tests, physical examination, or other evidence of exposure or infection available to the Director at the time; and either
(2) Moving or about to move from a State to another State; or
(3) A probable source of infection to persons who will be moving from a State to another State.
(b) In accordance with the Director's quarantine order, the Director may offer medical treatment, prophylaxis, or vaccination, as the Director deems necessary to prevent the introduction, transmission, or spread of the disease.
(c) Persons offered medical treatment, prophylaxis, or vaccination may refuse, but remain subject to quarantine.
(d) The Director's quarantine order may include the quarantine of a person or group of persons who refuse examination, medical treatment, prophylaxis, or vaccination, or for whom the Director determines that such examination, medical treatment, prophylaxis, or vaccination is medically contra-indicated or not reasonably available.
(e) The length of quarantine shall not exceed the period of incubation and communicability, as determined by the Director, for the quarantinable disease.
(f) Nothing in this section shall be construed to limit the Director's ability to quarantine a person or group of persons on a voluntary basis.
(a) Quarantine orders shall be in writing, signed by the Director, and contain the following:
(1) The identity of the person or group of persons to be quarantined, if known;
(2) The location where such person or group of persons will be quarantined;
(3) The date and time at which quarantine commences and ends;
(4) The suspected quarantinable disease;
(5) A statement that the Director reasonably believes that:
(i) The person or group of persons are in the qualifying stage of a quarantinable disease; and that either
(ii) The person or group of persons will move or are about to move from one State to another State; or
(iii) The person or group of persons are a probable source of infection to persons who will be moving from a State to another State;
(6) A statement regarding the basis for the Director's reasonable belief that such person or group of persons are in the qualifying stage of a quarantinable disease,
(7) A statement that such persons shall comply with conditions of quarantine, including, but not limited to, examination, medical monitoring, medical treatment, prophylaxis, or vaccination, or other conditions of quarantine deemed by the Director to be necessary to prevent the introduction, transmission or spread of communicable disease;
(8) A statement that such persons may refuse examination, medical monitoring, medical treatment, prophylaxis, or vaccination, but remain subject to quarantine; and
(9) A statement that persons under quarantine, any time while the quarantine order is in effect, may request that the Director hold a hearing to review the quarantine order.
(b) When authorized by the Director, quarantine orders may be issued and signed by electronic means.
(a) A copy of the quarantine order shall be personally served on the person or group of persons at the time that quarantine commences or as soon thereafter as the Director determines that the circumstances reasonably permit.
(b) In circumstances where the Director deems it necessary, the quarantine order may be posted or published in a conspicuous location, except that the Director may omit the names and/or identities of persons and take other measures respecting the privacy of persons.
(a) The Director may order medical examination or monitoring of a person or group of persons that the Director reasonably believes to be in the qualifying stage of a quarantinable disease and:
(1) Moving or about to move from one State to another State; or
(2) A probable source of infection to persons who will be moving from a State to another State.
(b) Persons subject to medical examination or monitoring shall provide the Director with such information as the Director may order, including, but not limited to, familial and social contacts, travel itinerary, medical history, place of work, and vaccination status.
(c) Persons subject to medical monitoring shall report for such further medical examinations and comply with other conditions of monitoring as the Director orders.
(d) Persons may refuse medical examination or monitoring, but remain subject to provisional quarantine or quarantine, provided that if quarantined such persons may request a hearing in accordance with § 70.20.
(e) Nothing in this section shall be construed to limit the Director's ability to conduct medical examinations or place persons under medical monitoring on a voluntary basis or from engaging in other methods of voluntary disease surveillance.
(a) Upon the request of a person or group of persons under quarantine, at any time while the quarantine order is in effect, the Director shall hold a hearing to review the quarantine order within one business day of the request.
(b) Requests for a hearing by a person or group of persons under quarantine shall be limited to genuine and substantial issues of fact in dispute.
(c) The Director shall provide notice of the hearing to the person or group of persons under quarantine through any method that the Director determines to be reasonably designed to notify the person or group of persons that such a hearing has been scheduled.
(d) The Director shall designate a hearing officer to review the medical or other evidence of exposure or infection available to the Director and make findings as to which person or group of persons are in the qualifying stage of a quarantinable disease and recommendations concerning which person or group of persons should be released or remain in quarantine.
(e) A person or group of persons in quarantine may authorize a representative to submit evidence concerning whether the person or group is in the qualifying stage of a quarantinable disease;
(f) The Director shall take such measures that the Director determines to be reasonably necessary to allow a person or group of persons in quarantine to communicate with their authorized representatives. Such measures, for example, may include the establishment of video-conferencing facilities, e-mail terminals, telephone or cellular phone services, and other similar devices or technologies.
(g) The hearing officer may order a medical examination of the person or group of persons in quarantine when, in the hearing officer's judgment, such a medical examination would aid in the determination of whether the person or group of persons are in the qualifying stage of a quarantinable disease, provided that such persons may refuse such examination.
(h) The hearing officer shall, based upon his or her review of the evidence of exposure or infection made available to the hearing officer, make findings and a written recommendation to the Director as to which, if any, person or group of persons should be released or remain in quarantine.
(i) The Director, based upon the hearing officer's findings and written recommendation and the administrative record shall within one business day after the conclusion of the hearing order the release or continued quarantine of the person or group of persons in quarantine.
(j) The Director may issue additional instructions and guidelines as the Director deems necessary governing the conduct of hearings.
(k) The quarantine order shall be deemed final either when the Director has accepted or rejected the hearing officer's written recommendation or three business days after the request for a hearing, whichever comes first.
(a) Persons subject to medical examination and monitoring, provisional quarantine, or quarantine in accordance with this part may receive care and treatment at the expense of the Director subject to paragraphs (b) through (f) of this section.
(b) Payment for such expenses shall be in Director's sole discretion and subject to the availability of appropriations.
(c) Any payment of expenses shall be secondary to the obligation of the United States or any third-party (including any State or local governmental entity, private insurance carrier, or employer), under any other law or contractual agreement, to pay for such care and treatment, and shall only be paid by the Director after all third-party payers have made payment in satisfaction of their obligations.
(d) Payment shall be limited to those amounts the hospital or medical facility would customarily bill the Medicare system using the International Classification of Diseases, Clinical Modification (ICD-CM), and relevant federal regulations promulgated by the Centers for Medicare and Medicaid Services in existence at the time of billing.
(e) For quarantinable diseases, payment shall be limited to costs for services and items reasonable and necessary for the care and treatment of the person for the time period that begins when the Director refers the person to the hospital or medical facility for treatment and ends when, as determined by the Director, the period of provisional quarantine or quarantine expires.
(f) For diseases other than those described in paragraph (e) of this section, such payment shall be limited to costs for services and items reasonable and necessary for care and treatment of the person for the time period that begins when the Director refers the person to the hospital or medical facility and ends when the person's condition is diagnosed, as determined by the Director, with a non-quarantinable disease.
(a) The Director, in consultation with the U.S. Department of State as may be necessary, shall advise a foreign national under provisional quarantine or quarantine of such person's right to have the Director notify the consular post of the foreign state of such person's
(b) When requested by the consular officer of the foreign state and in a manner that the Director determines to be practicable, the Director, in consultation with the U.S. Department of State as may be necessary, shall allow the consular officer to have access to the foreign national under provisional quarantine or quarantine for purposes of conversing and corresponding with the foreign national and arranging for the foreign national's legal representation.
(c) Any foreign national subject to provisional quarantine or quarantine shall have the same rights as provided for other persons subject to provisional quarantine or quarantine elsewhere in this part.
A person's administrative record shall, where applicable, consist of the provisional quarantine and/or quarantine order, and any medical, laboratory, epidemiologic, or other information in support thereof, evidence submitted by the person under provisional quarantine and/or quarantine, written findings and recommendation of the hearing officer, and the hearing transcript, if any, or summary notes of the hearing.
(a) The health authority of a State (including political subdivisions thereof) or Indian tribe may request that the Director take public health measures in accordance with this part and whatever further public health measures that the Director, in consultation with the health authority, deems necessary to prevent the introduction, transmission, or spread of communicable diseases.
(b) The health authority of a State (including political subdivisions thereof) or Indian tribe may request that the Director issue a provisional quarantine order or a quarantine order. Such requests shall set forth the health authority's reasonable belief that the person or group of persons to be quarantined or placed under provisional quarantine are in the qualifying stage of a quarantinable disease, and either:
(1) Moving or about to move from a State to another State; or
(2) A probable source of infection to persons who will be moving from a State to another State.
(c) Nothing in this part shall be construed to limit the ability of the Director to cooperate with or aid States and their political subdivisions or Indian Tribes in the enforcement of their quarantine rules and regulations or other health rules and regulations.
(d) The health authorities of a possession may request that the Director take whatever public health measures are applicable under this part or 42 CFR part 71 (including provisional quarantine or quarantine) and whatever further public health measures that the Director, in consultation with the health authority, deems necessary to prevent the introduction, transmission, or spread of communicable diseases.
(e) A request by a health authority under this section shall not be deemed a condition for implementation by the Director of any of the public health measures in this part, or in the case of possessions, 42 CFR part 71.
(f) The decision to undertake any of the activities requested in accordance with this section is within the sole discretion of the Director.
In addition to the public health measures in this part, whenever the Director, with the concurrence of the Secretary, determines that the measures taken by the health authorities of any State (including political subdivisions thereof), possession, or Indian Tribe are insufficient to prevent the spread of any communicable diseases from one State or possession into another, the Director may take such measures to prevent such spread of disease as the Director deems necessary including inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures.
(a) In addition to the public health measures in this part, the Director, in consultation with the affected federal agencies, may take whatever further public health measures or combination of measures the Director deems necessary with respect to facilities owned or operated by the federal government in the United States.
(b) This section does not preclude the Director from requesting the assistance of State or local authorities in implementing the regulations appearing in this part or in implementing other public health measures or combination of measures.
(a) In addition to the public health measures specified elsewhere in this part, with the concurrence of the Director of the Indian Health Service and after consulting with the affected Tribe or Tribes, the Director may impose the following public health measures with respect to persons in Indian country without making a finding that such person or group of persons are moving or about to move from a State to another State or are a probable source of infection to persons who will be moving from a State to another State:
(1) Provisional quarantine pursuant to §§ 70.14 and 70.15;
(2) Quarantine pursuant to §§ 70.16 through 70.18, 70.20; and
(3) Medical examination and monitoring pursuant to § 70.19.
(b) Any provisional quarantine, quarantine, or medical examination and monitoring authorized by paragraph (a) of this section must take place in a hospital or other place for treatment, but any person who is subject to such provisional quarantine or quarantine may refuse examination, medical monitoring, medical treatment, prophylaxis, or vaccination, but remains subject to provisional quarantine and quarantine.
(c) Any person who is the subject of a provisional quarantine order or quarantine order authorized by paragraph (a) of this section has the same rights as provided for provisional quarantine or quarantine elsewhere in this part.
(d) After consulting with the affected Tribe or Tribes, the Director may authorize the agents and employees of any State to enter Indian country for the sole purpose of enforcing federal quarantine rules and regulations if the Director of the Indian Health Service concurs (such concurrence being subject to any rules and regulations that the Director of the Indian Health Service may prescribe).
(a) In addition to the public health measures in this part, the Director, in consultation with the Secretary of the U.S. Department of Defense or his or her designee, may, in time of war and to protect the military and naval forces and war workers of the United States, impose the following public health measures with respect to persons under paragraph (b) of this section without making a finding that such person or
(1) Provisional quarantine pursuant to §§ 70.14 and 70.15;
(2) Quarantine pursuant to § 70.16 through 70.18, 70.20; and
(3) Medical examination and monitoring pursuant to § 70.19.
(b) The persons subject to paragraph (a) of this section include any person that the Director reasonably believes to be:
(1) Infected with or exposed to a quarantinable disease; and
(2) A probable source of infection to members of the military services or to individuals engaged in the production or transportation of arms, munitions, ships, food, clothing, or other supplies for the military services.
(c) Any person who is the subject of a provisional quarantine order or quarantine order authorized by subsection (a) has the same rights as provided for provisional quarantine or quarantine elsewhere in this part.
Persons in violation of this part are subject to a fine of no more than $250,000 or one year in jail, or both, or as otherwise provided by law. Violations by organizations are subject to a fine of no more than $500,000 per event or as otherwise provided by law.
The Director may implement any of the provisions in this part through order issued and signed by the Director.
(a) The following persons may submit a written appeal in accordance with paragraph (b) of this section:
(1) A person whose application for a travel permit has been denied pursuant to § 70.6;
(2) A parent, guardian, physician, nurse, or other such person whose application for a travel permit has been denied pursuant to § 70.7;
(2) The owner of animals, articles, or things to be destroyed, if the Director determines that destruction is a necessary sanitary measure pursuant to § 70.11;
(3) The owner of a carrier to be detained pursuant to § 70.12.
(b) The appeal must be in writing and be submitted to the Director within 2 business days. The appeal must state the reasons for the appeal and show that there is a genuine and substantial issue of fact in dispute. The Director will issue a written response to the appeal, which shall constitute final agency action. This opportunity for an appeal shall not preclude the Director from acting immediately to exercise actions authorized under §§ 70.6, 70.7, 70.11 or 70.12.
2. Part 71 is revised to read as follows:
42 U.S.C. 243, 248, 249, and 264-272.
(a) The purpose of this part is to prevent the introduction, transmission, and spread of communicable disease from foreign countries into the United States. This part also contains the regulations to prevent the spread of communicable disease among possessions of the United States or from a possession into a State. Regulations to prevent the interstate spread of communicable diseases are contained in 42 CFR part 70.
(b) As used in this part, the terms listed below in alphabetical order shall have the following meanings:
(i) The full name (first, last, middle initial, suffix) of the person or business name of the entity;
(ii) The permanent address; and
(iii) A phone number (either home, work, or mobile).
(i) Has a temperature of 100.4 °F (or 38 °C) or greater accompanied by one or more of the following: rash, swelling of the lymph nodes or glands, headache with neck stiffness, or changes in level of consciousness or cognitive function; or
(ii) Has a temperature of 100.4 °F (or 38 °C) or greater that has persisted for more than 48 hours; or
(iii) Has diarrhea, defined as the occurrence in a 24-hour period of three or more loose stools or of stools in an amount greater than normal (for the person); or
(iv) Has one or more of the following: severe bleeding, jaundice, or severe, persistent cough accompanied by bloody sputum, respiratory distress; or a temperature of 100.4 °F (or 38 °C) or greater; or
(v) Displays other symptoms or factors that are suggestive of communicable disease, which the Director may describe in an order as the Director determines necessary.
(i) In the case of a carrier, a voyage between ports or airports of more than one country, or a voyage between ports or airports of the same country if the ship or aircraft stopped in any other country on its voyage; or
(ii) In the case of a person, a voyage involving entry into a country other than the country in which such person begins his/her voyage.
(i) Any disease event as determined by the Director with either documented or significant potential for regional, national, or international disease spread or with actual or potential interference with the free movement of people or goods between States and possessions within the United States or other countries or sovereignties; or
(ii) Any disease event designated as a public health emergency by the Secretary pursuant to section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)).
(i) When applied to carriers, animals, articles, or things: Detention; destruction of animals, articles, or things that the Director deems to be sources of dangerous infection to human beings; disinfection; disinfestations; disinsection; export; fumigation; pest extermination; seizure; or any other measure or combination of measures whether voluntary or involuntary that the Director deems necessary to prevent the introduction, transmission, or spread of communicable diseases; or
(ii) When applied to a person or group of persons, the killing of infectious agents (or vectors capable of conveying infectious agents) outside the body by direct exposure to any chemical, physical, or other process designed to destroy such infectious agents.
(a)
(2) A designated yellow fever vaccination center shall comply with instructions issued by the Director or by an officer or employee of a health department of a State or possession to whom such responsibility has been delegated by the Director for the administration, handling, monitoring, recordkeeping, and storage of yellow fever vaccine. If a designated center fails to comply with such instruction, after notice to such center, the Director or, for non-Federal centers, a health department of a State or possession may revoke designation.
(b)
(1) The Seal of the Public Health Service;
(2) The Seal of the Department of State;
(3) The stamp of the Department of Defense;
(4) The stamp issued to the National Aeronautics and Space Administration;
(5) The stamp issued by the health department of a State or possession to whom such responsibility has been delegated by the Director; or
(6) An official stamp of a design and size approved by the Director for such purpose.
(c) When authorized by the Director, certificates of vaccination and validation stamps may be issued and authenticated by electronic means.
(a) The Director may establish vaccination clinics, through contract or otherwise, authorized to issue certificates of vaccination and administer vaccines and/or other prophylaxis.
(b) A vaccination clinic established by the Director shall collect and maintain, for such time as determined by the Director, the following information from vaccine recipients:
(1) Gender;
(2) Age;
(3) Vaccination date;
(4) Vaccine lot number;
(5) Prior vaccinations;
(6) Reason for vaccination (
(7) Concurrent vaccinations;
(8) Vaccine Adverse Events Reporting System Report/Adverse Event Report Number; and
(9) Verification that the vaccine conferred immunity (if applicable).
(c) In addition to the requirements in paragraph (b) of this section, a vaccination clinic established by the Director shall comply with such additional recordkeeping requirements and other instructions that the Director may issue for the safe administration, handling, monitoring, and storage of vaccines.
(d) In the event of a public health emergency, the Director may waive or modify any of the requirements in paragraph (b) of this section.
(e) When authorized by the Director, certificates of vaccination and validation stamps may be issued and authenticated by electronic means.
The Director, to the extent permitted by law and in consultation with such other federal agencies as the Director may deem necessary, may require a carrier at any foreign port clearing or departing for any U.S port to obtain or deliver a bill of health from a United States consular or medical officer designated for such purpose.
Whenever the Director determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease in the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons or property is required in the interest of the public health, the Director, to the extent permitted by law and in consultation with such other federal agencies as the Director may deem necessary, may prohibit, in whole or in part, the introduction of persons and property from such countries or places for such period of time as the Director may designate through order.
(a) Any airline operating flights on an international voyage destined for a U.S. port shall, pursuant to the written plan required under § 71.7, report any deaths or ill persons that occur on board to the Director as soon as such occurrences are made known to the aircraft commander and, where possible, at least one hour before arrival.
(b) The Director may order airlines operating flights on an international voyage destined for a U.S. port to disseminate to passengers and crew public health notices, recommended public health measures, and other information that the Director deems necessary for the purposes of preventing the introduction, transmission, or spread of communicable diseases. Such information shall be disseminated at the time and in a manner specified in the Director's order.
(c) The provisions of paragraphs (a) and (b) of this section shall also apply to airlines operating flights on an international voyage between airports of a possession and a State of the United States or among possessions of the United States.
(a) Within 90 days of the final publication of this rule, any airline operating flights on an international voyage destined for a U.S. port shall develop a written plan sufficient to ensure the reporting of any deaths or ill persons on board flights as required by § 71.6.
(b) The written plan shall include the full name (
(c) The written plan shall include policies and procedures necessary to facilitate communication between the Director and the airline agent on a 24-hour basis, 7 days a week.
(d) Within 90 days of final publication of this rule, copy of the written plan shall be submitted to the Director.
(e) Airlines shall implement the written plan within 180 days of the final publication of this rule.
(f) Airlines shall review the written plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the airline has reported any deaths or ill persons on board under § 71.6 in the prior 365 days. Airlines shall revise the plan as necessary after any review. Any revisions of the written plan shall be submitted to the Director within 60 days.
(g) Airlines that intend to commence operations after the effective date in paragraph (a) shall submit a written plan meeting the requirements of this section to the Director before commencing operations. The airline shall implement the written plan by the later of the following dates: either 180 days after the publication of the final rule, or upon commencement of operations.
(h) The provisions of paragraphs (a) through (g) of this section shall also apply to airlines operating flights on an international voyage between airports of a possession and a State of the United States or among possessions of the United States.
(a) Any shipline operating ships on an international voyage destined for a U.S. port shall report to the quarantine station or to another authorized representative of the Director, at or nearest the port at which the ship will arrive, the occurrence, on board, of any death or any ill person among passengers or crew as soon as such occurrences are made known to the ship's commander and, where possible, at least 24 hours before arrival.
(b) In addition to paragraph (a) of this section, the shipline, shall also report any death or any ill person among passengers or crew (including those who have disembarked or have been removed) on board ships during the 15-day period preceding the date of expected arrival at a U.S. port or during
(c) Any shipline operating ships traveling from one U.S. port to another while on an international voyage shall report immediately to the quarantine station or other authorized representative at the next port of call, station, or stop, the occurrence of any case or suspected case of a communicable disease and shall take such measures to prevent the spread of disease as the Director directs.
(d) Any shipline with ships at a U.S. port shall report immediately to the quarantine station or other authorized representative at or nearest the port the occurrence, on board, of any death or any ill person among passengers or crew during stays in port.
(e) In addition to paragraphs (a) through (d) of this section, the shipline must report to the quarantine station or other authorized representative 24 hours before a ship's arrival the number of cases (including zero) of diarrhea, febrile respiratory disease, febrile rash illness, or febrile neurologic illness in passengers and crew recorded in the ship's medical log during the current cruise. All cases of diarrhea that occur after the 24-hour report must also be reported at least 4 hours before arrival.
(f) The Director for purposes of preventing the introduction, transmission, or spread of communicable diseases may order shiplines operating ships on an international voyage destined for a U.S. port to disseminate to passengers and crew public health notices, recommended public health measures, and other public health information. Such information shall be disseminated at the time and in a manner specified in the Director's order.
(g) The provisions of paragraphs (a) through (f) of this section shall additionally apply to shiplines operating ships traveling between a possession and a State of the United States or among possessions of the United States.
(a) Within 90 days of the final publication of this rule, any shipline operating ships on an international voyage destined for a U.S. port shall develop a written plan sufficient to ensure the reporting of any deaths or ill persons as required by § 71.8.
(b) The written plan shall include the full name (i.e., first, last, middle initial, suffix), official title, business telephone number, and e-mail address (if available), of a shipline's agent who shall serve as a point of contact between the Director and the shipline concerning reports of deaths or ill persons on board ships.
(c) The written plan shall include policies and procedures necessary to facilitate communication between the Director and the shipline's agent on a 24-hour basis, 7 days a week.
(d) A copy of the written plan shall be submitted to the Director.
(e) Within 90 days of the final publication of this rule, shiplines shall implement the written plan.
(f) Shiplines shall review the written plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the shipline has reported any deaths or ill passengers under § 71.8 in the prior 365 days. Shiplines shall revise the plan as necessary after any review. Any revisions of the written plan shall be submitted to the Director within 60 days.
(g) Shiplines that intend to commence operations after the effective date in paragraph (a) of this section shall submit a written plan meeting the requirements of this section to the Director before commencing operations. The shipline shall implement a written plan by the later of the following dates: either 180 days after final publication of this rule, or upon commencement of operations.
(h) The provisions of paragraphs (a) through (g) of this section shall also apply to shiplines operating ships on an international voyage between ports of a possession of the United States or between ports of a possession and a State of the United States.
(a) Any airline operating flights or shipline operating ships on an international voyage destined for a U.S. port shall, pursuant to the written plan approved under § 71.11, solicit from each passenger (or head of household if traveling with a minor) and crewmember traveling on an international voyage destined for a U.S. port the information contained in the data fields specified in paragraph (e) of this section.
(b) Any information obtained by the airline or shipline pursuant to paragraph (a) of this section shall be maintained by the airline or shipline for 60 days from the end of the voyage.
(c) For each passenger (or head of household if traveling with a minor) and crewmember traveling on an international voyage destined for a U.S. port, the airline or shipline may solicit the information in paragraph (e) of this section from such person's authorized agent.
(d) Within 12 hours of a request by the Director to the airline's or shipline's agent, the airline or shipline, pursuant to the written plan approved under § 71.11, shall transmit to the Director in an electronic format the data fields specified in paragraph (e) of this section.
(e) The data fields, as applicable to the individual passenger (or head of household if traveling with a minor) or crew member, shall include the following:
(1) Full name (first, last, middle initial, suffix);
(2) Emergency contact information;
(3) E-mail address;
(4) Current home address (street, apartment #, city, state/province, postal code);
(5) Passport number or travel document number, including the issuing country or organization;
(6) Name of traveling companions or group;
(7) Flight information or ports of call;
(8) Returning flight (date, airline number, and flight number) or returning ports of call; and
(9) At least one of the following current phone numbers in order of preference: mobile, home, pager, or work.
(f) In addition to data fields specified in paragraph (e) of this section, when necessary to prevent the introduction, transmission, or spread of communicable diseases, the Director through order may also require that airlines or shiplines transmit additional information in the airline's or shipline's possession.
(g) The provisions of paragraphs (a) through (f) of this section shall also apply to airlines operating flights and shiplines operating ships on an international voyage between ports of a possession of the United States or between ports of a possession and a State of the United States.
(h) Information collected solely in order to comply with this regulation may only be used for the purposes for which it is collected.
(i) Airlines operating flights and shiplines operating ships on an international voyage destined for a U.S. port shall ensure that passengers are informed of the purposes of this information collection at the time passengers arrange their travel.
(a) Within six months of the final publication of this rule, any airline
(b) The written plan shall include:
(1) Policies and procedures for the transmission of data in an electronic format available to the airline or shipline and CDC using industry standards for data encoding, transmission, and security, within 12 hours of a request by the Director to the airline's or shipline's agent;
(2) The full name (i.e., first, last, middle initial, suffix), official title, business telephone number, and e-mail address (if available), of an airline agent or shipline agent who shall serve as a point of contact between the Director and the airline or shipline concerning requests for and transmission of passenger and crew manifest data;
(3) Policies and procedures necessary to facilitate communication between the Director and the airline's or shipline's agent on a 24-hour basis, 7 days a week;
(4) Policies and procedures for soliciting the information contained in the data fields required by § 71.10 from the passenger (or head of household if traveling with a minor), crewmember, or such persons' authorized agent; and
(5) Policies and procedures for maintaining responsive information obtained by the airline or shipline in an electronic database for 60 days from the end of the voyage as required by § 71.10.
(c) Within 180 days of final publication of this rule, a copy of the written plan shall be submitted to the Director.
(d) Airlines and shiplines shall implement the written plan within 2 years of the final publication of this rule. Within 60 days of submission, airlines and shiplines shall conduct drills or exercises to test and evaluate the effectiveness of the written plan and revise the plan as necessary after any drill or exercise. Any revisions to the written plan shall be submitted to the Director within 60 days.
(e) Airlines and shiplines shall review the written plan one year after implementation and annually thereafter. The review shall include drills or exercises to test and evaluate the effectiveness of the written plan unless the airline or shipline has transmitted passenger and crewmember information under § 71.10 in the prior 365 days. Airlines shall revise the plan as necessary after any review. Any revisions of the written plan shall be submitted to the Director within 60 days.
(f) Airlines and shiplines that intend to commence operations after the effective date in paragraph (a) of this section shall submit a written plan meeting the requirements of this section to the Director before commencing operations. The airline or shipline shall implement the written plan by the later of the following dates: either 2 years after the final publication of this rule, or upon commencement of operations.
(g) Pending the development or implementation of the written plan as required by this section, the Director, through order, may require that airlines and shiplines transmit to the Director, in a format available to both the airline or shipline and the Director, any of the information required by § 71.10 that may be in the airline's or shipline's possession.
(h) The provisions of paragraphs (a) through (g) of this section shall also apply to airlines operating flights and shiplines operating ships on an international voyage between ports of a possession of the United States or between ports of a possession and a State of the United States.
(a) Carriers arriving at a U.S. port from a foreign country or on an international voyage in traffic between U.S. ports are subject to detention and inspection to determine the existence of any rodent, insect, or other vermin infestation, contaminated food or water, or other unsanitary conditions, that may require sanitary measures for the prevention of the introduction, transmission, or spread of communicable disease.
(b) The Director may detain and inspect a carrier arriving at a U.S. port from a foreign country when the Director determines that a threat of introduction, transmission, or spread of communicable disease into the United States exists, as may occur, for instance, when the carrier has on board ill persons.
(c) Carriers on an international voyage that are in traffic between U.S. ports shall be subject to detention and inspection when there occurs on board, among passengers or crew, any death, or when there is any ill person, or when the Director reasonably believes that illness may be caused by unsanitary conditions.
(d) The provisions of paragraphs (a) through (c) of this section shall additionally apply to carriers traveling between a possession and State or among possessions of the United States.
(a) Whenever the Director reasonably believes that any carrier arriving at a U.S. port from a foreign country or on an international voyage in traffic between U.S. ports or animal, article, or thing on board the carrier is or may be infected or contaminated with a communicable disease, the Director may, in consultation with such other federal agencies as appropriate:
(1) Inspect the carrier, animal, article, or thing on board the carrier, and/or
(2) Order the carrier, or other entity specified in the order, to apply such sanitary measures as the Director deems necessary to prevent the introduction, transmission, or spread of communicable diseases.
(b) CDC shall not bear the expense of any sanitary measures required or ordered by the Director. The carrier or other entity specified in the order issued pursuant to 71.13(a) shall bear the responsibility for the application of such measures.
(c) Sections 71.13(a) and 71.13(b) shall not preclude any entity ordered to conduct sanitary measures pursuant to § 71.13(b) from arranging to have such measures conducted by other entities through contractual or other arrangements, or from seeking reimbursement for any costs associated with sanitary measures through contractual or other arrangements.
(d) The Director may apply such sanitary measures to persons who have not been infected with or exposed to a quarantinable disease, upon their consent, as may be required to destroy the presence of infectious agents or vectors.
(a) The Director, in consultation with such other federal agencies as the Director deems necessary, may require detention of a carrier and all things onboard the carrier until the completion of the measures outlined in this part that the Director determines to be necessary to prevent the introduction, transmission, or spread of communicable diseases.
(b) The owner of the carrier shall bear any expenses relating to the detention of the carrier; or, in the case of animals, articles, or things on board the carrier, such expense shall be borne by the owners thereof.
(c) Director may issue a controlled free pratique to the carrier stipulating what sanitary measures are to be met, but such issuance does not prevent the periodic boarding of a carrier and the inspection of persons and records to verify that the conditions have been met for granting the pratique.
(a) Carriers belonging to or operated by the military services of the United States may be exempted from detention and inspection if the Director is satisfied that they have complied with regulations of the military services which also meet the requirements of the regulations in this part. (For applicable regulations of the military services, see Army Regulation No. 40-12, Air Force Regulation No. 161-4, Secretary of the Navy Instruction 6210.2, and Coast Guard Commandant Instruction 6210.2).
(b) Notwithstanding exemption from detention and inspection of carriers under this section, animals, articles, or things on board shall be required to comply with the applicable requirements of subpart B of this part.
The Director may at U.S. ports or other locations, conduct screenings of persons or group of persons to detect the presence of ill persons. Such screenings may be conducted through visual inspection, electronic temperature monitors, or other means determined appropriate by the Director to detect the presence of ill persons.
(a) The Director may provisionally quarantine an arriving person or group of arriving persons who the Director reasonably believes to be infected with or exposed to a quarantinable disease.
(b) Provisional quarantine shall commence upon:
(1) The service of a written provisional quarantine order;
(2) A verbal provisional quarantine order; or
(3) Actual movement restrictions placed on the person or group of persons.
(c) Provisional quarantine shall end three business days after provisional quarantine commences, except that the person or group of persons shall be released earlier if the Director determines that provisional quarantine is no longer warranted.
(d) In the event that the Director determines that it is necessary to provisionally quarantine a person or group of persons beyond three business days, then the Director shall serve the person or group of persons with a written quarantine order in accordance with this part.
(e) A person or group of persons subject to provisional quarantine may be offered medical treatment, prophylaxis, or vaccination, as the Director deems necessary to prevent the transmission or spread of the disease; such persons may refuse such medical treatment, prophylaxis, or vaccination, but remain subject to provisional quarantine.
(f) Nothing in this section shall be construed to limit the Director's ability to detain a person or group of persons on a voluntary basis or offer such persons medical treatment, prophylaxis, or vaccination on a voluntary basis.
(a) Provisional quarantine orders shall be served by the Director at the time that provisional quarantine commences or as soon thereafter as the circumstances reasonably permit either through personal service or, in circumstances where the Director deems it necessary or desirable, by posting or publishing the order in a conspicuous location.
(b) In circumstances where the Director deems public posting or publishing necessary, the Director may omit the names and/or identities of persons and take other measures respecting the privacy of persons.
(c) The provisional quarantine order shall be in writing, signed by the Director, and include the following information:
(1) A statement setting forth the Director's reasonable belief that the arriving person or group of arriving persons is infected with or exposed to a quarantinable disease based on information available to the Director at the time, such as travel history, clinical manifestations, and any other evidence of infection or exposure;
(2) The suspected quarantinable disease;
(3) A statement advising the arriving person or group of arriving persons that they may be placed under provisional quarantine for three business days and that at the end of such period they shall be released or, if determined by the Director, served with a quarantine order;
(4) A statement advising the person or group of persons that they shall be released earlier if the Director determines that provisional quarantine is no longer warranted;
(5) The location of provisional quarantine;
(d) When authorized by the Director, provisional quarantine orders may be issued and signed by electronic means.
(a) The Director may issue a quarantine order whenever the Director reasonably believes that an arriving person or group of arriving persons is infected with or exposed to a quarantinable disease based on, but not limited to, any of the following: clinical manifestations, diagnostic tests or other medical tests, epidemiologic information, laboratory tests, physical examination, or other evidence of exposure or infection;
(b) In accordance with the Director's quarantine order, the Director may offer medical treatment, prophylaxis, or vaccination, as the Director deems necessary to prevent the transmission or spread of the disease.
(c) Persons offered treatment, prophylaxis, or vaccination may refuse, but remain subject to quarantine.
(d) The Director's quarantine order may include the quarantine of an arriving person or group of arriving persons who refuse examination, medical treatment, prophylaxis, or vaccination, or for whom the Director determines that such examination, medical treatment, prophylaxis, or vaccination is medically contra-indicated or not reasonably available.
(e) The length of quarantine shall not exceed the period of incubation and communicability, as determined by the Director, for the quarantinable disease.
(f) Nothing in this section shall be construed to limit the Director's ability to quarantine a person or group of persons on a voluntary basis.
(a) Quarantine orders shall be in writing, signed by the Director, and contain the following:
(1) The identity of the arriving person or group of arriving persons to be quarantined;
(2) The location where the arriving person or group of arriving persons will be quarantined;
(3) The date and time at which quarantine commences and ends;
(4) The suspected quarantinable disease;
(5) A statement that the Director reasonably believes that the arriving person or group of arriving persons are infected with or exposed to a quarantinable disease;
(6) A statement regarding the basis for the Director's reasonable belief that the arriving person or group of arriving persons are infected with or exposed to a quarantinable disease, e.g., clinical manifestations, physical examination, laboratory tests, diagnostic tests or other medical tests, epidemiologic information, or other evidence of exposure or infection;
(7) A statement that the arriving person or group of arriving persons shall comply with conditions of quarantine, including, but not limited to examination, medical monitoring, medical treatment, prophylaxis, or vaccination, or other conditions of quarantine deemed by the Director to be necessary to prevent the transmission or spread of communicable disease;
(8) A statement that persons may refuse examination, medical monitoring, medical treatment, prophylaxis, or vaccination, but that such persons remain subject to quarantine; and
(9) A statement that persons under quarantine, any time while the quarantine order is in effect, may request that the Director hold a hearing to review the quarantine order.
(b) When authorized by the Director, quarantine orders may be issued and signed by electronic means.
(a) A copy of the quarantine order shall be personally served on the person or group of persons at the time that quarantine commences or as soon thereafter as the Director determines that the circumstances reasonably permit.
(b) In circumstances where the Director deems it necessary or desirable, the quarantine order may be posted or published in a conspicuous location, except that the Director may omit the names and/or identities of persons and take other measures respecting the privacy of persons.
(a) The Director may order medical examination or monitoring of an arriving person or group of arriving persons that the Director reasonably believes to be infected with or exposed to a quarantinable disease.
(b) Arriving persons subject to medical examination or monitoring shall provide the Director with such information as the Director may order, including, but not limited to, familial and social contacts, travel itinerary, medical history, place of work, and vaccination status.
(c) Arriving persons subject to medical monitoring shall report for such further medical examinations and comply with other conditions of monitoring as the Director orders.
(d) Arriving persons may refuse medical examination or monitoring, but remain subject to provisional quarantine or quarantine provided that if quarantined such persons may request a hearing in accordance with § 71.23.
(e) Nothing in this section shall be construed to limit the Director's ability to conduct medical examinations or place arriving persons under medical monitoring on a voluntary basis or from engaging in other methods of voluntary disease surveillance.
(a) Upon the request of an arriving person or group of arriving persons under quarantine, at any time while the quarantine order is in effect, the Director shall hold a hearing to review the quarantine order within one business day of the request.
(b) Requests for a hearing by the person or groups of persons under quarantine shall be limited to genuine and substantial issues of fact in dispute.
(c) The Director shall provide notice of the hearing to the arriving person or group of arriving persons under quarantine through any method that the Director determines to be reasonably designed to notify the person or group of persons that such a hearing has been scheduled.
(d) The Director shall designate a hearing officer to review the medical or other evidence of exposure or infection available to the Director and make findings as to which arriving person or group of arriving persons are infected with or exposed to a quarantinable disease and recommendations concerning which arriving person or group of arriving persons should be released or remain in quarantine.
(e) An arriving person or group of arriving persons in quarantine may authorize a representative to submit evidence concerning whether the person or group is infected with or exposed to a quarantinable disease;
(f) The Director shall take such measures that the Director determines to be reasonably necessary to allow an arriving person or group of arriving persons in quarantine to communicate with their authorized representatives. Such measures, for example, may include the establishment of video-conferencing facilities, e-mail terminals, telephone or cellular phone services, and other similar devices or technologies.
(g) The hearing officer may order a medical examination of the arriving person or group of arriving persons in quarantine when, in the hearing officer's judgment, such a medical examination would be necessary or desirable for a determination of whether the arriving person or group of arriving persons are infected with or exposed to a quarantinable disease, provided that such arriving persons may refuse such examination.
(h) The hearing officer shall, based upon his or her review of the evidence of exposure or infection made available to the hearing officer, make findings and a written recommendation to the Director as to which, if any, arriving person or group of arriving persons should be released or remain in quarantine.
(i) The Director, based upon the hearing officer's findings and written recommendation the administrative record shall within one business day after the conclusion of the hearing order the release or continued quarantine of the arriving person or group of arriving persons in quarantine.
(j) The Director may issue additional instructions and guidelines as the Director deems necessary governing the conduct of hearings.
(k) The quarantine order shall be deemed final either when the Director has accepted or rejected the hearing officer's written recommendation or three business days after the request for a hearing, whichever comes first.
(a) Arriving persons subject to medical examination and monitoring, provisional quarantine, or quarantine in accordance with this part may receive care and treatment at the expense of the Director subject to paragraphs (b) through (f) of this section.
(b) Payment for such expenses shall be in the Director's sole discretion and subject to the availability of appropriations.
(c) Any payment of expenses shall be secondary to the obligation of the United States or any third-party (including any State or local governmental entity, private insurance carrier, or employer), under any other law or contractual agreement, to pay for such care and treatment, and shall only be paid by the Director after all third-party payers have made payment in satisfaction of their obligations.
(d) Payment shall be limited to those amounts the hospital or medical facility would customarily bill the Medicare system using the International Classification of Diseases, Clinical Modification (ICD-CM), and relevant federal regulations promulgated by the Centers for Medicare and Medicaid Services in existence at the time of billing.
(e) For quarantinable diseases, payment shall be limited to costs for services and items reasonable and necessary for the care and treatment of the person for the time period that begins when the Director refers the person to the hospital or medical facility and ends when, as determined by the Director, the period of provisional quarantine or quarantine expires.
(f) For diseases other than those described in paragraph (e) of this section, such payment shall be limited to costs for services and items reasonable and necessary for care and treatment of the person for the time period that begins when the Director refers the person to the hospital or
(a) The Director, in consultation with the U.S. Department of State as may be necessary, shall advise an arriving foreign national under provisional quarantine or quarantine of such person's right to have the Director notify the consular post of the foreign state of such person's provisional quarantine or quarantine and to have any communications forwarded to the consular post without delay. In circumstances where required by international legal obligation, the Director shall, in consultation with the U.S. Department of State as may be necessary, directly notify the consular post of the foreign state of its arriving foreign nationals' provisional quarantine or quarantine.
(b) When requested by the consular officer of the foreign state and in a manner that the Director determines to be practicable, the Director, in consultation with the U.S. Department of State as may be necessary, shall allow the consular officer to have access to the foreign national under provisional quarantine or quarantine for purposes of conversing and corresponding with the foreign national and arranging for the foreign national's legal representation.
(c) Any foreign national subject to provisional quarantine or quarantine shall have the same rights as provided for other arriving persons subject to provisional quarantine or quarantine elsewhere in this part.
A person's administrative record shall, where applicable, consist of the provisional quarantine and/or quarantine order, and any medical, laboratory, epidemiologic, or other information in support thereof, evidence submitted by the person under provisional quarantine and/or quarantine, written findings and recommendation of the hearing officer, and hearing transcript, if any, or summary notes of the proceeding.
(a) Every seaport and airport shall have a supply of potable water from a watering point approved by the Commissioner of Food and Drugs, FDA, in accordance with standards established in 21 CFR parts 1240 and 1250.
(b) All food and potable water taken on board a ship or aircraft at any seaport or airport intended for human consumption thereon shall be obtained from sources approved in accordance with regulations cited in paragraph (a) of this section.
(c) Aircraft inbound or outbound on an international voyage shall not discharge over the United States any excrement, waste water or other polluting materials. Arriving aircraft shall discharge such matter only at servicing areas approved under regulations cited in paragraph (a) of this section.
(a) The Director may perform rodent infestation inspections, when requested by a shipline and at the shipline's own expense, and issue certificates, in a form prescribed by the Director, concerning the absence of rodents and other vermin on board ships.
(b) Unless otherwise determined by the Director, and in accordance with Articles 37 and 38 of the International Health Regulations, as may be further amended and ratified by the United States, the Maritime Declaration of Health and the Health Part of the Aircraft General Declaration, shall not be required as a condition of arrival at a U.S. port.
(c) The Director, upon the request of a shipline, may issue a Ship Sanitation Control Exemption Certificate or a Ship Sanitation Control Certificate, in accordance with Article 39 of the International Health Regulations, as may be further amended and ratified by the United States, or in another format prescribed by the Director.
(a) Each U.S. airport which receives international traffic shall provide without cost to the Government suitable office, examination, quarantine and other exclusive space for carrying out the Federal responsibilities under this part.
(b) Each U.S. airport which receives international traffic shall identify to the nearest quarantine station or other authorized representative on a yearly basis, or at other intervals as determined by the Director, space which is suitable for the quarantine of an arriving person or group of persons under guidelines or instructions issued by the Director.
(a) The Director, with the approval of the Secretary, may, from time to time, select sites suitable for, and establish such institutions, hospitals, and stations in the States and possessions of the United States as the Director, with the approval of the Secretary, deems necessary or desirable for carrying out the functions in this part.
(b) The Director may enter into voluntary agreements with public or private institutions as the Director deems necessary or desirable for carrying out the functions in this part.
Persons in violation of this part are subject to a fine of no more than $250,000 or one year in jail, or both, or as otherwise provided by law. Violations by organizations are subject to a fine of no more than $500,000 per event or as otherwise provided by law.
The Director may implement any of the provisions of this part through order issued and signed by the Director.
If the Director requires export or destruction of animals, articles, or things pursuant to § 71.13 or detention of a carrier pursuant to § 71.14, the owner of the animals, articles, or things thereof, or, the carrier owner may appeal. The appeal must be in writing and be submitted to the Director within 2 business days. The appeal must state the reasons for the appeal and show that there is a genuine and substantial issue of fact in dispute. The Director will issue a written response to the appeal, which shall constitute final agency action. This opportunity for an appeal shall not preclude the Director from acting immediately to exercise actions authorized under §§ 71.13 or 71.14.
(a)
(1) Identifies a dog on the basis of breed, sex, age, color, markings, and other identifying information.
(2) Specifies a date of rabies vaccination at least 30 days before the date of arrival of the dog at a U.S. port.
(3) Specifies a date of expiration which is after the date of arrival of the dog at a U.S. port. If no date of expiration is specified, then the date of vaccination shall be no more than 12 months before the date of arrival at a U.S. port.
(4) Bears the signature of a licensed veterinarian.
(b)
(2) Examination by veterinarian and confinement of dogs and cats. When, upon inspection, a dog or cat does not appear to be in good health on arrival (e.g., it has symptoms such as emaciation, lesions of the skin, nervous system disturbances, jaundice, or diarrhea), the Director may require prompt confinement and give the owner an opportunity to arrange for a licensed veterinarian to examine the animal and give or arrange for any tests or treatment indicated. The Director will consider the findings of the examination and tests in determining whether or not the dog or cat may have a communicable disease. The owner shall bear the expense of the examination, tests, and treatment. When it is necessary to detain a dog or cat pending determination of its admissibility, the owner shall provide confinement facilities which in the judgment of the Director will afford protection against any communicable disease. The owner shall bear the expense of confinement. Confinement shall be subject to conditions specified by the Director to protect the public health.
(3)
(ii) When, upon inspection, a dog or cat appears healthy but, during shipment, has been exposed to a sick or dead animal suspected of having a communicable disease, the exposed dog or cat shall be admitted only if examination or tests made on arrival reveal no evidence that the animal may be infected with a communicable disease. The provisions of paragraph (b)(2) of this section shall be applicable to the examination or tests.
(4)
(c)
(i) If a dog is less than 6 months of age, it has been only in a country determined by the Director to be rabies-free (a current list of rabies-free countries may be obtained from the Division of Quarantine, Center for Prevention Services, Centers for Disease Control, Atlanta, GA 30333); or
(ii) If a dog is 6 months of age or older, for the 6 months before arrival, it has been only in a country determined by the Director to be rabies-free; or
(iii) The dog is to be taken to a research facility to be used for research purposes and vaccination would interfere with its use for such purposes.
(2) Regardless of the provisions of paragraph (c)(1) of this section, the Director may authorize admission as follows:
(i) If the date of vaccination shown on the vaccination certificate is less than 30 days before the date of arrival, the dog may be admitted, but must be confined until at least 30 days have elapsed since the date of vaccination;
(ii) If the dog is less than 3 months of age, it may be admitted, but must be confined until vaccinated against rabies at 3 months of age and for at least 30 days after the date of vaccination;
(iii) If the dog is 3 months of age or older, it may be admitted, but must be confined until it is vaccinated against rabies. The dog must be vaccinated within 4 days after arrival at destination but no more than 10 days after arrival at a U.S. port. It must be kept in confinement for at least 30 days after the date of vaccination.
(3) When a dog is admitted under paragraph (c)(2) of this section, the Director shall notify the health department or other appropriate agency having jurisdiction at the point of destination and shall provide the address of the specified place of confinement and other pertinent information to facilitate surveillance and other appropriate action.
(d)
(e)
(f)
(1) Dogs and cats that appear healthy, but have been exposed to a sick or dead animal suspected of having a communicable disease, need not undergo examination or tests as provided in paragraph (b)(3) of this section if the Director determines that the conditions under which they are being transported will afford adequate protection against introduction of communicable disease.
(2) Rabies vaccination is not required for dogs that are transported by aircraft or ship and retained in custody of the carrier under conditions that would prevent transmission of rabies.
(g)
(a)
(b)
(c)
(2) Seven or more live turtles with a carapace length of less than 4 inches, or seven or more viable turtle eggs or any combination of turtles and turtle eggs totaling seven or more, may be imported into the United States for bona fide scientific or educational purposes or for exhibition when accompanied by a permit issued by the Director.
(3) The requirements in paragraphs (c)(1) and (c)(2) of this section shall not apply to the eggs of marine turtles excluded from these regulations under § 71.52(a).
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(2) Documentary evidence that an importer will use all nonhuman primates solely for the permitted purposes is required.
(3) Registration shall include certification that the nonhuman primates will not be shipped, sold, or otherwise transferred to other persons or organizations without adequate proof that the primates will be used only for the permitted purposes.
(4) Registration shall be for 2 years, effective the date the application for registration is approved by the Director.
(5) Registration may be renewed by filing a registration application form with the Director not less than 30 days nor more than 60 days before expiration of the current registration.
(e)
(2) Importers shall report to the Director by telephone within 24 hours the occurrence of any illness in nonhuman primates that is suspected of being yellow fever, monkeypox, or Marburg/Ebola disease.
(3) Importers also shall report to the Director by telephone within 24 hours the occurrence of illness in any member of their staff suspected of having an infectious disease acquired from nonhuman primates.
(f)
(g)
(h)
(2) The importer may file an answer within 20 days after receipt of the notice. Answers shall admit or deny
(3) The importer shall be entitled to a hearing with respect to the revocation upon filing a written request, either in the answer or in a separate document, with the Director within 20 days after the effective date of revocation. Failure to request a hearing shall be deemed a waiver of hearing and as consent to the submission of the case to the Director for decision based on the written record. The failure both to file an answer and to request a hearing shall be deemed to constitute consent to the making of a decision on the basis of available information.
(4) As soon as practicable after the completion of any hearing conducted pursuant to the provisions of this section, the Director shall render a final decision. A copy of such decision shall be served on the importer.
(5) An importer's registration which has been revoked may be reinstated by the Director upon inspection, examination of records, conference with the importer, and receipt of information and assurances of compliance with the requirements of this section.
(i)
(a) A person may not import into the United States, nor distribute after importation, any etiological agent or any arthropod or other animal host or vector of human disease, or any exotic living arthropod or other animal capable of being a host or vector of human disease unless accompanied by a permit issued by the Director.
(b) Any import coming within the provisions of this section will not be released from custody prior to receipt by the District Director of the U.S. Customs Service of a permit issued by the Director.
(a) The remains of a person who died of a communicable disease may not be brought into a U.S. port unless it has been:
(1) Placed in a hermetically sealed casket;
(2) Cremated; or
(3) Accompanied by a permit issued by the Director.
(b) The Director may inspect human remains brought into a U.S. port and condition their further importation upon such requirements that the Director may deem necessary through order to prevent the introduction, transmission, and spread of communicable diseases.
(a)
(i) You must not import or attempt to import any rodents, whether dead or alive, that were obtained, directly or indirectly, from Africa, or whose native habitat is Africa, any products derived from such rodents, any other animal, whether dead or alive, whose importation the Director has prohibited by order, or any products derived from such animals; and
(ii) You must not prevent or attempt to prevent the Centers for Disease Control and Prevention (CDC) from causing an animal to be quarantined, re-exported, or destroyed under a written order.
(2) The prohibitions in paragraph (a)(1) of this section do not apply if you have written permission from CDC to import a rodent that was obtained, directly or indirectly, from Africa, or whose native habitat is Africa, or an animal whose importation the Director has prohibited by order.
(i) To obtain such written permission from CDC, you must send a written request to Division of Global Migration and Quarantine, National Center for Infectious Diseases, Centers for Disease Control and Prevention, 1600 Clifton Rd., Atlanta, GA 30333. You may also fax your request to the Division of Global Migration and Quarantine (using the same address in the previous sentence) at 404-498-1633.
(ii) Your request must state the reasons why you need an exemption, describe the animals involved, describe the number of animals involved, describe how the animals will be transported (including carrying containers or cages, precautions for handlers, types of vehicles used, and other procedures to minimize exposure of animals and precautions to prevent animals from escaping into the environment), describe any holding facilities, quarantine procedures, and/or veterinarian evaluation involved in the animals' movement, and explain why an exemption will not result in the spread of monkeypox within the United States. Your request must be limited to scientific, exhibition, or educational purposes.
(iii) We will respond in writing to all requests, and we also may impose conditions in granting an exemption. If we deny your request, you may appeal that denial. Your appeal must be in writing and be submitted to the CDC official whose office denied your request, and you must submit the appeal within two business days after you receive the denial. Your appeal must state the reasons for the appeal and show that there is a genuine and substantial issue of fact in dispute. We will issue a written response to the appeal, which shall constitute final agency action.
(3) The prohibitions in paragraph (a) of this section do not apply to products derived from rodents that were obtained, directly or indirectly, from Africa, or whose native habitat is Africa, or products derived from any other animal whose importation the Director has prohibited by order if such products have been properly processed to render them noninfectious so that they pose no risk of transmitting or carrying the monkeypox virus. Such products include, but are not limited to, fully taxidermied animals and completely finished trophies; and they may be imported without written permission from CDC.
(b)
(i) Issue an order causing an animal to be placed in quarantine,
(ii) Issue an order causing an animal to be re-exported,
(iii) Issue an order causing an animal to be destroyed, or
(iv) Take any other action necessary to prevent the spread of the monkeypox virus.
(2) Any order causing an animal to be quarantined, re-exported, or destroyed will be in writing.
(c)
Federal Transit Administration (FTA), DOT.
Notice.
This notice announces changes in the Federal Transit Administration (FTA) programs in accordance with SAFETEA-LU, which authorizes funds for all of the surface transportation programs of the Department of Transportation for Federal fiscal years 2005 through 2009. This notice provides preliminary implementation instructions and guidance for grants under the new and revised programs in FY 2006 and invites public comment. The notice also includes tables of unobligated (or carryover) amounts for earmarks from prior years under the discretionary programs, and tables that list discretionary program earmarks authorized under SAFETEA-LU.
Comments on the content of this notice will be received until December 30, 2005. Late filed comments will be considered to the extent practicable.
You may submit comments [identified by DOT DMS Docket Number FTA-2005-23089] by any of the following methods:
1. Web Site:
2. Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, PL-401, Washington, DC 20590-0001.
3. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For general information about this notice contact Mary Martha Churchman, Director, Office of Resource Management and State Programs, (202) 366-2053. Please contact the appropriate FTA regional office, from the list in Appendix A, for grantee specific requests for information or technical assistance.
This document contains important information about new FTA programs authorized by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, (SAFETEA-LU) (Pub. L. 109-059), signed into law by President Bush on August 10, 2005, and changes to programs reauthorized by that legislation. It also contains information on how FTA plans to administer the transit programs
Information in this document includes references to the existing FTA program guidance circulars. While some information in the circulars has been superseded by new provisions in SAFETEA-LU, the circulars remain a resource for program guidance in most areas. FTA intends to revise the circulars, with an opportunity for public comment.
To supplement the guidance provided in this document FTA is preparing answers to frequently asked questions (FAQs), on SAFETEA-LU changes and impacts, from its grantees, stakeholders, and other interested parties. These FAQs will be posted on the FTA Web site at
Throughout the document we have included specific questions on which we seek comment, and we invite your comments to the docket on any information provided in this notice. A list of the specific questions or issues can be found in Appendix B.
SAFETEA-LU provides a combination of trust and general funds that total $8.6 billion for FTA programs for FY 2006. Table 1 of this document shows the authorized funding for the FTA programs for the fiscal years 2006-2009. This notice provides a narrative explanation of the funding levels and other factors affecting the apportionments and allocations for each program.
When the FY 2006 appropriations bill is passed and enacted into law, FTA will publish another notice that will include a table for each program that contains the apportionments or allocations, based on the program funding level in the FY 2006 appropriations act. At the time this notice was prepared the agency was operating under a Continuing Resolution and only a small fraction of the FY 2006 funds authorized in SAFETEA-LU was available for FTA programs and administrative expenses. No FY 2006 program funds have been apportioned at this time. Congress recently took action on the FY 2006 Appropriations Act and we will publish the FY 2006 apportionments and allocations shortly.
FTA draws money from funds appropriated to certain FTA programs for program oversight activities conducted by the agency. The funds are used to provide necessary oversight activities, including oversight of the construction of any major project under these statutory programs; to conduct safety and security, civil rights, procurement, management and financial reviews and audits; and to provide technical assistance to correct deficiencies identified in compliance reviews and audits.
49 U.S.C. 5327 authorizes the takedown of funds from FTA programs for project management oversight. SAFETEA-LU increased the amount that may be set-aide for such activities above the levels established under TEA-21 and identified additional programs to which the oversight takedown applies. SAFETEA-LU provides oversight takedowns at the following levels: 0.5 percent of Planning funds, 0.75 percent of Urbanized Area Formula funds, 1 percent of Capital Investment funds, 0.5 percent of Special Needs of Elderly Individuals and Individuals with Disabilities formula funds, 0.5 percent of Nonurbanized Area Formula funds, and 0.5 percent of Alternative Transportation in the Parks and Public Lands funds. Language in section 5327 also specifies the addition of “safety and security management” to the list of project management plan requirements.
SAFETEA-LU provides a combination of trust and general fund authorizations that total $45.3 billion for public transportation for fiscal years 2005-2009 ($52.6 billion over the six year period 2004-2009). Just over 80 percent is derived from the Mass Transit Account, with only New Starts, Research and FTA Administrative funding coming from the General Fund. All funds, including the General Fund portion, are guaranteed, which means that the guaranteed annual levels are already “paid for” under Congressional budgetary rules. This assures that in each year's appropriations process the specified amount of authorized funding will be available each year for transit programs. See Table 1 for the guaranteed funding levels by program.
Previously, under TEA-21, all the FTA programs were funded with both Mass Transit Account and General Funds. Because of this change in the structure of FTA's accounts, except for New Starts and Research program grants, FTA will not be able to combine FY 2006 funds in the same grant with funds appropriated in prior years. See section VIII F below for grant application procedures.
SAFETEA-LU includes 405 New Starts project designations for fiscal years 2006-2009, many of which are listed more than once. The total funding authorized for these projects is $5.49 billion. Thirty-one (31) projects are authorized for Full Funding Grant Agreements (FFGAs); 38 projects are authorized for Final Design (FD) and Construction, and 264 projects are authorized for Preliminary Engineering (PE). Dollar amounts are specified by fiscal year for each FFGA project. No funding amounts are specified for the FD and construction and PE projects.
Fifty-two New Starts project designations listed have a total amount specified but this amount is not identified with any particular fiscal year. In addition, 18 New Starts projects for Alternative Analysis under section 5339 are designated and amounts authorized for fiscal years 2006 and 2007 specified. The Alaska and Hawaii Ferry Boat and Denali Commission projects are also authorized. All New Starts earmarks are listed in Table 2 and Table 3 by State, including the dollar amount if specified.
Also authorized are project specific allocations for 646 Bus and Bus-Related Facilities projects totaling $1,819,662,341 for fiscal years 2006-2009. These projects and amounts are displayed in Table 4.
Under the Clean Fuels program, 16 projects totaling $78,385,000 are earmarked for funding for FY 2006-2009. These projects and amounts are displayed in Table 5.
It should be noted that projects earmarked in SAFETEA-LU are subject to Congressional actions in later appropriations bills and funding is not available for immediate obligation. Estimates of formula program funding
In the estimates of formula funding for UZAs, for the JARC and New Freedom programs, FTA included the amount of funding attributable to each UZA less than 200,000 in population (small UZA) low income individuals and individuals with disabilities, respectively. These amounts were provided, for information purposes only. Under these programs, funds for the UZAs under 200,000 in population will be apportioned to the state for competitive selection of projects. Similarly, we estimated the amount of funding that might go to each State under the Public Transportation on Indian Reservations Program (49 U.S.C. 5311(c)(1) also referred to as the Tribal Transit Program in this document), based on tribal population. But these funds will not be apportioned to the States and the process for apportioning them among the Tribes has not yet been determined.
SAFETEA-LU added “mobility management” to the list of capital projects at 5302(a)(1)(L). This allows “short-range planning and management activities and projects for improving coordination among public transportation and other transportation service providers carried out by a recipient or subrecipient” to be funded as a capital project. The definition excludes the actual costs of operating public transportation services, but allows the costs of planning and coordination with human service transportation to be treated as capital rather than operating costs.
Four new eligible capital activities were added at 5302(a)(1)(J). These include projects “to refine and develop security and emergency response plans, projects aimed at detecting chemical and biological agents in public transportation, the conduct of emergency response drills with public transportation agencies and local first response agencies, and security training for public transportation employees.” Expenses related to transit operations, other than those incurred in conducting emergency response drills or security training, are excluded from this definition and will continue to be eligible only as operating in those areas eligible to use FTA funds for operating assistance.
SAFETEA-LU allows recipients to be reimbursed from section 5309 funds for deposits of bond proceeds in a debt service reserve. The Act also allows up to ten recipients to be reimbursed from section 5307 funds for bond proceeds deposited in a debt service reserve established with a bondholders' trustee. These provisions will have the effect of reducing grantees' out of pocket bond issuance costs due to the reimbursement for the cost of the debt service reserve. The new capital definition of debt service reserve is found at 5302(a)(1)(K) and the limitations on its use are at sections 5323(e)(3) and (4).
The definition of an eligible joint development capital project in section 5302(A)(1)(G) has been expanded to include “construction, renovation, and improvement of intercity bus and intercity rail stations and terminals.” Further, the limitation that made “commercial revenue-producing facilities” ineligible for FTA assistance has been lifted with respect to intercity bus stations or terminals. Intercity bus stations and terminals are not required to provide a fair share of revenue for public transportation that will be used for public transportation.
The result of these changes is that FTA funds can now be used for all aspects of intercity bus and rail facilities in facilities (such as intermodal terminals) which meet the criteria in section 5302(a)(1)(G) for joint development projects (physical and functional relationship to public transportation). Further, $35 million per year is set aside in the section 5309 Bus and Bus-Related Facilities program for intermodal terminals, including the intercity bus portions of those terminals.
Throughout SAFETEA-LU, the term public transportation is used wherever the FTA statute previously referred to mass transit or mass transportation. The definition of public transportation at 5302(a)(10) was also modified to specifically exclude intercity bus transportation. This change does not affect the eligibility of intercity bus service under the rural program (section 5311) or the over-the-road bus accessibility program (TEA-21, section 3038). The definition now also specifically excludes intercity passenger rail transportation provided by AMTRAK. The intercity bus and intercity rail portion of intermodal terminals, however, is an eligible capital cost under 49 U.S.C. 5302(a)(1)(G).
SAFETEA-LU establishes a new State Infrastructure Bank (SIB) program under which all States, Puerto Rico, the District of Columbia, American Samoa, Guam, the Virgin Islands, and the Commonwealth of the Northern Mariana Islands are authorized to enter into cooperative agreements with the Secretary of Transportation to establish financial entities that provide various types of transportation infrastructure credit assistance for fiscal years 2005-2009. The new program is a continuation and expansion of similar programs created by the National Highway System (NHS) Act in 1995 and the TEA-21 legislation of 1998. It gives States the capacity to increase the efficiency of their transportation investment and significantly leverage Federal resources by attracting non-Federal public and private investment. The program provides greater flexibility to the States by allowing other types of project assistance in addition to grant assistance.
Under three FTA formula programs [the Special Needs of Elderly Individuals and Individuals with Disabilities Program (section 5310), Job Access and Reverse Commute (section 5316), and New Freedom (section 5317)], there is a requirement that the designated recipient competitively select projects and that the projects must be derived from a locally developed coordinated public transit/human service transportation plan. Public transit operators, including those funded under both the urbanized and non-urbanized formula programs (sections 5307 and 5311) are expected to be participants in the local planning process for coordinated public transit/human service transportation. See the specific programs below for more information about the planning requirements as it relates to the three programs. See also the metropolitan planning public participation requirement below.
Metropolitan Planning Organizations (MPOs) must develop and utilize a “participation plan” that provides reasonable opportunities for the interested parties to comment on the content of the metropolitan transportation plan and metropolitan TIP. This requirement is intended to afford parties who participate in the metropolitan planning process a specific opportunity to comment on the plan prior to its approval, including governmental agencies and nonprofit organizations that receive Federal assistance from a source other than the Department of Transportation (DOT) to provide non-emergency transportation services and recipients of assistance under section 204 of Title 23 U.S.C. The participation plan must be in place prior to MPO adoption of transportation plans and TIPs addressing SAFETEA-LU provisions.
The public hearing requirement in 49 U.S.C. 5323(b) for capital projects was changed by SAFETEA-LU. Formerly, an opportunity for a public hearing was required on a section 5309 grant application if the grant would substantially affect the community or its mass transportation service. Many of the notices published under this requirement did not ultimately result in a hearing being held.
SAFETEA-LU associates more clearly the public involvement and hearing requirements for capital projects with the environmental review required by the National Environmental Policy Act (NEPA) and its implementing regulations. It also broadens the requirement to apply to all capital projects (as defined in section 5302). Now, the grant applicant must provide an adequate opportunity for public review and comment on a capital project, and, after providing notice, must hold a public hearing on the project if the project affects significant economic, social, or environmental interests. These requirements will be satisfied through compliance with the NEPA requirements for a public scoping process, public review and comment on NEPA documents, and a public hearing on every draft environmental impact statement (EIS). FTA will also require a public hearing on environmental assessments (EAs) that have a high probability of being elevated to EISs.
Section 5323(b) must be read in concert with section 5324(b) which states that FTA must review the public comments and hearing transcript to ascertain that an adequate opportunity to present views was given to all parties having a significant economic, social, or environmental interest in the project, and that FTA must make a written finding to this effect.
SAFETEA-LU codified in 5333(b) streamlined labor protection arrangements already used by the Department of Labor (DOL) in certifying FTA grants for purchase of like-kind equipment or facilities or non-material grant amendments. It also codified existing practice when a contractor is changed through competitive bidding. In section 5311, the use of a special warranty is written into the law. Awards under two new programs, New Freedom and Alternative Transportation in Parks and Public Lands, will not be required to be certified by DOL.
The Buy America stipulation is intended to ensure that Federal grants stimulate domestic economic activity. FTA funds must be used for goods that must be produced or manufactured in the United States or with specific products, and have a defined percent of domestic content. Four changes from the previous law are that SAFETEA-LU:
• Requires the Secretary of Transportation to issue a written justification for public interest waivers on Buy America requirements. (Under the law, he may waive the Buy America requirements if they are deemed inconsistent with the public interest). The Secretary must publish the written justification in the
• Clarifies that a party adversely affected by a FTA decision under the Buy America provisions has the right to seek administrative review.
• Repeals the general waiver of sub-sections (b) and (c) of Appendix A of section 661.7.
• Requires a rulemaking within 180 days clarifying or defining the following Buy America requirements:
1. Microprocessors; Buy America requirements have been waived for microprocessors since few are manufactured in the United States. The Secretary is directed to apply the waiver to a device that is solely for the purpose of processing and storing data and not extended to a product containing the microprocessor.
2. Defining the term “end product” for non-rolling stock. Does the end product serve a purpose by itself or with other end products on an interoperative basis? A product that does not work with products of other manufacturers is part of that manufacturers system that is the end product. A list of systems and end products will be developed.
3. Defining the term “negotiated procurement” and determine Buy America compliance on the basis of the certification with the final offer.
4. Defining the term “contractor”.
5. Clarifying that a grant recipient may request a non-availability waiver after the contract award if the contractor has made a certification of compliance with the requirements in good faith. The contractor must have certified that it can meet the Buy America requirements before being awarded a contract. If the contractor later finds that parts are not available to meet the requirement, the grantee may now request a Buy America waiver.
SAFETEA-LU recodified FTA's procurement requirements in section 5325 of Title 49 U.S.C. Section 5325(a) establishes full and open competition as the basic requirement for FTA-funded third party contracts. Section 5325(b), which covers architectural, engineering, and design contracts, has been modified to match similar language in Title 23 U.S.C., on reciprocity of audited indirect cost rates. Section 5325(c) on use of other-than-low-bid procurement has been reenacted. Language on Turnkey Contracting, formerly in section 5326, now appears as section 5325(d), and is re-titled “Design-Build”, reflecting more up-to-date terminology. Provisions formerly in section 5326 governing rolling stock procurements now appear in sections 5325(e) and (f). Section 5325(g) now allows access by DOT or the Government Accountability Office (GAO) to any contract-related record, not just those in sole-source procurements. Section 5325(h) continues the prohibition on exclusionary or discriminatory procurements. A new section 5325(i) prohibits application of State laws requiring bus purchases to go through in-State bus dealers from applying to projects assisted under the FTA program. Finally, section 5325(j) codifies in law the requirement that contracts be awarded only to “responsible” contractors. Grantees are required to assess the integrity of the contractor, compliance with public policy, the contractor's financial and technical resources, and the contractors past performance, particularly as reported in the Contractor Performance Assessment Report required under section 5309(l)(2).
Under the current Buy America provisions, there is a requirement for a resident factory inspector for rolling stock procurements of greater than 10 buses. SAFETEA-LU eliminates the requirement for a resident factory inspector for rolling stock procurements of 20 vehicles or less for use in rural (other than urbanized) areas, or UZAs of 200,000 population or less.
SAFETEA-LU section 3023(d) amended 49 U.S.C., section 5323(d)(2) and provided new remedies for violations of charter service. The amended provision states that 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. The previous provision stated that the Secretary could bar a recipient from receiving further assistance when the Secretary found a continuing pattern of violations of the agreement. The new provision allows for more flexibility. Under the prior law the Secretary could totally bar a recipient from receiving further financial assistance, but this penalty was so harsh that it was only rarely invoked. Under SAFETEA-LU the Secretary can determine a penalty less than a complete bar of financial assistance; the Secretary shall bar an operator from receiving assistance in an amount the Secretary considers appropriate.
In addition, the Conference Report for SAFETEA-LU stated that the conferees directed FTA to initiate a negotiated rulemaking seeking public comment on the charter service regulation implementing 49 U.S.C., 5323(d) and to consider the following issues: (1) Whether 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 use of internet technology; (3) improve the enforcement of violations; and (4) improve the complaint and administrative appeals process. FTA has initiated the negotiated rulemaking process.
SAFETEA-LU section 3023(f) amended 49 U.S.C., 5323(f) and provided new remedies for violations of the school bus transportation provision. The amended provision states that if the Secretary finds a violation, the Secretary shall bar a recipient or operator from receiving Federal transit assistance in an amount the Secretary considers appropriate. The previous provision stated that in the case of a violation, an applicant could not receive other mass transportation financial assistance. The new provision allows for more flexibility. Under the prior law the penalty was so severe that it was only rarely invoked. Under SAFETEA-LU the Secretary can determine a penalty less than a complete bar of financial assistance; the Secretary shall bar an operator from receiving assistance in an amount the Secretary considers appropriate.
Originally allowed in TEA-21, revenue bonds may now be used as local match, provided that the grantee maintains a greater level of local transit investment in the subsequent three years (as demonstrated in the TIP) than as in the current and prior two years. This provision in 5323(e) allows bond proceeds, secured by the revenues of a transit capital project, to be used as local match for that project.
The provision allowing a 90 percent Federal share for the incremental cost of compliance with the Americans with Disabilities Act (ADA) or Clean Air Act (CAA) was expanded to include vehicle-related facilities as well as equipment at section 5323(i). Under the provision allowing the Secretary “to determine through practicable administrative procedures, the costs of such equipment or facilities attributable to compliance with those Acts”, FTA previously computed an 83 percent composite match for vehicle-related equipment. Given changes in technology, FTA may revisit that calculation, but for the time being, grantees may use the 83 percent share. FTA seeks public comment on the continued use of the 83 percent share. Also, the administratively determined 83 percent Federal share does not apply to facilities, for which the costs are more variable. Grantees may apply for the 90 percent share of the actual incremental costs of vehicle-related facility improvements related to ADA or CAA compliance, but FTA requests that grantees provide supporting documentation for that request. Until FTA develops guidance, the eligibility of facility related costs at the higher share will be reviewed on a case-by-case basis as part of the grant application process.
The New Freedom program provides formula funding for new public transportation services and public transportation alternatives beyond those required by the Americans with Disabilities Act of 1990 that assist individuals with disabilities with transportation, including transportation to and from jobs and employment support services. Details are provided in section VI N below.
SAFETEA-LU provides $22 million annually for alternative transportation projects to enhance the protection of national parks and public lands and increase the enjoyment of those visiting the parks and public lands by ensuring access to all, including persons with disabilities, improving conservation and park and public land opportunities in urban areas through partnering with State and local governments, and improving park and public land transportation infrastructure. The program is to be implemented by FTA in consultation with the Department of the Interior and other Federal land management agencies.
The Secretary of Transportation will develop cooperative arrangements with the Secretary of the Interior that provide: (1) Technical assistance; (2) interagency and multidisciplinary teams to develop alternative transportation policy, procedures, and coordination; and, (3) procedures and criteria relating to the planning, selection, and funding of qualified projects and the implementation and oversight of selected projects. The Secretary of the Interior, after consultation with and in cooperation with the Secretary of Transportation, will determine the final selection and funding levels of an annual program of qualified projects.
SAFETEA-LU specifies a new category of projects to be funded separately out of the section 5309 New Starts program. This new category encompasses smaller scale projects, referred to as Small Starts, and has been authorized at a funding level of $200 million per year, beginning in FY 2007.
Projects requesting less than $75 million in section 5309 New Starts funds with a total project cost less than $250 million will be eligible to receive funds under the new Small Starts provision. SAFETEA-LU lays out a
The transit program statute provides for an evaluation process for proposed Small Starts projects that include a subset of the evaluation criteria specified for traditional New Starts projects. The Small Starts evaluation criteria in the statute include:
• Transit supportive land use,
• Cost-effectiveness,
• Reliability of cost and ridership estimates,
• Effect on economic development, and
• Other factors that the Secretary determines are appropriate.
Currently, projects requesting less than $25 million in New Starts funding are exempt from the annual evaluation and rating process. Under the new statute, this exemption no longer applies once a regulation is issued for Small Starts. All eligible projects that meet the aforementioned Small Starts cost criterion will be rated and evaluated according to the Small Starts process. SAFETEA-LU also calls for a simplified project development process to be applied to Small Starts projects. SAFETEA-LU requires that FTA issue regulations establishing an evaluation and rating process for the Small Starts process. The Small Starts Advance Notice of Proposed Rulemaking will be issued soon.
Alternatives Analysis is no longer included in the eight percent of the section 5309 New Starts program that can be used for projects prior to FD and Construction. Instead, $25 million annually is provided for Alternatives Analysis grants under section 5339. As before, Metropolitan Planning funds and Urbanized Area Formula funds can also be used to support alternatives analysis. The procedures grantees should use to apply for section 5339 funds are referred to in section VI P below.
SAFETEA-LU creates a new Tribal Transit program as a takedown under the section 5311 program. Forty-five million dollars is authorized for fiscal years 2006-2009, growing from $8 million annually to $15 million. The funds are to be apportioned to the Tribes, not to the States, for capital and operating assistance for rural transit and rural intercity bus service. FTA will develop procedures for the Tribal Transit program in consultation with tribal leaders and other interested stakeholders.
In addition to funding under the Tribal Transit program, States must continue to include the Tribes in the equitable distribution of the section 5311 funds apportioned to the States. Indian Tribes are established as direct recipients under section 5311 for funding from the States' apportionment as well as from the new Tribal Transit program.
See section VI K for additional information and for specific questions on which FTA seeks comments from Tribes and other interested stakeholders.
SAFETEA-LU establishes new Growing States and High Density States formula factors to distribute funds to the section 5307 and section 5311 programs. One-half of the funds are made available under the Growing States factors and are apportioned by a formula based on State population forecasts for 15 years beyond the most recent Census. Amounts apportioned for each State are then distributed between UZAs and nonurbanzied areas based on the ratio of urbanized/nonurbanzied population within each State. The High Density States factors distribute the other half of the funds to States with population densities in excess of 370 persons per square mile. These funds are apportioned only to UZAs within those States. Additional details on the Growing States and High Density States formula and factors are discussed in section VI Q below.
Section 5303 authorizes a cooperative, continuous, and comprehensive planning program for transportation investment decision-making at the metropolitan area level. State Departments of Transportation and MPOs may receive funds for planning projects that support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency; increasing the safety and security of the transportation system for motorized and non-motorized users; increasing the accessibility and mobility options available to people and for freight; protecting and enhancing the environment, promoting energy conservation, and improving quality of life; enhancing the integration and connectivity of the transportation system, across and between modes, for people and freight; promoting efficient system management and operation; and emphasizing the preservation of the existing transportation system.
SAFETEA-LU authorizes the following amounts to carryout section 5305 Planning programs for fiscal years 2006-2009:
As specified in law, 82.72 percent of the amounts authorized for section 5305 are allocated to the Metropolitan Planning program. The table below shows the amount of funding authorized under section 5305 to be allocated to the Metropolitan Planning program.
FTA allocates Metropolitan Planning funds to the States according to a statutory formula. Eighty percent of the funds are distributed to the States as a basic allocation based on each State's UZA population, based on the most recent Census. The remaining 20 percent is provided to the States as a supplemental allocation based on an FTA administrative formula to address planning needs in the larger, more complex UZAs. The amount published for each State is a combined total of both the basic and supplemental allocation.
The State allocates Metropolitan Planning funds to MPOs in UZAs or portions thereof to provide funds for projects included in an annual work program (the Unified Planning Work Program, or UPWP) that includes both highway and transit planning projects. Each State has either reaffirmed or developed, in consultation with their MPOs, a new allocation formula, as a result of the 2000 Census. The State allocation formula may be changed annually, but any change requires approval by the FTA regional office before grant approval. Program guidance for the Metropolitan Planning Program is found in FTA Circular C8100.1B, Program Guidance and Application Instructions for Metropolitan Planning Program Grants, dated October 25, 1996. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
The funds apportioned under the Metropolitan Planning program will remain available to be obligated by FTA to recipients for four fiscal years—which includes the year of apportionment plus three additional years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.
Sections VII and VIII F of this document provide guidance and information specific to FTA planning programs, including the Metropolitan Planning program. Please refer to those sections for additional information relevant to this program.
This program provides financial assistance to States for Statewide planning and other technical assistance activities (including supplementing the technical assistance program provided through the Metropolitan Planning program), planning support for nonurbanized areas, research, development and demonstration projects, fellowships for training in the public transportation field, university research, and human resource development.
SAFETA-LU authorizes the following amounts to carryout section 5305 Planning programs for fiscal years 2006-2009:
As specified in law, 17.28 percent of the amounts authorized for section 5305 are allocated to the Statewide Planning and Research program. The table below shows the amount of funding authorized under section 5305 to be allocated to the Statewide Planning and Research program.
Funds are apportioned to States by a statutory formula that is based on information received from the latest decennial census, and the State's UZA population as compared to the UZA population of all States. However, a State must receive at least 0.5 percent of the amount apportioned under this program.
Funds are provided to States for statewide planning and research programs. These funds may be used for a variety of purposes such as planning, technical studies and assistance, demonstrations, management training, and cooperative research. In addition, a State may authorize a portion of these funds to be used to supplement Metropolitan Planning funds allocated by the State to its UZAs, as the State deems appropriate. Program guidance for the Statewide Planning and Research program is found in FTA Circular C8200.1, Program Guidance and Application Instructions for State Planning and Research Program Grants, dated December 27, 2001. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
The funds apportioned under the Statewide Planning and Research program will remain available to be obligated by FTA to recipients for four fiscal years'which include the year of apportionment plus three additional fiscal years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.
Section 5307 authorizes Federal capital and operating assistance for transit in UZAs. A UZA is an area with a population of 50,000 or more that has been defined and designated as such in the most recent decennial census by the U.S. Census Bureau. The Urbanized Area Formula Program also supports planning, in addition to that funded under the Metropolitan Planning program described above. Funding is apportioned directly to each UZA with a population of 200,000 or more, and to the State Governors for UZAs with populations between 50,000 and 200,000. Generally, operating assistance is not an eligible expense for UZAs with populations of 200,000 or more. However, there are several exceptions to this restriction. The exceptions are described in section 2(e) below.
SAFETEA-LU authorizes the following amounts under section 5307 to provide financial assistance to UZAs for fiscal years 2006-2009:
SAFETEA-LU directs that there be a one percent takedown from the funds made available under section 5307. This takedown amount will be for apportionment under the new Small Transit Intensive Cities (STIC) formula.
Under the formula for STIC, funds are apportioned to UZAs with a population less than 200,000 that meet or exceed the average level of service for all UZAs with populations between 200,000 and 1,000,000.
In addition to the funds made available to UZAs under section 5307, approximately 84 percent of the funds authorized for the new section 5340 Growing States and High Density States formula factors will be apportioned to UZAs. The portion of authorized section 5340 funds allocable to UZAs, based on the section 5340 formulas, is shown in the following table.
Language in the SAFETEA-LU conference report indicates that FTA is to show a single apportionment amount for 5307, STIC and 5340. Accordingly, the apportionment amount for a UZA that will be displayed in the Urbanized Area Formula apportionment table to be published in the FTA FY 2006 apportionments and allocations Notice, after FY 2006 funding is appropriated, will include regular 5307 funds (that amount remaining after the one percent takedown for STIC), STIC funds, and Growing States and High Density States funding for the area. Although a single UZA amount will be shown to comply with conference report language (as noted above), separate formula calculations will be used to generate the respective apportionment amounts for the 5307, STIC and 5340.
Program guidance for the Urbanized Area Formula Program is presently found in FTA Circular C9030.1C, Urbanized Area Formula Program: Grant Application Instructions, dated October 1, 1998, and supplemented by additional information or changes provided in this document. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU. Several important program requirements are highlighted below.
For small UZAs, the funds are apportioned to the Governor of each State for distribution. A single total Governor apportionment amount for the Urbanized Area Formula, STIC, and Growing States and High Density States will be shown in the Urbanized Area Formula Apportionment table to be published in the FTA FY 2006 apportionments and allocations Notice, after FY 2006 funding is appropriated. The table will also show the apportionment amount attributable to each small UZA within the State. The Governor may determine the suballocation of funds among the small UZAs except that funds attributed to a small UZA that is located within the planning boundaries of a Transportation Management Area (TMA) must be obligated to that small UZA, as discussed in subsection (g) below.
SAFETEA-LU establishes a one percent set-aside program from section 5307 that provides funding to UZAs under 200,000 in population that operate at a level of service equal to or above the industry average level of service for all UZAs with a population of at least 200,000 but not more than 999,999, in one or more of six performance categories: Passenger miles traveled per vehicle revenue mile, passenger miles traveled per vehicle revenue hour, vehicle revenue miles per capita, vehicle revenue hours per capita, passenger miles traveled per capita, and passengers per capita. The data for these categories comes from the most current National Transit Database (NTD) reports. This data is used to determine a UZA's eligibility under the STIC formula, and is also used in the STIC apportionment calculations. Because this performance data change with each year's NTD reports the eligible STIC UZAs may vary each year. The performance categories for providing bonus grants to STIC were established in the September 2000 FTA report to Congress called “The Urbanized Area Formula Program and the Needs of Small Transit Intensive Cities.”
SAFETEA-LU requires that one percent of section 5307 funds apportioned to UZAs with populations of 200,000 or more be spent on eligible transit enhancement activities or projects. This requirement is now treated as a certification, rather than as a set-aside as was the case under TEA-21. Grantees in UZAs with populations of 200,000 or more will be certifying they are spending not less than one percent of section 5307 funds for transit enhancements and will be required to
The term “transit enhancement” includes projects or project elements that are designed to enhance mass transportation service or use and are physically or functionally related to transit facilities. Eligible enhancements include the following: (1) Historic preservation, rehabilitation, and operation of historic mass transportation buildings, structures, and facilities (including historic bus and railroad facilities); (2) bus shelters; (3) landscaping and other scenic beautification, including tables, benches, trash receptacles, and street lights; (4) public art; (5) pedestrian access and walkways; (6) bicycle access, including bicycle storage facilities and installing equipment for transporting bicycles on mass transportation vehicles; (7) transit connections to parks within the recipient's transit service area; (8) signage; and (9) enhanced access for persons with disabilities to mass transportation.
It is the responsibility of the MPO to determine how the one percent for transit enhancements will be allotted to transit projects. The one percent minimum requirement does not preclude more than one percent being expended in a UZA for transit enhancements. However, items that are only eligible as enhancements—in particular, operating costs for historic facilities—may be assisted only within the one-percent funding level.
Each recipient of Urbanized Area Formula funds must certify that of the amount received each fiscal year, it will expend at least one percent on “public transportation security projects” or must certify that it has decided the expenditure is not necessary. For applicants not eligible to receive section 5307 funds for operating assistance, only capital security projects may be funded with the one percent. SAFETEA-LU, however, expanded the definition of eligible “capital” projects to include specific crime prevention and security activities, including: (1) Projects to refine and develop security and emergency response plans; (2) projects aimed at detecting chemical and biological agents in public transportation; (3) the conduct of emergency response drills with public transportation agencies and local first-response agencies; and (4) security training for public transportation employees but excluding all expenses related to operations, other than such expenses incurred in conducting emergency drills and training. New ALI codes have been established for these four new capital activities. The one percent may also include security expenditures included within other capital activities, and, where the recipient is eligible, operating assistance. The relevant ALI codes would be used for those activities.
Given the importance of transit security, FTA is often called upon to report to Congress and others on how grantees are expending Federal funds for security enhancements. To facilitate tracking of grantees' security expenditures, which are not always evident when included within larger capital or operating activity line items in the grant budget, we have established a new non-additive (“non-add”) scope code for security expenditures—Scope 991. The non-add scope is to be used to aggregate activities included in other scopes, and it does not increase the budget total. Section 5307 grantees should include this non-add scope in the project budget for each new section 5307 grant application or amendment. Under this non-add scope, the applicant should repeat the full amount of any of the line items in the budget that are exclusively for security and include the
If the grantee has certified that it is not necessary to expend one percent for security, the section 5307 grant application must include information to support that certification.
To summarize, a grant application requesting 5307 funds cannot be considered complete until the applicant has indicated whether it will or will not expend one percent of the 5307 funds being requested for security purposes. If the applicant has determined expenditure for security purposes is not necessary, an explanation must be provided. FTA is implementing these new grant application procedures in response to requests for information from the Inspector General.
Several SAFETEA-LU provisions allow FY 2006 Urbanized Area Formula funds to be used for operating assistance in a UZA with a population of 200,000 or more. They include: (1) Continuation of the operating assistance flexibility provisions of TEA-21 that allows transit systems in UZAs that crossed over the 200,000 population threshold, as a result of the 2000 Census, to use 5307 funds for operating assistance; (2) a provision applicable to portions of the UZAs between 200,000 and 225,000 in population that meet certain criteria; (3) a provision for certain local governmental authorities that lie outside the service area of the principal public transportation agency that serves the Houston, TX UZA; and (4) language that stipulates that section 5307 funds made available to the Anchorage UZA under fixed guideway tiers of the section 5307 apportionment formula shall be made available to the Alaska Railroad for any costs related to passenger operations. In addition, language in section 3027(c)(3) of TEA-21, as amended, is still applicable and allows the use of funds for operating assistance by certain recipients of section 5307 funds, in a UZA at least 200,000 in population, that provide service exclusively for elderly persons and persons with disabilities and operate 20 or fewer vehicles.
The requirements for each of the above provisions are described below.
(1) Section 5307(b)(2) provides exception to the use of operating assistance in UZAs that grew in population from under 200,000 to over 200,000, as a result of the 2000 Census. This exception allows for the use of funds for operating assistance in eligible UZAs at 100% of the grandfathered amount for FY 2005 funds, but this amount “phases down and out” to 50 percent in FY 2006, 25 percent in FY 2007, and zero percent in FY 2008. FTA has identified and listed all eligible UZAs in previous years apportionment notices (FY 2003-FY 2005), along with the maximum amount of the area's 5307 fund that could be used for operating. A similar list will be included in the FY 2006 apportionment Notice.
(2) Section 5307(b)(1)(E) provides for grants for the operating costs of equipment and facilities for use in public transportation in the Evansville,
(3) Section 5307(b)(1)(F) provides operating costs of equipment and facilities for use in public transportation for local governmental authorities in areas which adopted transit operating and financing plans that became a part of the Houston, Texas UZA as a result of the 2000 decennial census of population, but lie outside the service area of the principal public transportation agency that serves the Houston UZA.
(4) Section 5336(a)(2) prescribes the formula to be used to apportion section 5307 funds to UZAs with population of 200,000 or more. SAFETEA-LU amended 5336(a)(2) to add language that stated, “* * * except that the amount apportioned to the Anchorage urbanized area under subsection (b) shall be available to the Alaska Railroad for any costs related to its passenger operations.” This language has the effect of directing that funds apportioned to the Anchorage urbanized area, under the fixed guideway tiers of the section 5307 apportionment formula, be made available to the Alaska Railroad, and that these funds may be used for any capital or operating costs related to its passenger operations.
(5) Section 3027(c)(3) of TEA-21, as previously amended, provides an exception to the restriction on the use of operating assistance in a UZA with a population of 200,000 or more, by allowing transit providers/grantees that provide service exclusively to elderly persons and persons with disabilities and that operate 20 or fewer vehicles to use section 5307 funds apportioned to the UZA for operating assistance. The total amount of funding made available for this purpose under section 3027(c)(3) of TEA-21, as amended, is $1.4 million. Transit providers/grantees eligible under this provision have already been identified.
Unless one of the exceptions noted above applies, the use of FY 2006 Urbanized Area Formula funds for operating assistance is available only to small UZAs. For small UZAs, there is no limitation on the amount of the Governor's apportionment that may be used for operating assistance, and the Federal/local share ratio is 50/50.
SAFETEA-LU expands the categories of funds that can be used as local match for section 5307 projects. The newly eligible sources are advertising and concessions revenue, social service contract revenue, and revenue bonds proceeds.
Pursuant to 49 U.S.C. 5307(e) the Federal share of a grant under Section 5307 is 80 percent of net project cost for a capital project and 50 percent of net project cost for operating assistance. The remainder of the net project cost (
1. In cash from non-Government sources other than revenues from providing public transportation services;
2. From revenues derived from the sale of advertising and concessions;
3. From an undistributed cash surplus, a replacement or depreciation cash fund or reserve, or new capital;
4. From amounts received under a service agreement with a State or local social service agency or private social service organization; and
5. Proceeds from the issuance of revenue bonds. In addition, funds from section 403(a)(5)(C)(vii) of the Social Security Act (42 U.S.C. 603(a)(5)(C)(vii)) can be used to match Urbanized Area Formula funds.
Guidance for setting the boundaries of TMAs is in the joint transportation planning regulations codified at 23 CFR part 450 and 49 CFR part 613. In some cases, the TMA planning boundaries established by the MPO for the designated TMA includes one or more small UZAs. In addition, one small UZA (Santa Barbara, CA) has been designated as a TMA. In either of these situations, the Governor cannot allocate “Governor's Apportionment” funds attributed to the small UZAs to other areas; that is, the Governor only has discretion to allocate Governor's Apportionment funds attributable to areas that are outside of designated TMA planning boundaries.
The list of small UZAs included within the planning boundaries of designated TMAs is provided in the table below.
The MPO must notify the Associate Administrator for Program Management, Federal Transit Administration, 400 Seventh Street, SW., Washington, DC 20590, in writing, no later than July 1 of each year, to identify any small UZA within the planning boundaries of a TMA.
Funds apportioned to a TMA are eligible for transfer to FHWA for
The MPO should notify the appropriate FTA Regional Administrator of its intent to use FTA funds for highway purposes, as prescribed in section VIII D below. Urbanized Area Formula funds that are designated by the MPO for highway projects will be transferred to and administered by FHWA.
Urbanized Area Formula Program funds are apportioned based on legislative formulas. Different formulas are used for UZAs with populations of 200,000 or more and UZAs with populations of less than 200,000. For UZAs of 50,000 to 199,999 in population, the formula is based simply on population and population density. For UZAs with populations of 200,000 and more, the formula is based on a combination of bus revenue vehicle miles, bus passenger miles, fixed guideway revenue vehicle miles, and fixed guideway route miles, as well as population and population density.
To comply with language in the SAFETEA-LU conference report, we will combine a UZA's section 5307, STIC, and section 5340 apportionment amounts and publish a single amount. For technical assistance purposes we will identify the UZAs that received STIC funds each year and will make available breakouts of the funding allocated to each UZA under 5307, STIC and 5340 formulas, upon request to the regional office.
Urbanized Area Formula funds will remain available to be obligated by FTA to recipients for four fiscal years—which include the year of apportionment plus three additional years. Any apportioned funds that remain unobligated after this period will revert to FTA for reapportionment.
Population and population density statistics from the 2000 Census and (when applicable) validated mileage and transit service data from transit providers' 2004 NTD Report Year will be used to calculate a UZA's FY 2006 Urbanized Area Formula apportionment when FY 2006 funds are appropriated.
We will calculate dollar unit values for the formula factors used in the Urbanized Area Formula program apportionment. These values represent the amount of money each unit of a factor is worth in the FY 2006 apportionment. The unit values change each year as a result of changes in the data used to calculate a particular year's apportionments. The FTA apportionment amount for a UZA may be replicated by multiplying the dollar unit value by the appropriate formula factor.
SAFETEA-LU establishes the Clean Fuels Grant Program—formerly the Clean Fuels Formula Program under TEA-21—to support the use of alternative fuels in air quality maintenance or nonattainment areas for ozone or carbon monoxide.
SAFETA-LU authorizes the following amounts for the Clean Fuels Grant Program for fiscal years 2006-2009.
Under SAFETEA-LU, funding for the Clean Fuels program is now appropriated on a discretionary basis rather than by formula. [Note: Congress never appropriated funds for the formula program authorized by TEA-21.]
SAFETEA-LU includes 16 projects to be funded through the Clean Fuels program in section 3044, Projects for Bus and Bus-Related Facilities and Clean Fuels Buses. Table 5 displays the SAFETEA-LU authorized Clean Fuels earmarked projects.
It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Clean Fuels program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.
Clean Fuels program funds may be made available to any grantee in a UZA that is designated as maintenance or nonattainment area for ozone or carbon monoxide as defined in the Clean Air Act. Eligible recipients include section 5307 designated recipients as well as recipients in small UZAs. In the case of a small UZA, the State in which the area is located will act as the recipient.
Eligible projects include the purchase or lease of clean fuel buses (including buses that employ a lightweight composite primary structure), the construction or lease of clean fuel buses or electrical recharging facilities and related equipment for such buses, and construction or improvement of public transportation facilities to accommodate clean fuel buses.
If a recipient wishes to use funds designated under the program in SAFETEA-LU for eligible project activities outside the scope of a project designation, the recipient must submit its request for reprogramming to the House and Senate Authorizing Committees for resolution. Changes to designations that are in statute, as opposed to report language, can only be made in law. If in the future, Congress designates projects in report language, FTA will not reprogram the projects without direction from the Appropriations Committees.
Unless otherwise specified in law, grants made under the Clean Fuels program must meet all other eligibility requirements as outlined in section 5308.
Funds designated for specific Clean Fuels Program projects will remain available for obligation for three fiscal years, which includes the year of appropriation plus two additional fiscal years. Clean Fuels funds not obligated in a FTA grant for their original purpose at the end of the period of availability will generally be made available for other projects.
This program provides capital assistance for the modernization of existing fixed guideway systems. Funds
SAFETEA-LU authorizes the following amounts for the Fixed Guideway Modernization for fiscal years 2006-2009:
The formula for allocating the Fixed Guideway Modernization funds contains seven tiers. The apportionment of funding under the first four tiers is based on amounts specified in law and NTD data used to apportion funds in FY 1997. Funding under the last three tiers is apportioned based on the latest available data on route miles and revenue vehicle miles on segments at least seven years old, as reported to the NTD. Because the Fixed Guideway Modernization apportionment formula did not change from TEA-21 to SAFETEA-LU, you may refer to Table 8 of the FTA Fiscal Year 2005 Apportionments, Allocations and Program Information Notice for additional information and details on the formula.
Fixed Guideway Modernization funds must be used for capital projects to maintain, modernize, or improve fixed guideway systems. Eligible UZAs (those with a population of 200,000 or more) with fixed guideway systems that are at least seven years old are entitled to receive Fixed Guideway Modernization funds. A threshold level of more than one mile of fixed guideway is required in order to receive Fixed Guideway Modernization funds. Therefore, UZAs reporting one mile or less of fixed guideway mileage under the NTD are not included. Program guidance for Fixed Guideway Modernization is presently found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
Funds apportioned under the Fixed Guideway Modernization Program will remain available to be obligated by FTA to recipients for four fiscal years—which include the year of apportionment plus three additional years. Any apportioned funds that remain unobligated at the end of this period will revert to FTA for reapportionment under the program.
Generally, there were no changes to the formula or eligibility criteria for the program in SAFETEA-LU from those specified in TEA-21. However, sections 5337(f) (g) of SAFETEA-LU provides for the inclusion of Morgantown, WV (population 55,997) as an eligible UZA for purposes of apportioning fixed guideway modernization funds. Also, language in section 5336(b) has the impact of directing FTA to use 60 percent of the directional route miles attributable to the Alaska Railroad passenger operations system to calculate apportionments for the Anchorage, AK UZA under the 5307 and Fixed Guideway Modernization formulas.
The Bus and Bus-Related Facilities program provides capital assistance for new and replacement buses and related equipment and facilities.
SAFETEA-LU authorizes the following amounts for the Bus and Bus-Related Facilities program for fiscal years 2006-2009.
Funding is appropriated on a discretionary basis. SAFETEA-LU includes 646 earmarked projects to be funded through the Bus Program in section 3044, Projects for Bus and Bus-Related Facilities and Clean Fuels Buses. Table 4 displays the SAFETEA-LU authorized earmarked projects.
It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Bus and Bus-Related Facilities program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.
Eligible capital projects include the acquisition of buses for fleet and service expansion, bus maintenance and administrative facilities, transfer facilities, bus malls, transportation centers, intermodal terminals, park-and-ride stations, acquisition of replacement vehicles, bus rebuilds, bus preventive maintenance, passenger amenities such as passenger shelters and bus stop signs, accessory and miscellaneous equipment such as mobile radio units, supervisory vehicles, fare boxes, computers, and shop and garage equipment.
A general provision in the appropriations acts of FY 2004 (section 547) and FY 2005 (section 125) contained language making the earmarked projects eligible under the program “notwithstanding any other provision of law.” SAFETEA-LU did not include a similar “Notwithstanding” provision, but the wording of certain bus program earmarks included expanded eligibility. The FY 2006 Appropriations Act might modify some of the authorized earmarks. Unless stated in law to the contrary, projects
If a recipient wishes to apply for use of funds designated under the Bus and Bus-Related Facilities program in SAFETEA-LU for project activities outside the scope of the project designation, the recipient must submit its request for reprogramming to the House and Senate Authorizing Committees for resolution. Changes to earmarks that are in statute, as opposed to report language, can only be made in law. FTA will not reprogram projects earmarked by Congress in report language without direction from the Appropriations Committees.
Grants made under the Bus and Bus-Related Facilities program must meet all other eligibility requirements as outlined in section 5309 unless otherwise specified in law.
Program guidance for Bus and Bus-Related Facilities is found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
Funds designated for specific Bus Program projects remain available for obligation for three fiscal years—which includes the fiscal year in which the amount is made available or appropriated plus two additional years. Bus and Bus-Related Facilities funds not obligated in a FTA grant for their original purpose by the end of this period will generally be made available for other projects.
Prior year unobligated balances for Bus and Bus-Related Facilities allocations in the amount of $723,995,747 remain available for obligation in FY 2006. The amounts that remain unobligated as of September 30, 2005, can be found in Table 6. Projects appropriated prior to FY 2004 and extended in the FY 2006 Appropriations Act or accompanying Conference Report will be included in the FY 2006 Apportionments and Allocations Notice.
The Bus Program remains largely unchanged with the passage of SAFETEA-LU; however, one significant change is the inclusion of private companies engaged in public transportation and private non-profit organizations as eligible subrecipients of FTA grants. Prior to SAFETEA-LU, private non-profit entities could only receive FTA funds if they were selected by a public authority through a competitive process, and private operators were not eligible subrecipients. Private operators may now receive FTA funds as a pass-through without competition if they are included in a program of projects submitted by the designated public authority acting as the direct recipient of a grant.
SAFETEA-LU made several changes in the way funding is allocated for New Starts projects. Beginning in FY 2007, $200,000,000 each year is designated for “Small Starts” (section 5309(e)) projects with a New Starts share of less than $75,000,000 and a net project cost of less than $250,000,000. Major Capital Investment grants of $75,000,000 or more (section 5309 (d)) will receive $7.4 billion over the five years. In addition, SAFETEA-LU authorizes 38 projects for FD and 264 projects for PE. The total amount of FY 2006-2009 funding for 31 existing FFGA projects is $2,136,764,604. Fifty-two additional New Starts projects are authorized for a total of $3,237,700,000 during SAFETEA-LU.
Congress allocated $10,500,000 to Alaska and Hawaii for ferryboats each year of TEA-21 and for FY 2005. SAFETEA-LU allocates $15,000,000 to Alaska and Hawaii for ferryboats for FY 2006-FY 2009. The allocation is split equally between Alaska and Hawaii.
SAFETEA-LU also makes $5,000,000 available for each year, FY 2006-FY 2009, to the Denali Commission in Anchorage, Alaska under the terms of section 307(e) of the Denali Commission Act of 1998 (42 U.S.C. 3121) for docks, waterfront development projects and related transportation infrastructure. The Commission was established to (1) deliver the services of the Federal Government cost effectively, (2) provide job training and other economic development services in rural communities, and (3) promote rural development, provide power generation and transmission facilities, modern communication systems, water and sewer systems and other infrastructure needs.
SAFETEA-LU authorizes the following amounts for the New Starts program for fiscal years 2006-2009.
Because New Starts projects are earmarked in law rather than report language, reprogramming for a purpose other than that specified must also occur in law. New Starts projects are subject to a complex set of approvals related to planning and project development set forth in 49 CFR part 611. Program guidance for New Starts is found in FTA Circular C9300.1A, Capital Program: Grant Application Instructions, dated October 1, 1998; and C5200.1A, Full Funding Grant Agreement Guidance, dated December 5, 2002. FTA is in the process of updating these circulars to incorporate changes resulting from language in SAFETEA-LU.
New Starts funds remain available for three fiscal years—which includes the fiscal year the funds are made available or appropriated plus two additional years. Funds may be extended by Congress or made available for other projects after the period of availability has expired.
Prior year unobligated allocations for New Starts in the amount of $557,727,154 remain available for obligation in FY 2006. This amount includes $112,052,679 in FY 2004 and $445,674,475 in FY 2005 unobligated allocations. These unobligated amounts are displayed in Table 7.
This program provides formula funding to States for capital projects to assist in meeting the transportation needs of the elderly and persons with disabilities. The State (or State-designated agency) administers the section 5310 program. The State's responsibilities include: notifying eligible local entities of funding
FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the Special Needs of Elderly Individuals and Individuals with Disabilities program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program.
SAFETEA-LU authorizes the following amounts for the Special Needs of Elderly Individuals and Individuals with Disabilities program for fiscal years 2006-2009.
Funds are allocated according to a formula based on the number of elderly individuals and individuals with disabilities in each State using Census 2000 data.
Funds are available to support the capital costs of transportation services for older adults and people with disabilities. Uniquely under this program, eligible capital costs include the acquisition of service. Capital assistance is provided on an 80 percent Federal, 20 percent local matching basis except that SAFETEA-LU allows states eligible for the sliding scale match under FHWA programs to use that match ratio for section 5310 capital projects. Funds provided under other Federal programs (other than those of the Department of Transportation, with the exception of the Federal Lands Highway Program established by section 204 of Title 23 U.S.C.) may be used as match for capital funds provided under section 5310. Revenue from service contracts may also be used as local match.
Those eligible to receive section 5310 funding include private nonprofit agencies, public bodies approved by the state to coordinate services for elderly persons and persons with disabilities, or public bodies which certify to the Governor that no nonprofit corporations or associations are readily available in an area to provide the service.
States may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. Beginning in FY 2006, no local share is required for these program administrative funds. FTA previously administratively allowed States to use ten percent of the capital funds for administration at the capital matching share, but SAFETEA-LU specifically allows ten percent for administration.
The section 5310 program was previously subject to the requirements of section 5309 to the extent the Secretary determined appropriate. SAFETEA-LU changed the applicable requirements to 5307, to the extent the Secretary determines appropriate. FTA is not applying any new requirements to the section 5310 program as a result of this technical change.
Beginning in FY 2007, the State recipient must certify that: the projects selected were derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private, and nonprofit transportation and human services providers and participation by the public. Projects in the locally developed, coordinated public transit-human services transportation plan must be integrated into and consistent with the metropolitan and state planning processes. Finally, each grant recipient must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.
The planning requirement is also a requirement in two additional programs. The Job Access Reverse Commute program (in FY 2006) and the New Freedom program (in FY 2007) will also be required to have a coordinated human service plan. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs. FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes.
Program guidance is found in FTA C 9070.1E, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
There is no statutory period of availability for section 5310. Given the relatively simple nature of the state administered program with many subrecipients receiving small capital grants, FTA previously allowed only one year of availability. Given the new common planning requirement with JARC and New Freedom, beginning with FY 2006 funding, FTA is extending the period of availability for section 5310 to three years, which includes the year funds are apportioned plus two additional years, consistent with the other two programs.
Under Title III of SAFETEA-LU section 3012(b), the following states are named as eligible to use up to 33 percent of their section 5310 funds starting in FY 2006 for operating expenses: Wisconsin, Alaska, Minnesota, and Oregon. FTA is authorized to select an additional three states to participate in the pilot. FTA issued a separate
Section 5310 funds may be transferred to the section 5311 or the section 5307 program, but only to implement projects competitively selected under the section 5310 program. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the Urbanized Area Formula or Non-urbanized Area Formula programs, as was the case under TEA-21. A State that transfers section 5310 funds to section 5307 must certify that each project for which the
This program provides formula funding to States and Indian Tribes for the purpose of supporting public transportation in areas with a population of less than 50,000. Funding may be used for capital, operating, State administration, and project administration expenses. Each State prepares an annual program of projects, which must provide for fair and equitable distribution of funds within the States, including Indian reservations, and must provide for maximum feasible coordination with transportation services assisted by other Federal sources. SAFETEA-LU identifies Indian Tribes as direct recipients under section 5311.
SAFETA-LU authorizes the following amounts for the Nonurbanized Areas Formula program.
In addition to the funds made available to States under section 5311, approximately 16 percent of the funds authorized for the new section 5340 Growing States and High Density States formula factors will be apportioned to States for use in nonurbanized areas. The portion of the section 5340 authorized funds allocable to States for nonurbanized areas is shown in the following table.
The States receive funding for nonurbanized areas only from the Growing States portion of the 5340 formulas. Fifty percent of the funds authorized for section 5340 are allotted to Growing States and the other 50 percent goes to High Density. The High Density formula allocates all of its funds to urbanized areas.
Funding for the Tribal Transit Program, oversight, and the Rural Transportation Assistance Program (RTAP) will be taken off the top before amounts are apportioned to the States. Takedowns for Tribal Transit and RTAP based on authorized funding levels are shown below.
SAFETEA-LU changed the formula for section 5311. Starting in FY 2006, twenty percent of the funds available will be apportioned to the states based on land area in nonurbanized areas with no state receiving more than 5 percent of the amount apportioned. The remaining eighty percent will be apportioned based on nonurbanized population, as before. The effect of this change is to provide additional resources to low density States.
The Nonurbanized Area Formula Program provides capital, operating and administrative assistance for areas with a population under 50,000. The Federal share for capital assistance is 80 percent and for operating assistance is 50 percent, except that SAFETEA-LU allows states eligible for the sliding scale match under FHWA programs to use that match ratio for section 5311 capital projects and 62.5 percent of the sliding scale capital match ratio for operating projects.
Each State must spend no less than 15 percent of its FY 2005 Nonurbanized Area Formula apportionment for the development and support of intercity bus transportation, unless the State certifies, after consultation with affected intercity bus service providers, that the intercity bus service needs of the State are being adequately met. SAFETEA-LU added this requirement for consultation with the industry to strengthen the certification requirement. FTA also encourages consultation with other stakeholders, such as communities affected by loss of intercity service.
Program guidance for the Nonurbanized Area Formula Program is found in FTA C 9040.1E, Nonurbanized Area Formula Program Guidance and Grant Application Instructions, dated October 1, 1998. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU.
Funds apportioned to States under the Nonurbanized Area Formula Program will remain available for three fiscal years—which includes the fiscal year the funds were apportioned plus two additional years. Any funds that remain unobligated at the end of this period will revert to FTA for allocation among the States under the Nonurbanized Area Formula Program.
SAFETEA-LU added a requirement to provide rural transit data to the NTD. Each recipient under the section 5311 program shall submit an annual report to the Secretary, containing information
This program provides funding to assist in the design and implementation of training and technical assistance projects, research, and other support services tailored to meet the needs of transit operators in nonurbanized areas.
SAFETEA-LU changes the source of funding for RTAP. Previously funded under the National Planning and Research Program, starting in FY 2006, RTAP is funded as a two percent takedown from the amount authorized and appropriated for section 5311. The takedown amount based on funds authorized for section 5311 for fiscal years 2006-2009 is as follows:
Of the takedown, FTA may use up to 15 percent for projects of a national scope. The remaining 85 percent is allocated to the States.
For FY 2006, FTA will use the current administrative formula. Funds are allocated to the States by an administrative formula consisting of a $65,000 floor for each State ($10,000 for territories), with the balance allocated based on nonurbanized population in the 2000 Census. The floor was raised from $50,000 to $65,000 in FY 1999. Comments are invited on whether the floor should again be raised and whether the low density portion of the section 5311 formula should be used.
Funds are allocated to the States to undertake research, training, technical assistance, and other support services to meet the needs of transit operators in nonurbanized areas. These funds are to be used in conjunction with a State's administration of the Nonurbanized Area Formula Program.
Funds apportioned to States under RTAP will remain available for three fiscal years—which includes the fiscal year the funds were apportioned plus two additional years. Any funds that remain unobligated after the end of this period will revert to FTA for allocation among the States under the RTAP.
The National RTAP project is administered by the American Public Works Association in consortium with the Community Transportation Association of America, under a cooperative agreement re-competed at five-year intervals. The projects are guided by a project review board of managers of rural transit systems and State Department of Transportation rural transit programs. National RTAP resources have also supported the biennial TRB National Conference on Rural Public and Intercity Bus Transportation. The percentage takedown for RTAP, combined with rising funding levels for section 5311, make additional resources available for national projects such as providing technical assistance for the new tribal transit program. FTA invites comments on use of the National RTAP resource.
SAFETEA-LU creates a new Tribal Transit Program as a takedown under the section 5311 program. Indian Tribes are defined as eligible direct recipients. The funds are to be apportioned for grants to Indian Tribes for any purpose eligible under section 5311, which includes capital and operating assistance for rural public transit services. Support for rural intercity bus service, including planning and marketing, is eligible. Planning for rural transit is not eligible. FTA will develop procedures for the Tribal Transit program in consultation with tribal leaders and other interested stakeholders and will provide an opportunity for the public to comment on its new methodology.
The takedown amount authorized for Tribal Transit for fiscal years 2006-2009 is as follows:
SAFETEA-LU does not specify a basis for formula apportionment. FTA will develop procedures for allocating the funds in consultation with the Tribes and with opportunity for public comment. An interim measure would be to allocate FY 2006 funds based on responses to a request for letters of interest. FTA requests comments on the feasibility of allocating FY 2006 funds based on this approach. Because planning is not an eligible activity under the program, FTA is considering limiting transit participation to Tribes which already have transit options or which have already conducted planning and are prepared to implement new transit service. We seek comments on what criteria should be considered in selecting Tribes to receive funding and what factors should be used in allocating available funds among successful applicants.
Grants may be made to Indian Tribes for any purpose eligible under section 5311. Eligibility under section 5311 includes capital and operating assistance for local public transportation service in other than urbanized areas. Planning is not an eligible activity except under section 5311(e), which allows States to use 15 percent of a States' apportionment for administration, planning, and technical assistance, and 5311(f), which allows planning for intercity bus transportation. Support for rural intercity bus service is eligible under section 5311.
FTA may establish the terms and conditions for the program. FTA seeks comments about appropriate terms and conditions for the program. We especially invite comments from Tribes that previously received FTA funding about which requirements we should consider waiving for the Tribal Transit program.
Funds will remain available for three fiscal years, which includes the fiscal year the funds were apportioned or appropriated plus two additional years. Any funds that remain unobligated after this period will revert to FTA for reallocation among the Tribes.
The funds set aside for Indian Tribes are not meant to replace or reduce funds that Indian Tribes receive from states through the section 5311 program but are to be used to enhance public transportation on Indian reservations. Funds allocated to Tribes by the States may be included in the State's section 5311 application or awarded by FTA in a grant directly to the tribe. We encourage Tribes intending to apply to FTA as direct recipients to contact the appropriate FTA regional office at the earliest opportunity.
Planning for Tribal Transit projects may be funded under the following programs: FTA and FHWA Statewide Planning programs; the State's apportionment under section 5311; and the Indian Reservation Roads Program (IRR). Technical assistance for Tribes may be available from the State DOT using the State's allocation of RTAP or funds available for State administration under section 5311, from the Tribal Transportation Assistance Program (TTAP) Centers supported by FHWA, and from the Community Transportation Association of America under a program funded by the United States Department of Agriculture (USDA). The National RTAP will also be developing new resources for Tribal Transit.
FTA's National Research Programs include the National Research and Technology Program (NRTP), Project ACTION, the National Technical Assistance Center for Senior Transportation, and the Medical transportation grants program.
Through funding under these programs, FTA seeks to deliver solutions that improve public transportation. FTA's Strategic Research Goals are to provide transit research leadership, increase transit ridership, improve capital and operating efficiencies, improve safety and emergency preparedness, and to protect the environment and promote energy independence. For more information contact Bruce Robinson, Office of Research, Demonstration and Innovation, at (202) 366-4209.
SAFETEA-LU authorizes the following amounts for the National Research Program for fiscal years 2006-2009.
SAFETEA-LU project authorizations under the National Research Program are listed in Table 8.
All research and research and development projects are subject to a 2.6% reduction for the Small Business Innovative Research Program (SBIR). FTA will make the determination as to whether or not the SBIR reduction will be applied to a particular project—based on our review of the proposed scope of work for the project.
Funds not designated by Congress for specific projects and activities will be programmed by FTA based on FTA's Strategic Research Plan using competitive procedures to the maximum extent possible.
Application Instructions and Program Management Guidelines are set forth in FTA Circular 6100.1C. FTA is in the process of updating this circular to incorporate changes resulting from language in SAFETEA-LU. Research projects must support FTA's Strategic Research Goals and meet the Office of Management and Budget's Research and Development Investment Criteria. All research recipients are required to work with FTA to develop approved Statements of Work. A plan to evaluate research results must be in place before award of a research grant.
Eligible activities under the NRTP include research, development, demonstration and deployment projects as defined by 49 U.S.C. 5312 (a); Joint Partnership projects for deployment of innovation as defined by 49 U.S.C. 5312(b); International Mass Transportation Projects as defined by 49 U.S.C. 5312(c); and, human resource programs as defined by 49 U.S.C. 5322.
Funds are available until expended.
Requests for research proposals will be published in grants.gov under CFDA 20.514.
The Job Access and Reverse Commute (JARC) program provides formula funding to States and Designated Recipients to support the development and maintenance of job access projects designed to transport welfare recipients and eligible low-income individuals to and from jobs and activities related to their employment, and for reverse commute projects designed to transport residents of UZAs and other than urbanized to suburban employment opportunities. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the JARC program.
SAFETEA-LU authorizes the following amounts for the Job Access and Reverse Commute Program for fiscal years 2006-2009:
SAFETEA-LU establishes JARC as a formula program and provides that 60% of funds available be allocated to UZAs with populations of 200,000 or more persons (large UZAs); 20% to urbanized areas with populations ranging from 50,000 to 200,000 persons (small UZAs), and 20% to rural and small urban areas with populations of less than 50,000 persons. Funds are allocated to the States for small UZAs and rural and small urban areas and to designated recipients in large UZAs. A single apportionment will be published for each large UZAs.
Formula allocations are based upon the number of persons with disabilities residing in a state or metropolitan area. These figures are drawn from Census 2000 figures. In cases where a large UZA has more than one designated recipient, they may agree upon a single competitive selection process or sub-allocate funds to each designated recipient, based upon a percentage split agreed upon locally, and conduct separate planning processes and competitions.
States and designated recipients must solicit grant applications and select projects competitively, based on application procedures and requirements established by the designated recipient, consistent with the Federal JARC program objectives. In the case of large UZAs, the area-wide solicitation shall be conducted in cooperation with the appropriate MPO(s).
Funds are available to support the capital and operating costs of transportation services that address the needs of welfare recipients and eligible low-income individuals that are not met by other transportation services. Federal JARC funds may be used for 80% of capital expenses and 50% of operating expenses. Funds provided under other Federal programs (other than those of the Department of Transportation) may be used for local/state match for funds provided under section 5316, and revenue from service contracts may be used as local match.
Funding is available for transportation services provided by public, non-profit, or private-for-profit operators. Assistance may be provided for a variety of transportation services and strategies directed at assisting welfare recipients and eligible low-income individuals address unmet transportation needs. Examples of projects and activities that might be funded under the program include, but are not limited to:
• Transportation projects to finance planning, capital, and operating costs of providing access to jobs;
• Promoting public transportation by low-income workers, including the use of public transportation by workers with nontraditional work schedules;
• Promoting the use of transit vouchers for welfare recipients and eligible low-income individuals;
• Promoting the use of employer-provided transportation, including the transit pass benefit program under section 132 of the Internal Revenue Code of 1986;
• Subsidizing the costs associated with adding reverse commute bus, train, carpool, van routes, or service from urbanized areas and other than urbanized areas to suburban workplaces;
• Subsidizing the purchase or lease by a nonprofit organization or public agency of a van or bus dedicated to shuttling employees from their residences to workplaces;
• Facilitating the provision of public transportation services to suburban employment opportunities.
States and designated recipients may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. Beginning in FY 2006, no local share is required for these program administrative funds.
A recipient of JARC funds must certify that projects selected were derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private and non-profit transportation and human service providers; participation by the public; and included those representing the needs of welfare recipients and eligible low-income individuals. Projects in the locally developed, coordinated public transit-human services transportation plan must be integrated into and consistent with the metropolitan and state planning processes. Finally, recipients must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.
The planning requirement applies not only to JARC, but beginning in FY 2007 to the section 5310 and section 5317 (New Freedom) programs. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs. In FY 2006, in areas with no current JARC plan, the planning partners should at a minimum be consulted about projects and where possible expressions of support should be obtained and documented. For areas that previously received JARC discretionary funding, the previous JARC plan may satisfy the requirement in FY 2006. FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes.
While there is no statutory period of availability for JARC funds, FTA is establishing a consistent three-year period of availability for JARC, New
Grants are subject to the requirements of section 5307, including certification of labor protection arrangements.
States may transfer funds to FTA's section 5307 or section 5311 programs. Funds so transferred must be used for the express purposes designated by the JARC program and must meet all associated requirements. The projects for which the funds are transferred must have been competitively selected and derived from the locally coordinated public transit—human services transportation plan. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the Urbanized Area Formula or Non-urbanized Area Formula programs. This provision allows the small UZAs to apply for funding directly from FTA, rather than through a statewide grant and allows Tribes to be direct recipients. A State that transfers funds to section 5307 must certify that the JARC projects being funded have been coordinated with nonprofit providers of service.
FTA has established a new scope code (646) to be used when JARC projects are funded within a 5307 or 5311 grant. Transfer to section 5307 or 5311 is permitted but not required. FTA will also award stand-alone JARC grants with the section code 37 in the project number.
States may move funds between the small UZA and the nonurbanized parts of the state apportionment, if the Governor certifies that all of the objectives of JARC are met in the specified area. States may also transfer funds in the small UZA and nonurbanized areas for projects anywhere in the State if the State has established a statewide program for meeting the objectives of JARC.
JARC earmarks carried over from TEA-21 are subject to the terms and conditions under which they were originally appropriated. The local match for both capital and operating assistance remains consistent with the TEA-21 authorization as a 50/50 match. All projects should be in the regional JARC Plan as required under TEA-21. Prior year carryover is shown in Table 9.
SAFETEA-LU requires FTA to conduct a study to evaluate the effectiveness of the JARC program (49 U.S.C. 5316(i)(2)). FTA seeks comment on strategies and measures that will evaluate the successes of this program.
The New Freedom Program (NFP) was established in SAFETEA-LU. The program purpose is to provide new public transportation services and public transportation alternatives beyond those currently required by the Americans with Disabilities Act of 1990 (42 U.S.C. 12101
FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the New Freedom program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program.
SAFETA-LU authorizes the following amounts for the New Freedom program for fiscal years 2006-2009.
SAFETEA-LU establishes a New Freedom Program as a formula program and provides that 60% of funds available be allocated to urbanized areas with populations of 200,000 or more persons (large urbanized areas); 20% to urbanized areas with populations ranging from 50,000 to 200,000 persons (small UZAs), and 20% to rural and small urban areas with populations of less than 50,000 persons (nonurbanized areas). Funds are allocated to the States for small UZAs and nonurbanized areas and to designated recipients in metropolitan areas with populations of 200,000 or more.
Formula allocations are based upon the number of persons with disabilities residing in a State or metropolitan area. The data includes elderly persons with disabilities. These figures are drawn from Census 2000 figures. In cases where a large UZA has more than one designated recipient, they may agree upon a single competitive selection process or sub-allocate funds to each designated recipient, based upon a percentage split agreed upon locally, and conduct separate planning processes and competitions.
States and designated recipients must solicit grant applications and select projects competitively, based on application procedures and requirements established by the recipient. In the case of large urbanized areas, the area-wide solicitation shall be conducted in cooperation with the appropriate MPO(s).
Funds are available to support the capital and operating costs of new public transportation services and public transportation alternatives that are beyond those required by the Americans with Disabilities Act. Federal New Freedom funds may be used for 80 percent of capital expenses and 50 percent of operating expenses. There is no limitation on the amount of funds that can be used for operating expenses. Funds provided under other Federal programs (other than those of the DOT) may be used as match for capital funds provided under section 5317, and revenue from contract services may be used as local match.
Funding is available for transportation services provided by public, non-profit, or private-for-profit operators. Assistance may be provided for a variety of transportation services and strategies directed at assisting persons with disabilities address unmet transportation needs. The conference report stated that examples of projects and activities that might be funded under the program include, but are not limited to:
• Purchasing vehicles and supporting accessible taxi, ride-sharing, and vanpooling programs.
• Providing paratransit services beyond minimum requirements (
• Making accessibility improvements to existing transit and intermodal stations not designated as key stations.
• Supporting voucher programs for transportation services offered by human service providers.
• Supporting volunteer driver and aide programs.
• Acquisition of transportation services by a contract, lease, or other arrangement.
• Supporting mobility management and coordination programs among public transportation providers and other human service agencies providing transportation.
We invite comment on the projects and activities listed above and how they relate to what is “beyond the ADA.” We invite comment on activities related to ADA complementary paratransit services beyond the minimum requirements outlined in 49 CFR part 37. Further, we invite comment regarding the types of projects and services that should be considered for eligibility under New Freedom as they relate to new public transportation beyond the ADA and alternatives to public transportation beyond the ADA.
States and designated recipients may use up to ten percent of their annual apportionment to administer, plan, and provide technical assistance for a funded project. No local share is required for these program administrative funds.
Beginning in FY 2007, a recipient of New Freedom funds must certify that projects selected are derived from a locally developed, coordinated public transit-human services transportation plan; and, the plan was developed through a process that included representatives of public, private and non-profit transportation and human service providers; participation by the public; and representatives addressing the needs of persons with disabilities. In FY 2006, the planning partners should at a minimum be consulted about projects and where possible expressions of support should be obtained and documented. Finally, each grant recipient must certify that allocations of the grant to subrecipients are distributed on a fair and equitable basis.
The planning requirement is also a requirement in two additional programs. The Job Access Reverse Commute program (in FY 2006) and the Capital Program for Elderly and People with Disabilities (in FY 2007) will also be required to have a locally developed, coordinated public transit-human services transportation plan. It is anticipated that most areas will develop one consolidated plan for all the programs, which may include separate elements and other human service transportation programs.
While there is no statutory period of availability for New Freedom, FTA is establishing a consistent three-year period of availability for JARC, New Freedom, and the section 5310 program, which includes the year of apportionment plus two additional years. Funds allocated to States under the New Freedom program that remain unobligated at the end of this period will revert to FTA for reapportionment among the States and large UZAs under the New Freedom program.
Grants are subject to the requirements of section 5310 to the extent the Secretary deems appropriate. FTA will not require labor protective arrangements for this program.
States may transfer funds to FTA's section 5307 or section 5311 programs. Funds so transferred must be used for the express purposes designated by the New Freedom Program and must meet all associated requirements. The projects for which the funds are transferred must have been competitively selected and derived from the locally developed, coordinated public transit-human services transportation plan. The purpose of the transfer provision under SAFETEA-LU is for administrative streamlining of grant making, not to supplement the resources available under the urbanized or non-urbanized formula programs. This provision allows the small UZAs to apply for funding directly from FTA, rather than through a statewide grant and allows Tribes to be direct recipients. A State that transfers funds to section 5307 must certify that New Freedom projects being funded have been coordinated with nonprofit providers of service.
FTA has established a new scope code (647) to be used when New Freedom Projects are funded within a 5307 or 5311 grant. Transfer of funds to section 5307 or 5311 is permitted but not required. FTA will also award stand-alone New Freedom grants with the section code 57 in the project number.
FTA will work with the Department of Interior and other Federal land management agencies to implement this program during FY 2006. No procedures for allocating the funds have yet been established.
Alternative Analysis projects are studies conducted as part of the transportation planning process required under sections 5303 and 5304. Beginning in FY2006, funding is provided under section 5339 instead of within the eight percent allowed for projects prior to FD and Construction under TEA-21.
SAFETEA-LU authorizes the following amounts for the Alternative Analysis program for fiscal years 2006-2009.
In FY 2006 and FY 2007 there are 18 projects authorized for a total of $18,900,000 each year, leaving $6,100,000, which could be allocated to other projects during those years. There are no projects authorized in FY 2008 or FY 2009. The projects authorized in SAFETEA-LU are listed in Table 3. It is important to note that these allocations are subject to be changed by subsequent appropriations acts and additional projects may be earmarked during the appropriations process. Final Alternative Analysis program allocations for FY 2006 will be published after enactment of the FY 2006 Appropriations Act.
The transportation planning process of Alternative Analysis includes (a) An assessment of a wide range of public transportation alternatives, which will address transportation problems within a corridor or subarea; (b) ample information to enable the Secretary to make the findings of project justification and local financial commitment; (c) the selection of a locally preferred alternative; and (d) the adoption of the locally preferred alternative, which will be part of the long-range transportation plan. The Government's share of the total cost of a project under this section is 80 percent. The funds will be awarded as separate section 5339 grants. The grant requirements under this program will be comparable to those for section 5309 grants.
Funds shall remain available for three fiscal years, which includes the fiscal year the funds are made available or appropriated plus two additional years.
A new section 5340 is added by SAFETEA-LU to allocate funds to Growing States and High Density States. For this section, the term ‘State’ is defined only to mean the 50 States. For the Growing State portion of section 5340, funds are allocated based on the population forecasts for fifteen years after the date of that census. Forecasts are based on the trend between the most recent decennial census and Census Bureau population estimates for the most current year. Funds allocated to the States are then sub-allocated to urbanized and non-urbanized areas based on forecast population, where available. If forecasted population data at the urbanized level is not available, funds are allocated to current urbanized and non-urbanized areas on the basis of current population. Funds allocated to urbanized areas are included in their section 5307 apportionment. Funds allocated for non-urbanized areas are included in the states' section 5311 apportionments.
Funding for the High Density States portion of section 5340 is allocated to the seven States with population densities in excess of 370 persons per square mile, based on 2000 Census information. Each State receives a prorated share of the available funds. To arrive at a State's prorated share the formula requires that a series of mathematical calculations be performed using 2000 Census population, land area, and UZA population data for each State to produce the State's apportionment factor. The steps used to compute a State's apportionment factor are as follows:
The factors for the seven States are summed and divided by the individual State factor to arrive at the State ratio or percentage. This ratio is multiplied by the available funding to arrive at the State's apportionment of High Density funding. The allocation of a State's High Density apportionment among the UZAs in each State is based on each UZA receiving a proportional share of the State's apportionment according to a UZA's population within the State, as related to the total UZA population for the State. Population, population density and land area data from the most recent Decennial Census is used in the High Density formula.
FTA will publish single urbanized and rural apportionments that show the total amount for 5307 and 5311 programs that includes apportionments these programs formulas together with 5340.
The Over-the-Road Bus Accessibility (OTRB) Program authorizes FTA to make grants to operators of over-the-road buses to help finance the incremental capital and training costs of complying with the DOT over-the-road bus accessibility final rule, 49 CFR part 37, published on September 28, 1998 (63 FR 51670). FTA conducts a national solicitation of applications, and grantees are selected on a competitive basis.
SAFETA-LU authorizes the following amounts for the OTRB program for fiscal years 2006-2009.
Of the authorized amounts, the following funding is allocable to providers of intercity fixed-route service (75 percent) and to other providers of over-the-road bus services, including local fixed-route service, commuter service, and charter and tour service (25 percent).
FTA allocates the funds appropriated annually among eligible private operators of over-the-road buses that apply in response to a request for proposals published in the
FTA will screen all applications to determine whether all required eligibility elements are present. An FTA evaluation team will evaluate each application according to the criteria described in the announcement. FTA will notify all applicants, both those selected for funding and those not selected when the competitive selection process is complete. Projects selected for funding will be published in a
Projects are competitively selected. The Federal share of the project is 90 percent of net project cost. Program guidance is provided in the
Funds are available until expended.
The FTA has identified a series of national Planning Emphasis Areas (PEAs) to promote as priority themes for consideration in developing the annual work programs for Statewide Planning (State Planning and Research, or SP&R) and Metropolitan Planning (Unified Planning Work Program, or UPWP). The PEAs represent topics in statewide and metropolitan planning that are of strategic national importance and are proposed for consideration by State and local officials as they prepare UPWPs and SP&R programs during the next applicable annual planning program cycle. This year's PEAs broadly promote improved person mobility, while addressing Core Accountabilities of FTA's Strategic Business Plan. The Strategic Business Plan may be viewed at the FTA Web site,
A dedicated program of technical assistance and informational support is being made available to States, MPOs, and public transportation operators to aid in carrying out work activities that support the PEAs. The Transportation Planning Capacity Building Program (TPCB), accessible on-line at
Finally, FTA is interested in identifying and showcasing examples of effective and innovative practice in Statewide and Metropolitan Planning that support the PEAs. States, MPOs, and public transportation operators are encouraged to forward work scopes and reports documenting their innovative efforts to their respective FTA Region Offices, so they may be reviewed and forwarded to Headquarters for national dissemination through a dedicated webpage to be developed over the coming year.
FTA has identified five key themes as PEAs for the current and upcoming fiscal year: (1) Incorporating Safety and Security in Transportation Planning; (2) Participation of Transit Operators in Metropolitan and Statewide Planning; (3) Coordination of Non-Emergency Human Service Transportation; (4) Planning for Transit Systems Management/Operations to Increase Ridership; and (5) Support Transit Capital Investment Decisions through Effective Systems Planning.
Since passage of the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991, and in all subsequent surface transportation authorizing legislation, States and MPOs have been encouraged to incorporate safety and security in their plans, programs, and ongoing planning activities. Most recently, SAFETEA-LU has expanded emphasis on safety and security by de-coupling the two concepts and elevating their status as individual factors in the planning process. Communication and collaboration among safety professionals, emergency service providers, the enforcement community, and transportation planners is essential to successfully integrate safety and security into all stages of transportation planning and decision-making.
Regarding transportation system safety, information describing the tools and strategies associated with the implementation of transportation safety planning within statewide and metropolitan transportation planning processes, including resources targeted to the planning organizations, is available at
The types of planning work activities addressed under this emphasis area can include, among others, education, training, and development/application of analytical processes related to addressing safety and security in planning on a systematic basis, and development and use of approaches to considering safety and security in setting implementation priorities in plans and programs. The “security” component of this emphasis area refers to both maintaining the personal security of transportation system operators and users, as well as strategies for system operations that support the “homeland” security of localities, regions, States, and the nation. Coordinated approaches to the training of operators, deployment of communications and control technologies, and general coordination of emergency preparedness are among the types of planning activities that fall under this category.
A high-profile theme that spans both security and safety is disaster planning. In particular, areas that are vulnerable to disasters of either man-made or natural origin are encouraged to consider including disaster planning work activities into their SP&Rs and UPWPs. Examples of planning-related disaster planning activities include all stages of emergency preparedness planning—ranging from preparing multimodal evacuation plans before a possible event, to strategies for bringing emergency supplies and relief aid to affected areas after the event. Additional
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SAFETEA-LU expands the mandate and opportunities for transit operator participation in multimodal transportation decision-making through Statewide and Metropolitan planning. This PEA outlines a set of strategies for realizing the full potential and benefits of multimodal decision-making. A recent FTA publication, Transit at the Table: A Guide to Participation to Metropolitan Decision Making, available online and in hard-copy, provides candid testimonials of the values and strategies for full achievement of “transit-at-the-table” by transit and MPO leaders from 25 metropolitan areas across the U.S.
Among the planning activities that support this emphasis area are (a) establishing program, project, and technical advisory committees that include representation and active participation by transit operators, (b) developing and monitoring transportation system performance indicators that include measures that involve public transportation, (c) ensuring that travel forecasting methods are sensitive to policies affecting the full range of modal options and that transit ridership forecasts have been validated and are credible, and (d) using criteria for setting project priorities for inclusion in plans and programs that are mode-neutral.
Training on ways to ensure that planning processes are modally-balanced and the resulting decisions mode-neutral are available through the National Transit Institute (
Following the theme of Executive Order #13330, Human Service Transportation Coordination, SAFETEA-LU provides expanded program authority and funding opportunities to provide transit service to individuals with job access and specialized transportation needs. However, these programs, 49 U.S.C. 5310 (Special Needs of Elderly Individuals and Individuals with Disabilities), 49 U.S.C. 5316 (Job Access and Reverse Commute), and 49 U.S.C. 5317 (New Freedom) all require an extensive coordination among DOT and non-DOT-funded services, including preparation of a locally-developed coordinated human service-transportation plan as the basis for project-level funding decisions. The plan has to be developed by local area representatives of public, private, and nonprofit transportation human services providers, as well as involve participation by the public, including older adults, people with disabilities, and individuals with lower incomes. SAFETEA-LU further outlines that project “competition” for funding awards at the local level should be coordinated with the MPO.
Support of the emphasis area could involve a wide range of work activities in Statewide and metropolitan planning, including forming and hosting meetings of a committee of non-emergency service providers, assemblage of a base-year ridership profile of service users and forecasting future usage, and incorporating these programs into the public involvement programs of States and MPOs. United We Ride, an initiative of the Coordinating Council on Access and Mobility has developed a number of tools and strategies for building coordinated human service transportation systems across programs and funding streams. Additional information resources are available at the following Web sites:
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A regionally coordinated, strategic approach to managing and operating transportation systems can yield dramatic improvements in systems productivity and service cost effectiveness. With regard to transit, a key criterion of operational effectiveness is the number of passenger miles traveled. FTA's Strategic Business Plan has a goal calling for an annual increase in passenger miles, discounted for employment. The ability to accomplish this is tied closely to the effective management and operation of transit systems—individually, as well as in within a regional context of multimodal systems management and operations. In addition, transit operational strategies such as fare policies, service characteristics (
Work activities in Statewide and Metropolitan planning to address this emphasis area include such efforts as: (a) Convene a system operators coordinating committee to identify issues, share solutions, and establish an ongoing framework for coordination, (b) develop analytical tools and expertise in assessing the impacts of operational strategies, both in conjunction with, and as alternatives to, capital investments, (c) facilitate improved understanding and deployment of advanced technologies to improve the operational efficiency of systems, and (d) improve the tracking, analysis, and use of operational performance data in transportation plan and program development.
FTA has developed an extensive body of information and guidance to assist transit operators in developing strategies that increase use of their systems. The guidance includes technical assistance such as training courses, research studies, and proceedings from conferences that transit operators can use in developing their ridership growth strategies. This guidance is summarized in the report, “Ridership Guidance Quick Study,” which is posted at
Additional information on achieving ridership growth is available at the following Web sites:
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The information, processes, and decisions of metropolitan systems planning lay the foundation for, and have direct impacts upon, corridor-focused project planning and subsequent stages of project development. There is a strong relationship between systems planning activities, more refined corridor analyses in Alternatives Analysis (or “AA.” an FTA requirement for advancing New Starts projects), and their impact on subsequent project development—all within the context of metropolitan planning and decision-making. In systems planning, regional priorities among corridors of need are identified, as well as causes of the corridors' problems and a reasonable range of possible solutions. An AA investigates the range of possible modal solutions within individual corridors in much greater detail, concluding with a “Locally Preferred Alternative” (LPA). That LPA, in turn, goes to the Metropolitan Planning Organization (MPO) for adoption into the long-range transportation plan and is, ultimately, programmed in the Transportation Improvement Program. And, as the work of systems planning is carried forward into more focused planning at the corridor level, it becomes readily apparent that the quality of work performed in systems planning sets the foundation—and the quality of that foundation—for subsequent, more detailed planning.
Within systems planning, three planning activities have been found to be the most challenging and, if not performed effectively, to have the most significant impact on the quality and credibility of major transit investment proposals as they advance into project development. These three systems planning topics are: (a) Data, Technical Tools, & Analysis; (b) Regional Needs Identification & Corridor Prioritization; and (c) Financial Planning.
There is a long and ever-expanding list of planning activities to improve the technical aspects of systems planning. These include ongoing collection of systems usage and performance to understand current travel behavior (
FTA staff and contractors have identified a wide range of problems with MPO travel demand forecasting models, particularly in locales with no prior experience in conducting AA studies. The “sponsors” of candidate projects for New Starts funding (49 U.S.C. 5309) will want to work with FTA staff
Informational resources available to State/local planners include:
• National Highway Institute (
• National Transit Institute (
• Travel Model Improvement Program (
Goals and objectives for the transportation system are driven by public input and set by local policy makers and elected officials. These should be based on needs and clearly set forth in the long-range transportation plan. Furthermore, the goals and objectives should drive not only performance measures for the existing system, but also evaluation criteria for any new projects and programs to assist in decision making. If a major transit investment is to be considered in a corridor for study and Federal funding assistance is anticipated for the investment, then project sponsors may want to include FTA's New Starts criteria among the locally developed evaluation criteria.
Systems planning involves identifying corridors with needs in accordance with a set of performance measures and establishing priorities among the corridors for further analysis. Valid, current, and comprehensive data are crucial in understanding transportation problems in the region; they also support rational decision making in formulating solutions. It is important that the planning documents and studies clearly articulate the problem(s) that are to be addressed. This will lead to the discovery the root causes of the problem(s). Knowledge of problems and causes becomes the basis for a project-level “Purpose and Need” statement in federal environmental review documentation. The identification of regional transportation problems and their causes through data collection, analysis, and forecasting is the basis for “telling the story” of the applicant's local conditions. Good systems planning will help to “make the case” for funding potential major transit investments.
Links to informational resources on this topic include:
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Effective systems planning depends upon sound, defensible financial planning. Otherwise, the plans will always remain just plans and what is implemented will not reflect the vision expressed by decision makers through the metropolitan planning process. Good financial planning, in turn, depends upon credible assumptions, for revenues, expenses, inflation, and realistic project implementation schedules. For transit service and projects, in particular, the concept of maintenance first must take precedence in systems planning. Recapitalization and the ongoing expenses of operating and maintaining (O&M) the existing system over the long-term must be considered. The applicant or proposed project sponsor should be able to demonstrate that the existing transit system can be maintained and operated at current levels of service for the next 20 years. Development of a robust cost model for transit O&M expenses can prove invaluable in systems planning. For new projects, careful estimation of capital and operating costs should also include risk management analysis to challenge assumptions behind the estimates and consider a range of cost impacts should assumptions not hold true.
Additional guidance is available, as follows:
• Standard Cost Categories for Major Capital Projects (
• Interim FHWA/FTA Guidance on Fiscal Constraint for STIPs, TIPs, and Metro Plans (
This section includes some changes to the automatic pre-award authority published in previous Notices. Pre-award authority for capital projects beyond design and environmental work is more limited than before. The conditions under which pre-award authority may be used for real property acquisition are also clarified.
While we provide pre-award authority for many projects, we do not recommend that first-time grant recipients utilize the automatic pre-award authority to incur expenses before the grant is actually awarded by FTA. As a new grantee, it is easy to misunderstand pre-award authority conditions and not be aware of all of the applicable FTA requirements that must be met in order to be reimbursed for project expenditures incurred in advance of grant award. FTA programs have specific statutory requirements that are often different from those for other Federal grant programs with which new grantees may be familiar. If funds are expended for an ineligible project or activity, FTA will be unable to reimburse the project sponsor.
FTA provides blanket, or automatic, pre-award authority in certain program areas described below. This pre-award authority allows grantees to incur certain project costs prior to grant approval and retain their eligibility for subsequent reimbursement after grant approval. The grantee assumes all risk and is responsible for ensuring that all conditions are met to retain eligibility. This automatic pre-award spending authority, when triggered, permits a grantee to incur costs on an eligible transit capital or planning project without prejudice to possible future Federal participation in the cost of the project or projects. Pre-award authority for design and environmental work on the project is triggered by the authorization of formula funds or appropriation of funds for discretionary projects and publication of those projects in FTA's annual
FTA previously extended pre-award authority to all formula funds and flexible funds apportioned during from Fiscal Years 1998 through 2006. In this notice, FTA is extending this pre-award authority for formula funds and flexible funds that will be appropriated through FY 2009 under SAFETEA-LU, but with modifications. Pre-award authority for operating and planning projects under the formula grant programs is not limited to the authorization period. In addition, automatic pre-award authority for section 5303 and 5304 is extended through FY 2009.
Pre-award authority does not apply to the section 5309 Capital Investment Bus and Bus-Related Facilities and Clean Fuels program high priority project designations or any other transit discretionary projects designated in SAFETEA-LU and published in Tables 4 and 5 of this notice. These authorizations are subject to change in future appropriations acts. In fiscal years 2006-2009, after Congress appropriates funds for these and other discretionary projects and the allocations are published in an FTA notice of apportionments and allocations, pre-award authority will be available for those projects and projects for which funds were appropriated in prior years and published in previous notices, except that the triggers for pre-award authority have been changed. For such section 5309 Capital Investment Bus and Bus-Related, Clean Fuels Program, or other transit capital discretionary projects, the date that costs may be incurred is: (1) for design and environmental review, the date that the appropriation bill which funds the project was enacted; and (2) for property acquisition, demolition, construction, and acquisition of vehicles, equipment, or construction materials, the date that FTA signs the document (ROD, FONSI, or CE determination) that completes the environmental review process required by the National Environmental Policy Act (NEPA) and its implementing regulations. The growing prevalence of new grantees unfamiliar with Federal and FTA requirements has necessitated this change in the pre-award trigger to ensure FTA's continued ability to comply with NEPA and related environmental laws. Because FTA does not sign a final NEPA document until MPO and statewide planning requirements have been satisfied, this new trigger for pre-award will ensure compliance with both planning and environmental requirements prior to irreversible action by the grantee. In previous notices FTA extended pre-award authority to section 330 projects and those surface transportation projects commonly referred to as section 115 projects administered by FTA, for which amounts were provided in the Consolidated Appropriations Act, 2004 and section 117 projects in the 2005 Appropriations Act. The same conditions described for bus projects apply to these projects. We strongly encourage any prospective applicant that does not have a relationship with FTA to review Federal grant requirements with the FTA regional office before incurring costs.
Blanket pre-award authority does not apply to section 5309 Capital Investment New Starts funds. Specific instances of pre-award authority for Capital Investment New Starts projects are described in paragraph 4 below. Pre-award authority does not apply to Capital Investment Bus and Bus-Related or Clean Fuels projects for which funding has been authorized but not yet appropriated. Before an applicant may incur costs for Capital Investment New Starts projects, Bus and Bus-Related projects, or any other projects not yet published in a notice of apportionments and allocations, it must first obtain a written Letter of No Prejudice (LONP) from FTA. To obtain an LONP, a grantee must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described below.
The conditions under which pre-award authority may be utilized are specified below:
(a) Pre-award authority is not a legal or implied commitment that the project(s) will be approved for FTA assistance or that FTA will obligate Federal funds. Furthermore, it is not a legal or implied commitment that all
(b) All FTA statutory, procedural, and contractual requirements must be met.
(c) No action will be taken by the grantee that prejudices the legal and administrative findings that the Federal Transit Administrator must make in order to approve a project.
(d) Local funds expended by the grantee pursuant to and after the date of the pre-award authority will be eligible for credit toward local match or reimbursement if FTA later makes a grant for the project(s) or project amendment(s). Local funds expended by the grantee prior to the date of the pre-award authority will not be eligible for credit toward local match or reimbursement. Furthermore, the expenditure of local funds on activities such as land acquisition, demolition, or construction prior to the date of pre-award authority for those activities (
(e) The Federal amount of any future FTA assistance awarded to the grantee for the project will be determined on the basis of the overall scope of activities and the prevailing statutory provisions with respect to the Federal/local match ratio at the time the funds are obligated.
(f) For funds to which the pre-award authority applies, the authority expires with the lapsing of the fiscal year funds.
(g) When a grant for the project is subsequently awarded, the Financial Status Report, in TEAM-Web, must indicate the use of pre-award authority.
All Federal grant requirements must be met at the appropriate time for the project to remain eligible for Federal funding. The growth of the Federal transit program has resulted in a growing number of inexperienced grantees who make compliance with Federal planning and environmental laws increasingly challenging. FTA has therefore modified its approach to pre-award authority to use the completion of the NEPA process, which has as a prerequisite the completion of planning and air quality requirements, as the trigger for pre-award authority for all activities except design and environmental review.
The requirement that a project be included in a locally adopted metropolitan transportation improvement program and Federally-approved statewide transportation improvement program (23 CFR part 450) must be satisfied before the grantee may advance the project beyond planning and preliminary design with non-Federal funds under pre-award authority. The conformity requirements of the Clean Air Act, 40 CFR part 93, if applicable, must also be fully met before the project may be advanced into implementation under pre-award authority with non-Federal funds. Compliance with NEPA and other environmental laws and executive orders (
In addition, Federal procurement procedures, as well as the whole range of applicable Federal requirements (
(a)
Projects proposed for section 5309 New Starts funds are required to follow a Federally defined New Starts project development process. This New Starts process includes, among other things, FTA approval of the entry of the project into PE and into FD. In accordance with section 5309(d), FTA considers the merits of the project, the strength of its financial plan, and its readiness to enter the next phase in deciding whether or not to approve entry into PE or FD. Upon FTA approval to enter PE, FTA extends pre-award authority to incur costs for PE activities. Upon FTA approval to enter FD, FTA extends pre-award authority to incur costs for FD activities. The pre-award authority for each phase is automatic upon FTA's signing of a letter to the project sponsor approving entry into that phase. PE and FD are defined in the New Starts regulation entitled Major Capital Investment Projects, found at 49 CFR part 611.
(b)
FTA extends automatic pre-award authority for the acquisition of real property and real property rights for a New Starts project upon completion of the NEPA process for that project. The NEPA process is completed when FTA signs an environmental Record of Decision (ROD) or Finding of No Significant Impact (FONSI), or makes a Categorical Exclusion (CE) determination. With the limitations and caveats described below, real estate acquisition for a New Starts project may commence, at the project sponsor's risk, upon completion of the NEPA process.
For FTA-assisted projects, any acquisition of real property or real property rights must be conducted in accordance with the requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA) and its implementing regulations, 49 CFR part 24. This pre-award authority is strictly limited to costs incurred: (i) to acquire real property and real property rights in accordance with the URA regulation, and (ii) to provide relocation assistance in accordance with the URA regulation. This pre-award authority is limited to the acquisition of real property and real property rights that are explicitly identified in the final environmental impact statement (FEIS), environmental assessment (EA), or CE document, as needed for the selected alternative that is the subject of the FTA-signed ROD or FONSI, or CE determination. This pre-award authority does not cover site preparation, demolition, or any other activity that is not strictly necessary to comply with the URA, with one exception. That exception is when a building that has been acquired, has been emptied of its occupants, and awaits demolition poses a potential fire-safety hazard or other hazard to the community in which it is located, or is susceptible to reoccupation by vagrants, demolition of the building is also covered by this pre-award authority upon FTA's written agreement that the adverse condition exists.
Pre-award authority for property acquisition is also provided when FTA makes a CE determination for a protective buy or hardship acquisition in accordance with 23 CFR 771.117(d)(12), and when FTA makes a CE determination for the acquisition of a pre-existing railroad right-of-way in accordance with 49 U.S.C. 5324(c). When a tiered environmental review in accordance with 23 CFR 771.111(g) is being used, pre-award authority is NOT provided upon completion of the first-tier environmental document except when the Tier-1 ROD or FONSI signed by FTA explicitly provides such pre-award authority for a particular identified acquisition.
FTA's rationale for providing this pre-award authority was described in the FY 2003 Apportionments and Allocations Notice published in the
(c)
NEPA requires that major projects proposed for FTA funding assistance be subjected to a public and interagency review of the need for the project, its environmental and community impacts, and alternatives to avoid and reduce adverse impacts. Projects of more limited scope also need a level of environmental review, either to support an FTA finding of no significant impact (FONSI) or to demonstrate that the action is categorically excluded from the more rigorous level of NEPA review.
FTA's regulation entitled Environmental Impact and Related Procedures at 23 CFR part 771 states that the costs incurred by a grant applicant for the preparation of environmental documents requested by FTA are eligible for FTA financial assistance (23 CFR 771.105(e)). Accordingly, FTA extends automatic pre-award authority for costs incurred to comply with NEPA regulations and to conduct NEPA-related activities for a proposed New Starts project, effective as of the date of the Federal approval of the relevant STIP or STIP amendment that includes the project or any phase of the project. NEPA-related activities include, but are not limited to, public involvement activities, historic preservation reviews, section 4(f) evaluations, wetlands evaluations, endangered species consultations, and biological assessments. This pre-award authority is strictly limited to costs incurred to conduct the NEPA process, and to prepare environmental, historic preservation and related documents. It does not cover PE activities beyond those necessary for NEPA compliance. As with any pre-award authority, FTA reimbursement for costs incurred is not guaranteed.
(d)
Except as discussed in paragraphs (a) through (c) above, a grant applicant must obtain a written LONP from FTA before incurring costs for any activity expected to be funded by New Start funds not yet granted. To obtain an LONP, an applicant must submit a written request accompanied by adequate information and justification to the appropriate FTA regional office, as described in B below.
LONP authority allows an applicant to incur costs on a project utilizing non-Federal resources, with the understanding that the costs incurred subsequent to the issuance of the LONP may be reimbursable as eligible expenses or eligible for credit toward the local match should FTA approve the project at a later date. LONPs are applicable to projects and project activities not covered by automatic pre-award authority. The majority of LONPs will be for section 5309 New Starts funds not covered under a full funding grant agreement, or for section 5309 Bus and Bus-Related funds not yet appropriated by Congress. At the end of an authorization period, LONPs may be issued for formula funds beyond the life of the current authorization or FTA's extension of automatic pre-award authority.
The conditions for pre-award authority specified in section VIII A2 above apply to all LONPs. The Environmental, Planning and Other Federal Requirements described in section VIII A3, also apply to all LONPs. Because project implementation activities may not be initiated prior to NEPA completion, FTA will normally not issue an LONP for such activities until the NEPA process has been completed with a ROD, FONSI, or Categorical Exclusion determination.
Before incurring costs for a project not covered by automatic pre-award authority, the project sponsor must first submit a written request for an LONP, accompanied by adequate information and justification, to the appropriate regional office and obtain written approval. As a prerequisite to FTA approval of an LONP for a New Starts project, FTA will require project sponsors to demonstrate project worthiness and readiness that establish the project as a candidate for an FFGA. Projects will be assessed based upon the criteria considered in the New Start evaluation process. Specifically, upon the request for an LONP, the applicant shall provide sufficient information to allow FTA to consider the following items:
(a) Description of the activities to be covered by the LONP.
(b) Justification for advancing the identified activities.
(c) Data that indicates that the project will maintain its ability to receive a rating of “medium”, or better and that its cost-effectiveness rating will be “medium” or better, unless such project has been specifically exempt from such a requirement.
(d) Allocated level of risk and contingency for the activity requested.
(e) Status of procurement progress, including, if appropriate, submittal of bids for the activities covered by the LONP.
(f) Strength of the capital and operating financial plan for the New Starts project and the future transit system.
(g) Adequacy of the Project Management Plan.
(h) Resolution of any readiness issues that would affect the project, such as land acquisition and technical capacity to carry out the project.
The FTA “Fiscal 2006 Annual List of Certifications and Assurances” will incorporate new or changed requirements due to SAFETEA-LU. The full text of the Fiscal Year 2006 Certifications and Assurances was published in the
SAFETEA-LU continues provisions in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and TEA-21 that expanded modal choice in transportation funding by including
The process for transferring flexible formula funds between FTA and FHWA programs is described below. For information on the process or the transfer of funds between FTA and FHWA planning programs refer to section VIII E.
The FHWA Division Office confirms that the apportionment amount is available for transfer and concurs in the transfer, by letter to the State DOT and FTA. The FHWA Office of Budget and Finance then transfers obligation authority and an equal amount of cash to FTA. All FHWA CMAQ, STP, and certain Congressionally earmarked funds for transit projects in the Appropriations Act or Conference Report will be transferred to one of the three FTA formula programs (
The FTA grantee's application for the project must specify which program the funds will be used for, and the application must be prepared in accordance with the requirements and procedures governing that program. Upon review and approval of the grantee's application, FTA obligates funds for the project.
Transferred funds are treated as FTA formula funds, but are assigned a distinct identifying code for tracking purposes. The funds may be used for any capital purpose eligible under the FTA formula program to which they are transferred and, in the case of CMAQ, for certain operating costs. FTA and FHWA have issued guidance on project eligibility under the CMAQ program in a Notice at 65 FR 9040
In the event that transferred funds are not obligated for the intended purpose within the period of availability of the program to which they were transferred, they become available to the Governor for any eligible capital transit project.
The provisions of Title 23 U.S.C. regarding the non-Federal share apply to Title 23 funds used for transit projects. Thus, FHWA funds transferred to FTA retain the same matching share that the funds would have if used for highway purposes and administered by FHWA.
There are three instances in which a Federal share higher than 80 percent would be permitted. First, in States with large areas of Indian and certain public domain lands and national forests, parks and monuments, the local share for highway projects is determined by a sliding scale rate, calculated based on the percentage of public lands within that State. This sliding scale, which permits a greater Federal share, but not to exceed 95 percent, is applicable to transfers used to fund transit projects in these public land States. FHWA develops the sliding scale matching ratios for the increased Federal share.
Second, commuter carpooling and vanpooling projects and transit safety projects using FHWA transfers administered by FTA may retain the same 100 percent Federal share that would be allowed for ride-sharing or safety projects administered by FHWA.
The third instance is the 100 percent Federally-funded safety projects; however, these are subject to a nationwide 10 percent program limitation.
Since FY 1997, FTA and FHWA have offered States the option of participating in a pilot Consolidated Planning Grant (CPG) program. This streamlined fund drawdown process eliminates the need to monitor individual fund sources, if several have been used, and ensures that the oldest funds will always be used first.
Under a CPG administered by FTA, States can report metropolitan planning expenditures (to comply with the Single Audit Act) for both FTA and FHWA under the Catalogue of Federal Domestic Assistance number for FTA's Metropolitan Planning Program. Additionally, for States with an FHWA Metropolitan Planning (PL) fund-matching ratio greater than 80 percent, the State (through FTA) can request a waiver of the 20 percent local share requirement in order that all FTA funds used for metropolitan planning in a CPG can be granted at the higher FHWA rate. For some States, this Federal match rate can exceed 90 percent. In FY 2005, the CPG program was expanded to allow the transfer of FTA planning funds to FHWA in addition to the current process whereby FHWA funds for planning are transferred to FTA. For planning projects funded through a CPG, the State DOT requests the transfer of funds in a letter to the FHWA Division Office (if transferring funds to FTA) or to the FTA regional office (if transferring funds to FHWA).
Grantees must provide a Dun and Bradstreet (D&B) Data Universal Numbering System (DUNS) number for inclusion in all applications for a Federal grant or cooperative agreement submitted on or after October 1, 2003. The DUNS number should be entered into the grantee profile in TEAM-Web. Additional information about this and other Federal grant streamlining initiatives mandated by the Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107) can be accessed on OMB's Web site at
All applications for FTA funds should be submitted to the appropriate FTA regional office. FTA utilizes TEAM-Web, an Internet-accessible electronic grant application system, and all applications are filed electronically. FTA has provided limited exceptions to the requirement for electronic filing of applications.
In FY 2006, FTA is committed to ensuring that the average number of days to process an FTA grant is 36 days, or fewer, after receipt of a completed application by the appropriate regional office. In order for an application to be considered complete and for FTA to assign a grant number, enabling submission in TEAM-Web, the following requirements must be met:
• The project is listed in a currently approved Transportation Improvement Program (TIP); Statewide Transportation Improvement Program (STIP), or Unified Planning Work Program (UPWP).
• All eligibility issues have been resolved.
• Required environmental findings have been made.
• The project budget's Activity Line Items (ALI), scope, and project description meet FTA requirements.
• Local share funding source(s) have been identified.
• The grantee's required Civil Rights submissions are current.
• Certifications and assurances are properly submitted.
• Funding is available, including any flexible funds included in the budget.
• For projects involving new construction (using at least $100 million in New Starts or formula funds), FTA engineering staff has reviewed the project management plan and given approval.
• When required for grants related to New Starts projects, PE and/or FD has been approved.
• Milestone information is complete, or FTA determines that milestone information can be finalized before the grant is ready for award.
Before FTA can award grants for discretionary projects and activities designated by Congress, notification must be given to members of Congress, and in the case of awards greater than $1 million, to the House and Senate authorizing and appropriations committees.
Other important issues that impact FTA grant processing activities are discussed below.
Because SAFETEA-LU restructured FTA's accounts from all general funded accounts to one solely trust funded account and three general funded accounts, we are not able to mix funds from prior years in the same grant with funds that will be appropriated in FY 2006 and beyond (except for New Starts and research grants). Previously all programs were funded approximately 80 percent trust funds from the Mass Transit Account (MTA) of the Highway Trust Fund and 20 percent General Funds from the U.S. Treasury. The trust funds were transferred into the general funded accounts at the beginning of the year. Under SAFETEA-LU most programs are funded entirely from trust funds derived from the Mass Transit Account, while the New Starts and Research programs are funded with general funds. Carryover FY 2005 and prior funds currently available for obligation as well as FY 2006 funds, when they become available, may be included in an amendment to an existing grant for New Starts and research grants.
For formula programs funded solely from trust funds beginning in FY 2006, grantees must initiate a
FTA uses the SCOPE and Activity Line Item (ALI) Codes in the grant budgets to track program trends, to report to Congress, and to respond to requests from the Inspector General and the Government Accountability Office (GAO), as well as to manage grants. The accuracy of the data is dependent on the careful and correct use of codes. We have revised the SCOPE and ALI table to include new codes for the newly eligible capital items, to better track certain expenditures, and to accommodate the new programs. We encourage grantees to review the table before selecting codes from the drop-down menus in TEAM-WEB while creating a grant budget. Additional information about how to use the SCOPE and ALI codes to accurately code budgets will be added to the resources available through TEAM-WEB.
FTA is implementing new procedures for relating grants to earmarks. Each earmark published in the
Before the first grant application to FTA is submitted, the Governor must designate the state agency or agencies charged with administering the New Freedom and JARC formula programs. In large urbanized areas with more than one designated recipient or transit operator, supplemental agreements may be necessary.
Once a grant has been awarded and executed, requests for payment can be processed. To process payments FTA uses ECHO-Web, an Internet accessible system that provides grantees the capability to submit payment requests on-line, as well as receive user-IDs and passwords via e-mail. New applicants should contact the appropriate FTA regional office to obtain and submit the registration package necessary for set-up under ECHO-Web.
FTA conducts periodic oversight reviews to assess grantee compliance with Federal requirements. Each UZA grantee is reviewed every three years (a triennial review). States are reviewed periodically for their management of the section 5310 and 5311 programs. Other more detailed reviews are scheduled based on an annual grantee risk assessment. FTA will develop appropriate oversight procedures for the new programs authorized by SAFETEA-LU.
FTA headquarters and regional staff will be pleased to answer your
In addition, copies of the following circulars and other useful information are available on the FTA Website and may be obtained from FTA regional offices: 4220.1E, Third Party Contracting Requirements, dated June 19, 2003; and C5010.1C, Grant Management Guidelines, dated October 1, 1998. The FY 2006 Annual List of Certifications and Assurances and Master Agreement are also posted on the FTA Web site. Other documents on the FTA Web site of particular interest to public transit providers and others include the annual Statistical Summaries of FTA Grant Assistance Programs and the NTD Profiles. The DOT final rule on “Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs,” which was effective July 16, 2003, can be found on the Department's Web site at
1. FTA seeks public comment on the continued use of the 83 percent Federal share of cost of equipment and facilities for ADA and CAA compliance. (See section IV.A.11).
2. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the Special Needs of Elderly Individuals and Individuals with Disabilities program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program. (See section VI.H).
3. For the Special Needs of Elderly Individuals and Individuals with Disabilities program, FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes. (See section VI.H).
4. FTA requests public comment on whether the State-based rural data module should serve as the basis for the new mandatory reporting requirements. (See section VI.I).
5. Concerning the basis for section RTAP formula apportionments, comments are invited on whether the floor should again be raised and whether the low density portion of the section 5311 formula should be used. (See section VI.J).
6. FTA invites comments on use of the National RTAP resource. (See section VI.J).
7. SAFETEA-LU does not specify a basis for formula apportionment for the new Tribal Transit program. FTA will develop procedures for allocating the funds in consultation with the Tribes and with opportunity for public comment. An interim measure would be to allocate FY 2006 funds based on responses to a request for letters of interest. FTA requests comments on the feasibility of allocating FY 2006 funds based on this approach. (See section VI.K).
8. We seek comments on what criteria should be considered in selecting Tribes to receive funding and what factors should be used in allocating available funds among successful applicants. (See section VI.K).
9. FTA may establish the terms and conditions for the Tribal Transit program. FTA seeks comments about appropriate terms and conditions for the program. We especially invite comments from Tribes that previously received FTA funding about which requirements we should consider waiving for the program. (See section VI.K).
10. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the JARC program. (See section VI.M).
11. For the JARC program, FTA seeks comment on the specific aspects of the collaborative planning process (for example, participants, elements, measures, etc.). FTA also seeks comment on the relationship between the public transit-human services plans and other planning processes. (See section VI.M).
12. SAFETEA-LU requires FTA to conduct a study to evaluate the effectiveness of the JARC program (49 U.S.C. 5316(i)(2)). FTA seeks comment on strategies and measures that will evaluate the successes of this program. (See section VI.M).
13. FTA invites comment regarding technical assistance or training that would be helpful to grantees in implementing the New Freedom program. Additionally, FTA seeks comment on strategies and measures that could be employed to evaluate the successes of this program. (See section VI.N).
14. We invite comment on the projects and activities stated in the SAFETEA-LU that might be funded under the New Freedom program and how they relate to what is “beyond the ADA.” We invite comment on activities related to ADA complementary paratransit services beyond the minimum requirements outlined in 49 CFR part 37. Further, we invite comment regarding the types of projects and services that should be considered for eligibility under New Freedom as they relate to new public transportation beyond the ADA and alternatives to public transportation beyond the ADA. (See section VI.N).
15. FTA invites comments from all interested parties on the Planning Emphasis Areas (PEA) identified for FY 2006. (See section VII).
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Final rule.
This rule amends the Federal Manufactured Home Construction and Safety Standards (the Construction and Safety Standards) by adopting certain recommendations made to HUD by the Manufactured Housing Consensus Committee (MHCC). As required by the National Manufactured Housing Construction and Safety Standards Act of 1974 (the Act), HUD published, in the
William W. Matchneer III, Associate Deputy Assistant Secretary, Office of Regulatory Affairs and Manufactured Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9162, Washington DC 20410; telephone (202) 708-6401 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Information Relay Service at (800) 877-8389.
On December 1, 2004, at 69 FR 70016, HUD published a proposed rule to amend various sections of the Federal Manufactured Home Construction and Safety Standards (24 CFR part 3280) by adopting a majority of the recommendations made to HUD by MHCC. The National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. 5401-5426 (the Act), requires HUD to publish any proposed revised Construction and Safety Standards submitted by MHCC in the
HUD will continue to work with MHCC on its recommendation to remove the current requirement to post a Health Notice on formaldehyde emissions in each manufactured home. In addition, HUD is making the following significant changes to the proposed rule, based on the public comments, in this final rule:
(1) The proposed revisions to improve the truss testing requirements in § 3280.402 have been removed and are being returned to MHCC for further consideration on the recommendation of the commenters and at the request of MHCC.
(2) Limited exceptions to the 5.0 perm requirements for interior wall surfaces of up to 50 square feet are permitted by the final rule for homes designed to be sited in hot-humid climates.
(3) Updates to a number of the standards incorporated by reference that are more current than were suggested in the proposed rule are included in the final rule.
HUD received 26 public comments on the proposed rule. Comments were received from MHCC; manufactured home builders; a state's Department of Community and Economic Development; an independent inspection agency with experience in manufactured home design; a propane gas trade association; an energy efficiency alliance; a state and a national manufactured housing association; and associations representing particleboard, hardboard, and fiberboard manufacturers.
The summary of public comments that follows presents the major issues and questions raised by the public commenters on the December 1, 2004, proposed rule. The headings present the issue or question addressed, followed by a brief description of the commenters' reasoning. A response may be applicable to one or more issues or questions. The summary of the public comments is organized as follows:
General comments.
Whole-house ventilation comments.
Fireblocking comments.
Body and frame requirement comments.
Formaldehyde health notice comments.
Roof truss testing requirement comments.
Thermal protection comments.
Plumbing system comments.
Heating, cooling, and fuel burning requirement comments.
Electrical systems comments.
Comments regarding revisions to standards incorporated by reference.
Other public comments.
Comments of the Manufactured Housing Consensus Committee.
Several commenters explained that they were encouraged that HUD and MHCC were working together to update the Construction and Safety Standards. Most commenters were very specific in commenting on particular amendments in the proposed rule.
Commenters most often discussed the Department's decision not to delete the requirement for posting of a Health Notice on formaldehyde emissions in each manufactured home, the proposed amendments to the testing requirements for roof trusses, and the provisions for condensation control in hot-humid climates.
Additional comments referred to whole-house ventilation systems, fireblocking requirements, vapor retarder installation requirements, flow faucet and showerhead restrictions, water heater drain pan requirements, revisions to the standards incorporated by reference, and metric equivalent requirements. Commenters also submitted comments on whether the approval of alternative test methods should be solely the responsibility of Design Approval Primary Inspection Agencies (DAPIAs), or whether DAPIAs should provisionally approve alternative test methods subject to HUD's approval.
The December 1, 2004, proposed rule would have amended § 3280.103(b) by simplifying the requirements for sizing whole-house ventilation systems of manufactured homes.
The December 1, 2004, proposed rule would have amended § 3280.206 by clarifying existing language, locations, and acceptable materials that may be used where fireblocking is required. However, HUD had proposed modification of a portion of MHCC's proposal that would have permitted mineral wool or loose fill insulation to be considered acceptable fireblocking material.
Two commenters wrote that they supported fireblocking because it brings the Construction and Safety Standards into closer consistency with other building codes.
The December 1, 2004, proposal would have amended § 3280.303(g) by eliminating the requirement that a manufacturer submit alternative testing procedures to HUD, except for testing methods involving one-piece metal roofing as would be required in § 3280.305(c)(1)(iii). HUD sought comments specifically on whether the final approval of alternative test methods should be solely the responsibility of DAPIAs or whether DAPIAs should only be allowed to provisionally approve the test method subject to HUD's approval.
One commenter wrote that HUD should review all alternative testing procedures prior to their implementation.
1. The December 1, 2004, proposed rule would have amended § 3280.305(c)(1)(ii) by adding a footnote to permit the use of certain one-piece metal roofing without structural sheathing in the high Wind Zones II and III. HUD proposed to modify MHCC's recommendation for one-piece metal roofing installed in high wind areas to be consistent with Interpretative Bulletin (IB) I-2-98 by requiring prior Departmental approval of any testing procedures used to demonstrate the acceptability of such systems.
2. The December 1, 2004, proposed rule would have amended § 3280.305(c)(3) by incorporating a new paragraph (iv) to add a roof load requirement for skylights of the zone for which it is designed.
3. The December 1, 2004, proposed rule would have amended § 3280.305(e) by clarifying the required performance of fasteners and the connecting mechanisms for joining the major structural elements of manufactured homes, and would specify a continuous load path for imposed forces to the home's foundation/anchorage system.
4. The December 1, 2004, proposed rule would have amended § 3280.305(e)(2) by reducing the minimum thickness requirements for steel strapping or brackets required in Wind Zones II and III from 26 gauge (0.0179″) to 0.016″.
5. The December 1, 2004, proposed rule would have amended § 3280.305(g)(3) by requiring wood panel products used as floor or subfloor materials on the exterior of the home to be rated for exterior exposure and be protected from moisture by sealing or applying nonabsorbent overlay with water resistant adhesive.
6. The December 1, 2004, proposed rule would have amended § 3280.306(b) by requiring that each column support pier location required along the marriage line(s) of multi-section manufactured homes be identified at each location by paint, label, or other acceptable methods.
Two commenters wrote that identifying the marriage column support locations described in § 3280.306(b) is a good idea and that the recommendation will improve home installation compliance and subsequently improve the longevity of manufactured homes at a minimal cost to the homeowner. Marriage wall column support location errors are one of the major problems found during installation inspection. One of the commenters also wrote that the requirements would improve home installation compliance and subsequently improve the longevity of manufactured homes at a minimal cost to homeowners. In addition, members of the DAPIA Technical Advisory Group, at its March 2005 meeting, recommended that other pier locations, such as perimeter and shear wall support locations required by the manufacturer's designs and instructions, also be identified.
HUD did not accept and include in the December 1, 2004, proposed rule, MHCC's recommendation that would have removed the Health Notice on formaldehyde emissions (the Health Notice) currently required by § 3280.309 of the Construction and Safety Standards.
A commenter wrote that the decision to continue to post the Health Notice in each manufactured home as described in § 3280.309 stigmatizes the manufactured home industry. The commenter is disappointed that HUD did not issue for public comment the proposal to eliminate the requirement for the Health Notice to be placed in manufactured homes. Manufactured homes are the only homes in America that must display these notices and they stigmatize manufactured homes. Another commenter wrote that the formaldehyde notice serves only as a sales deterrent, while contributing to existing misunderstanding by the public regarding health-related issues associated with formaldehyde. The commenter urged HUD to reevaluate its decision on the Health Notice and put it forth for another round of public comment. One commenter wrote that this notice shouldn't be displayed so prominently and asked, “Why should it be the first thing a prospective buyer sees when they enter a new manufactured home?” Another commenter wrote that for the past 20 years formaldehyde levels in manufactured housing have declined so that they are no higher than in any other residential structure. The manufactured home product and materials used to construct it have progressed to the point where the need for a displayed Health Notice “only contributes to the public's notion that manufactured homes are somehow “inferior” to other types of housing.” Other commenters suggested that if such a warning is still deemed necessary, then the warning should be included in the Homeowner's Manual with an explanation that all homes contain some amounts of formaldehyde.
Some commenters wrote that the decision to continue to post the Health Notice in manufactured homes as described in § 3280.309 ignores current and available scientific evidence that formaldehyde emissions have been greatly reduced. HUD should reconsider its rejection of MHCC's proposal in light of current research that is available to support MHCC's recommendation. Specifically, three commenters wrote that the Manufactured Housing Research Alliance (MHRA) has produced the most recent and up-to-date study on the health risks of formaldehyde in manufactured homes. “Formaldehyde Concentrations in Manufactured Homes: The Current Situation” (July 2004) investigates this issue from several different aspects and shows that formaldehyde should no longer pose any greater concern than in conventional housing. One commenter continued by stating that “[e]ven though it is only one paper, it is a summation of many other studies that are more current than the ones used by HUD almost 20 years ago when the notice became part of the Standards.” The commenter wrote that the language of the Health Notice refers to the Ventilation Option, which was deleted in 1994. This Ventilation Option, formerly § 3280.710(g), was replaced by the Additional Ventilation requirement in § 3280.103(b). Another commenter wrote that consumer formaldehyde complaints have been essentially eliminated. Another commenter wrote that it is “common knowledge” that formaldehyde emissions in manufactured homes have been dramatically reduced since the requirement for the Health Notice was first imposed. Additionally, the commenter claimed that HUD implied that only manufactured homes are permitted to use construction materials containing urea-formaldehyde (UF) resins, and that this assertion is untrue as the commenter is not aware of such a restriction for modular or site-built homes. One commenter stated that the removal of the Health Notice would likely be supported by the findings in National Institute of Standards and Technology's (NIST) IAQ manufactured housing research with HUD's Healthy Homes Program and asked whether HUD consulted with NIST before rejecting MHCC's proposal.
Two commenters submitted six points to illustrate that data does exist showing that formaldehyde levels in today's manufactured homes have changed in the 20 years since Department regulations were implemented. Specifically, the six reasons listed are: (1) Gypsum wallboard has replaced the UF bonded plywood as the interior wall covering of choice; (2) maximum formaldehyde emissions from UF bonded plywood and particleboard wood product materials has been drastically reduced; (3) the HUD Code is the only model building code that regulates formaldehyde emissions levels, which makes it not likely that either manufactured home builders or homebuyers would develop a rare nasal cancer; (4) the HUD Code ventilation requirements increase the volume of indoor air exhausted from the home, which can dilute any indoor air pollutants; (5) one of the original reasons for singling out HUD Code homes as having formaldehyde problems was the small home size; now, however, as floor size increases, the volume of air in the living space increases, and the dilution of air borne contaminants can be reduced; and (6) the measured concentration of formaldehyde levels has been on a downward trend since 1985.
However, as indicated in the preamble of the proposed rule, HUD will continue to study the formaldehyde issue—including reviewing any new scientific evidence—and intends to consult with the Consumer Product Safety Commission, the Environmental Protection Agency, and the Department's Office of Healthy Homes to study the health risks to occupants at current formaldehyde exposure levels to determine if any regulatory controls are still needed to limit formaldehyde emissions in manufactured homes. As part of its review and evaluation, HUD will also consider the requirements of other building codes as they may relate to formaldehyde exposure and indoor air quality for single-family residential construction. HUD intends to work with MHCC in developing and supporting any further rulemaking proposals on formaldehyde.
Based on the recommendations of MHCC, the December 1, 2004, proposed rule would have amended § 3280.402 by providing more stringent initial qualification of truss designs and by expanding and clarifying the requirements for follow-up testing to better ensure that subsequent production of trusses will meet the requirements of the Construction and Safety Standards.
Another commenter wrote that concerns have been expressed by and to MHCC members about the more stringent qualification testing of truss designs that have been talked about and supported by the industry, code development work groups, and task forces over the last ten years. The commenter stated MHCC's consensus development process lacked adequate consideration of the true costs associated with the adoption of this proposal, the impact these changes may have on the testing procedures and the industry, and the proposal's impact on roof truss home design and future innovation. The commenter asked that HUD remove this recommendation from the rule and return the proposal to MHCC for further consideration and development.
One commenter wrote that the test procedures for roof trusses, as described in § 3280.402, are not consistent with statutory directives. Although the proposed rule's wording closely follows the text found in NFPA 501, Standard on Manufactured Housing, published by NFPA, the NFPA standard is not in use for manufactured housing and the NFPA is not under a mandate from Congress to protect the affordability of manufactured housing. NFPA 501 and the proposed rule are inconsistent with the model building codes currently in use for site constructed home and factory built modular homes. NFPA 501 and this proposal require excessive data collection and a more stringent recovery deflection limit. Additionally, the commenter stated that the cost of § 3280.402 will adversely affect the affordability of manufactured housing and will stand as an obstacle to the accomplishment and execution of section 602(b)(2) of the Act, which states that a purpose of the Act is to “facilitate the availability of affordable manufactured homes and to increase home ownership for all Americans.”
One commenter wrote that the new roof truss test procedures as described in § 3280.402 will not be cost-effective. Eliminating the option of 1.75x overload ends one cost effective way of building the homes at the lower end of the manufactured housing market and will place additional costs on sections of the market that can least afford it. Two commenters wrote that the change to the testing procedure will cost much more than the $77.28 cited by HUD. The commenters stated that their truss suppliers place the price per truss for Wind Zone I at 15 to 25 percent, making the eventual cost to the consumer about $325 “ far more than the $77 cited by HUD. Other commenters wrote that deleting the 1.75 proof load test for roof trusses will increase truss member sizes, thereby increasing the cost of trusses by up to 25 percent. This additional cost may add up to $600 per home. One commenter wrote that increased top and bottom chord sizes could raise overall depths of trusses, as well as the transportation height of the home. In the Eastern United States, where overpasses are low, homes will need to be rerouted, resulting in increased shipping costs of $800 and beyond. Finally, another commenter wrote that the recommended revised truss test protocol needs further study and evaluation before implementation. The commenter stated that many truss suppliers have indicated that there may be a 25 percent increase in costs for truss design and testing depending on the style of roof design being considered. Every truss design would need to be re-qualified under the test procedures, and cost estimates run from $200 to $500, far more than the $77.28 per home as indicated.
Two commenters asked specifically why the new roof truss test procedures as described in § 3280.402 are needed. The commenters wrote that they do not see any information indicating that
One commenter wrote that the requirement that deflection of bottom chord be measured, at a minimum, at the truss midspan and panel points is overly burdensome and completely unnecessary. The commenter stated that for many trusses, this requirement would result in a minimum of nine or ten points of deflection measurement during testing, and it is difficult to obtain these deflections with dead load hanging from the bottom chord of the truss at 12 inches on center. Several commenters wrote that measuring deflection at each panel point, mid-span of the truss, and mid-span between each panel point is not necessary and that the current checks at quarter points and mid-span should be more than sufficient. A third commenter wrote that this change will significantly increase the time to perform truss testing and will increase the cost to perform required truss testing for each truss design.
One commenter wrote the dead load test procedures as described in § 3280.402(d)(1) are too expensive and not necessary. HUD should revise the new proposed requirement to add dead load to both the top and bottom chord of the truss so that this is only required if the actual bottom chord dead load exceeds 5 psf; otherwise, allow the entire dead load to be applied to the top chord as is currently permitted. For small bottom chord dead loads (up to and including 5 psf), this added step is not necessary and needlessly adds to the cost of testing.
Another commenter wrote that the live load test procedures as described in § 3280.402(d)(2) are dangerous. In 1994, HUD and NAHB ran proficiency tests comparing tests that pulled on the top chord to test in the inverted position. The tests determined that pulling on the top chord was difficult, impractical, dangerous, and yielded inconsistent results. It was determined that testing the truss in the inverted position provides adequate results. Testing in accordance with existing uplift requirements is simple and provided consistent results. Testing uplift in accordance with the new HUD proposal will have a significant cost impact on the truss approval process. The set-up procedure will take three to four times longer, which will increase the cost for testing a new design substantially. All modifications to truss testing should be delayed until such studies can be prepared for review.
One commenter wrote that the overload phase as proposed in § 3280.402(d)(4) is too stringent. The test procedure for the overload phase would be increased to dead load plus 2.5 times the live load. Although this more stringent truss loading criteria has already been adopted by some manufacturers, combining this with the more stringent deflection acceptance criteria may cause some truss designs to fail that would otherwise be acceptable under the existing provisions.
Several commenters wrote that the acceptance criteria for truss designs, as proposed in § 3280.402(d)(5), are too conservative, inconsistent with building codes, and too expensive. The recovery deflection of L/480 within five minutes after live load removal is too conservative and many manufacturers have permitted up to four hours of recovery time to qualify truss designs. Another commenter wrote that the recovery requirement is inconsistent with the model building codes, which require recovery of not less than 75 percent of the maximum deflection within 24 hours after removal of the load. Another commenter wrote that HUD should remove the requirements to measure no load to dead load deflection and the limit for the same, because this is a totally meaningless requirement. The deflection from no load to dead load is normally compensated for by building camber into the truss. This added step will add needless cost to the test procedure. The commenter requested that HUD revise the proposal for up to four hours for recovery deflection to reach L/480 or better. The commenter explained that five minutes may not be adequate time to allow recovery to occur and could eliminate otherwise acceptable designs thus adding cost. Some of the proprietary criteria in use today by some home manufacturers specifies four hours and “is working fine without problems.”
One commenter wrote that the uplift load test procedure for roof trusses as proposed in § 3280.402(e) makes it difficult to test and require a change of testing facilities. The test procedure for overload phase requirements increased to 2.5 times the new uplift load for one minute, which is an increase from the 1.75 overload factor of the current standard. Additionally, the test procedure has been revised to provide uplift to the top chord of the truss design and not the existing test set-up of inverting the truss and pushing down on the bottom chord. Truss designs may not be able to be tested due to their current configuration and may not provide flexibility in testing for the tension device placement as a 12-inch spacing might provide. Also, no testing facility that currently qualifies HUD Code home roof trusses would be capable for testing trusses as described by the revised test protocol without a lengthy process to change the test set-up. Another commenter wrote that there have been no documented truss failures due to existing design criteria since the uplift testing went into effect in 1994. The HUD proposal for testing uplift requires 1″ wide straps attached around the top chord at 6″ o.c. In some cases, truss designs with closely spaced verticals and webs will be physically impossible to test to the 6″ requirement. This requirement would limit truss design and innovation. Pulling up on straps at 12″ o.c. provides the same uplift load and similar results as pulling on the uplift straps 6″ o.c. Additionally, the proposed method requires cylinders spaced at 12″ o.c., to apply 6″ o.c. uplift strapping. This will require some truss manufacturers to redesign their current truss testing equipment, which commonly has cylinders at 24″ o.c. This retrofit will be costly and time consuming. One commenter wrote that compliance with the requirement cannot typically be achieved at panel point because of the width of connector plates. One commenter supported the conversion of the uplift test to a more reasonable appropriate uplift test. The commenter wrote that the spacing of the uplift points, however, appears to be too conservative. Instead of every 6″, it
Finally, commenters urged HUD to allow a lengthy, reasonable time period for phase-in of the new requirements for truss testing similar to what has been done in the past. It is hoped that HUD will allow 12 months for all testing to be completed.
1. Whether the non-destructive testing procedure for roof trusses that permits a lower overall safety factor to be used in conducting the tests based on a presumed low failure rate for roof trusses should be eliminated.
MHCC could consider including the non-destructive procedure, if adequate safeguards are provided to assure that initial qualification tests would be conducted using minimum quality of materials and workmanship or if a statistically valid sample of trusses is tested in lieu of the minimum requirements. In addition, enhanced follow-up testing provisions would be needed to account for the lower factor of safety of 1.75 currently permitted by the non-destructive testing procedure.
2. The need for the upright tension tests to evaluate the uplift resistance of the trusses.
Tests conducted by the NAHB Research Center indicated that trusses tested in the inverted position consistently failed at average loads greater than trusses tested in the upright position and had lower mid-span deflections than trusses tested in the upright position. In addition, the failure modes were different for some truss designs when tested in the upright position as compared to the inverted position.
3. Should the factor of safety for uplift testing be reduced from 2.5 to the current requirement of 1.75 times the design wind pressures in consideration of comments received regarding safety during testing.
4. The costs associated with any recommended revisions to the truss testing requirements.
HUD's decision to not make final the proposed rule section, as recommended by MHCC, is consistent with the record of comments received from the public, including MHCC itself (the Committee having reconsidered its prior position). However, HUD views truss testing procedures as too important a safety matter to leave unaddressed. The standards in place (
The December 1, 2004, proposed rule would have amended § 3280.504(b) to codify certain provisions of a waiver that permits manufactured homes intended to be sited in humid climates to have the vapor retarder installed outside of the home's thermal insulation.
Another commenter wrote that the proposed rule to permit window manufacturers the alternative to use NFRC 100 to rate window energy performance is a step in the right direction.
The December 1, 2004, proposed rule would have amended § 3280.607(a) to require restricted flow faucets and showerheads and add a paragraph (b) to require the use of low water consumption toilets.
As recommended by MHCC, the December 1, 2004, proposed rule would have amended § 3280.709 by requiring the installation of a corrosion-resistant water drip collection and drain pan under each water heater.
Some commenters wrote that a drain pan would impede air flow into the water heater. One commenter wrote that to install a drain pan under the water heater would restrict the ability of the water heater to receive the proper amount of combustion air. Moreover, doing so would require modifications to the design and construction that could significantly increase the costs without any economic justification. Another commenter wrote that one-half of the gas-fired water heaters sold for installation in manufactured homes are of the direct vent design. This requires all air for combustion to enter the water heater directly from the outside. An air tube is provided that penetrates the floor under the water heater to supply the air from under the coach. Requiring a drain pan for this design would present a challenging sealing problem to make the drip pan effective. The commenter requested that paragraph (h) be revised to exempt water heaters of the direct vent “through the floor” design from the drain pan requirement. Also, the installation of a popular direct gas fired water heater would require an approximate four-inch hole to be made through the pan to provide for its combustion of air inlet. It is unlikely that water leakage in the water heater compartment could result in structural deterioration and damage; water heaters are too large in diameter to fit between floor joists as they are commonly installed. This proposal should be removed from consideration.
One commenter wrote that the drain pan issue is already addressed in a current requirement. The supplementary information provided for the proposed rule states that the present rule does not require that a drain pan be provided or that the water heater compartment be built in a protective manner, such as a shower stall, but fails to mention the requirement in § 3280.305(g)(2) that addresses the issue by requiring that wood, wood fiber, or plywood floors or subfloors in water heater compartments be moisture-resistant by sealing or by an overlay of nonabsorbent material applied with water resistant adhesive.
Two commenters wrote that the water drip collection pan requirement is a good idea and will eliminate problems caused by leaking water heaters at a minimal cost. The rule also brings manufactured homes up to date with other building codes.
The following comments were submitted to HUD on behalf of the Manufactured Housing Consensus Committee (MHCC):
The final rule amends the following sections of the Construction and Safety Standards in a manner that is different from the proposed rule and revises the incorporation by reference of the indicated reference standards.
The final rule amends § 3280.103(b) by simplifying the requirements for sizing whole-house ventilation systems of manufactured homes. The final rule establishes a minimum and maximum capacity for these systems while continuing to require the systems to be balanced, requires combination passive and mechanical systems to be adequately sized and provided with inlets and exhaust to release any unbalanced pressure, no longer accepts passive-only systems, requires operating instructions for the system to be included in the consumer manual, and requires the operating switch to be identified with a label.
The proposed rule amending § 3280.206 changes the term “Firestopping” to “Fireblocking” to be consistent with current building code terminology and application. The final rule also replaces and clarifies existing language to better define locations where fireblocking is required.
The final rule amends § 3280.303(g) by no longer requiring a manufacturer to first submit alternative testing procedures to HUD for approval when recognized testing procedures are not available, except as required by § 3280.305(c)(1)(iii) for one-piece metal roofing systems.
Section 3280.305(c)(1) is also being amended by adding a new paragraph (iii) to permit the use of certain one-piece metal roofing without structural sheathing in the high wind areas, provided HUD has approved the testing procedures to be used. The final rule amends § 3280.305(c)(3)(i) by adding paragraphs (A), (B), and (C) and by clarifying where middle and north zone roof load requirements would be applicable. The amended rule also now designates counties in certain states within the South or Middle Roof Load Zones where higher Middle or North Roof Load Zones are required.
Section 3280.305(c)(3) is amended by incorporating a new paragraph (iv) requiring that skylights must be capable of withstanding the roof loads for which the home is designed.
The final rule amends § 3280.305(e) by clarifying fastener performance requirements for joining the major structural elements of manufactured homes and by requiring that a continuous load path be provided for transferring all forces between elements and for carrying all imposed forces to the home's foundation/anchorage system.
The final rule amends § 3280.305(e)(2) by reducing the minimum thickness requirements for steel strapping required in Wind Zones II and III from 26 gauge (0.0179 inch) to 0.016 inch. Other alternatives, such as a combination of structural rated sheathing that overlaps the roof and/or floor and strapping, or engineered connectors or structural rated sheathing only, must be substantiated by either engineering analysis or suitable load tests. The final rule amends § 3280.305(g)(3) to require wood panel products used as floor or sub-floor materials on the exterior of the home to be rated for exterior exposure and be protected from moisture by sealing or applying nonabsorbent overlay with water resistant adhesive. This will provide protection against deterioration of exterior floor decking materials when exposed to moisture.
The final rule amends § 3280.306(b)(1) to require that each column support pier location required along the marriage line(s) of multi-section manufactured homes, at perimeter support locations, and at shear wall locations be identified at each pier location by paint, label, or other acceptable methods. These location identifications are to be visible after the home is installed.
The final rule amends § 3280.401 by clarifying that design live load deflection criteria do not apply when the structural assembly being evaluated does not include structural framing members.
The final rule amends § 3280.504(b) by adding new paragraphs (4) and (5) to permit the vapor retarder for exterior walls to be installed on the exterior side, rather than the interior side, of the wall insulation, or to be constructed with an external covering and sheathing having a combined permeance of not greater than 1.0 perms, provided that for either alternative that the interior finish and interior wall panel materials have a combined permeance of not less than 5.0 perms. However, based on the comments received, the final rule now also provides for certain minor exceptions to the 5.0 perm interior finish or wall panel requirements.
The final rule amends § 3280.508(e) by permitting window manufacturers the alternative to rate their window energy performance by utilizing National Fenestration Rating Council (NFRC) standard 100 or by using AAMA standard 1503 for this purpose. Inclusion of the NFRC standard would alleviate the need for those manufacturers who previously have been utilizing NFRC 100 from also having to test the AAMA 1500 and vice-versa.
The final rule will also amend § 3280.510 by incorporating a map that will designate the applicable Humid and Fringe zones by state and county. A reproduction of the map will now be required to be included on the Heating Certificate and could also be combined with the U
The final rule amends § 3280.607(a) by requiring the use of restricted flow faucets and showerheads and by adding a paragraph (b) to require the use of low water consumption water closets. This will conserve water and help assure continued availability of adequate water supplies, as well as reduce wastewater flows. The final rule will also include requirements for low consumption
The final rule amends § 3280.709 by adding a paragraph (h) to require the installation of a corrosion-resistant water drip collection and drain pan under each water heater.
The final rule amends § 3280.715(c) to require joints and seams of sheet metal and flexible metal ducts, including risers, trunks, crossovers, branches, and plenums to be mechanically secured and made substantially airtight. The final rule also requires that the tapes and sealants used to seal the duct systems be applied to dry clean surfaces having no dirt, grease, or oil on them. Currently, the standards specify only that the joints and seams of ducts be securely fastened and made substantially airtight. In addition, sealants and tapes will also be required to be listed in accordance with UL 181A for rigid ducts and UL 181B for flexible ducts.
The final rule amends § 3280.806(d)(9) by clarifying that a receptacle outlet would be provided on a wall adjacent to and within 36 inches of the outside edge of each bathroom basin. This wall receptacle outlet would be in addition to any outlet that is part of a lighting fixture or appliance that is over a bathroom basin. This revision will no longer permit a receptacle that is integral with the light fixture over a bathroom basin to serve as the only outlet for a bathroom basin location. This change also addresses safety concerns related to the permissible length of power cords for small appliances that may arise in areas in which flowing water and electrical outlets are in close proximity, such as light fixtures at bathroom basin locations.
The final rule also amends § 3280.808(o) to provide a tolerance for the gap at the edge of a box in walls or ceilings of noncombustible material consistent with the National Electrical Code.
The following is a list of the standards incorporated by reference that is being revised by this final rule. Each reference standard is preceded by an indicator to identify the type of change being made. A new reference standard being added is indicated by the designation “N,” a reference standard being updated is indicated by the designation “U,” and a reference standard being deleted is indicated by the designation “DELETED.” In some cases, it was necessary to use a different or more recent edition of a reference standard than indicated in the proposed rule, because either the date of the standard was incorrectly cited or the reference standard was out of date and no longer available from the publishing organization. These changes in dates are identified in the list below by italics. In other cases, a proposed reference standard was not available and, as a result, HUD is retaining the existing reference standard. These changes are identified in the list below by a single asterisk. Two new proposed reference standards, not presently contained in the Construction and Safety Standards, could not be located, and have been eliminated from the final rule. These reference standards are identified in the list below by a double asterisk. The sections of the Construction and Safety Standards being amended by each modification are also shown on the right of each reference standard being added, updated, or deleted.
The Office of Management and Budget (OMB) reviewed this rule under Executive Order 12866 (entitled “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Order). Any changes made to the rule subsequent to its submission to OMB are identified in the docket file, which is available for public inspection in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500.
The information collection requirements contained in this rule are currently approved by OMB under section 3504(h) of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2502-0253. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless the collection displays a currently valid control number.
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 the private sector. This rule will not impose any Federal mandates on any State, local, or tribal government or the private sector within the meaning of the Unfunded Mandates Reform Act of 1995.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). Although the Finding of No Significant Regulatory Impact for the proposed rule remains applicable to the final rule, a Supplemental Finding of No Significant Regulatory Impact has been added to discuss changes made in the final rule. Both the Finding of No Significant Impact and the Supplemental Finding are available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-0500.
The Secretary, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this final rule and in so doing certifies that the rule would not have a significant economic impact on a substantial number of small entities. The rule would regulate establishments primarily engaged in making manufactured homes (NAICS 32991). The Small Business Administration's size standards define an establishment primarily engaged in making manufactured homes as small if it does not exceed 500 employees. Of the 222 firms included under this NAICS definition, 198 are small manufacturers that fall below the small business threshold of 500 employees. The final rule will apply to all of the manufacturers. The rule would, thus, affect a substantial number of small entities. However, based on an analysis of the costs and the fact that a small manufacturer would just as likely produce homes at the higher end of the cost spectrum as would a major producer, evaluating the effect of the increase is not discernible based on the size of the manufacturing operation. For the reasons stated below, HUD knows of no instance in which a manufacturer with fewer than 500 employees would be significantly affected by this rule.
HUD, in cooperation with MHCC, previously conducted an economic cost impact analysis for this rule. A copy of the economic analysis is available for
These relatively small increases in cost associated with this final rule would not impose a significant burden for a small business for homes that can cost the purchaser between $40,000 and $100,000. Therefore, although this rule would affect a substantial number of small entities, it would not have a significant economic impact on them.
Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on State and local governments and is not required by statute, or preempts State law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
These reference standards are approved by the Director of the Federal Register for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of these standards may be obtained from the following organizations:
AA—The Aluminum Association, 1525 Wilson Boulevard, Suite 600, Arlington, VA 22209, (703) 358-2960,
AFPA—American Forest and Paper Association, 1111 19th Street, NW., Washington, DC 20036, (202) 463-2700, fax (202) 463-5180,
AHA—American Hardboard Association, 1210 West Northwest Highway, Palatine, IL 60067, (847) 934-8800, fax (847) 934-8803,
AISI—American Iron and Steel Institute, 1101 17th Street, NW., Washington, DC 20036, (202) 452-7100, fax (202) 463-6573,
ANSI—American National Standards Institute, 25 West 43rd Street, New York, NY 10036, (212) 642-4900, fax (212) 398-0023,
APA—The Engineered Wood Association, 7011 South 19th Street, Tacoma, WA 98411, (253) 565-6600, fax (253) 565-7265,
ASCE—American Society of Civil Engineers, 1015 15th Street, NW., Washington, DC 20005, (202) 789-2200, fax (202) 289-6797,
ASHRAE—American Society for Heating, Refrigeration and Air Conditioning Engineers, 1791 Tuillie Circle, NE., Atlanta, GA 30329, (404) 636-8400, fax (404) 321-5478,
ASME—American Society of Mechanical Engineers, 22 Law Drive, P.O. Box 2900, Fairfield, NJ 07007, 1-800 843-2763, fax 1-973-882-8113,
ASSE—American Society of Sanitary Engineering, P.O. Box 40362, Bay Village, OH 44140, (216) 835-3040, fax (216) 835-3488,
ASTM—American Society for Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA 19428, (610) 832-9500, fax (610) 832-9555,
CSA (IAS)—CSA International (formerly International Approval Services), 8501 East Pleasant Valley Road, Cleveland, OH 44131, (216) 524-4990, fax (216) 642-3463,
CPA—Composite Panel Association (formerly the National Particle-board Association) 18928 Premier Court, Gaithersburg, MD 20879-1574, (301) 670-0604, fax (301) 840-1252,
HPVA—Hardwood Plywood and Veneer Association, 1825 Michael Faraday Drive, Reston, VA 22090, (703) 435-2900, fax (703) 435-2537,
HUD—Department of Housing and Urban Development, Office of Manufactured Housing Programs, 451 Seventh Street, SW., Washington, DC 20410, (202) 708-6423, fax (202) 708-4213.
IAPMO—International Association of Plumbing and Mechanical Officials, 20001 Walnut Drive South, Walnut, CA 91789, (909) 595-8449, fax (909) 594-1537,
IIT—IIT Research Institute, 10 West 35th Street, Chicago, IL 60616, (312) 567-3000, fax (312) 567-4167,
NEMA—National Electrical Manufacturers Association, 1300 North 17th Street, Suite 1847, Rosslyn, VA 22209, (703) 841-3200, fax (703) 841-5900,
NER—International Code Council Evaluation Service [Previously known as National Evaluation Service], 5360 Workman Mill Road, Whittier, CA 90601-0543.
NFPA—National Fire Protection Association, Batterymarch Park, Quincy, MA 02269, (617) 770-3000, fax (617) 770-0700,
NFRC—National Fenestration Rating Council, Incorporated, 1300 Spring Street, Suite 120, Silver Spring, MD 20910, (301) 589-6372, fax (301) 588-0854,
NSF—NSF International, P.O. Box 130140, Ann Arbor, MI 48113, (313) 769-8010, fax (313) 769-0109,
PS—National Institute of Standards and Technology, Voluntary Product Standards, Gaithersburg, MD 20810, (301) 975-2000, fax (301) 926-1559,
SJI—Steel Joist Institute, 1205 48th Avenue North, Suite A, Myrtle Beach, SC 29577, (803) 626-1995, fax (803) 449-1343,
TPI—Truss Plate Institute, 583 D'Onofrio Drive, Suite 200, Madison, WI 53719, (608) 833-5900, fax (608) 833-4360,
UL—Underwriters Laboratories, 333 Pfingsten Road, Northbrook, IL 60062, (847) 272-8800, fax (847) 509-6257,
WDMA (NWWDA)—Window and Door Manufacturers Association (formerly the National Wood Window and Door Association), 1400 East Touhy Avenue, Des Plaines, IL 60018, (847) 299-5200, fax (847) 299-1286,
The Catalog of Federal Domestic Assistance number for Manufactured
Housing standards, Incorporation by reference, Manufactured homes.
42 U.S.C. 3535(d), 5403, and 5424.
(b) * * *
HUD User, 11491 Sunset Hills Road, Reston, VA 20190-5254
* * *
NEMA—National Electrical Manufacturers Association, 1300 North 17th Street, Suite 1847, Rosslyn, VA 22209
NER—International Code Council Evaluation Service [Previously known as National Evaluation Service], 5360 Workman Mill Road, Whittier, CA 90601-0543
* * *
NFRC—National Fenestration Rating Council, 8984 Georgia Avenue, Suite 320, Silver Spring, MD 20910
* * *
WDMA—Window and Door Manufacturers Association [Previously known as the National Wood Window and Door Association, NWWDA], 1400 East Touhy Avenue, Des Plaines, IL 60018
(b)
(1) The ventilation capacity must be provided by a mechanical system or a combination passive and mechanical system. The ventilation system or provisions for ventilation must not create a positive pressure in Uo Value Zone 2 and Zone 3 or a negative pressure condition in Uo Value Zone 1. Mechanical systems must be balanced. Combination passive and mechanical systems must have adequately sized inlets or exhaust to release any unbalanced pressure. Temporary pressure imbalances due to gusting or high winds are permitted.
(2) The ventilation system or provisions for ventilation must exchange air directly with the exterior of the home, except the ventilation system, or provisions for ventilation must not draw or expel air with the space underneath the home. The ventilation system or provisions for ventilation must not draw or expel air into the floor, wall, or ceiling/roof systems, even if those systems are vented. The ventilation system must be designed to ensure that outside air is distributed to all bedrooms and main living areas. The combined use of undercut doors or transom grills connecting those areas to the room where the mechanical system is located is deemed to meet this requirement.
(3) The ventilation system or a portion of the system is permitted to be integral with the home's heating or cooling system. The system must be capable of operating independently of the heating or cooling modes. A ventilation system that is integral with the heating or cooling system is to be listed as part of the heating and cooling system or listed as suitable for use with that system.
(4) A mechanical ventilation system, or mechanical portion thereof, must be provided with a manual control, and must be permitted to be provided with automatic timers or humidistats.
(5) A whole-house ventilation label must be attached to the whole-house ventilation control, must be permanent, and must state: “WHOLE-HOUSE VENTILATION”.
(6) Instructions for correctly operating and maintaining whole-house ventilation systems must be included with the homeowner's manual. The instructions must encourage occupants to operate these systems whenever the home is occupied, and must refer to the labeled whole-house ventilation control.
(1) The definition contained in Chapter 2 of NFPA 220-1995, Standard on Types of Building Construction; or
(2)
(a)
(a)
(b)
(1) Minimum one inch nominal lumber,
(2) Other Listed or Approved Materials;
(c)
(2) Fireblocking must be installed at the interconnection of a concealed vertical space and a concealed horizontal space that occurs:
(i) Between a concealed wall cavity and the ceiling joists above; and
(ii) At soffits, drop ceilings, cover ceilings, and similar locations.
(3) Fireblocking must be installed around the openings for pipes, vents,
(a) * * *
(4) The foam plastic insulating material has been tested as required for its location in wall and/or ceiling cavities in accordance with testing procedures described in the Illinois Institute of Technology Research Institute (IIT) Report, “Development of Mobile Home Fire Test Methods to Judge the Fire-Safe Performance of Foam Plastic Sheathing and Cavity Insulation, IITRI Fire and Safety Research Project J-6461, 1979” or other full-scale fire tests accepted by HUD, and it is installed in a manner consistent with the way the material was installed in the foam plastic test module. The materials must be capable of meeting the following acceptance criteria required for their location:
(g)
9. In § 3280.304, revise paragraph (b)(1) to read as follows:
(b)(1) Standards for some of the generally used materials and methods of construction are listed in the following table:
Aluminum Design Manual, Specifications and Guidelines for Aluminum Structures, Part 1-A, Sixth Edition, October 1994, and Part 1-B, First Edition, October 1994.
Specification for Structural Steel Buildings—Allowable Stress Design and Plastic Design—AISC-S335, 1989. The following parts of this reference standard are not applicable: 1.3.3, 1.3.4, 1.3.5, 1.3.6, 1.4.6, 1.5.1.5, 1.5.5, 1.6, 1.7, 1.8, 1.9, 1.10.4 through 1.10.7, 1.10.9, 1.11, 1.13, 1.14.5, 1.17.7 through 1.17.9, 1.19.1, 1.19.3, 1.20, 1.21, 1.23.7, 1.24, 1.25.1 through 1.25.5, 1.26.4, 2.3, 2.4, 2.8 through 2.10.
Specification for the Design of Cold-Formed Steel Structural Members—AISI-1996.
Specification for the Design of Cold-Formed Stainless Steel Structural Members—SEI/ASCE 8-02, 2002.
Standard Specifications Load Tables and Weight Tables for Steel Joists and Joist Girders, SJI, Fortieth Edition, 1994.
Structural Applications of Steel Cables for Buildings—ASCE19, 1996.
Standard Specification for Strapping, Flat Steel and Seals—ASTM D3953, 1991.
Basic Hardboard—ANSI/AHA A135.4-1995.
Prefinished Hardboard Paneling—ANSI/AHA A135.5-1995.
Hardboard Siding—ANSI/AHA A135.6-1998.
American National Standard for Hardwood and Decorative Plywood—ANSI/HPVA HP-1-1994 (Approved 1995).
Structural Design Guide for Hardwood Plywood Wall Panels—HPVA Design Guide HP-SG-96, 1996.
For wood products—Structural Glued Laminated Timber—ANSI/AITC A190.1-1992.
Construction and Industrial Plywood (With Typical APA Trademarks)—PS 1-95.
APA Design/Construction Guide, Residential and Commercial—APA E30-P-1996.
Design Specifications for Metal Plate and Wood Connected Trusses—TPI-85.
Design and Fabrication of All-Plywood Beams—APA H-815E (PDS Supplement #5), 1995.
Panel Design Specification—APA D410A, 2004.
Design and Fabrication of Glued Plywood-Lumber Beams—APA-S 812Q, Suppl. 2-1992.
Design and Fabrication of Plywood Curved Panels—APA-S 811M, Suppl. 1, 1990.
Design and Fabrication of Plywood Sandwich Panels—APA-U 814H, Suppl. 4, 1990.
Voluntary Product Standard, Performance Standard for Wood-based Structural Use Panels—PS 2-92, 1992 (also known as NIST Standard PS 2-96).
Design and Fabrication of Plywood Stressed-Skin Panels—APA-U 813L, Suppl. 3, 1990.
National Design Specifications for Wood Construction, 2001 Edition, with Supplement, Design Values for Wood Construction, NDS-2001, ANSI/AFPA.
Wood Structural Design Data, 1989, Revised 1992, AFPA.
Span Tables for Joists and Rafters—PS-20-70, 1993, AFPA.
Design Values for Joists and Rafters 1992, AFPA.
Particleboard—ANSI A208.1-1999.
Voluntary Specifications for Aluminum, Vinyl (PVC) and Wood Windows and Glass Doors—ANSI/AAMA/NWWDA 101/I.S.2-97.
Standard Test Methods for Puncture and Stiffness of Paperboard, and Corrugated and Solid Fiberboard—ASTM D781, 1973.
Standard Test Methods for Direct Moisture Content Measurement of Wood and Wood-Base Materials—ASTM D 4442-92 (Re-approved 1997), 1997.
Standard Test Methods for Use and Calibration of Hand-Held Moisture Meters—ASTM D4444, 1992.
Standard Specification for Gypsum Wallboard—ASTM C 36/C 36M-99, 1999.
National Evaluation Report, Power Driven Staples, Nails, and Allied Fasteners for Use in All Types of Building Construction—NER-272, 1997.
Minimum Design Loads for Buildings and Other Structures—ASCE 7-1988.
Safety Performance Specifications and Methods of Test for Safety Glazing Materials Used in Building—ANSI Z97.1-1984.
(c) * * *
(1) * * *
(iii) One-piece metal roofing capable of resisting the design wind pressures for “Components and Cladding: (Exterior roof coverings)” in the Table for Design Wind Pressures in this section is allowed to be used without structural sheathing, provided the metal roofing is tested using procedures that have been approved by HUD and that meet all requirements of §§ 3280.303(c) and (g) and 3280.401.
(3) * * *
(i) * * *
(A)
Maine—Aroostook, Piscataquis, Somerset, Penobscot, Waldo, Knox, Hancock, and Washington.
(B)
(C)
(iv) Skylights must be capable of withstanding roof loads as specified in paragraphs (c)(3)(i) or (c)(3)(ii) of this section. Skylights must be listed and tested in accordance with AAMA 1600/I.S.7-00, 2003, Voluntary Specification for Skylights.
(e)
(2) For Wind Zone II and Wind Zone III, roof framing members must be securely fastened at the vertical bearing points to resist design overturning, uplift, and sliding forces. When engineered connectors are not installed, roof framing members must be secured at the vertical bearing points to wall framing members (studs), and wall framing members (studs) must be secured to floor framing members, with 0.016 inch base metal, minimum steel strapping or engineered connectors, or by a combination of 0.016 inch base metal, minimum steel strapping or engineered connectors, and structural-rated wall sheathing that overlaps the roof and floor system if substantiated by structural analysis or by suitable load tests. Steel strapping or engineered connectors are to be installed at a maximum spacing of 24 inches on center in Wind Zone II, and 16 inches on center in Wind Zone III.
(g) * * *
(3) Wood panel products used as floor or subfloor materials on the exterior of the home, such as in recessed entryways, must be rated for exterior exposure and protected from moisture by sealing or applying nonabsorbent overlay with water resistant adhesive.
(j)
(b)
(a)
(b)
(b)
(d) * * *
(2) Sealed insulating glass, where used, must meet all performance requirements for Class C in accordance with ASTM E 774-97, Standard Specification for the Classification of the Durability of Sealed Insulating Glass Units. The sealing system must be qualified in accordance with ASTM E 773-97, Standard Test Methods for Accelerated Weathering of Sealed Insulating Glass Units. Each glass unit must be permanently identified with the name of the insulating glass manufacturer.
(e)
(1) All such windows and doors must show evidence of certification by affixing a quality certification label to the product in accordance with ANSI Z34.1-1993, Third-Party Certification Programs for Products, Processes, and Services.
(2) In determining certifiability of the products, an independent quality assurance agency shall conduct pre-production specimen tests in accordance with AAMA 1701.2-95. Further, such agency must inspect the product manufacturer's facility at least twice per year.
(b)
(b)
(c)
(e)
(1) All such doors must show evidence of certification by affixing a quality certification label to the product in accordance with ANSI Z34.1-1993, Third Party Certification Programs for Products, Processes, and Services.
(2) In determining certifiability of the products, an independent quality assurance agency must conduct a pre-production specimen test in accordance with AAMA 1702.2-95, Voluntary Standard Swinging Exterior Passage Door for Utilization in Manufactured Housing.
(b)
(a)
(b)
(2) Unventilated wall cavities must have an external covering and/or sheathing that forms the pressure envelope. The covering and/or sheathing must have a combined permeance of not less than 5.0 perms. In the absence of test data, combined permeance is permitted to be computed using the following formula: P total = (1/[(1/P
(3) Wall cavities must be constructed so that ventilation is provided to dissipate any condensation occurring in these cavities; or
(4) Homes manufactured to be sited in “humid climates” or “fringe climates” as shown on the Humid and Fringe Climate Map in this paragraph are permitted to have a vapor retarder specified in paragraph (b)(1) of this section installed on the exterior side of the wall insulation or be constructed with an external covering and sheathing with a combined permeance of not greater than 1.0 perms, provided the interior finish and interior wall panel materials have a combined permeance of not less than 5.0 perms. The following need not meet the minimum combined permeance rating of not less than 5.0 perms for interior finish or wall panel materials:
(i) Kitchen back splash materials, less than 50 square feet in area installed around countertops, sinks, and ranges;
(ii) Bathroom tub areas, shower compartments;
(iii) Cabinetry and built-in furniture;
(iv) Trim materials;
(v) Hardboard wall paneling of less than 50 square feet in area under chair rails.
(5) The following areas of local governments (counties or similar areas, unless otherwise specified), listed by state are deemed to be within the humid and fringe climate areas shown on the Humid and Fringe Climate Map in paragraph (b)(4) of this section, and the vapor retarder or construction methods specified in paragraph (b)(4) of this section may be applied to homes built to be sited within these jurisdictions:
Baldwin, Barbour, Bullock, Butler, Choctaw, Clarke, Coffee, Conecuh, Covington, Crenshaw, Dale, Escambia, Geneva, Henry, Houston, Lowndes, Marengo, Mobile, Monroe, Montgomery, Pike, Washington, Wilcox.
All counties and locations within the State of Florida.
Appling, Atkinson, Bacon, Baker, Ben Hill, Berrien, Brantley, Brooks, Bryan, Calhoun, Camden, Charlton, Chatham, Clay, Clinch, Coffee, Colquitt, Cook, Crisp, Decatur, Dougherty, Early, Echols, Effingham, Evans, Glynn, Wayne, Grady, Irwin, Jeff Davis, Lanier, Lee, Liberty, Long, Lowndes, McIntosh, Miller, Mitchell, Pierce, Quitman, Randolph, Seminole, Tattnall, Terrell, Thomas, Tift, Turner, Ware, Worth.
All counties and locations within the State of Hawaii.
All counties and locations within the State of Louisiana.
Adams, Amite, Claiborne, Clarke, Copiah, Covington, Forrest, Franklin, George, Greene, Hancock, Harrison, Hinds, Issaquena, Jackson, Jasper, Jefferson, Jefferson Davis, Jones, Lamar, Lawrence, Lincoln, Pearl River, Perry, Pike, Rankin, Simpson, Smith, Stone, Walthall, Warren, Wayne, Wilkinson.
Brunswick, Carteret, Columbus, New Hanover, Onslow, Pender.
Jasper, Beaufort, Colleton, Dorchester, Charleston, Berkeley, Georgetown, Horry.
Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bexar, Brazoria, Brazos, Brooks, Burleson, Caldwell, Calhoun, Cameron, Camp, Cass, Chambers, Cherokee, Colorado, Comal, De Witt, Dimmit, Duval, Falls, Fayette, Fort Bend, Franklin, Freestone, Frio, Galveston, Goliad, Gonzales, Gregg, Grimes, Guadalupe, Hardin, Harris, Harrison, Hays, Henderson, Hidalgo, Hopkins, Houston, Jackson, Jasper, Jefferson, Jim Hogg, Jim Wells, Karnes, Kaufman, Kennedy, Kinney, Kleberg, La Salle, Lavaca, Lee, Leon, Liberty, Limestone, Live Oak, Madison, Marion, Matagorda, Maverick, McMullen, Medina, Milam, Montgomery, Morris, Nacogdoches, Navarro, Newton, Nueces, Orange, Panola, Polk, Rains, Refugio, Robertson, Rusk, Sabine, San Augustine, San Jacinto, San Patricio, Shelby, Smith, Starr, Titus, Travis, Trinity, Tyler, Upshur, Uvalde, Val Verde, Van Zandt, Victoria, Walker, Waller, Washington, Webb, Wharton, Willacy, Williamson, Wilson, Wood, Zapata, Zavala.
(a) Information, values and data necessary for heat loss and heat gain determinations must be taken from the 1997 ASHRAE Handbook of Fundamentals, Inch-Pound Edition, chapters 22 through 27. The following portions of those chapters are not applicable:
(b) The calculation of the manufactured home's transmission heat loss coefficient (Uo) must be in accordance with the fundamental principles of the 1997 ASHRAE Handbook of Fundamentals, Inch-Pound Edition, and, at a minimum, must address all the heat loss or heat gain considerations in a manner consistent with the calculation procedures provided in the document, Overall U-values and Heating/Cooling Loads—Manufactured Homes—February 1992-PNL 8006, HUD User No. 0005945.
(e) U values for any glazing (e.g., windows, skylights, and the glazed portions of any door) must be based on tests using AAMA 1503.1-1988, Voluntary Test Method for Thermal Transmittance and Condensation Resistance of Windows, Doors, and Glazed Wall Sections, or the National Fenestration Rating Council 100, 1997 Edition, Procedure for Determining Fenestration Product U-factors. In the absence of tests, manufacturers are to use the residential window U values contained in Chapter 29, Table 5 of the 1997 ASHRAE Handbook of Fundamentals, Inch-Pound Edition. In the event that the classification of the window type is indeterminate, the manufacturer must use the classification that gives the higher U value. Where a composite of materials from two different product types is used, the product is to be assigned the higher U value. For the purpose of calculating U
(d) The following additional statement must be provided on the heating certificate and data plate required by § 3280.5 when the home is built with a vapor retarder of not greater than one perm (dry cup method) on the exterior side of the insulation: “This home is designed and constructed to be sited only in humid or fringe climate regions as shown on the Humid and Fringe Climate Map.” A reproduction of the Humid and Fringe Climate Map in § 3280.504 is to be provided on the heating certificate and data plate. The map must be not less than 3
(b) * * *
(2) When a plastic material or component is not covered by the Standards in the following table, it must be certified as non-toxic in accordance with ANSI/NSF 61-2001, Drinking water system components—Health effects.
Gray Iron Threaded Fittings—ANSI/ASME B16.4-1992.
Malleable Iron Threaded Fittings—ANSI/ASME B16.3-1992.
Material and Property Standard for Special Cast Iron Fittings—IAPMO PS 5-84.
Welding and Seamless Wrought Steel Pipe—ANSI/ASME B36.10-1979.
Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless—ASTM A53-93.
Pipe Threads, General Purpose (Inch)—ANSI/ASME B1.20.1-1983.
Standard Specification for Cast Iron Soil Pipe and Fittings—ASTM A74-92.
Standard Specification for Hubless Cast Iron Soil Pipe and Fittings for Sanitary and Storm Drain, Waste, and Vent Piping Applications—CISPI-301-90.
Standard Specification for Seamless Copper Pipe, Standard Sizes—ASTM B42-93.
Standard Specification for General Requirements for Wrought Seamless Copper and Copper-Alloy Tube—ASTM B251-93.
Standard Specification for Seamless Copper Water Tube—ASTM B88-93.
Standard Specification for Copper Drainage Tube (DWV)—ASTM B306-92.
Wrought Copper and Copper Alloy Solder-Joint Pressure Fitting—ASME/ANSI B16.22-1989.
Wrought Copper and Wrought Copper Alloy Solder-Joint Drainage Fittings-DWV—ASME/ANSI B16.29-1986.
Cast Copper Alloy Solder-Joint Pressure Fittings—ANSI B16.18-1984.
Cast Copper Alloy Solder-Joint Drainage Fittings-DWV—ASME B16.23-1992.
Cast Copper Alloy Fittings for Flared Copper Tubes—ASME/ANSI B16.26-1988.
Standard Specification for Seamless Red Brass Pipe, Standard Sizes—ASTM B43-91.
Cast Bronze Threaded Fittings, Classes 125 and 250—ANSI/ASME B16.15-1985.
Standard Specification Acrylonitrile-Butadiene-Styrene (ABS) Schedule 40 Plastic Drain, Waste, and Vent Pipe and Fittings—ASTM D2661-91.
Standard Specification for Poly (Vinyl Chloride) (PVC) Plastic Drain, Waste, and Vent Pipe and Fittings—ASTM D2665-91b.
Standard Specification for Drain, Waste, and Vent (DWV) Plastic Fittings Patterns—ASTM D3311-92.
Standard Specification for Acrylonitrile-Butadiene-Styrene (ABS) Schedule 40, Plastic Drain, Waste, and Vent Pipe With a Cellular Core—ASTM F628-91.
Standard Specification for Chlorinated Poly (Vinyl Chloride) (CPVC) Plastic Hot- and Cold-Water Distribution Systems—ASTM D2846-92.
Standard Specification for Polybutylene (PB) Plastic Hot- and Cold-Water Distribution Systems—ASTM D3309-92a.
Plastic Piping Components and Related Materials—ANSI/NSF 14-1990.
Standard Specification for Rubber Gaskets for Cast Iron Soil Pipe and Fittings—ASTM C564-88.
Backflow Valves—ANSI A112.14.1-1975.
Plumbing Fixture Setting Compound—TTP 1536A-1975.
Material and Property Standard for Cast Brass and Tubing P-Traps—IAPMO PS 2-89.
Relief Valves and Automatic Gas Shutoff Devices for Hot Water Supply Systems—ANSI Z21.22-1986, With Addendum Z21.22a-1990.
Standard Specification for Solvent Cement for Acrylonitrile-Butadiene-Styrene (ABS) Plastic Pipe and Fittings—ASTM D2235-88.
Standard Specification for Solvent Cements for Poly (Vinyl Chloride) (PVC) Plastic Piping Systems—ASTM D2564-91a.
Specification for Neoprene Rubber Gaskets for HUB and Spigot Cast Iron Soil Pipe and Fittings—CISPI-HSN-85.
Plumbing System Components for Manufactured Homes and Recreational Vehicles—ANSI/NSF 24-1988.
Material and Property Standard for Diversion Tees and Twin Waste Elbow—IAPMO PS 9-84.
Material and Property Standard for Flexible Metallic Water Connectors—IAPMO PS 14-89.
Material and Property Standard for Dishwasher Drain Airgaps—IAPMO PS 23-89.
Material and Property Standards for Backflow Prevention Assemblies—IAPMO PS 31-91.
Performance Requirements for Air Admittance Valves for Plumbing Drainage Systems, Fixture and Branch Devices— ASSE
Drinking Water System Components-Health Effects—ANSI/NSF 61-2001.
Plumbing Fixtures (General Specifications)—FS WW-P-541E/GEN-1980.
Vitreous China Plumbing Fixtures—ANSI/ASME A112.19.2(M)-1990.
Enameled Cast Iron Plumbing Fixtures—ANSI/ASME A112.19.1M-1987.
Porcelain Enameled Formed Steel Plumbing Fixtures—ANSI/ASME A112.19.4(M)-1984.
Plastic Bathtub Units with Addenda Z124.1a-1990 and Z124.16-1991—ANSI Z124.1-1987.
Standard for Porcelain Enameled Formed Steel Plumbing Fixtures—IAPMO TSC 22-85.
Plastic Shower Receptors and Shower Stalls with Addendum Z124.2a-1990—ANSI Z124.2-1987.
Stainless Steel Plumbing Fixtures (Designed for Residential Use)—ANSI/ASME A112.19.3M-1987.
Material and Property Standard for Drains for Prefabricated and Precast Showers—IAPMO PS 4-90.
Plastic Lavatories with Addendum Z124.3a-1990—ANSI Z124.3-1986.
Safety Performance Specifications and Methods of Test for Safety Glazing Materials Used in Building—ANSI Z97.1-1984.
Water Heater Relief Valve Drain Tubes—ASME A112.4.1-1993.
Flexible Water Connectors—ASME A112.18.6-1999.
Performance Requirements for Backflow Protection Devices and Systems in Plumbing Fixture Fittings—ASME A112.18.3M-1996.
Non-Vitreous Ceramic Plumbing Fixtures—ASME A112.19.9M-1991.
Dual Flush Devices for Water Closets—ASME A119.19.10-1994.
Deck Mounted Bath/Shower Transfer Valves with Integral Backflow Protection—ASME A112.18.7-1999.
Plastic Fittings for Connecting Water Closets to the Sanitary Drainage System—ASME A112.4.3-1999.
Hydraulic Performance Requirements for Water Closets and Urinals, ASME A112.19.6-1995.
Plumbing Fixture Fittings—ASME/ANSI A112.18.1M-1989.
Trim for Water Closet, Bowls, Tanks, and Urinals—ANSI A112.19.5-1979.
Plastic Water Closets, Bowls, and Tanks with Addenda Z124.4a-1990—ANSI Z124.4-1986.
ANSI Z124.5, Plastic Toilet (Water Closets) Seats, 1997.
ANSI Z124.7, Prefabricated Plastic Spa Shells, 1997.
Whirlpool Bathtub Appliances—ASME/ANSI A112.19.7M-1987.
ANSI Z-124.9, Plastic Urinal Fixtures, 1994.
Performance Requirements for Individual Thermostatic Pressure Balancing and Combination Control for Bathing Facilities—ASSE 1016-1988 (ANSI 1990).
Performance Requirements for Pressurized Flushing Devices (Flushometers) for Plumbing Fixtures—ASSE 1037-1990 (ANSI-1990).
Performance Requirements for Water Closet Flush Tank Fill Valves (Ballcocks)—ASSE 1002 Revision 5-1986 (ANSI/ASSE-1979).
Performance Requirements for Hand-held Showers—ASSE 1014-1989 (ANSI-1990).
Hydrants for Utility and Maintenance Use—ANSI/ASME A112.21.3M-1985.
Performance Requirements for Home Laundry Equipment—ASSE 1007-1986.
Performance Requirements for Hot Water Dispensers, Household Storage Type Electrical—ASSE 1023, (ANSI/ASSE-1979).
Plumbing Requirements for Residential Use (Household) Dishwashers—ASSE 1006, (ASSE/ANSI-1986).
Performance Requirements for Household Food Waste Disposer Units—ASSE 1008-1986.
Performance Requirements for Temperature Activated Mixing Valves for Primary Domestic Use—ASSE 1017-1986.
Water Hammer Arresters—ANSI A112.26.1-1969 (R 1975).
Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, Hot Tubs, and Whirlpool Bathtub Appliances—ASME/ANSI A112.19.8M-1989.
Air Gaps in Plumbing Systems—ASME A112.1.2-1991.
Performance Requirements for Diverters for Plumbing Faucets with Hose Spray, Anti-Siphon Type, Residential Applications—ASSE 1025 (ANSI/ASSE-1978).
Performance Requirements for Pipe Applied Atmospheric Type Vacuum Breakers—ASSE 1001 (ASSE/ANSI-1990).
Performance Requirements for Hose Connection Vacuum Breakers—ASSE 1011-1981 (ANSI-1982).
Performance Requirements for Wall Hydrants, Frost Proof Automatic Draining, Anti-Backflow Types—ANSI/ASSE 1019-1978.
(a) * * *
(6)
(b) * * *
(2) * * *
(iii) All water closets must be low consumption (1.6 gallons per flush (gpf)) closets.
(c) * * *
(6) * * *
(iv)
Heating and Cooling Equipment, Second Edition, with 1999 revisions—UL 1995, 1995.
Liquid Fuel-Burning Heating Appliances for Manufactured Homes and Recreational Vehicles, Seventh Edition, with 1997 revisions—UL 307A-1995.
Fixed and Location-Dedicated Electric Room Heaters, Second Edition, with 1998 revisions—UL 2021-1997.
Electric Baseboard Heating Equipment, Fourth Edition, with 1998 revisions—UL 1042-1994.
Electric Central Air Heating Equipment—UL 1096-Fourth Edition-1986 with revisions July 16, 1986, and January 30, 1988.
Gas Burning Heating Appliances for Manufactured Homes and Recreational Vehicles, Fourth Edition, with 1998 revisions—UL 307B-1995.
Gas Clothes Dryers Volume 1, Type 1 Clothes Dryers—ANSI Z21.5.1-/CSA 7.1-M99—1999 with Addendum Z21.5.1a-1999.
Gas Fired Absorption Summer Air Conditioning Appliances—ANSI Z21.40.1/CGA 2.91-M961996.
Gas-Fired Central Furnaces (Except Direct Vent System Central Furnaces)—ANSI Z21.47-1990 with Addendum Z21.47a-1990 and Z21.47b-1992.
Household Cooking Gas Appliances—ANSI Z21.1-2000.
Refrigerators Using Gas Fuel—ANSI Z21.19-1990, with Addendum ANSI Z21.19a-1992 and Z21.19b-1995.
Gas Water Heaters—Volume 1, Storage Water Heaters with Input Ratings of 75,000 BTU per hour or Less—ANSI Z21.10.1-1998 with Addendum Z21.10.1a-2000.
Household Electric Storage Tank Water Heaters, Tenth Edition—UL 174-1996, with 1997 revisions.
Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless—ASTM A53-93.
Standard Specification for Electric-Resistance-Welded Coiled Steel Tubing for Gas and Fuel Oil Lines—ASTM A539-1999.
Pipe Threads, General Purpose (Inch)—ANSI/ASME B1.20.1-1983.
Welding and Seamless Wrought Steel Pipe—ANSI/ASME B36.10-1979.
Standard Specification for Seamless Copper Water Tube—ASTM B88-93.
Standard Specification for Seamless Copper Tube for Air Conditioning and Refrigeration Field Service—ASTM B280, A-95.
Connectors for Gas Appliances—ANSI Z21.24/CGA 6.10-M97-1997.
Manually Operated Gas Valves for Appliances, Appliance Connector Valves and Hose End Valves—ANSI Z21.15/CGA 9.1-M97-1997.
Standard for Gas Supply Connectors for Manufactured Homes—IAPMO TSC 9-1997.
Standard Specification for General Requirements for Wrought Seamless Copper and Copper-Alloy Tubes—ASTM B251-93.
Standard Specification for Seamless Copper Pipe, Standard Sizes—ASTM B42-93.
Factory-Made Air Ducts and Connectors, Ninth Edition—UL 181, 1996 with 1998 revisions.
Standard for Safety Closure Systems for use with Rigid Air Ducts and Air Connectors, UL 181A, 1994, with 1998 revisions.
Standard for Safety Closure Systems for use with Flexible Air Ducts and Air Connectors, First Edition—UL 181B, 1995, with 1998 revisions.
Tube Fittings for Flammable and Combustible Fluids, Refrigeration Service, and Marine Use, Sixth Edition—UL 109-1997, with 2001 revisions.
Pigtails and Flexible Hose Connectors for LP-Gas, Seventh Edition—UL 569, 1995 with 2001 revisions.
Roof Jacks for Manufactured Homes and Recreational Vehicles, Eighth Edition—UL 311, 1994, with 1998 revisions.
Relief Valves and Automatic Gas Shutoff Devices for Hot Water Supply Systems—ANSI Z21.22/CSA 4.4-M99, 1999.
Automatic Gas Ignition Systems and Components—ANSI Z21.20 with Addendum Z21.20a-2000.
Automatic Valves for Gas Appliances—ANSI Z21.21/CSA 6.5-2000.
Gas Appliance Thermostats—ANSI Z21.23-1989, with Addendum Z21.23a-1991.
Gas Vents, Ninth Edition—UL 441, 1996 with 1999 revisions.
Standard for the Installation of Oil-Burning Equipment, NFPA 31, 1997 Edition.
National Fuel Gas Code—NFPA 54-2002/ANSI Z223.1-2002.
Warm Air Heating and Air Conditioning Systems, NFPA 90B, 1996 Edition.
Liquefied Petroleum Gas Code, NFPA 58-2001 Edition.
Flares for Tubing—SAE-J533b-1992.
Factory-Built Chimneys for Residential Type and Building Heating Appliances, Ninth Edition—UL 103, 1995, with 1999 revisions.
Factory-Built Fireplaces, Seventh Edition—UL 127-1996, with 1999 revisions.
Solid-Fuel Type Room Heaters, Fifth Edition—UL 1482, 1995, with 2000 revisions.
Fireplace Stoves, Eight Edition, with 2000 revisions—UL 737, 1996.
Unitary Air-Conditioning and Air-Source Heat Pump Equipment—ANSI/ARI 210/240-89.
AGA Requirements for Gas Connectors for Connection of Fixed Appliances for Outdoor Installation, Park Trailers, and Manufactured (Mobile) Homes to the Gas Supply—No. 3-87.
(b) * * *
(5)
(b) * * *
(3) Copper tubing must be annealed type, Grade K or L, conforming to the Standard Specification for Seamless Copper Water Tube, ASTM B88-93, or must comply with the Standard Specification for Seamless Copper Tube for Air Conditioning and Refrigeration Service, ASTM B280-1995. Copper tubing must be internally tinned.
(4) Steel tubing must have a minimum wall thickness of 0.032 inch for tubing of
(c) * * *
(2) The connection(s) between units must be made with a connector(s) listed for exterior use or direct plumbing sized in accordance with § 3280.705(d). A shutoff valve of the non-displaceable rotor type conforming to ANSI Z21.15-1997, Manually Operated Gas Valves for Appliances, Appliances Connector Valves, and Hose End Valves, suitable for outdoor use must be installed at each crossover point upstream of the connection.
(l) * * *
(1) A listed LP-Gas flexible connection conforming to UL 569-1995, Pigtails and Flexible Hose Connectors for LP Gas, or equal must be supplied when LP-Gas cylinders(s) and regulator(s) are supplied.
(2) * * *
(ii) The outlet must be provided with an approved quick-disconnect device, which must be designed to provide a positive seal on the supply side of the gas system when the appliance is disconnected. A shutoff valve of the non-displaceable rotor type conforming to ANSI Z21.15-1997, Manually Operated Gas Valves, must be installed immediately upstream of the quick-disconnect device. The complete device must be provided as part of the original installation.
(3)
(b) * * *
(3) Copper tubing must be annealed type, Grade K or L conforming to the Standard Specification for Seamless Copper Water Tube, ASTM B88-93, or shall comply with ASTM B280-1995, Standard Specification for Seamless Copper Tube for Air Conditioning and Refrigeration Field Service.
(f)
(1) External switches or remote controls which shut off the burner or the flow of oil to the burner, or
(2) An emergency disconnect switch to interrupt electric power to the equipment under conditions of excessive temperature.
(h) A corrosion resistant water drip collection and drain pan must be
(a) * * *
(2) Gas fired absorption air conditioners must be listed or certified in accordance with ANSI Z21.40.1-1996, Gas Fired, Heat Activated, Air Conditioning and Heat Pump Appliances, and certified by a nationally recognized testing agency capable of providing follow-up service.
(c)
(e)
(1) Be made of a material classified 94V-0 or 94V-1, when tested as described in UL 94-1996, with 2001 revisions, Test for Flammability of Plastic Materials for Parts in Devices and Appliances, Fifth Edition; and
(a) Subpart I of these Standards and part B of Article 550 of the National Electrical Code (NFPA No. 70-2005) cover the electrical conductors and equipment installed within or on manufactured homes and the conductors that connect manufactured homes to a supply of electricity.
(b) In addition to the requirements of this Standard and Article 550 of the National Electrical Code, NFPA No. 70-2005, the applicable portions of other Articles of the National Electrical Code must be followed for electrical installations in manufactured homes. The use of arc-fault breakers under Articles 210.12(A) and (B), 440.65, and 550.25(A) and (B) of the National Electrical Code, NFPA No. 70-2005 is not required. However, if arc-fault breakers are provided, such use must be in accordance with the National Electrical Code, NFPA No. 70-2005. Wherever the requirements of this standard differ from the National Electrical Code, these standards apply.
(f) * * *
(k) * * *
(1) One mast weatherhead installation installed in accordance with Article 230 of the National Electrical Code, NFPA No. 70-2005, containing four continuous insulated, color-coded, feeder conductors, one of which shall be an equipment grounding conductor; or
(3) Service equipment installed on the manufactured home in accordance with Article 230 of the National Electrical Code, NFPA No. 70-2005, and the following requirements:
(ii) Exterior equipment, or the enclosure in which it is installed must be weatherproof and installed in accordance with Article 312.2(A) of the National Electrical Code, NFPA No. 70-2005, and conductors must be suitable for use in wet locations;
(iii) Each neutral conductor must be connected to the system grounding conductor on the supply side of the main disconnect in accordance with Articles 250.24, 250.26, and 250.28 of the National Electrical Code, NFPA No. 70-2005.
(a) The branch-circuit equipment is permitted to be combined with the disconnecting means as a single assembly. Such a combination is permitted to be designated as a distribution panelboard. If a fused distribution panelboard is used, the maximum fuse size of the mains must be plainly marked with lettering at least
(k) When a home is provided with installed service equipment, a single disconnecting means for disconnecting the branch circuit conductors from the service entrance conductors must be provided in accordance with Article 230, Part VI of the National Electrical Code, NFPA No. 70-2005. * * *
(a) * * *
(3) * * *
(iv) The rating of the range branch circuit is based on the range demand as specified for ranges in § 3280.811(a)(5). For central air conditioning, see Article 440 of the National Electrical Code, NFPA No. 70-2005.
(a) * * *
(2) Installed according to Article 406.3 of the National Electrical Code, NFPA No. 70-2005.
(d) * * *
(9) At least one wall receptacle outlet shall be installed in bathrooms within 36 inches (914 mm) of the outside edge of each basin. The receptacle outlet must be located on a wall that is adjacent to the basin location. This receptacle is in addition to any receptacle that is part of a lighting fixture or appliance. The receptacle must not be enclosed within a bathroom cabinet or vanity.
(c) If a lighting fixture is provided over a bathtub or in a shower stall, it must be of the enclosed and gasketed type, and be listed for use in wet locations. See also Article 410.4(D) of the National Electrical Code, NFPA No. 70-2005.
(a) Except as specifically permitted by this part, the wiring methods and materials specified in the National Electrical Code, NFPA No. 70-2005, must be used in manufactured homes.
(m) Outlet boxes of dimensions less than those required in Table 314.16(A) of the National Electrical Code, NFPA No. 70-2005, are permitted provided the box has been tested and approved for that purpose.
(o) Outlet boxes must fit closely to openings in combustible walls and ceilings and must be flush with the finish surface or project therefrom. In walls and ceilings of noncombustible material, outlet boxes and fittings must be installed so that the front edge of the box or fitting will not be set back from the finished surface more than
(q) A substantial brace for securing a box, fitting, or cabinet must be as described in the National Electrical Code, NFPA 70-2005, Article 314.23(B), or the brace, including the fastening mechanism to attach the brace to the home structure, must withstand a force of 50 lbs. applied to the brace at the intended point(s) of attachment for the box in a direction perpendicular to the surface on which the box is installed.
(b) The following is an optional method of calculation for lighting and appliance loads for manufactured homes served by single 3-wire 120/240 volt set of feeder conductors with an ampacity of 100 or greater. The total load for determining the feeder ampacity may be computed in accordance with the following table instead of the method previously specified. Feeder conductors whose demand load is determined by this optional calculation are permitted to have the neutral load determined by Article 220.61 of the National Electrical Code, NFPA No. 70-2005. The loads identified in the table as “other load” and as “Remainder of other load” must include the following: