Forest Service
National Foundation on the Arts and the Humanities
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Presidential Documents
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Coast Guard
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Drug Enforcement Administration
Employee Benefits Security Administration
Occupational Safety and Health Administration
National Commission on Libraries and Information Science
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety 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.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Privacy Office; Department of Homeland Security.
Final rule.
The Department of Homeland Security is issuing a final rule to exempt two Privacy Act systems of records from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). These systems are the Freedom of Information Act and Privacy Act System of Records and the Civil Rights and Civil Liberties Matters System of Records.
This final rule is effective April 21, 2006.
Maureen Cooney, Acting Chief Privacy Officer, Department of Homeland Security, Washington, DC, by telephone (571) 227-3813 or by facsimile (571) 227-4171.
On December 4, 2004, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (69 FR 70402) to exempt two Privacy Act systems of records from the following provisions of the Privacy Act, 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f). The first system of records, DHS/ALL 001, DHS Freedom of Information Act (FOIA) and Privacy Act Records Systems, allows the Department and its components to maintain and retrieve FOIA and Privacy Act files by the personal identifiers of the individuals who have submitted requests for records under either statute. The second system of records, DHS-CRCL-001, Civil Rights and Civil Liberties Matters, covers records alleging abuses of civil rights and civil liberties that are submitted to the Office for Civil Rights and Civil Liberties.
Two comments from one individual were received on this notice of proposed rulemaking. The comments discussed the importance of the transparency that comes from compliance with the FOIA and appeared to take issue generally with DHS's proposal to exempt the two record systems covered by the proposed rule, DHS/ALL 001 and CRCL-001, Civil Rights and Civil Liberties Matters, from certain provisions of the Privacy Act.
While DHS agrees that the FOIA serves important transparency purposes, it nevertheless believes that the exemptions it has sought for these two record systems are narrowly tailored to protect agency interests. Because it is possible that either system of records will contain information that comes from law enforcement or national security files, which are themselves exempt from the Privacy Act, allowing access to that information derived from such files could result in harm to the government. In appropriate circumstances, however, the applicable exemptions may be waived if no harm to the law enforcement or national security interests of DHS would result.
Accordingly, with the exception of two non-substantive edits to correct an error, DHS is implementing the rule as proposed.
Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, DHS certifies that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities. Further, in accordance with the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, DHS has determined that this final rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements.
Classified information, Courts, Freedom of information, Government employees, Privacy.
Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101
This Appendix implements provisions of the Privacy Act of 1974 that permit the Department of Homeland Security (DHS) to exempt its systems of records from provisions of the Act. During the course of normal agency operations, exempt materials from other systems of records may become part of the records in these and other DHS systems. To the extent that copies of records from other exempt systems of records are entered into any DHS system, DHS hereby claims the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions in accordance with this rule.
Portions of the following DHS systems of records are exempt from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552(j) and (k):
1. DHS/ALL 001, Department of Homeland Security (DHS) Freedom of Information Act (FOIA) and Privacy Act (PA) Record System allows the DHS and its components to maintain and retrieve FOIA and Privacy Act files by personal identifiers associated with the persons submitting requests for information under each statute. Pursuant to exemptions (j)(2), (k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I) and (f). Exemptions from the particular subsections are justified, on a case by case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension, which undermines the entire system.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of DHS or another agency. Access to the records would permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. The information contained in the system may also include properly classified information, the release of which would pose a threat to national defense and/or foreign policy. In addition, permitting access and amendment to such information also could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced, occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective enforcement of federal laws, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), and (f) (Agency Rules), because portions of this system are exempt from the access provisions of subsection (d).
2. DHS-CRCL-001, Civil Rights and Civil Liberties Matters, which will cover allegations of abuses of civil rights and civil liberties that are submitted to the Office of CRCL. Pursuant to exemptions (k)(1), (k)(2) and (k)(5) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H) and (I) and (f). Exemptions from the particular subsections are justified, on a case by case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of DHS or another agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension, which undermines the entire system.
(b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Access to the records would permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension. Amendment of the records would interfere with ongoing investigations and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. The information contained in the system may also include properly classified information, the release of which would pose a threat to national defense and/or foreign policy. In addition, permitting access and amendment to such information also could disclose security-sensitive information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced, occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective enforcement of federal laws, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsections (e)(4)(G), (H) and (I) (Agency Requirements), and (f) (Agency Rules), because this system is exempt from the access provisions of subsection (d).
Federal Deposit Insurance Corporation (FDIC).
Final rule.
The FDIC is amending its regulations to reflect the recent merger of the Bank Insurance Fund and the Savings Association Insurance Fund, forming the Deposit Insurance Fund. The merger of the two deposit insurance funds was required by the Federal Deposit Insurance Reform Act of 2005 and was effectuated by the FDIC as of March 31, 2006. All revisions to the FDIC's regulations made by the final rule are conforming changes necessitated by the funds merger.
Effective Date: The final rule is effective on April 21, 2006.
Joseph A. DiNuzzo, Counsel, (202) 898-7349, Legal Division, Federal Deposit Insurance Corporation, Washington, DC 20429.
Section 2102 of the Federal Deposit Insurance Reform Act of 2005 (“Reform Act”) (Pub. L. 109-171, 120 Stat. 9) required that the FDIC merge the Bank Insurance Fund (“BIF”) and Savings Association Insurance Fund (“SAIF”) into the Deposit Insurance Fund (“DIF”) effective no later than July 1, 2006. The FDIC effectuated the funds merger as of March 31, 2006. As a result of the funds merger, the BIF and SAIF were abolished. Section 8 of the Federal Deposit Insurance Reform Conforming Amendments Act of 2005 (Pub. L. 109-173, 119 Stat. 3601) (“Amendments Act”) made numerous technical and conforming amendments to the FDI Act relating to the merger of BIF and SAIF into the DIF.
The final rule revises the FDIC's regulations to reflect the funds merger and the elimination of BIF and SAIF. The majority of revisions are comprised of replacing references to BIF and SAIF with DIF. Other changes eliminate provisions dealing with fund conversions and entrance and exit fees previously required when an institution converted from one fund to the other.
Neither the recent legislation nor the funds merger will affect the authority of the Financing Corporation (“FICO”) to impose and collect, with approval of the FDIC, assessments for anticipated payments, issuance costs and custodial fees on obligations issued by the FICO.
The following is a section-by-section discussion of the final rule revisions to the FDIC's regulations.
The final rule: (1) Eliminates the defined term “optional conversion (Oakar transaction)” in section 303.61(d) because, with the elimination of BIF and SAIF and the formation of the DIF, fund conversions are now obsolete; (2) excludes “deposit insurance fund conversions” from the transactions listed in section 303.62
The final rule revises section 308.111(f) by replacing “the Bank Insurance Fund or the Savings Association Insurance Fund” with “the Deposit Insurance Fund.”
The final rule deletes this entire part because the funds merger has made fund conversions and the accompanying entrance and exit fees obsolete. Also, Section 8(a)(4) of the Amendments Act expressly provides that any funds held in the SAIF exit fee reserve account provided for in section 312.5(e) be deposited into the general fund of the DIF. This action was effectuated upon the merger of the funds.
As a result of the Reform Act, the FDIC is in the process of revamping its risk-based assessment system. Technical changes to part 327 involving the funds merger will be made as part of the FDIC's future rulemaking to implement the substantive overhaul of the assessment system. Section 2109 of the Reform Act specifies that, during the interim period between the time of the funds merger and the effective date of new assessment regulations, the existing assessment regulations shall apply to all DIF members, even though they may refer to BIF members or SAIF members.
The final rule revises section 336.3(f) by replacing “Bank Insurance Fund, the Savings Association Insurance Fund” with “Deposit Insurance Fund, the former Bank Insurance Fund, the former Savings Association Insurance Fund.”
The final rule revises section 347.202(u) by replacing “Bank Insurance Fund” with “Deposit Insurance Fund.” Sections 347.209(a) and 347.209(b)(3) are revised by replacing “deposit insurance fund” in each place it appears with “Deposit Insurance Fund.” Also, in section 347.212(b) “affected deposit insurance fund” is replaced by “Deposit Insurance Fund.”
The final rule revises a cross-reference citation in section 348.6(d).
The final rule revises section 357.1(a) by replacing “Savings Association Insurance Fund members” with “insured savings associations.”
Part 362 is revised: in section 362.1(d) by replacing “deposit insurance funds” with “Deposit Insurance Fund”; in section 362.2(p) by replacing “deposit insurance fund” with “Deposit Insurance Fund” and replacing “any insurance fund” with “the Deposit Insurance Fund”; in section 362.3(a)(2)(iii)(A)(2) by replacing “appropriate deposit insurance fund” with “Deposit Insurance Fund” in section 362.3(b)(2)(i) by replacing “affected deposit insurance fund” and “deposit insurance funds” with “Deposit Insurance Fund”; in section 362.3(b)(2)(iii)(A) and (B) by replacing references to “deposit insurance funds” with “Deposit Insurance Fund”; in section 362.4(b)(1) by replacing “affected deposit insurance fund” with “Deposit Insurance Fund”; in sections 362.4(b)(3), 362.4(b)(5), 362.4(b)(6), 362.4(b)(7) and 362.9(c) by replacing “deposit insurance funds” with “Deposit Insurance Fund”; and in sections 362.11 and 362.12 by replacing all references to “affected deposit insurance fund” with “Deposit Insurance Fund” and by replacing all references to “deposit insurance funds” with “Deposit Insurance Fund.”
Part 363 is revised by replacing “affected deposit insurance fund” in section 363.1(b)(3) with “Deposit Insurance Fund.”
Part 364 (Appendix A I. vi) is revised by replacing “deposit insurance funds” with “Deposit Insurance Fund.”
Section 366.3(d) and 366.5 are revised by replacing all references to “a federal deposit insurance fund” with “the Deposit Insurance Fund (or any predecessor deposit insurance fund).”
Section 367.2(s)(1) is revised by replacing “Bank Insurance Fund (BIF), the Savings Association Insurance Fund (SAIF)” with “the former Bank Insurance Fund (BIF), the former Savings Association Insurance Fund (SAIF) or the Deposit Insurance Fund”. Section 367.2(s)(3) is revised by replacing “or the BIF, the SAIF” with “or the former BIF, the former SAIF, the Deposit Insurance Fund.” Section 367.6(d) is revised by replacing “Federal deposit insurance funds” with “the Deposit Insurance Fund (or any predecessor deposit insurance fund).”
The revisions to the FDIC's regulations made by the final rule are all technical, conforming and non-discretionary changes required by the Reform Act and the Amendments Act incident to the merger of BIF and SAIF and the formation of the DIF. Thus, the FDIC Board of Directors has determined that the public notice and participation that ordinarily would be required by the Administrative Procedure Act (5 U.S.C. 553) before a regulation may take effect are unnecessary and that good cause exists for an exception to the customary 30-day delayed effective date.
The final rule will not create or modify any collections of information pursuant to the Paperwork Reduction Act (44 U.S.C. 3501
A regulatory flexibility analysis is required only when an agency must publish a notice of proposed rulemaking (5 U.S.C. 603, 604). Because the revisions to the FDIC's regulations are published in final form without a notice of proposed rulemaking, no regulatory flexibility analysis is required.
The FDIC has determined that the final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).
The Office of Management and Budget has determined that the final rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”) (5 U.S.C. 801
Administrative practice procedure, Bank deposit insurance, Banks, banking, Reporting and recordkeeping requirements, Savings associations.
Administrative practice and procedure, Bank deposit insurance, Banks, banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties.
Bank deposit insurance, Savings associations.
Conflict of interest.
Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Credit, Foreign banking, Investments, Reporting and recordkeeping requirements, United States investments abroad.
Antitrust, banks, banking, holding companies.
Savings associations.
Administrative practice and procedure, Authority delegations (Government Agencies), Bank deposit insurance, Banks, banking, Investments, Reporting and recordkeeping requirements.
Accounting, Administrative practice and procedure, Banks, banking, Reporting and recordkeeping requirements.
Administrative practice and procedure, Bank deposit insurance, Reporting and recordkeeping requirements.
Conflict of interests, Government contracts, Reporting and recordkeeping requirements.
Administrative practice and procedure, Conflict of interests, Government contracts.
12 U.S.C. 378, 1813, 1815, 1817, 1818, 1819, (Seventh and Tenth), 1820, 1823, 1828, 1831a, 1831e, 1831o, 1831p-1, 1831w, 1835a, 1843(l), 3104, 3105, 3108, 3207; 15 U.S.C. 1601-1607.
5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 110 Stat. 1321-358.
5 U.S.C. 7301; 12 U.S.C. 1819(a).
(f)
12 U.S.C. 1813, 1815, 1817, 1819, 1820, 1828, 3103, 3104, 3105, 3108, 3109; Title IX, Pub. L. 98-181, 97 Stat. 1153.
12 U.S.C. 3207, 12 U.S.C. 1823(k).
12 U.S.C. 1819(k)(5).
12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 1828(m), 1828a, 1831e, 1831w, 1843(l).
12 U.S.C. 1831m.
12 U.S.C. 1818 and 1819 (Tenth); 15 U.S.C. 1681b, 1681s, and 1681w.
Section 9 (Tenth) of the Federal Deposit Insurance Act (FDI Act), 12 U.S.C. 1819 (Tenth); sections 12(f)(3) and (4) of the FDI Act, 12 U.S.C. 1822(f)(3) and (4); and section 19 of Pub. L. 103-204, 107 Stat. 2369.
12 U.S.C. 1822(f)(4) and (5).
By order of the Board of Directors.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is superseding an existing airworthiness directive (AD), which applies to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. That AD currently requires repetitive detailed and ultrasonic inspections of the thrust links of the rear engine mounts for any crack or fracture and corrective actions if necessary. This new AD requires repetitive replacement of the thrust links with new or overhauled thrust links, which ends the repetitive detailed and ultrasonic inspections. This AD results from the finding of fractured and cracked forward lugs of the rear engine mount thrust link on the number one strut on two airplanes. We are issuing this AD to prevent cracked or fractured thrust links that could lead to the loss of the load path for the rear engine mount bulkhead and damage to other primary engine mount structure, which could result in the in-flight separation of the engine from the airplane and consequent loss of control of the airplane.
This AD becomes effective May 26, 2006.
On September 30, 2005 (70 FR 54474, September 15, 2005), the Director of the Federal Register approved the incorporation by reference of Boeing Alert Service Bulletin 747-71A2309, dated August 18, 2005.
You may examine the AD docket on the Internet at
Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this AD.
Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6437; fax (425) 917-6590.
You may examine the airworthiness directive (AD) docket on the Internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2005-19-06, amendment 39-14271 (70 FR 54474, September 15, 2005). The existing AD applies to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. That NPRM was published in the
We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM.
Boeing and Northwest Airlines (NWA) support the NPRM.
NWA states that, as a result of the inspections required by AD 2005-19-06, some thrust links may have already been replaced with new or overhauled thrust links (prior to the initial compliance time specified in Table 1 of the NPRM). According to NWA's interpretation of paragraph (e) of the NPRM, replacements done previously in accordance with AD 2005-19-06 comply with the initial replacement specified in the NPRM. We infer that the commenter would like us to clarify whether this interpretation is correct.
We agree that, under paragraph (e) of this AD, the actions required by this AD must be accomplished within the specified compliance times, unless the actions have been previously accomplished. Therefore, replacement of a cracked or fractured thrust link in accordance with paragraph (h) of AD 2005-19-06 constitutes compliance with the initial replacement required by paragraph (k) of this AD, for that thrust link only. No change to this AD is necessary.
We have carefully reviewed the available data, including the comments that have been submitted, and determined that air safety and the public interest require adopting the AD as proposed.
There are about 274 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $65 per hour, for U.S. operators to comply with this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
49 U.S.C. 106(g), 40113, 44701.
(a) This AD becomes effective May 26, 2006.
(b) This AD supersedes AD 2005-19-06.
(c) This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes, certificated in any category; equipped with Pratt & Whitney JT9D-3 and -7 series engines, except JT9D-70 engines; as identified in Boeing Alert Service Bulletin 747-71A2309, dated August 18, 2005.
(d) This AD results from the finding of fractured and cracked forward lugs of the rear engine mount thrust link on the number one strut on two airplanes. We are issuing this AD to prevent cracked or fractured thrust links that could lead to the loss of the load path for the rear engine mount bulkhead and damage to other primary engine mount structure, which could result in the in-flight separation of the engine from the airplane and consequent 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) The term “service bulletin,” as used in this AD, means the Accomplishment Instructions of Boeing Alert Service Bulletin 747-71A2309, dated August 18, 2005.
(g) Within 90 days after September 30, 2005 (the effective date of AD 2005-19-06), do a detailed inspection and ultrasonic inspection of thrust link lugs having part number (P/N) 65B90360-1 or -4 of the rear engine mount of struts 1, 2, 3, and 4 for any crack or fracture, in accordance with Part 1 of the service bulletin. If the thrust link is not found cracked or fractured: Repeat the inspections thereafter at intervals not to exceed 1,200 flight cycles or 18 months, whichever is first, until the repetitive replacement or overhaul of the thrust link required by paragraph (k) of this AD is accomplished. Accomplishing the repetitive replacement or overhaul of a thrust link as specified in paragraph (h) or (k) of this AD terminates the repetitive inspections for that thrust link only.
(h) If a cracked thrust link is found during any inspection required by paragraph (g) of this AD or during any replacement or overhaul done in accordance with the service bulletin: Before further flight, do the actions specified in paragraph (h)(1) of this AD. If a fractured thrust link is found during any inspection required by paragraph (g) of this AD or during any replacement or overhaul done in accordance with the service bulletin: Before further flight, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD.
(1) Replace the thrust link with a new or overhauled thrust link in accordance with Part 2 of the service bulletin; except as provided by paragraph (i) of this AD. Repeat the replacement at the applicable compliance time specified in paragraph (h)(1)(i) or (h)(1)(ii) of this AD.
(i) For replacement with a thrust link assembly having P/N 65B90360-1 or -4: Thereafter at intervals not to exceed 6,000 flight cycles.
(ii) For replacement with a thrust link assembly having P/N 65B90360-7: Thereafter at intervals not to exceed 12,000 flight cycles.
(2) Do the corrective actions in accordance with Parts 3, 4, and 5 of the service bulletin; except as provided by paragraph (i) of this AD.
(i) Where the service bulletin specifies to contact Boeing for appropriate action, do the corrective action using a method approved in accordance with paragraph (l) of this AD.
(j) Reworking the lugs on the bulkhead fitting of the rear engine mount as specified in paragraphs (b)(2), (e), and (f) of AD 2001-15-15, amendment 39-12349, is acceptable for compliance with accomplishing the corrective action specified in “Part 3—Rear Engine Mount Bulkhead Inspection and Lug Overhaul and Upper Fitting Overhaul and Bolt Replacement” of the service bulletin.
(k) At the applicable compliance times specified in Table 1 of this AD: Repetitively replace the thrust link of the rear engine mount of struts 1, 2, 3, and 4 with a new or overhauled thrust link, in accordance with Part 2 of the service bulletin; except as provided by paragraph (i) of this AD. During any replacement required by this paragraph, an existing thrust link may be replaced with a new or overhauled thrust link having P/N 65B90360-1, -4 or -7, provided that the applicable repetitive interval specified in Table 1 of this AD is complied with. If a fractured thrust link is found during any replacement or overhaul done in accordance with this paragraph: Before further flight, do the corrective actions specified in paragraph (h)(2) of this AD. Repetitive replacement of all thrust links having P/N 65B90360-1 or -4 terminates the repetitive inspections required by paragraph (g) of this AD. Accomplishing the repetitive replacement or overhaul of a thrust link required by paragraph (h) of this AD constitutes compliance with the requirements of this paragraph for that thrust link only.
(l)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) The actions identified in paragraphs (g) and (k) of this AD are approved as an AMOC to paragraphs (c) and (d) of AD 2004-07-22, amendment 39-13566, for the inspections of structural significant item S-2, for the thrust links only, of Boeing Supplemental Structural Inspection Document D6-35022, Revision G, dated December 2000. All provisions of AD 2004-07-22 that are not specifically referenced in this paragraph, including the initial inspection threshold required by paragraph (d) of AD 2004-07-22, remain fully applicable and must be complied with.
(5) AMOCs approved previously in accordance with AD 2005-19-06, amendment 39-14271, are approved as AMOCs for the corresponding provisions of this AD.
(m) You must use Boeing Alert Service Bulletin 747-71A2309, dated August 18, 2005, to perform the actions that are required by this AD, unless the AD specifies otherwise. On September 30, 2005 (70 FR 54474, September 15, 2005), the Director of the Federal Register approved the incorporation by reference of Boeing Alert Service Bulletin 747-71A2309, dated August 18, 2005. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, 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., room PL-401, Nassif Building, Washington, DC; on the Internet at
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; correction.
The FAA is correcting a typographical error in an existing airworthiness directive (AD) that was published in the
Effective April 17, 2006.
The AD docket contains the proposed AD, comments, and any final disposition. You may examine the AD docket on the Internet at
Tim Backman, Aerospace Engineer, ANM-116, International Branch, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2797; fax (425) 227-1149.
On March 15, 2006, the FAA issued AD 2006-07-07, amendment 39-14534 (71 FR 16206, March 31, 2006), for certain Airbus Model A300-600 series airplanes. The AD requires modifying nine bolt holes in the vertical flange to prevent cracking before the inspection threshold of AD 98-18-02.
As published, the AD lists the Docket No. as FAA-2006-24124. The correct Docket No. is FAA-2006-24364.
No other part of the regulatory information has been changed; therefore, the final rule is not republished in the
The effective date of this AD remains April 17, 2006.
In the
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for Pratt & Whitney Canada (PWC) PW535A turboshaft engines with serial numbers (SNs) lower than DC0241, and with hydromechanical fuel control (HFC) part number (P/N) 819735-4, 819735-5, or 819735-6 installed. This AD requires inspection and verification of the proper adjustment of the ratio unit setscrew adjustment of installed HFC units. This AD results from incidents of PW535A turboshaft engines experiencing lack of response to the power lever input during attempted engine acceleration, due to an incorrect adjustment of the HFC ratio unit setscrew. We are issuing this AD to prevent lack of engine response to power lever input, which could cause a single or dual engine in-flight shutdown event.
Effective May 8, 2006. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of May 8, 2006. We must receive any comments on this AD by June 20, 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.
Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone (781) 238-7178; fax (781) 238-7199.
Transport Canada, which is the airworthiness authority for Canada, recently notified us that an unsafe condition may exist on PWC PW535A turboshaft engines with SNs lower than DC0241. Transport Canada advises that they received reports of incidents of PW535A turboshaft engines experiencing lack of response to the power lever input during engine acceleration, due to an incorrect adjustment of the HFC ratio unit setscrew. Two events resulted in engine in-flight shutdowns.
We have reviewed and approved the technical contents of PWC Alert Service Bulletin (ASB) No. PW500-72-A30257, Revision 1, dated December 3, 2004, that describes procedures for inspecting and verifying proper adjustment of the ratio unit setscrew of installed HFC units. Transport Canada classified this ASB as mandatory and issued AD CF-2004-28 in order to ensure the airworthiness of these PWC engines in Canada.
This PW535A turboshaft engine model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, Transport Canada kept the FAA informed of the situation described above. We have examined the findings of Transport Canada, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
The unsafe condition described previously is likely to exist or develop on other PW535A turboshaft engines of the same type design. We are issuing this AD to prevent lack of engine response to power lever input, which could cause a single or dual engine in-flight shutdown event. This AD requires inspection and verification of the proper adjustment of the ratio unit setscrew of installed HFC units. You must use the service information described previously to perform the actions required by this AD.
Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under
We will post all comments we receive, without change, to
You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Office 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 have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us 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 May 8, 2006.
(b) None.
(c) This AD applies to Pratt & Whitney Canada (PWC) PW535A engines with serial numbers lower than DC0241, and with hydromechanical fuel control (HFC) part number (P/N) 819735-4, 819735-5, or 819735-6 installed. These engine models are installed on, but not limited to, Cessna model 560 Citation (Encore) airplanes.
(d) This AD results from incidents of PW535A engines experiencing lack of response to the power lever input during engine acceleration, due to an incorrect adjustment of the HFC ratio unit setscrew. We are issuing this AD to prevent lack of engine response to power lever input, which could cause a single or dual engine in-flight shutdown event.
(e) You are responsible for having the actions required by this AD performed within 50 flight hours time-in-service after the effective date of this AD, unless the actions have already been done.
(f) To ensure the HFC, P/N 819735-4, 819735-5, or 819735-6, ratio unit setscrew is properly adjusted, determine if the HFC serial number is listed in Table 1 of PWC Alert Service Bulletin (ASB) No. PW500-72-A30257, Revision 1, dated December 3, 2004.
(1) If the HFC's serial number is listed in Table 1, ensure the HFC ratio unit setscrew is properly adjusted by following the instructions contained in paragraphs 3 B, C, D, E, F, G, and H of PWC ASB No. PW500-72-A30257, Revision 1, dated December 3, 2004.
(2) If the HFC's serial number is not listed, this airworthiness directive is not applicable.
(g) Compliance with the original version of PWC ASB No. PW500-72-A30257, dated December 2, 2003, before the effective date of this AD satisfies the requirements of this AD.
(h) The Manager, Engine 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.
(i) Transport Canada airworthiness directive CF-2004-28, dated December 20, 2004, also addresses the subject of this AD.
(j) You must use Pratt & Whitney Canada Alert Service Bulletin No. PW500-72-A30257, Revision 1, dated December 3, 2004, to perform the actions 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 Pratt & Whitney Canada, 1000 Marie-Victorin, Longueuil, Quebec, Canada, J4G 1A1; telephone 800-268-8000; fax 450-647-2888, for a copy of this service information. You may review
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of an abbreviated new animal drug application (ANADA) filed by Ivy Laboratories, Division of Ivy Animal Health, Inc. The ANADA provides for use of single-ingredient Type A medicated articles containing melengestrol and monensin to make two-way combination drug Type C medicated feeds for heifers fed in confinement for slaughter.
This rule is effective April 21, 2006.
Daniel A. Benz, Center for Veterinary Medicine (HFV-104), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-0223, e-mail:
Ivy Laboratories, Division of Ivy Animal Health, Inc., 8857 Bond St., Overland Park, KS 66214, filed ANADA 200-422 for use of HEIFERMAX 500 (melengestrol acetate) Liquid Premix and RUMENSIN (monensin sodium) single-ingredient Type A medicated articles to make, two-way combination drug Type C medicated feeds for heifers fed in confinement for slaughter. Ivy Laboratories' ANADA 200-422 is approved as a generic copy of Pharmacia and Upjohn's NADA 125-476 for combination use of MGA 500 (melengestrol acetate) Liquid Premix and RUMENSIN in cattle feed. The application is approved as of March 22, 2006, and the regulations are amended in 21 CFR 558.342 to reflect the approval. The basis of approval is discussed in freedom of information summary.
In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.
The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Animal drugs, Animal feeds.
21 U.S.C. 360b, 371.
Food and Drug Administration, HHS.
Direct final rule; confirmation of effective date.
The Food and Drug Administration (FDA) is confirming the effective date of June 2, 2006, for the direct final rule that appeared in the
Effective date confirmed: June 2, 2006.
Valerie A. Butler, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448, 301-827-6210.
In the
Therefore, under the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act and under authority delegated to the Commissioner of Food and Drugs, the amendment issued thereby becomes effective on June 2, 2006.
Department of State.
Final rule.
The Department of State is amending the International Traffic in Arms Regulations (ITAR) to reflect current office names, correct cross-references, update the reference to the Wassenaar Arrangement, and make other corrections and administrative changes.
Interested parties may submit comments at any time by any of the following methods:
• E-mail:
• Mail: Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Management, ATTN: Regulatory Change, 12th Floor, SA-1, Washington, DC 20522-0112.
• Fax: 202-261-8199.
• Hand Delivery or Courier (regular work hours only): Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Management, ATTENTION: Regulatory Change, SA-1, 12th Floor, 2401 E Street, NW., Washington, DC 20037.
Persons with access to the Internet may also view this notice by going to the regulations.gov Web site at:
Mary Sweeney, Office of Defense Trade Controls Management, Department of State, 12th Floor, SA-1, Washington, DC 20522-0112; Telephone 202-663-2865 or FAX 202-261-8199; e-mail:
References to the “Office of Defense Trade Controls” have been amended to the “Directorate of Defense Trade Controls” (§§ 120.1(c), 120.4(a), 120.4(b), 120.12, 120.20, 120.28(a), 121.1 Category XXI(a), 121.16, 122.1(a), 122.4(a), 122.4(b), 122.4(c), 122.4(c)(4). 122.4(d), 123.1(a), 123.1(c), 123.3(a), 123.8(a), 123.8(b), 123.9(a), 123.9(d), 123.9(e), 123.9(e)(3), 123.9(e)(4), 123.10(b), 123.10(c), 123.11(a), 123.14(b), 123.25(a), 123.27(a), 123.27(a)(2), 123.27(a)(5), 123.27(a)(6), 123.27(b), 123.27(c), 124.1(a), 124.1(b), 124.1(c), 124.1(d), 124.4(a), 124.4(b), 124.5, 124.6, 124.10(a), 124.10(b)(1), 124.10 Note, 124.12(1), 124.12(a)(1), 124.13(d), 124.13(e), 124.14(a), 124.14(b), 124.14(b)(4), 124.14(c)(5), 124.14(e), 124.14(e)(1), 125.1(b), 125.2(a), 125.2(b), 125.3(a), 125.3(b), 125.3(c), 125.4(a), 125.4(b)(10)(iii), 125.4(b)(11), 125.5(a), 125.5(b), 125.7(a), 125.7(b), 125.9, 126.1(e), 126.2, 126.7(b), 126.7(c), 126.8(a), 126.8(a)(1), 126.8(a)(2), 126.8(a)(3), 126.8(c)(1)(i), 126.8(c)(2), 126.9(a), 126.9(b), 126.10(a), 126.14(a), 126.14(a)(1), 126.14(a)(2), 126.14(a)(3)(i), 126.14(b), 127.1(a)(1), 127.1(a)(2), 127.1(a)(3), 127.1(c), 127.7(b)(2), 127.8(a), 127.9, 127.10, 127.11, 127.12(a), 127.12(b)(1), 127.12(b)(2), 127.12(b)(3), 127.12(c), 127.12(d)(iii), 128.3(a), 128.5(c), 128.6(a), 128.6(b), 128.6(d), 128.10, 128.11(a), 128.13(d), 128.15(a), 128.15(b)(3), 129.3(a), 129.4(b), 129.5(b), 129.5(c), 129.5(e), 129.6(a), 129.7(a), 129.7(b)(2), 129.7(c), 129.8(a), 129.8(b), 129.9(a), 130.2, 130.8(a)(1), 130.9(a)(1), 130.9(a)(1)(ii), 130.9(a)(2), 130.9(b), 130.9(b)(2), 130.9(d), 130.10(a), 130.11(a)(3), 130.11(b), 130.11(b)(2), 130.12(c), 130.12(d)(1), and 130.12(d)(2)).
“COCOM” has been amended to the “Wassenaar Arrangement” (§§ 120.4(d)(3)(ii), 120.4(d)(3)(iii), and 126.10(d)(2)). “Center for Defense Trade” has been amended to the “Directorate of Defense Trade Controls” (§§ 120.4(g) and 121.1(a)). “Center for Defense Trade” has been amended to “Office of Defense Trade Controls Policy” (§ 120.4(e)). Also, references to the “Bureau of Politico-Military Affairs” have been amended to the “Bureau of Political-Military Affairs” (§§ 120.4(g), 120.12, 120.28(a), 127.7(a), 127.9 and 127.11(b)). Grammatical changes have been made to the definition of “U.S. person” at § 120.15, to § 124.1(a) by deleting “either,” and to “Voluntary Disclosures” at § 127.12(b)(4). The “Defense Security Assistance Agency” has been amended to the “Defense Security Cooperation Agency” (§ 120.28(b)(3)).
Certain references to the Treasury Department have been amended to the Attorney General, and other references to Treasury have been amended to the Department of Justice, as appropriate, because the Bureau of Alcohol, Tobacco and Firearms (ATF) was transferred to the Department of Justice and ATF's name was changed to Bureau of Alcohol, Tobacco, Firearms and Explosives (§§ 120.5, 120.18, 123.2 and 126.11). Also, the reference to 31 CFR part 505 has been changed to 27 CFR part 447 and 15 CFR parts 768-799 have been changed to 15 CFR parts 730-799 at § 120.5. References to 27 CFR parts 47, 178 and 179 have been changed to 27 CFR parts 447, 478, 479, and 555 at §§ 120.18 and 123.2. Reference to 27 CFR 178.115(d) has been changed to 27 CFR 478.115(d) at § 123.17(d).
Numerous typographical errors are being corrected in the United States Munitions List, § 121.1, Categories V and XV.
References to “technical data” and “defense service” have been corrected in § 121.1, Categories IV, V, XI, XII, XIV, XVII, XX, and XXI. Cross references have been corrected (§§ 120.1(c), 120.10(a)(1), 120.16, 121.1(b), 121.1 Category V(g)(2), 121.1 Category V(g)(5), 121.1 Category V(g)(6), 121.1 Category V(g)(7), 121.1 Category V(g)(8), 124.2(c)(5)(ix), 126.7(a), 127.8(a), 127.9 and 127.11(c)). Typographical mistakes have been corrected in § 121.1, Category V(a)(1); § 121.1, Category V(a)(5); § 121.1, Category V(a)(9); § 121.1, Category V(a)(15)(i); § 121.1, Category V(a)(20)(i); § 121.1, Category V(a)(24)(ii); § 121.1, Category V(a)(29); § 121.1, Category V(a)(31)(i); § 121.1, Category V(a)(31)(ii); § 121.1, Category V(a)(31)(iv); § 121.1, Category V(c)(8); § 121.1, Category V(c)(9); § 121.1, Category V(e)(2); § 121.1, Category V(e)(9); § 121.1, Category V(e)(13); § 121.1, Category V(e)(14); § 121.1, Category V(f)(3)(iv); § 121.1, Category V(f)(14); § 121.1, Category V(f)(15); § 121.1, Category V(f)(17); § 121.1, Category XV(d)(1); § 121.1, Category XV(d)(2); § 121.1, Category XV(d)(3); § 121.1, Category XV(d)(5); § 121.16, Item 1-Category 1; § 121.16, Item 4-Category II; § 121.16, Item 9-Category II; § 121.16, Item 12-Category II; § 121.16, Note to Item 18(a); and in §§ 123.16(b)(2)(v), 126.5(c)(4)(v), 126.14(a)(3)(iv), 127.3(b), 128.7(a)(1)(ii), and 130.5(b)(1). CAS numbers were added in § 121.1, Category V(a)(2); § 121.1, Category V(a)(31)(vii); § 121.1, Category V(a)(34); § 121.1, Category V(e)(11); § 121.1, Category V(e)(13); and § 121.1, Category V(e)(15). The “Director of the Office of Defense Trade Controls” has been changed to the “Director, Office of Defense Trade Controls Policy”
“Registration Statement” has been amended to “Statement of Registration” (§§ 122.2(b), 122.4(a)(2), 124.1(b), 125.3(a), 126.13(c), and 129.4(a) and (b)).
“Defense Investigative Service” has been amended to “Defense Security Service” (§§ 123.6, 125.3(a), 125.9 and 127.5). The “Industrial Security Manual” has been changed to the “National Industrial Security Program Operating Manual” (§§ 124.3(b)(2), 125.3(b), 125.4(b)(9)(iii), 125.5(a), 125.5(b), 125.7(b), 125.9 and 127.5). Clarification has been made relating to the authority of the Secretary of State to impose different conditions on exports apart from those imposed by the Department of Defense. The “Directorate for Freedom of Information and Security Review” has been amended to “Office of Freedom of Information and Security Review” (§ 125.4(b)(13)).
Reference to 49 U.S.C. 1508 has been updated to 49 U.S.C. 40103 regarding overflight approval at § 126.6(b). Reference to 15 CFR part 388 has been updated to 15 CFR part 720 at § 126.7(a)(6).
Additional language has been added to clarify § 127.1(a): reexporting or retransferring or attempting to reexport or retransfer from one foreign destination to another foreign destination by a U.S. Person of any defense article or technical data or by anyone of any U.S. origin defense article or technical data, or to furnish a defense service for which a license or written approval is required by the ITAR; engaging in the business of either manufacturing or exporting defense articles or furnishing defense services without complying with the registration requirements of the ITAR; and, engaging in the business of brokering activities without complying with the registration requirements of the ITAR or obtaining a license or written approval as required by the ITAR.
In addition, we have clarified that the “business of manufacturing or exporting defense articles or furnishing defense services” includes participating in one action and does not require more than one action (§§ 122.1(a) and 127.1(a)). The potential harm to the security or foreign policy of the United States by even one unregulated action to facilitate the manufacture, export, or import of a defense article or defense service warrants the need to subject such actions to regulation under this subchapter.
Also, § 127.1(d) has been clarified by adding “knowingly.”
“Under Secretary for International Security Affairs” has been amended to the “Under Secretary for Arms Control and International Security” (§§ 127.7(d) and 127.8(b)). “Arms Control and International Security Affairs” has been amended to “Arms Control and International Security” (§§ 128.13(a), 128.13(c), 128.13(e)(2), and 128.13(f)).
In § 128.2, reference to the Department of Commerce appointing the Administrative Law Judge has been deleted. § 128.5(c) has been changed from sending the “answer” to the Office of Administrative Law Judge, United States Department of Commerce, to the designated Administrative Law Judge.
In § 129.2, the definition of brokering activities has been clarified to reflect that the “business of brokering activities” includes participating in one or more actions as described in the definition. The potential harm to the security or foreign policy of the United States by even one unregulated brokering action warrants the need to subject such action or actions to regulation under this subchapter.
In § 129.4, language has been added to make it clear that the registration requirements for brokers are not meant to exclude foreign persons from registering as brokers. Where foreign persons cannot provide the same information that a U.S. person would provide, they still are required to submit information that is substantially similar in content to that which would be provided by a U.S. person.
References to § 36(a)(8) of the Arms Export Control Act and 22 U.S.C. 2776(a)(8) have been updated to § 36(a)(7) and 22 U.S.C. 2776(a)(7) pertaining to submitting Part 130 reports to Congress as contained in § 130.17(a).
In § 120.27, the listed criminal statutes have been updated to reflect corresponding changes to § 38(g)(1)(A) of the Arms Export Control Act.
In addition, other minor changes have been made in various sections to clarify the authority of particular offices and officials or to clarify the underlying purpose of the specific section.
This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures required by 5 U.S.C. 553 and 554.
This rule does not require analysis under the Regulatory Flexibility Act.
This rule does not require analysis under the Unfunded Mandates Reform Act.
This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. It will not have substantial direct effects on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.
It is determined that this rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13132.
This amendment is exempt from review under Executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof.
This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Arms and munitions, Classified information, Exports.
Arms and munitions, Exports, U.S. Munitions List.
Arms and munitions, Exports, Reporting and recordkeeping requirements.
Arms and munitions, Exports.
Arms and munitions, Exports, Technical assistance.
Arms and munitions, Crime, Exports, Penalties, Seizures and forfeitures.
Administrative practice and procedures, Arms and munitions, Exports.
Arms and munitions, Campaign funds, Confidential business information, Exports, Reporting and recordkeeping requirements.
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; E.O. 11958, 42 FR 4311; E.O. 13284, 68 FR 4075; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.
(b) * * *
(1) * * *
(2) In the Bureau of Political-Military Affairs, there is a Deputy Assistant Secretary for Defense Trade Controls (DAS—Defense Trade Controls) and a Managing Director of Defense Trade Controls (MD—Defense Trade Controls). The DAS—Defense Trade Controls and the MD—Defense Trade Controls are responsible for exercising the authorities conferred under this subchapter. The DAS—Defense Trade Controls is responsible for oversight of the defense trade controls function. The MD—Defense Trade Controls is responsible for the Directorate of Defense Trade Controls, which oversees the subordinate offices described in paragraphs (b)(2)(i) through (b)(2)(iv) of this section.
(i) The Office of Defense Trade Controls Management and the Director, Office of Defense Trade Controls Management, which have responsibilities related to management of defense trade controls operations, to include the exercise of general authorities in this part 120, and the design, development, and refinement of processes, activities, and functional tools for the export licensing regime and to effect export compliance/enforcement activities;
(ii) The Office of Defense Trade Controls Licensing and the Director, Office of Defense Trade Controls Licensing, which have responsibilities related to licensing or other authorization of defense trade, including references under parts 120, 123, 124, 125, 126, 129 and 130 of this subchapter;
(iii) The Office of Defense Trade Controls Compliance and the Director, Office of Defense Trade Controls Compliance, which have responsibilities related to violations of law or regulation and compliance therewith, including references contained in parts 122, 126, 127, 128 and 130 of this subchapter, and that portion under part 129 of this subchapter pertaining to registration;
(iv) The Office of Defense Trade Controls Policy and the Director, Office of Defense Trade Controls Policy, which have responsibilities related to the general policies of defense trade, including references under this part 120 and part 126 of this subchapter, and the commodity jurisdiction procedure under this subchapter, including under this part 120.
(c)
(a) The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List. It may also be used for consideration of a redesignation of an article or service currently covered by the U.S. Munitions List. The Department must provide notice to Congress at least 30 days before any item is removed from the U.S. Munitions List. Upon written request, the Directorate of Defense Trade Controls shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List. The determination, consistent with §§ 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce and other U.S. Government agencies and industry in appropriate cases.
(b) Registration with the Directorate of Defense Trade Controls as defined in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction request. If it is determined that the commodity is a defense article or defense service covered by the U.S. Munitions List, registration is required for exporters, manufacturers, and furnishers of such defense articles and defense services (see part 122 of this subchapter), as well as for brokers who are engaged in brokering activities related to such articles or services.
(d) * * *
(3) * * *
(ii) The nature of controls imposed by other nations on such items (including Wassenaar Arrangement and other multilateral controls), and
(iii) That items described on the Wassenaar Arrangement List of Dual-Use Goods and Technologies shall not be designated defense articles or defense services unless the failure to control such items on the U.S. Munitions List would jeopardize significant national security or foreign policy interests.
(e) The Directorate of Defense Trade Controls will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction. If after 45 days the Directorate of Defense Trade Controls has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing.
(g) A person may appeal a commodity jurisdiction determination by
If an article or service is covered by the U.S. Munitions List, its export is regulated by the Department of State, except as indicated otherwise in this subchapter. For the relationship of this subchapter to regulations of the Department of Energy and the Nuclear Regulatory Commission, see § 123.20 of this subchapter. The Attorney General controls permanent imports of articles and services covered by the U.S. Munitions Import List from foreign countries by persons subject to U.S. jurisdiction (27 CFR part 447). In carrying out such functions, the Attorney General shall be guided by the views of the Secretary of State on matters affecting world peace, and the external security and foreign policy of the United States. The Department of Commerce regulates the export of items on the Commerce Control List (CCL) under the Export Administration Regulations (15 CFR parts 730 through 799).
(a) * * *
(1) Information, other than software as defined in § 120.10(a)(4), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions or documentation.
Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State, Washington, DC 20522-0112.
(a) * * *
(3) Sections 793, 794, or 798 of title 18, United States Code (relating to espionage involving defense or classified information) or § 2339A of such title (relating to providing material support to terrorists);
(13) Sections 3, 4, 5, and 6 of the Prevention of Terrorist Access to Destructive Weapons Act of 2004, relating to missile systems designed to destroy aircraft (18 U.S.C. 2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), radiological dispersal services (18 U.S.C. 2332h), and variola virus (18 U.S.C. 175b);
(a) Department of State, Bureau of Political-Military Affairs, Directorate of Defense Trade Controls, Washington, DC 20522-0112.
(b) * * *
(3) Department of Defense, Defense Security Cooperation Agency: Letter of Offer and Acceptance (DD Form 1513).
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920.
(a) The following articles, services and related technical data are designated as defense articles and defense services pursuant to §§ 38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)). Changes in designations will be published in the
(b) Significant Military Equipment: An asterisk precedes certain defense articles in the following list. The asterisk means that the article is deemed to be “Significant Military Equipment” to the extent specified in § 120.7 of this subchapter. The asterisk is placed as a convenience to help identify such articles. Note that technical data directly related to the manufacture or production of any defense articles enumerated in any category that are designated as Significant Military Equipment (SME) shall itself be designed SME.
(c) * * *
(i) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (h) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
(a) * * *
(1) ADNBF (aminodinitrobenzofuroxan or 7-Amino 4,6-dinitrobenzofurazane-1-oxide) (CAS 97096-78-1);
(2) BNCP (cis-bis (5-nitrotetrazolato) tetra amine-cobalt (III) perchlorate) (CAS 117412-28-9);
(5) CP (2-(5-cyanotetrazolato) penta aminecobalt (III) perchlorate); (CAS 70247-32-4);
(9) DIPAM (3,3'-Diamino-2,2',4,4',6,6'-hexanitrobiphenyl or dipicramide) (CAS 17215-44-0);
(15) * * *
(i) BNNII (Octohydro-2,5-bis(nitroimino) imidazo [4,5-d]Imidazole);
(20) * * *
(i) RDX (cyclotrimethylenetrinitramine), cyclonite, T4, hexahydro-1,3,5-trinitro-1,3,5-triazine, 1,3,5-trinitro-1,3,5-triaza-cyclohexane, hexogen, or hexogene) (CAS 121-82-4);
(24) * * *
(ii) NTNT (1-N-(2-nitrotriazolo)-4-nitrotetrazole);
(29) TNP (1,4,5,8-tetranitro-pyridazino [4,5-d] pyridazine) (CAS 229176-04-9);
(31) * * *
(i) 5-azido-2-nitrotriazole;
(ii) ADHTDN (4-amino-3,5-dihydrazino-1,2,4-triazole dinitramide)(CAS 1614-08-0);
(iv) BDNTA ([Bis-dinitrotriazole]amine);
(vii) NTDNA (2-nitrotriazole 5-dinitramide) (CAS 75393-84-9);
(34) Diaminotrinitrobenzene (DATB) (CAS 1630-08-6);
(c) * * *
(8) Titanium subhydride (TiHn) of stoichiometry equivalent to n = 0.65-1.68;
(9) Military materials containing thickeners for hydrocarbon fuels specially formulated for use in flame throwers or incendiary munitions; metal stearates or palmates (also known as octol); and M1, M2 and M3 thickeners;
(e) * * *
(2) BAMO (bisazidomethyloxetane and its polymers) (CAS 17607-20-4) (see paragraph (g)(1)of this category);
(9) Poly-NIMMO (poly nitratomethylmethyoxetane, poly-NMMO, (poly[3-nitratomethyl-3-methyl oxetane]) (CAS 84051-81-0);
(11) TVOPA 1,2,3-Tris [1,2-bis(difluoroamino) ethoxy]propane; tris vinoxy propane adduct; (CAS 53159-39-0);
(13) FPF-1 (poly-2,2,3,3,4,4-hexafluoro pentane-1,5-diolformal) (CAS 376-90-9);
(14) FPF-3 (poly-2,4,4,5,5,6,6-heptafluoro-2-trifluoromethyl-3-oxaheptane-1,7-diolformal);
(15) PGN (Polyglycidylnitrate or poly(nitratomethyl oxirane); poly-GLYN); (CAS 27814-48-8);
(f) * * *
(3) * * *
(iv) n-butyl-ferrocene (CAS 31904-29-7);
(14) Polyfunctional aziridine amides with isophthalic, trimesic (BITA or butylene imine trimesamide), isocyanuric, or trimethyladipic backbone structures and 2-methyl or 2-ethyl substitutions on the aziridine ring and its polymers;
(15) Superfine iron oxide (Fe
(17) TEPANOL (Tetraethylenepentaamineacrylo-nitrileglycidol) (CAS 110445-33-5); cyanoethylated polyamines adducted with glycidol and their salts;
(g) * * *
(2) Dinitroazetidine-t-butyl salt (CAS 125735-38-8) (see paragraph (a)(27) of this category);
(5) TAT (1, 3, 5, 7-tetraacetyl-1, 3, 5, 7-tetraaza-cyclooctane) (CAS 41378-98-7) (see paragraph (a)(12) of this category);
(6) Tetraazadecalin (CAS 5409-42-7) (see paragraph (a)(26) of this category);
(7) 1,3,5-trichorobenzene (CAS 108-70-3) (see paragraph (a)(22) of this category);
(8) 1,2,4-trihydroxybutane (1,2,4-butanetriol) (CAS 3068-00-6) (see paragraph (e)(3) of this category);
(h) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles numerated in paragraphs (a) through (g) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated SME.
(d) Technical data (as defined in § 120.10) and defense services (as defined in § 120.9) directly related to the defense articles enumerated in paragraphs (a) through (c) of this category. (See § 125.4 for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(f) Technical data (as defined in § 120.10) and defense services (as defined in § 120.9) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category. (See § 125.4 for exemptions.) Technical data directly related to manufacture and production of any defense articles enumerated elsewhere in this category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(m) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) related to the defense articles enumerated in paragraphs (a) through (l) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this Category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(d) * * *
(1) A total dose of 5 x 10
(2) A dose rate upset of 5 x 10
(3) A neutron dose of 1 x 10
(5) Single event latch-up free and having a dose rate latch-up of 5 x 10
(a) All articles, technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) relating thereto which are classified in the interests of national security and which are not otherwise enumerated in the U.S. Munitions List.
(d) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (c) of this category. (See § 125.4 of this subchapter for exemptions.) Technical data directly related to the manufacture or production of any defense articles enumerated elsewhere in this Category that are designated as Significant Military Equipment (SME) shall itself be designated as SME.
(a) Any article not specifically enumerated in the other categories of the U.S. Munitions List which has substantial military applicability and which has been specifically designed, developed, configured, adapted, or modified for military purposes. The decision on whether any article may be included in this category shall be made by the Director, Office of Defense Trade Controls Policy.
(b) Technical data (as defined in § 120.10 of this subchapter) and defense services (as defined in § 120.9 of this subchapter) directly related to the defense articles enumerated in paragraph (a) of this category.
Complete rocket systems (including ballistic missile systems, space launch vehicles, and sounding rockets (see § 121.1, Cat. IV(a) and (b))) and unmanned air vehicle systems (including cruise missile systems, see § 121.1, Cat. VIII (a), target drones and reconnaissance drones (see § 121.1, Cat. VIII (a))) capable of delivering at least a 500 kg payload to a range of at least 300 km.
Propellants and constituent chemicals for propellants as follows:
(a) Propulsive substances:
(1) Hydrazine with a concentration of more than 70 percent and its derivatives including monomethylhydrazine (MMH);
(2) Unsymmetric dimethylhydrazine (UDHM);
(3) Ammonium perchlorate;
(4) Sphercical aluminum powder with particle of uniform diameter of less than 500 x 10
(5) Metal fuels in particle sizes less than 500 x 10
(6) Nitroamines (cyclotetramethylenetetranitramene (HMX), cyclotrimethylenetrinitramine (RDX);
(7) Percholrates, chlorates or chromates mixed with powdered metals or other high energy fuel components;
(8) Carboranes, decaboranes, pentaboranes and derivatives thereof;
(9) Liquid oxidizers, as follows:
(i) Nitrogen dioxide/dinitrogen tetroxide;
(ii) Inhibited Red Fuming Nitric Acid (IRFNA);
(iii) Compounds composed of fluorine and one or more of other halogens, oxygen or nitrogen.
(b) Polymeric substances:
(1) Hydroxyterminated polybutadiene (HTPB);
(2) Glycidylazide polymer (GAP).
(c) Other high energy density propellants such a Boron Slurry having an energy density of 40 x 10 joules/kg or greater.
(d) Other propellants additives and agents:
(1) Bonding agents as follows:
(i) Tris (1(2methyl)aziridinyl phosphine oxide (MAPO);
(ii) Trimesol 1(2)ethyl)aziridine (HX868, BITA);
(iii) “Tepanol” (HX878), reaction product of tetraethylenepentamine, acrylonitrile and glycidol;
(iv) “Tepan” (HX879), reaction product of tet enepentamine and acrylonitrile;
(v) Polyfunctional aziridene amides with isophthalic, trimesic, isocyanuric, or trimethyladipic backbone also having a 2methyl or 2ethyl aziridine group (HX752, HX872 and HX877).
(2) Curing agents and catalysts as follows:
(i) Triphenyl bismuth (TPB);
(ii) Burning rate modifiers as follows:
(iii) Catocene;
(iv) Nbutylferrocene;
(v) Other ferrocene derivatives.
(3) Nitrate esters and nitrato plasticizers as follows:
(i) 1,2,4butanetriol trinitrate (BTTN).
(4) Stabilizers as follows:
(i) Nmethylpnitroaniline.
(b) Gyro-astro compasses and other devices which derive position or orientation by means of automatically tracking celestial bodies or satellites (see § 121.1, Category XV(d));
(d) * * *
(2) Range instrumentation radars including associated optical/infrared trackers and the specially designed software therefor with all of the following capabilities (see § 121.1, Category XI(a)(3)):
A detector is defined as a mechanical, electrical, optical or chemical device that automatically identifies and records, or registers a stimulus such as an environmental change in pressure or temperature, an electrical or electromagnetic signal or radiation from a radioactive material. The following pages were removed from the final ITAR for replacement by DDTC's updated version § 6(l) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(l)), as amended. In accordance with this provision, the list of MTCR Annex items shall constitute all items on the U.S. Munitions List in § 121.16.
Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311; 1977 Comp. p. 79; 22 U.S.C. 2651a.
(a) Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.
(a) * * *
(b)
(a) A registrant must, within five days of the event, notify the Directorate of Defense Trade Controls by registered mail if:
(2) There is a material change in the information contained in the Statement of Registration, including a change in the senior officers; the establishment, acquisition or divestment of a subsidiary or foreign affiliate; a merger; a change of location; or the dealing in an additional category of defense articles or defense services.
(b) A registrant must notify the Directorate of Defense Trade Controls by registered mail at least 60 days in advance of any intended sale or transfer to a foreign person of ownership or control of the registrant or any entity thereof. Such notice does not relieve the registrant from obtaining the approval required under this subchapter for the export of defense articles or defense services to a foreign person, including the approval required prior to disclosing technical data. Such notice provides the Directorate of Defense Trade Controls with the information necessary to determine whether the authority of § 38(g)(6) of the Arms Export Control Act regarding licenses or other approvals for certain sales or transfers of defense articles or data on the U.S. Munitions List should be invoked (see §§ 120.10 and 126.1(e) of this subchapter).
(c) The new entity formed when a registrant merges with another company or acquires, or is acquired by, another company or a subsidiary or division of another company shall advise the Directorate of Defense Trade Controls of the following:
(4) Amendments to agreements approved by the Directorate of Defense Trade Controls to change the name of a party to those agreements. The registrant must, within 60 days of this notification, provide to the Directorate of Defense Trade Controls a signed copy of an amendment to each agreement signed by the new U.S. entity, the former U.S. licensor and the foreign licensee. Any agreements not so amended will be considered invalid.
(d) Prior approval by the Directorate of Defense Trade Controls is required for any amendment making a substantive change.
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2753; E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-261, 112 Stat. 1920; Sec 1205(a), Pub. L. 107-228.
(a) Any person who intends to export or to import temporarily a defense article must obtain the approval of the Directorate of Defense Trade Controls prior to the export or temporary import, unless the export or temporary import qualifies for an exemption under the provisions of this subchapter. Applications for export or temporary import must be made as follows:
(c) As a condition to the issuance of a license or other approval, the Directorate of Defense Trade Controls may require all pertinent documentary information regarding the proposed transaction and proper completion of the application form as follows:
The Department of State regulates the temporary import of defense articles. Permanent imports of defense articles into the United States are regulated by the Department of the Justice's Bureau of Alcohol, Tobacco, Firearms and Explosives under the direction of the Attorney General (see 27 CFR parts 447, 478, 479, and 555).
(a) A license (DSP-61) issued by the Directorate of Defense Trade Controls is required for the temporary import and subsequent export of unclassified defense articles, unless exempted from this requirement pursuant to § 123.4. This requirement applies to:
Foreign trade zones in the United States and U.S. Customs and Border Protection bonded warehouses are considered integral parts of the United States for the purpose of this subchapter. An export license is therefore not required for shipment between the United States and a foreign trade zone or a U.S. Customs and Border Protection bonded warehouse. In the case of classified defense articles, the provisions of the Department of Defense National Industrial Security Program Operating Manual will apply. An export license is required for all shipments of articles on the U.S. Munitions List from foreign trade zones and U.S. Customs and Border Protection bonded warehouses to foreign countries, regardless of how the articles reached the zone or warehouse.
(a) Transferring registration or control to a foreign person of any aircraft, vessel, or satellite on the U.S. Munitions List is an export for purposes of this subchapter and requires a license or written approval from the Directorate of Defense Trade Controls. This requirement applies whether the aircraft, vessel, or satellite is physically located in the United States or abroad.
(b) The registration in a foreign country of any aircraft, vessel or satellite covered by the U.S. Munitions List which is not registered in the United States but which is located in the United States constitutes an export. A license or written approval from the Directorate of Defense Trade Controls is therefore required. Such transactions may also require the prior approval of the U.S. Department of Transportation's Maritime Administration, the Federal Aviation Administration or other agencies of the U.S. Government.
(a) The country designated as the country of ultimate destination on an application for an export license, or on a Shipper's Export Declaration where an exemption is claimed under this subchapter, must be the country of ultimate end-use. The written approval of the Directorate of Defense Trade Controls must be obtained before reselling, transferring, transshipping, or disposing of a defense article to any end user, end use or destination other than as stated on the export license, or on the Shipper's Export Declaration in cases where an exemption is claimed under this subchapter. Exporters must ascertain the specific end-user and end-use prior to submitting an application to the Directorate of Defense Trade Controls or claiming an exemption under this subchapter.
(d) The written approval of the Directorate of Defense Trade Controls must be obtained before reselling, transferring, transshipping on a non-continuous voyage, or disposing of a defense article in any country other than the country of ultimate destination, or anyone other than the authorized end-user, as stated on the Shipper's Export Declaration in cases where an exemption is claimed under this subchapter.
(e) Reexports or retransfers of U.S.-origin components incorporated into a foreign defense article to a government of a NATO country, or the governments of Australia or Japan, are authorized without the prior written approval of the Directorate of Defense Trade Controls, provided:
(3) The person reexporting the defense article must provide written notification to the Directorate of Defense Trade Controls of the retransfer not later than 30 days following the reexport. The notification must state the articles being reexported and the recipient government.
(4) In certain cases, the Managing Director, Directorate of Defense Trade Controls or the Director, Office of Defense Trade Controls Licensing, may place retransfer restrictions on a license prohibiting use of this exemption.
(a) A nontransfer and use certificate (Form DSP-83) is required for the export of significant military equipment and classified articles, including classified technical data. A license will not be issued until a completed Form DSP-83 has been received by the Directorate of Defense Trade Controls. This form is to be executed by the foreign consignee, foreign end-user, and the applicant. The certificate stipulates that, except as specifically authorized by prior written approval of the Department of State, the foreign consignee and foreign end-user will not reexport, resell or otherwise dispose of the significant military equipment enumerated in the application outside the country named as the location of the foreign end-use or to any other person.
(b) The Directorate of Defense Trade Controls may also require a DSP-83 for the export of any other defense articles, including technical data, or defense services.
(c) When a DSP-83 is required for an export of any defense article or defense service to a non-governmental foreign end-user, the Directorate of Defense Trade Controls may require as a condition of issuing the license that the appropriate authority of the government of the country of ultimate destination also execute the certificate.
(a) A license issued by the Directorate of Defense Trade Controls is required whenever a privately-owned aircraft or vessel on the U.S. Munitions List makes a voyage outside the United States.
(a) * * *
(b)
(a) * * *
(b) * * *
(2) * * *
(v) the exporter may not make more than 24 shipments per calendar year to the previously authorized end user;
(d) Port Directors of U.S. Customs and Border Protection shall permit a foreign person to export without a license such firearms in Category I(a) of § 121.1 of this subchapter and ammunition
(a) The Directorate of Defense Trade Controls may approve an amendment to a license for permanent export, temporary export and temporary import of unclassified defense articles. A suggested format is available from the Directorate of Defense Trade Controls.
(a) U.S. persons engaged in the business of exporting specifically designed or modified components, systems, parts, accessories, attachments, associated equipment and certain associated technical data for commercial communications satellites, and who are so registered with the Directorate of Defense Trade Controls pursuant to part 122 of this subchapter, may submit license applications for multiple permanent and temporary exports and temporary imports of such articles for expeditious consideration without meeting the documentary requirements of § 123.1(c)(4) and (5) concerning purchase orders, letters of intent, contracts and non-transfer and end use certificates, or the documentary requirements of § 123.9, concerning approval of re-exports or re-transfers, when all of the following requirements are met:
(2) The proposed exports concern exclusively one or more foreign persons (e.g., companies or governments) located within the territories of the countries identified in paragraph (a)(1) of this section, and one or more commercial communications satellite programs included within a list of such persons and programs approved by the U.S. Government for purposes of this section, as signified in a list of such persons and programs that will be publicly available through the Internet Web site of the Directorate of Defense Trade Controls and by other means.
(5) The U.S. exporter provides complete shipment information to the Directorate of Defense Trade Controls within 15 days of shipment by submitting a report containing a description of the item and the quantity, value, port of exit, and end-user and country of destination of the item, and at that time meets the documentary requirements of § 123.1(c)(4) and (5), the documentary requirements of § 123.9 in the case of re-exports or re-transfers, and, other documentary requirements that may be imposed as a condition of a license (e.g., parts control plans for MTCR-controlled items). The shipment information reported must include a description of the item and quantity, value, port of exit and end user and country of destination of the item.
(6) At any time in which an item exported pursuant to this section is proposed for re-transfer outside of the approved territory, programs or persons (e.g., such as in the case of an item included in a satellite for launch beyond the approved territory), the detailed requirements of § 123.9 apply with regard to obtaining the prior written consent of the Directorate of Defense Trade Controls.
(b) The re-export or re-transfer of the articles authorized for export (including to specified re-export destinations) in accordance with this section do not require the separate prior written approval of the Directorate of Defense Trade Controls provided all of the requirements in paragraph (a) of this section are met.
(c) The Directorate of Defense Trade Controls will consider, on a case-by-case basis, requests to include additional foreign companies and satellite programs within the geographic coverage of a license application submitted pursuant to this section from countries not otherwise covered, who are members of the European Space Agency or the European Union. In no case, however, can the provisions of this section apply or be relied upon by U.S. exporters in the case of countries who are subject to the mandatory requirements of Section 1514 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261), concerning national security controls on satellite export licensing.
Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2651a; 22 U.S.C. 2776; Pub. L. 105-261.
(a)
(b)
(c)
(d)
(c) * * *
(5) * * *
(ix) Nuclear radiation measuring devices manufactured to military specifications listed in Category XVI(c);
(b) * * *
(2) The U.S. party complies with the requirements of the Department of Defense National Industrial Security Program Operating Manual concerning the transmission of classified information (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed) and any other requirements of cognizant U.S. departments or agencies.
(a) The United States party to a manufacturing license or a technical assistance agreement must file one copy of the concluded agreement with the Directorate of Defense Trade Controls not later than 30 days after it enters into force. If the agreement is not concluded within one year of the date of approval, the Directorate of Defense Trade Controls must be notified in writing and be kept informed of the status of the agreement until the requirements of this paragraph or the requirements of § 124.5 are satisfied.
(b) In the case of concluded agreements involving coproduction or licensed production outside of the United States of defense articles of United States origin, a written statement must accompany filing of the concluded agreement with the Directorate of Defense Trade Controls, which shall include:
The United States party to any proposed manufacturing license agreement or technical assistance agreement must inform the Directorate of Defense Trade Controls if a decision is made not to conclude the agreement. The information must be provided within 60 days of the date of the decision. These requirements apply only if the approval of the Directorate of Defense Trade Controls was obtained for the agreement to be concluded (with or without any provisos).
The U.S. party to a manufacturing license or a technical assistance agreement must inform the Directorate of Defense Trade Controls in writing of the impending termination of the agreement not less than 30 days prior to the expiration date of such agreement.
(a) Types of agreements requiring assurances. With respect to any manufacturing license agreement or technical assistance agreement which relates to significant military equipment or classified defense articles, including classified technical data, a Nontransfer and Use Certificate (Form DSP-83) (see § 123.10 of this subchapter) signed by the applicant and the foreign party must be submitted to the Directorate of Defense Trade Controls. With respect to all agreements involving classified articles, including classified technical data, an authorized representative of the foreign government must sign the DSP-83 (or provide the same assurances in the form of a diplomatic note), unless the Directorate of Defense Trade Controls has granted an exception to this requirement. The Directorate of Defense Trade Controls may require that a DSP-83 be provided in conjunction with an agreement that does not relate to significant military equipment or classified defense articles. The Directorate of Defense Trade Controls may also require with respect to any agreement that an appropriate authority of the foreign party's government also sign the DSP-83 (or provide the same assurances in the form of a diplomatic note).
(b) * * *
(1) Agreements which have been signed by all parties before being submitted to the Directorate of Defense Trade Controls may only be submitted along with any required DSP-83 and/or diplomatic note.
(2) * * *
In no case may a transfer occur before a required DSP-83 and/or diplomatic note has been submitted to the Directorate of Defense Trade Controls.
(a) An application for the approval of a manufacturing license or technical assistance agreement with a foreign person must be accompanied by an explanatory letter. The original letter and seven copies of the letter and eight copies of the proposed agreement shall be submitted to the Directorate of Defense Trade Controls. The explanatory letter shall contain:
(1) A statement giving the applicant's Directorate of Defense Trade Controls registration number.
Notwithstanding the other provisions in part 124 of this subchapter, the Directorate of Defense Trade Controls may authorize by means of a license (DSP-5) the export of unclassified technical data to foreign persons for offshore procurement of defense articles, provided that:
(d) The person in the United States provides the Directorate of Defense
(e) Licenses issued pursuant to this section must be renewed prior to their expiration if offshore procurement is to be extended beyond the period of validity of the original approved license. In all instances a license for offshore procurement must state as the purpose “Offshore procurement in accordance with the conditions established in the ITAR, including § 124.13. No other use will be made of the technical data.” If the technical data involved in an offshore procurement arrangement is otherwise exempt from the licensing requirements of this subchapter (
(a)
(b)
(4) Specific identification of the country or countries that comprise the distribution territory. Distribution must be specifically limited to the governments of such countries or to private entities seeking to procure defense articles pursuant to a contract with a government within the distribution territory or to other eligible entities as specified by the Directorate of Defense Trade Controls. Consequently, any deviation from this condition must be fully explained and justified. A nontransfer and use certificate (DSP-83) will be required to the same extent required in licensing agreements under § 124.9(b).
(c) * * *
(5) “No export, sale, transfer, or other disposition of the defense articles covered by this agreement is authorized to any country outside the distribution territory without the prior written approval of the Directorate of Defense Trade Controls of the U.S. Department of State.”
(e)
(1) A statement giving the applicant's Directorate of Defense Trade Controls registration number.
Secs. 2 and 38, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a.
(b) A license for the export of technical data and the exemptions in § 125.4 may not be used for foreign production purposes or for technical assistance unless the approval of the Directorate of Defense Trade Controls has been obtained. Such approval is generally provided only pursuant to the procedures specified in part 124 of this subchapter.
(c) Technical data authorized for export may not be reexported, transferred or diverted from the country of ultimate end-use or from the authorized foreign end-user (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Directorate of Defense Trade Controls.
(d) The controls of this part apply to the exports referred to in paragraph (a) of this section regardless of whether the person who intends to export the technical data produces or manufactures defense articles if the technical data is determined by the Directorate of Defense Trade Controls to be subject to the controls of this subchapter.
(a)
(b)
(a) A request for authority to export defense articles, including technical
(b) Classified technical data which is approved by the Directorate of Defense Trade Controls either for export or reexport after a temporary import will be transferred or disclosed only in accordance with the requirements in the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). Any other requirements imposed by cognizant U.S. departments and agencies must also be satisfied.
(c) The approval of the Directorate of Defense Trade Controls must be obtained for the export of technical data by a U.S. person to a foreign person in the U.S. or in a foreign country unless the proposed export is exempt under the provisions of this subchapter.
(a) The following exemptions apply to exports of technical data for which approval is not needed from the Directorate of Defense Trade Controls. These exemptions, except for paragraph (b)(13) of this section, do not apply to exports to proscribed destinations under § 126.1 of this subchapter or for persons considered generally ineligible under § 120.1(c) of this subchapter. The exemptions are also not applicable for purposes of establishing offshore procurement arrangements or producing defense articles offshore (see § 124.13), except as authorized under § 125.4 (c). If § 126.8 of this subchapter requirements are applicable, they must be met before an exemption under this section may be used. Transmission of classified information must comply with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed) and the exporter must certify to the transmittal authority that the technical data does not exceed the technical limitation of the authorized export.
(b) * * *
(9) * * *
(iii) The classified information is sent overseas in accordance with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).
(10) * * *
(iii) The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls;
(11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense, Department of Energy or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Directorate of Defense Trade Controls. Such an exemption will normally be granted only if the arrangement directly implements an international agreement to which the United States is a party and if multiple exports are contemplated. The Directorate of Defense Trade Controls, in consultation with the relevant U.S. Government agencies, will determine whether the interests of the United States Government are best served by expediting exports under an arrangement through an exemption (see also paragraph (b)(3) of this section for a related exemption);
(13) Technical data approved for public release (i.e., unlimited distribution) by the cognizant U.S. Government department or agency or Office of Freedom of Information and Security Review. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form. It does not require that the information be published in order to qualify for the exemption.
(a) A license is not required for the oral and visual disclosure of unclassified technical data during the course of a classified plant visit by a foreign person, provided: The classified visit has itself been authorized pursuant to a license issued by the Directorate of Defense Trade Controls; or the classified visit was approved in connection with an actual or potential government-to-government program or project by a U.S. Government agency having classification jurisdiction over the classified defense article or classified technical data involved under Executive Order 12356 or other applicable Executive Order; and the unclassified information to be released is directly related to the classified defense article or technical data for which approval was obtained and does not disclose the details of the design, development, production or manufacture of any other defense articles. In the case of visits involving classified information, the requirements of the Department of Defense National Industrial Security Program Operating Manual must be met (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).
(b) The approval of the Directorate of Defense Trade Controls is not required for the disclosure of oral and visual classified information to a foreign person during the course of a plant visit approved by the appropriate U.S. Government agency if: The requirements of the Department of Defense National Industrial Security Program Operating Manual have been met (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed); the classified information is directly related to that which was approved by the U.S. Government agency; it does not exceed that for which approval was obtained; and it does not disclose the details of the design, development, production or manufacture of any defense articles.
(c) A license is not required for the disclosure to a foreign person of unclassified technical data during the course of a plant visit (either classified or unclassified) approved by the Directorate of Defense Trade Controls or a cognizant U.S. Government agency provided the technical data does not contain information in excess of that approved for disclosure. This exemption
(a) All applications for the export or temporary import of classified technical data or other classified defense articles must be submitted to the Directorate of Defense Trade Controls on Form DSP-85.
(b) An application for the export of classified technical data or other classified defense articles must be accompanied by seven copies of the data and a completed Form DSP-83 (see § 123.10 of this subchapter). Only one copy of the data or descriptive literature must be provided if a renewal of the license is requested. All classified materials accompanying an application must be transmitted to the Directorate of Defense Trade Controls in accordance with the procedures contained in the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).
Licenses and other authorizations for the export of classified technical data or classified defense articles will be forwarded by the Directorate of Defense Trade Controls to the Defense Security Service of the Department of Defense in accordance with the provisions of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). The Directorate of Defense Trade Controls will forward a copy of the license to the applicant for the applicant's information. The Defense Security Service will return the endorsed license to the Directorate of Defense Trade Controls upon completion of the authorized export or expiration of the license, whichever occurs first.
Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205, 3 CFR, 1994 Comp., p. 899; Sec.1225, Pub. L. 108-375.
(e)
The Deputy Assistant Secretary for Defense Trade Controls or the Managing Director, Directorate of Defense Trade Controls, may order the temporary suspension or modification of any or all of the regulations of this subchapter in the interest of the security and foreign policy of the United States.
(c) * * *
(4) * * *
(v) Include a clause requiring that all documentation created from U.S. technical data contain the statement, “This document contains technical data, the use of which is restricted by the U.S. Arms Export Control Act. This data has been provided in accordance with, and is subject to, the limitations specified in § 126.5 of the International Traffic In Arms Regulations (ITAR). By accepting this data, the consignee agrees to honor the requirements of the ITAR”; and
(b)
(a)
(6) An applicant, any party to the export or agreement, any source or manufacturer of the defense article or defense service or any person who has a significant interest in the transaction has been debarred, suspended, or otherwise is ineligible to receive an export license or other authorization from any agency of the U.S. government (e.g., pursuant to debarment by the Department of Commerce under 15 CFR part 760 or by the Department of State under part 127 or 128 of this subchapter); or
(b)
(c)
(a)
(1) Sale of significant military equipment: The prior approval of the Directorate of Defense Trade Controls is required before a U.S. person may make a proposal or presentation designed to constitute a basis for a decision on the part of any foreign person to purchase significant military equipment on the U.S. Munitions List whenever all the following conditions are met:
(2) Sale of significant military equipment: The Directorate of Defense Trade Controls must be notified in writing at least thirty days in advance of any proposal or presentation concerning the sale of significant military equipment whenever the conditions specified in paragraphs (a)(1)(i) through (iii) of this section are met and the identical equipment has been previously licensed for permanent export or approved for sale under the FMS Program to any foreign country.
(3) Manufacture abroad of significant military equipment: The prior approval of the Directorate of Defense Trade Controls is required before a U.S. person may make a proposal or presentation designed to constitute a basis for a decision on the part of any foreign person to enter into any manufacturing license agreement or technical assistance agreement for the production or assembly of significant military equipment, regardless of dollar value, in any foreign country, whenever:
(c) * * *
(1) * * *
(i) A written statement from the Directorate of Defense Trade Controls approving the proposed sale or agreement or approving the making of a proposal or presentation.
(2) The requirement of this section for prior notification is met by informing the Directorate of Defense Trade Controls by letter at least 30 days before making the proposal or presentation. The letter must comply with the procedures set forth in paragraph (d) of this section and must identify the relevant license, approval, or FMS case by which the identical equipment had previously been authorized for permanent export or sale. The Directorate of Defense Trade Controls will provide written acknowledgement of such prior notification to confirm compliance with this requirement and the commencement of the 30-day notification period.
(d)
(a)
(b)
(a)
(d) * * *
(2) Furnishing information to foreign governments and other agencies of the U.S. Government in the context of multilateral or bilateral export regimes (e.g., the Missile Technology Control Regime, the Australia Group, and Wassenaar Arrangement).
The provisions in this subchapter are in addition to, and are not in lieu of, any other provisions of law or regulations. The sale of firearms in the United States, for example, remains subject to the provisions of the Gun Control Act of 1968 and regulations administered by the Department of Justice. The performance of defense services on behalf of foreign governments by retired military personnel continues to require consent pursuant to Part 3a of this title. Persons who intend to export defense articles or furnish defense services should not assume that satisfying the requirements of this subchapter relieves one of other requirements of law.
(c) In cases when foreign nationals are employed at or assigned to security-cleared facilities, provision by the applicant of a Technology Control Plan (available from the Defense Security Service) will facilitate processing.
(a)
(1)
(2)
(3)(i)
(iv) Any requirement for non-transfer and use assurances from a foreign government may be deemed satisfied by the signature by such government of a cooperative agreement or by its ministry of defense of a cooperative MOU/MOA where the agreement or MOU contains assurances that are comparable to that required by a DSP-83 with respect to foreign governments and that clarifies that the government is undertaking responsibility for all its participating companies. The authorized non-government participants or end users (
(4)
(b)
Secs. 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2791); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp., p. 79; 22 U.S.C. 401; 22 U.S.C. 2651a; 22 U.S.C. 2779a; 22 U.S.C. 2780.
(a) * * *
(1) To export or attempt to export from the United States, or to reexport or retransfer or attempt to reexport or retransfer from one foreign destination to another foreign destination by a U.S. person of any defense article or technical data or by anyone of any U.S. origin defense article or technical data or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written
(2) To import or attempt to import any defense article whenever a license is required by this subchapter without first obtaining the required license or written approval from the Directorate of Defense Trade Controls;
(3) To conspire to export, import, reexport or cause to be exported, imported or reexported, any defense article or to furnish any defense service for which a license or written approval is required by this subchapter without first obtaining the required license or written approval from the Directorate of Defense Trade Controls;
(5) To engage in the United States in the business of either manufacturing or exporting defense article or furnishing defense services without complying with the registration requirements. For the purposes of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service; or
(6) To engage in the business of brokering activities for which registration, a license or written approval is required by this subchapter without first registering or obtaining the required license or written approval from the Directorate of Defense Trade Controls. For the purposes of this subchapter, engaging in the business of brokering activities requires only one occasion of engaging in an activity as reflected in § 129.2(b).
(c) A person with knowledge that another person is then ineligible pursuant to §§ 120.1(c) or 126.7 of this subchapter or subject to an order of debarment or interim suspension, may not, directly or indirectly, in any manner or capacity, without prior disclosure of the facts to, and written authorization from, the Directorate of Defense Trade Controls:
(d) No person may knowingly or willfully cause, or aid, abet, counsel, demand, induce, procure or permit the commission of any act prohibited by, or the omission of any act prohibited by, or the omission of any act required by 22 U.S.C. 2778, 22 U.S.C. 2779, or any regulation, license, approval, or order issued thereunder.
(b) In a registration, license application or report required by § 38 or § 39 of the Arms Export Control Act (22 U.S.C. 2778 and 2779) or by any rule or regulation issued under either section, makes any untrue statement of a material fact or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be subject to a fine or imprisonment, or both, as prescribed by 22 U.S.C. 2778(c).
In the case of exports involving classified technical data or defense articles, the Defense Security Service may take appropriate action to ensure compliance with the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). Upon a request to the Defense Security Service regarding the export of any classified defense article or technical data, the Defense Security Service official or a designated government transmittal authority may require the production of other relevant documents and information relating to the proposed export.
(a)
(b) * * *
(2) The basis for administrative debarment, described in part 128 of this subchapter, is any violation of 22 U.S.C. 2778 or any rule or regulation issued thereunder when such a violation is of such a character as to provide a reasonable basis for the Directorate of Defense Trade Controls to believe that the violator cannot be relied upon to comply with the statute or these rules or regulations in the future, and when such violation is established in accordance with part 128 of this subchapter.
(d)
(a) The Managing Director of the Directorate of Defense Trade Controls or the Director of the Office of Defense Trade Controls Compliance is authorized to order the interim suspension of any person when the Managing Director or Director of Compliance believes that grounds for debarment (as defined in § 127.7 of this part) exist and where and to the extent the Managing Director or Director of Compliance, as applicable, finds that interim suspension is reasonably necessary to protect world peace or the security or foreign policy of the United States. The interim suspension orders prohibit that person from participating directly or indirectly in the export of any defense article or defense service for which a license or approval is required by this subchapter. The suspended person shall be notified in writing as provided in § 127.7(c) of this part (statutory debarment) or § 128.3 of this subchapter (administrative debarment), whichever is appropriate. In both cases, a copy of the interim suspension order will be served upon that person in the same manner as provided in § 128.3 of this subchapter. The interim suspension order may be made immediately effective, without prior notice. The order will state the relevant facts, the grounds for issuance of the order, and describe the nature and duration of the interim suspension. No person may be suspended for a period exceeding 60 days, absent extraordinary circumstances, (e.g., unless proceedings
(b) A motion or petition to vacate or modify an interim suspension order may be filed at any time with the Under Secretary of State for Arms Control and International Security. After a final decision is reached, the Managing Director of the Directorate of Defense Trade Controls will issue an appropriate order disposing of the motion or petition and will promptly inform the respondent accordingly.
For the purpose of preventing evasion, orders of the Assistant Secretary of State for Political-Military Affairs debarring a person under § 127.7, and orders of the Managing Director, Directorate of Defense Trade Controls or Director of the Office of Defense Trade Controls Compliance suspending a person under § 127.8, may be made applicable to any other person who may then or thereafter (during the term of the order) be related to the debarred person by affiliation, ownership, control, position of responsibility, or other commercial connection. Appropriate notice and opportunity to respond to the basis for the suspension will be given.
(a) The Assistant Secretary of State for Political-Military Affairs is authorized to impose a civil penalty in an amount not to exceed that authorized by 22 U.S.C. 2778, 2779a and 2780 for each violation of 22 U.S.C. 2778, 2779a and 2780, or any regulation, order, license or approval issued thereunder. This civil penalty may be either in addition to, or in lieu of, any other liability or penalty which may be imposed.
(b) The Directorate of Defense Trade Controls may make:
(a)
(b)
(c)
(a)
(b)
(2) The provisions of this section apply only when information is received by the Directorate of Defense Trade Controls for review prior to such time that either the Department of State or any other agency, bureau or department of the United States Government obtains knowledge of either the same or substantially similar information from another source and commenced an investigation or inquiry that involves that information, and that is intended to determine whether the Arms Export Control Act or these regulations, or any other license, order or other authorization issued under the Arms Export Control Act has been violated.
(3) It is possible that the activity in question—despite voluntary disclosure—might merit penalties, administrative actions, sanctions, or referrals to the Department of Justice for consideration as to whether criminal prosecution is warranted. In the latter case, the Directorate of Defense Trade Controls will notify the Department of Justice of the voluntary nature of the disclosure, although the Department of Justice is not required to give that fact any weight. The Directorate of Defense Trade Controls has the sole discretion to consider whether “voluntary disclosure,” in context with other relevant information in a particular case, should be a mitigating factor in determining what, if any, administrative action will be imposed. Some of the mitigating factors the Directorate of
(4) The provisions of this section do not, nor should they be relied on to, create, confer, or grant any rights, benefits, privileges, or protection enforceable at law or in equity by any person, business, or entity in any civil, criminal, administrative, or other matter.
(c)
(d) * * *
(1) * * *
(iii) Any other relevant documents must be retained by the person making the disclosure until the Directorate of Defense Trade Controls requests them or until a final decision on the disclosed information has been made.
Secs. 2, 38, 40, 42, and 71, Arms Export Control Act. 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); E.O. 11958, 42 FR 4311; 22 U.S.C. 2651a; E.O. 12291, 46 FR 1981.
The Administrative Law Judge referred to in this part is an Administrative Law Judge appointed by the Department of State. The Administrative Law Judge is authorized to exercise the powers and perform the duties provided for in §§ 127.7, 127.8, and 128.3 through 128.16 of this subchapter.
(a)
(c)
(a)
(b)
(d)
(a) * * *
(1) * * *
(ii) The necessity or desirability of amendments to pleadings;
Where the evidence is not sufficient to support the charges, the Managing Director, Directorate of Defense Trade Controls or the Administrative Law Judge will dismiss the charges. Where the Administrative Law Judge finds that a violation has been committed, the Administrative Law Judge's recommendation shall be advisory only. The Assistant Secretary of State for Political-Military Affairs will review the record, consider the report of the Administrative Law Judge, and make an appropriate disposition of the case. The Managing Director may issue an order debarring the respondent from participating in the export of defense articles or technical data or the furnishing of defense services as provided in § 127.7 of this subchapter, impose a civil penalty as provided in § 127.10 of this subchapter, or take such action as the Administrative Law Judge may recommend. Any debarment order will be effective for the period of time specified therein and may contain such additional terms and conditions as are deemed appropriate. A copy of the order together with a copy of the Administrative Law Judge's report will be served upon the respondent.
(a) The Directorate of Defense Trade Controls and the respondent may, by agreement, submit to the Administrative Law Judge a proposal for the issuance of a consent order. The Administrative Law Judge will review the facts of the case and the proposal and may conduct conferences with the parties and may require the presentation of evidence in the case. If the Administrative Law Judge does not approve the proposal, the Administrative Law Judge will notify the parties and the case will proceed as though no consent proposal had been made. If the proposal is approved, the Administrative Law Judge will report the facts of the case along with recommendations to the Assistant Secretary of State for Political-Military Affairs. If the Assistant Secretary of State for Political-Military Affairs does not approve the proposal, the case will proceed as though no consent proposal had been made. If the Assistant Secretary of State for Political-Military Affairs approves the proposal, an appropriate order may be issued.
(a)
(c)
(e)
(2)
(f)
(a)
(b) * * *
(3)
Sec. 38, Pub. L. 104-164, 110 Stat. 1437, (22 U.S.C. 2778).
(b)
(a) Any U.S. person, wherever located, and any foreign person located in the United States or otherwise subject to the jurisdiction of the United States (notwithstanding § 120.1(c)), who engages in the business of brokering activities (as defined in this part) with respect to the manufacture, export, import, or transfer of any defense article or defense service subject to the controls of this subchapter (see part 121) or any “foreign defense article or defense service” (as defined in § 129.2) is required to register with the Directorate of Defense Trade Controls.
(a)
(b) A person required to register under this part who is already registered as a manufacturer or exporter in accordance with part 122 of this subchapter must also provide notification of this additional activity by submitting to the Directorate of Defense Trade Controls by registered mail a transmittal letter meeting the requirements of § 122.2(b) and citing the existing registration, and must pay an additional fee according to the schedule prescribed in § 122.3(a). Any person who registers coincidentally as a broker as defined in § 129.2 of this subchapter and as a manufacturer or exporter must submit a Statement of Registration that reflects the brokering activities, the § 122.2(b) transmittal letter, as well as the additional fee for registration as a broker.
(b) No brokering activities or brokering proposals involving any country referred to in § 126.1 of this subchapter may be carried out by any person without first obtaining the written approval of the Directorate of Defense Trade Controls.
(c) No brokering activities or proposal to engage in brokering activities may be carried out or pursued by any person without the prior written approval of the Directorate of Defense Trade Controls in the case of other countries or persons identified from time to time by the Department of State through notice in the
(e) In cases involving countries or persons subject to paragraph (b), (c), or (d), above, it is the policy of the Department of State to deny requests for approval, and exceptions may be granted only rarely, if ever. Any person who knows or has reason to know of brokering activities involving such countries or persons must immediately inform the Directorate of Defense Trade Controls.
(a) No person may engage in the business of brokering activities without the prior written approval (license) of, or prior notification to, the Directorate of Defense Trade Controls, except as follows:
(a) The following brokering activities require the prior written approval of the Directorate of Defense Trade Controls:
(b) * * *
(2) A written statement from the Directorate of Defense Trade Controls approving the proposed activity or the making of a proposal or presentation.
(c) Requests for approval of brokering activities shall be submitted in writing to the Directorate of Defense Trade Controls by an empowered official of the registered broker; the letter shall also meet the requirements of § 126.13 of this subchapter.
(a) Prior notification to the Directorate of Defense Trade Controls is required for brokering activities with respect to significant military equipment valued at less than $1,000,000, except for sharing of basic marketing information (e.g., information that does not include performance characteristics, price and probable availability for delivery) by
(b) The requirement of this section for prior notification is met by informing the Directorate of Defense Trade Controls by letter at least 30 days before making a brokering proposal or presentation. The Directorate of Defense Trade Controls will provide written acknowledgment of such prior notification to confirm compliance with this requirement and the commencement of the 30-day notification period.
Any person required to register under this part shall provide annually a report to the Directorate of Defense Trade Controls enumerating and describing its brokering activities by quantity, type, U.S. dollar value, and purchaser(s) and recipient(s), license(s) numbers for approved activities and any exemptions utilized for other covered activities.
Any person desiring guidance on issues related to this part, such as whether an activity is a brokering activity within the scope of this Part, or whether a prior approval or notification requirement applies, may seek guidance in writing from the Directorate of Defense Trade Controls. The procedures and conditions stated in § 126.9 apply equally to requests under this section.
Sec. 39, Arms Export Control Act, 90 Stat. 767 (22 U.S.C. 2779); E.O. 11958, 42 FR 4311, 3 CFR, 1977 Comp. p. 79; 22 U.S.C. 2651a.
(b) * * *
(1) A political contribution or a payment excluded by § 130.6 from the definition of political contribution;
(a) * * *
(1) A sale requiring a license or approval from the Directorate of Defense Trade Controls under this subchapter; or
(a)(1) Each applicant must inform the Directorate of Defense Trade Controls as to whether the applicant or its vendors have paid, or offered or agreed to pay, in respect of any sale for which a license or approval is requested:
(ii) Fees or commissions in an aggregate amount of $100,000 or more. If so, applicant must furnish to the Directorate of Defense Trade Controls the information specified in § 130.10. The furnishing of such information or an explanation satisfactory to the Managing Director of the Directorate of Defense Trade Controls as to why all the information cannot be furnished at that time is a condition precedent to the granting of the relevant license or approval.
(b) Each supplier must inform the Directorate of Defense Trade Controls as to whether the supplier or its vendors have paid, or offered or agreed to pay, in respect of any sale:
(2) Fees or commissions in an aggregate amount of $100,000 or more. If so, the supplier must furnish to the Directorate of Defense Trade Controls the information specified in § 130.10. The information required to be furnished pursuant to this paragraph must be so furnished no later than 30 days after the contract award to such supplier, or such earlier date as may be specified by the Department of Defense. For purposes of this paragraph, a contract award includes a purchase order, exercise of an option, or other procurement action requiring a supplier to furnish defense articles or defense services to the Department of Defense for the purposes of § 22 of the Arms Export Control Act (22 U.S.C. 2762).
(d) Any applicant or supplier which has informed the Directorate of Defense Trade Controls under this section that neither it nor its vendors have paid, or offered or agreed to pay, political contributions or fees or commissions in an aggregate amount requiring the information specified in § 130.10 to be furnished, must subsequently furnish such information within 30 days after learning that it or its vendors had paid, or offered or agreed to pay, political contributions or fees or commissions in respect of a sale in an aggregate amount which, if known to applicant or supplier at the time of its previous communication with the Directorate of Defense Trade Controls, would have required the furnishing of information under § 130.10 at that time. Any report furnished under this paragraph must, in addition to the information specified in § 130.10, include a detailed statement of the reasons why applicant or supplier did not furnish the information at the time specified in paragraph (a) or paragraph (b) of this section, as applicable.
(a) Every person required under § 130.9 to furnish information specified in this section in respect to any sale must furnish to the Directorate of Defense Trade Controls:
(d) Every person required to furnish the information specified in paragraphs (a) and (b) of this section must respond fully to each subdivision of those paragraphs and, where the correct response is “none” or “not applicable,” must so state.
(a) * * *
(3) Additional details are requested by the Directorate of Defense Trade
(b) Supplementary reports must be sent to the Directorate of Defense Trade Controls within 30 days after the payment, offer or agreement reported therein or, when requested by the Directorate of Defense Trade Controls, within 30 days after such request, and must include:
(2) The Directorate of Defense Trade Controls license number, if any, and the Department of Defense contract number, if any, related to the sale.
(c) If the vendor believes that furnishing information to an applicant or supplier in a requested statement would unreasonably risk injury to the vendor's commercial interests, the vendor may furnish in lieu of the statement an abbreviated statement disclosing only the aggregate amount of all political contributions and the aggregate amount of all fees or commissions which have been paid, or offered or agreed to be paid, or offered or agreed to be paid, by the vendor with respect to the sale. Any abbreviated statement furnished to an applicant or supplier under this paragraph must be accompanied by a certification that the requested information has been reported by the vendor directly to the Directorate of Defense Trade Controls. The vendor must simultaneously report fully to the Directorate of Defense Trade Controls all information which the vendor would otherwise have been required to report to the applicant or supplier under this section. Each such report must clearly identify the sale with respect to which the reported information pertains.
(d)(1) If upon the 25th day after the date of its request to vendor, an applicant or supplier has not received from the vendor the initial statement required by paragraph (a) of this section, the applicant or supplier must submit to the Directorate of Defense Trade Controls a signed statement attesting to:
(2) The failure of a vendor to comply with this section does not relieve any applicant or supplier otherwise required by § 130.9 to submit a report to the Directorate of Defense Trade Controls from submitting such a report.
(a) All information reported and records maintained under this part will be made available, upon request for utilization by standing committees of the Congress and subcommittees thereof, and by United States Government agencies, in accordance with § 39(d) of the Arms Export Control Act (22 U.S.C. 2779(d)), and reports based upon such information will be submitted to Congress in accordance with sections 36(a)(7) and 36(b)(1) of that Act (22 U.S.C. 2776(a)(7) and (b)(1)) or any other applicable law.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
This final rule amends the regulation that implements 23 U.S.C. 410, under which States can receive incentive grants for alcohol-impaired driving prevention programs. The final rule implements changes that were made to the Section 410 program by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU).
SAFETEA-LU provides States with two alternative means to qualify for a Section 410 grant. Under the first alternative, States may qualify as a “low fatality rate State” if they have an alcohol-related fatality rate of 0.5 or less per 100 million vehicle miles traveled (VMT). Under the second alternative, States may qualify as a “programmatic State” if they demonstrate that they meet three of eight grant criteria for fiscal year 2006, four of eight grant criteria for fiscal year 2007, and five of eight grant criteria for fiscal years 2008 and 2009. Qualifying under both alternatives does not entitle the State to receive additional grant funds. SAFETEA-LU also provides for a separate grant to the ten States that are determined to have the highest rates of alcohol-related driving fatalities.
This final rule establishes the criteria States must meet and the procedures they must follow to qualify for Section 410 grants, beginning in FY 2006.
This final rule becomes effective on June 20, 2006.
For programmatic issues: Ms. Carmen Hayes, Highway Safety Specialist, Injury Control Operations & Resources (ICOR), NTI-200, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-2121. For legal issues: Mr. Roland (R.T.) Baumann III, Attorney-Advisor, Legislation and General Law Division, Office of the Chief Counsel, NCC-113, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Telephone: (202) 366-1834.
The Alcohol Impaired Driving Countermeasures program was created by the Drunk Driving Prevention Act of 1988 and codified at 23 U.S.C. 410. As originally conceived, States could qualify for basic and supplemental grants under the Section 410 program if they met certain criteria. To qualify for a basic grant, States had to provide for an expedited driver's license suspension or revocation system and a self-sustaining impaired driving prevention program. To qualify for a supplemental grant, States had to be eligible for a basic grant and provide for a mandatory blood alcohol testing program, an underage drinking program, an open container and consumption program, or a suspension of registration and return of license plate program.
During the decade and a half since the inception of the Section 410 program, it has been amended several times to change the grant criteria and grant award amounts. The most recent amendments prior to those leading to this action arose out of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178. TEA-21 amended both the grant amounts and the criteria that States had to meet to qualify for both basic and supplemental grants under the Section 410 program. Under TEA-21, States qualified for a “programmatic” basic grant by meeting five of the seven following criteria: An administrative driver's license suspension or revocation system; an underage drinking prevention program; a statewide impaired-driving traffic enforcement program; a graduated driver's license system; a program to target drivers with a high blood alcohol concentration (BAC) level; a program to reduce drinking and driving among young adults (between the ages of 21 and 34); and a BAC testing program. In addition, States could qualify for a “performance” basic grant by demonstrating that the percentage of fatally injured drivers in the State with a BAC of 0.10 or more had decreased in each of the three previous calendar years and that the percentage of fatally injured drivers with a BAC of 0.10 or more in the State was lower than the average percentage for all States in the same three calendar years. Supplemental grants were also available for States that received a programmatic and/or performance grant and met additional criteria.
On August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) was enacted (Pub. L. 109-59). Section 2007 of SAFETEA-LU made new amendments to 23 U.S.C. 410. These amendments again modified the grant criteria and the award amounts and made a number of structural changes to streamline the program.
The SAFETEA-LU amendments, which take effect in FY 2006, retain the basic grant structure of the old Section 410 Program but eliminate all supplemental grants. States may qualify for a grant in one of two ways. A State determined to be a “low fatality rate State” by virtue of having an alcohol-related fatality rate of 0.5 or less per 100 million VMT is eligible for a grant. SAFETEA-LU prescribes that fatality rates are to be determined by using data from NHTSA's Fatality Analysis Reporting System (FARS). States may also qualify by meeting certain programmatic requirements. A State may qualify as a “programmatic State” by demonstrating compliance with several specified criteria. A State must demonstrate compliance with three of eight alcohol-impaired driving prevention programmatic criteria in FY 2006, four of eight in FY 2007, and five of eight in FY 2008 and FY 2009. These criteria include the following: a high visibility impaired driving enforcement program; a prosecution and adjudication outreach program; a BAC testing program; a high-risk drivers program; an alcohol rehabilitation or DWI court program; an underage drinking prevention program; an administrative driver's license suspension or revocation system; and a self-sustaining impaired driving prevention program. Five of these programmatic criteria are continued from the TEA-21 basic grant criteria with minor modifications. SAFETEA-LU eliminated two programmatic criteria from the TEA-21 basic criteria—the graduated driver's licensing system and the young adult drinking and driving program. These criteria were replaced by a prosecution and adjudication outreach program and the alcohol rehabilitation or DWI court programs—two new programmatic criteria. The eighth programmatic criterion, the self-sustaining impaired driving prevention program, existed under TEA-21 as a supplemental grant criterion and is continued under SAFETEA-LU as the equivalent of a programmatic basic grant criterion under the old Section 410 program.
The SAFETEA-LU amendments include provisions for separate grants to be made to “high fatality rate States.” Each of the ten States with the highest alcohol-related fatality rates, based on FARS data, are eligible for a separate grant. High fatality rate States may also qualify for funding as programmatic States.
Under SAFETEA-LU, a number of administrative requirements apply to the Section 410 program. States that qualify for grants under Section 410 are to receive funds in accordance with the apportionment formula in Section 23 U.S.C. 402(c)—75 percent in the ratio which the population of each State bears to the total population of all qualifying States and 25 percent in the ratio which the public road mileage in each State bears to the total public road mileage of all qualifying States. The funds available each fiscal year for separate grants to the ten States with the highest fatality rates are statutorily limited to not more than 15 percent of the funding for the entire Section 410 program for that fiscal year, with no single State receiving more than 30 percent of that amount. These funds, too, are to be distributed in accordance with the apportionment formula in 23 U.S.C. 402(c).
SAFETEA-LU provides that States may use grant funds for any of the eight identified alcohol-impaired driving prevention programs or to defray the following specified costs:
(1) Labor costs, management costs, and equipment procurement costs for the high visibility, Statewide law enforcement campaigns under subsection (c)(1).
(2) The costs of the training of law enforcement personnel and the procurement of technology and equipment, including video equipment and passive alcohol sensors, to counter directly impaired operation of motor vehicles.
(3) The costs of public awareness, advertising, and educational campaigns that publicize use of sobriety check points or increased law enforcement efforts to counter impaired operation of motor vehicles.
(4) The costs of public awareness, advertising, and educational campaigns that target impaired operation of motor vehicles by persons under 34 years of age.
(5) The costs of the development and implementation of a State impaired operator information system.
(6) The costs of operating programs that result in vehicle forfeiture or impoundment or license plate impoundment.
States are required to match the grant funds they receive. The Federal share may not exceed 75 percent of the cost of the State's activities under the Section 410 program in the first and second fiscal years and 50 percent in the third and fourth fiscal years. States must also maintain aggregate expenditures from all other sources for their alcohol-
The agency published a notice of proposed rulemaking (NPRM) on January 3, 2006 (71 FR 29) to implement the new Section 410 program requirements under SAFETEA-LU. The proposal set forth the requirements for grant awards to States that satisfy the statutorily-specified minimum number of programmatic criteria, depending on the grant year. The proposal also set forth the requirements for grant awards to States that qualify as high or low fatality rate States. The proposal specified an annual application deadline of August 1 and required States to certify that they would conduct activities and use funds in accordance with the requirements of the Section 410 program and other applicable laws.
Consistent with the procedures in other highway safety grant programs administered by NHTSA, the proposal provided that, within 30 days after notification of award, States must submit an electronic HS Form 217 obligating the grant funds to alcohol-impaired driving prevention programs. The proposal also required States to identify their proposed use of grant funds in the Highway Safety Plans prepared under the Section 402 Program and to detail program accomplishments in the Annual Report submitted under that program. The proposal explained that these documenting requirements must continue each fiscal year until all grant funds have been expended.
To satisfy the statutory requirement that a State match grant funds, the agency proposed to accept a “soft” match in the administration of the Section 410 program, as it has in other grant programs (i.e., States could count other highway safety expenditures in the State, irrespective of whether those expenditures were made for this program). In addition, the agency proposed that States could use up to 10 percent of the total funds received under 23 U.S.C. 410 for planning and administration (P&A) costs. As with the Section 402 program, the proposal limited Federal participation in P&A activities to not more than 50 percent of the total cost of such activities.
The agency received submissions from twenty commenters in response to the NPRM—five from State agencies, thirteen from professional organizations, and two from ignition interlock manufacturers. The State comments were submitted by the Office of Traffic Safety of the Minnesota Department of Public Safety (Minnesota); the Bureau of Transportation Safety of the Wisconsin Department of Transportation, Division of State Patrol (Wisconsin); the West Virginia Highway Safety Program of the West Virginia Department of Transportation, Division of Motor Vehicles (West Virginia); and the Division of Traffic Safety of the Illinois Department of Transportation (Illinois). The Transportation Departments of the States of Idaho, Montana, North Dakota, South Dakota, and Wyoming submitted joint comments through their counsel (the Joint State Commenters). The professional organization comments were submitted by the National Traffic Law Center (NTLC); the Governor's Highway Safety Association (GHSA); Advocates for Highway and Auto Safety (Advocates); Mothers Against Drunk Driving (MADD); the Conference of State Court Administrators (COSCA); the Beer Institute; the Hospitality Resource Panel; the Maryland State Licensed Beverage Association; the New Jersey Licensed Beverage Association, Inc.; Techniques of Alcohol Management/Nevada; the Michigan Licensed Beverage Association; the Alaska Cabaret, Hotel, Restaurant and Retailer's Association; and Techniques of Alcohol Management. The last eight listed organizations submitted a substantially similar comment, and are referred to collectively below as the TAM Commenters when addressing that comment. The ignition interlock manufacturer comments were submitted by National Interlock Systems, Inc. and LifeSafer Interlock, Inc.
The agency received a variety of comments in response to the NPRM. Illinois agreed with the proposal and thought that it provided “an appropriate outline” for deterring impaired driving in the State. Advocates stated that the agency “made reasonable decisions as to the requirements that must be met by ‘programmatic States.’ ” MADD expressed general agreement with the regulation and each of the programmatic criteria.
In contrast, GHSA stated that “the regulations proposed * * * go beyond the statutory language,” and expressed concern that “the requirements will make it difficult for states to qualify for 410 grants, particularly in the last two years of the grant program.” The Joint State Commenters echoed this concern, asserting that “[b]ecause of regulatory add-ons, it will become more difficult for States to qualify for Section 410 funds on a programmatic basis. * * *” The Beer Institute asked the agency to reconsider inclusion of additional regulatory requirements in its proposal, but did not identify any specific requirements. Wisconsin and GHSA viewed the proposal as overly restrictive and believed its operation would not provide enough flexibility to deal with problems inherent to a particular State.
These and other more specific comments related to the requirements that States must meet to qualify for grants are addressed below, under the appropriate heading. The agency received at least one comment concerning each of the eight criteria States must meet to qualify as a programmatic State and the requirements that States must meet to qualify for a grant as a low or high fatality rate State.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to have:
A State program to conduct a series of high visibility, statewide law enforcement campaigns in which law enforcement personnel monitor for impaired driving, either through the use of sobriety check points or saturation patrols, on a nondiscriminatory, lawful basis for the purpose of determining whether the operators of the motor vehicles are driving while under the influence of alcohol—
(A) If the State organizes the campaigns in cooperation with related periodic national campaigns organized by the National Highway Traffic Safety Administration, except that this subparagraph does not preclude a State from initiating sustained high visibility, Statewide law enforcement campaigns independently of the cooperative efforts; and
(B) If, for each fiscal year, the State demonstrates to the Secretary that the State and the political subdivisions of the State that receive funds under this section have increased, in the aggregate, the total number of impaired driving law enforcement activities at high incident locations (or any other similar activity approved by the Secretary) initiated in such State during the preceding fiscal year by a factor that the Secretary determines meaningful for the State over the number of such activities initiated in such State during the preceding fiscal year.
The NPRM proposed that a State would be required to participate in the national impaired driving campaign organized by NHTSA, conduct a series of additional high visibility law enforcement campaigns within the State on a monthly basis throughout the year, and use sobriety checkpoints and/or saturation patrols during these efforts.
GHSA stated that small, rural States would have a difficult time meeting the requirement that participating law enforcement agencies cover either 50 percent of the population or a geographic area that accounts for 50 percent of the State's alcohol-related fatalities. GHSA also expressed concern that States might have to “enlist the support of every law enforcement agency in the geographic area” and compliance would be jeopardized if even one law enforcement agency declined to participate.
The proposed 50 percent population-based or fatality-based options for the first year of the new program mirror the requirement that existed in the regulation implementing the predecessor Section 410 program authorized under TEA-21, based on similar statutory language. (TEA-21 and SAFETEA-LU both require States to conduct a “Statewide” law enforcement effort.) All 34 States that received Section 410 programmatic grants in FY 2005 under the predecessor program, including several small, rural States, met this requirement. The agency believes that the 50 percent level is a generous interpretation of the statutory requirement for Statewide coverage and an achievable measure by all States.
Moreover, the proposal does not require States to include as participating agencies all law enforcement agencies operating within a certain geographic area for that area to count toward meeting the 50 percent requirement. The agency is mindful that overlapping jurisdictions exist at county and local levels. The State is required to include only a single law enforcement agency operating within a particular jurisdiction for that area (as determined by population or geography) to count toward the 50 percent requirement. The agency has revised the rule to include a definition of law enforcement agency. A law enforcement agency refers to an agency that is identified by the State and included in an enforcement plan for purposes of meeting the coverage requirements of the State during high visibility enforcement campaigns. While this clarifies the minimum requirement, we encourage States to include as many agencies as possible in their Statewide enforcement plans.
Minnesota questioned the agency's requirement that participating law enforcement agencies conduct checkpoints and saturation patrols on at least four nights during the National Campaign. Minnesota viewed the requirement as “extremely costly” and believed it would discourage smaller law enforcement organizations from voluntary participation in the program.
The impact of the High Visibility Impaired Driving Program Criterion on traffic safety is dependent on increasing high visibility enforcement efforts in the State. While such efforts are not without cost, the amount of funds available under the Section 410 program has tripled under the current statute, and these funds may be used to cover the costs of Statewide enforcement. Under these circumstances, the agency does not believe that a requirement for participation in enforcement campaigns on only four nights during the National Impaired Driving Crackdown that occurs once a year presents an unreasonable burden.
Moreover, within the proposal's definition of sobriety checkpoint and high saturation patrol, there is tremendous flexibility to accommodate mobile or “flexible” checkpoints and task force arrangements that are multi-jurisdictional. For smaller law enforcement agencies that may not be able to commit resources to four activities during the national campaign, States may use partnerships or task force arrangements between law enforcement agencies. Qualifying participation by a smaller law enforcement agency under a task force arrangement would be satisfied by involvement of one officer—a manageable level of effort. For these reasons, we decline to change the requirement for four-night participation.
The Joint State Commenters took issue with the proposed requirement that States conduct additional monthly activities outside the period of the national campaign. In their view, the statute precludes such a requirement and leaves this decision to the discretion of the States.
The agency's proposal that States participate in monthly enforcement activities as well as the national campaign derives from the statutory language directing a State to conduct “a series of” high visibility, Statewide law enforcement efforts. The agency believes that limiting State enforcement activities to the period of a single national campaign under this criterion does not meet the statutory requirement or intent for a “series” of efforts. Evidence has shown that sustained enforcement programs have produced the largest declines in alcohol-related crashes (e.g., Checkpoint Tennessee)—single short-term enforcement programs targeting impaired driving have not shown similar effects.
The agency recognizes, however, that some largely rural States may have difficulty conducting monthly law enforcement activities aimed at impaired drivers. In these States, it may be impracticable because of weather conditions and rural expanses for all participating law enforcement agencies to conduct an activity every month, placing them at a disadvantage when compared to other States. These concerns have been raised in the past, in response to experience under the predecessor Section 410 program. To address these concerns and increase the parity between States in varying geographic regions, we have revised the rule to require that a State provide at least quarterly law enforcement activities during the year. Under the revision, participating law enforcement agencies will have to conduct activities on four nights during the national campaign and conduct four additional efforts, one during each quarter of the year.
Under SAFETEA-LU, a State's continued compliance with the criterion requires that it increase the amount of impaired driving law enforcement activity over the previous year. The agency's proposal requires that a State submit a plan in each successive year of the program that increases the percent of the population reached by five percent. (The proposal inadvertently did not include language allowing the alternative option of an increase in the geographic area covered. We have amended the rule to provide that option, for consistency and conformity with the requirements at the 50 percent levels.) The increase is measured from the initial requirement that a State must use law enforcement agencies collectively serving at least 50 percent of the State's population or serving geographic areas that account for at least 50 percent of the State's alcohol-related fatalities. This approach mirrors the approach taken under the Strategic Evaluation States program.
The Joint State Commenters took exception to this approach, claiming
The comment ignores the threshold statutory requirement that the State conduct a “statewide” program. Law enforcement activity that covers only 20 percent or even 40 percent of the State does not satisfy this baseline requirement. The agency believes that a 50 percent floor is already generous in this regard, in view of the statutory language, and has made no change to the rule.
The agency does not believe that an increase in the total number of law enforcement activities conducted is a practicable measure under this criterion. Such an approach relies on State impaired driving law enforcement data, and States are currently experiencing difficulty in obtaining accurate data. Several comments highlighted this problem. Minnesota indicated that “a State does not fund all impaired driving enforcement activity conducted in the state and can't require a law enforcement agency to report data on an activity that is funded locally.” According to Minnesota, “no state would be able to certify that the number they provided was accurate.” GHSA stated that it is “extremely difficult for some states to provide such data for agencies that do not receive grants.”
For these reasons, the agency declines to adopt the approach of using an increase in the number of law enforcement activities as a measure. Adding participating law enforcement agencies incrementally ensures an increase in law enforcement activity without the need to rely on data that may be hard for States to collect. States are still encouraged to collect data and make all due effort to record all of the impaired driving law enforcement activity that is conducted in the State in a given year.
West Virginia expressed concern that States with plans that initially cover 65 percent or more of the State's population or geographic areas would find it difficult to achieve an increase beyond that amount in subsequent years in order to maintain compliance. West Virginia requests that the agency consider a decrease in the impaired driving fatality rate as an alternative to the requirement that a State meaningfully increase its law enforcement activities.
Under the agency's proposal, compliance with this provision does not require a State to achieve increases above 65 percent. If a State submits a plan in a grant year that covers 65 percent or more of the State, it is not required to produce plans in subsequent grant years that demonstrate additional increases. This approach is intended to accommodate rural States with diffuse populations that may find it difficult to achieve increases beyond 65 percent. However, we encourage States to include in their enforcement plans as many law enforcement agencies as possible, as studies indicate that increasing the scope of a high visibility enforcement campaign will serve to reduce impaired driving fatalities faster than with a more limited effort. West Virginia's request that the agency consider a decrease in the impaired driving fatality rate as an alternative is inconsistent with the statute, which specifies an increase in the number of law enforcement activities as the measure. However, States that decrease their impaired driving fatality rate to .5 or less per 100,000,000 vehicles miles traveled are eligible to receive a Section 410 grant without the need to meet any programmatic criteria.
MADD requested that the agency define the term “high-incident locations”. The term is not used in the rule and we decline to do so. The term is used as part of the statutory requirement that States meaningfully increase law enforcement at “high-incident locations.” The agency's proposal largely obviates the need for a definition by requiring that a State's enforcement plan use law enforcement agencies that serve geographic areas that account for at least 50 percent of the State's alcohol-related fatalities. In this way, the plan would concentrate efforts on high-incident areas simply as a product of using law enforcement agencies in those areas. The agency is concerned that a set definition may inadvertently eliminate certain areas that could benefit from high visibility law enforcement. We are satisfied that States will naturally focus efforts in areas that have the greatest impact on traffic safety.
GHSA asserted that States could not submit detailed media and enforcement plans until they received notification of grant award. We do not expect a State to buy media in advance of the grant award. Rather, the State need only provide its intended media approach in a general plan. As GHSA recognizes, general plans could include information regarding the relative reach a State would expect to attain with the media buys or the type of audience the messaging would target. In addition to this information, the agency expects to receive information on the areas of the State that would be targeted and how the media approach will reach the intended audience. The agency's proposal is broad enough to accommodate this approach. We do not agree that States will be unable to provide a list of law enforcement agencies expected to participate in the effort. The planning requirement is necessary to ensure that States have created a Statewide plan. The same requirement existed under the predecessor Section 410 program and all States receiving grant funds in FY 2005 were able to provide this information in an application.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to have:
A State prosecution and adjudication program under which—
(A) The State works to reduce the use of diversion programs by educating and informing prosecutors and judges through various outreach methods about the benefits and merits of prosecuting and adjudicating defendants who repeatedly commit impaired driving offenses;
(B) The courts in a majority of the judicial jurisdictions of the State are monitored on the courts' adjudication of cases of impaired driving offenses; or
(C) Annual statewide outreach is provided for judges and prosecutors on innovative approaches to the prosecution and adjudication of cases of impaired driving offenses that have the potential for significantly improving the prosecution and adjudication of such cases.
Under the agency's proposal, to achieve compliance with this criterion, a State would be required to conduct educational outreach for court professionals that focuses on innovative sentencing techniques in the prosecution and adjudication of impaired drivers; conduct educational outreach that focuses on the negative aspects of using diversion programs; or use a court monitoring program that collects specific information from a majority of State courts.
The agency received several comments related to the prosecution and adjudication outreach programs that a State must conduct. As a general matter, commenters expressed concern about the level of agency review of course content and the perceived requirement to use NHTSA courses. GHSA recommended that NHTSA publish a list of acceptable programs and allow States to select from the list. The Joint State Commenters did not
The agency did not intend to impose specific course content requirements on States or to reduce State flexibility to design effective courses, nor did it intend to require States to use NHTSA or other particular training materials. The use of the term “NHTSA-approved courses” in the regulatory text was intended to denote State-submitted course material that the agency reviewed during the application process and approved for use under the Section 410 program. Similarly, the certification process was intended to assure that once material is approved for use it will not be changed at a later point in time without the knowledge of the agency.
In view of the confusion expressed by these commenters, the agency has deleted the term “NHTSA-approved courses” and replaced it with language that better clarifies this intent. Additionally, to respond to the comment that more guidance on program content be provided, we have revised the rule to provide a list of topics that each educational outreach program must address. The agency's approach ensures that States retain the flexibility to determine the specific course content used. States will not need to submit full course material to the agency for review and approval. Instead, States will submit a course syllabus and a certification that the outreach program covers the course topics listed in the rule.
For an outreach program that provides training on innovative sentencing techniques in the prosecution and adjudication of impaired drivers, the rule provides that the course topics must include: (1) The use of alcohol assessments and treatment; (2) vehicle sanctions (which may include impoundments, plate sanctions, ignition interlock installation use, etc., depending on the status of State law); (3) electronic monitoring and home detention; and (4) information on DWI courts and other types of treatment courts. For an outreach program that focuses on the negative aspects of using diversion programs, the rule provides that the course topics must include: (1) The State's impaired driving statutes and applicable case law; (2) searches, seizures and arrests (an examination of current statutes and case law); (3) admissibility of evidence in impaired driving cases; (4) biochemical and physiological information (covers effects of drugs and alcohol on the human body); and (5) sentencing of impaired drivers.
The agency has stopped short of requiring course materials for each program. However, States that are seeking additional guidance may choose to consult the NHTSA publications and funded training materials, Strategies for Addressing the DWI Offender: 10 Promising Sentencing Practices; Prosecuting the Impaired Driver: DUI/DWI Cases; and The Court's Role in Impaired Driving, for help in developing their own curriculum. The final rule continues to require that the education program be provided on an annual basis, but clarifies that it is to be provided at least once a year and to consist of eight hours of training, in response to Wisconsin's query. States may choose to include the training as part of a Statewide legal conference or grant continuing education credit for attendance.
Wisconsin and COSCA requested that the agency identify certain situations where diversion programs might be considered appropriate or beneficial, and therefore appropriate for inclusion in course content. We decline to do so. The statutory provision governing this criterion requires States to work to “reduce the use of diversion programs [for] defendants who repeatedly commit impaired driving offenses.” In view of this specific requirement, it would be inappropriate for the agency to make recommendations that might lead to an increase in the use of diversion programs. As we explained in the NPRM, diversion programs that allow an offender to obtain a reduction or dismissal of an impaired driving charge or removal of an impaired driving offense from a driving record based on participation in an educational course or community service activity are problematic. Repeat offenders escape detection under these types of programs. States are free to discuss other programs that fall outside of the definition and, therefore, are not considered diversion programs under this criterion.
NTLC was concerned that the agency's proposal would create an “express partnership between judges and prosecutors,” in contravention of their ethical duties. NTLC also disagreed with the agency's statement in the preamble to the NPRM urging judges and prosecutors to exercise oversight in using diversion programs to ensure that the records of impaired driving remain available for enhancement in the event of recidivism. NTLC views record availability as a legislative matter and not an obligation of a judge or a prosecutor.
Nothing in the agency's proposal requires judges and prosecutors to act in contravention of their ethical duties, and no changes are necessary. Diversion programs, as the agency has defined them in this rule, are programs that result in the removal of an impaired driving charge from a driving record. Although States may have specific laws or policies regarding the treatment of diverted defendants' records, prosecutors present the use of diversion programs and judges approve that use. In this way, prosecutors and judges have control over whether records are available for review in the event of an offender's recidivist behavior.
Commenters raised several issues about the use of a State Judicial Educator (SJE) under the proposal. Wisconsin asked the agency to provide a definition for the position and asked whether the use of a State Judicial Education Office would qualify. GHSA asked the agency to clarify the requirements.
The proposal did provide a definition. The proposal defined the SJE as an individual used by the State to provide support in the form of education and outreach programs and technical assistance to continuously improve personal and professional competence of all persons performing judicial branch functions. The agency agrees that a State Judicial Education Office is an acceptable alternative to the use of an individual to provide judicial education. The agency has revised the definition to allow the use of either an individual or an entity that provides judicial education. In response to GHSA's request for clarification, we believe that the definition is flexible enough to accept as qualifying any individual or office the State designates as responsible for judicial education statewide. The State may determine the type of qualifications and background necessary to carry out that role. Subject to these qualifications, current judges, retired judges, or judges with impaired driving case experience, for example, may serve as a State's SJE.
MADD suggested that the agency amend the proposal to ensure that a State use only full-time Traffic Safety Resource Prosecutors (TSRPs) and SJEs. The agency intended that these positions would be on a full-time basis. We have revised both of the definitions to make this clear.
GHSA stated that highway safety offices would not receive additional funding over the course of SAFETEA-LU that would enable them to fund the SJE or TSRP positions. The agency has set no requirement on how these positions should be funded. However, provided that the positions offer impaired-driving-related educational programs to judges and prosecutors, they may be funded under Section 410, which provides substantially increased funds from previous years. In response to GHSA's comment, the agency has revised the rule to require that the State submit a list of impaired-driving-related educational programs offered by each position to ensure that States may use Section 410 funds for these activities. As almost all States already make use of an SJE position and do so without regard to this criterion, we do not believe that funding impediments are a significant issue.
The agency received a number of comments related to the court monitoring program. GHSA requested that the regulation more clearly define the court monitoring program, and asked whether a State tracking system that recorded the offender's arrest, conviction and disposition of the charges would qualify. COSCA thought that this program lacked explicit and defined performance criteria, and requested that the agency revise the terminology. NTLC was concerned that confusion would result between this criterion and other agency grant programs that involve court monitoring.
A significant goal of the prosecution and adjudication outreach program criterion is to inform States about how their courts treat impaired drivers. With the information collected, States should be able to identify jurisdictions that do not fully prosecute and adjudicate impaired drivers. To comply under the proposal, a State must collect data from at least 50 percent of its courts (consistent with the statutory requirement that a majority of the courts be covered) and the data collected must include the original charges filed against a defendant, the final charges presented by the prosecutor, and the disposition of the charges or the sentence provided. The appropriate method for collecting this information is not detailed in the rule and is left to the discretion of the individual States. The compliance requirements are straightforward and the agency does not believe that additional performance criteria need to be specified. The requirements of this criterion are separate from any other grant program of the agency, and there is no reason to believe that confusion might result.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to have:
An effective system for increasing from the previous year the rate of blood alcohol concentration testing of motor vehicle drivers involved in fatal crashes.
Under the NPRM, to demonstrate compliance with this criterion, a State would be required to increase its rate of blood alcohol testing from one year to the next. States under the testing average of 50 percent would be required to experience an increase of 5 percent each year and States over this average would be required to experience an increase of 5 percent of the untested drivers in the State. To determine compliance, the agency proposed to use FARS data. The agency did not specify particular elements of an effective system, choosing instead to rely on data as a measure of compliance with this criterion.
The Joint State Commenters asserted that the statute merely requires a State to have a “system” for increasing BAC testing, without the need to actually achieve increases, and that even decreases should be acceptable provided a system is in place. Alternatively, The Joint State Commenters took issue with the agency's requirement that States achieve a five percent increase in BAC testing each year to achieve compliance, asserting that the agency was not free to disregard small increases based on the statutory language. The Joint State Commenters requested that the agency count any percentage increase in BAC testing for purposes of compliance.
With respect to the first argument, we disagree. SAFETEA-LU requires a State to implement an “effective” system for increasing BAC testing. A system that does not produce increases or that results in decreases is not an “effective” system under the statute. We address the assertion that a system for increasing BAC, alone, should be sufficient in more detail in our response to comments from Advocates, below.
With respect to the second argument, we acknowledge that the statute does not specify the amount of increase required. In light of the comment, we have reviewed the FARS data that forms the basis for these calculations and determined that a one percent increase would be acceptable to meet the minimum intent of the statute. Amounts below one percent are not commensurate with a system that is “effective.” We have revised and simplified the rule to require that all States, regardless of BAC testing level, achieve a one percent increase in the BAC testing rate over the previous year to be compliant with the criterion. We have also removed from the rule the conversion rate approach that would have required smaller incremental increases for States with BAC testing above 50 percent, in view of the overall decrease in the requirement.
To ensure uniform treatment of all States and consistency in the determination of BAC increases under this revised approach, the agency will make necessary calculations based on the final FARS data, determine each State's compliance, and notify the States each year. To accommodate this, we have made two changes to the proposed rule. First, we have included language indicating that the BAC rate determinations will be made by the agency. Second, we have removed the requirement for a State to certify that it has achieved the required BAC rate to demonstrate compliance, since the agency will make that determination. In its place, we have substituted a requirement for a simple statement that the State intends to apply on the basis of achieving the required BAC testing rate increase.
Wisconsin questioned the agency's requirement that States with BAC testing above the national average achieve additional increases. SAFETEA-LU amended the previous statutory requirement that allowed a State to comply with a testing rate equal to or above the national average. The new statutory language requires States to have systems that increase BAC testing rates over the previous year regardless of whether the rate exceeds the national average.
Minnesota stated that compliance would be much more difficult for states that already had a very high testing percentage, and recommended that any State testing above 85 percent be deemed automatically in compliance. The agency's revised approach under the final rule requires a one percent increase each year regardless of the State's testing average. For States with high testing rates, we agree that further increases may be more difficult to achieve. However, under a one percent increase requirement, States with higher testing levels need only report a small number of additional BAC tests each year. Even in States with the highest testing levels, we believe that this is a manageable requirement. We note that Minnesota's suggestion to cap required increases at 85 percent, which we do not adopt, would not impact any State, based on the most currently available BAC testing data. The highest reported
Advocates believe that the agency's regulation should provide system goals for States in addition to the performance requirements. At a minimum, according to Advocates, States should be required to enact and maintain laws that require mandatory BAC testing both for drivers who are killed in a fatal crash and for those who survive a crash in which a fatality occurs.
For the first two years of the Section 410 program under TEA-21, the agency allowed States to achieve compliance with a limited set of system goals. These goals included enacting laws that mandate testing or conducting annual statewide workshops that promote good testing and reporting practices. In spite of this approach, the national average for BAC testing remained relatively constant under TEA-21.
We understand, however, that determining compliance purely on achievement of performance goals may dissuade States from attempting any activities that achieve BAC testing increases. For this reason, in response to Advocates' comment, the agency has revised the proposal to include an alternative requirement (but not a requirement that operates in addition to the performance requirement, as Advocates suggests). A State may achieve compliance in FY 2006 and FY 2007 by submitting a plan for increasing its BAC testing rate. The plan must consist of approaches that the State will take under the grant to achieve an increase in BAC testing that would meet the performance requirements of the criterion. To achieve compliance, the plan must include a description of each approach, including how it will be implemented and the expected outcome as a result of implementation. Approaches may include, as Advocates suggests, the enactment of a law mandating BAC testing. A State may also include approaches that resolve failures in the reporting of BAC test results. Statewide symposiums and workshops may be used as long as they bring together key officials in the State such as law enforcement officials, prosecutors, hospital officials, medical examiners, coroners, physicians, and judges and discuss the medical, ethical and legal impediments to increasing BAC testing.
After FY 2007, a State may no longer use the planning requirement to satisfy this criterion, unless it has a law in place that requires the testing of drivers in all fatal crashes—it must instead meet the performance requirement of this criterion. The planning requirement will be available to States in these later years of the program, in lieu of the performance requirement, only if they also have a law mandating the testing of all drivers in all fatal crashes. A compliant law must require testing in all fatal crashes and may not condition the use of tests on the establishment of probable cause. We have amended the proposal to provide for this alternative. We believe that the performance requirement and the planning requirement alternative, taken together, strike the appropriate balance between the need for actual increases in testing and the recognition that an effective system requires time to affect the testing numbers. We have also amended the rule to require that States complying with the planning requirement in subsequent years must also submit information demonstrating that the plan was effectively implemented and an updated plan for increasing BAC testing.
Wisconsin stated that breath testing is legally equivalent to blood testing and asked whether the agency considered this in its approach. The agency's proposal accommodates Wisconsin's concern. It continues the approach taken in TEA-21 that defines BAC to mean grams of alcohol per deciliter or 100 milliliters of blood or grams of alcohol per 210 liters of breath.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to have:
A law that establishes stronger sanctions or additional penalties for individuals convicted of operating a motor vehicle while under the influence of alcohol whose blood alcohol concentration is 0.15 percent or more than for individuals convicted of the same offense but with a lower blood alcohol concentration. For purposes of this paragraph, “additional penalties” includes—
(A) A 1-year suspension of a driver's license, but with the individual whose license is suspended becoming eligible after 45 days of such suspension to obtain a provisional driver's license that would permit the individual to drive—
(i) Only to and from the individual's place of employment or school; and
(ii) Only in an automobile equipped with a certified alcohol ignition interlock device; and
(B) A mandatory assessment by a certified substance abuse official of whether the individual has an alcohol abuse problem with possible referral to counseling if the official determines that such a referral is appropriate.
The agency's proposal provides that a State suspend the license of an individual convicted of impaired driving with a blood alcohol concentration of 0.15 or higher for one year. The proposal provides that, after 45 days, the State may allow the individual to receive a restricted license that would permit the use of a vehicle equipped with an ignition interlock. Driving would be restricted to places of employment, school or treatment. A qualifying State must also require that offenders be subject to a mandatory assessment by certified substance abuse officials.
National Interlock Systems, Inc. expressed concern about language in the preamble to the NPRM directing the State's use of ignition interlocks that meet the agency's performance specifications for ignition interlocks (57 FR 11772). National stated that any update to the agency's specifications would impose a significant financial burden on the interlock industry unless they were phased-in over time. The agency's performance specifications are provided as guidance, and States have discretion to adopt the specifications or develop their own. The regulatory language does not impose a requirement to use the agency's specifications. As a matter of sound practice, however, we recommend that States adopt these specifications. The commenter's concerns about phase-in requirements under performance specifications are outside the scope of this action, and should be addressed to efforts under those specifications.
LifeSafer Interlock, Inc. asserted that the requirement that an offender install an ignition interlock in every vehicle owned and every vehicle operated “will only serve to economically force most offenders to opt out” of the ignition interlock program and thereby limit overall use of interlocks. The agency explained that its reason for imposing the requirement was to ensure that driving restrictions are not easily circumvented. LifeSafer's own comment acknowledges that “the majority of the recidivism while an interlock is installed is a result of the use of non-interlock equipped vehicles.” While there are good and practicable reasons for requiring installation of interlocks in all vehicles, the statutory language identifies the interlock requirement as a sanction that attaches to the individual's license. Accordingly, the agency has revised the proposal to remove the requirement that an offender install interlocks in all vehicles owned and all vehicles operated. We are retaining, without change, the requirement that a State provide a license that restricts the offender to driving only vehicles that are equipped with interlocks.
LifeSafer requests that the agency include an exemption to the interlock requirement for employer-owned vehicles. This request appears to be based on the statutory language that
National and LifeSafer both noted that the agency's rule makes no provision for an offender to drive to an interlock service facility. We agree that travel to an interlock service facility is an inherent part of operating an interlock program, and have revised the proposal to allow for this.
The agency received one comment from one organization regarding the statutory requirement to provide alcohol assessments to high-risk offenders. GHSA recommended that the agency clarify the use of a certified substance abuse official and provide additional information regarding proper certification and training of these individuals. GHSA also requested that the agency provide examples of effective assessment tools.
The agency's proposal requires that a State use a certified substance abuse official to perform an alcohol assessment of a high BAC offender, but does not mandate the education or training background of these individuals or the process by which these individuals receive approval from the State to conduct alcohol assessments. The licensing of professionals is traditionally a function of the State and we see no reason to vary that approach in this rule. Most States already provide alcohol assessments to offenders and have developed the necessary infrastructure to implement these programs. A State is free to define a certification process, if it does not already have one, and to decide what level of education or training background a substance abuse official must have.
Assessment tools form the basis for appropriate treatment sentencing and the reduction of impaired driving recidivism. States have discretion to decide what type of assessment tools to use, and the agency takes no position about the relative value of any assessment method. However, in response to GHSA's query, the Addiction Severity Index (ASI) and the Structured Clinical Interview for Diagnosis (SCID) are two of the more well-known assessment tools. To minimize the effects of deficiencies in any one tool, we advocate the use of a combination of assessment tools.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to demonstrate:
A program for effective inpatient and outpatient alcohol rehabilitation based on mandatory assessment and appropriate treatment for repeat offenders or a program to refer impaired driving cases to courts that specialize in driving while impaired cases that emphasize the close supervision of high-risk offenders.
Under the agency's proposal, to demonstrate compliance with this criterion, the State would be required to institute either: An effective alcohol rehabilitation program that consists of mandatory assessment and treatment for repeat offenders, a statewide tracking system that monitors the progress of repeat offenders through treatment, and educational opportunities provided to court professionals that cover treatment approaches and sanctioning techniques; or a DWI court that abides by the Ten Guiding Principles of DWI Courts, as established by the National Drug Court Institute, and an increase of one DWI court each subsequent year of the program.
The agency received one comment regarding the proposed components of an effective rehabilitation program. The Joint State Commenters stated that the requirement to provide educational opportunities to court professionals was not referenced in the statute and that such a requirement should not be considered essential for an effective rehabilitation program. The agency believes that treatment sentencing is an important component of rehabilitating repeat offenders. We included the education requirement because court professionals do not always understand how to use the assessment information they are provided to apply the most effective treatment sanction. We acknowledge, however, that the requirement is somewhat redundant of the prosecution and adjudication outreach criterion listed above and that a training program conducted once a year is likely to result in only a marginal increase in the overall ability to use assessments. In view of the comment, we are also concerned that imposing this requirement may dissuade States from attempting compliance with the other more important components of the program. Although States are encouraged to provide educational opportunities to court professionals regarding the use of assessments and treatments, the agency has revised the rule to remove the requirement for an educational component.
The Joint State Commenters asserted that States should be free to set up their own DWI courts without having to meet the Ten Guiding Principles of DWI Courts. These commenters request that, at a minimum, the agency accept State courts that are in “substantial conformity” with the principles.
The Ten Guiding Principles of DWI Courts present a basis to understand the operation of DWI courts and to differentiate their use from general docket courts. Under the principles, DWI courts are required to target a population of offenders for the court; provide a clinical assessment and treatment plan for each offender; supervise the offender through treatment; forge partnerships with the agencies and organizations involved; develop case management strategies; address transportation issues; and evaluate outcomes and ensure that the program is sustainable. In addition, a judge takes responsibility for operation of the court. Many of these concepts are inherent to the operation of courts generally (
The Joint State Commenters and GHSA commented that the statute does not support a requirement that a State increase the use of DWI courts each year of the program. GHSA further stated that the agency's proposed increase of one DWI court each year is not tailored to meet the needs of individual States.
For the first time under Section 410, States are eligible to receive grant funds based on using certain treatment methods. DWI courts represent a relatively new approach to sanctioning and treating repeat offenders. Although based on the noted success of drug courts, which are used extensively by
The commenters are correct that larger States, because of larger offender populations, may require the use of more courts. The agency's proposal in no way prevents a State from establishing more courts than the minimum specified. We do not believe, however, that the agency's proposal disadvantages smaller States at the required compliance levels.
The statute requires the development of a program to process high-risk offenders through DWI courts. Under the agency's proposal, a State achieves initial compliance with the development and implementation of one DWI court. The use of one court provides a minimal level of traffic safety benefit in a State of any size, given the limited amount of offenders that treatment courts process in a year. The requirement is not onerous, and we do not agree that the statutory intent is satisfied by a static effort that allows a State to receive grant funds year after year without further development of a program that uses courts.
In view of the comments, however, the agency has made two revisions to the proposal. In the NPRM, the number of courts required was a fixed number tied to the fiscal year of application (one court in FY 2006, two courts in FY 2007, and one additional court each year thereafter). The agency has revised the rule to allow the use of a minimum one court for initial compliance, regardless of the fiscal year of the application, a minimum of two courts for the second year of compliance, three courts for third year of compliance, and four courts for the fourth year of compliance. The revised approach removes any disincentive for a State that wishes to apply under this requirement, for the first time, in later years of the program. States that have four DWI courts are not required to demonstrate additional increases to remain compliant. We have also broadened the definition of a DWI court to allow a State to count toward compliance the use of hybrid courts that process both drug and high-risk DWI offenders.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to demonstrate:
An effective strategy, as determined by the Secretary, for preventing operators of motor vehicles under age 21 from obtaining alcoholic beverages and for preventing persons from making alcoholic beverages available to individuals under age 21. Such a strategy may include—
(A) The issuance of tamper-resistant drivers' licenses to individuals under age 21 that are easily distinguishable in appearance from drivers' licenses issued to individuals age 21 or older; and
(B) A program provided by a nonprofit organization for training point of sale personnel concerning, at a minimum—
(i) The clinical effects of alcohol;
(ii) Methods of preventing second party sales of alcohol;
(iii) Recognizing signs of intoxication;
(iv) Methods to prevent underage drinking; and
(v) Federal, State, and local laws that are relevant to such personnel; and
(C) Having a law in effect that creates a 0.02 percent blood alcohol content limit for drivers under 21 years old.
Under the agency's proposal, to demonstrate compliance with this criterion, the State would be required to issue a tamper-resistant license to persons under the age of 21; conduct training through a nonprofit or public organization for alcohol beverage retailers and servers concerning the clinical effects of alcohol, methods of preventing second-party sales of alcohol, recognizing the signs of intoxication, methods to prevent underage drinking, and the relevant laws that apply to retailers and servers, and provide procedures that ensure program attendance; have a law that creates a blood alcohol limit of no greater than 0.02 percent for drivers under age 21; develop an enforcement plan that focuses on underage drivers' access to alcohol; and develop a communications strategy supporting the enforcement plan and includes media efforts and peer education.
The agency received several comments related to the training program for point-of-sale personnel. Wisconsin asked whether the training requirement applied to convenience stores and whether there is a standard curriculum for the course. Wisconsin also asked for information regarding the programs currently provided in other States. Minnesota stated that it was unclear how a State would be able to demonstrate program attendance for point-of-sale personnel.
Under the agency's proposal, compliant programs must provide training to all alcohol beverage retailers and servers. If a convenience store sells alcohol, then it must be included in the State's training program. The agency has not devised any required standard curriculum that must be used or cataloged the types of programs that States have used to comply with this requirement in the past. In response to Wisconsin's concerns, States wishing to receive more information regarding the practice of a particular State should contact the State directly.
The agency's proposal requires States to have procedures in place that ensure program attendance. Therefore, States must implement procedures that ensure every establishment retailing or serving alcohol receives the proper training. The agency did not intend, in the proposal, to require States to have procedures that track attendance by every individual employee of a retailer or to require proof of attendance in order to comply with the criterion. We have revised the rule to clarify these points. However, the State must provide a copy of the procedures it has put in place to ensure attendance.
The agency received two comments concerning point-of-sale training. The TAM commenters criticized the proposal's inclusion of public organizations as appropriate providers of the training, arguing that the term “public organizations” was omitted intentionally during the drafting of the statute to prevent local governments from establishing programs that might compete with non-profit programs. According to TAM, if public organizations are included, State and local governments will be forced to partner with a nonprofit organization in order to standardize point-of-sale training efforts nationwide. In contrast, Minnesota questioned why the agency's proposal limited point-of-sale training providers to only nonprofit or public organizations.
SAFETEA-LU specifies that the Secretary has discretion to devise the elements of an effective strategy that States adopt to confront the problem of underage drinking. While the statute makes specific reference to non-profit organizations, we disagree with TAM that its failure to reference public organizations precludes their participation. Under the predecessor Section 410 program, public organizations were considered appropriate providers of point-of-sale training. The agency included the term
Several commenters questioned the agency's inclusion of peer education as a component of a compliant enforcement and communications strategy. GHSA objected to the requirement on grounds that peer education has not been proven effective and that its impact is questionable. Minnesota commented that it was not aware of any strong research that demonstrates peer education to be effective in altering behavior.
Peer education is a relatively new approach that uses youth-to-youth communication to highlight the problems of underage drinking. While we believe that studies are beginning to demonstrate the effectiveness of this approach, we agree with the commenters that further study and development should take place before making it a requirement of the Section 410 program. The agency has revised the rule to remove the requirement.
The Joint State Commenters argued against including any other program components under this criterion that are not expressly provided for in the statute, stating that they add costs to a criterion that is already expensive to meet and would impede State qualification for grants.
The underage drinking prevention program is not a new criterion under SAFETEA-LU. Elements of the agency's proposal continue requirements that were mandated by the agency under the predecessor Section 410 program. With the removal of the peer education component (discussed above), the program is nearly identical to the program that States complied with to receive a grant in FY 2005. Point-of-sale training, tamper proof licenses for individuals under the age of 21, an enforcement program and communication effort are not new requirements. The only changes from the previous requirements include a zero tolerance law that all 50 States (with the exception of Puerto Rico) already have and a shift in the communications strategy from providing general information on underage drinking to a program that specifically supports the enforcement of underage drinking laws. Thirty-three out of thirty-four States receiving Section 410 grants in FY 2005 complied with the criterion (including Idaho and North Dakota—2 of the 5 Joint State Commenters). (We note that in FY 2004, South Dakota, another of the Joint State Commenters, met the criterion as well). Considering that the amount of funds has greatly increased under SAFETEA-LU and that nearly all States that received awards complied with a substantially similar criterion, we do not agree with the Joint State Commenters that the agency's approach would impose undue costs on the States or impede State qualification for grants.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to demonstrate:
An administrative driver's license suspension or revocation system for individuals who operate motor vehicles while under the influence of alcohol that requires that—
(A) In the case of an individual who, in any 5-year period beginning after the date of enactment of the Transportation Equity Act for the 21st Century, is determined on the basis of a chemical test to have been operating a motor vehicle while under the influence of alcohol or is determined to have refused to submit to such a test as proposed by a law enforcement officer, the State agency responsible for administering drivers' licenses, upon receipt of the report of the law enforcement officer—
(i) Suspend the driver's license of such individual for a period of not less than 90 days if such individual is a first offender in such 5-year period; except that under such suspension an individual may operate a motor vehicle, after the 15-day period beginning on the date of the suspension, to and from employment, school, or an alcohol treatment program if an ignition interlock device is installed on each of the motor vehicles owned or operated, or both, by the individual; and
(ii) Suspend the driver's license of such individual for a period of not less than 1 year, or revoke such license, if such individual is a repeat offender in such 5-year period; except that such individual [may be allowed] to operate a motor vehicle, after the 45-day period beginning on the date of the suspension or revocation, to and from employment, school, or an alcohol treatment program if an ignition interlock device is installed on each of the motor vehicles owned or operated, or both, by the individual; and
(B) The suspension and revocation referred to under clause (i) take effect not later than 30 days after the date on which the individual refused to submit to a chemical test or received notice of having been determined to be driving under the influence of alcohol, in accordance with the procedures of the State.
Under the agency's proposal, to demonstrate compliance with this criterion, the State would be required to provide that a BAC test refusal or failure would result in a 90-day license suspension for first offenders and a 1-year license suspension for second or subsequent offenders, and that suspensions would take effect within 30 days. The proposal would have permitted the State to provide limited driving privileges after 15 days to first offenders and after 45 days to second or subsequent offenders, if an ignition interlock device is installed on all vehicles owned and all vehicles operated by the offender and the offender's driving privileges are restricted to places of employment, school or treatment.
The agency received one comment regarding its approach to permit, but not require, States to grant interlock-restricted driving privileges. National Interlock Systems, Inc. commented that the statutory language requires the States to offer interlock restricted driving privileges in conjunction with this criterion. National cites the statutory language providing that an “individual may operate a motor vehicle * * * if an ignition interlock device is installed” to support its argument.
We disagree. This statutory language is permissive and allows the State to elect to offer interlocks to reduce the period of a license suspension an offender would otherwise face. Absent an interlock provision, the statute would simply require a full license suspension period to be served. There is no indication that Congress intended to mandate the use of interlocks in order for a State to comply with the criterion. Such an approach would likely render noncompliant many State programs that complied with nearly identical language under TEA-21.
National Interlock Systems, Inc. and LifeSafer Interlock, Inc. asserted that the requirements of this criterion conflict with those of the grant program the agency administers under 23 U.S.C. 164. The Section 410 program requires the State to apply an administrative license sanction to an offender as a result of BAC test refusals or failures. The Section 164 program requires the State to suspend the license of an individual for multiple impaired driving convictions. Because these programs apply to different classes of offenders, there is no conflict that would require a State to trade compliance in one grant program for another. The administrative license sanctions of the Section 410 program will apply up to the point the individual is convicted of impaired driving. The term “repeat offender” that appears in each grant program has been
The agency has made two revisions to this criterion. First, based on the discussion under the High-Risk Drivers Program (see Section V.B.4), the agency has revised the rule to remove the requirement that ignition interlocks must be installed in all vehicles owned and all vehicles operated by the offender, because similar statutory language applies to this criterion. The State is required instead to issue a restricted license that limits the offender to operating only interlocked vehicles. Second, the agency has revised the criterion to allow an offender to drive to an interlock service facility as a condition of the restricted license.
To qualify for a grant based on this criterion, SAFETEA-LU requires a State to have:
A program under which a significant portion of the fines or surcharges collected from individuals who are fined for operating a motor vehicle while under the influence of alcohol are returned to communities for comprehensive programs for the prevention of impaired driving.
The agency's proposal provides that a State may qualify for a grant based on this criterion if it returns at least 90 percent of the fines or surcharges collected to communities for comprehensive impaired driving programs.
GHSA and the Joint State Commenters objected to this requirement. The Joint State Commenters believed that returning 50 percent should be considered a significant amount and the agency should revise the regulation accordingly. GHSA stated that the intent of the requirement is to encourage the development of self-sustaining programs and not to dissuade States from compliance because requirements are set too high. GHSA recommended that the agency significantly lower the level required for a qualifying program or, alternatively, that it continue the approach taken under the predecessor Section 410 program.
As the agency explained in the NPRM, the predecessor Section 410 program required that a State return the “actual” fines or surcharges collected in order to achieve compliance. That approach required 100 percent of the amounts collected to be returned to communities for comprehensive programs. The agency's proposal under SAFETEA-LU is more generous, allowing a State to divert 10 percent in order to cover planning and administration costs. We do not believe that additional lowering of the amount returned would encourage more programs to become self-sustaining. It simply would allow more programs to be determined compliant that return less fines or surcharges. Programs that do not return collected amounts to the collecting communities are not self-sustaining. The agency declines to change this requirement.
GHSA's assertion that the agency “does not fully support this statutory requirement” is inaccurate. In support of this assertion, GHSA points to the agency's statement in the preamble to the NPRM that some States may not be able to meet the requirement, but that would not necessarily preclude a State from receiving a grant. This statement simply acknowledges that these States may seek to achieve compliance using other criteria. The context for this statement, as noted in the NPRM, is that some States are prohibited either by their Constitution or by State law from having dedicated non-discretionary uses of fines and penalties. With these legal limitations in place, regardless of the percentage selected, a State would be unable to comply with the criterion, but is not precluded from seeking to comply with other criteria.
The agency wishes to make clear that, under the proposal, States may qualify by returning at least 90 percent of the fines or at least 90 percent of surcharges collected from impaired drivers. Compliance does not require that a State base the amount returned on the total of all fines and surcharges levied against an impaired driver. States may establish surcharges in law and return at least 90 percent of the surcharge amount collected in order to comply with the criterion, regardless of other fines or penalties that may apply to an offender.
The agency received one comment concerning the separate grants available to high fatality rate States. Advocates commented that States in the high fatality rate category should not automatically receive 15 percent of the total amount available each year under the Section 410 program. Advocates further stated that the agency should use its discretion to award less to States that have done a poor job of reducing the impaired driving fatality rate.
SAFETEA-LU provides high fatality rate States with a limited amount of funding to be used to address impaired driving issues. These grants are distinct from the basic incentive funding provided under Section 410 and subject to certain specific requirements. At least 50 percent of the funding must be used to conduct Statewide law enforcement aimed at impaired driving. Additionally, the State must submit and the agency must approve a plan detailing proposed grant expenditures before any funds are provided. To the extent that Advocates' comment suggests that the 15 percent level is too high for States with high fatality rates, we disagree. Rather, the important point is that the funds be used effectively to improve the statistics in these States. The agency intends to review carefully the plans submitted by high fatality rate States to ensure the sound expenditure of funds to address the fatality problems in the State. Funding for these States will be subject to all applicable statutory restrictions. We have restated in the regulation the statutory restriction that no one State is to receive more than 30 percent of the total amount provided for high fatality rate States. Just as with the other grants under this program, the agency will monitor the use of the funds to ensure appropriate use.
The agency received two comments regarding the availability of FARS data to determine high and low fatality rate State status. Minnesota stated that any delay in the publishing of FARS data would create a disincentive for States to seek grants based on performance. GHSA commented that late publication of FARS data would preclude States from receiving performance grants. Both commenters urged the agency to revert to prior year FARS data should there be any delay. Eligibility for performance grants is determined by the most recent final FARS data available at the time of the award. The statutory language does not permit the agency to use older data should more current data become available before award. The agency intends to make the final FARS data available in early June and there is no reason to indicate otherwise at this time. If there is a delay in publicizing particular data, performance grants would not be jeopardized. These grants are determined using the most recently available data at the time of award and would remain available to all qualifying States.
The agency received one comment regarding the general administration of the grant program. GHSA objected to the requirement that States submit applications in August for grants in the same fiscal year, stating that such an approach is contrary to the intent of the consolidated application process required in statute and will interfere with State planning processes. The agency believes that setting the
We will continue to work toward the goal of consolidating the agency's grant opportunities into one application. However, under the Section 410 program, an early application deadline is not currently feasible and the agency is continuing the August deadline for applications established under TEA-21.
We received no other comments regarding grant administration issues. Therefore, those provisions of the agency's proposal are adopted without change.
This final rule implements changes to the grant program under 23 U.S.C. 410 as a result of amendments made by Section 2007 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU) (Pub. L. 109-59).
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to OMB review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) 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;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action is also not considered significant under the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979).
For the following reasons, NHTSA concludes that this final rule will not have any quantifiable cost effect. The rulemaking action has no impact on the total amount of grant funds distributed and thus no impact on the national economy. All grant funds provided under Section 410 will be distributed each fiscal year among qualifying States (regardless of the number of States that qualify), using a statutorily-specified formula. The final rule does not alter this approach.
The rulemaking action also does not affect amounts over the significance threshold of $100 million each year. The final rule sets forth application procedures and showings to be made to be eligible for a grant. Under the statute, low fatality rate States will receive grants by direct operation of the statute without the need to formally submit a grant application. The agency estimates that these grants to low fatality rate States will account for more than 35 percent of the Section 410 funding provided annually under SAFETEA-LU. The funds to be distributed under the application procedures provided for in the final rule will therefore be well below the annual threshold of $100 million.
Because the economic effects of this final rule are so minimal, no further regulatory evaluation is necessary.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effects of this proposal under the Regulatory Flexibility Act. States are the recipients of funds awarded under the Section 410 program and they are not considered to be small entities under the Regulatory Flexibility Act. Therefore, I certify that this rulemaking action will not have a significant economic impact on a substantial number of small entities.
Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999), requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local governments in the process of developing the proposed regulation. The agency also may not issue a regulation with Federalism implications that preempts a State law without consulting with State and local officials.
The agency has analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132 and has determined that the final rule does not have sufficient Federalism implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. Moreover, the final rule will not preempt any State law or regulation or affect the ability of States to discharge traditional State government functions.
This final rule does not have any preemptive or retroactive effect. This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive
There are reporting requirements contained in the final rule that are considered to be information collection requirements, as that term is defined by the Office of Management and Budget (OMB) in 5 CFR Part 1320. Accordingly, these requirements have been submitted previously to and approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 3501,
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with a base year of 1995 (about $118 million in 2004 dollars)). This rulemaking action does not meet the definition of a Federal mandate, because the resulting annual State expenditures will not exceed the $100 million threshold. The program is voluntary and States that choose to apply and qualify will receive grant funds.
NHTSA has reviewed this rulemaking action for the purposes of the National Environmental Policy Act (42 U.S.C. 4321,
The agency has analyzed this rulemaking action under Executive Order 13175, and has determined that the final rule will not have a substantial direct effect on one or more Indian tribes, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Therefore, a tribal summary impact statement is not required.
Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
If you have any comments about the Plain Language implications of this final rule, please address them to the person listed under the
The Department of Transportation assigns a regulation identifier number (RIN) 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. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Alcohol abuse, Drug abuse, Grant programs—transportation, Highway safety, Reporting and recordkeeping requirements.
23 U.S.C. 410; delegation of authority at 49 CFR 1.50.
(f)
(g)
(a)
(1) Meet the requirements of § 1313.5 or § 1313.7 concerning alcohol-related fatalities, as determined by the agency, and submit written certifications signed by the Governor's Representative for Highway Safety that it will—
(i) Use the funds awarded under 23 U.S.C. 410 only for the implementation and enforcement of alcohol-impaired driving prevention programs in § 1313.6 and other associated costs permitted by statute;
(ii) Administer the funds in accordance with 49 CFR part 18 and OMB Circular A-87; and
(iii) Maintain its aggregate expenditures from all other sources for its alcohol-impaired driving prevention programs at or above the average level of such expenditures in fiscal years
(2) By August 1, submit an application to the appropriate NHTSA Regional Office identifying the criteria that it meets under § 1313.6 and including the certifications in paragraph (a)(1)(i) through (a)(1)(iii) of this section and the additional certification that it has an alcohol-impaired driving prevention program that meets the requirements of 23 U.S.C. 410 and 23 CFR part 1313.
(b)
(2) Until all Section 410 grant funds are expended, the State must document how it intends to use the funds in the Highway Safety Plan it submits pursuant to 23 U.S.C. 402 (or in an amendment to that plan) and detail the program activities accomplished in the Annual Report it submits for its highway safety program pursuant to 23 CFR 1200.33.
(c)
(1) The amount available for grants under § 1313.5 or § 1313.6 shall be determined based on the total number of eligible States for these grants and after deduction of the amount necessary to fund grants under § 1313.7.
(2) The amount available for grants under § 1313.7 shall not exceed 15 percent of the total amount made available to States under 23 U.S.C. 410 for the fiscal year, with no State receiving more than 30 percent of this amount.
(3) In the first or second fiscal years a State receives a grant under this part, it shall be reimbursed for up to 75 percent of the cost of its alcohol-impaired driving prevention program adopted pursuant to 23 U.S.C. 410.
(4) In the third and fourth fiscal years a State receives a grant under this part, it shall be reimbursed for up to 50 percent of the cost of its alcohol-impaired driving prevention program adopted pursuant to 23 U.S.C. 410.
To qualify for a grant as a low fatality rate State, the State shall have an alcohol related fatality rate of 0.5 or less per 100,000,000 vehicle miles traveled (VMT) as of the date of the grant, as determined by NHTSA using the most recently available final FARS data. The agency plans to make this information available to States by June 1 of each fiscal year.
To qualify for a grant as a programmatic State, a State must adopt and demonstrate compliance with at least three of the following criteria in FY 2006, at least four of the following criteria in FY 2007, and at least five of the following criteria in FY 2008 and FY 2009:
(a)
(i) State participation in the annual National impaired driving law enforcement campaign organized by NHTSA;
(ii) Additional high visibility law enforcement campaigns within the State conducted on a quarterly basis at high-risk times throughout the year; and
(iii) Use of sobriety checkpoints and/or saturation patrols at high-risk locations throughout the State, conducted in a highly visible manner and supported by publicity.
(2)
(ii)
(iii)
(3)
(A) State Police and local law enforcement agencies collectively serving at least 50 percent of the State's population or serving geographic subdivisions that account for at least 50 percent of the State's alcohol-related fatalities will participate in the State's high visibility impaired driving law enforcement program;
(B) Each participating law enforcement agency will conduct checkpoints and/or saturation patrols on at least four nights during the annual National impaired driving campaign organized by NHTSA and will conduct checkpoints and/or saturation patrols on at least four occasions throughout the remainder of the year;
(C) The State will coordinate law enforcement activities throughout the State to maximize the frequency and visibility of law enforcement activities at high-risk locations Statewide; and
(D) Paid and/or earned media will publicize law enforcement activities before, during and after they take place, both during the National campaign and on a sustained basis at high risk times throughout the year.
(ii) To demonstrate compliance in subsequent fiscal years, the State shall submit information documenting that the prior year's plan was effectively implemented and an updated plan for conducting a current high visibility impaired driving law enforcement program containing the elements specified in § 1313.6(a)(3)(i) and (a)(3)(iii), except that the level of law enforcement agency participation must reach at least 55 percent of the State's population or cover geographic subdivisions that account for at least 55 percent of the State's alcohol-related fatalities in the second year the State receives a grant based on this criterion, 60 percent of either of these two measures in the third year and 65 percent of either of these two measures in the fourth year.
(iii) For the purposes of paragraph (a) of this section, a comprehensive plan shall include:
(A) Guidelines, policies or procedures governing the Statewide enforcement program;
(B) Approximate dates and locations of planned law enforcement activities;
(C) A list of law enforcement agencies expected to participate; and
(D) A paid media buy plan, if the State buys media, and a description of anticipated earned media activities before, during and after planned enforcement efforts;
(b)
(i) A statewide outreach effort that reduces the use of diversion programs through education of prosecutors and
(A) State impaired driving statutes and applicable case law;
(B) Searches, seizures and arrests;
(C) Admissibility of evidence;
(D) Biochemical and physiological information; and
(E) Sentencing of impaired drivers; or
(ii) A statewide outreach effort that provides information to prosecutors and court professionals on innovative approaches to the prosecution and adjudication of impaired driving cases and includes the following topics—
(A) Alcohol assessments and treatment;
(B) Vehicle sanctioning;
(C) Electronic monitoring and home detention; and
(D) DWI courts; or
(iii) A Statewide tracking system that monitors the adjudication of impaired driving cases that—
(A) Covers a majority of the judicial jurisdictions in the State; and
(B) Collects data on original criminal and traffic-related charge(s) against a defendant, the final charge(s) brought by a prosecutor, and the disposition of the charge(s) or sentence provided.
(2)
(ii)
(iii)
(3)
(A) A course syllabus for a Statewide outreach and education program and a certification that its program is provided on an annual basis (a minimum of once a year and a minimum of eight hours of training) and covers the required topics in either § 1313.6(b)(1)(i) or (b)(1)(ii); or
(B) Information indicating its use of a State sanctioned Traffic Safety Resource Prosecutor and State Judicial Educator and a list of impaired-driving-related educational programs offered by each position; or
(C) The names and locations of the judicial jurisdictions covered by a Statewide tracking system and the type of information collected.
(ii) To demonstrate compliance in a subsequent fiscal year for an outreach and education program, the State must certify that the outreach and education program continues to be conducted on an annual basis and covers the required topics in either § 1313.6(b)(1)(i) or (b)(1)(ii) and provide a new course syllabus if the program has been altered from the previous year.
(iii) To demonstrate compliance in a subsequent fiscal year for use of a Traffic Safety Resource Prosecutor and State Judicial Educator, the State must certify the continued existence of these positions and provide updated information if there has been a change in the status of these positions or the list of impaired-driving-related educational programs offered.
(iv) To demonstrate compliance in a subsequent fiscal year for use of a Statewide tracking system that monitors the adjudication of impaired driving cases, the State must provide an updated list of the courts involved and updated data collection information if there has been a change from the previous year.
(c)
(i) The State submits a plan identifying approaches that will be taken during the fiscal year to achieve a BAC testing increase specified under § 1313.6(c)(1)(iii);
(ii) The State's law provides for mandatory BAC testing for drivers involved in fatal motor vehicle crashes and the State submits a plan in accordance with § 1313.6(c)(1)(i); or
(iii) The State's percentage of BAC testing among drivers involved in fatal motor vehicle crashes is greater than the previous year by at least 1 percentage point (1.0, as rounded to the first decimal place), as determined by the agency. The most recently available final FARS data as of the date of the grant will be used to determine a State's BAC testing rate.
(2)
(3)
(i) In FY 2006 and FY 2007, submit a plan, as required in § 1313.6(c)(1)(i), that describes approaches that are to be implemented during the fiscal year that will result in an increase in the State's BAC testing rate. The plan must include information on how each approach will be implemented and the expected outcome from implementation, and the plan must be updated each subsequent year it is submitted;
(ii) In FY 2008 and FY 2009, submit a plan, as required in § 1313.6(c)(1)(i), that describes approaches that are to be implemented during the fiscal year that will result in an increase in the State's BAC testing rate and submit a copy of its law as described in § 1313.6(c)(1)(ii). The plan must include information on how each approach will be implemented and the expected outcome from implementation, and the plan must be updated each subsequent year it is submitted; or
(iii) In any fiscal year, submit a statement that it intends to apply on the basis of an increase from the previous year in the percentage of BAC testing among drivers involved in fatal motor vehicle crashes in the State, in accordance with § 1313.6(c)(1)(iii) (the agency will determine compliance with this requirement).
(4)
(d)
(i) In the case of an individual who, in any five-year period beginning after June 9, 1998, is convicted of operating a motor vehicle with a BAC of 0.15 or more—
(A) A suspension of all driving privileges for a period of not less than one year, or not less than 45 days followed immediately by a period of not less than 320 days of a restricted, provisional or conditional license, if such license restricts the individual to operating only vehicles equipped with an ignition interlock. A restricted, provisional or conditional license may be issued only to permit the offender to operate a motor vehicle to and from
(B) A mandatory assessment by a certified substance abuse official, with possible referral to counseling if determined appropriate.
(2)
(ii) To demonstrate compliance in subsequent fiscal years, a State shall submit a copy of any changes to the State's law or, if there have been no changes, the State shall submit a statement certifying that there have been no changes in the State's law.
(e)
(i) An effective inpatient and outpatient alcohol rehabilitation system for repeat offenders, under which—
(A) A State enacts and enforces a law that provides for mandatory assessment of a repeat offender by a certified substance abuse official and requires referral to appropriate treatment as determined by the assessment; and
(B) A State monitors the treatment progress of repeat offenders through a Statewide tracking system; or
(ii) A DWI Court program, under which a State refers impaired driving cases involving high-risk offenders to a State-sanctioned DWI Court for adjudication.
(2)
(ii)
(iii)
(3)
(A) A copy of its law that provides for mandatory assessment and referral to treatment and a copy of its tracking system for monitoring the treatment of repeat offenders; or
(B) A certification that at least one State-sanctioned DWI court is operating in the State, which includes the name and location of the court.
(ii) To demonstrate compliance in subsequent fiscal years, the State shall submit:
(A) Information concerning any changes to the alcohol rehabilitation program that was previously approved by the agency, or if there have been no changes, a statement certifying that there have been no changes to the materials previously submitted; or
(B) A certification, in the second year, that at least two State-sanctioned DWI courts are operating in the State, in the third year, that at least three State-sanctioned DWI courts are operating in the State, and in the fourth year, that at least four State-sanctioned DWI courts are operating in the State, with each certification including the names and locations of all of the courts; or a certification, in any year, that at least four State-sanctioned DWI courts are operating in the State, which includes the names and locations of all of the courts.
(f)
(i) The issuance of a tamper resistant driver's license to persons under age 21 that is easily distinguishable in appearance from a driver's license issued to persons 21 years of age and older;
(ii) A program, conducted by a nonprofit or public organization that provides training to alcoholic beverage retailers and servers concerning the clinical effects of alcohol, methods of preventing second-party sales of alcohol, recognizing signs of intoxication, methods to prevent underage drinking, and relevant laws that apply to retailers and servers and that provides procedures to ensure program attendance by appropriate personnel of alcoholic beverage retailers and servers;
(iii) A law that creates a blood alcohol content limit of no greater than 0.02 percent for drivers under age 21;
(iv) A plan that focuses on underage drivers' access to alcohol by those under age 21 and the enforcement of applicable State law; and
(v) A strategy for communication to support enforcement designed to reach those under age 21 and their parents or other adults and that includes a media campaign.
(2)
(3)
(ii) To demonstrate compliance in subsequent fiscal years, States need only submit information documenting any changes to the State's driver's licenses or underage driving prevention program, or a certification stating there have been no changes since the State's previous year submission.
(g)
(i) In the case of an individual who, in any five-year period beginning after June 9, 1998, is determined on the basis of a chemical test to have been operating a motor vehicle while under the influence of alcohol or is determined to have refused to submit to such a test as proposed by a law enforcement officer, the State entity responsible for administering driver's licenses, upon receipt of the report of the law enforcement officer, shall—
(A) For a first offender, suspend all driving privileges for a period of not less than 90 days, or not less than 15 days followed immediately by a period of not less than 75 days of a restricted, provisional or conditional license, if such license restricts the offender to operating only vehicles equipped with an ignition interlock. A restricted, provisional or conditional license may be issued only to permit the offender to operate a motor vehicle to and from employment, school, an alcohol treatment program or an interlock service facility; and
(B) For a repeat offender, suspend or revoke all driving privileges for a period of not less than one year, or not less than 45 days followed immediately by a period of not less than 320 days of a restricted, provisional or conditional license, if such license restricts the offender to operating only vehicles equipped with an ignition interlock. A restricted, provisional or conditional license may be issued only to permit the offender to operate a motor vehicle to and from employment, school, an alcohol treatment program or an interlock service facility; and
(ii) The suspension or revocation shall take effect not later than 30 days after the day on which the individual refused to submit to a chemical test or received notice of having been determined to be operating a motor vehicle while under the influence of alcohol, in accordance with the procedures of the State.
(2)
(ii)
(3)
(ii) To demonstrate compliance in subsequent fiscal years, a Law State shall submit a copy of any changes to the State's law, regulation or binding policy directive or, if there have been no changes, a statement certifying that there have been no changes to the State's laws, regulations or binding policy directives.
(iii) For purposes of paragraph (g) of this section, Law State means a State that has a law, regulation or binding policy directive implementing or interpreting an existing law or regulation that provides for each element of this criterion.
(4)
(ii) To demonstrate compliance in subsequent fiscal years, a Data State shall submit, in addition to the information identified in § 1313.6(g)(3)(ii), data showing that the State substantially complies with each element of this criterion not specifically provided for in the State's law, regulation or binding policy directive.
(iii) The State can provide the necessary data based on a representative sample, on the average number of days it took to suspend or revoke a driver's license and on the average lengths of suspension or revocation periods, except that data on the average lengths of suspension or revocation periods must not include license suspension periods that exceed the terms actually prescribed by the State, and must reflect terms only to the extent that they are actually completed.
(iv) For purposes of paragraph (g) of this section,
(h)
(2)
(A) Regularly conducted, peak-hour traffic enforcement efforts directed at impaired driving;
(B) Prosecution, adjudication and sanctioning resources that are adequate to handle increased levels of arrests for operating a motor vehicle while under the influence of alcohol;
(C) Programs directed at prevention other than enforcement and adjudication activities, such as school, worksite or community education; server training; or treatment programs;
(D) A public information program designed to make the public aware of the problem of impaired driving through paid and earned media and of the State's efforts to address it.
(ii)
(iii)
(3)
(A) A copy of the law, regulation or binding policy directive implementing or interpreting the law or regulation that provides—
(
(
(B) Statewide data (or a representative sample) showing—
(
(
(
(ii) To demonstrate compliance in subsequent fiscal years, the State shall submit, in addition to the data identified in paragraph (h)(3)(i)(B) of this section, a copy of any changes to the State's law, regulation or binding policy directive or, if there have been no changes, a statement certifying that there have been no changes in the State's laws, regulations or binding policy directives.
To qualify for a grant as a high fatality rate State, the State shall be among the ten States that have the highest alcohol-related fatality rates, as determined by the agency using the most recently available final FARS data as of the date of the grant. The agency plans to make this information available to States by June 1 of each fiscal year.
(1)
In each Federal fiscal year, grants will be made to eligible States that satisfy the requirements of § 1313.4(a), subject to the requirements of § 1313.4(b) and (c). The release of grant funds under this part shall be subject to the availability of funding for that fiscal year.
A tamper resistant driver's license or permit is a driver's license or permit that has one or more of the following security features:
(1) Ghost image.
(2) Ghost graphic.
(3) Hologram.
(4) Optical variable device.
(5) Microline printing.
(6) State seal or a signature which overlaps the individual's photograph or information.
(7) Security laminate.
(8) Background containing color, pattern, line or design.
(9) Rainbow printing.
(10) Guilloche pattern or design.
(11) Opacity mark.
(12) Out of gamut colors (i.e., pastel print).
(13) Optical variable ultra-high-resolution lines.
(14) Block graphics.
(15) Security fonts and graphics with known hidden flaws.
(16) Card stock, layer with colors.
(17) Micro-graphics.
(18) Retroreflective security logos.
(19) Machine readable technologies such as magnetic strips, a 1D bar code or a 2D bar code.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Woodrow Wilson Memorial (I-95) Bridge, mile 103.8, across the Potomac River between Alexandria, Virginia and Oxon Hill, Maryland. This deviation allows the drawbridge to remain closed-to-navigation from 8 p.m. on June 9, 2006, until 5 a.m. on June 12, 2006; and from 8 p.m. on July 14, 2006, until 5 a.m. on July 17, 2006, to facilitate the Outer and Inner Loop shifts of vehicular traffic for the new Woodrow Wilson Bridge construction project.
This deviation is effective from 8 p.m. on June 9, 2006, until 5 a.m. on July 17, 2006.
Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is (757) 398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation.
Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at (757) 398-6222.
The existing Woodrow Wilson Memorial (I-95) Bridge has a vertical clearance in the closed position to vessel of 50 feet at mean high water and 52 feet at mean low water.
Coordinators for the construction of the new Woodrow Wilson Bridge Project requested a temporary deviation from the current operating regulation for the existing Woodrow Wilson Memorial (I-95) Bridge set out in 33 CFR 117.255(a). The coordinators requested the temporary deviation to close the existing drawbridge to navigation to accommodate the shifting of vehicular traffic on the Outer and Inner Loops of the Capital Beltway/I-95 North. The Outer and Inner Loops of the Capital Beltway/I-95 North will be reduced from three lanes to only one lane between the Route 1 Interchange and the Wilson Bridge. Project traffic engineers anticipate traffic impacts to peak on Saturday afternoon, with 10 to 15 mile backups and delays of 60 to 90 minutes. Maintaining the existing drawbridge in the closed-to-navigation position from 8 p.m. on Friday, June 9, 2006, through 5 a.m. on Monday, June 12, 2006 and from 8 p.m. on Friday, July 14, 2006, through 5 a.m. on Monday, July 17, 2006, will help reduce the impact to vehicular traffic during these phases of new bridge construction.
The Coast Guard has informed the known users of the waterway of the closure period for the bridge so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action would require holders of design approvals to make available to operators damage tolerance data for repairs and alterations to fatigue critical airplane structure. This proposal is needed to support operator compliance with the requirement to include damage tolerance inspections and procedures in their maintenance programs, and to enable operators to take into account the possible adverse effects of repairs and alterations on fatigue critical structure. The intended effect of this proposal is to ensure the continued airworthiness of fatigue critical airplane structure by requiring design approval holders to support operator compliance with specified damage tolerance requirements.
Send your comments by July 20, 2006.
You may send comments [Identified by Docket Number FAA-2005-21693] using any of the following methods:
• 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 20590-0003.
• Fax: 1-202-493-2251.
• 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.
For more information on the rulemaking process, see the
Greg Schneider, ANM-115, Airframe and Cabin Safety, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, Washington 98055-4056, telephone: (425-227-2116); facsimile (425-227-1232), e-mail
The FAA invites interested persons to participate in this rulemaking by sending written comments, data, or views. We also invite comments about the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the
Before acting on this proposal, we will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal because of the comments we receive.
If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.
Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the
Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket Management System (DMS) Web page (
(2) Visiting the FAA's Regulations and Policies Web page at
(3) Accessing the Government Printing Office's Web page at
You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.
The FAA's authority to issue rules about aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing—
• Minimum standards required in the interest of safety for the design and performance of aircraft;
• Regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and
• Regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce.
This regulation is within the scope of that authority because it requires DAHs to support compliance with damage tolerance requirements that are necessary for continued airworthiness of transport category airplanes.
Fatigue cracking has been a major aviation safety concern for many years. Unless detected and repaired, fatigue cracks can grow to the point of catastrophic failure. Since 1978 the FAA has required new types of airplanes to meet damage tolerance
While these programs have been effective, industry has not carried out DT methods comprehensively. In particular, while these programs apply to the airplane “baseline” structure (the airplane structure as originally manufactured), they often do not apply to repairs and alterations. This is important because airplanes are subject to many repairs and alterations throughout their operational lives. If fatigue cracking occurs in a repaired or altered area, the results can be just as catastrophic as if it occurs in the baseline structure.
The FAA adopted the Aging Airplane Safety final rule (AASFR)
With the AASFR, we now have in place the regulatory means to provide for comprehensive implementation of DT methods on all large transport airplanes used by air carriers. To carry out these requirements fully, however, we find it necessary to place corresponding requirements on the holders of FAA design approvals for these airplanes. Otherwise, the operators may not be able to obtain the data and documents they need to comply with the AASFR. As the owners of the data for these airplanes, the design approval holders
Specifically, today's proposal would require DAHs to develop and make available the following four types of documents to operators, which we describe in more detail in the discussion section of this proposal:
(1) Lists of fatigue critical structure (to aid operators in identifying repairs and
(2) Damage tolerance inspections to provide operators with the necessary inspection times and methods for the following—
• Repair data published by type certificate (TC) holders;
• TC holder's future repair data not published for general use;
• Repair data developed by supplemental type certificate (STC) holders; and
• Alteration data developed by TC and STC holders.
(3) Damage tolerance evaluation guidelines for all other repairs (to enable operators to develop the necessary damage tolerance inspections).
(4) Implementation schedules (to define the necessary timing for performing damage tolerance evaluations and developing damage tolerance inspections, and for incorporating the DT data into their maintenance programs).
This proposed rule transfers the responsibility of developing DT based data from operators to DAHs and, therefore, has minimal to no costs. The aviation industry as a whole would also benefit because DAHs could amortize their development costs for DT data over a larger fleet.
Structural fatigue cracking of aging airplanes has been a major aviation safety concern for many years. If not detected and repaired, fatigue cracking can eventually lead to catastrophic structural failure and loss of the airplane. Since the late 1970s, the FAA has issued numerous airworthiness directives
The airplanes affected by this rulemaking are normally operated by air carriers (airlines). Domestic air carriers operate these airplanes under the regulations contained in 14 CFR part 121. Foreign airlines operating United States registered airplanes operate under 14 CFR part 129.
Before publishing the final rule, we published an interim final rule
We informed the public of our intent to propose DAH requirements in the July 30, 2004 publication of the “Fuel Tank Safety Compliance Extension (Final rule) and Aging Airplane Program Update (Request for comments)''
On July 12, 2005, the FAA issued a Policy Statement
Throughout the history of the transport airplane airworthiness standards, various technical approaches have been employed to address structural fatigue. The original Civil Aviation Regulations (CAR) used a “fatigue strength” approach, which was based on achieving a design where fatigue cracking was not likely to occur within the operational life of the airplane.
One of the first significant changes in the standard for airplane structure occurred in March 1956 when the fatigue evaluation requirements contained in CAR 4b.270 were revised to add “fail-safe strength” as an option to the “fatigue strength” approach. This was largely motivated by the realization that precluding the occurrence of fatigue cracking might not always be possible and, therefore, as an option, the
The fail-safe approach assumed that cracking could occur and was based on maintaining a specified minimum strength after a “fatigue failure or obvious partial failure” had occurred. The success of the fail-safe approach was dependent both on the structure retaining the specified minimum strength with the fatigue damage present and on the damage being found during normal maintenance. As applied, the fail-safe approach emphasized structural redundancy, as opposed to fatigue resistance, while detectability of damage through inspections was generally assumed and not evaluated. The fail-safe option was the predominant approach chosen for the majority of large transport category airplanes certified in the 1960s and 1970s.
As these airplanes accumulated more and more usage, however, there was increasing concern about the ability of the airframe to meet long-term fail-safe requirements. The FAA recognized that the capability of a redundant design to survive a “fatigue failure or obvious partial failure” of an element could decrease with time since all elements could be subject to fatigue and would eventually crack. Additionally, we realized in many cases failures that were assumed to be obvious during certification were not readily apparent in practice. These concerns, coupled with findings during service, resulted in the decision to remove the fail-safe approach for structures from the airworthiness standards and adopt damage tolerance as the preferred approach for addressing fatigue. This was accomplished in 1978 with Amendment 25-45 to 14 CFR 25.571.
Damage tolerance (DT) as applied to civil aircraft is a method used to evaluate the crack growth and residual strength characteristics of a structure. Based on the results, inspections or other procedures are established, as necessary, to prevent catastrophic failures due to fatigue. Damage tolerance can and has been applied to existing designs as well as to new designs.
The first step in applying DT methods is to identify fatigue critical structure. This generally includes all structure commonly referred to as “primary structure” such as the wing, empennage, control surfaces and their systems, the fuselage, engine mounting, landing gear and their related primary attachments. Once identified, this structure is subject to an evaluation
• Site—the potential areas where fatigue cracks could start;
• Scenario—how the cracking will proceed;
• Detectable crack size—what can be found reliably (probability of detection) with the inspection method planned;
• Critical crack size—the crack size that reduces the strength of the structure down to the minimum level that we want to assure with the assumed crack(s) present; and
• Duration—the time it will take the crack(s) to grow from “detectable crack size” to “critical crack size.”
• Inspection threshold—the time in airplane hours/cycles when inspections are initiated to detect a crack.
Once these elements are defined and quantified, decisions can be made about required maintenance actions. In many cases an in-service directed inspection for fatigue cracking may be reliable and practical. However, there may be cases where the results of the evaluation show that inspections are neither reliable nor practical. When this is the case, replacement or modification of the structure may be the best solution.
Under 14 CFR 21.17, the version of the airworthiness standards that applies to a type certificate (TC) is the version in effect on the date of application for the TC. For any given TC, this is referred to as the “certification basis” of the airplane. Since these standards have been revised several times, different types of airplanes may have complied with different versions of these standards.
The current DT requirements of 14 CFR 25.571 include—
• Evaluation of the airplane structure to identify structure that is susceptible to fatigue cracking;
• Performance of a damage tolerance evaluation of the fatigue critical structure; and,
• Establishment of necessary inspections and procedures.
On May 6, 1981, we issued Advisory Circular (AC) 91-56 to provide guidance to TC holders on the development of Supplemental Inspection Documents (SIDs) for pre-Amendment 25-45 airplanes. Type certificate holders voluntarily performed damage tolerance evaluations of the baseline structure
The SIDs did not provide a comprehensive means to ensure repairs and alterations were evaluated for DT. As a result, the FAA and industry recognized that coverage for these airplanes relative to potential fatigue of repairs and alterations was incomplete. In part to address this problem, the B-727
Amendment 25-45 amended § 25.571 to require DT and fatigue evaluation of structure for transport airplane type designs.
The fatigue strength approach was retained as a default option to be used only if the DT approach was shown to be impractical for certain areas of the airplane (
• Bombardier model CL-600;
• SAAB 340; and
• Boeing models 757 and 767 airplanes.
Amendment 25-54 revised § 25.571 and § 25.1529 to mandate that the damage tolerance inspections and procedures required by § 25.571 be included in the newly created Airworthiness Limitations section of the Instructions for Continued Airworthiness (ICA) required by § 25.1529. Section 25.1529 requires the applicant for a TC to prepare ICA according to appendix H to part 25.
Airplanes certificated to Amendment 25-54 or later requirements include—
• Airbus models A300-600, A310, A318, A319, A320, A321;
• Boeing models B717, B737-900, 777, MD-11, MD-90;
• Empresa Brasiliera de Aeronautica (Embraer) models EMB 120, 135, 145, 170;
• Aerospatiale ATR 42/72;
• BAE (Operations) Limited AVRO/BAE 146;
• Construcciones Aeronautics, S.A. CN 235;
• Bombardier DHC 8;
• BAE (Operations) Limited JTSRM 4101;
• SAAB Aircraft, A.B. SAAB 340; and
• AvCraft Aerospace GMBH DO 328.
In 1998, we again revised the DT requirements of § 25.571 in Amendment 25-96 to prescribe how inspection thresholds should be established for certain types of structure.
On April 25, 2000, the FAA published a final rule entitled “Repair Assessment for Pressurized Fuselages.”
In accordance with 14 CFR 21.101, certain amended TCs and supplemental type certificates (STCs), whose original type certification basis did not require DT, may require damage tolerance inspections (Amendment 25-45 or later) for new or significantly modified structure.
For airplanes certified to comply with Amendment 25-45 or later amendments, the DT requirement applies to fatigue critical structure, which may include certain baseline structure, repairs, and alterations. Nevertheless, for repairs and alterations to this structure TC holders and others have not always complied with the requirement to develop DT data. Some of the circumstances that resulted in a shortfall of DT data for repairs and alterations are summarized below.
In some cases, TC holders' damage tolerance evaluations of baseline structure were not completed at the time of type certification. This was permitted because we recognized that the fatigue problems that inspections are intended to detect would not occur until the airplanes had operated for many years. However, because operators needed structural repair manuals
In many cases there are similarities between structural elements of pre-Amendment 25-45 and Amendment 25-45 and later airplanes. If SRM repairs for a pre-Amendment 25-45 airplane were applicable to the new airplane structure, in some cases the FAA approved them without consideration of the requirement for DT. Under bilateral aviation safety agreements,
Many airplanes that were certified to comply with the DT requirements of Amendment 25-45 or later contain repairs and alterations that have not been adequately evaluated for DT. Because some TC holders did not develop DT data for the baseline structure at the time of type certification (and in some cases for several years thereafter), in some cases repairs and alterations developed by them and published in service bulletins did not give adequate consideration to DT. For the same reason, STC applicants were unable to evaluate the effects of their alterations on the DT of the baseline structure. Designers of repairs had the same difficulty. In some cases, STC applicants and designers of alterations and repairs were unfamiliar with the requirements and methods for DT. Finally, in some cases, air carriers improperly classified repairs and alterations that affect fatigue critical structure as “minor” and damage tolerance evaluations were not conducted. This proposed rule would correct the shortfall of DT data as described in these three circumstances.
Table 1 below provides a summary of the regulatory requirements for DT based inspections and procedures that were in place before the adoption of the AASFR. The table addresses airplanes that are subject to the AASFR. It shows areas of the affected airplanes that are
In adopting the Aging Aircraft Safety Act (AASA) of 1991, Congress required the FAA to “prescribe regulations that ensure the continuing airworthiness of aging aircraft.”
These regulations apply to all fatigue critical structure, which includes the baseline structure of the airplane, repairs and alterations that affect fatigue critical baseline structure, and alterations that contain fatigue critical structure. Listed below are examples of alterations that are included.
• Passenger-to-Freighter Conversions.
• Operating Weight Increases.
• Re-engining and Hushkits.
• Winglets.
• Auxiliary Wing Tip Fuel Tanks.
• Auxiliary Fuel Tanks Installed in the Fuselage.
• External Door Installation in a Pressurized Fuselage.
The damage tolerance inspections and procedures required by the AASFR are based on the same methodology used to comply with 14 CFR 25.571, at Amendment 25-45 and later amendments. The AASFR, in effect, requires compliance with the DT airworthiness standard by all affected airplanes, regardless of original certification basis, past AD action, or other operating rules.
Without additional rulemaking, operators run the risk of not having the necessary DT data in time to support compliance with the supplemental inspection requirements of the AASFR, which has a final compliance date of December 20, 2010. DAHs may not voluntarily commit the resources needed to develop DT data within a time frame that would allow operators to revise programs as necessary to comply with the rule. We believe a regulatory approach that includes not just operational requirements, but corresponding DAH requirements, would result in a more uniform and timely response to the safety issues.
For pre-Amendment 25-45 airplanes, as stated in the preamble to the AASFR, the DT data contained in FAA-approved SIDs and RAG are an acceptable means of compliance with the AASFR for those structural areas addressed by the SIDs and RAG. Therefore, to support operator
• Existing repairs not addressed by RAG.
• Alterations, including those documented in TC holders' service bulletins and in STCs.
• New repairs, including those documented in TC holders' SRMs and service bulletins.
For Amendment 25-45 (and later) airplanes, to support operator compliance with the AASFR, DT data may need to be developed for existing and new repairs and alterations.
The FAA believes the proposed requirements are not a significant shift in the responsibilities of DAHs for the continued airworthiness of airplanes. Airplane operators always have the ultimate responsibility for maintaining their airplanes in a condition that allows for their continued safe operation. The DAH requirements would support this responsibility by making documents and data available to the operators that are necessary to meet their airworthiness obligation. Such actions include performing assessments, developing design changes, revising ICAs, and making available necessary documentation to affected persons. We believe this requirement is necessary to facilitate compliance by air carriers with operating rules. DAHs, in this proposal, would only be responsible for their repairs and alterations, and for the development of guidelines applicable only to their type design structure.
Several recent safety regulations necessitated action by air carriers and other operators but did not require DAHs to develop and provide the necessary data and documents to facilitate the operators' compliance. As noted earlier, on July 12, 2005, we issued policy PS-ANM110-7-12-2005, “Safety—A Shared Responsibility—New Direction for Addressing Airworthiness Issues for Transport Airplanes.” The policy states, in part, “Based on our evaluation of more effective regulatory approaches for certain types of safety initiatives and the comments received from the Aging Airplane Program Update (July 30, 2004), the FAA has concluded that we need to adopt a regulatory approach recognizing the shared responsibility between design approval holders (DAH) and operators. When we decide that general rulemaking is needed to address an airworthiness issue, and believe the safety objective can only be fully achieved if the DAHs provide operators with the necessary information in a timely manner, we will propose requirements for the affected DAHs to provide that information by a certain date.”
We believe the safety objectives contained in this proposal can only be reliably achieved and acceptable to the FAA if the DAHs provide the parts 121 and 129 operators with the DT data for repairs and alterations to fatigue critical structure. Our determination that DAH requirements are necessary to support the initiatives contained in this proposal is based on several factors:
• Developing DT data is complex. Operators do not have access to the necessary type design data needed for the timely and efficient development of the required DT data.
• FAA-approved DT data need to be available in a timely manner. Due to the complexity of these data, we need to ensure that the DAHs submit them for approval on schedule. This will allow the FAA Oversight Office having approval authority to ensure the data are acceptable, are available on time, and can be readily implemented by the affected operators. Additionally, accurate and timely information is necessary to ensure the operators are able to obtain the data in enough time to meet the December 20, 2010 compliance date of the AASFR.
• The proposals in this NPRM affect a large number of different types of transport category airplanes. Because the safety issues addressed by this proposal are common to many airplanes, we need to ensure that technical requirements are met consistently and the processes of compliance are consistent. This will ensure that the proposed safety enhancements are implemented in a standardized manner.
Based on the above reasons and the stated safety objectives of FAA policy PS-ANM110-7-12-2005, we are proposing to implement DAH requirements applicable to the development of DT data to support compliance to the AASFR with respect to repairs and alterations.
Operators are often dependent on action by a DAH before they can implement new safety rules. Ongoing difficulty reported by operators in attempting to meet these rules has convinced us that corresponding DAH responsibilities may be warranted under certain circumstances to enable operators to meet regulatory deadlines.
When DAHs fail to provide the required data in a timely manner, operators may be forced to incur the costs associated with obtaining the expertise to develop the data. Some examples of programs in which some DAHs did not develop and make available the necessary information in a timely manner include—
• Thrust reversers, where it took 10 years to develop some service information for AD-related items;
• Class D to Class C Cargo Conversions, where one holder of a TC did not develop the necessary alterations in time to support operator compliance and where several operators were unable to obtain timely technical support and alteration parts from holders of an STC;
• The Reinforced Flight Deck Door Program, where most operators had substantially less than the one-year compliance time originally anticipated because of delays in developing and certifying the new designs;
• Repair Assessment Rule, where an operator had to develop data for FAA approval to meet the rule's compliance date; and
• SRMs, where operators are still awaiting DAH action to ensure repairs are damage tolerant, even though the DAH committed to completing this activity by 1993. (In reference to the bulleted items ADA had this question: Did FAA also contribute in any way to these delays?
In addition, DAHs have committed in the past to providing data to the FAA to support the certification basis of an airplane. In some instances, the DAH has missed the due date given for this by several years.
We intend to require TC holders, manufacturers, and others to take actions when necessary to support the continued airworthiness and to improve the safety of transport category airplanes. We believe this regulation is necessary to facilitate compliance by air carriers with operating rules that require the use of new safety features.
To address this problem, we propose to amend subpart A of part 25 to expand its coverage and to add a new subpart I to establish requirements for certain design approval holders. As contemplated in “FAA Policy Statement: Safety—A Shared Responsibility—New Direction for Addressing Airworthiness Issues for Transport Airplanes” the FAA proposes to add provisions to a new subpart I requiring actions by DAHs that will allow operators to comply with our rules.
Part 25 currently sets airworthiness standards for the issuance of TCs and changes to those certificates for transport category airplanes. It does not list the specific responsibilities of manufacturers to ensure continued airworthiness of these airplanes once the certificate is issued. Therefore, we propose to revise § 25.1 by adding paragraph (c) to make clear that part 25 creates such responsibilities for holders of existing TCs and STCs for transport category airplanes and applicants for approval of design changes to those certificates.
This proposal would establish a new subpart I, Continued Airworthiness and Safety Improvements, where we would locate rules imposing ongoing responsibilities on DAHs. In the past, this type of requirement took the form of a Special Federal Aviation Regulation (SFAR). These regulations are difficult to locate because they are scattered throughout Title 14. Placing all these types of requirements in a single subpart of part 25, which contains the airworthiness standards for transport category airplanes, would provide ready access to critical rules.
To ensure the effectiveness of this change, we would add § 25.3 to require compliance to a new Subpart I by DAHs, which may require design changes and other actions by TC and STC holders.
In preliminary discussions with foreign aviation authorities, regarding harmonization of our airworthiness rules, they expressed concern about adopting parallel requirements in their counterparts to part 25. They suggested that it may be more appropriate to place them in part 21 or elsewhere. Therefore, we specifically request comments from the public, including foreign authorities, on the appropriate place for these airworthiness requirements for TC holders currently proposed in subpart I.
We reserve additional sections in this proposed subpart to include other future airworthiness requirements such as aging airplane rules, several of which are under development. Some of these proposals include similar language establishing the general airworthiness responsibilities of DAHs. Once any proposal establishing these broad responsibilities becomes a final rule, we will delete the duplicative requirements from the other proposals and retain only that language pertinent to any specific new safety regulations (such as fuel-tank flammability reduction).
For safety reasons, we are requiring that any application for a type design change not degrade the level of safety that this rule proposes to achieve. Currently, when reviewing an application for such a change, we employ the governing standards in part 21, specifically § 21.101. That section generally requires compliance with standards in effect on the date of application but contains exceptions that may allow applicants to show compliance with earlier standards. For example, if a change is not considered significant, the applicant may be allowed to show compliance with standards that applied to the original TC. With the adoption of subpart I rules, we must ensure that safety improvements that result from DAH compliance with these requirements are not undone by later modifications. Therefore, even when we determine under § 21.101 that applicants need not comply with the latest airworthiness standards, they will be required to demonstrate that the change would not degrade the level of safety provided by the TC holder's compliance with the subpart I requirements.
Based on public comments received on the interim final rule to the AASFR, as well as comments provided by the Air Transport Association (ATA) in a February 28, 2003 public meeting, the FAA concluded that compliance with the AASFR would require a DT assessment for a large number of repairs and alterations made to transport category airplanes. The ATA expressed concern that industry will not have the resources to handle a large portion of DT assessments. They said Boeing has indicated that there are about 3,100 U.S. registered airplanes for which they might have to provide support for DT assessments. The ATA also said that Boeing might be required to provide DT analysis for 142,600
The current practice of conducting evaluations of individual repairs will require an excessive amount of industry time and resources. This process would typically involve, for example, data collection for each repair, documentation of repair data, and submittal of documentation from operators to the DAH. The DAH would, at the request of an operator, review the repair data and determine if damage tolerance inspections would be required for the repair and any fatigue critical structure affected by the repair. This determination by the DAH can be a complex task, depending on the repair configurations, and the fatigue critical structure that it may affect. Therefore, to support operator compliance, DT guidance that provides a streamlined approach for assessing repairs will need to be made available.
The DAHs possess the requisite technical expertise, proprietary data, and procedures to develop the required DT guidance. While some air carriers have extensive engineering departments that may be able to develop the DT data required to comply with the AASFR, they would still be dependent on the TC holder to provide detail data for the fatigue critical structure to perform the evaluation. For smaller airlines that do not have extensive engineering capabilities, reliance on the TC holder is all the more necessary for compliance with the rule. Airlines in general are unable to generate DT based service information (as the TC holder typically does) and, most significantly for this rulemaking, would be unable to develop the guidance required to assess the thousands of existing repairs.
Although the involvement of DAHs is necessary, we also recognize that it would be unreasonable to require them to assume responsibility for the DT of repairs and alterations they did not develop. However, as discussed later, while the DAHs would only be responsible for providing specific DT data for repairs and alterations they developed, they are required to make available guidelines on how to assess the effects of other repairs on their baseline structure.
The FAA considered three alternatives to this proposed rule. These were to—
(1) Not mandate DAH requirements;
(2) Rescind §§ 121.370a and 129.16; and
(3) Rescind approval of SRMs and other published service information that do not contain the necessary damage tolerance inspection data.
We concluded that Alternative 1 is not a viable option. As discussed in section IX of this preamble, if we adopt this alternative, the operators may not be able to comply with the requirement to incorporate damage tolerance inspections and procedures by December 20, 2010. The reason is the DAH may not voluntarily develop the DT data required for compliance.
Under Alternative 2, the FAA recognizes that many repairs and alterations made to fatigue critical structure would not have supplemental inspections necessary to maintain the continued airworthiness of affected airplanes.
Alternative 3 would place an unacceptable burden on operators. Future major repairs or alterations to affected airplanes would not be possible without FAA approval. As operators routinely use these documents to support their operations, it is possible that airplanes may be taken out of service for extensive periods until the DT data for a particular repair or alteration are FAA approved.
The FAA has concluded that these alternatives may not preclude the installation of repairs or alterations that could contribute to a catastrophic failure. As noted in the AASFR, the AASA specified that an air carrier must demonstrate to the Administrator “that maintenance of the aircraft's structure, skin, and other age-sensitive parts and components have been adequate and timely enough to ensure the highest degree of safety.”
In the past, and particularly in comments to the Aging Airplane Program Update, DAH requirements have been referred to as “retroactive.” They are considered “retroactive” in the sense that they impose requirements on holders of existing design approvals. But they are not “retroactive” in the legal sense that they impose legal consequences in the past.
This proposal would not change the certification basis of any airplane, nor would it invalidate any previous FAA approval. This proposal would not change any past or current airworthiness standards, including § 25.571; although it would require future applicants for design changes to pre-Amendment 25-45 airplanes to meet additional requirements. This proposal would not invalidate the approval of any previously installed repair or alteration. But it would require DAHs to develop and make available DT data for use by operators to inspect or replace such repairs and alterations in the future.
In this sense, this proposal is similar to many ADs. We have identified a safety problem (fatigue cracking) with existing airplanes that, unless addressed, may result in accidents in the future. To prevent those accidents, we have adopted the AASFR to require operators to implement programs to detect and fix the problem. And, to enable the operators to comply with the AASFR, we are now proposing requirements for DAHs to make the necessary data available to the operators.
As discussed earlier, the AASFR requires operators to take into account the effects repairs and alterations may have on fatigue critical structure. This proposal would require DAHs to take several different actions to support operators' compliance with the AASFR with respect to repairs and alterations. Table 2 summarizes the proposed regulatory changes.
Today's proposal would apply to current and future holders of TCs, holders of STCs, and future applicants for changes to TCs. This rule would apply to transport category, turbine powered airplane models with an original TC issued after January 1, 1958. Specifically, with certain exceptions, this proposal would apply to those airplanes, that, as a result of the original certification, or later increase in capacity, have a maximum type certificated passenger seating capacity of 30 or more or a maximum payload capacity of 7,500 pounds or more. There are a number of these airplanes that are not operated under 14 CFR parts 121 or 129 and, therefore, are not subject to the AASFR. Proposed § 25.1823(h) would exclude those airplanes because the purpose of this rule is to require DAHs to support operators of airplanes under 14 CFR parts 121 or 129. We specifically request comments on whether there are other airplanes of this size that are not operated under 14 CFR parts 121 or 129 and that should be excluded from this rule.
As discussed earlier, § 25.571 has required new TCs to meet DT requirements since 1978, but for a variety of reasons, these requirements have not been met for many repairs and alterations. Therefore, to ensure that repair and alteration data for future TCs will meet these requirements, today's proposal would apply to DAHs for future TCs, as well as existing TCs. This proposal is different in this respect from other DAH requirements currently being considered by the FAA, which would not apply to TCs for which application is made in the future. This is because these rulemaking initiatives would adopt a change to the airworthiness standards in 14 CFR part 25 to impose a similar requirement on those future applicants.
Today's proposal, if adopted, would apply to both domestic and foreign DAHs. This rule would be different from most type certification programs for new TCs, where foreign applicants typically work with their responsible certification authority and the FAA relies upon that authority's findings of compliance per the conditions of bilateral airworthiness agreements. Presently, no other certification authority has adopted requirements addressing DT for repairs and alterations for existing TCs.
Accordingly, the FAA will retain the authority to make all the necessary compliance determinations and, where appropriate, may request certain compliance determinations by the appropriate foreign authorities, using procedures developed under the bilateral agreements. The compliance planning provisions of this proposed rule are equally important for domestic and foreign DAHs and applicants, and we will work with the foreign authorities to ensure that their DAHs and applicants perform the planning necessary to comply with those requirements.
The first step in evaluating the DT of repairs or alterations is for TC and STC holders to determine which ones affect fatigue critical structure.
• Baseline structure.
• Alterations developed by TC holders that affect any fatigue critical baseline structure.
• Alterations developed by STC holders that affect any fatigue critical baseline structure.
In most cases, TC holders have already performed the technical analyses necessary to produce the list for baseline structure, either in developing SIDs (for pre-Amendment 25-45 airplanes) or in showing compliance with § 25.571 (for Amendment 25-45 and later airplanes). To ensure the list includes the full range of structural designs that operators and STC holders need to know about, TC holders would be required to address all of their current and out of production model variations and derivatives. TC holders would also be required to identify all post-production alterations they developed (typically documented in service bulletins) that affect fatigue critical baseline structure. For these alterations, the TC holder would determine whether the alterations themselves contain fatigue critical structure. For example, installation of a large cargo door would clearly affect fatigue critical baseline structure, but the door installation also may contain fatigue critical structure, such as door webs, frames, hinge installations, and door attachment structure installed on the baseline structure.
Today's proposal would require TC holders to submit the list of fatigue critical structure for both the baseline airplane and alterations no later than 90 days after the effective date of the rule, for review and approval by the FAA Oversight Office. Upon approval, they would have to make the list available to operators required to comply with the supplemental inspection requirements of the AASFR and to STC holders required to comply with this rule.
STC holders would also be required to identify their alterations that affect fatigue critical baseline structure. For these alterations, the STC holder would then determine whether the alterations themselves contain fatigue critical structure. STC holders would have to submit the list of fatigue critical alteration structure no later than 270 days after the effective date of the rule, for review and approval by the FAA Oversight Office, and upon approval, make the list available to affected operators. The six-month difference between the STC and TC holder submittal dates is intended to allow STC holders time to obtain and review the list of fatigue critical baseline structure developed by the TC holder. STC holders may need this list to determine if any of their alterations approved under an STC affect this structure.
Throughout this proposal, the term “make available” is used in the same sense that it is currently used in 14 CFR 21.50, which requires DAHs to make ICAs available to operators and others required to comply with them. We do not intend by this proposal to alter or interfere with the existing commercial relationships between DAHs and these other persons. We anticipate that DAHs would be allowed reasonable compensation for developing all of the required documents, which is consistent with current practice.
Because holders of TCs and STCs have not performed damage tolerance evaluations for many of their repairs and alterations, damage tolerance evaluations must be performed for operators to comply with the AASFR. Additionally, unless already accomplished, all future repairs and alterations affecting fatigue critical structure identified in the lists described above would need to have damage tolerance evaluations performed and damage tolerance inspections developed.
In today's proposal, repair and alteration data developed by TC and STC holders are divided into the following six categories:
(1) Repair data published by TC holders.
(2) Existing unpublished repair data developed by TC holders.
(3) Future repair data developed by TC holders.
(4) Alteration data developed by TC holders.
(5) Alteration data developed by STC holders.
(6) Repair data developed by STC holders.
For repairs identified in category 2, TC holders would have to develop repair evaluation guidelines that provide a process operators could use to establish new or confirm the acceptability of existing damage tolerance inspections for those repairs. These guidelines will be discussed later in this section of the preamble. For the other categories of repair and alteration data, today's proposal would require TC and STC holders to develop damage tolerance inspections.
For their published repair data that is current
Today's proposal would require TC holders to develop guidelines that would provide processes that operators could use for establishing DT data for repairs that affect fatigue critical structure. The guidelines must include the following items:
• A process for conducting surveys of affected airplanes to identify and document all existing repairs that affect fatigue critical baseline structure.
• A process for establishing DT data for repairs and for fatigue critical baseline structure affected by the repairs.
• A DT data implementation schedule for repairs covered by the guidelines.
The DT data implementation schedule is discussed later as a separate topic as it applies to repairs addressed by the guidelines and future unpublished repairs for which the TC holders must develop damage tolerance inspections.
For operators to be able to determine effectively which existing repairs need damage tolerance evaluations performed, they would need a process to identify and document those repairs. Today's proposal would require TC holders to develop a survey process that operators can use for identification and documentation of repairs for the affected airplanes. Using the lists of fatigue critical structure developed by TC and STC holders, this process would provide operators with a means for determining which existing repairs affect fatigue critical structure. The process would also provide instructions for documenting those repairs by listing or describing the repair information
Today's proposal would also require the TC holder to develop a process that operators can use for establishing DT data. The process most commonly used today by operators to obtain DT data is time consuming and resource intensive. The process required by today's proposal would provide operators with various methods for obtaining DT data for repairs. Possible methods for obtaining the required DT data may include—
•
•
•
Today's proposal would require the TC holder to develop an implementation schedule that addresses the timing of key tasks required by this proposal. The DT data implementation schedule would specify appropriate timing for the following tasks:
• Conducting airplane surveys to identify and document repairs and alterations that affect fatigue critical structure.
• Performing damage tolerance evaluations and developing damage tolerance inspections for existing repairs that affect fatigue critical structure.
• Performing damage tolerance evaluations and developing damage tolerance inspections for unpublished future repairs that affect fatigue critical structure.
• Revising maintenance programs to incorporate damage tolerance inspections.
In establishing the timing of these tasks, TC holders would need to determine if the available industry resources are sufficient to perform the tasks within the proposed time. If not, the processes or timing developed for the tasks may need to be reassessed to provide schedules that make the most efficient use of resources, while ensuring the continued airworthiness of the affected airplanes.
For future unpublished repair data, the implementation schedule may define a process that allows an airplane to return to service before all necessary DT data are submitted for FAA approval. This process may involve an initial approval of repair data to allow an airplane to return to service and subsequent submittal and approval of the DT data. The details of the timing of when data are to be submitted and approved would be included in the implementation schedule. A phased process may be necessary to minimize the burden placed on TC holder resources and to reduce unnecessary down time of airplanes.
A similar process is described in AC 25.1529-1. A modified version of the process defined in AC 25.1529-1 has been approved by the FAA and is currently being used in industry. ARAC has established a process that is similar to the modified version of the process defined in AC 25.1529-1. This process has been incorporated into a proposed advisory circular and may be incorporated into the DT data implementation schedule for future repairs that is required by today's proposal.
For implementation schedules required for existing repairs, the TC holder would submit implementation schedules as part of the repair evaluation guidelines to the FAA Oversight Office, for review and approval by December 30, 2009. This proposal would mandate that future repair data be submitted to the FAA Oversight Office for review and approval, according to the implementation schedule approved as part of the Repair Evaluation Guidelines.
The FAA intends to establish the requirements for a compliance plan to ensure that affected DAHs and the FAA have a common understanding and agreement of what is necessary to achieve compliance with this proposed rule. The plan would also ensure that the DAHs produce the DT data in a timely manner that is acceptable in content and format. Integral to the compliance plan will be the inclusion of procedures to allow the FAA to monitor progress toward compliance. These aspects of the plan will help ensure that the expected outcomes will be acceptable and on time for incorporation by the affected operators into their maintenance programs as required by the AASFR. The affected DAHs would be required to submit a compliance plan that addresses the following:
• The proposed schedule for meeting the compliance dates, including all major milestones.
• A proposed means of compliance with the requirements to develop and make available DT data.
• Any planned alternatives to guidance provided in FAA advisory material.
• A draft of all required compliance items not less than 60 days before the stated compliance dates.
• A process for continuous assessment of service information for the affected transport category airplane fleet that includes:
• Distribution of approved DT data.
The compliance plan is based substantially on “The FAA and Industry Guide to Product Certification,” which describes a process for developing project-specific certification plans for type certification programs. This guide
We will issue an AC to include guidance for a compliance plan. FAA advisory material, while not mandatory, describes one means, but not the only means, of compliance. Similar to the process used in the type certification, applicants may propose acceptable alternatives to the means of compliance described in advisory circulars. When an applicant chooses to comply by an alternative means, it should identify the alternative as early as possible to provide an opportunity to resolve any issues that may arise that could lead to delays in the compliance schedule.
One of the sections in the proposed compliance plan requires a detailed explanation of how the proposed means of compliance would meet the requirements of the section if the proposed means of compliance differs from that described in FAA advisory material. This part of the compliance plan would enable the FAA Oversight Office to identify and resolve any issues that may arise with the proposal of the DAH without jeopardizing the ability of the applicant or DAH to comply by the compliance time.
Today's proposal would require TC holders and applicants for TCs to correct a deficient plan, or deficiencies in implementing the plan, in a manner identified by the FAA Oversight Office. Before the FAA formally notifies a TC holder or TC applicant of deficiencies, we intend to establish a mutual understanding of the deficiencies and a way to correct them. Therefore, the notification referred to in this paragraph should document the corrective action. The TC holder or applicant will then have 30 days to implement the corrective action.
The ability of an operator to comply with the AASFR is dependent on TC holders, certain STC holders, and applicants complying on time with the approved compliance plan requirements. The FAA will carefully monitor compliance and take appropriate action if necessary to help ensure timely compliance. Failure to comply by the specified dates would constitute a violation of the requirements and may subject the violator to certificate action to amend, suspend, or revoke the affected certificate (49 U.S.C. 44709). It may also subject the violator to a civil penalty of not more than $25,000 per day, per certificate until the violator complies with these requirements (49 U.S.C. 46301).
For those persons applying after the effective date of the rule for STCs or amendments to TCs, the affected persons would not have to address DT for repairs and alterations until a compliance plan defining the certification basis for the overall STC or amended TC is needed. The proposal also specifies compliance dates for submitting compliance plans for evaluating design changes and developing service information for maintenance actions that must be performed. The compliance dates for the affected persons are as follows:
• Holders of TCs—no later than 90 days after the effective date of the rule.
• Holders of STCs—no later than 180 days after the effective date of the rule.
• Applicants for STCs and amendments to TCs if the certificate was not issued before the effective date of the final rule—before the certification of STC or amended TC.
As we discussed earlier in this preamble, today's proposal would create a new subpart I, Continued Airworthiness and Safety Improvements, in part 25. This new subpart would provide a common location for rules that impose ongoing responsibilities on DAHs. In addition, the FAA proposes to create new subparts for airworthiness-related operational rules to provide a common location for these rules. The FAA believes creating new subparts where these rules could be located will enhance the reader's ability to readily identify rules pertinent to continued airworthiness. In addition, we believe this will ensure easy visibility of these requirements.
These new subparts would contain certain rules from other proposals (
• §§ 121.370a and 129.16 as § 121.1109 and § 129.109, respectively, and place them in new subparts AA and B, respectively.
• §§ 121.370 and 129.32 as § 121.1107 and § 129.107, respectively, and place them in new subparts AA and B, respectively.
• §§ 121.368 and 129.33 as §§ 121.1105 and 129.105, respectively, and place them in new subparts AA and B, respectively.
Some of the other planned aging airplane proposals include similar language that establishes the new operational subparts, redesignates certain sections of these rules, and establishes requirements common to each of the aging airplane proposals. In addition, certain of the proposals include new requirements specific to that rule. Today's proposal, however, does not include any new operational requirements. Once any one of the aging airplane proposals becomes a final rule, we will remove the duplicative requirements (
The FAA tasked the Aviation Rulemaking Advisory Committee (ARAC)
Information collection requirements in the AASFR have been previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) and have been assigned OMB Control Numbers: 2120-0020 and 2120-0008. Part 129 record requirements can be found in
The FAA reviewed data associated with compliance to the AASFR and data associated with this proposal. We have determined that this rule is a transfer of responsibility only and there is no additional paperwork burden on the public. The paperwork burden for compliance with the AASFR will be reduced as a result of today's proposal due to a reduction in the numbers of repairs and alterations that will need an individual damage tolerance assessment. This is because this proposal will require design approval holders to develop a streamlined approach for assessing repairs.
Under the Paperwork Reduction Act of 1995, (5 CFR 1320.8(b)(2)(vi)), 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.
Proposed changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, to be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation).
The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposal does not warrant a full evaluation, this order permits a statement to that effect. The basis for the minimal impact must be included in the preamble, if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for that determination follows.
The recently published Aging Airplane Safety final rule (AASFR)
The purpose of this proposal is to ensure that operators have the necessary data and documents to support timely compliance with the requirements of §§ 121.370(a) and 129.16 of the AASFR. Timely operator compliance improves the safety of the fleet.
Existing certification and operational rules already require operators to implement the DT inspections and procedures this proposal would require DAHs to develop. Amendment 25-45 (or later) airplanes, affected by this proposal, are required by § 25.571 to incorporate damage tolerance inspections to the baseline structure, repairs, and alterations. On pre-Amendment 25-45 airplanes, DT inspection and procedures for the baseline structure are required by airworthiness directive (AD). In addition, damage tolerance inspections for repairs, alterations and modifications to affected Boeing 727 and 737-100/200 are also required by AD. Damage tolerance inspections for repairs to the pressurized fuselage
The following table shows a summary of the regulatory requirements for DT inspection programs. The shaded areas in the table represent regulatory gaps filled by the AASFR (§ 121.370a) requirements to develop DT inspections and procedures for fatigue critical airplane structural areas.
In
The FAA has, therefore, determined this rulemaking action is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures. In addition, the FAA has determined that this rulemaking action: (1) Would not have a significant economic impact on a substantial number of small entities; (2) would not affect international trade; and (3) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. We solicit comments regarding these findings.
The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.
However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The FAA believes the proposed rule would not have a significant economic impact on a substantial number of small entities.
The FAA recently adopted the Aging Airplane Safety final rule (AASFR),
This proposed rule is a counterpart to the AASFR. By the effective date of this proposal, DT inspection programs, required by this proposal, will already be required by AD, certification or operational regulations for all part 121 airplanes affected by this proposal. The proposed rule would transfer the requirement to develop AASFR DT based inspections and procedures from part 121 operators to design approval holders (DAHs). A significant number of part 121 operators are small entities. By transferring the responsibility from part 121 operators to DAHs, this proposal would relieve small-entity part 121 operators of what could be a significant cost.
DAHs include manufacturers of part 25 airplanes and supplemental type certificate (STC) holders for repairs and alterations made to these airplanes.
The current United States part 25 airplane manufacturers include: Boeing, Cessna Aircraft, Gulfstream Aerospace, Learjet (owned by Bombardier), Lockheed Martin, McDonnell Douglas (a wholly owned subsidiary of The Boeing Company), and Raytheon Aircraft. These manufacturers would incur Type Certificate (TC) and Amended TC costs. Because all U.S. transport-aircraft category manufacturers have more than 1,500 employees, none are considered small entities.
STC holders include manufacturers and operators of part 25 airplanes, some of which are small-entities. Since the
Therefore, the FAA certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. We request comments on this finding.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.
The FAA has assessed the potential effect of this proposed rule and determined that it would impose the same costs on domestic and international entities and thus have a neutral trade impact.
The Unfunded Mandate Reform Act of 1995 (the Act) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $120.7 million in lieu of $100 million.
This proposal does not contain such a mandate. The requirements of Title II do not apply.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping requirements, Safety, Transportation.
Air carriers, Aircraft, Aviation safety, Reporting and recordkeeping requirements, Security measures, Smoking.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend Chapter I of Title 14, Code of Federal Regulations part 25 as follows:
1. The authority citation for part 25 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701, 44702 and 44704.
2. Amend § 25.1 by adding a new paragraph (c) to read as follows:
(c) This part also establishes requirements for holders of type certificates and supplemental type certificates to take actions necessary to support the continued airworthiness of transport category airplanes.
3. Add a new section § 25.3 to read as follows:
Subpart I of this part contains requirements that apply to—
(a) Holders of type certificates and supplemental type certificates; and
(b) Applicants for type certificates and changes to those certificates.
4. Amend part 25 by adding a new subpart I to read as follows:
(a) This subpart establishes requirements for support of the continued airworthiness of transport category airplanes. These requirements may include performing assessments, developing design changes, developing revisions to Instructions for Continued Airworthiness, and making necessary documentation available to affected persons. This subpart applies to the following persons as specified in each section of this subpart:
(1) Holders of type certificates and supplemental type certificates.
(2) Applicants for type certificates and changes to those certificates (including services bulletins describing design changes). Applicants for changes to type certificates must comply with the requirements of this subpart in addition to the airworthiness requirements determined applicable under § 21.101 of this subchapter.
(b) For purposes of this subpart, the FAA Oversight Office is the aircraft certification office or office of the Transport Airplane Directorate with oversight responsibility for the relevant type certificate or supplemental type certificate, as determined by the Administrator.
(a)
(1) A maximum type certificated passenger seating capacity of 30 or more; or
(2) A maximum payload capacity of 7,500 pounds or more.
(b)
(c)
(1) Identify fatigue critical baseline structure for all airplane model variations and derivatives approved under the type certificate.
(2) Develop and submit to the FAA Oversight Office for review and approval, a list of the structure identified in (c)(1) and, upon approval, make the list available to persons required to comply with § 25.1827 of this part and §§ 121.1109 and 129.109 of this chapter.
(d)
(1) Review the repair data, and identify each repair specified in the data that affects fatigue critical baseline structure identified in paragraph (c)(1).
(2) Perform a DTE and develop DTI for each repair identified in paragraph (d)(1), unless previously accomplished.
(3) Submit the DT data to the FAA Oversight Office or its properly authorized designees for review and approval.
(4) Upon approval, make the DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(e)
(1) Perform a DTE and develop DTI in accordance with the approved DT data implementation schedule developed for compliance with paragraph (f)(1)(iii) of this section.
(2) Submit the DT data in accordance with the implementation schedule for review and approval by the FAA Oversight Office or its properly authorized designees.
(3) Upon approval, make the approved DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(f)
(1) Develop repair evaluation guidelines for operators' use that include—
(i) A process for conducting surveys of affected airplanes that will enable identification and documentation of all existing repairs that affect fatigue critical baseline structure identified in paragraph (c)(1) of this section and § 25.1825(b)(2) of this part;
(ii) A process for establishing DT data for repairs identified in paragraph (f)(1)(i);
(iii) A DT data implementation schedule for repairs covered by the repair evaluation guidelines.
(2) Submit the repair evaluation guidelines to the FAA Oversight Office for review and approval. (3)Upon approval, make the guidelines available to persons required to comply with § 25.1827 of this part and §§ 121.1109 and 129.109 of this chapter.
(4) If the guidelines direct the operator to obtain assistance from the holder of a type certificate, provide such assistance in accordance with the DT data implementation schedule.
(g)
(1) The list of fatigue critical baseline structure required by paragraph (c)(2) of this section must be submitted no later than 90 days after [the effective date of the rule].
(2) For published repair data that is current as of [the effective date of the rule], the DT data required by paragraph (d)(3) of this section must be submitted by June 30, 2009.
(3) For repair data published after [the effective date of the rule], the DT data required by paragraph (d)(3) of this section must be submitted before FAA approval of the repair data.
(4) The repair evaluation guidelines required by paragraph (f)(1) of this section must be submitted by December 30, 2009.
(h)
(1) Convair CV-240, 340, 440, if modified to include turbine engines.
(2) Vickers Armstrong Viscount, TCDS No. A-814.
(3) Douglas DC-3, if modified to include turbine engines, TCDS No. A-618.
(4) Bombardier CL-44, TCDS No. 1A20.
(5) Mitsubishi YS-11, TCDS No. A1PC.
(6) British Aerospace BAC 1-11, TCDS No. A5EU.
(7) Concorde, TCDS No. A45EU.
(8) deHavilland D.H. 106 Comet 4C, TCDS No. 7A10.
(9) VFW-Vereinigte Flugtechnische Werk VFW-614, TCDS No. A39EU.
(10) Illyushin Aviation IL 96T, TCDS No. A54NM.
(11) Bristol Aircraft Britannia 305, TCDS No. 7A2.
(12) Handley Page Herald Type 300, TCDS No. A21N.
(13) Avions Marcel Dassault—Breguet Aviation Mercure 100C, TCDS No. A40EU.
(14) Airbus Caravelle, TCDS No. 7A6.
(a)
(b)
(1) Review existing alteration data and identify all alterations that affect fatigue critical baseline structure identified in § 25.1823(c)(1) of this part.
(2) For each alteration identified in paragraph (b)(1) of this section, identify any fatigue critical alteration structure.
(3) Develop and submit to the FAA Oversight Office for review and approval a list of the structure identified in paragraph (b)(2) of this section.
(4) Upon approval, make the list required in paragraph (b)(2) of this section available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(c)
(1) Perform a DTE and develop DTI for the alteration.
(2) Submit the DT data developed in accordance with paragraph (c)(1) of this section to the FAA Oversight Office or its properly authorized designees for review and approval.
(3) Upon approval, make the DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(d)
(1) Review the repair data, and identify each repair that affects any fatigue critical alteration structure identified in paragraph (b)(2) of this section.
(2) For each repair identified in (d)(1) of this section, unless previously accomplished, perform a DTE and develop DTI.
(3) Submit the DT data developed in accordance with paragraph (d)(2) of this section to the FAA Oversight Office or its properly authorized designees for review and approval;
(4) Upon approval, make the DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(e)
(1) The list of fatigue critical alteration structure required by paragraph (b)(2) of this section must be submitted no later than 90 days after [the effective date of the rule].
(2) For alteration data developed and approved before [the effective date of the rule], the DT data required by paragraph (c)(2) of this section must be submitted by June 30, 2009.
(3) For alteration data approved on or after [the effective date of the rule], DT data required by paragraph (c)(2) of this section must be submitted before initial approval of the alteration data.
(4) For repair data developed and approved before [the effective date of the rule], the DT data required by paragraph (d)(3) of this section must be submitted by June 30, 2009.
(5) For repair data developed and approved after [the effective date of the rule], the DT data required by paragraph (d)(3) of this section, must be submitted within 12 months after initial approval of the repair data and before making the DT data available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(a)
(b)
(1) Review existing alteration data and identify all alterations that affect fatigue critical baseline structure identified in § 25.1823(c)(1) of this part.
(2) For each alteration identified in paragraph (b)(1) of this section, identify any fatigue critical alteration structure.
(3) Develop and submit to the FAA Oversight Office or its properly authorized designees for review and approval a list of the structure identified in paragraph (b)(2) of this section.
(4) Upon approval, make the list required in paragraph (b)(2) of this section available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(c)
(1) Perform a DTE and develop DTI for the alteration.
(2) Submit the DT data developed in accordance with paragraph (c)(1) of this section to the FAA Oversight Office or its properly authorized designees for review and approval.
(3) Upon approval, make the DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(d)
(1) Review the repair data, and identify each repair that affects any fatigue critical alteration structure identified in paragraph (b)(2) of this section.
(2) For each repair identified in paragraph (d)(1) of this section, unless previously accomplished, perform a DTE and develop DTI.
(3) Submit the DT data developed in accordance with paragraph (d)(2) of this section to the FAA Oversight Office or its properly authorized designees for review and approval;
(4) Upon approval, make the DTI available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(e)
(1) The list of fatigue critical alteration structure required by paragraph (b)(3) of this section must be submitted no later than 270 days after [the effective date of the rule].
(2) For alteration data developed and approved before [the effective date of the rule], the DT data required by paragraph (c)(2) of this section must be submitted by June 30, 2009.
(3) For alteration data developed after [the effective date of the rule], the DT data required by paragraph (c)(2) of this section must be submitted before approval of the alteration data and before making it available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(4) For repair data developed and approved before [the effective date of the rule], the DT data required by paragraph (d)(3) of this section must be submitted by June 30, 2009.
(5) For repair data developed and approved after [the effective date of the rule], the DT data required by paragraph (d)(3) of this section, must be submitted within 12 months after initial approval of the repair data and before making the DT data available to persons required to comply with §§ 121.1109 and 129.109 of this chapter.
(a)
(1) A project schedule identifying all major milestones for meeting the compliance times specified in §§ 25.1823(d) and (f), 25.1825(c) and (d),
(2) A proposed means of compliance with §§ 25.1823, 25.1825, and 25.1827 of this subpart, as applicable.
(3) If the proposed means of compliance differs from that described in FAA guidance, an explanation of how the alternative means of compliance will be shown to comply with §§ 25.1823, 25.1825, and 25.1827 of this subpart.
(4) A plan for submitting a draft of all compliance items required by this section for review by the FAA Oversight Office not less than 60 days before the applicable compliance date.
(5) A process for continually assessing service information related to structural fatigue damage.
(b)
(1) For holders of type certificates, no later than 90 days after [the effective date of the rule].
(2) For holders of supplemental type certificates no later than 180 days after [the effective date of the rule].
(3) For applicants for changes to type certificates no later than December 30, 2007 or 90 days after the date of application, whichever occurs later.
(c)
(1) The FAA oversight office notifies the affected person of deficiencies in the proposed compliance plan and how to correct them; or
(2) The FAA oversight office notifies the affected person of deficiencies in the person's implementation of the plan and how to correct them.
5. The authority citation for part 121 continues to read:
49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 44912, 45101-45105, 46105, 46301.
6. Amend § 121.1 by adding a new paragraph (g) to read as follows:
(g) This part also establishes requirements for operators to take actions to support the continued airworthiness of each airplane.
7. Amend part 121 by adding subpart AA, consisting of §§ 121.1101, 121.1103, 121.1111, 121.1113, and 121.1115, to read as follows:
(a) This subpart requires persons holding an air carrier or operating certificate under part 119 of this chapter to support the continued airworthiness of each airplane. These requirements may include, but are not limited to, revising the maintenance program, incorporating design changes, and incorporating revisions to Instructions for Continued Airworthiness.
(b) For purposes of this subpart, the “FAA Oversight Office” is the aircraft certification office or office of the Transport Airplane Directorate with oversight responsibility for the relevant type certificate or supplemental type certificate, as determined by the Administrator.
8. Redesignate § 121.368 as § 121.1105.
9. A new § 121.368 is added and reserved.
10. Redesignate § 121.370 as § 121.1107.
11. A new § 121.370 is added and reserved.
12. Redesignate § 121.370a as § 121.1109.
13. A new § 121.370a is added and reserved.
14. The authority citation for part 129 continues to read as follows:
49 U.S.C. 1372, 49113, 440119, 44101, 44701-44702, 447-5, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906, 44912, 44105, Pub. L. 107-71 sec. 104.
15. Amend § 129.1 by revising paragraph (b), and adding a new paragraph (d) to read as follows:
(b)
(d) This part also establishes requirements for an operator to take actions to support the continued airworthiness of each airplane.
16. Amend part 129 by designating existing §§ 129.1 through § 129.33 as subpart A and by adding the heading to read as follows:
17. Amend part 129 to adding subpart B to read as follows:
(a) This subpart requires a foreign person or foreign air carrier operating a U.S.-registered airplane in common carriage to support the continued airworthiness of each airplane. These requirements may include, but are not limited to, revising the maintenance program, incorporating design changes, and incorporating revisions to Instructions for Continued Airworthiness.
(b) For purposes of this subpart, the “FAA Oversight Office” is the aircraft certification office or office of the Transport Airplane Directorate with
18. Redesignate § 129.16 as new § 129.109.
19. A new § 129.16 is added and reserved.
20. Redesignate § 129.32 as new § 129.107.
21. A new § 129.32 is added and reserved.
22. Redesignate § 129.33 as new § 129.105.
23. A new § 129.33 is added and reserved.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain EMBRAER Model ERJ 170 airplanes. This proposed AD would require inspecting for excess sealant applied to the attachment bolts of the negative pressure relief valve, and performing corrective actions if necessary. This proposed AD results from reports that excess sealant was applied to the attachment bolts of the negative pressure relief valve, which interfered with the valve's movable diaphragm. We are proposing this AD to prevent incorrect operation of the negative pressure relief valve, which could result in negative pressures that exceed the structural strength limits of the airframe and lead to reduced structural integrity of the airplane.
We must receive comments on this proposed AD by May 22, 2006.
Use one of the following addresses to submit comments on this proposed AD.
•
•
•
•
•
Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil, for service information identified in this proposed AD.
Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-1175; fax (425) 227-1149.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
The Departamento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, notified us that an unsafe condition may exist on certain EMBRAER Model ERJ 170 airplanes. The DAC advises that it has received several reports that excess sealant was applied to the attachment bolts of the negative pressure relief valve, which interfered with the valve's movable diaphragm. This condition, if not corrected, could cause incorrect operation of the negative pressure relief valve, which could result in negative pressures that exceed the structural strength limits of the airframe and lead to reduced structural integrity of the airplane.
EMBRAER has issued Service Bulletin 170-21-0014, dated August 19, 2005. The service bulletin describes procedures for examining the attachment bolts of the negative pressure relief valve for excess sealant, and performing corrective actions if necessary. Corrective actions include removing excess sealant, cleaning the affected area, and, if necessary, removing all the sealant and reapplying new sealant. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DAC mandated the service information and issued
These airplane models are manufactured in Brazil and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DAC has kept the FAA informed of the situation described above. We have examined the DAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between Proposed AD and Service Bulletin and Brazilian Airworthiness Directive.”
EMBRAER Service Bulletin 170-21-0014 specifies to “examine” the attachment bolts of the negative pressure relief valve and Brazilian airworthiness directive 2005-12-05 specifies to “check” those bolts; however, for clarity, this proposed AD would require a general visual inspection of those bolts. We have included the definition of this type of inspection in the proposed AD.
This proposed AD would affect about 54 airplanes of U.S. registry. The proposed actions would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $4,320, or $80 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by May 22, 2006.
(b) None.
(c) This AD applies to EMBRAER Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes, certificated in any category; having serial numbers 17000002 through 17000099.
(d) This AD results from reports that excess sealant was applied to the attachment bolts of the negative pressure relief valve, which interfered with the valve's movable diaphragm. We are issuing this AD to prevent incorrect operation of the negative pressure relief valve, which could result in negative pressures that exceed the structural strength limits of the airframe and lead to reduced structural integrity of the airplane.
(e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
(f) Within 700 flight hours after the effective date of this AD, perform a general visual inspection of the attachment bolts of the negative pressure relief valve for excess sealant and perform the applicable corrective actions, by accomplishing all applicable actions specified in the Accomplishment Instructions of EMBRAER Service Bulletin 170-21-0014, dated August 19, 2005. Corrective actions must be performed prior to further flight.
For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(g)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(h) Brazilian airworthiness directive 2005-12-05, dated January 19, 2006, also addresses the subject of this AD.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 98-12-01, which applies to certain Pilatus Aircraft Ltd (Pilatus) Models PC-6, PC-6/A, PC-6/B, and PC-6/C series airplanes equipped with turbo-prop engines. AD 98-12-01 currently requires you to modify the fuel system to improve the venting between the collector tank, the main wing tanks, and the engine. Since we issued AD 98-12-01, the FAA determined the action should also apply to all the models of the PC-6 airplanes listed in the type certification data sheet of Type Certificate (TC) No. 7A15 that are produced in the United States through a licensing agreement between Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation). In addition, the intent of the applicability of AD 98-12-01 was to apply to affected serial numbers of the airplane models listed in TC No. 7A15. Consequently, this proposed AD would retain all the actions of AD 98-12-01, would add those Fairchild Republic Company airplanes to the applicability of this proposed AD, and would list out the individual specific airplane models. We are proposing this AD to prevent engine fuel starvation during maximum climb and descent caused by poor fuel tank venting with low fuel levels, which could result in a loss of engine power during critical phases of flight.
We must receive comments on this proposed AD by May 24, 2006.
Use one of the following addresses to comment on this proposed AD:
•
•
•
•
•
For service information identified in this proposed AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224.
Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090.
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Mandatory continuing airworthiness information and the FAA's determination that an unsafe condition existed on certain Pilatus Models PC-6, PC-6/A, PC-6/B-H2, PC-6/B1-H2, PC-6/B, PC-6/C series airplanes (all models in the TCDS) equipped with turbo-prop engines caused us to issue AD 98-12-01, Amendment 39-10558 (63 FR 30370, June 4, 1998). AD 98-12-01 currently requires you to modify the fuel system to improve the venting between the collector tank, the main wing tanks, and the engine on certain Models PC-6, PC-6/A, PC-6/B-H2, PC-6/B1-H2, PC-6/B, PC-6/C series airplanes.
The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, notified the FAA of the need to supersede AD 98-12-01 to address an unsafe condition that may exist or could develop on certain Models PC-6, PC-6/A, PC-6/B-H2, PC-6/B1-H2, PC-6/B, PC-6/C series airplanes. The FOCA reports that the AD action should also apply to all the models of the PC-6 airplanes listed in the type certification data sheet of TC No. 7A15 produced in the United States through a licensing agreement between Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation).
This condition, if not corrected, could result in engine fuel starvation during maximum climb and descent caused by poor fuel tank venting with low fuel levels, which could result in a loss of engine power during critical phases of flight.
The FOCA recently issued Swiss AD Number HB 2005-289, effective date August 23, 2005, to ensure the continued airworthiness of all models of the PC-6 airplanes listed in TC No. 7A15, including those produced in the United States under a licensing agreement with Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation).
The State of Design for the Pilatus PC-6 airplanes is Switzerland and the airplanes are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
Under this bilateral airworthiness agreement, the FOCA has kept us informed of the situation described above.
We are proposing this AD because we have examined the FOCA's findings, evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design that are certificated for operation in the United States.
This proposed AD would supersede AD 98-12-01 with a new AD that would retain all the actions of AD 98-12-01 and would:
• Add manufacturer serial numbers (MSN) 2001 through 2092 for all the models of the PC-6 airplanes as listed in TC No. 7A15 and specified in the applicability section. These MSN are the airplanes produced in the United States through a licensing agreement with the Fairchild Republic Company; and
• List all the models of the PC-6 airplanes as listed in TC No. 7A15.
We estimate that this proposed AD would affect 43 airplanes in the U.S. registry.
We estimate the following costs to do the proposed modification of the fuel system to improve venting between the collector tank, the main wing tanks, and the engine:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 98-12-01, Amendment 39-10558, and adding the following new AD:
(a) We must receive comments on this proposed airworthiness directive (AD) action by May 24, 2006.
(b) This AD supersedes AD 98-12-01, Amendment 39-10558.
(c) This AD affects the following Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes that are equipped with turbo-prop engines and certificated in any category:
(1)
(2)
These airplanes are also identified as Fairchild Republic Company PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Switzerland that requires the actions of AD 98-12-01 for the added MSN 2001 through 2092 for all the models of the PC-6 airplanes listed in the type certificate data sheet of Type Certificate (TC) No. 7A15. We are issuing this AD to prevent engine fuel starvation during maximum climb and descent caused by poor fuel tank venting with low fuel levels, which could result in a loss of engine power during critical phases of flight.
(e) To address this problem, you must do the following:
(f) The Manager, Standards Office, ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(g) AMOCs approved for AD 98-12-01 are approved for this AD.
(h) Swiss AD Number HB 2005-289, effective date August 23, 2005, also addresses the subject of this AD. To get copies of the documents referenced in this AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2002-21-08, which applies to certain Pilatus Aircraft Ltd. (Pilatus) Model PC-6 airplanes. AD 2002-21-08 currently requires you to inspect the aileron assembly for correct configuration and modify as necessary. Since we issued AD 2002-21-08, the FAA determined the action should also apply to all the models of the PC-6 airplanes listed in the type certification data sheet of Type Certificate (TC) No. 7A15 that are produced in the United States through a licensing agreement between Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation). In addition, the intent of the applicability of AD 2002-21-08 was to apply to all the affected serial numbers of the airplane models listed in TC No. 7A15. Consequently, this proposed AD would retain all the actions of AD 2002-21-08, would add those Fairchild Republic Company airplanes to the applicability of this proposed AD, and would list out the individual specific airplane models. We are proposing this AD to correct improper aileron assembly configuration, which could result in failure of the aileron mass balance weight. Such failure could lead to loss of control of the airplane.
We must receive comments on this proposed AD by May 24, 2006.
Use one of the following addresses to comment on this proposed AD:
•
•
•
•
•
For service information identified in this proposed AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224.
Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090.
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The report of an unapproved mass balance weight installation and an improper aileron configuration (a result of improper configuration control and tracking) on Pilatus Model PC-6 airplanes caused us to issue AD 2002-21-08, Amendment 39-12914 (67 FR 64520, October 21, 2002). AD 2002-21-
The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, notified the FAA of the need to supersede AD 2002-21-08 to address an unsafe condition that may exist or could develop on certain Model PC-6 airplanes. The FOCA reports that the AD action should also apply to all the models of the PC-6 airplanes listed in the type certification data sheet of TC No. 7A15 produced in the United States through a licensing agreement between Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation).
This condition, if not corrected, could result in failure of the aileron mass balance weights. Such failure could lead to loss of control of the airplane.
The FOCA recently issued Swiss AD Number HB 2005-289, effective date August 23, 2005, to ensure the continued airworthiness of all models of the PC-6 airplanes listed in TC No. 7A15, including those produced in the United States under a licensing agreement with Pilatus and Fairchild Republic Company (also identified as Fairchild Industries, Fairchild Heli Porter, or Fairchild-Hiller Corporation).
The State of Design for the Pilatus PC-6 airplanes is Switzerland and the airplanes are type-certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement.
Under this bilateral airworthiness agreement, the FOCA has kept us informed of the situation described above.
We are proposing this AD because we have examined the FOCA's findings, evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design that are certificated for operation in the United States.
This proposed AD would supersede AD 2002-21-08 with a new AD that would retain all the actions of AD 2002-21-08 and would:
• Add manufacturer serial numbers (MSN) 2001 through 2092 for all the models of the PC-6 airplanes as listed in TC No. 7A15 and specified in the applicability section. These MSN are the airplanes produced in the United States through a licensing agreement with the Fairchild Republic Company; and
• List all the models of the PC-6 airplanes as listed in TC No. 7A15.
We estimate that this proposed AD would affect 49 airplanes in the U.S. registry.
We estimate the following costs to do the proposed inspection:
We estimate the following costs to do any necessary modifications that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need such modification:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2002-21-08, Amendment 39-12914, and adding the following new AD:
(a) We must receive comments on this airworthiness directive (AD) action by May 24, 2006.
(b) This AD supersedes AD 2002-21-08, Amendment 39-12914.
(c) This AD affects the following Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes and serial numbers that are certificated in any category:
(1)
(2)
These airplanes are also identified as Fairchild Republic Company PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes.
(d) This AD results from mandatory continuing airworthiness information (MCAI) issued by the airworthiness authority for Switzerland that requires the actions of AD 2002-21-08 for the added MSN 2001 through 2092 for all the models of the PC-6 airplanes listed in the type certificate data sheet of Type Certificate (TC) No. 7A15. We are issuing this AD to correct improper aileron assembly configuration, which could result in failure of the aileron mass balance weight. Such failure could lead to loss of control of the airplane.
(e) To address this problem, you must do the following:
(f) The Manager, Standards Office, ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4059; facsimile: (816) 329-4090, has the authority to approve alternative methods of compliance (AMOCs) for this AD, if requested using the procedures found in 14 CFR 39.19.
(g) AMOCs approved for AD 2002-21-08 are approved for this AD.
(h) Swiss Airworthiness Directive Number HB 2005-289, effective date August 23, 2005, also addresses the subject of this AD. To get copies of the documents referenced in this AD, contact Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 Stans, Switzerland; telephone: +41 41 619 63 19; facsimile: +41 41 619 6224. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus Model A330-200 and -300, and A340-200 and -300 series airplanes. This proposed AD would require modifying certain rotary actuator assemblies for the leading edge slat. This proposed AD results from a leak found at the seal of the torque limiter output shaft of the Type A rotary actuator of leading edge slat No. 1. We are proposing this AD to prevent a decrease in the torque limiter function, which could result in degradation and damage to the attachment bolts of the leading edge slat, loss of the slat, and consequent reduced control of the airplane.
We must receive comments on this proposed AD by May 22, 2006.
Use one of the following addresses to submit comments on this proposed 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.
• 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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for the service information identified in this proposed AD.
Tim Backman, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2797; fax (425) 227-1149.
We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the
We will post all comments we receive, without change, to
You may examine the AD docket on the Internet at
The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on certain Airbus Model A330-200 and -300, and A340-200 and -300 series airplanes. The DGAC advises of a leak at the seal of the torque limiter output shaft of the Type A rotary actuator assembly of leading edge slat No. 1. The leak was found during a scheduled maintenance check. Investigation revealed that the parts of the torque limiter were contaminated with grease; the grease migrated from the power gear stage. The grease migration was possible only after re-greasing, as the quantity of grease used during production is insufficient to migrate to the torque limiter. This condition, if not corrected, could result in a decrease in the torque limiter function, which could result in degradation and damage to the attachment bolts of the leading edge slat, loss of the slat, and consequent reduced control of the airplane.
Airbus has issued Service Bulletins A330-27-3100, Revision 01 (for Model A330-200 and -300 series airplanes), and A340-27-4106, Revision 01 (for Model A340-200 and -300 series airplanes), both dated May 23, 2005. The service bulletins describe procedures for modifying certain rotary actuator assemblies for the leading edge slat.
Airbus has also issued Service Bulletins A330-27-3105, Revision 02 (for Model A330-200 and -300 series airplanes), and A340-27-4110, Revision 02 (for Model A340-200 and -300 series airplanes), both dated October 10, 2005. The service bulletins describe an alternate procedure for modifying any rotary actuator assembly for the leading edge slat having part number 954B0000-01.
Accomplishing the actions specified in Airbus Service Bulletins A330-27-3100, A330-27-3105, A340-27-4106, and A340-27-4110, as applicable, is intended to adequately address the unsafe condition.
Airbus Service Bulletins A330-27-3100, A330-27-3105, A340-27-4106, and A340-27-4110 refer to Goodrich Actuation Systems Service Bulletins 954-27-M954-06, Revision 2, dated May 20, 2004, and 954-27-M954-07, Revision 2, dated August 9, 2004, as additional sources of service information for modifying the rotary actuator assembly for the leading edge slat.
The DGAC mandated the Airbus Service information, and issued French airworthiness directives F-2005-067 and F-2005-068, both dated April 27, 2005, to ensure the continued airworthiness of these airplanes in France.
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States.
Therefore, we are proposing this AD, which would require accomplishing the actions specified in Airbus Service Bulletins A330-27-3100, A330-27-3105, A340-27-4106, and A340-27-4110, described previously, except as discussed under Differences Among the
Related French airworthiness directives 2003-121 and 2003-122 (superseded by the French airworthiness directives referenced in this proposed AD), require an inspection of the torque limiter for grease contamination if maintenance review board (MRB) Task 27.80.00-07 (lubrication of slats rotary actuators to be done every 5 years) has been done after delivery, and suspending the MRB task from the operator maintenance program for airplanes having rotary actuators with affected part numbers (P/Ns). Those P/Ns are identified in paragraph 3.3 of French airworthiness directives F-2005-067 and F-2005-068. The FAA coordinated with U.S. Airways (the only affected U.S. operator of airplanes without Airbus Modification 50138 installed in production), and confirmed that the MRB task had not been done, and that the task was removed from the U.S. Airways maintenance program for those P/Ns. Therefore, the FAA did not take AD action corresponding to French airworthiness directives 2003-121 and 2003-122, which was coordinated with Airbus and the DGAC.
Subsequently, French airworthiness directives F-2005-067 and F-2005-068 were issued to continue the requirements in French airworthiness directives 2003-121 and 2003-122, and include new requirements to modify the slat rotary actuator assembly to remove the source of the problem, rather than by repetitive inspections. The number of affected U.S.-registered airplanes has not changed, and the proposed AD specifies accomplishing the modification, as required by paragraph 3.3 of the referenced French airworthiness directives.
Airbus Service Bulletin A330-27-3100 recommends concurrently accomplishing Airbus Service Bulletin A330-27-3104, and Airbus Service Bulletin A340-27-4106 recommends concurrently accomplishing Airbus Service Bulletin A340-27-4109. Those are inspection service bulletins required by paragraph 3.1 of the referenced French airworthiness directives, and for the reasons stated above, the inspections in those service bulletins are not required by this proposed AD.
This proposed AD would affect about 9 airplanes of U.S. registry. The proposed modification (including operational test) would take about 4 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would be free of charge. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $2,880, or $320 per airplane.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD):
(a) The FAA must receive comments on this AD action by May 22, 2006.
(b) None.
(c) This AD applies to Airbus Model A330-201, 202, -203, -223, and -243; A330-301, -321, -322, -323, -341, -342, and -343; A340-211, -212, and -213; and A340-311, -312, and -313 airplanes, certificated in any category; except airplanes on which Airbus Modification 50138 was done during production.
(d) This AD results from a leak found at the seal of the torque limiter output shaft of the Type A rotary actuator of leading edge slat No. 1. We are issuing this AD to prevent a decrease in the torque limiter function, which could result in degradation and damage to the attachment bolts of the leading edge slat, loss of the slat, and consequent reduced 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) Within 38 months after the effective date of this AD: Modify any Type A rotary actuator assembly for the leading edge slat having part number (P/N) 954A0000-01 or -02, or P/N 954B0000-01, as applicable, by doing all the applicable actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-27-3100, Revision 01, dated May 23, 2005; or A340-27-4106, Revision 01, dated May 23, 2005; as applicable.
(g) Modification of any Type A rotary actuator assembly for the leading edge slat having P/N 954B0000-01, in accordance with
Airbus Service Bulletins A330-27-3100 and A340-27-4106 refer to Goodrich Actuation Systems Service Bulletin 954-27-M954-07, Revision 2, dated August 9, 2004; and Airbus Service Bulletins A330-27-3105 and A340-27-4110 refer to Goodrich Actuation Systems Service Bulletin 954-27-M954-06, Revision 2, dated May 20, 2004; as additional sources of service information for modifying the rotary actuator assembly for the leading edge slat.
(h) As of the effective date of this AD, no Type A rotary actuator assembly for the leading edge slat having part number 954A0000-01, -02, or 954B0000-01 may be installed unless the part has been modified in accordance with the actions required by paragraph (f) or (g) of this AD, as applicable.
(i) Modifications done before the effective date of this AD in accordance with Airbus Service Bulletins A330-27-3100, dated October 30, 2002; A330-27-3105, dated October 30, 2002, or Revision 01, dated March 27, 2003; A340-27-4106, dated October 30, 2002; or A340-27-4110, dated October 30, 2002, or Revision 01, dated March 27, 2003; as applicable; are acceptable for compliance with the corresponding requirements of paragraphs (f) and (g) of this AD, as applicable.
(j)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(k) French airworthiness directives F-2005-067 and F-2005-068, both dated April 27, 2005, also address the subject of this AD.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; reopening of public comment period on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing receipt of revisions to a previously proposed amendment to the Texas regulatory program (Texas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The revisions concern technical standards and normal husbandry practices regarding habitat for bobwhite quail and other grassland bird species. Texas intends to revise its program to encourage reclamation practices that are suitable for grassland bird species.
This document gives the times and locations that the Texas program and proposed amendment to that program are available for your inspection and the comment period during which you may submit written comments on the revisions to the amendment.
We will accept written comments until 4 p.m., c.t., May 8, 2006.
You may submit comments, identified by Docket No. TX-054-FOR, by any of the following methods:
• E-mail:
• Mail/Hand Delivery: Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547.
• Fax: (918) 581-6419.
• Federal eRulemaking Portal:
Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547. Telephone: (918) 581-6430. E-mail:
In addition, you may review a copy of the amendment during regular business hours at the following location: Surface Mining and Reclamation Division, Railroad Commission of Texas, 1701 North Congress Avenue, Austin, Texas 78711-2967. Telephone: (512) 463-6900.
Michael C. Wolfrom, Director, Tulsa Field Office. Telephone: (918) 581-6430. E-mail:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Texas program in the February 27, 1980,
By letter dated July 26, 2005 (Administrative Record No. TX-659),
We announced receipt of the proposed amendment in the August, 31, 2005,
During our review of the amendment, we identified concerns relating to Section V.D.1., Fish and Wildlife Habitat; Section V.D.2., Woody-Plant Stocking; Appendix B, Summary of Revegetation Success Standards (Fish and Wildlife Habitat Only); and Attachment 2, Minimum Woody Vegetation Stocking Rates. We notified Texas of the concerns by letters dated October 17, 2005, and February 8, 2006 (Administrative Record Nos. TX-659.07 and TX-659.13). On January 12 and March 10, 2006, Texas sent us revisions to its amendment (Administrative Record Nos. TX-659.11 and TX-650.12)
Texas submitted revisions for the following provisions of the amendment:
1. Texas proposes to revise typographical errors and make minor wording changes at D.1., Ground Cover; D.2., Woody-Plant Stocking; and Attachment 2, Minimum Woody Vegetation Stocking Rates.
2.
Texas proposes to add, to the Table of Contents, “Bobwhite Quail and Other Grassland Bird Species” as a sub-category of “D. Fish and Wildlife Habitat.”
3.
a. Texas proposes to revise its original 70 percent ground cover technical standard for bobwhite quail and other grassland bird species habitat by changing it to 63-70 percent.
b. In the statistical comparison section, Texas proposes to add the lowest acceptable value of 57 percent (63% × 0.9) and the highest acceptable value of 77 percent (70% × 1.1) for ground cover on bobwhite quail and other grassland bird species habitat.
4.
a. Texas proposes to revise the ground cover technical standard for bobwhite quail and other grassland bird species habitat by changing it from 70 percent ground cover to 63-70 percent ground cover.
b. Texas proposes to revise the woody-plant stocking rate exception clause as follows:
90% of the Following Technical Standard except for mottes used to support Bobwhite Quail and [Other] Grassland Bird Species, the standard for which is based on meeting or exceeding the following Technical Standard:
Site-specific success standards will be developed by the permittee through consultation with the Texas Parks and Wildlife Department. Standards will be approved by the Texas Parks and Wildlife Dept.
5.
Texas proposes to revise the headings “General Land Use Category” and “Planting Standards” by changing them to “General Wildlife Land Type Category” and “Stocking Rates/Planting Standards.”
6.
a. Texas proposes to revise the Table of Contents by adding “Bobwhite Quail and Other Grassland Bird Species Habitat Management Practices” to Section E. Fish and Wildlife Habitat.
b. Texas proposes to revise Section E. Fish and Wildlife Habitat by adding “Bobwhite Quail and Other Grassland Bird Species Habitat Management Practices” concerning Native Grass and Forb Restoration, Grazing, Patch Burning, Strip Discing, Brush Management, Prescribed Burning, Bobwhite Ecology and Management.
We are reopening the comment period on the proposed Texas program amendment to provide the public an opportunity to reconsider the adequacy of the proposed amendment in light of the additional materials submitted. Under the provisions of 30 CFR 732.17(h), we are seeking comments on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Texas program.
Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see
Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include Attn: TX-054-FOR and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Tulsa Field Office at (918) 581-6430.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Texas program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Texas program has no effect on Federally-recognized Indian tribes.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Wyoming regulatory program (hereinafter, the “Wyoming program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Wyoming proposes revisions to and additions of rules about self-bonding (Rule Package 1-U). Wyoming intends to revise its program to be consistent with the corresponding Federal regulations, provide additional safeguards, clarify ambiguities, and improve operational efficiency.
This document gives the times and locations that the Wyoming program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., m.s.t. May 22, 2006. If requested, we will hold a public hearing on the amendment on May 16, 2006. We will accept requests to speak until 4 p.m., m.s.t. on May 8, 2006.
You may submit comments, identified by “SATS No. WY-035-FOR” by any of the following methods:
• E-mail:
• Mail/Hand Delivery/Courier: Willis Gainer, Acting Director, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, Federal Building, 150 East B Street Rm 1018, Casper, Wyoming 82601-1018. 307/261-6550.
• Fax: 307/261-6552.
• Federal eRulemaking Portal:
Willis Gainer, Telephone: 307/261-6550; E-mail:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Wyoming program in the November 26, 1980,
By letter dated March 7, 2006, Wyoming sent us a proposed amendment to its program (administrative record No. WY-40-1) under SMCRA (30 U.S.C. 1201
The provisions of Wyoming's Rules that Wyoming proposes to revise are:
Chapter 1, section 2(k).
Chapter 11, section 2(a)(vii)(A), section 2(a)(xii)(A) and (B), section 2(a)(xii)(D) and (E).
Specifically, Wyoming proposes to make the following additions or revisions to its rules:
Revise Chapter 1, section 2(k) to expand the definition of “bond” to allow the Administrator to accept alternative financial assurances which provide comparable levels of assurance for reclamation performance, and require OSM approval of the alternative assurances.
Revise Chapter 11, section 2(a)(vii)(A) to allow operators to use an alternative “nationally-recognized statistical rating organization,” as approved by the Securities and Exchange Commission, if acceptable to the regulatory authority and equivalent to a rating of “A” or higher by either Moody's Investor Service or Standard and Poor's Corporation.
Revise Chapter 11, section 2(a)(xii)(A) to allow the Administrator to accept an increased self-bond limit of 35% of net worth for operators provided they meet more stringent financial ratios.
Revise Chapter 11, section 2(a)(xii)(B) to allow the Administrator to accept an increased self-bond limit of 30% of net worth for parent corporate guarantors provided they meet more stringent financial ratios.
Add newly-created Chapter 11, section 2(a)(xii)(D) to allow an operator to include foreign assets when calculating tangible net worth if the operator provides the information required under newly-created subsection (E).
Add newly-created Chapter 11, section 2(a)(xii)(E) which details the additional requirements if the Administrator accepts a foreign parent or non-parent corporate guarantee including: A legal opinion concerning the collectability of the self-bond in a foreign country; a separate bonding instrument to cover the estimated cost of collection; and a requirement that all audited financial statements be prepared in English with generally accepted accounting principles.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Wyoming program.
Send your written or electronic comments to OSM at the address given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your written comments when developing the final rule if they are received after the close of the comment period (see
Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. WY-035-FOR” and your name and
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.
This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
No environmental impact statement is required for this rule since agency decisions on proposed State regulatory programs plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4321 et seq.) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
The Department of the Interior 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 et seq.). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a
This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to remove the Pacific coast population of the western snowy plover (
The finding announced in this document was made on April 21, 2006.
Data, information, comments, or questions concerning this finding may be sent to the Field Supervisor (Attn: WSP-DELIST), Arcata Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road, Arcata, California 95521-5582 (fax: 707-822-8411). The petition and supporting information are available for public inspection, by appointment, during normal business hours, at the above address.
Jim Watkins, Fish and Wildlife Biologist, in Arcata (telephone: 707-822-7201).
Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531
The Pacific coast population of the western snowy plover (
On July 29, 2002, we received a petition from the Surf-Ocean Beach Commission of Lompoc, California, to delist the Pacific Coast WSP pursuant to the Act. We also received a similar petition dated May 30, 2003, from the City of Morro Bay, California. As explained in our 1996 Petition Management Guidance (Service and NMFS 1996b), subsequent petitions are treated separately only when they are greater in scope or broaden the area of review of the first petition. The City of Morro Bay petition repeats the same information provided in the Surf-Ocean Beach Commission petition and was therefore treated as a comment on the first petition received. On March 22, 2004 (69 FR 13326), we announced an initial (90-day) finding that the petition presented substantial information to indicate the petitioned action may be warranted, and we initiated a status review under sections 4(b)(3)(A) and 4(c)(2)(A) of the Act. We have now completed the status review on the species using the best available scientific and commercial information, and have reached a determination regarding the petitioned action. This status review also fulfills the requirements of 4(c)(2).
Snowy plovers are small shorebirds, about 16 centimeters (6 inches) long, with pale brown upperparts, buff-colored bellies, and darker patches on their shoulders and heads. Their dark gray to black legs are a useful distinguishing feature when comparing to other plover species (Page
The breeding range of the western snowy plover includes sites in California, Oregon, Washington, Nevada, Utah, Arizona, Colorado, New Mexico, Kansas, Oklahoma, Texas, and Baja California, central and northeastern Mexico, as well as irregularly visited sites in Saskatchewan, Canada; and Wyoming and Montana (Page
The second North American subspecies, the Cuban snowy plover, nests along the Gulf coast from Louisiana to western Florida and south through the Caribbean (American Ornithological Union (AOU) 1957; Service 1993 (58 FR 12864); Page
Some plovers nesting on the Pacific coast migrate north or south to other Pacific coastal wintering sites, while others stay at their breeding sites year round. Birds nesting in the interior, west of the Rocky Mountains (the western interior population) winter in coastal California and Baja California, Mexico, and often commingle with the Pacific Coast WSP. However, some individuals from the southern California interior do not migrate (Page
The timing of the nesting season varies with location, but in coastal California it tends to run from March through September (Page
The current known breeding range of the Pacific Coast WSP extends from Damon Point, Washington, to Bahia Magdelena, Baja California, Mexico. Observed estimates for the Pacific Coast WSP, rangewide, are approximately 3,700 individuals; within that total, the observed estimate of the U.S. population of the Pacific Coast WSP is approximately 1,800 adults (see Table 1) (L. Stenzel,
Recent census data for the Baja California, Mexico population of the Pacific Coast WSP do not exist; however, we use the observed estimate of 1,900 adults as provided in Page
In 2000, there were 976 breeding adult plovers observed in coastal California. Surveyors observed 1,387 and 1,444 adult plovers during similar breeding season surveys conducted in 2002 and 2003, respectively. Statewide breeding season window surveys for California demonstrate an increase in observed breeders from 2001 through 2005, although there is still an overall decline when compared to historic breeding population numbers (J. Baldwin,
The increase in the number of adult plovers observed during breeding season window surveys in the southern part of California is related, at least in part, to protections and associated management provided to the federally endangered California least tern (
The petition asserts that the Pacific Coast WSP does not meet the Act's definition of a threatened species as its population is in flux rather than decline. The petition offers a table and a graph to support this assertion: The graph in section 5.1.2 of the petition provides breeding population counts for Vandenberg Air Force Base (VAFB) for 1978 through 2001, and the table in section 5.1 (included as part of Table 2 above) provides breeding population census counts for the California coast during 6 years from 1980 to 2000. The graph shows VAFB breeding population fluctuating in size from more than 100 to about 20 between 1978 and 2001.
The petition states that the VAFB data reflect dramatic fluctuations that can occur within the plover population. Vandenberg has two sections of beach that support plover breeding known as North Beach and South Beach. The graph presented within the petition (subsection 5.1.2) shows that Vandenberg's plover population has fluctuated dramatically, with an overall increase from 119 birds in 1978 to 121 birds in 2001 (Surf Ocean Beach Commission 2002). However, the petition does not provide the sources for the data in the graph. We believe the data in the petition's graph from 1993 to 2001 are from annual plover monitoring reports that VAFB started in 1993 (
It appears that the 1978 data in the petition's graph are from Page and Stenzel (1981), but it is not clear upon what the intermittent counts presented in the graph between 1978 and 1993 are based. This graph shows a population increase from 193 to 239 breeding adults over the years 1993 to 1997, a decrease to 132 and then 78 adults in 1998 and 1999 following severe storms and an oil spill in the winter of 1997 through 1998, and then a slow increase up to 122 adults in 2001. The VAFB monitoring reports also note generally increasing efforts to exclude human interference with nesting during these years. Based on these data alone, it appears that plover breeding numbers can be seriously affected by random natural events such as heavy storms, but this does not support the petition's conclusion that the plover population is in flux rather than decline. The 1978 data, which petitioners offer as evidence of an overall increase of 119 to 121 birds, was itself collected after heavy winter storms. These storms were so severe that only 7.1 mi (11.5 km) of beach were available for nesting (Page and Stenzel 1981; L. Stenzel, pers. comm. 2003); in contrast, in 2001, 12.5 linear miles (mi) [20.1 linear kilometers (km)] of beach were available for nesting (Hickey and Page 2001). The 1978 numbers would therefore likely have been depressed from historic levels, and would constitute poor support for the petition's conclusions regarding overall population trends. More importantly, we do not consider census data from VAFB alone to reasonably support conclusions concerning the entire Pacific coast population. Pacific Coast WSP do occasionally nest or renest at other coastal locations (Stenzel
The table in section 5.1 of the petition provides census data for the California coast and serves as a better indication of population trends for the Pacific Coast WSP, because “the California coast population represents at least 90 percent of the listed Pacific coast population in the United States” (D. Noda,
We developed Table 2 (above) to show California coastal population estimates based on the observed number of adult plovers during breeding season window surveys. Table 2 consists of the population counts reported in the petition's table for years other than 1995 and 1997, along with population counts from 2002 through 2005 which we added to the Table.
The increase first observed in 2002 is encouraging, and we attribute the population increases to the implementation of conservation strategies by our recovery implementation stakeholders, such as California State Parks, who have engaged in habitat restoration and the use of extensive symbolic fencing. It is also important to note that the population level documented by Page and Stenzel (1981), was likely depressed by severe storms and resulting beach erosion during the winter of 1977 through 1978 (Page and Stenzel 1981). Counts conducted at VAFB from 1998 through 2000 showed a drop in adult plover numbers from 238 to 132 following similarly severe storms during the winter of 1997/1998 (Applegate and Schultz 1999; Applegate and Schultz 2000). Although the survey conducted in 1977 through 1980 provided fairly high population estimates, Page and Stenzel (1981) noted: “Numbers have definitely declined on the coast; the species was not found breeding in 33 of the 53 locations with breeding records prior to 1970. Of the 33 areas, 28 are not likely to have regular breeding populations again because the habitat has been destroyed or human use of the area is too great.” The petition interprets such conclusions as speculative since they were not based on census data and do not show how often particular breeding sites were used. While we agree that any precise population estimates based on such data would be speculative, we believe the indications of lost habitat provided by Page and Stenzel (1981) are well supported and reasonably lead to the conclusion that historic population levels were higher than those documented in the 1977 to 1980 census. We therefore consider the available data on the coastal California population to provide more support for the contention that the Pacific Coast WSP has declined from historical levels.
The listing decision was also based on the loss of 33 California breeding sites. An additional 11 sites have been subsequently identified as having also lost nesting plovers since the original work was completed and reported in the listing decision (L. Stenzel,
The petition also cites a recent Pacific Coast WSP viability analysis that indicates the population would likely remain above an “extinction threshold” of 50 individuals for at least 100 years under the 1999 status quo (Nur
In a 12-month finding, we must determine if: (1) The petitioned action is warranted; (2) the petitioned action is not warranted; or (3) the petitioned action is warranted but precluded by other higher priority activities. Under the Act, a species is defined as including any subspecies and any distinct population segment of a vertebrate species (16 U.S.C. 1532). To implement the measures prescribed by the Act and its Congressional guidance, we and the National Marine Fisheries Service (National Oceanic and Atmospheric Administration-Fisheries), developed a joint policy that addresses the recognition of DPSs of vertebrate species for potential listing actions (Service and NMFS 1996a (61 FR 4722)). The policy allows for a more refined application of the Act that better reflects the biological needs of the taxon being considered, and avoids the inclusion of entities that do not require its protective measures. As noted above, in 1993, we listed the Pacific Coast population of the WSP as threatened. As this was prior to our 1996 DPS policy, a first step in this status review process is to review the available information to assess whether the Pacific Coast WSP 1993 listing determination is consistent with the 1996 DPS policy.
The DPS policy specifies that we are to use three elements to assess whether a population segment under consideration for listing may be recognized as a DPS: (1) The population segment's discreteness from the remainder of the species to which it belongs; and (2) the significance of the population segment to the species to which it belongs; and (3) the population segment's conservation status in relation to the ESA's standard for listing (61 FR
The DPS policy states that a vertebrate population segment may be considered discrete if it satisfies either of the following two conditions:
1. It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or
2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
The following discussion addresses only the first condition, since the Pacific Coast WSP DPS includes plovers within Baja California, Mexico and is not delimited by an international boundary.
The 1993 listing rule stated that the Pacific Coast WSP is “genetically isolated” from the interior breeding populations (58 FR 12864). We based this conclusion on banding and monitoring data, not genetic data. At the time of listing, we assumed the reproductive separation indicated by the banding data, over time, could lead to genetic differentiation. Genetic data for the western snowy plover was not available in 1993.
In this status review process, we examine the best information now available, which includes banding, monitoring, and genetic information, and assess the petition's additional points on discreteness, to determine if the 1993 listing determination was consistent with the 1996 DPS policy. Western snowy plovers from populations in the eastern interior (east of the Rockies), the Gulf Coast, and the Mexican interior are not likely to interact with the Pacific Coast WSP, and are not known to visit the Pacific coast (Page
Banding and monitoring studies are useful methods for evaluating the discreteness of two populations provided that the banding effort adequately samples each population, and the monitoring effort is adequate to provide reasonable probabilities of detecting banded individuals (J. Plissner,
In this finding, we rely primarily on the banding and resighting efforts conducted during the period of 1984 through 1993, as this is the period when banding efforts were underway at several areas on the Pacific coast and in the western interior, and nest monitoring studies and breeding season surveys were underway at many locations when banded birds could be detected. Interior populations have not been banded since 1993 (L. Stenzel,
Subsequent nest monitoring and breeding season surveys conducted in the Pacific coast and western interior breeding zones from 1985 through 1995 provided an opportunity for resightings of banded birds. During that time, a total of 22 U.S. coastal surveys; 1 coastal Baja California, Mexico survey; and 4 western interior surveys were conducted, many of which were repeated over several years (Palacios
A total of 907 banded plovers were detected by these breeding surveys and studies. It is important to note that this figure does not include plovers that were resighted in their original region (coastal or western interior) without evidence of nesting, and does not include plovers that were banded on the coast during the winter, as their breeding range could not be established. The total does include six plovers that were found nesting in more than one location, and so were counted twice. Of these 907 resighted plovers, only 13 (1.4 percent) were found in a geographic area (coastal or western interior) that was different from their original breeding range. Two of those 13 plovers (0.2 percent of the total 907 birds) were found nesting outside of their original breeding range. One of these two plovers, a coastal female nesting at the Kesterson National Wildlife Refuge in 1986, was one of the two birds mentioned in the original listing rule (Service 1993 (58 FR 12864)). The other was a male banded in the interior (though never found nesting in the western interior) and later found nesting on the coast in 1995. The other 11 plovers were all coastally banded and found in the interior without nests (G. Page,
In addition to the 1984 through 1993 period, the period from 1977 through 1983 provides another opportunity to detect movements between the western interior and Pacific Coast WSP populations. However, surveys were less comprehensive during this time period, and only one banding study took place in the western interior. Therefore, this period is less useful for assessing breeding dispersal, but still provides additional relevant information. During this period, 599 plovers were banded at seven sites along the central California coast, and 400 were banded in the western interior at Mono Lake, California (G. Page,
In addition to colored bands, whose combinations were administered by the Point Reyes Bird Observatory (PRBO), some studies employed metal bands administered by the Patuxent Bird Banding Lab. Resightings of these bands were less common, since recapture of the bird is generally required to read the band number. Of the 304 band retrievals reported to Patuxent Bird Banding Lab for years 1969 to 2002, one male was found to have moved from the Pacific coast to an interior location. This plover was banded during the non-breeding season (November 1984) near Ano Nuevo, California, and retrieved during the breeding season (June 1988) near Lake Albert, Oregon (G. Goldsmith,
We asked six researchers familiar with avian banding studies to examine the available banding data for the Pacific Coast WSP and plovers from the interior west of the Rocky Mountains, and provide us their professional opinions about the adequacy of those studies for determining reproductive separation between the two populations. Four of the reviewers responded. Three concluded that there appears to be little exchange of reproductive individuals between the western interior and coastal sites (G. Smith, USGS,
We find that the existing banding and resighting data are sufficient to document that the Pacific Coast WSP and the western interior breeding populations experience limited or rare reproductive interchange. We are most confident in the data from the 12-year period 1983 through 1995, as that is the period with the most extensive banding studies and search efforts. The results from that period indicate that 98.6 percent of the sampled plovers were observed during the breeding season using the same breeding range as where they were originally banded. We consider the results from that period sufficient to document a marked separation of breeding ranges, and illustrate that the amount of interchange between coastal and western interior populations is likely to be extremely low, though not zero. Results from the 1977 through 1984 period and the Patuxent banding data are also consistent with this conclusion. Our DPS policy does not require complete reproductive isolation, and allows for some limited interchange among population segments considered to be discrete (Service and NMFS 1996a (61 FR 4722)). Based on the results of these banding and monitoring data, we conclude that the Pacific Coast WSP is not freely interbreeding with other members of the taxon, although some genetic interchange likely occurs at a very small rate. This constitutes a marked separation due to breeding behavior.
The banding data also indicate that interior nesting plovers overwintering on the Pacific coast are likely to be obligatory migrants, whereas many individuals in the Pacific Coast WSP either do not migrate, or do so only for short distances along the coast (Page
The petition asserts that the Pacific Coast WSP is not highly isolated, and provides VAFB monitoring records from 1993 to 1999 as supporting documentation to demonstrate that the Pacific Coast WSP and western interior populations commonly interbreed. VAFB is a coastal Santa Barbara County breeding site. The petition contains a table summarizing the VAFB survey records and indicating that during 1993 to 1999, 90 plovers present during the breeding season had hatched elsewhere. However, our analysis below of the VAFB monitoring records supports a different conclusion than that reached by the petitioners and instead provides additional evidence demonstrating that coastal and interior populations do not commonly interbreed.
Two of the 90 non-local birds cited in the VAFB monitoring records came from the western interior. These two plovers were banded at Abert Lake (in interior Oregon) (Stern
The other 88 plovers in the VAFB monitoring records had all hatched on the coast, and were, therefore, also members of the coastal population (Stenzel
Evidence of genetic distinctness can inform our analysis of the discreteness of a population. In determining whether the test for discreteness has been met under our DPS policy, we consider available genetic evidence, but such evidence is not required to recognize a DPS. The petition questions the validity and effectiveness of using banding studies, as compared to genetics, for investigating levels of gene flow. When conducted properly, we find that both banding and genetics studies provide useful information. The petition relies heavily on a master's thesis (Gorman 2000) that did not find evidence of genetic differentiation between the Pacific Coast WSP and western interior snowy plover populations using mitochondrial DNA (mt DNA).
Several commenters also pointed out that mtDNA markers in Gorman's study may have been indicating interbreeding that happened thousands of years ago and suggested that additional studies using a marker with a finer resolution, such as microsatellite comparisons, should be conducted (B. Crespi,
Given these available data indicating that the mtDNA and microsatellite data show no evidence of significant genetic differentiation between Pacific Coast and interior WSP populations, the Service's responsibility is to interpret the result in terms of our DPS policy. As noted in Funk
Thus, the two regions (in this case, the Pacific Coast and western interior populations) may continue to function as demographically independent populations despite sufficient gene flow to homogenize gene pools (which may require just a few individuals per generation) (Funk
In summary, the genetic information available to us in Gorman (2000) and Funk
Based on the available information in the petition, scientific literature, and in our files regarding western snowy plover range and distribution, we conclude that the Pacific Coast WSP is markedly separate from other populations of the subspecies due to behavioral differences and that it, therefore, meets the requirements of our DPS policy for discreteness. Banding studies and resighting efforts demonstrate that during breeding, the Pacific Coast WSP segregates geographically from other members of the subspecies, even those that also winter on the Pacific coast. Although not absolute, this segregation is marked and significant.
Under our DPS policy (61 FR 4722), once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to, the following factors:
1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,
2. Evidence that loss of the discrete population segment would result in a significant gap in the range of the taxon,
3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or
4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.
We evaluated available information to assess whether the 1993 designation was consistent with the above factors or other relevant factors to explain why the Pacific Coast WSP is significant to the subspecies of western snowy plover. In this finding, we are only addressing the significant gap in the range of the taxon because that is the only significant criteria factor that applies.
One approach to assessing whether the Pacific Coast WSP constitutes a substantial portion of the western snowy plover subspecies (Pacific Coast, interior, and Gulf Coast) is to evaluate the size of the subspecies. Estimating size of a broadly yet patchily distributed subspecies like the western snowy plover is a difficult task to accomplish (Gorman and Haig 2002). At this time, our best available estimate of the subspecies' current total size is about 24,136 birds (Page
The estimate in Table 1 of the total number of birds of the subspecies takes into account the following new data: Dr. Peter Paton recently revised his original published estimate of 10,600 birds for Utah (Page
Monitoring results are not available for the interior and northeast coastal Mexico areas, and recent estimates have not been developed for several of the interior western snowy plover breeding areas. In light of this inconsistent survey coverage, we considered it appropriate to use the largest of the available estimate ranges available for the interior breeding plovers, so as not to overstate the significance of the Pacific Coast WSP. We acknowledge that the number of birds within the subspecies could be more or less than that indicated by the best available information. As presented in Table 1 above, the Pacific Coast WSP current population estimate is approximately 20 percent of the taxon's total estimated size (4,804 of 24,136 total birds). Therefore, we contend that using this conservative interpretation of the best available data, the 2005 Pacific Coast WSP constitutes approximately 20 percent of the subspecies.
The petition also states that because the range of interior western snowy plovers overlaps that of Pacific Coast WSP (by virtue of sharing winter ranges), they have “ample opportunity to socialize, pair bond, and inter-breed.” We agree that the potential exists for interactions to occur between wintering interior western snowy plovers and Pacific Coast WSP, but banding data indicate that such interactions occur at very low rates.
The petition suggests, without any supporting evidence, that interior-nesting western snowy plovers would colonize the coastal breeding habitat if the Pacific Coast WSP were extirpated. As described earlier, the Pacific Coast WSP population declined during the 1970s to mid-1990s, leaving many historical breeding locations vacant throughout the coastal range, and even though ample habitat remained intact, it was not colonized by any plovers (coastal or interior). Analysis of the available banding data indicates that there is little interchange between the coastal and interior breeding populations (G. Smith, USGS,
This apparent lack of interchange between coastal and western interior breeding sites may be explained by the relatively high degree of site fidelity exhibited by this species. Breeding and winter site faithfulness vary between sites. Stenzel
There is no evidence to indicate western interior populations would recolonize the Pacific coast if the listed population were lost. Therefore, such loss would remove 2,000 miles of coastline, stretching from Washington to Baja California, from the subspecies' breeding range. The Pacific coast constitutes the vast majority of coastal breeding habitat used by the subspecies (the rest being in southern Texas and northeastern Mexico), as well as the westernmost extent of the taxon's breeding range.
We find that the Pacific Coast DPS is significant to the subspecies of western snowy plover because it comprises approximately 20 percent (one-fifth) of the subspecies' estimated population based on the 2005 breeding window survey results. We conclude that the best available data demonstrate that the likelihood of pair bonding and interbreeding between the Pacific Coast WSP and the interior-nesting western snowy plovers is very low, and that there is no evidence indicating that interior breeding plovers would rapidly reestablish a viable breeding population along the Pacific Coast following the extirpation of the coastal population. Accordingly, loss of the Pacific Coast WSP would result in a significant gap in the breeding range of the taxon. It would constitute the loss of a substantial percentage of the subspecies, curtailing the taxon's current breeding range by 2,000 miles of coast line.
We find that the Pacific Coast WSP qualifies as a DPS under the Act, as recognized under our 1996 DPS Policy (Service and NMFS 1996a (61 FR 4722)). The Pacific coast population is discrete based on extensive banding data showing marked reproductive separation from other populations. Of the 4,170 plovers banded over the 12-year period with the most extensive banding and resighting surveys, 907 were resighted. Of these 907, 894 plovers (98.6 percent) were resighted within their natal or nesting site breeding ranges, 11 coastal plovers (1.2 percent) were resighted in the interior without nests, and 2 plovers (0.2 percent) were resighted nesting outside of their original breeding range. These results suggest a marked reproductive separation between the Pacific Coast WSP and other interior western snowy plovers.
The 1993 listing decision suggested that genetic differentiation between coastal and interior populations was likely. There is no evidence that such differentiation exists and existing information suggests coastal and interim populations do not markedly differ genetically. However, the banding data and the resighting efforts provide compelling information that during breeding, the Pacific Coast WSP segregates geographically from other members of the subspecies, even those that winter on the coast.
The Pacific Coast WSP is also significant to the rest of the taxon because its loss would cause a significant gap in the range of the subspecies. The Pacific Coast WSP comprises approximately 20 percent of the subspecies estimated total size. We have no evidence that interior breeding plovers would reestablish a viable population along the Pacific coast following the extirpation of the coastal population. Accordingly, loss of the Pacific Coast WSP would result in a significant gap in the breeding range of the taxon.
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 identified in section 4(a)(1) of the Act. These factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) over utilization 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. Delisting may occur only 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 (50 CFR 424.11).
The petition states that the “western snowy plover has been very adaptive at exploiting opportunities to breed at new habitat that was created by humans including the Salton Sea, San Francisco Bay Salt Ponds, Central Valley agricultural ponds, and Batiquitos Lagoon.” We agree with the petition's assessment as it relates to the Pacific Coast WSP. The western snowy plover is an early successional species that depends on dynamic habitat. As conditions change, the western snowy plover (including the Pacific Coast WSP) has the ability to colonize new sites. Because coastal habitats are dynamic, and change within a season or between seasons, the Pacific Coast WSP must adjust. However, our information shows that loss of nesting and wintering habitat remains one of the primary threats to the Pacific Coast WSP throughout its range. Causes of habitat loss include industrial and residential development, the spread of nonnative dune-stabilizing vegetation, human recreational use at levels that preclude nesting attempts, and various habitat alteration projects.
Urban development permanently removes important nesting habitat above the high tide line. It is a major source of habitat loss in all three western U.S. coastal States, and particularly in southern and central California (Page and Stenzel 1981; Page
Another major source of habitat loss has been the spread of nonnative dune-stabilizing vegetation such as European beachgrass (
American beachgrass (
In southern California, large expanses of beach previously used for nesting are no longer available as habitat due to extensive recreational use by humans. Popular recreational beaches may be completely covered by human footprints, and may also undergo daily or weekly mechanized beach raking to remove trash and tide-cast wrack (Page and Stenzel 1981; Powell
The final category of habitat loss is habitat alteration projects, which include diversions and impoundments of streams and rivers, management of salt ponds for marsh habitat, dredging
Salt ponds, such as in the San Francisco, Monterey, and San Diego Bays in California, may be operated to the benefit or detriment of nesting plovers by allowing ponds to flood or dry at particular times (Page
A survey of breeding plovers in Baja California, Mexico, noted two large salt works (one completed and one planned) at Laguna Oja de Liebre and Laguna San Ignacia, respectively. The survey noted numerous plovers continuing to nest at the completed facility, but also noted the loss of some nests and chicks there due to vehicular use of the area. The survey was unable to determine whether overall impacts from the two facilities would be detrimental or beneficial (Palacios
Sand mining by heavy machinery, such as at Monterey Bay, California, eliminates nesting habitat within the area subject to mining, degrades nearby habitat by removing replenishing sand, and disturbs adjacent nesting due to noise and vehicle traffic (Guinon 1988). Dredging can disturb nesting plovers, alter natural patterns of sand deposition, and encourage boat-related recreational activity in plover nesting areas. Alternatively, dredge tailings have served as important nesting habitat in Coos Bay, Oregon (Wilson-Jacobs and Dorsey 1985). Breakwaters and beach nourishment projects also have the potential to benefit habitat by causing sand to accrete in nesting areas, but if designed incorrectly can also erode nesting areas or increase the slope of the beach and encourage invasive plants (Service 2001).
The petition offers some brief analyses of some of the threats to the Pacific Coast WSP addressed by the listing rule. The petition points out that many Pacific Coast WSP now breed in human created habitat “including the Salton Sea, San Francisco Bay Salt Ponds, Central Valley agricultural ponds, and Batiquitos Lagoon.” However, the Salton Sea and Central Valley agricultural ponds are outside of the breeding range of the coastal population (Service 1993 (58 FR 12864)). Use of Batiquitos Lagoon as a breeding site has increased by a total of 14 birds since its restoration as a tidal marsh in 1996 (Port of Los Angeles 2003; L. Stenzel,
In summary, habitat loss that negatively impacts Pacific Coast WSP has occurred in the past and continues to occur in the form of development, spread of nonnative dune-stabilizing vegetation, human recreational use at levels precluding nesting attempts, and habitat alteration projects. While some nesting habitat has been added at San Francisco Bay Salt Ponds that has benefited Pacific Coast WSP, it has not been sufficient to offset past and ongoing habitat losses.
The petition did not provide any information about this threat.
The only threat to Pacific Coast WSP from overutilization is potentially from scientific research. Currently, we issue permits under 10(a)(1)(A) of the ESA to qualified individuals for nesting studies, surveys, banding, and protective management techniques such as nest exclosures. Disturbance of plovers is kept to a minimum through surveyor training and by minimizing time spent in nesting areas. While exclosures typically increase fledge rate, they also reveal nest site locations to predators, thereby potentially increasing the danger to adults and chicks as they leave the nest site to forage (Neuman
As noted in the petition, it is also theoretically possible for bands to increase the likelihood of predation, by increasing the visibility of the plovers. This is extremely difficult to test because there is no way of knowing the predation rate on unbanded birds. If such an effect does exist it would be more likely to apply to avian predators, since the primary mammalian predators (red fox (
The petition did not provide any information about disease as a threat. However our information shows that West Nile virus, a mosquito-transmitted pathogen that can infect numerous species of birds, reptiles, and mammals, has killed birds of various species in every coastal California county (USGS 2005a), as well as one coastal county in Oregon (Lane County) (USGS 2005b). The disease has not yet been reported in any Washington coastal counties (USGS 2005c), but will likely reach those counties in the near future, as it has spread rapidly across the United States from an initial introduction in New England (National Audubon Society 2004). The deadliness of the disease to birds varies by species (National Audubon Society 2003), but the disease has been identified in dead piping plovers (
Clark
The petition raised the issue of predation in both an historical and contemporary context. Specifically, the petition maintains that humans have been altering predator populations in California since the 1700s when Spanish explorers began their movements along the Pacific Coast. Because predators have been removed from western snowy plover habitat, the petitioners believe that the plovers were able to “colonize areas where they had never lived before.”
Predation has been found to be a major factor affecting nesting success across the range of the DPS. In San Diego County, California, crows (
Factors affecting predation levels on the Pacific Coast WSP include trash left near nesting areas; the availability of nearby cover for mammals or perches for birds; the existence of dependable food sources such as dumps and fish cleaning sites for gulls, ravens, crows, or red foxes; and the proximity of urban areas supporting dogs and cats (Service 2001). Plovers spend so much energy reacting to human disturbance that their ability to react appropriately to actual predators is lessened (Powell
The petition asserts that humans may have helped plover populations by killing many plover predators. Intensive management and control of predators has likely led to an increase in plover numbers since the DPS was listed. The use of nest exclosures has increased hatch rates (Colwell
In summary, disease and predation impact site-specific plover reproductive success and survival. Disease has become a recent, ongoing threat since the 1993 listing, resulting in the death of plovers from Monterey Bay, California, south to the Mexican border. We do not know the extent of the mortalities in the United States because not all of the carcasses are found due to predation, wind blown sand, and tidal action. In addition, we do not have information regarding the extent of plover deaths related to disease or toxins in Mexico. Deaths in the United States will continue to be monitored, and funding has been appropriated to help determine the cause of death. Predation continues to be a major factor affecting nesting success, and thus constitutes a threat to the Pacific Coast WSP. Management actions implemented largely in response to the listing have controlled many factors affecting predation. For example, the use of nest exclosures has significantly increased nest hatch rates by reducing predation (Colwell
The petition did not provide any information about this threat. Our information is discussed below.
Since the species is currently listed under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
The Clean Water Act (CWA) (33 U.S.C. 1251
Section 10 of the Rivers and Harbors Act (33 U.S.C. 403) requires a permit from the Corps for any structure or work that takes place in, under, or over a navigable water or wetland adjacent to navigable waters of the United States (Army Corps of Engineers,
The National Environmental Policy Act, as amended (42 U.S.C. 4321-4347), requires that each Federal agency prepare an environmental impact statement on the potential environmental consequences of major actions under their jurisdiction. This does not preclude the agency from choosing environmentally damaging actions, but it does disclose the existence of such actions and any less environmentally damaging alternatives.
The Coastal Zone Management Act (CZMA) (16 U.S.C. 1451-1464) helps fund State development of comprehensive programs to protect and manage coastal resources, and requires Federal agencies to act consistently with those programs.
Finally, the National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57) establishes the protection of biodiversity as the primary purpose of the national wildlife refuge system. This has lead to various management actions to benefit Pacific Coast WSP at national wildlife refuges in the three Pacific coastal States. For instance, the Don Edwards-San Francisco Bay National Wildlife Refuge has acquired lands and is working with the Cargill Salt Company to restore historic salt marsh around San Francisco Bay (M. Kolar,
Other than the MBTA, the Pacific Coast WSP has no regulatory protection in Mexico.
State lands administered by the California Department of Parks and Recreation, California Department of Fish and Game, Oregon Department of Fish and Wildlife, Oregon Parks and Recreation Department, Washington Department of Fish and Wildlife, Washington State Parks and Recreation Commission, and Washington Department of Natural Resources play an important role in conservation of western snowy plovers and their habitats. Approximately 21 percent, 12 percent, and 9 percent of the breeding population of western snowy plover in California, Oregon, and Washington, respectively, occurs on State lands. Intensive management for western snowy plovers occurs at a number of State-owned plover habitat areas.
The western snowy plover is a Bird Species of Special Concern in California. This designation confers no regulatory advantage, but is associated with recommendations and increased visibility to management agencies (Remsen 2003).
The California Coastal Management Program, administered by the California Coastal Commission in accordance with the CZMA includes a system of: (1) Coastal permits and appeals; (2) planning and implementation of local coastal programs; and (3) Federal consistency review. Most local coastal programs and general plans were completed prior to the 1993 Pacific Coast WSP's listing; therefore, many do not reflect protective measures specifically for the western snowy plover. However, it is likely that the
In California, biannual western snowy plover coordination meetings are held among Federal and State agencies and Point Reyes Bird Observatory staff to track the breeding population of western snowy plovers in the Monterey Bay area. Meetings of this working group have been ongoing since 1991. Management needs such as exclosures, symbolic fencing, predator control, removal of exotic vegetation, and acquisition of key sites are considered and planned through this forum. A working group for San Luis Obispo and Santa Barbara Counties, consisting of site managers, western snowy plover monitors, and our staff, began meeting twice annually in 2001 to address management needs of the Pacific Coast WSP. The group is also coordinating window surveys of breeding and wintering birds in that region.
The California State Parks and the Point Reyes Bird Observatory have developed some of the leading outreach tools, such as the docent program implemented at Half Moon Bay State Beach, that have been found to be effective rangewide. California State Parks and the Point Reyes Bird Observatory have worked cooperatively with the National Park Service (Golden Gate National Recreation Area and Point Reyes National Seashore), the Salinas River National Wildlife Refuge (NWR), and the California Department of Fish and Game to manage human use in plover wintering and breeding habitat adjacent to large population centers (Page,
The Salinas River NWR, along with California State Parks and Point Reyes Bird Observatory, has made significant achievements in habitat and predator management. Symbolic fencing, nest exclosures, lethal and nonlethal methods of predator control, and outreach techniques have all been pioneered in this area. Plovers had record reproductive success at Monterey Bay during 2003 (Page,
The western snowy plover is listed as threatened under the Oregon Endangered Species Act (Oregon Administrative Rules (OAR) 635-100-0125). This OAR protects against actions that would directly kill plovers (OAR 635-100-0100, 41 ORS 498.026), and also requires the establishment of “survival guidelines,” which in the plover's case refers to a conservation program defined at OAR 635-105-000. The program authorizes the preparation of several site-specific management plans for State lands. State agencies must consult with the Department of Fish and Wildlife (ODFW) as to whether their actions are consistent with the local management plan (if one exists), or if not, whether the actions will appreciably reduce the likelihood of survival or recovery of the western snowy plover. The action agency makes the final determination. At this time, the local management plans are not completed, but an interagency group has been formed to work on them, as well as on a Statewide habitat conservation plan under section 10 of the Act, and on coordination of various protective management efforts such as predator control and monitoring (Lauten,
Oregon has also developed a coastal zone planning system consistent with the CZMA, which includes several elements beneficial to western snowy plovers and their habitat. The system requires local jurisdictions to develop local comprehensive plans and implementing measures according to a set of 19 goals. Those goals include requirements for protection of wildlife habitat, including estuarine, beach and dune ecosystems, and also encourage planning and coordination among agencies.
The snowy plover is listed as endangered under the State endangered species regulations (Washington Administrative Code 232-12-14), which authorizes the preparation of a recovery plan for the species. The State's Shoreline Management Act (RCW 90.58), which enacts coastal zone management programs applicable to the CZMA, also provides some protection to the species by requiring local planning efforts to regulate coastal development. The Shoreline Management Act exempts single family housing construction from the coastal permit process (WDOE 1999).
In summary, while State laws and regulations provide some level of protection for the Pacific Coast WSP, those protections are not consistent throughout the Pacific Coast WSP's range. As a result, these existing regulatory mechanisms do not address threats to the Pacific Coast WSP to such an extent that it is no longer in need of the protections of the Act.
In addition to various protections for coastal habitat enacted under the CZMA related statutes (see above), several local jurisdictions, such as Half Moon Bay, California, and Coos and Curry Counties, Oregon, have enacted regulatory policies specifically to protect the western snowy plover. However, based on results of a questionnaire sent to local governments, it appears that other local planning efforts generally do not take the snowy plover into account (Service 2001). In totality, existing local regulations are inadequate to address the Pacific Coast WSP's threats to such an extent that it is no longer in need of the protections of the Act.
Many of these Federal, State, and local regulatory mechanisms were in place prior to the Federal listing of the Pacific Coast WSP, and were not adequate to prevent the loss and degradation of Pacific Coast WSP habitat and decreases in Pacific Coast WSP population numbers, and therefore, not adequate to preclude the need to list the Pacific Coast WSP under the Endangered Species Act (Service 1993). While some significant gains in protection have been made by entities such as California State Parks, overall, we find that the existing regulatory mechanisms, beyond the listing itself, have not addressed the threats facing the Pacific Coast WSP, and are therefore not sufficiently adequate to warrant delisting of the Pacific Coast WSP. The Endangered Species Act provides comprehensive conservation of the Pacific Coast WSP and provides the mechanisms under which we can continue to work with the States and local governments to implement actions to recover the species. Delisting would
The petition did not provide any information about this threat. However, our information shows that most Pacific Coast WSP nesting areas occur on unstable sandy substrate which results in weather-related nest loss, a fairly common natural phenomenon. High tides and strong winds cause nest losses annually. Events such as extreme high tides (Wilson 1980; Stenzel
Disturbance of nesting or brooding plovers by humans and domestic animals is a major factor affecting nesting success. Plovers leave their nests when humans or pets approach too closely. Disturbance distances that may cause plovers to leave their nests vary widely, from about 3 to 200 meters (10 to 656 feet) in a Point Reyes, California, study (Page
Surveys at VAFB, from 1994 to 1997, found the rate of nest loss on southern beaches to be consistently higher than that on north beaches where recreational use was much lower (Persons and Applegate 1997). Ruhlen
Motor vehicles that are driven in breeding habitat may result in the crushing of eggs, chicks, and adults; cause abandonment of nests; separate chicks from brooding adults; and provide a source of considerable stress and disturbance to plover family groups and wintering plovers (J. Myers,
Additional recreational activities with potential impacts similar to those discussed for pedestrians include commercial and surf fishing, clamming, campfires, and camping. If conducted near a nest, these activities may result in long-term disturbance and ultimately nest abandonment (Colwell
Plover populations can be negatively impacted by oil spills (Persons and Applegate 1997; U.S. Bureau of Land Management 2001; Kritz 1999). Oiled plovers lose their ability to regulate their body temperature and often die of hypothermia or exposure. Additionally, oiled adults can pass oil onto eggs if they are incubating. Oil on eggs limits their ability to breathe, and introduces toxic hydrocarbons. Likewise, oiled adults that attempt to preen inhale and ingest hydrocarbons. Invertebrate populations are likely reduced as a result of beaches being oiled, reducing the available plover prey base. Oiled invertebrates may also be another source of hydrocarbon ingestion for plovers. During the 1990s, at least six oil spill incidents in California and one in Oregon resulted in adverse impacts to plovers. For example, in February 1999, the freighter
In summary, we conclude that unmanaged human disturbances and impacts related to oil spills remain a significant threat to the Pacific Coast WSP. Unmanaged human disturbances that negatively impact Pacific Coast WSP primarily include disturbance of nesting or brooding plovers by humans and domestic animals and motorized vehicle use. Oil spills and their associated clean-up can result in reproductive failure, direct mortality and injury from being oiled, and contamination of food sources. The significance of an oil spill to plovers depends on the extent of the spill, the material spilled, and the timing of the spill in relation to plover habitat and breeding chronology.
Threats to the Pacific Coast WSP remain essentially the same as at the time of its listing in 1993. However, the magnitude of the threats has been reduced through active management afforded by protections under the Act, with a resultant increase to the overall Pacific Coast WSP population. Despite the reduction in the threats' magnitude relative to the time of listing, the Pacific Coast WSP is still at risk. The most important threats are ongoing habitat loss and fragmentation; mortalities, injuries, and disturbance resulting from human activities; and lack of comprehensive State and local regulatory mechanisms throughout the range of the WSP. Although overall increases in plover numbers (which can be attributed to management actions currently being implemented) have been observed, plover population sizes are low or plovers are absent throughout parts of their historical range in Washington, Oregon, and California. Accordingly, we find that the Pacific Coast WSP continues to qualify as a threatened species under the Act (see also Finding section below).
We also note that: because some of the threats have been reduced, the estimated WSP population levels in the United States have increased over the last 4 years (L. Stenzel,
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species. We reviewed the petition, available published and unpublished scientific and commercial information, and information submitted to us during the public comment period following our 90-day petition finding. This finding reflects and incorporates information we received during the public comment period and responds to significant issues. We also consulted with recognized western snowy plover experts and Federal and State resource agencies. Based on this review, we find that (1) the Pacific Coast WSP constitutes a valid DPS, which is both discrete and significant under our DPS policy, (2) delisting of the Pacific Coast WSP is not warranted due to continued existence of threats to the DPS and its habitat, and (3) the DPS should remain classified as threatened. We reviewed the available data and information on the life history and ecology of the Pacific Coast WSP and did not find convincing information that the plover was listed in error or that the threats have changed to such an extent as to warrant delisting.
In making this determination we have followed the procedures set forth in section 4(a)(1) of the Act and regulations implementing the listing provisions of the Act (50 CFR part 424). We recognize that in the past there have been declines in the distribution and abundance of the Pacific Coast WSP, primarily attributed to habitat loss and alteration. Much of the Pacific Coast WSP's historic habitat and range has been lost or degraded. There is substantial information indicating that plover habitat continues to be threatened with loss and fragmentation (listing Factor A) resulting in a negative impact on plover distribution and abundance. Mortalities and injuries resulting from human activities that cause continued habitat loss and disturbance (listing Factors A and E) may be frequent enough to prevent local recovery of populations, or prevent the re-occupation of suitable habitat. Although overall increases in plover numbers (which can be attributed to management actions currently being implemented) have been observed, plover population sizes are low, and plovers are absent throughout parts of their historical range in Washington, Oregon, and California. Although there are some local exemptions, current regulations (particularly if the protections of the Act are removed) provide insufficient certainty (listing Factor D) that conservation efforts will be implemented or that they will be effective in reducing the level of threat to the Pacific Coast WSP throughout the listed range.
Therefore we believe that the Pacific Coast WSP DPS is still likely to become endangered within the foreseeable future. In addition, we therefore believe (per the analysis conducted as part of the 12 month status review and the 5-year review) that the Pacific Coast WSP should remain classified as a threatened species, because it is not extinct, it is not considered to be recovered, and the original data used for classification were not in error.
While the finding reflects the analyses conducted to fulfill our responsibilities under sections 4(b)(3)(A) (status review) and 4(c)(2) (5-year review) of the Act, we request that you submit any new information, whenever it becomes available, for this species concerning status and threats. This information will help us monitor and encourage the conservation of this species. We intend that any action for the Pacific coast DPS of the western snowy plover be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.
A complete list of all references cited is available on request from the Arcata Fish and Wildlife Office (see
The primary author of this document is staff from the Arcata and Sacramento Fish and Wildlife Offices (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), are proposing special regulations under the authority of section 4(d) of the Endangered Species Act (Act) of 1973, as amended, that would promote the conservation of the Pacific Coast distinct population segment (DPS) of western snowy plover (
Information, suggestions, and comments must be received on or before June 20, 2006. Requests for formal public hearings must be received by May 22, 2006.
Data, information, comments, or questions concerning this notice may be sent to the Field Supervisor (Attn: WSP-4d), Arcata Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1655 Heindon Road, Arcata, California 95521 (telephone: 707-822-7201; fax: 707-822-8411).
Amedee Brickey, Fish and Wildlife Biologist, Arcata Fish and Wildlife Office at the address above (telephone: 707-822-7201).
The Pacific Coast population of the western snowy plover (Pacific Coast WSP) was listed under the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531
A Notice of Availability for the Western Snowy Plover (
Not all Recovery Units are meeting their individual criteria. Recovery Units 1, 2, 3, and 6 are below their goals, while RU-4 and RU-5 are currently meeting or exceeding their goals. Collectively, recovery of the Pacific Coast WSP within each of the six Recovery Units is necessary to maintain breeding population dynamics, ensure protection and appropriate management of wintering and migratory habitat, and ensure the long-term health and sustainability of the Pacific Coast WSP across its current range. Attainment of the population goals in two of the Recovery Units is encouraging, and we believe that the population increases are directly attributable to a reduction in threats through implementation of management actions by our partners, including the Department of Defense, Federal and State resource agencies, local governments, non-governmental entities, private land managers, and academic researchers.
Maintain a yearly average productivity of at least one fledged chick per male in each Recovery Unit in the last 5 years prior to delisting.
Develop and implement mechanisms to assure long-term protection and management of breeding, wintering, and migration areas in order to maintain the subpopulation sizes and average productivity specified above.
The USFS, BLM, and Willipa Bay NWR have cleared nonnative vegetation and recontoured beach sand dunes to provide western snowy plover breeding and wintering habitat. Restoration actions at Willipa Bay NWR, New River, the North Spit of Coos Bay, and the Overlook (Siuslaw National Forest) have all attracted breeding plovers. Oregon State Parks is in the process of developing a Statewide coastal HCP for plovers. Predator management, including the use of nest exclosures and sparing use of lethal trapping, resulted in a record reproductive year in 2003. Although not as successful as 2003, 2004 was also a very good reproductive year for snowy plovers in Oregon and Washington (see Figure 1 (Jensen
Although snowy plovers had been known along the Eel River gravel bars in Humboldt County, a post-listing breeding site was discovered in 1995. That site has been the most productive plover breeding site within this Recovery Unit, and in California north of the San Francisco Bay. The California State Parks has been a leader with habitat restoration, monitoring, and the
The Don Edwards-San Francisco Bay NWR has acquired lands and is working with the Cargill Salt Company to restore historic tidal salt marsh around San Francisco Bay. The CDF&G and the California Department of Transportation (Caltrans) also both manage plover habitat within the Recovery Unit. Monitoring is primarily conducted by San Francisco Bay NWR staff and the San Francisco Bay Bird Observatory. The San Francisco Bay NWR is a leader in plover management for the unit, and we expect plover numbers to increase as management measures are implemented.
The California State Parks and the Point Reyes Bird Observatory have developed some of the leading outreach tools that have been found to be effective rangewide. Both California State Parks and the Point Reyes Bird Observatory have worked cooperatively with the National Park Service (Golden Gate National Recreation Area and Point Reyes National Seashore), the Salinas River NWR, and the CDF&G to manage human use in plover wintering and breeding habitat adjacent to large population centers. The Salinas River NWR, along with California State Parks and Point Reyes Bird Observatory, has made significant achievements in habitat and predator management. Symbolic fencing, nest exclosures, lethal and nonlethal methods of predator control, and outreach techniques have all been pioneered within this Recovery Unit. Plovers had record reproductive success at Monterey Bay during 2003 (See Figure 2 (Page
This Recovery Unit manages the largest number of breeding and wintering plovers. The California State Parks and Vandenberg Air Force Base (AFB) are the primary managers within the unit. For the most part, plovers do not affect mission-related activities at Vandenberg AFB. Vandenberg AFB has increased its management measures since 2000, with a positive response in plover reproductive success. Management actions at Oceano Dunes State Vehicular Recreation Area have also bolstered the plover numbers. The California State Parks is developing an HCP for plovers for the San Luis Obispo District, including Oceano Dunes State
Plovers in this Recovery Unit have lost significant habitat through development and recreational use. The management of some practices, such as beach raking, could allow for additional habitat within the unit. Southern California beaches are highly impacted due to intense human use. As a result, plovers are dispersed. The primary beach managers within the unit are the California State Parks and the military (Camp Pendleton, North Island Naval Air Station). The San Diego NWR complex manages plover habitat at the Tijuana Slough NWR and at salt ponds within San Diego Bay. Plovers have benefited from protective measures afforded California least terns (
The three recovery criteria (Service 2001) stated above define what is needed in order for the Pacific Coast WSP to be delisted, that is, when the DPS has recovered to the point where it no longer needs the protection of the Act. Delisting will be proposed when all Recovery Units meet their recovery criteria or threats have been adequately addressed. In the interim, however, we believe we have an opportunity to provide a mechanism through this rule pursuant to section 4(d) of the Act, which will encourage increased conservation efforts for the Pacific Coast WSP. This approach will recognize and reward successful conservation efforts in large portions of the range where Pacific Coast WSP have met recovery goals, and it will provide positive incentives to those land managers working in other parts of the range where recovery targets have not yet been achieved.
Section 4(d) of the Act provides that when a species is listed as threatened, we are to issue such regulations as are necessary and advisable to provide for the conservation of the species. Our implementing regulations (50 CFR 17.31) for threatened wildlife generally incorporate the prohibitions of section 9 of the Act for endangered wildlife, except when a “special rule” promulgated pursuant to section 4(d) of the Act has been issued with respect to a particular threatened species. The prohibitions at 50 CFR 17.31 generally make it illegal to import, export, take, possess, ship in interstate commerce, or sell a member of the species. The “take” that is prohibited includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting the wildlife, or attempting to do any of those things. A special rule for a specific threatened species would establish only those particular prohibitions that are necessary and advisable for its conservation. In such a case, the general prohibitions in 50 CFR 17.31 would not apply to that species, and instead, the special rule would define the specific take prohibitions and exceptions that would apply for that particular threatened species or DPS, which we consider necessary and appropriate to conserve the species.
At the time the Pacific Coast WSP was listed as a threatened DPS in 1993 (58 FR 12864), we did not promulgate a special section 4(d) rule, and as a result, all of the section 9 prohibitions, including the “take” prohibitions, apply to the DPS. Subsequent to the listing of the Pacific Coast WSP, certain Federal, State, and County agencies, and some local governments (collectively referred to as the Jurisdictions) have implemented conservation measures for the Pacific Coast WSP, such that several areas are now meeting or exceeding their Recovery Unit population objectives identified in the Draft Recovery Plan (Service 2001). We anticipate that the continued implementation of conservation measures by Jurisdictions throughout the range of the Pacific Coast WSP will likely result in additional areas meeting or exceeding their recovery goals in the future.
We are proposing to issue this section 4(d) rule of the Act because we believe that the regulations are necessary and advisable to provide for the conservation of the species. This proposed special rule (1) will recognize the positive recovery efforts and accomplishments that have resulted in increased regulatory flexibility, (2) will provide an incentive to other land managers within the range of the Pacific Coast WSP to implement similar recovery measures in areas where Pacific Coast WSP numbers have not yet reached recovery targets, and (3) better enable the Service and other conservation entities to target their limited resources to areas where Pacific Coast WSP recovery needs are greatest.
Therefore, through this special rule under section 4(d) of the Act, we propose to replace the currently applicable blanket prohibition against incidental take of Pacific Coast WSP. The special rule would remove Section 9 prohibitions applicable to activities that occur within Counties where the County has met its Breeding Bird Management Goal specified in Table 1 below and has provided documentation of Pacific Coast WSP conservation activities to the Service. This documentation, which is described below, should be provided to the Service within six months of adoption of this rule. The removal of prohibitions will apply to the actions of individuals and local and state entities within a County which has met the requirements above.
The conservation benefit of the 4(d) rule is (1) to encourage further recovery efforts for the Pacific Coast WSP, and (2) to more effectively target the regulatory and proactive powers of the Act to those areas in greatest need. Our goal is to recognize where existing conservation measures have resulted in population increases that meet recovery goals and to ensure the likelihood of those conservation measures expanding and continuing into the future. This 4(d) rule is also designed to encourage additional conservation measures in areas where recovery goals have not been met. Minor adverse impacts to the Pacific Coast WSP, consistent with provisions of a final 4(d) rule, if adopted, would not appreciably diminish the likelihood of survival and recovery of the DPS. The special 4(d) rule will exempt those Counties which have met recovery goals from the prohibition on take as long as populations remain above recovery goals.
The activities we propose to be exempt under this special rule include most of the common recreational and commercial activities occurring within Pacific Coast WSP habitat, as well as activities that promote conservation, such as habitat restoration and certain research (see below for discussion of recovery permits under Section 10(a)(1)(A) of the Act). We propose that all activities in those Counties which have met their recovery goals be exempt from take prohibitions. However, intentional take of Pacific Coast WSP as defined by the Act will continue to be prohibited (16 U.S.C. § 1532(19)) throughout the range of the plover regardless of whether recovery goals have been met in the County.
Research/monitoring actions that relate to the status of the Pacific Coast WSP or its reproductive success would
Because we are proposing, in part, that take exemptions under this special 4(d) rule be based on County breeding Pacific Coast WSP numbers (Breeding Bird Management Goals), we believe that the Service should retain oversight of how data are collected and applied to reduce actual or perceived conflicts between surveyors and use advocates. Therefore, we propose that this special rule apply only to activities that would not involve handling any life stage of Pacific Coast WSPs. The activities that would continue to require a permit under the section 10(a)(1)(A) program include banding of adults or chicks, floating eggs to determine hatch dates, surveys to locate and monitor nests, and population surveys and censuses conducted during the breeding season.
The Service believes that as long as Pacific Coast WSP numbers in certain areas have increased to recovery levels and local measures are in place to maintain those numbers, exempting otherwise lawful activities carried out by local citizens in these areas from the take prohibitions still promotes the conservation of the Pacific Coast WSP. The approach will increase local public support for Pacific Coast WSP recovery; it will provide an incentive to other Counties to implement conservation measures and to meet recovery goals; and it will enable the Service to focus limited staff and financial resources to those Counties where the Pacific Coast WSP recovery need is greatest.
The “documentation” provided to the Service by a County should be a summary of what conservation measures have been carried out within that County and what is anticipated to occur in the future. This documentation may, but is not limited to, include existing Service-approved plans or other approved Federal actions. It may include, but is not limited to, local ordinances, agreements or plans which may be already developed and implemented by entities within the County as well as actions taken by the County itself. For example, documentation provided to the Service by a County may include (a) management agreements or plans developed and implemented on State and/or Federal lands within the County such as Biological Opinions, Habitat Conservation Plans, Safe Harbor Agreements, Partners for Fish and Wildlife Agreements, and/or conservation agreements, (b) County ordinances that have been implemented to alleviate threats to Pacific Coast WSP, (c) other beneficial agreements, plans and/or actions taken by individuals or entities that protect the Pacific Coast WSP, and/or (d) other voluntary measures implemented within the County.
We have chosen the County-level of government jurisdiction as the most appropriate measure for implementation of this special rule. The Pacific Coast WSP occurs along approximately 1,500 miles of coastline within the United States. Within this range there is a tremendous variety of ownership patterns, government jurisdictions, and land management challenges. Accordingly, governance at the County level seems the most appropriate and efficient level to implement the measures proposed in this rule. Counties are large enough to affect meaningful recovery actions, but they are not so small that coordination across the 1,500 mile range would strain the Service's limited staff resources. Also, the Service can organize Pacific Coast WSP monitoring data at the County level, which enables better tracking of Pacific Coast WSP recovery goals.
As indicated in Table 1, some counties have Breeding Bird Management Goals of zero or which are “unknown” because targets will depend on the results of restoration activities (Service 2001). Counties with Breeding Bird Management Goals of zero support wintering Pacific Coast WSP (Service 2001). These Counties could take advantage of this 4(d) rule by providing documentation (see above) that management focusing on maintenance of wintering habitat for Pacific Coast WSP is occurring in the County. Counties with Breeding Bird Management Goals currently identified as “unknown” should also be able to take advantage of this 4(d) rule even though they currently do not have breeding bird management goals identified. These Counties can provide documentation (see above) to the Service that management addressing breeding and/or wintering plovers is occurring in the County.
If this proposed rule is finalized, a County will apply for an exemption under the 4(d) rule by contacting the Service and providing documentation of the County's conservation efforts within six months. The Service will provide the most recent available survey information and work with the County to provide technical assistance as necessary when requested.
The number of breeding adults within a County will be determined by the results of rangewide breeding season window surveys. Determination of whether a County qualifies for this special rule will be based on Breeding Bird Management Goals and will depend on that County meeting those Goals for two out of the five previous years. On an annual basis, the Service will determine County plover adult numbers by mid-December, thereby allowing entities to know their eligibility for 4(d) exemptions under this rule by January 1st of each year. Using two out of five years to qualify for exemptions allows for natural fluctuations in population dynamics. We believe that the qualifying criteria would ensure that the Pacific Coast WSP does not decline below regional recovery goals as a result of implementing this proposed rule. Additionally, we believe that the two out of five year criterion assures that there are healthy numbers of plovers before take exemptions could apply and maintains currently healthy populations. Once a County has qualified for the 4(d) exemptions under this rule, the exemptions will apply as long as the jurisdiction continues to meet its recovery population goals.
We believe that this 4(d) rule would provide a conservation benefit to Pacific Coast WSP. We expect that it would increase and promote voluntary and cooperative efforts to conserve Pacific Coast WSP. We also expect that implementation of this special 4(d) rule for the Pacific Coast WSP would: (1) Recognize the positive conservation accomplishments that have improved the status of the species by offering take exemptions to landowners and managers within Counties that are meeting recovery goals, (2) remove inefficient or unnecessary Federal regulatory oversight in portions of the listed entity's range where recovery goals have been met and/or threats have been addressed, thus enabling limited management resources to be more efficiently targeted to other areas or conservation needs, and (3) serve as a positive incentive to beach managers and landowners to increase voluntary plover conservation in areas that have not yet met County Breeding Bird Management Goals.
Comments and suggestions are invited from all interested parties. We are interested in knowing if the relevant jurisdictions are interested in the development of such special regulations. We request comments on whether we should propose special regulations that would provide the opportunity for County jurisdictions, through their authorities, to attain compliance under the Act to implement and enforce land and water management activities. In addition, we request specific information and comment from Federal and State agencies, local municipalities, and private individuals or organizations on the following:
(1) The types of activities we should address in a special rule;
(2) Appropriate monitoring and reporting programs for covered activities;
(3) Whether wintering habitat should be taken into account in a 4(d) rule, and if so, how it should be addressed;
(4) How areas without breeding bird goals identified in the Draft Recovery Plan, but which are important for wintering plovers, such as Los Angeles County, should be treated in the 4(d) rule;
(5) What level of jurisdiction is the appropriate level at which such a special rule should be proposed;
(6) If and how the Service should consider including within this special rule consideration for individual landowners who develop and implement management strategies within Counties that have not yet met plover population recovery goals, but that adequately address threats to the species; and
(7) Whether using 2 out of the previous 5 years to assess whether a County has met its Breeding Bird Management Goals is appropriate;
In summary, we welcome comments and suggestions on this proposed special 4(d) rule to customize the section 9 take prohibitions for those Counties that are meeting or exceeding their population objectives identified Table 1 above.
The Act provides for a public hearing on this proposal, if requested. Requests must be filed by the date specified in the DATES section above. Such requests must be made in writing and addressed
We will hold informal public informational meetings at coastal locations in Washington, Oregon, and California during the comment period for this proposal (see
Under our policy of peer review (59 FR 34270), we will obtain the expert opinions of at least three appropriate and independent specialists concerning appropriateness of exempting certain activities from take prohibitions where recovery goals have been met and the most efficient way to implement the measures proposed in this special rule.
Executive Order 12866 requires each agency to write regulations that are easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping or order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (5) Is the description of the rule in the
In accordance with the criteria in Executive Order 12866, the Office of Management and Budget has determined that this rule is not a significant regulatory action. This rule would not have an annual economic impact of more than $100 million, or significantly affect any economic sector, productivity, jobs, the environment, or other units of government. This rule would reduce the regulatory burden of the listing of the Pacific Coast distinct population segment of the western snowy plover under the Act as a threatened species by providing certain exemptions to the section 9 prohibitions. These exemptions would reduce the economic costs of the listing by removing for certain activities in certain areas, the need for Section 10 compliance with the Act, and by reducing enforcement by resource agencies; therefore, the economic effect of the rule would benefit managing entities, taxpayers, and the economy. This effect would not, however, rise to the level of “significant” under Executive Order 12866. This rule would not create inconsistencies with other Federal agencies' actions. Other Federal agencies would be mostly unaffected by this proposed rule. This rule would not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients. Because this rule would allow individuals to engage in otherwise prohibited activities without first obtaining individual authorization, the rule's impacts on affected individuals would be positive. This rule would not raise novel legal or policy issues. We have previously promulgated section 4(d) rules for other species.
We have determined that this rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule would not have an annual effect on the economy of $100 million or more; would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
The Service refers to the Final Economic Analysis (Industrial Economics, Inc. 2005) conducted as a requirement to designate critical habitat for the Pacific Coast WSP. That analysis determined that the majority of the costs associated with designation of critical habitat for the Pacific Coast WSP stem from management of recreational activities (
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
In accordance with Executive Order 12630, this rule does not have significant takings implications. This rule modifies existing regulatory burdens to the public, by allowing individuals to have more freedom to pursue activities (
In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment. Implementation of a special 4(d) rule is expected to reduce Federal oversight associated with management of the Pacific Coast WSP by exempting specified forms of incidental take of plovers in areas where Breeding Bird Management Goals have been met,
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
Office of Management and Budget (OMB) regulations at 5 CFR part 1320 implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501
This proposal does not contain any new collections of information that require OMB approval under the Paperwork Reduction Act. This rule refers to 10(a)(1)(A) recovery permits required for research and monitoring actions that relate to the status of the Pacific Coast WSP or its reproductive success. Our recovery permit applications are already approved by OMB under OMB control number 1018-0094, which expires September 30, 2007.
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and E.O. 13175, we have evaluated possible effects on federally recognized Indian Tribes. We have determined that, because no Indian trust resources occur within the range of the Pacific Coast WSP, this proposed rule would have no effect on federally recognized Indian Tribes.
We have evaluated this proposed rule in accordance with E.O. 13211 and have determined that this rule would have no effect on energy supply, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
For the reasons stated in the preamble, the Service proposes to amend part 17, subpart B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
1. The authority citation for part 17 continues to read as follows:
16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In § 17.11(h), revise the entry for the “Plover, western snowy,” under “Birds,” on the List of Endangered and Threatened Wildlife to read as follows:
(h) * * *
3. Amend § 17.41 by adding a new paragraph (c) to read as follows:
(c) Western snowy plover (
(1)
(2)
(i)
(ii)
(3)
(4)
(5)
(i) The County has provided documentation to the Service that summarizes what conservation measures to benefit the Pacific Coast WSP have been carried out within the County and what is anticipated to occur in the future,
(ii) The County has met its Breeding Bird Management Goal as provided in the table in paragraph (c)(5)(ii)(A) of this section, for at least 2 years out of the most recent 5 years.
(A)
(B) A County that has a Breeding Bird Management Goal of zero, as listed in the table in paragraph (c)(5)(ii)(A) of this section, may qualify for incidental take exemption for the activities listed in paragraph (c)(3) of this section by providing documentation to the Service that management focusing on maintenance of wintering habitat for Pacific Coast WSP is occurring in the County.
(C) A County with a Breeding Bird Management Goal currently identified as “unknown,” as listed in the table in paragraph (c)(5)(ii)(A) of this section, may qualify for incidental take exemption for the activities listed in paragraph (c)(3) of this section by providing documentation to the Service that management addressing breeding and/or wintering plovers is occurring in the County.
(D) A County's 4(d) incidental take exemption for the activities listed in paragraph (c)(3) of this section will apply for as long as Pacific Coast WSP populations remain above recovery goals.
(6)
(i) We will provide the most up-to-date information on Breeding Bird Management Goals on the Arcata Fish and Wildlife Office Web site at
(ii) Jurisdictions may also obtain Breeding Bird Management Goals by contacting the Arcata Fish and Wildlife Office at 1655 Heindon Road, Arcata, CA 95521; 707-822-7201 (voice); 707-822-8411 (fax).
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period and notice of public hearing.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period and a public hearing on the proposed designation of critical habitat for the Fender's blue butterfly (
(1) You may submit written comments and information to Kemper McMaster, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 98th Avenue, Suite 100, Portland, OR 97266.
(2) You may hand-deliver written comments to our Oregon Fish and Wildlife Office, at the above address.
(3) You may send comments by electronic mail (e-mail) to
(4) You may fax your comments to 503/231-6195.
(5) You may submit your comments through the Federal E-rulemaking Portal at
The public hearing will be held at the Corvallis Benton County Library, 645 NW. Monroe Avenue, Corvallis, OR 97330.
Kemper McMaster, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 98th Avenue, Suite 100, Portland, OR 97266 (telephone 503/231-6179; facsimile 503/231-6195).
We intend that any final action resulting from the proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule are hereby solicited. Comments particularly are sought concerning:
(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Endangered Species Act (Act), including whether the benefit of designation would outweigh any threats to the species due to designation;
(2) Specific information on the Fender's blue butterfly,
(3) Specific information on: The amount and distribution of the Fender's blue butterfly,
(4) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat; we specifically solicit information including:
(a) The benefits provided by a management plan; specifically describe how the plan addresses each primary constituent element (PCE) in the absence of designated critical habitat; describe conservation benefits to Fender's blue butterfly,
(b) The benefits of excluding from the critical habitat designation the areas
(c) With specific reference to sections 4(a)(3) and 4(b)(2) of the Act, we request information from the Department of Defense to assist the Secretary of the Interior in making a determination as to whether any proposed critical habitat overlaps with lands, administered by or under the control of the Department of Defense, covered by an Integrated Natural Resources Management Plan (INRMP) that benefits the conservation of the species;
(5) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities; and
(6) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
If you wish to comment, you may submit your comments and materials concerning the proposal by any one of several methods (see
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish to withhold your name and/or address, you must state this prominently at the beginning of your comment, but you should be aware that the Service may be required to disclose your name and address pursuant to the Freedom of Information Act. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the Oregon Fish and Wildlife Office (see
Anyone wishing to make an oral statement for the record is encouraged to provide a written copy of their statement and present it to us at the hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning the public hearing, please contact the Oregon Fish and Wildlife Office (see
On November 2, 2005, we published a proposed rule in the
Section 4(b)(5)(E) of the Act (16 U.S.C. 1531
The primary author of this package is Mikki Collins, Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service.
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period for the reinstated proposed rule to list the flat-tailed horned lizard (
Pursuant to the Court's November 17, 2005, order, on remand we “need only address the matters on which the court's August 30, 2005, Order * * * found the January 3, 2003, Withdrawal unlawful, which may summarily be identified as whether the lizard's lost historical habitat renders the species in danger of extinction in a significant portion of its range.” To ensure our new final listing decision is based on the best scientific and commercial data currently available, we are reopening the public comment period on the 1993 proposed
We will accept comments from all interested parties until May 8, 2006. Comments received after the closing date may not be considered in the final decision on this action.
If you wish to comment on the specific issue identified by the District Court in its November 17, 2005, order for remand of the January 3, 2003, withdrawal of the proposed rule to list the flat-tailed horned lizard, you may submit your comments and materials by any one of several methods:
1. You may submit written comments and information to Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (CFWO), 6010 Hidden Valley Road, Carlsbad, CA 92011.
2. You may hand-deliver written comments to the CFWO, at the address given above.
3. You may send comments by electronic mail (e-mail) to
4. You may fax your comments to 760/431-9624.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the CFWO at the above address.
Jim Bartel, Field Supervisor, at the CFWO (see
To assist us in making a final listing determination based on the best scientific and commercial data available, we are reopening the public comment period on the proposed rule (58 FR 62624; November 29, 1993) to list the flat-tailed horned lizard to accept public comment on the specific issue identified in the District Court's November 17, 2005, order, namely whether the flat-tailed horned lizard's lost historical habitat renders the species likely to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range.
Comments relevant to the identified issue for consideration during the remand of the January 3, 2003, withdrawal of the proposed rule to list the flat-tailed horned lizard that were previously submitted during prior comment periods on the proposed rule need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final determination.
Please submit Internet comments in ASCII format and avoid the use of special characters or any form of encryption. Please also include “ATTN: Flat-Tailed Horned Lizard” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our CFWO at phone number 760/431-9440. Please note that this Internet address will be closed at the termination of the public comment period.
Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment, but you should be aware that the Service may be required to disclose your name and address pursuant to the Freedom of Information Act. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
On November 29, 1993, we published a proposed rule to list the flat-tailed horned lizard as a threatened species pursuant to the Act (58 FR 62624). On July 15, 1997, we withdrew the 1993 proposed rule (62 FR 37852). Defenders of Wildlife and other groups challenged the 1997 withdrawal decision. On June 16, 1999, the District Court for the Southern District of California granted summary judgment in our favor upholding our decision not to list the flat-tailed horned lizard. However, on July 31, 2001, the Ninth Circuit Court of Appeals reversed the lower court's ruling and directed the District Court to remand the matter back to us for further consideration in accordance with the legal standards outlined in its opinion (
On August 30, 2005, the District Court for the District of Arizona issued an order granting plaintiffs' motion for summary judgment “on the ground that the Secretary's withdrawal of the proposed rule violated the Endangered Species Act and the Ninth Circuit's remand order by failing to evaluate the lizard's lost habitat and whether that habitat was a significant portion of the range.” The Service's failure to make this specific determination was the only violation cited by the District Court. The court upheld all other aspects of the January 3, 2003, withdrawal decision. On November 17, 2005, the District Court issued a subsequent order, consistent with its August 30, 2005, order, vacating the 2003 withdrawal and remanding the matter to us for further consideration. The District Court reinstated the 1993 proposed rule to list the flat-tailed horned lizard as a threatened species for the duration of the remand, and ordered us to make a new listing decision by April 30, 2006, stating that, “on remand the agency need only address the matters on which the court's August 30, 2005, Order * * * found the January 3, 2003, Withdrawal unlawful, which may summarily be identified as whether the lizard's lost historical habitat renders the species in danger of extinction in a significant portion of its range.” The order indicates that, while the Court believes this determination is required by the Ninth Circuit's opinion, “the Secretary has wide discretion in delineating a significant portion of the lizard's range,” including in defining the “range” of the species (which the Court states must include some lost habitat) and in choosing the point in time at which to examine the range. On December 7, 2005, we published a document (70 FR 72776) reinstating the
For your convenience, here is a list of the primary
The flat-tailed horned lizard (
The flat-tailed horned lizard is endemic (restricted) to the Sonoran Desert in southern California, Arizona, and northwestern Mexico. The species is documented in the Coachella Valley in Riverside County, California; the Imperial and Borrego Valleys in Imperial and eastern San Diego Counties, California; south of the Gila River and west of the Gila and Butler Mountains in Yuma County, Arizona; east of the Sierra de Juarez in the Laguna Salada and Yuha Basins in northeastern Baja California Norte, Mexico; and north and west of Bahia de San Jorge to the delta of the Colorado River in northwestern Sonora, Mexico (Grismer 2002; Rodriguez 2002). The flat-tailed horned lizard occurs at elevations up to 800 meters (2,600 feet) above sea level, but most populations are below 300 meters (980 feet) elevation. Various descriptions and estimates of the historical and current ranges of the flat-tailed horned lizard are described in the November 29, 2003, proposed rule (58 FR 62624); July 15, 1997, withdrawal of the 1993 proposed rule (62 FR 37822); and January 3, 2003, withdrawal of the 1993 proposed rule (68 FR 331).
In 2003, the Flat-tailed Horned Lizard Interagency Coordinating Committee released a revised version of the 1997 Flat-tailed Horned Lizard Rangewide Management Strategy (Flat-tailed Horned Lizard Interagency Coordinating Committee 2003). The 2003 Rangewide Management Strategy includes a map of the approximate historical and current range boundaries of the flat-tailed horned lizard. Using the geographic information system shape files used to develop the range map, we calculated the area of the historical and current ranges of the flat-tailed horned lizard in the United States and Mexico. Based on this information, we estimated the historical range (United States and Mexico) to be approximately 6,183,647 acres (2,502,433 hectares), which with the exclusion of the historic Lake Cahuilla would be reduced to approximately 4,874,238 ac (1,972,534 ha), and the current range (United States and Mexico) to be approximately 3,962,543 acres (1,603,884 hectares). A copy of this report can be viewed on the Carlsbad Fish and Wildlife Office's Web site at
For additional background information and previous Federal actions related to the listing determinations for the flat-tailed horned lizard, please refer to the January 3, 2003,
The primary author of this notice is the Carlsbad Fish and Wildlife Office (see
The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531
Pursuant to the Federal Advisory Committee Act, notice is hereby given of the one hundred and forty-seventh meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 8:30 a.m. to 4 p.m. on May 11, 2006 in the ground floor meeting room of the National Association of State Universities & Land Grant Colleges (NASULGC), at 1307 New York Avenue, NW., Washington, DC.
The BIFAD will hear briefings on the Title XII legislation, U.S. Government and U.S. university support for agriculture development in Africa; USAID and university partnerships; the status of portfolio of the Collaborative Research Support Programs (CRSPs), and other items of current interest.
The meeting is free and open to the public. Those wishing to attend the meeting or obtain additional information about BIFAD should contact John Rifenbark, the Designated Federal Officer for BIFAD. Write him in care of the U.S. Agency for International Development, Ronald Reagan Building, Office of Agriculture, Bureau for Economic Growth, Agriculture and Trade, 1300 Pennsylvania Avenue, NW., Room 2.11-004, Washington DC, 20523-2110 or telephone him at (202) 712-0163 or fax (202) 216-3010.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Forest Service will prepare an environmental impact statement (EIS), to examine surface resource impacts connected with extracting gold from placer deposits within a 4.25-acre (approx.) area, in response to a mining claimant's proposed plan of operations. Proposed mining would occur along the south bank of Sucker Creek, about 11 miles southeast of Cave Junction, Oregon. During previous placer operations in the area, an existing but steeply inclined road provided vehicle access to several nearby sites. Because the placer deposit the claimant proposes to mine is located on the stream bank opposite from the road, the proponent proposes to use the existing road but would traverse Sucker Creek to reach the mine site by means of a low water crossing (ford).
The purpose for preparing this EIS is to forecast and disclose environmental consequences to surface resources, resulting from road use and mine operations, as well as to ascertain reasonable operational terms and conditions needed during development of locatable mineral resources of the United States (as authorized by the Mining Law of 1872, as amended). Although this is an action having “effects primarily of local concern (40 CFR 1506.6(3)),” the Forest Service is nonetheless publishing this notice in the
The EIS Team Leader (at the address below) should receive written comments concerning the scope of this analysis, identification of significant issues or both within 30 days following publication of this notice in the
Send written comments or inquiries regarding this proposal to Howard Jubas, EIS Team Leader, care of USDA Forest Service, Grants Pass Interagency Office, 2164 NE Spalding Ave., Grants Pass, Oregon 97526. If electronic submission of written correspondence is preferred, send electronic documents to the following e-mail address:
The responsible official, Pamela Bode, District Ranger, may be contacted at the following mailing address: Illinois Valley Ranger District, Rogue River—Siskiyou National Forest, 26568 Redwood Highway, Cave Junction, Oregon 97523.
For technical information or questions, contact Howard Jubas, EIS Team Leader, at (541) 471-6760.
As set forth in the provisions of the 1872 Mining Law (as amended), a mining claimant (proponent) proposes to exercise his exclusive right to mine for gold within his placer mining claim (ORMC 159735). The location of the proposed placer mining operation is in the NW 1/4 of Section 19, Township 40 South, Range 6 West, Willamette Meridian, Josephine County, Oregon. The proposed mine site is located approximately 11 air miles southeast of Cave Junction, Oregon, at an elevation approximately 2400 feet above sea level. The proclaimed boundary of the Siskiyou National Forest encompasses all proposed mining excavations within the claim, as well as the access road to the mine site, and all operations would be conducted on National Forest System lands.
The placer deposit borders the south bank of Sucker Creek, a tributary to the East Fork Illinois River, for approximately 1000 feet. The entire area where mining activity would occur consists mostly of gravel- to cobble-sized rocks, sands and subsoil materials. The entire deposit was turned over and worked extensively during hydraulic mining operations conducted in the later 1800s.
To provide access to the mine site for trucks and earth moving machinery, the miner proposes to repair and partially re-construct an existing road. Presently, a gate blocks this road and the spur is now impassable to large vehicles. The existing road is steeply inclined, narrow and native surface. Originally constructed decades ago, the road is used periodically to transport mining equipment, tools and supplies to several placer claims adjoining Sucker Creek. While the existing road template was certainly constructed with most attention given to short length and low cost, and it is ill-suited to anything except high-clearance trucks and excavation equipment, the road is well integrated into the landscape and stable in its existing location.
In his plan of operations, the claimant proposes to begin operations by clearing second-growth Douglas-firs, several Port-Orford-cedars and understory vegetation from a portion of the mine site using a tracked excavator and crawler tractor. At the same time that land clearing occurs, the site would be leveled. No less than two acres would be cleared initially but about two acres also would be left intact until after mining is complete in the original entry area. This initial clearing and leveling would result in felling of approximately 50 to 100 trees having breast height diameters ranging from 15 to nearly 45 inches. Cleared trees and other vegetation would be piled on the periphery of the placer deposit and out of the path of mining excavations, to the extent practicable.
Following site preparation, the excavator, crawler tractor and a dump truck would be used to dig, move or pile loose rocks and sand that form the placer deposit. To begin mining, the claimant proposes to excavate a four-to eight-foot deep depression and afterward fill it with water to create a temporary pond. The pond would be sufficiently sized to contain a (6-inch or 8-inch) suction dredge, plus a materials collection hopper, while also impounding enough water for the dredge to wash (sluice) excavated materials. Nearly all placer cobbles (less than 6 inches in diameter), gravels and sands would be “wet processed” on site by using the dredge to separate embedded gold from its substrate.
Pond water would continuously re-circulate through the operating suction dredge during the gold separation process. Stones, sands and muddy water discharged from the apparatus would drop directly into the pond. No processed waste rocks, sands or muddy water discharged from the dredge would be deposited onto ground surface surrounding the pond or into Sucker Creek. As processing of placer substrate materials proceeds, the location of the water-storage pond would be progressively shifted across the site. The trailing end of the pond would be filled with processed rocks and sands as the leading perimeter of the pond is excavated.
Water to fill the pond would be diverted from a nearby small perennial creek named Cedar Gulch; however, the pond would be only filled to its operating levels and then the water intake would be closed. There would be no outlet from the impoundment, leading toward Sucker Creek, so there would be no water flowing out of the pond on the ground surface and directly into Sucker Creek. Water would be depleted from the pond only by infiltration through substrate materials or by evaporation.
Once mining of the placer deposit is completed, the area would be re-contoured using the waste rock excavated on site. Loose cobbles, gravels and fine-grained earthen materials would be shaped to leave gentle relief and a smoothed profile. Some (or perhaps all) of the previsouly felled trees and other vegetative debris would be placed over the distributed area. Since no toxic compounds (such as mercury or cyanide) would be used to separate gold from parent materials, and no hardwork load mining would occur, there would be no hazardous waste, leachates, mill tailings or refuse ores to contend with on the site.
(1) The degree of impact from proposed mine operations related to species listed as threatened under the Endangered Special Act, as amended (specifically coho salmon and the northern spotted owl) and
(2) The degree to which proposed mine operations might increase water temperature, turbidity or both in Sucker Creek (especially with regard to the potential for a threatened violation of Clean Water Act requirements).
The responsible official will consider public comments/reactions to the
Following completion of the draft EIS, a comment period of no less than 45 calendar days will be allotted beginning on the day after the date EPA publishes the Notice of Availability in the
To assist the Forest Service in identifying and considering substantive critique of the environmental analysis documented in the draft EIS, comments should be as specific as possible. In particular, Forest Service officials welcome comments that address the adequacy of the draft EIS in disclosing environmental consequences or defining the alternatives formulated and discussed in the statement. Wherever possible, respondents should reference a specific page or chapter in the draft EIS to identify where a fault, omission or question arises. Reviewers may wish to refer to the Council on Environmental Quality Regulations (at 40 CFR 1503.3) implementing the procedural provisions of NEPA in addressing these points.
Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision (as authorized by 36 CFR part 215). However, pursuant to 7 CFR 1.27(d), any person may request the agency to withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such confidentiality should be aware that, under the FOIA, confidentiality may be granted in only very limited circumstances (for example, to protect trade secrets). The Forest Service will inform the requester of the agency's decision regarding the request for confidentiality and, in situations where the request is denied, the agency will return the submission and notify the requester the comments may be resubmitted with or without name and address within a specified number of days.
The Forest Service wishes to give reviewers notice, at this first stage of EIS preparation, of several key court rulings that relate to standards for public participation in the entire environmental review process. First, reviewers of a draft EIS must structure their participation in the environmental review so that it is meaningful and alerts the Forest Service to the reviewer's position and contentions.
Forest Service, USDA.
Notice of meeting.
The Glenn/Colusa County Resource Advisory Committee (RAC) will meet in Willows, California. Agenda items to be covered include: (1) Introductions, (2) Approval of Minutes, (3) Public Comment, (4) Website Update, (5) Project Proposals/Possible Action, (6) General Discussion, (7) Next Agenda.
The meeting will be held on April 24, 2006, from 1:30 p.m. and end at approximately 4:30 p.m.
The meeting will be held at the Mendocino National Forest Supervisor's Office, 825 N. Humboldt Ave., Willows, CA 95988. Individuals wishing to speak or propose agenda items must send their names and proposals to Janet Flanagan, Acting DFO, 825 N. Humboldt Ave., Willows, CA 95988.
Bobbin Gaddini, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, 825 N. Humboldt Ave., Willows, CA 95939. (503) 934-1268; e-mail
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring matters to the attention of the committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by April 20, 2006 will have the opportunity to address the committee at those sessions.
Antitrust Modernization Commission.
Notice of public meeting.
The Antitrust Modernization Commission will hold a public meeting on May 8, 2006. The purpose of the meeting is for the Antitrust Modernization Commission to deliberate on possible recommendations regarding the antitrust laws to Congress and the President.
May 8, 2006, 9:30 a.m. to approximately 5:30 p.m. Interested members of the public may attend. Registration is not required.
Federal Trade Commission, Conference Center, 601 New Jersey Avenue, NW., Washington, DC.
Andrew J. Heimert, Executive Director & General Counsel, Antitrust Modernization Commission: telephone: (202) 233-0701; e-mail:
The purpose of this meeting is for the Antitrust Modernization Commission to deliberate on possible recommendations to Congress and the President regarding the antitrust laws. The Commission will deliberate on recommendations regarding criminal remedies and civil remedies. The Commission will conduct other additional business as necessary. Materials relating to the meeting will be made available on the Commission's Web site (
The AMC has called this meeting pursuant to its authorizing statute and the Federal Advisory Committee Act. Antitrust Modernization Commission Act of 2002, Pub. L. No. 107-273, § 11054(f), 116 Stat. 1758, 1857; Federal Advisory Committee Act, 5 U.S.C. App., § 10(a)(2); 41 CFR 102-3.150 (2004).
By direction of Deborah A. Garza, Chair of the Antitrust Modernization Commission. Approved by Designated Federal Officer:
Committee for Purchase From People Who are Blind or Severely Disabled.
Proposed additions to Procurement List.
The Committee is proposing to add to the Procurement List products to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
This notice is published pursuant to 41 U.S.C 47(a) (2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal government identified in the notice for each product will be required to procure the products listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the government.
2. If approved, the action will result in authorizing small entities to furnish the products to the government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products are proposed for addition to Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who are Blind or Severely Disabled.
Additions to and deletions from Procurement List.
This action adds to the Procurement List products and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List products and a service previously furnished by such agencies.
Committee for Purchase From People Who are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202-3259.
Mary-Carolyn Bell, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On February 17, and February 24, 2006, the Committee for Purchase From People Who are Blind or Severely Disabled published notice (71 FR 8565, and 9517) of proposed additions to the Procurement List.
The following comments pertain to V-Belt.
Comments were received from the current contractor for the V-belts, in response to a request for sales data. The contractor claimed that losing the contract for these belts would have a significant impact on the corporation's revenue and on the government supply chain for the belts. The contractor also stated that losing these belts would affect its pricing for other belts. Finally, the contractor stated that it is working with a local blind organization in the Committee's program for packaging, warehousing and shipping services.
The amount of revenue the contractor may lose as a result of this addition to the Procurement List is well below the level which the Committee normally considers to constitute severe adverse impact on a contractor. The nonprofit organization which will supply the belts has been found capable of meeting government requirements, including delivery times. The government contracting activity considers the price it will pay for these belts to be reasonable. The contractor's price for other belts is outside the Committee's control. The blind organization is not working with the contractor on these belts, so their addition to the Procurement List should not affect the relationship between these two entities. Accordingly, the Committee believes that it is appropriate to add these belts to the Procurement List.
The following material pertains to all of the items being added to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the government.
2. The action will result in authorizing small entities to furnish the products and services to the government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
On February 24, 2006, the Committee for Purchase From People Who are Blind or Severely Disabled published notice (71 FR 9517) of proposed deletions to the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and service to the government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products and service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Tuesday, April 25, 2006, 2-3 p.m.
Radio Free Asia, Conference Room, 2025 M Street, NW., Washington, DC 20036.
The members of the Broadcasting Board of Governors (BBG) will meet in closed session to review and discuss a number of issues relating to U.S. Government-funded non-military international broadcasting. They will address internal procedural, budgetary, and personnel issues, as well as sensitive foreign policy issues relating to potential options in the U.S. international broadcasting field. This meeting is closed because if open it likely would either disclose matters that would be properly classified to be kept secret in the interest of foreign policy under the appropriate executive order (5 U.S.C. 552b(c)(1) or would disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed agency action. (5 U.S.C. 52b(c)(9)(B)). In addition, part of the discussion will relate solely to the internal personnel and organizational issues of the BBG or the International Broadcasting Bureau. (5 U.S.C. 552b(c)(2) and (6)).
Persons interested in obtaining more information should contact Carol Booker at (202) 203-4545.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Indiana Port Commission, grantee of FTZ 177, requesting special purpose subzone status for the manufacturing and warehousing facilities of Pfizer Inc (Pfizer), located in Terre Haute, Vigo County, Indiana. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally filed on April 12, 2006.
The Pfizer facilities consist of three sites on 532 acres in Terre Haute, Indiana: Site 1 (27 bldgs. on 521 acres/386,932 sq. ft., about half of which is devoted to Exubera® manufacturing) located at 411 East Dallas Road; Site 2 (1 bldg. on 3 acres/61,952 sq. ft.) located at 1383 Aberdeen Street; and, Site 3 (1 bldg. on 8 acres/45,936 sq. ft.) located at 1650 East Industrial Drive. Site 1 is used to manufacture pharmaceutical products. Sites 2 and 3 are used for warehousing, storage and distribution activities. Pfizer employees approximately 340 employees at the sites.
Pfizer is requesting authority to manufacture the drug Exubera® (HTS 3004.31, duty-free) under zone procedures. Exubera® is an inhaled, powdered insulin formulation used in the treatment of diabetes. Initial zone savings will come from the elimination of inverted tariffs on the following components sourced from abroad used in the production of Exubera®: mannitol (HTS 2905.43, 4.6% duty rate) which is an inactive ingredient used in the manufacturing process and base aluminum foil (HTS 3921.90, 4.2% duty rate) which is used in packaging the final product in dosage form.
FTZ procedures would exempt Pfizer from Customs duty payments on the foreign components used in export production. Some 30 percent of the plant's initial shipments are to be exported. On its domestic sales, Pfizer would be able to choose the duty rates during Customs entry procedures that apply to the finished pharmaceutical product (duty-free) for the foreign inputs noted above. The request indicates that the savings generated from FTZ procedures would help improve the plant's international competitiveness.
In accordance with the Board's regulations, a member of the FTZ staff has been appointed examiner to investigate the application and report to the Board.
Public comment is invited from interested parties. Submissions (original and 3 copies) shall be addressed to the Board's Executive Secretary at one of the following addresses:
1. Submissions Via Express/Package Delivery Services: Foreign-Trade Zones Board, U.S. Department of Commerce, Franklin Court Building—Suite 4100W, 1099 14th St. NW., Washington, DC 20005: or
2. Submissions Via the U.S. Postal Service: Foreign-Trade-Zones Board, U.S. Department of Commerce, FCB - Suite 4100W, 1401 Constitution Ave. NW., Washington, DC 20230.
The closing period for their receipt is June 20, 2006. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period July 5, 2006.
A copy of the application and accompanying exhibits will be available for public inspection at the Office of the Foreign-Trade Zones Board's Executive Secretary at the first address listed above, and at the U.S. Department of Commerce Export Assistance Center, 11405 North Pennsylvania St, Suite 106, Carmel, IN 46032.
Import Administration, International Trade Administration, Department of Commerce.
April 21, 2006.
Katharine Huang, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-1271.
The Department of Commerce (“The Department”) published the preliminary results of the administrative review and new shipper reviews of the antidumping duty order on fresh garlic from the People's Republic of China covering the period November 1, 2003, through
October 31, 2004, on November 18, 2005.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), and section 351.213(h)(1) of the Department's regulations, the Department shall issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the date of publication of the antidumping duty order. The Act further provides that the Department shall issue the final results of review within 120 days after the date on which the notice of the preliminary results was published in the
Furthermore, pursuant to 751(a)(2)(B)(iv) of the Act, the Department shall make a final determination in a new shipper review within 90 days after the date the preliminary determination is issued. However, if the Department concludes that the case is extraordinarily complicated, the Department may extend the 90-day period to 150 days.
We determined that it was not practicable to complete these reviews by the unextended statutory deadline of March 18, 2006.
For these same reasons, the Department is further extending the time limit for the completion of these final results by nine days until no later than Wednesday, April 26, 2006, which is 159 days from the date on which the notice of the
This notice is issued and published in accordance with section 751(a)(3)(A), 751(a)(2)(B)(iv), and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
NMFS announces the meeting of the General Advisory Committee to the U.S. Section to the IATTC.
The meeting of the General Advisory Committee will be held on June 1, 2006, from 9 a.m. to 5 p.m. Pacific Time (or until business is concluded).
The meeting will be held at NMFS, Southwest Regional Office, 501 West Ocean Boulevard, Suite 3400, Long Beach, CA 90803-4213.
J. Allison Routt at (562)980-4019 or (562) 980-4030.
In accordance with the Tuna Conventions Act, as amended, the Department of State has appointed a General Advisory Committee to the U.S. Section to the IATTC. The U.S. Section consists of the four U.S. Commissioners to the IATTC and the representative of the Deputy Assistant Secretary of State for Oceans and Fisheries. The Advisory Committee supports the work of the U.S. Section in a solely advisory capacity with respect to U.S. participation in the work of the IATTC, with particular reference to the development of policies and negotiating positions pursued at meetings of the IATTC. NMFS, Southwest Region, administers the Advisory Committee in cooperation with the Department of State.
The General Advisory Committee to the U.S. Section to the IATTC will meet to receive and discuss information on: (1) 2005 IATTC activities, (2) recent and upcoming meetings of the IATTC and its working groups, including issues on the agenda for the meeting such as conservation and management measures for yellowfin and bigeye tuna for 2006 and beyond, measures to be taken in cases of non-compliance with the IATTC's conservation and management measures, management of fishing capacity, measures to address bycatch and other issues, (3) status of the stocks and status of the fishery in 2005, (4) IATTC cooperation with other regional fishery management organizations, and (5) Advisory Committee operational issues including a discussion of future closed sessions of the General Advisory Committee.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting location is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Allison Routt at (562) 980-4019 or (562) 980-4030 at least 10 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting
The New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat/MPA/Ecosystem Advisory Panel in May, 2006 to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
The meeting will be held on Monday, May 8, 2006 at 10 a.m.
The meeting will be held at the Courtyard by Marriott, 1000 Market Street, Portsmouth, NH 03801; telephone: (603) 436-2121; fax: (603) 430-7666.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel will consider and review of Draft Essential Fish Habitat (EFH) Designation Managment Alternatives for inclusion in the EFH Omnibus Amendment 2. The panel will also review and continue to work on the Advisory Panel gear description document and will also discuss and plan for a potential gear description workshop. In addition, the panel will have a discussion and develop recommendations on Juvenile Cod Habitat Area of Concern Proposals. Other topics may be covered at the panel's discretion.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at 978-465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Council) Highly Migratory Species Management Team (HMSMT) will hold a work session, which is open to the public.
The HMSMT work session will be held on Monday, May 8, 2006, from 8 a.m. until 5 p.m. and on Tuesday, May 9, 2006, beginning at 8 a.m. until business is completed.
The work sessions will be held at the U.S. Tuna Foundation Conference Room, 1 Tuna Lane, San Diego, CA 92101; telephone: (619) 233-6407
Dr. Kit Dahl, Pacific Fishery Management Council; telephone: (503) 820-2280.
The HMSMT work session will take up the following assignments: developing management reference points for selected highly migratory species, planning the 2006 Stock Assessment and Fishery Evaluation Report, discussing North Pacific albacore management issues (U.S.-Canada Albacore treaty, historical fishing effort and potential effort controls) and other workload planning tasks. After the regular meeting ends, a subgroup of the HMSMT will discuss issues related to the implementation of an exempted fishing permit (EFP) pertaining to fishing during the annual August 15 through November 15 prohibition on drift gillnet fishing in Federal and state waters in Monterey Bay, CA and vicinity north to the 45° N Latitude intersect with the Oregon Coast (66 FR 44549).
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
16 U.S.C. 1801
Office of the Secretary, DoD.
Notice to alter a system of records.
The Office of the Secretary of Defense is altering a system of records to its existing inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on May 22, 2006 unless comments are received that would result in a contrary determination.
Send comments to the OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Ms. Juanita Irvin at (703) 696-4940.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted April 14, 2006, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Educator Certification/Recertification Files (May 14, 1997, 62 FR 26483).
Delete entry and replace with: “DODEA 23.”
Delete entry and replace with: “Records are maintained at the schools and the Human Resources Regional Service Center, Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203-1634.”
Delete entry and replace with: “Department of Defense Education Activity (DoDEA) teachers, as the term ‘teacher’ is defined in 20 U.S.C. 901, and to all DoDEA excepted service and educators classified in the TP-1710 or related series.”
Delete “DoDDS” and replace with: “DoDEA.”
Delete entry and replace with: “20 U.S.C. 901-907; 20 U.S.C. 931; 10 U.S.C. 2164; DoD Directive 1342.20, Department of Defense Education Activity; and E.O. 9397 (SSN).”
Delete “Department of Defense Dependents Schools” and replace with: “Department of Defense Education Activity.”
Delete the third paragraph and replace with: “Records may be disclosed to educational accrediting institutions and organizations during review of a school or schools and North Central Association of Colleges and Schools (NCA), one of six regional accrediting associations in the United States, which accredits DoDEA schools.”
Delete entry and replace with: “Paper records are stored in file folders and electronic information in data bases.”
Delete entry and replace with: “The files are indexed by the educator's full name and Social Security Number.”
Delete entry and replace with: “Paper records and automated records are maintained in files which are accessible only to authorized personnel. The offices are secured during non-business hours. Access to automated data files is controlled by a user ID and password system.”
Delete entry and replace with: “Records are maintained for the current as well as the upcoming certification cycles. Records for an expired certification cycle are retained for 3 years; then they are destroyed. If a teacher leaves the system, except in the case of an educator who is participating in the DoDEA Administrative Re-employment Rights Program, the file is maintained for three years following the current expiration date of the certificate.”
Delete “Chief, Personnel Division, Department of Defense Dependents Schools” and replace with: “Human Resources Director, Human Resources Regional Service Center, Department of Defense Education Activity.”
Delete “Department of Defense Dependent Schools” and replace with: “Department of Defense Education Activity.”
Delete “Department of Defense Dependent Schools” and replace with: “Department of Defense Education Activity.”
Educator Certification/Recertification Files.
Records are maintained at the schools and the Human Resources Regional Service Center, Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203-1634.
Department of Defense Education Activity (DoDEA) teachers, as the term ‘teacher’ is defined in 20 U.S.C. 901, and to all DoDEA excepted service and educators classified in the TP-1710 or related series.
Records consist of transcripts and/or other documentary evidence needed to substantiate the certification status of a DoDEA educator. Records include correspondence relating to amendment, renewal, correction, maintenance, and revocation of the individual educator's certification status.
20 U.S.C. 901-907; 20 U.S.C. 931; 10 U.S.C. 2164; DoD Directive 1342.20, Department of Defense Education Activity; and E.O. 9397 (SSN).
Department of Defense Education Activity administrators use this information to determine the eligibility of applicable employees to be certified/recertified.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The information may be supplied to state or professional organizations, such as the National Association of State Directors of Teacher Education and Certification (NASDTEC), with whom the DoDEA has reciprocal agreements affecting certificates issued or revoked by the respective systems.
Records may be disclosed to educational accrediting institutions and organizations during review of a school or schools and North Central Association of Colleges and Schools (NCA), one of six regional accrediting associations in the United States, which accredits DoDEA schools.
Paper records are stored in file folders and electronic information in data bases.
The files are indexed by the educator's full name and Social Security Number.
Paper records and automated records are maintained in files which are accessible only to authorized personnel. The offices are secured during non-business hours. Access to automated data files is controlled by a user ID and password system.
Records are maintained for the current as well as the upcoming certification cycles. Records for an expired certification cycle are retained for 3 years; then they are destroyed. If a teacher leaves the system, except in the case of an educator who is participating in the DoDEA Administrative Re-employment Rights Program, the file is maintained for three years following the current expiration date of the certificate.
Human Resources Director, Human Resources Regional Service Center, Department of Defense Education Activity, Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203-1634.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Privacy Act Officer, Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203-1635.
The request should include the educator's full name, Social Security Number, and be signed. Former employees must also include dates and places of employment.
Individuals seeking to access information about themselves contained in this system should address written requests to the Privacy Act Officer, Department of Defense Education Activity, 4040 North Fairfax Drive, Arlington, VA 22203-1635.
The request should include the educator's full name, Social Security Number, and be signed. Former employees must also include dates and places of employment.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are published in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Information is obtained from the individuals concerned.
None.
Office of the Secretary, DoD.
Notice to delete systems of records.
The Office of the Secretary of Defense is deleting a system of records notice from its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on May 22, 2006 unless comments are received which result in a contrary determination.
OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Ms. Juanita Irvin at (703) 696-4940.
The Office of the Secretary of Defense systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The specific changes to the records system being amended are set forth below followed by the notice, as amended, published in its entirety. The proposed amendments are not within the purview of subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which requires the submission of a new or altered system report.
DoD Domestic and Elementary School Employee File (May 9, 2003, 68 FR 24935).
Reason: The records contained in this system of records are covered by OPM/GOVT-1 (General Personnel Records), a government wide system notice.
Office of the Secretary, DoD.
Notice to add a system of records.
The Office of the Secretary of Defense proposes to add a system of records to its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The changes will be effective on May 22, 2006 unless comments are received that would result in a contrary determination.
Send comments to OSD Privacy Act Coordinator, Records Management Section, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155.
Ms. Juanita Irvin at (703) 696-4940.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended,
The proposed systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, were submitted on April 14, 2006, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Defense Civilian Personnel Data System.
Lockheed Martin Information Systems, 1401 Del Norte St., Denver, CO 80221; Testing and Operations, TETCO Tower, 1777 N.E. Loop 410, Suite 300, San Antonio, TX 78217.
A list of secondary (Component regional) locations may be obtained by written request to DoD Civilian Personnel Management Service (CPMS), 1400 Key Boulevard, Suite B200, Arlington, VA 22209-5144.
Civilian employees and job applicants for civilian appropriated/non-appropriated fund (NAF) and National Guard (NG) civilian technician positions in the Department of Defense (DoD).
Job applications and employee resumes; position authorization and control information; position descriptions and performance elements; personnel data and projected suspense information for personnel actions; pay, benefits, and entitlements data; historical information on employees, including job experience, education, training, and training transaction data; performance plans, interims, appraisals, closeouts and ratings; professional accounting or other certifications or licenses; awards information and merit promotion information; separation and retirement data; and adverse and disciplinary action data. Personnel information including, but not limited to, employee e-mail address; employee phone numbers to include home, work, pager, fax and mobile; race and national origin; handicap code; and foreign language capability.
5 U.S.C. 301, Department Regulations; 5 U.S.C. Chapters 11, 13, 29, 31, 33, 41, 43, 51, 53, 55, 61, 63, 72, 75, 83, 99; 5 U.S.C. 7201, Antidiscrimination Policy; 10 U.S.C. 136, Under Secretary of Defense for Personnel and Readiness; Executive Order 9830, Amending the Civil Service Rules and Providing for Federal Personnel Administration, as amended; Executive Order 9397 (SSN); and 29 CFR 1614.601, EEO Group Statistics.
To establish a system of records to provide Human Resource information and system support for the DoD civilian workforce worldwide.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD ‘Blanket Routine Uses’ set forth at the beginning of OSD's compilation of systems of records notices apply to this system.
Computer files stored in electronic database.
Name and/or Social Security Number.
Records are accessed and/or maintained in areas accessible only to authorized personnel who are properly screened, cleared, and trained. User names and passwords are employed to ensure access is limited to authorized personnel only. Employees are able to access and view only their records and update certain personal information to them via user name and password. Security systems and/or security guards protect buildings where records are accessed or maintained. A risk assessment has been performed and will be made available on request.
Records are treated as permanent pending a determination by the National Archives and Records Agency of authority for disposition of the records.
Civilian Personnel Management Service, 1400 Key Boulevard, Suite B200, Arlington, VA 22209-5144.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to: Civilian Personnel Management Service, 1400 Key Boulevard, Suite B200, Arlington, VA 22209-5144.
Individual's Social Security Number must be included in the inquiry.
Individuals seeking access to information about themselves contained in this system, which they cannot view through the DCPDS HR Self Service, should address written requests to: Civilian Personnel Management Service, 1400 Key Boulevard, Suite B200, Arlington, VA 22209-5144.
Individual's Social Security Number must be included in the inquiry.
The OSD rules for accessing records, for contesting contents and appealing initial agency determinations are contained in OSD Administrative Instruction 81; 32 CFR part 311; or may be obtained from the system manager.
Prospective employee generated resume, Standard Form 171, or Optional Form 612; employee or supervisor generated training requests; human resources generated records; and other employee or supervisor generated records.
None.
Department of the Army, DoD.
Notice to add a system of records.
The Department of the Army is proposing to add a system of records to its existing inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
The proposed action will be effective on May 22, 2006 unless comments are received that would result in a contrary determination.
Department of the Army, Freedom of Information/Privacy Division, U.S. Army Records Management and Declassification Agency, ATTN: AHRC-PDD-FPZ, 7701 Telegraph Road, Casey Building, Suite 144, Alexandria, VA 22325-3905.
Ms. Janice Thornton at (703) 428-6503.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on April 14, 2006, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Army Science Board (ASB) Files.
Executive Secretary of the Army Science Board, Assistant Secretary of the Army (Acquisitions, Logistics and Technology), 2511 Jefferson Davis Highway, Presidential Towers, Arlington VA 22202-3911.
Distinguished individuals from private sector, academia, and non DoD government agencies with a strong scientific, engineering, industrial backgrounds, or background in other professional disciplines as needed.
Files contain names of individuals and their biographies and other professional information such as qualifications, expertise, experience and education. The files also consist of travel records of the ASB members to include home addresses, social security numbers and other personal information. Data may include prior professional experience, professional activities, developments and list of awards and recognition as well as extra government professional activities and significant professional publications.
Public Law 92-463, Federal Advisory Committee Act; 10 U.S.C. 3013, Secretary of the Army; AR 15-8, Army Science Board; and E.O. 9397 (SSN).
To maintain records on the senior scientific advisory members that will advise and make recommendations to the Secretary of the Army, the Chief of Staff of the Army, the Assistant Secretary of the Army (Acquisition, Logistics and Technology (ASA/ALT)), the Army Staff, and Major commanders on scientific and technological matters concern the Department.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD Blanket Routine Uses' set forth at the beginning of the Army's compilation of systems of records notices apply to this system.
Papers stored in file folders.
By the Army Science Board members' surname.
Records are maintained in areas accessible only to authorized persons having official need. Records are housed in buildings protected by security guards or locked when not in use.
Information is maintained during the tenure of the individual and then destroyed upon determination that the information is no longer needed by the Board.
Office of the Assistant Secretary Army, Acquisition, Logistics, and Technology, 2511 Jefferson Davis Highway, Presidential Towers, Arlington, VA 22202-3911.
Individuals seeking to determine whether information about themselves is contained in this system of records should address themselves is contained in this system of records should address written inquiries to the Office of the Assistant Secretary Army, Acquisition, Logistics, and Technology, 2511 Jefferson Davis Highway, Presidential Towers, Arlington, VA 22202-3911.
Individuals seeking access to information about themselves in this system of records should address written inquiries to the Office of the Assistant Secretary Army, Acquisition, Logistics, and Technology, 2511 Jefferson Davis Highway, Presidential Towers, Arlington, VA 22202-3911.
The Army's rules for accessing records and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505 or may be obtained from the system manager.
From the individual.
None.
Department of the Army, DoD.
Notice to alter a system of records.
The Department of the Army proposes to alter a system of records notice in its inventory of records systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on May 22, 2006 unless comments are received which result in a contrary determination.
Send comments to Department of the Army, Freedom of Information/Privacy Division, U.S. Army Records Management and Declassification Agency, ATTN: AHRC-
Ms. Janice Thornton at (703) 428-6503.
The Department of the Army systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on April 14, 2006, to the House Committee on Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Army Housing Operations Management System (HOMS) (January 20, 2000, 65 FR 3217).
Delete address and replace with: “2511 Jefferson Davis Hwy, Arlington, VA 22202-3926.”
Add the following: “Military personnel, their dependents, and Department of Defense civilian personnel”.
Delete the following from the entry: “appropriate travel orders;” and “reports of liaison with real estate boards, realtors, brokers and other Government agencies;”
Delete the following from the entry: “necessary” and “to determine housing adequacy/suitability; to document cost data for alterations/repair of units; to establish rental rates; to provide guidance and referral service; to reflect liaison with real estate boards, brokers, and other Government agencies;”
Delete entry and replace with: “Installation troop housing files are destroyed after 3 years; installation housing project tenancy files are destroyed 3 years after termination of quarters occupancy; family housing leasing files are destroyed 3 years after lease terminates is canceled, lapses, or after any litigation is concluded; housing, facility and complaint records are destroyed after 10 years; housing referral services are destroyed after 5 years; off-post rental housing reports are destroyed after 2 years; and off-post housing complaints and investigation are destroyed 10 years after completion at office having Army-wide responsibility.”
Army Housing Operations Management System (HOMS).
Office of the Assistant Chief of Staff for Installation Management, Directorate of Facilities and Housing, ATTN: DAIM-FDH, 2511 Jefferson Davis Hwy, Arlington, VA 22202-3926.
Secondary location: Offices of Facilities and Housing at major Army commands, field operating agencies, installations and activities, Army-Wide. Official mailing addresses are published as an appendix to the Army's compilation of systems of records notices.
Military personnel, their dependents, and Department of Defense civilian personnel.
Applications for on/off post housing containing name, service/Social Security Number, rank/grand and date, service data, organization of assignment, home address and telephone number; locator data; records reflecting housing availability/assignment/termination; housing financial records; referral services; property inventories, inventory listing, and issue slips; cost control, job orders; survey data; other management reports regarding the Army housing system, complaints and investigations; and similar relevant documents.
10 U.S.C. 3013, Secretary of the Army; DoD Directive 4165.63, DoD Housing: Army Regulation 210-50, Housing Management; and E.O. 9397 (SSN).
To provide information relating to the management, operation, and control of the Army housing program; to provide housing for military personnel, their dependents, and qualified civilian employees; to render reports; to investigate complaints and related matters.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 55a(b)(3) as follows:
To the Department of Housing and Urban Development to resolve and/or adjudicate matters falling within their jurisdiction.
The ‘Blanket Routine Uses’ set forth at the beginning of the Army's compilation of systems of records notices also to this system.
Paper records, computer tapes, discs, and printouts.
By individuals surname and/or Social Security Number.
Records are maintained in areas accessible only to authorized persons having official need. Records are housed in buildings protected by security guards or locked when not in use. Information in automated medial is further protected by physical security devices; access to or update of information in the system is protected through a system of passwords, thereby preserving integrity of data.
Installation troop housing files are destroyed after 3 years; installation housing project tenancy files are destroyed 3 years after termination of quarters occupancy; family housing leasing files are destroyed 3 years after lease terminated is canceled, lapses, or after any litigation is concluded; housing, facility and complaint records are destroyed after 10 years; housing referral services are destroyed after 5 years; off-post rental housing reports are destroyed after 2 years; and off-post
Chief, Army Hosing Automation, Office of the Assistant Chief of Staff for Installation Management, Directorate of Facilities and Housing, ATTN: DAIM—FDH, 600 Army Pentagon, Washington, DC 20310-0600.
Individuals seeking to determine whether information about themselves is contained in the system should address written inquiries to the directorate of Public Works, Chief of Housing Division at appropriate installation. Official mailing addresses are published as an appendix to the Army's compilation of system of records notices.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Director of Public Works, Chief Housing Division at the appropriate installation. Official mailing addresses are published as an appendix to the Army's compilation of systems of records notices.
Individual should provide his/her name, address and last assignment location.
The Army's rules for accessing records, and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; 32 CFR part 505; or may be obtained from the system manager.
From the individual, his/her personnel records, tenants/landlords and realty activities, financial institutions, and previous employers/commanders, and the Defense Enrollment Eligibility Reporting System (DEERS) database.
None.
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before May 22, 2006.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Rachel Potter, Desk Officer, Department of Education, Office of Management and Budget, 725 17th Street, NW., Room 10222, New Executive Office Building, Washington, DC 20503 or faxed to (202) 395-6974.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Emera Energy Service, Inc. (EES) has applied to amend its authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before May 8, 2006.
Comments, protests or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-5860).
Steven Mintz (Program Office) 202-586-9506 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section
On April 5, 2002, the Department of Energy (DOE) issued Order No. EA-257 authorizing EES to transmit electric energy from the United States to Canada as a power marketer, primarily using international transmission facilities located at the United States border with Canada in the States of Maine and Vermont. On April 5, 2004, in Order No. EA-257-A, DOE renewed the EES authorization to export electric energy to Canada for a five-year term that expires on April 5, 2009.
On April 5, 2006, EES filed an application with DOE to amend the export authority contained in Order No. EA-257-A to add to its list of authorized export points the existing international transmission facilities presently owned by Basin Electric Power Cooperative, Bonneville Power Administration, International Transmission Company, Long Sault, Inc., Minnkota Power Cooperative, Inc., New York Power Authority, Niagara Mohawk Power Corp., and Northern States Power Company.
EES has indicated that during 2005 and 2006 it had inadvertently exported electric energy to Canada over one international transmission line for which it did not have export authority. ESS has requested that any export authority granted by DOE in this proceeding retroactively authorize those previously unauthorized exports.
ESS has also requested expedited treatment of this amendment application and that the authorization, if granted, be effective for a period of five years beginning May 1, 2006. In response to the ESS request, DOE has shortened the comment period to 15 days.
Comments on the EES application to export electric energy to Canada should be clearly marked with Docket EA-257-B. Additional copies are to be filed directly with Calvin Bell, Emera Energy Services, Inc., One Cumberland Place, Suite 102, Bangor, ME 04401
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the program's Home Page at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
Emera Energy U.S. Subsidiary No. 2, Inc. (Emera Sub 2) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests or requests to intervene must be submitted on or before May 8, 2006.
Comments, protests or requests to intervene should be addressed as follows: Office Electricity Delivery and Energy Reliability (Mail Code OE-20), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-5860).
Xavier Puslowski (Program Office), 202-586-4708 or Michael Skinker (Program Attorney), 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated and require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On April 5, 2006, the Department of Energy (DOE) received an application from Emera Sub 2 to transmit electric energy from the United States to Canada. Emera Sub 2 is a Delaware corporation and wholly-owned indirect subsidiary of Emera Incorporated. Emera Incorporated owns two wholly-owned subsidiaries, Bangor Hydro-Electric Company, a transmission and distribution company providing wholesale and retail service in Maine, and Nova Scotia Power Inc. that serves customers located in Nova Scotia, Canada. Emera Sub 2 does not own or control any transmission or distribution assets, nor does it have a franchised service area. The electric energy which Emera Sub 2 proposes to export to Canada would be purchased from the marketplace and would be surplus to the power needs in the United States.
Emera Sub 2 proposes to arrange for the delivery of electric energy to Canada over the existing international transmission facilities presently owned by Basin Electric Power Cooperative, Bonneville Power Administration, Eastern Maine Electric Cooperative, International Transmission Company, Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power Inc., Minnkota Power Cooperative, New York Power Authority, Niagara Mohawk Power Corporation, Northern States Power, and Vermont Electric Transmission Company. The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by Emera Sub 2 as more fully described in the application, has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
In its application Emera Sub 2 requests expedited treatment and requests that export authority, if granted, be made effective as of May 1, 2006. In response to the Emera Sub 2 reqest, DOE has shortened the comment period to 15 days.
Additional copies are to be filed directly with Calvin Bell, Emera Energy Services, Inc., One Cumberland Place, Suite 102, Bangor, ME 04401; Deborah C. Brentani, Wright & Talisman, P.C., 1200 G Street, NW., Suite 600, Washington, DC 20005
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by the DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above or by accessing the program's Home Page at
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge Reservation. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, May 10, 2006, 6 p.m.
DOE Information Center, 475 Oak Ridge Turnpike, Oak Ridge, Tennessee.
Pat Halsey, Federal Coordinator, Department of Energy Oak Ridge Operations Office, P.O. Box 2001, EM-90, Oak Ridge, TN 37831. Phone (865) 576-4025; Fax (865) 576-5333 or e-mail:
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) response to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 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.
Susan Auby (202) 566-1672, or e-mail at
EPA ICR No. 2200.01; Secondary Non-Ferrous Metal Processing Area Source Standard Development Questionnaire; was approved 03/14/2006; OMB Number 2060-0576; expires March 31, 2009.
EPA ICR No. 1188.08; TSCA section 5(a)(2) Significant New Use Rules for Existing Chemicals (Renewal); in 40 CFR part 721; was approved March 16, 2006; OMB Number 2070-0038; expires March 31, 2009.
EPA ICR No. 0152.08; Notice of Arrival of Pesticides and Devices (FIFRA); was approved March 31, 2006; in 19 CFR part 12; OMB Number 2070-0020; expires March 31, 2009.
EPA ICR No. 1426.07; EPA Worker Protection Standards for Hazardous Waste Operations and Emergency Response (Renewal); was approved March 21, 2006; OMB Number 2050-0105; expires March 31, 2009.
EPA ICR No. 1286.07; Used Oil Management Standards Recordkeeping and Reporting Requirements (Renewal); in 40 CFR 279.42, 40 CFR 279.43(c), 40 CFR 279.44, 40 CFR 279.45(g), 40 CFR 279.46, 40 CFR 279.51, 40 CFR 279.52(a)(6), 40 CFR 279.52(b), 40 CFR 279.53, 40 CFR 279.54(f), 40 CFR 279.54(h)(1), 40 CFR 279.55, 40 CFR 279.56, 40 CFR 279.57, 40 CFR 279.62, 40 CFR 279.63, 40 CFR 279.64(f), 40 CFR 279.65, 40 CFR 279.66, 40 CFR 279.72, 40 CFR 279.73, 40 CFR 279.74, 40 CFR 279.75(a), 40 CFR 279.82(b); was approved March 16, 2006; OMB Number 2050-0124; expires March 31, 2009.
EPA ICR No. 1130.08; NSPS for Grain Elevators (Renewal); in 40 CFR part 60, subpart DD; was approved March 23, 2006; OMB Number 2060-0082; expires March 31, 2009.
EPA ICR No. 2027.03; NESHAP for Flexible Polyurethane Foam Fabrication (Renewal); in 40 CFR part 63, subpart MMMMM; was approved March 28,
EPA ICR No. 0111.11; NESHAP for Asbestos (Renewal); in 40 CFR part 61, subpart M; OMB Number 2060-0101; was approved April 3, 2006; OMB Number 2060-0101; expires April 30, 2009.
EPA ICR No. 2032.05; NESHAP for Hydrochloric Acid Production (Final Rule); in 40 CFR part 63, subpart NNNN; was approved April 3, 2006; OMB Number 2060-0529; expires July 31, 2006.
EPA ICR No. 1698.06; Reporting and Recordkeeping Requirements Under EPA's Waste Wise Program (Renewal); was approved March 29, 2006; OMB Number 2050-0139; expires April 30, 2007.
EPA ICR No. 1755.07; Regulatory Pilot Projects (Renewal); was approved March 28, 2006; OMB Number 2010-0026; expires October 21, 2007.
EPA ICR No. 1230.18; Prevention of Significant Deterioration and Nonattainment New Source Review: Emissions Test for Electric Generating Units (Proposed Rule); OMB Number 2060-0003; OMB filed comments on March 24, 2006.
EPA ICR No. 1415.06; NESHAP for Perchloroethylene Dry Cleaning Facilities (Proposed Rule for Leak Detection); in 40 CFR part 63, subpart M; OMB Number 2060-0234; OMB filed comments on March 28, 2006.
EPA ICR No. 1801.05; NESHAP from the Portland Cement Manufacturing Industry (Proposed Rule); OMB Number 2060-0416; OMB filed comments on March 28, 2006.
EPA ICR No. 2170.01; Air Emissions Reporting Requirements (AERR) Proposed Amendments; in 40 CFR part 51, subpart A; 40 CFR 51.122; OMB filed comments on March 30, 2006.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before May 22, 2006.
Submit your comments, referencing docket ID Number EPA-HQ-OECA-2005-0039, to (1) EPA online using
Leonard Lazarus, Compliance Assessment and Media Programs Division (CAMPD), Office of Compliance, (2223A), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-6369; fax number: (202) 564-0050; 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 May 6, 2005 (70 FR 24020), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on 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 Number EPA-HQ-OECA-2005-0039, which is available for online viewing at
Use EPA's electronic docket and comment system at
Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least two years following the date of such measurements, maintenance reports, and records. 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 in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable.
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 May 22, 2006.
Submit your comments, referencing docket ID number EPA-HQ-RCRA-2005-0013, to (1) EPA online using
Toshia King, Office of Solid Waste, mailcode 5303W, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: 703-308-7033; fax number: 703-308-8617; 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 August 15, 2005 (70 FR 47837), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on 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. EPA-HQ-RCRA-2005-0013, which is available for online viewing at
Use EPA's electronic docket and comment system at
EPA enters notification information submitted by respondents into the EPA National data base and assigns EPA Identification Numbers. EPA uses the information primarily for tracking purposes, and secondarily for a variety of enforcement and inspection purposes. In addition, EPA uses this information to identify the universe of regulated waste generators, handlers, and managers and their specific regulated waste activities. Finally, EPA uses this information to ensure that regulated waste is managed properly, that statutory provisions are upheld, and that regulations are adhered to by facility owners or operators.
Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which defines EPA's general policy on public disclosure of information, both contain provisions for confidentiality. However, the Agency does not anticipate that businesses will assert a claim of confidentiality covering all or part of the Notification of Regulated Waste Activity. If such a claim were asserted, EPA must and will treat the information in accordance with the regulations cited above. EPA also will assure that this information collection complies with the Privacy Act of 1974 and OMB Circular 108.
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in the
Department of Transportation's, Federal Highway Administration, has adopted the Corp of Engineers's, FEIS #20030010, filed 01/07/2003. FHW was not a Cooperating Agency on the above FEIS. Under Section 1506.3(b) of the CEQ Regulations, the FEIS must be Recirculated for a 30-day Wait Period.
Environmental Protection Agency (EPA).
Notice of meeting.
Under the Federal Advisory Committee Act, Public Law 92463, EPA gives notice of a meeting of the Environmental Technology Subcommittee of the National Advisory Council for Environmental Policy and Technology (NACEPT). NACEPT provides advice and recommendations to the Administrator of EPA on a broad range of environmental policy, technology, and management issues. The Environmental Technology Subcommittee was formed to assist EPA in evaluating its current and potential role in the development and commercialization of environmental technologies by suggesting how to optimize existing EPA programs to facilitate the development of sustainable private sector technologies, and by suggesting alternative approaches to achieving these goals. The purpose of the meeting is to continue the Subcommittee's consideration of these issues. A copy of the agenda for the meeting will be posted at
The NACEPT Environmental Technology Subcommittee will hold a two day open meeting on Thursday, May 4, from 9 a.m. to 5:30 p.m., and Friday, May 5, from 8:30 a.m. to 1:30 p.m.
The meeting will be held at the Crowne Plaza Washington National Airport, 1480 Crystal Drive, Alexandria, Virginia 22202. The meeting is open to the public, with limited seating on a first-come, first-served basis.
Mark Joyce, Designated Federal Officer,
Requests to make oral comments or provide written comments to the Subcommittee should be sent to Mark Joyce, Designated Federal Officer, at the contact information above. The public is welcome to attend all portions of the meeting. Notice for this meeting was delayed due to an unanticipated and unavoidable change of meeting location shortly before the meeting date.
Environmental Protection Agency.
Notice; correction.
On April 17, 2006, the U.S. Environmental Protection Agency's (EPA or Agency) Office of the Science Advisor (OSA) announced a public meeting of the Human Studies Review Board (HSRB) to be held May 2-4, 2006 from 8:30 a.m. to approximately 5 p.m., eastern time. However, the third day may not be needed. Please be advised the docket number for that notice was incorrect.
Effective on April 21, 2006.
Paul I. Lewis, Designated Federal Officer (DFO), EPA, Office of the Science Advisor, (8105), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 564-8381; fax: (202) 564 2070; e-mail address:
In the
Environmental Protection Agency (EPA).
Notice.
This notice announces the initial filing of a pesticide petition proposing the establishment of regulations for the combined residues of total fluroxypyr (fluroxypyr MHE and its metabolite fluroxypyr) in or on garlic and shallot (bulb), and onion (dry bulb).
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2005-0536 and pesticide petition number (PP) 3E6775 by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Barbara Madden, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6463; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 pesticide chemicals in or on various commodities. 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 included in this notice, 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 pesticide petitions proposing the establishment or amendment of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0292 and pesticide petition number (PP) 5E7015, by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001: telephone number: (703) 308-3194; 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
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. 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 included in this notice, 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
The Pesticide Analytical Manual (PAM) Vol. II, Pesticide Regulation Section 180.368 lists a gas chromatography and nitrogen phosphorous detector (GC/NPD) method (Method 1) for determining residues in /on plants and a gas chromatography and mass spectrometry detector (GC/MSD) method for determining residues in livestock commodities. These methods determine residues of S-metolachlor and its metabolites as either CGA-37913 or CGA-49751 following acid hydrolysis. The limit of quantitation (LOQ) for the method is 0.03 ppm for CGA-37913 and 0.05 ppm for CGA-49751. Syngenta has also developed a chiral specific analytical method to allow for the determination of residues that are specific to S-metolachlor. It is this chiral specific method that Syngenta and IR-4 proposes for future use as the analytical enforcement method in support of these requested tolerances. Syngenta No. 1848-01 was used in several of the studies in this petition to analyze agricultural commodities. The latter chiral specific method is the same as the updated tolerance enforcement method, except that chiral chromatography and liquid chromatography, mass spectrometry, and mass spectrometry (LC/MS/MS) are used to separate and quantitate the hydrolysis products SYN506357 (s-configured enantiomer of CGA-37913) and SYN508500 (s-configured enantiomer of CGA-49751).
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 the residues of the fungicide thiabendazole, (2-(4-thiazolyl) benzimidazole) in or on dry pea.
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0166 and pesticide petition number (PP) 1E6323, by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Barbara Madden, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-6463; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. 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
Pursuant to 40 CFR 180.7(f), a summary of the petition included in this notice, 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 pesticide petitions proposing the establishment or amendment of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0297, by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Shaja R. Brothers, Registration Division (7505C), Office of Pesticide Programs (OPP), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; phone number: (703) 308-3194; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. 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 included in this notice, 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 pesticide petitions proposing the establishment of regulations for the residues of quinoxyfen (5,7-dichloro-4-(4-fluorophenoxy)quinoline in or on head/
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0167 and pesticide petition numbers (PP) 3E6755, 5E5959 and 5E6970 by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Sidney Jackson, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 305-7610; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 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 petitions included in this notice, 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
1.
2.
3.
A practical analytical method is available to monitor and enforce the tolerances of quinoxyfen residues in crops. The analytical method uses capillary gas chromatography and mass spectrometry detector (GC-MSD) with limits of quantitation (LOQ) of approximately 0.01 ppm. An independent laboratory has validated the method.
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 the residues of clethodim (E)-(±)-2-[1-[[(3-chloro-2-propenyl)oxy]imino]propyl]-5-[2(ethylthio)propyl]-3-hydroxy-2-cyclohexen-1-one and its metabolites containing the 2-cyclohexene-1-one moiety in or on flax seed, herbs (Subgroup 19A), asparagus, hops, leafy greens, including cilantro (Subgroup 4A), sesame seed, legume vegetables (Group 6), and safflower.
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0535 and pesticide petition numbers (PP) 3E6555, 4E6836, 5E6977, 5E6978 and 4F6895 by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Barbara Madden, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; phone number: (703) 305-6463; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns, and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 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 petitions included in this notice, 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
1.
2.
3.
4.
5.
Practical analytical methods for detecting and measuring levels of clethodim and its metabolites have been developed and validated in/on all appropriate agricultural commodities, respective processing fractions, milk, animal tissues, and environmental samples. The methods have been validated at independent laboratories, and EPA has successfully performed an analytical method trial. For most commodities, the primary enforcement method is EPA-RM-26D-3, a high performance liquid chromatography (HPLC) method capable of distinguishing clethodim from the structurally related herbicide sethoxydim.
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 an exemption from the requirement of regulations for residues of ammonium formate in or on all food commodities when used as an inert ingredient in pesticide products.
Comments must be received on or before May 22, 2006.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2006-0121 and pesticide petition number (PP) 6E7028, by one of the following methods:
• Federal eRulemaking Portal:
•
•
•
Bipin Gandhi, Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8380; 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.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
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 or amendment of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. 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 included in this notice, prepared by the petitioner is available on EPA's Electronic Docket at
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Federal Communications Commission.
Notice.
This document announces the procedures and minimum opening bids for the upcoming auction of Advanced Wireless Services licenses in the 1710-1755 MHz and 21102155 MHz bands. This document is intended to familiarize prospective bidders with the procedures, minimum opening bids and reserve price for this auction.
Auction No. 66 is scheduled to begin on June 29, 2006.
This is a summary of the
1. The Federal Communications Commission (FCC or Commission) announces the procedures, minimum opening bids, and reserve price for the upcoming auction of Advanced Wireless Services licenses in the 1710-1755 MHz and 2110-2155 MHz bands (AWS-1) scheduled for June 29, 2006 (Auction No. 66). On January 31, 2006, in accordance with section 309(j)(3) of the Communications Act of 1934, as amended, the Wireless Telecommunications Bureau (Bureau) released a public notice seeking comment on a reserve price and minimum opening bid amounts and the procedures to be used in Auction No. 66. Interested parties submitted 54 comments and 16 reply comments in response to the
2. In the
3. The Bureau also proposed in the
4. Taking into account concerns raised in the record, the Commission has decided to modify its proposal. First, consistent with a suggested compromise between the proposal and the Commission's past practice that was the subject of extensive comment in the record, the Commission will withhold certain information unless it appears that the auction will be sufficiently competitive that any anti-competitive behavior addressed by the original proposal would be unlikely to be successful. To gauge the likely level of competition in this upcoming auction, the Commission will evaluate the level of prospective bidders' bidding eligibility. Specifically, if all the bidders' bidding eligibility, measured in bidding units (subject to a cap on the amount of any one bidder's eligibility) divided by all licenses in the auction, measured in bidding units is equal to or greater than three, the Commission believes the auction will be sufficiently competitive. For the purposes of determining the modified eligibility ratio, the bidding eligibility of any one bidder may be no more than 50 percent of the bidding units of all licenses in the auction. If the modified eligibility ratio is three or greater, the likely level of competition should be sufficient to make anti-competitive outcomes difficult to sustain. Second, if the modified eligibility ratio is less than three and, therefore, certain information is withheld, the Commission will follow the original proposal with two changes: (1) The Commission will release each bidder's eligibility and upfront payment made prior to the start of the auction; and (2) the Commission will release all gross bids for each license (including the losing bids) after each round, but not bidder identities. The Commission believes this compromise provides bidders with additional information regarding license valuations without compromising the proposal's goal of reducing the potential for anti-competitive outcomes.
5. Pursuant to these procedures, license selection information will be withheld, at least initially. Therefore, to enable applicants to comply with the Commission's anti-collusion rules, each applicant with a short-form application to participate in a pending auction will receive a letter that lists the applicants in Auction No. 66 that have applied for licenses in any of the same geographic areas as the applicant, once the Commission has conducted its initial review of applications to participate in Auction No. 66.
6.
7. Growth in demand for mobile wireless services, coupled with the rise of the Internet and greater broadband availability, have increased the need for additional spectrum and advanced technologies capable of providing advanced wireless services, including wireless Internet access and other high-speed information and entertainment services. Enhancements to current wireless network technologies, as well as the development of new technologies, are continuing to improve and expand the deployment of wireless broadband.
8. In order to facilitate the rapid deployment of broadband technologies, the Commission has allocated spectrum to meet the demand for advanced wireless services. In the
9. Making this spectrum available requires relocating incumbent operations, both Federal Government (Government) and non-Federal Government (non-Government). Relocation of Government operations is subject to the CSEA. For non-Government operations, the Commission's
10. Auction No. 66 will offer 1,122 licenses: 36 Regional Economic Area Grouping (REAG) licenses, 352 Economic Area (EA) licenses, and 734 Cellular Market Area (CMA) licenses. A complete list of the AWS-1 licenses available in Auction No. 66 can be found in Attachment A of
11. Prospective applicants must familiarize themselves thoroughly with the Commission's general competitive bidding rules set forth in Title 47, part 1, of the Code of Federal Regulations, including recent amendments and clarifications; rules relating to the Advanced Wireless Services and emerging technologies contained in Title 47, parts 27 and 101, of the Code of Federal Regulations; and rules relating to applications, practice and procedure contained in Title 47, part 1, of the Code of Federal Regulations. Prospective applicants must also be thoroughly familiar with the procedures, terms and conditions contained in the
12. The terms contained in the Commission's rules, relevant orders, and public notices are not negotiable. The Commission may amend or supplement the information contained in its public notices at any time, and will issue public notices to convey any new or supplemental information to applicants. It is the responsibility of all
13. To ensure the competitiveness of the auction process, § 1.2105(c) of the Commission's rules prohibit applicants competing for licenses in any of the same geographic license areas from communicating with each other about bids, bidding strategies, or settlements unless such applicants have identified each other on their short-form applications (FCC Forms 175) as parties with whom they have entered into agreements pursuant to § 1.2105(a)(2)(viii). In Auction No. 66, the rule would apply to any applicants bidding for the same CMA, EA, or REAG. The rule would also apply to applicants bidding for licenses in overlapping CMAs, EAs, and REAGs. In addition, the rule would preclude applicants that apply to bid for all markets from communicating with all other applicants. Applicants that have applied for the same markets (unless they have identified each other on their FCC Form 175 applications as parties with whom they have entered into agreements under § 1.2105(a)(2)(viii)) must affirmatively avoid all communications with or disclosures to each other that affect or have the potential to affect bids or bidding strategy, which may include communications regarding the post-auction market structure. This prohibition begins at the short-form application filing deadline and ends at the down payment deadline after the auction. This prohibition applies to all applicants regardless of whether such applicants become qualified bidders or actually bid.
14. For purposes of this prohibition, § 1.2105(c)(7)(i) defines applicant as including all officers and directors of the entity submitting a short-form application to participate in the auction, all controlling interests of that entity, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a short-form application.
15. Applicants for licenses for any of the same geographic license areas must not communicate directly or indirectly about bids or bidding strategy. Accordingly, such applicants are encouraged not to use the same individual as an authorized bidder. A violation of the anti-collusion rule could occur if an individual acts as the authorized bidder for two or more applicants, and conveys information concerning the substance of bids or bidding strategies between such applicants. Also, if the authorized bidders are different individuals employed by the same organization (
16. The Commission's rules do not prohibit applicants from entering into otherwise lawful bidding agreements before filing their short-form applications, as long as they disclose the existence of the agreement(s) in their short-form application. If parties agree in principle on all material terms prior to the short-form filing deadline, each party to the agreement must identify the other party or parties to the agreement on its short-form application under § 1.2105(c), even if the agreement has not been reduced to writing. If the parties have not agreed in principle by the short-form filing deadline, they should not include the names of parties to discussions on their applications, and they may not continue negotiations, discussions or communications with any other applicants after the short-form filing deadline. By electronically submitting its short-form application, each applicant certifies its compliance with § 1.2105(c). Any applicant found to have violated the anti-collusion rule may be subject to sanctions.
17. By electronically submitting its short-form application, each applicant certified its compliance with § 1.2105(c). However, the Commission cautions that merely filing a certifying statement as part of an application will not outweigh specific evidence that collusive behavior has occurred, nor will it preclude the initiation of an investigation when warranted. Any applicant found to have violated the anti-collusion rule may be subject to sanctions.
18. Applicants are also reminded that, regardless of compliance with the Commission's rules, they remain subject to the antitrust laws, which are designed to prevent anticompetitive behavior in the marketplace. Compliance with the disclosure requirements of the Commission's anti-collusion rule will not insulate a party from enforcement of the antitrust laws. To the extent the Commission becomes aware of specific allegations that may give rise to violations of the federal antitrust laws the Commission may refer such allegations to the United States Department of Justice for investigation. If an applicant is found to have violated the antitrust laws or the Commission's rules in connection with its participation in the competitive bidding process, it may be subject to forfeiture of its upfront payment, down payment, or full bid amount and may be prohibited from participating in future auctions, among other sanctions.
19. Section 1.65 of the Commission's rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application. Applicants are therefore required by § 1.65 to report to the Commission any communications they have made to or received from another applicant after the short-form filing deadline that affect or have the potential to affect bids or bidding strategy unless such communications are made to or received from parties to agreements identified under § 1.2105(a)(2)(viii).
20. Applicants that are winning bidders will be required to disclose in their long-form applications the specific terms, conditions, and parties involved in all bidding consortia, joint ventures, partnerships, and other arrangements entered into relating to the competitive bidding process.
21. A summary listing of documents issued by the Commission and the Bureau addressing the application of the anti-collusion rule may be found in Attachment G of the
22. The AWS-1 bands are now being used for a variety of Government and non-Government services. The 1710-1755 MHz band is currently a Government band. The 2110-2150 MHz band is used by private (including state and local governmental public safety services) and common carrier fixed microwave services. The 2150-2155
23.
24. CSEA also prohibits the Commission from concluding any auction of eligible frequencies if the total cash proceeds attributable to such spectrum are less than 110 percent of the estimated relocation costs provided to the Commission by the National Telecommunications and Information Administration (NTIA). NTIA has collected estimates of the relocation costs for the eligible frequencies in the AWS-1 band. On December 27, 2005, pursuant to CSEA, NTIA notified the Commission of the estimated relocation costs and timelines for relocation of eligible Federal entities assigned to frequencies from 1710 to 1755 MHz. NTIA reported that the total estimated relocation costs equal $935,940,312.
25.
26. AWS licensees must comply with the technical and operational rules set forth in 47 CFR 27.50-27.66 and 27.1131-27.1135. The latter set of rules describes the procedures AWS licensees must follow to protect co-channel and adjacent channel incumbent Government and non-Government operations from interference.
27.
28. The CSEA permits the Commission to grant commercial licenses in these bands prior to relocation of Federal government operations and the termination of a Federal entity's authorization. Until such time as the Government licensees have relocated to other spectrum, or NTIA de-authorizes an operation pursuant to CSEA, AWS operators shall be required to protect non-DOD Government systems operating in the 1710-1755 and 1755-1761 MHz bands in accordance with the provisions set forth in § 27.1134(b) of the Commission's rules.
29. AWS licensees operating fixed stations in the 1710-1755 MHz band, if notified that such stations are causing interference to radiosonde receivers operating in the Meteorological Aids Service in the 1675'1700 MHz band or meteorological-satellite earth receivers operating in the Meteorological-Satellite Service in the 1675-1710 MHz band, shall be required to modify the stations' location and/or technical parameters as necessary to eliminate the interference.
30.
31. AWS licensees operating in the 2110-2155 MHz band must protect previously licensed Broadcast Auxiliary Service (BAS) and Cable Television Radio Service (CARS) operations in the adjacent 2025-2110 MHz band. In satisfying this requirement AWS licensees must, before constructing and operating any base or fixed station, determine the location and licensee of all BAS or CARS stations authorized in their area of operation, and coordinate their planned stations with those licensees.
32. The National Aeronautics and Space Administration (NASA) operates the Deep Space Network (DSN) in the 2110-2120 MHz band at Goldstone, California. NASA will continue its operations of high power transmitters (nominal EIRP of 105.5 dBW with EIRP up to 119.5 dBW used under emergency conditions) in this band at this location. AWS licensees must accept any interference received from the Goldstone DSN facility in this band.
33. Operations in the 1710-1755 and 2110-2155 MHz bands must not cause harmful interference across the borders with Mexico and Canada. Until such time as agreements between the United States, Mexico and Canada become effective, the same technical restrictions at the border that are adopted for operation between geographic service areas will apply, to the extent they are not in violation of current bilateral agreements and arrangements. When interim arrangements or agreements between the United States, Mexico and Canada are final and become effective, licensees in the 1710-1755 and 2110-2155 MHz bands must comply with these agreements. In addition, if these agreements are modified in the future, licensees in the 1710-1755 and 2110-2155 MHz bands must comply with these modifications.
34. Advanced Wireless Services licensees must protect the radio quiet zones set forth in the Commission's rules. Licensees are cautioned that they must receive the appropriate approvals directly from the relevant quiet zone entity prior to operating within the areas described in the Commission's rules.
35. The Commission cautions potential applicants formulating their bidding strategies to investigate and consider the extent to which AWS frequencies are occupied. Operations in the AWS-1 bands must be protected and/or relocated to available frequencies typically in higher bands or to other media. These limitations may restrict the ability of AWS geographic area licensees to use certain portions of the electromagnetic spectrum or provide service to certain areas in their geographic license areas. Bidders should become familiar with the status of these operations and relocation requirements, and applicable Commission rules, orders and any pending proceedings related to the service, in order to make reasoned, appropriate decisions about their participation in Auction No. 66 and their bidding strategy.
36. Potential bidders are reminded that they are solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the AWS-1 licenses in this auction. The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC licensee in the Advanced Wireless Services subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular service, technology, or product, nor does an FCC license constitute a guarantee of business success. Applicants should perform their individual due diligence before proceeding as they would with any new business venture.
37. Potential bidders are strongly encouraged to conduct their own research prior to the beginning of bidding in Auction No. 66 in order to determine the existence of any pending administrative or judicial proceedings that might affect their decision regarding participation in the auction. Participants in Auction No. 66 are strongly encouraged to continue such research throughout the auction. In addition, potential bidders should perform technical analyses sufficient to assure themselves that, should they prevail in competitive bidding for a specific license, they will be able to build and operate facilities that will fully comply with the Commission's technical and legal requirements.
38. Applicants should also be aware that certain pending and future proceedings, including applications (including those for modification), petitions for rulemaking, requests for special temporary authority, waiver requests, petitions to deny, petitions for reconsideration, informal oppositions, and applications for review, before the Commission may relate to particular applicants or incumbent licensees or the licenses available in Auction No. 66. In addition, pending and future judicial proceedings may relate to particular applicants or incumbent licensees, or the licenses available in Auction No. 66. Prospective bidders are responsible for assessing the likelihood of the various possible outcomes, and considering their potential impact on spectrum licenses available in this auction.
39. Applicants should perform due diligence to identify and consider all proceedings that may affect the spectrum licenses being auctioned and that could have an impact on the availability of spectrum for Auction No. 66. In addition, although the Commission may continue to act on various pending applications, informal objections, petitions, and other requests for Commission relief, some of these matters may not be resolved by the time of the auction.
40. Applicants are solely responsible for identifying associated risks and for investigating and evaluating the degree to which such matters may affect their ability to bid on, otherwise acquire, or make use of licenses available in Auction No. 66.
41. Applicants may obtain information about non-Federal Government incumbent licenses that may have an effect on availability of licenses in Auction No. 66 through the Commission's licensing databases on the World Wide Web.
42. To further assist potential bidders in determining the scope of the new AWS entrants' relocation obligations in the 2150-2155 MHz band, the Commission ordered BRS licensees in the 2150-2160/62 MHz band to submit information on the locations and operating characteristics of BRS systems in that band. Each application will need to be viewed to determine if it is a BRS Channel 1, 2/ 2A Notification.
43. The Commission makes no representations or guarantees regarding the accuracy or completeness of information in its databases or any third party databases. The Commission's databases may not include all information deemed necessary or desirable by an applicant, applicants may obtain or verify such information from independent sources or assume the risk of any incompleteness or inaccuracy in said databases. Furthermore, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into its databases.
44. Potential applicants are strongly encouraged to physically inspect any prospective sites located in, or near, the service area for which they plan to bid, and also to familiarize themselves with the environmental assessment obligations.
45. The Commission will make available a browser-based bidding system to allow bidders to participate in Auction No. 66 over the Internet using the Commission's Integrated Spectrum Auction System (ISAS or FCC Auction System). The Commission makes no warranty whatsoever with respect to the FCC Auction System. In no event shall the Commission, or any of its officers, employees or agents, be liable for any damages whatsoever (including, but not limited to, loss of business profits, business interruption, loss of business information, or any other loss) arising out of or relating to the existence, furnishing, functioning or use of the FCC Auction System that is accessible to bidders in connection with this auction. Moreover, no obligation or liability will arise out of the Commission's technical, programming or other advice or service provided in connection with the FCC Auction System.
46. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction No. 66 to deceive and defraud unsuspecting investors. Information about deceptive telemarketing investment schemes is available from the Federal Trade Commission (FTC) and from the Securities and Exchange Commission (SEC).
47. Licensees must comply with the Commission's rules regarding implementation of the National
48. Bidding in Auction No. 66 will begin on Thursday, June 29, 2006, as announced in the
49. Several commenters addressed the date on which bidding in Auction No. 66 will commence. Generally, commenters expressed support for commencing the auction on June 29, 2006. A few commenters, however, expressed concern about the start date.
50. The Commission does not find sufficient cause to delay the start of Auction No. 66, and therefore, will commence the competitive bidding as scheduled, i.e., on June 29, 2006. The Commission agrees with the majority of the parties who commented on this issue that it is in the public interest to make AWS spectrum available as soon as it is both reasonable and consistent with CSEA. Therefore, the concerns raised by some about time needed to prepare for package bidding are moot. The Commission has decided to proceed with standard, single SMR auction for the AWS-1 licenses.
51. Unless otherwise announced, bidding on all licenses will be conducted on each business day until bidding has stopped on all licenses.
52. Auction No. 66—Advanced Wireless Services (AWS-1)
53. The bidding methodology for Auction No. 66 will be simultaneous multiple round bidding. The Commission will conduct this auction over the Internet using the FCC Auction System, and telephonic bidding will be available as well. Qualified bidders are permitted to bid electronically via the Internet or by telephone.
54. Dates and Deadlines:
Auction Seminar: April 24, 2006.
Short-Form Application (FCC Form 175) Filing Window Opens: April 24, 2006; 12 p.m. ET.
Short-Form Application (FCC Form 175) Filing Window Deadline: May 10, 2006; 6 p.m. ET.
Upfront Payments (via wire transfer): June 1, 2006; 6 p.m. ET.
Mock Auction: June 26, 2006.
Auction Begins: June 29, 2006.
55. Those wishing to participate in the auction must: (a) Submit a short-form application (FCC Form 175) electronically prior to 6 p.m. Eastern Time (ET), May 10, 2006, following the electronic filing procedures set forth in Attachment D of the
56. See
57. An application to participate in an FCC auction, referred to as a short-form application or FCC Form 175, provides information used in determining whether the applicant is legally, technically, and financially qualified to participate in Commission auctions for licenses or permits.
58. Entities seeking licenses available in Auction No. 66 must file a short-form application electronically via the FCC Auction System before 6 p.m. ET on May 10, 2006, following the procedures prescribed in Attachment D of the
59. An entity may not submit more than one short-form application for a single auction. In the event that a party submits multiple short-form applications, only one application will be accepted for filing. Applicants also should note that submission of a short-form application constitutes a representation by the certifying official that he or she is an authorized representative of the applicant, that he or she has read the form's instructions and certifications, and that the contents of the application, its certifications, and any attachments are true and correct. Submission of a false certification to the Commission may result in penalties, including monetary forfeitures, license forfeitures, ineligibility to participate in future auctions, and/or criminal prosecution.
60. A bidding credit represents the amount by which a bidder's winning bid will be discounted. For Auction No. 66, bidding credits will be available to small businesses and very small businesses, and consortia thereof, as follows: (1) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) will receive a 15 percent discount on its winning bid; (2) a bidder with attributed average annual gross revenues that do not exceed $15 million for the preceding three years (very small business) will receive a 25 percent discount on its winning bid.
61. Bidding credits are not cumulative; a qualifying applicant receives either the 15 percent or 25 percent bidding credit on its winning bid, but not both.
62. Every applicant that claims eligibility for a bidding credit as either a small business or a very small business, or a consortium of small businesses or very small businesses, will be required to provide information regarding revenues attributable to the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests on its FCC Form 175 short-form application to establish that it satisfies the applicable eligibility requirement. Applicants considering claiming eligibility as a designated entity in Auction No. 66 should review carefully the recently released
63. To encourage the growth of wireless services in federally recognized tribal lands the Commission has implemented a tribal land bidding credit. The Commission will award pro rata tribal lands bidding credits in the event that the sum of all net winning bids at the close of bidding, exclusive of tribal lands bidding credits, is not sufficient funds both to meet the reserve price and to award all eligible applicants full tribal lands bidding credits.
64. Installment payment plans will not be available in Auction No. 66.
65. In Auction No. 66, applicants must select the licenses on which they want to bid from the Eligible Licenses list. In Auction No. 66, FCC Form 175 will include a filtering mechanism that allows an applicant to filter the available licenses. The applicant will make selections for one or more of the filter criteria and the system will produce a list of licenses satisfying the specified criteria. The applicant may select all the licenses in the customized list or select individual licenses from the list. Applicants also will be able to select licenses from one customized list and then create additional customized lists to select additional licenses. There will be no opportunity to change license selection after the short-form filing deadline. It is critically important that an applicant confirm its license selections before submitting its short-form application because the FCC Auction System will not accept bids on licenses that an applicant has not selected on its FCC Form 175.
66. Applicants will be required to identify in their short-form applications all parties with whom they have entered into any agreements, arrangements, or understandings of any kind relating to the licenses being auctioned, including any agreements relating to post-auction market structure. Applicants also will be required to certify under penalty of perjury in their short-form applications that they have not entered and will not enter into any explicit or implicit agreements, arrangements or understandings of any kind with any parties, other than those identified in the application, regarding the amount of their bids, bidding strategies, or the particular licenses on which they will or will not bid. If an applicant has had discussions, but has not reached a joint bidding agreement by the short-form application filing deadline, it would not include the names of parties to the discussions on its application and may not continue such discussions with any applicants after the deadline.
67. After the filing of short-form applications, the Commission's rules do not prohibit a party holding a non-controlling, attributable interest in one applicant from acquiring an ownership interest in or entering into a joint bidding arrangement with other applicants provided that (i) the attributable interest holder certifies that it has not and will not communicate with any party concerning the bids or bidding strategies of more than one of the applicants in which it holds an attributable interest, or with which it has entered into a joint bidding arrangement; and (ii) the arrangements do not result in a change in control of any of the applicants. While the anti-collusion rules do not prohibit non-auction related business negotiations among auction applicants, applicants are reminded that certain discussions or exchanges could touch upon impermissible subject matters because they may convey pricing information and bidding strategies. Further, as discussed above, compliance with the disclosure requirements of the Commission's anti-collusion rule will not insulate a party from enforcement of the antitrust laws.
68. All applicants must comply with the uniform Part 1 ownership disclosure standards and provide information required by §§ 1.2105 and 1.2112 of the Commission's rules. Specifically, in completing the short-form application, applicants will be required to fully disclose information on the real party or parties-in-interest and ownership structure of the applicant.
69. Applicants considering claiming eligibility as a designated entity in Auction No. 66 should review carefully and monitor the recently initiated rulemaking proceeding concerning the Commission's designated entity rules. The Commission also sought comment on whether to restrict the award of designated entity benefits where an otherwise qualified designated entity has a material relationship with a large entity that has a significant interest in communications services. The Commission stated that it intended any changes adopted in this proceeding to apply to AWS licenses to be offered in Auction No. 66. Depending upon the outcome of that proceeding, applicants may be required to disclose additional ownership information in order to comply with any changes to the designated entity rules that the Commission may adopt that are applicable to applicants in Auction No. 66.
70. Applicants are responsible for ensuring that the information submitted in their Form 175 for Auction No. 66 is complete and accurate. Accordingly, applicants should carefully review any information automatically entered to confirm that it is complete and accurate as of the deadline for filing the short-form application. Applicants can update any information that was entered automatically and needs to be changed directly in the short-form application.
71. To determine which applicants qualify for bidding credits as small businesses or very small businesses, the Commission considers the gross revenues of the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests. Therefore, entities applying to bid as small businesses or very small businesses (or consortia of small businesses or very small businesses) will be required to disclose on their FCC Form 175 short-form applications the gross revenues of each of the following for the preceding three years: (1) The applicant, (2) its affiliates, (3) its controlling interests, and (4) the affiliates of its controlling interests. In order to comply with the Commission's disclosure requirements for bidding credit eligibility, an applicant must provide separately for itself, its affiliates, its controlling interests, and the affiliates of its controlling interests, the gross revenues for each of the preceding three years. If the applicant is applying as a consortium of small businesses or very small businesses, this information must be provided for each consortium member.
72. Applicants considering claiming eligibility as a designated entity in Auction No. 66 should review carefully the recently released
73. Controlling interests of an applicant include individuals and entities with either de facto or de jure control of the applicant. Typically, ownership of at least 50.1 percent of an entity's voting stock evidences de jure control. De facto control is determined on a case-by-case basis.
74. Officers and directors of an applicant are also considered to have controlling interest in the applicant. Once the principals or entities with a controlling interest are determined, only the revenues of those principals or entities, the affiliates of those principals or entities, and the applicant and its affiliates will be counted in determining small business eligibility.
75. Each member of a consortium of small or very small businesses that applies to participate in Auction No. 66 must individually meet the definition of small business or very small business adopted by the Commission for the Advanced Wireless Services. Each consortium member must disclose its gross revenues along with those of its affiliates, its controlling interests, and the affiliates of its controlling interests. Although the gross revenues of the consortium members will not be aggregated for purposes of determining the consortium's eligibility as a small business or very small business, this information must be provided to ensure that each individual consortium member qualifies for any bidding credit awarded to the consortium.
76. Each applicant must state under penalty of perjury on its short-form application whether or not the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests, as defined by § 1.2110, have ever been in default on any Commission licenses or have ever been delinquent on any non-tax debt owed to any Federal agency. In addition, each applicant must certify under penalty of perjury on its short-form application that as of the short-form filing deadline, the applicant, its affiliates, its controlling interests, and the affiliates of its controlling interests, as defined by § 1.2110, are not in default on any payment for Commission licenses (including down payments) and that they are not delinquent on any non-tax debt owed to any Federal agency. Prospective applicants are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.
77. Former defaulters, i.e., applicants, including any of their affiliates, any of their controlling interests, or any of the affiliates of its controlling interests, that in the past have defaulted on any Commission licenses or been delinquent on any non-tax debt owed to any Federal agency, but that have since remedied all such defaults and cured all of their outstanding non-tax delinquencies—are eligible to bid in Auction No. 66, provided that they are otherwise qualified.
78. Current defaulters,
79. Applicants are encouraged to review the Commission's previous guidance on default and delinquency disclosure requirements in the context of the short-form application process. Therefore, with respect to regulatory or application fees, the provisions of §§ 1.2105(a) and 1.2106(a) regarding default and delinquency in connection with competitive bidding are limited to circumstances in which the relevant party has not complied with a final Commission payment deadline.
80. The Commission considers outstanding debts owed to the United States Government, in any amount, to be a serious matter. The Commission adopted rules, including a provision referred to as the red light rule, that implement the Commission's obligations under the
81. Prospective applicants in Auction No. 66 should note that any long-form applications filed after the close of competitive bidding will be reviewed for compliance with the Commission's red light rule, and such review may result in the dismissal of a winning bidder's long-form application.
82. Applicants owned by member of minority groups and/or women, as defined in § 1.2110(c)(3), may identify themselves in filling out their short-form applications regarding this status. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of designated entities in its auctions.
83. After the deadline for filing short-form applications (FCC Forms 175) at 6 p.m. ET on May 10, 2006, applicants are permitted to make only minor changes to their applications. Applicants are not permitted to make major modifications to their applications (e.g., change their license selections, change control of the applicant, or claim eligibility for a higher bidding credit).
84. Any application amendment and related statements of fact must be certified by: (1) The applicant, if the applicant is an individual, (2) one of the partners if the applicant is a partnership, (3) an officer, director, or duly authorized employee, if the applicant is a corporation, (4) by a member who is an officer, if the applicant is an unincorporated association, (5) the trustee if the applicant is an amateur radio service club, or (6) a duly elected or appointed official who is authorized to make such certifications under the laws of the applicable jurisdiction, if the applicant is a governmental entity.
85. An applicant must make permissible minor changes to its short-form application as such changes are
86. Applicants should not submit application-specific material through the Commission's Electronic Comment Filing System (ECFS), which was used for submitting comments regarding Auction No. 66 procedures.
87. Section 1.65 of the Commission's rules requires an applicant to maintain the accuracy and completeness of information furnished in its pending application and to notify the Commission within 30 days of any substantial change that may be of decisional significance to that application. Changes that cause a loss of or reduction in eligibility for a bidding credit must be reported immediately. If an amendment reporting substantial changes is a major amendment as defined by 47 CFR 1.2105, the major amendment will not be accepted and may result in the dismissal of the short-form application.
88. In the event that the new rules regarding applicants and applications become effective after the deadline for filing short-form applications (FCC Form 175), applicants may be required to submit additional information not required in the initial form. In this regard, applicants considering claiming eligibility as a designated entity in Auction No. 66 should review carefully the recently released
89. On Monday, April 24, 2006, the FCC will sponsor a seminar for parties interested in participating in Auction No. 66 at the FCC headquarters, located at 445 12th Street, SW., Washington, DC. For individuals who are unable to attend, an Audio/Video webcast of this seminar will be available from the FCC's Auction No. 66 Web page.
90. To register, complete the registration form Attachment C of the
91. In order to be eligible to bid in this auction, applicants must first submit an FCC Form 175 application electronically via the FCC Auction System. This application must be received at the Commission prior to 6 p.m. ET on May 10, 2006. Late applications will not be accepted. There is no application fee required when filing an FCC Form 175. However, to be eligible to bid, an applicant must submit an upfront payment.
92. Applications may generally be filed at any time beginning at noon ET on April 24, 2006, until 6 p.m. ET on May 10, 2006. Applicants are strongly encouraged to file early and are responsible for allowing adequate time for filing their applications. Applicants may update or amend their applications multiple times until the filing deadline on May 10, 2006. Information about accessing, completing, and viewing the FCC Form 175 is included in Attachment D of the
93. After the deadline for filing the FCC Form 175 applications has passed, the FCC will process all timely submitted applications to determine which are acceptable for filing, and subsequently will issue a public notice identifying: (1) Those applications accepted for filing; (2) those applications rejected; and (3) those applications which have minor defects that may be corrected, and the deadline for resubmitting corrected applications.
94. In order to be eligible to bid in the auction, applicants must submit an upfront payment accompanied by an FCC Remittance Advice Form (FCC Form 159). After completing the FCC Form 175, filers will have access to an electronic version of the FCC Form 159 that can be printed and sent by facsimile to Mellon Bank in Pittsburgh, PA. All upfront payments must be received in the proper account at Mellon Bank before 6 p.m. ET on June 1, 2006.
95. Wire transfer payments must be received before 6 p.m. ET on June 1, 2006. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their banker several days before they plan to make the wire transfer, and allow sufficient time for the transfer to be initiated and completed before the deadline.
96. At least one hour before placing the order for the wire transfer (but on the same business day), applicants must send by facsimile a completed FCC Form 159 (Revised 2/03) to Mellon Bank at (412) 209-6045. On the cover sheet of the facsimile, write Wire Transfer—Auction Payment for Auction No. 66. In order to meet the Commission's upfront payment deadline, an applicant's payment must be credited to the Commission's account before the deadline.
97. Please note that: (a) All payments must be made in U.S. dollars; (b) All payments must be made by wire transfer; (c) upfront payments for Auction No. 66 go to a lockbox number different from the lockboxes used in previous FCC auctions, and different from the lockbox number to be used for post-auction payments and (d) failure to deliver the upfront payment by the June 1, 2006, deadline will result in dismissal of the application and disqualification from participation in the auction.
98. A completed FCC Remittance Advice Form (FCC Form 159, Revised 2/03) must be faxed to Mellon Bank to accompany each upfront payment. Proper completion of FCC Form 159
99. In the
100. In the
101. In the
$0.05 * MHz * License Area Population.
The Bureau set forth the specific upfront payments and bidding units for each license in Attachment A of the
102. Commenters presented a number of views on the proposed level of upfront payments. Some comments support the proposed upfront payments. Others argue for lowering upfront payments for specific licenses, usually either for all CMA licenses (Metropolitan Statistical Service Areas (MSAs) and Rural Service Areas (RSAs)) or only for the rural RSA licenses. Other comments propose lowering upfront payments for bidders that qualify as designated entities or replacing the upfront payment proposal with a straight percentage deposit.
103. Upfront payments help deter frivolous or insincere bidding. In addition, upfront payments provide the Commission with a source of funds in the event that the bidder incurs liability during the auction. Applicants must make upfront payments sufficient to obtain bidding eligibility on the licenses on which they will bid.
104. In connection with minimum opening bids, the Commission is persuaded by the arguments of numerous commenters that for Auction No. 66, the formula to determine upfront payments and minimum opening bids should not apply the same figure to a rural population unit as it does to an urban population unit. Commenters assert that because of higher buildout costs, upfront payments and minimum opening bids for less densely populated areas should be calculated at a lower rate than those for higher density areas. More specifically, many commenters contend that upfront payments on licenses covering RSAs should be lowered from $0.05 per MHz*Pop to $0.01, 0.02, or 0.025 per MHz*Pop.
105. The Commission will reduce upfront payments for RSA licenses by forty percent (40%) from the initial proposal, i.e., to $0.03 per MHz*Pop. While some commenters argue for an even greater reduction, the Commission is not persuaded that it should lower upfront payments any further. With respect to licenses for the more densely populated MSAs, the Commission will not reduce the proposed upfront payments. The Commission adopts the initial proposal with respect to such licenses and set the upfront payments for MSAs using the proposed formula, i.e., $0.05 per MHz*Pop.
106. The Commission also will lower the number of bidding units associated with the RSA licenses by 40%, in order to maintain the one-to-one relationship between bidding units and upfront payment amounts. The number of bidding units associated with the MSA licenses will remain unchanged since the upfront payment amounts for those licenses are unchanged.
107. In order to take into account that rural and urban populations are mixed within a single license in the larger geographic licensing areas, the Commission will apply the lower upfront payment formula for rural areas on a county-by-county basis for all licenses. More specifically, the Commission will first break down the larger geographic areas into their component counties. The lower upfront payment formula of $0.03 per MHz*Pop will be applied to the population of those counties that are included in an RSA. The formula of $0.05 per MHz*Pop will be applied to the population of the remaining counties. The upfront payment amount for an EA or REAG license will be calculated as the sum of upfront payments for the counties in the EA or REAG. The Commission will maintain the one-to-one relationship between bidding units and upfront payment amounts, so that bidding unit amounts will change with the changes in upfront payments.
108. The Commission is not persuaded by comments proposing that the Commission alter its upfront payment proposal in other ways. A commenter argues that designated entities should be able to make lower upfront payments than other bidders. In light of the purpose of the upfront payments, the Commission does not believe a different upfront payment for designated entities is appropriate. Finally, another commenter suggests that the Commission forego its usual procedure of determining upfront payments and bidding eligibility and replace it with a requirement that bidders have a certain percentage of their bids on deposit with the Commission. The Commission believes, however, that the use of upfront payments in connection with bidding eligibility in past auctions has been successful and no radical departure is needed.
109. The specific upfront payment amounts and associated bidding units for each license available in Auction No. 66 calculated pursuant to the procedures as well as the aggregate reserve price for all AWS-1 licenses, are set forth in Attachment A of the
110. In calculating its upfront payment amount, an applicant should determine the maximum number of bidding units on which it may wish to be active (bid on or hold provisionally winning bids on) in any single round, and submit an upfront payment amount covering that number of bidding units.
111. Former defaulters should calculate their upfront payment for all licenses by multiplying the number of bidding units on which they wish to be active by 1.5. In order to calculate the number of bidding units to assign to former defaulters, the Commission will divide the upfront payment received by 1.5 and round the result up to the nearest bidding unit. If a former defaulter fails to submit a sufficient upfront payment to establish eligibility to bid on at least one of the licenses applied for on its Form 175, the applicant will not be eligible to participate in the auction.
112. The Commission will use wire transfers for all Auction No. 66 refunds. To ensure that refunds of upfront payments are processed in an expeditious manner, the Commission is requesting that all pertinent information listed below be supplied to the FCC. Applicants can provide the information electronically during the initial short-form filing window after the form has been submitted.
113. Approximately ten days before the auction, the FCC will issue a public notice announcing all qualified bidders for the auction. Qualified bidders are those applicants whose FCC Form 175 applications have been accepted for filing and have timely submitted upfront payments sufficient to make them eligible to bid.
114. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by overnight mail. The mailing will be sent only to the contact person at the contact address listed in the FCC Form 175 and will include the SecurID® cards that will be required to place bids, the Integrated Spectrum Auction System (ISAS) Bidder's Guide, and the Auction Bidder Line phone number.
115. Qualified bidders that do not receive this registration mailing will not be able to submit bids. Therefore, any qualified bidder that has not received this mailing by noon on Thursday, June 22, 2006, should call (717) 338-2868. Receipt of this registration mailing is critical to participating in the auction, and each applicant is responsible for ensuring it has received all of the registration material.
116. In the event that SecurID® cards are lost or damaged, only a person who has been designated as an authorized bidder, the contact person, or the certifying official on the applicant's short-form application may request replacement registration material. Qualified bidders requiring the replacement of these items must call Technical Support.
117. The Commission will conduct this auction over the Internet, and telephonic bidding will be available as well. Qualified bidders are permitted to bid electronically and telephonically. Each applicant should indicate its bidding preference—electronic or telephonic—on the FCC Form 175. In either case, each authorized bidder must have its own SecurID® card, which the FCC will provide at no charge. Each applicant with one authorized bidder will be issued two SecurID cards, while applicants with two or three authorized bidders will be issued three cards. For security purposes, the SecurID® cards, the telephonic bidding phone number, and the Integrated Spectrum Auction System (ISAS) Bidder's Guide are only mailed to the contact person at the contact address listed on the FCC Form 175. Please note that each SecurID® card is tailored to a specific auction; therefore, SecurID® cards issued for other auctions or obtained from a source other than the FCC will not work for Auction No. 66.
118. All qualified bidders will be eligible to participate in a mock auction on Monday, June 26, 2006. The mock auction will enable applicants to become familiar with the FCC Auction System prior to the auction. Participation by all bidders is strongly recommended. Details will be announced by public notice.
119. The first round of bidding for Auction No. 66 will begin on Thursday, June 29, 2006. The initial bidding schedule will be announced in a public notice listing the qualified bidders, which is to be released approximately 10 days before the start of the auction.
120. In the
121. The Bureau also sought comment on the feasibility and desirability of allocating the AWS-1 licenses among two auctions, run concurrently, with one of the auctions using the standard SMR format and the other using the FCC's package bidding format (SMR-PB). Under the SMR-PB format, bidders can place bids on groups of licenses they wish to win in combination, with the result that they win either all of the licenses in a group or none of them, in contrast to the license-by-license bidding in the FCC's SMR format. In the SMR-PB auction format, each bidder can have at most a single winning bid, so that in order to win any particular license combination, the bidder must have placed a package bid on that license or specific group of licenses.
122. Based on the record and the Commission's belief that a single SMR auction offers bidders a simple and effective means of bidding on single or multiple licenses without the additional complications that participating in two concurrent auctions would involve, the Commission will proceed with its proposal to auction all AWS-1 licenses in a single auction using the Commission's standard SMR auction format.
123. Nearly all of the parties commenting on the issue of auction format support its proposal for one SMR auction for AWS-1. While some express concern or opposition to using package bidding generally, nearly all commenters oppose the option of running a package bidding auction concurrently with an SMR auction. Those concerned with the complexity in bidding in two auctions at the same time stress difficulty in managing eligibility between the two, submitting upfront payments to participate in both, and keeping track of bidding among the auctions. The complexity level increases further given that the two concurrent
124. A number of commenters express concern that smaller bidders, including rural carriers and new entrants, would be hardest hit by the increased complexity of two concurrent auctions and package bidding. Some commenters raise the possibility that an auction using a package bidding format, due to the so-called threshold problem, may not assign licenses to the entities that value them most highly. Only two commenters favor allocating some AWS-1 licenses to a second auction with package bidding. A commenter suggests that package bidding would allow bidders to aggregate licenses more efficiently in order to acquire a nationwide footprint. The Commission agrees with those commenters who assert that an SMR auction of the AWS-1 licenses, which includes several large regional area blocks, will provide opportunities for bidders to aggregate licenses in order to obtain nationwide coverage.
125. While a commenter supports package bidding for the E and F Block AWS-1 licenses, it advocates that the auctions be run sequentially, not concurrently. In particular, the commenter suggests that the Commission run the SMR auction for A to D Blocks first using the standard SMR auction, followed shortly by an auction for the E and F blocks, allowing for package bidding. Comments filed jointly agree in principle with sequential auctions, but specifically advocate the reverse order—i.e., run the SMR-PB auction before the standard SMR one.
126. The Commission finds the choice of sequential auctions undesirable in these circumstances. First, it eliminates flexibility for the bidders, as the results from the first auction will stand regardless of how the second auction plays out. Second, the AWS-1 licenses are subject to the CSEA aggregate reserve. Determining whether this is met is made much more difficult if two sequential auctions are held.
127. The Commission concludes that it is operationally feasible and appropriate to auction the AWS-1 licenses through a single auction using the Commission's standard SMR auction format. Unless otherwise announced, bids will be accepted on all licenses in each round of the auction until bidding stops on every license. This approach, the Commission believes, allows bidders to take advantage of synergies that exist among licenses and is administratively efficient.
128. The Commission's decision not to employ an SMR-PB format for some AWS-1 licenses does not reflect on future use of package bidding in Commission auctions.
129. In the
130. The proposal attracted a number of comments, both in support of the Bureau's proposal and opposed to it. The Commission believes, as the Bureau noted in the
131. The Commission will estimate the level of competition in the auction by calculating a modified eligibility ratio based on upfront payments submitted by bidders. Using this estimate, the Commisssion will determine the information procedures that will apply during bidding rounds. Specifically, if a modified eligibility ratio, defined as the total number of bidding units of eligibility purchased by bidders, relative to the total number of bidding units for the licenses in the auction, is equal to at least three, the auction will proceed under the information procedures typically used for past FCC auctions. For the purposes of calculating the modified eligibility ratio, a single bidder's eligibility will be capped at 50% of the total bidding units in the auction.
132. Alternatively, if the level of competition appears insufficient, that is if the modified eligibility ratio is less than three, the Commission will limit the information that is released prior to and during the auction in a way that is substantially consistent with, but not identical to its proposal in the
133. Discussion. As stated in the
134. This decision to make the availability of information contingent upon competitiveness is supported by a number of commenters. The notion of using a measure of likely competitiveness to determine how much information would be made available was first proposed by a commenter. Subsequently, other commenters have voiced support for compromise proposals that involve, among other criteria, basing the decision on information availability on a similar measure of total eligibility.
135. A number of commenters oppose the proposal to withhold certain information for the AWS-1 licenses, challenging the need to undertake measures to deter anti-competitive behavior in FCC auctions generally, and in particular, they question making changes to an established auction process immediately prior to a large auction of licenses suitable for high-valued uses. Some commenters note that the Commission has already modified its auction design to deter signaling, and claim that there is little or no evidence of coordinated bidding behavior in recent auctions.
136. In response, the Commission notes that it is in large part because the upcoming AWS-1 auction will make available a significant number of potentially valuable licenses that the Commission will modify its usual bid and bidder information procedures at this time, if it appears that the auction may not be sufficiently competitive. With fewer bidders, the chances are greater that signaling and retaliatory behavior will be successful, with the result that licenses may not be assigned to the entities that value them most highly. The AWS-1 licenses open up a new band to commercial wireless services, and represent a sizeable portion of existing spectrum available for innovative wireless services. Licensees will have considerable flexibility to respond to consumer demand for innovative advanced services, and the Commission feels particularly obligated to assure that these licenses are assigned to those entities that will put them to their highest valued uses.
137. With respect to arguments that the Commission has already eliminated the possibility of bid signaling and has no evidence on which to base its beliefs that such behavior may occur in Auction No. 66, the Commission notes that at least two papers mentioned in this proceeding rely on signaling consistent with the Commission's current standard SMR auction format. Furthermore, since some types of signaling and coordinated bidding are very hard to detect in auction data, making it difficult to pursue enforcement actions after such alleged activity has occurred, it is important to reduce the potential for such collusive bidding behavior to occur in the first place, in circumstances in which the Commission believes collusion is most likely to occur.
138. At the same time, the Commission recognizes that the information that has typically been provided during FCC auctions may be of value in helping bidders to form more accurate and confident assessments of license values, thus allowing them to participate more effectively in the auction. The Commission believes that, under circumstances in which collusion is less likely to be successful, the benefits to bidders from making information available are likely to outweigh the potential harms from facilitating collusive behavior. As a result, the Commission will not adopt its proposal to limit information when the auction is expected to be competitive as indicated by the modified eligibility ratio of three or more—that is, when coordinated bidding activity is unlikely to be sustainable.
139. A number of commenters addressed the various benefits that information provides to bidders, especially to bidders with fewer resources, including many new entrants and rural carriers. In particular, these commenters suggest that knowing the identities of bidders active in particular markets yields useful data on such factors as the potential for negotiating roaming agreements; on the likelihood that infrastructure and equipment for certain technologies will be available; and on whether the structure of competition in a given market is likely to support the bidder's business plan. Some of the commenters also claim that the uncertainty inherent in opening up a new spectrum band for as yet unknown services and technologies makes it all the more useful to participants to have such information as may be available, including round-by-round information on bids and bidders identities.
140. Some commenters opposing the proposal to withhold information state that the advantages gained by knowing bidder identities are particularly important to small and mid-sized entities and to new entrants and that consequently, they argue, limiting bid and bidder information will disadvantage those bidders disproportionately. Specifically, commenters suggest that smaller businesses rely more heavily on the need to negotiate agreements with neighboring service providers and therefore have a greater interest in knowing who adjacent licensees are likely to be. Some point out that niche service providers, and their financial backers, are particularly interested in knowing whether another entity targeting the same demographic population is likely to be competing in a given market. In addition, commenters say that financial backers of smaller firms trust that a bid by a market leader reflects a well-researched valuation and are more likely to be comfortable investing in a smaller entity if the smaller firm's bids are not out of line with those of the large entities. Accordingly, they claim, if investors do not have the reassurance of knowing how the large bidders are bidding, the additional risk will reduce the amount of capital they are willing to lend and, consequently, reduce what smaller firms are able to bid for and win at auction.
141. Commenters also suggest that the additional uncertainty about the value of licenses introduced by the lack of information on bidder identities will increase bidders' fear of the winners curse, leading them to bid below their valuations for the licenses. Some assert that those most affected by the uncertainty will scale back their bids more than proportionately and that therefore, small bidders may fail to win licenses for which they are the highest valuing bidder, thereby lowering auction efficiency.
142. The costs to releasing information as some commenters request, however, likely will outweigh the potential advantages of releasing the information, if the level of competition in the auction seems insufficient to make cooperative divisions of the market difficult to signal and sustain. Accordingly, if the auction is not sufficiently competitive as indicated by the modified eligibility ratio, the Commission will not provide the information, notwithstanding any potential benefits doing so might provide to some bidders.
143. Parties opposing the proposal to limit information point out a number of other factors which the Commission also does not regard as sufficient to dissuade it from its decision to limit the information that will be made available if the modified eligibility ratio is below three for Auction No. 66. Some commenters warn that deliberate and inadvertent disclosures of information may represent a threat to the validity of the auction. The Commission does not believe that significant disclosures are
144. Several commenters suggest that a policy of limiting information relating to bidder interests prior to the auction, and limiting bidder identities during the auction constitutes a departure from the Commission's traditional commitment to a transparent auction process. The Commission disagrees. As discussed in the
145. Commenters present various arguments regarding what information should be released and when, in the event that the Commission limits the information revealed in any way, as will be the case if the modified eligibility ratio is less than three. Some argue that particular information should be released, while others argue that the Commission should release all information but do so only at intervals. While these proposals may achieve some benefits by disclosing information, the Commission is not persuaded any of them would be effective in preventing coordinated and retaliatory bidding, especially when competition in the auction is relatively weak, e.g., the modified eligibility ratio is less than three, and, therefore, the risk of collusion is greatest.
146. The Commission notes again that even if the limited information procedures are in effect, it plans to make available during the auction the amounts of all bids placed on each license in each round. Even absent bidder identities, this information will give bidders an indication of demand for the licenses. Bidders and their investors will be able to observe the bids for licenses in the six offered spectrum blocks, which will help them assess whether their bids are likely to be consistent with the valuations of other bidders. This information will reduce uncertainty about license valuations, mitigating fear of the winner's curse for bidders and their financial backers.
147. Other Issues. The Commission does not believe that the information disclosure procedures established for this auction will interfere with the administration of or compliance with the Commission's anti-collusion rule. § 1.2105(c)(1) of the Commission's rules provides that after the short-form application filing deadline, all applicants for licenses in any of the same geographic license areas are prohibited from disclosing to each other in any manner the substance of bids or bidding strategies until after the down payment deadline, subject to specified exceptions. In past auctions, each applicant's selection of licenses has been publicly available through the Commission's on-line short-form application database. In Auction No. 66, however, the Commission may not disclose information regarding license selection until after the auction closes. As in the past, the Commission will disclose the other portions of applicants' short-form applications, through its on-line database and certain application-based information through public notices. Thus, even without information regarding license selection, applicants would be able to comply with § 1.2105(c) by not disclosing bids or bidding strategies to any other applicants in the auction. This approach, however, could inhibit otherwise lawful communications with applicants for licenses in other geographic license areas, which the Commission's rule permits. Consequently, the Commission will notify separately each applicant with short-form applications to participate in a pending auction, including but not limited to Auction No. 66, whether applicants in Auction No. 66 have applied for licenses in any of the same geographic areas as that applicant. After the Commission conducts its initial review of applications to participate in Auction No. 66, each applicant with a short-form application to participate in a pending auction will receive a letter that lists the applicants in Auction No. 66 that have applied for licenses in any of the same geographic areas as the applicant. The list will identify the Auction No. 66 applicant(s) by name but will not list the license selections of the Auction No. 66 applicant(s). As in past auctions, additional information regarding applicants in Auction No. 66 that is needed to comply with § 1.2105(c), e.g., the identities of controlling interest in the applicant and ownership interests greater than ten percent (10%), will be available through the publicly accessible on-line short-form application database.
148. Finally, the Commission does not agree with commenters that suggest that SEC rules requiring bidders to disclose material financial information might require bidders to disclose bidding information during the auction. Until the SEC addresses the issue, the Commission will not presume that SEC rules require public disclosure of information about bidding while an auction is still underway.
149. In the
150. Accordingly, the Commission adopts the proposed use of upfront payments to determine initial (maximum) eligibility (as measured in bidding units) for Auction No. 66. The amount of the upfront payment submitted by a bidder determines initial bidding eligibility, the maximum number of bidding units on which a bidder may be active. Each license is assigned a specific number of bidding units equal to the upfront payment listed in Attachment A of the
151. In order to ensure that an auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction.
152. A bidder's activity level in a round is the sum of the bidding units associated with licenses on which the bidder is active. A bidder is considered active on a license in the current round if it is either the provisionally winning bidder at the end of the previous bidding round and does not withdraw the provisionally winning bid in the current round, or if it submits a bid in the current round. The minimum required activity is expressed as a percentage of the bidder's current eligibility, and increases by stage as the auction progresses. A commenter urges that no minimum activity requirements be imposed on designated entities that apply to bid on less than one percent (1%) of the licenses available in Auction No. 66. In addition, the commenter urges that a reduced minimum activity requirement should apply to all designated entities. No persuasive reason has been presented for applying different activity requirements to bidders that are designated entities than to other bidders. The Commission's activity rule paces the auction by requiring bidders to bid actively. There is no reason to modify this requirement based on either the number of licenses for which the bidder has applied or the bidder's status as a designated entity. Bidders applying for few licenses or that are designated entities suffer no disadvantage from complying with the same activity rule as other bidders. Because these procedures have proven successful in maintaining the pace of previous auctions the Commission adopts them for Auction No. 66.
153. In the
154. The Commission adopts the proposals for the activity rules and stages. The Commission reserves the discretion to further alter the activity percentages before and/or during the auction.
155. Stage One: During the first stage of the auction, a bidder desiring to maintain its current bidding eligibility will be required to be active on licenses representing at least 80 percent of its current bidding eligibility in each bidding round. Failure to maintain the required activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding unless an activity rule waiver is used. During Stage One, reduced eligibility for the next round will be calculated by multiplying the bidder's current round activity (the sum of bidding units of the bidder's provisionally winning bids and bids during the current round) by five-fourths (5/4).
156. Stage Two: During the second stage of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on 95 percent of its current bidding eligibility. Failure to maintain the required activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding unless an activity rule waiver is used. During Stage Two, reduced eligibility for the next round will be calculated by multiplying the bidder's current round activity (the sum of bidding units of the bidder's provisionally winning bids and bids during the current round) by twenty-nineteenths (20/19).
157. CAUTION: Since activity requirements increase in Stage Two, bidders must carefully check their activity during the first round following a stage transition to ensure that they are meeting the increased activity requirement. This is especially critical for bidders that have provisionally winning bids and do not plan to submit new bids. In past auctions, some bidders have inadvertently lost bidding eligibility or used an activity rule waiver because they did not re-verify their activity status at stage transitions. Bidders may check their activity against the required activity level by logging into the FCC Auction System.
158. Because the foregoing procedures have proven successful in maintaining the proper pace in previous auctions, the Commission adopts them for Auction No. 66.
159. In the
160. The Commission adopts the proposal. Thus, the auction will start in Stage One and will generally advance to Stage Two when, in each of three consecutive rounds of bidding, the provisionally winning bids have been placed on 20 percent or less of the licenses being auctioned (as measured in bidding units). In addition, the Commission will retain the discretion to regulate the pace of the auction by announcement.
161. In the
162. Bidders may use an activity rule waiver in any round during the course of the auction. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum activity level. An activity rule waiver applies to an entire round of bidding and not to a particular license. Activity rule waivers can be either applied proactively by the bidder (a proactive waiver) or applied automatically by the FCC Auction System (an automatic waiver) and are principally a mechanism for auction participants to avoid the loss of bidding eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round.
163. The FCC Auction System assumes that bidders with insufficient activity would prefer to apply an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round where a bidder's activity level is below the minimum required unless: (1) There are no activity rule waivers available; or (2) the bidder overrides the automatic application of a waiver by reducing eligibility. If a bidder has no waivers remaining and does not satisfy the activity requirement, the FCC Auction System will permanently reduce the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.
164. A bidder with insufficient activity that wants to reduce its bidding eligibility rather than use an activity rule waiver must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC Auction System. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described in Auction Stages. Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility even if the round has not yet closed.
165. Finally, a bidder may apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively applies an activity waiver (using the apply waiver function in the FCC Auction System) during a bidding round in which no bids or withdrawals are submitted, the auction will remain open and the bidder's eligibility will be preserved. However, an automatic waiver applied by the FCC Auction System in a round in which there are no new bids or withdrawals will not keep the auction open. A bidder cannot submit a proactive waiver after submitting a bid in a round, and submitting a proactive waiver will preclude a bidder from placing any bids in that round.
Applying a waiver is irreversible; once a proactive waiver is submitted that waiver cannot be unsubmitted, even if the round has not yet closed.
166. For Auction No. 66, the Bureau proposed to employ a simultaneous stopping rule approach. The Bureau also sought comment on a modified version of the simultaneous stopping rule. The modified version of the stopping rule would close the auction for all licenses after the first round in which no bidder applies a waiver, places a withdrawal, or submits any new bids on any license on which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule.
167. The Bureau further proposed retaining the discretion to keep the auction open even if no new bids or proactive waivers are submitted and no provisionally winning bids are withdrawn in a round. In this event, the effect will be the same as if a bidder had applied a waiver. Thus, the activity rule will apply as usual, and a bidder with insufficient activity will either use an activity rule waiver (if it has any left) or lose bidding eligibility.
168. In addition, the Bureau proposed that it reserve the right to declare that the auction will end after a specified number of additional rounds (special stopping rule). If the Bureau invokes this special stopping rule, it will accept bids in the specified final round(s) and the auction will close.
169. The Bureau proposed to exercise these options only in circumstances such as where the auction is proceeding very slowly, where there is minimal overall bidding activity or where it appears likely that the auction will not close within a reasonable period of time. The Bureau noted that before exercising these options, the Bureau is likely to attempt to increase the pace of the auction by, for example, increasing the number of bidding rounds per day, and/or increasing the amount of the minimum bid increments for the limited number of licenses where there is still a high level of bidding activity.
170. In comments filed in response to the
171. The Commission believes that it would retain its discretion to keep the auction open even if no new bids or proactive waivers are submitted and no provisionally winning bids are withdrawn in a round is sufficient to address the concerns raised in the comments. This differs from the commenter's proposal to the extent that the decision to keep bidding open will be within the Bureau's discretion. Unlike a fixed rule that the auction will remain open at least one more round, this discretionary approach will not unnecessarily encourage bidders to wait and see if other bidders will raise bids to meet the reserve.
172. The Commission believes that the proposed stopping rules are appropriate for Auction No. 66, because of the Commission's experience in prior auctions demonstrates that these stopping rules balance interests of administrative efficiency and maximum bidder participation. Therefore the Commission adopts the proposals made in the
173. In the
174. Because the Commission's approach to notification of delay during an auction has proven effective in resolving exigent circumstances in previous auctions, the Commission adopts the proposed rules regarding auction delay, suspension, or cancellation. By public notice or by announcement during the auction, the Commission may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and competitive conduct of competitive bidding. In such cases, the Commission or the Bureau, in their sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Commission to delay or suspend the auction. The Commission emphasizes that exercise of this authority is solely within the discretion of the Commission or the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers.
175. The initial schedule of bidding rounds will be announced in the public notice listing the qualified bidders, which is released approximately 10 days before the start of the auction. Each bidding round is followed by the release of round results. Multiple bidding rounds may be conducted in a given day. Details regarding round results formats and locations will also be included in the qualified bidders public notice.
176. The Bureau has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors.
177. Section 309(j) of the Communications Act of 1934, as amended, calls upon the Commission to prescribe methods by which a reasonable reserve price will be required or a minimum opening bid established when applications for FCC licenses are subject to auction (i.e., because they are mutually exclusive), unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction. Among other factors, the Commission must consider the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the extent of interference with other spectrum bands, and any other relevant factors that could have an impact on the spectrum being auctioned. The Commission concluded that the Bureau should have the discretion to employ either or both of these mechanisms for future auctions.
178. Congress recently required the Commission to revise existing regulations regarding reserve prices for auctions involving eligible frequencies subject to CSEA. CSEA defines eligible frequencies as including frequencies from 1710-1755 MHz. Thus, each AWS-1 license authorizes use of frequencies, one-half of which are subject to CSEA requirements. In CSEA, Congress directed the Commission to make revisions that would to prescribe methods by which the total cash proceeds from any auction of licenses authorizing use of eligible frequencies shall equal at least 110 percent of the total estimated relocation costs provided to the Commission pursuant to CSEA. Accordingly, the Commission recently revised its reserve price rule.
179. CSEA also imposes other related requirements regarding the proceeds from an auction involving eligible frequencies. Pursuant to CSEA, the total cash proceeds attributable to eligible spectrum must be at least 110 percent of the total estimated relocation costs before the Commission may conclude the auction. If this condition is not met, CSEA requires that the Commission shall cancel the auction.
180. Pursuant to CSEA, on December 27, 2005, NTIA notified the Commission of the estimated relocation costs and timelines for relocation of eligible Federal entities assigned to frequencies from 1710 to 1755 MHz. NTIA reported that the total estimated relocation costs equal $935,940,312.
181. Accordingly, in the
182. For purposes of determining whether a CSEA revenue requirement has been met, the Commission has determined that total cash proceeds means winning bids net of any applicable bidding credit discounts at the end of bidding (
183. A few commenters disagree with the Bureau's proposal to consider one-half of each relevant bid when determining whether the reserve price has been met. A commenter objects that the proposal wrongly “assumes that precisely one-half of any AWS-1 bid can be attributed to one-half the spectrum.” The Commenter also argues that by attributing only half of each relevant bid to meeting the reserve, the Commission is improperly “mandat[ing] how those funds should be apportioned over the 45 MHz of spectrum that will be cleared” and “ensur[ing] that a minimum of additional funds be secured for auctioning other spectrum separate from this band [i.e., the other half of each license.” This, according to the commenter, amounts to the Commission “attempt[ing] to assess a value [of] the spectrum being auctioned.” In reply comments, two commenters second the arguments. The Commission is not persuaded by these arguments.
184. CSEA plainly provides that the Commission may attribute a portion of bids for licenses that authorize use of both eligible and non-eligible
185. Attributing one-half of relevant bids to meeting the CSEA-required reserve price means that the reserve price only will be met if the full amount of relevant bids is double the reserve price. As reflected by the commenters arguments, this could be viewed as effectively establishing a reserve price on the non-CSEA-eligible frequencies covered by the AWS-1 licenses. Contrary to the commenter, however, any effective reserve price for non-CSEA-eligible spectrum is well within the Commission's authority. Moreover, under present circumstances, the amount of the effective reserve is appropriate.
186. The Communications Act expressly contemplates that the Commission may adopt a reserve price in any competitive bidding for licenses and construction permits, not only when CSEA eligible frequencies are involved. The Commission's authority to do so furthers the Commission's statutory mandate to recover for the public a portion of the value of the public spectrum resource. The commenter alleges that the proposed reserve price attempts to set the value of non-CSEA-eligible frequencies, which the commenter contends the Commission should not do. In the present circumstances, however, the amount of the effective reserve price on non-CSEA-eligible spectrum is determined by the reserve price on CSEA eligible spectrum. That amount, in turn, is based on NTIA's estimates of relocation costs to reimburse eligible federal entities. Thus, the reserve price does not attempt to, and does not set the value of the non-CSEA eligible spectrum, any more than it sets the value of the CSEA eligible spectrum.
187. Finally, the Commission believes that effectively requiring that the full amount of relevant bids to be twice the estimated relocations costs of eligible federal entities is consistent with CSEA. The AWS-1 licenses were defined prior to the adoption of CSEA and Congress knew when it referred to proceeds attributable to eligible frequencies that the Commission intended to make available licenses combining eligible and non-eligible frequencies.
188. The Commission adopts the proposal in the
189. In light of the proposed procedures regarding information available to bidders, the Bureau also sought comment in the
190. If information on net bids is withheld during the auction (i.e., if the modified eligibility ratio is less than three), the Commission agrees with the commenter that an announcement should be made when the reserve price has been met. Therefore, if information regarding net bids is not provided, the Commission will issue an announcement in the FCC Auction System stating that the reserve has been met immediately following the first round in which that occurs. Both the registered bidders and the general public will be able to view such announcements through the Commission's website. The Commission cautions, however, that an announcement that the reserve price has been met following a round of the auction does not guarantee that the reserve price will continue to be met. Accordingly, after making the initial announcement that the reserve has been met, the Commission will make a further announcement in the FCC Auction System after any round in which the reserve price status changes. As noted in the
191. In addition to proposing an aggregate reserve price, the Bureau proposed in the
The Bureau sought comment on this proposal and, in the alternative, whether, consistent with the section 309(j), the public interest would be served by having no minimum opening bid.
192. The Bureau received a variety of comments on the proposed level of minimum opening bids. Some commenters support the Bureau's proposal. A few commenters assert that no minimum opening bids should be established, given the use of a reserve price. Numerous commenters believe that the formula to determine upfront payments and minimum opening bids should not apply the same figure to a rural population as it does to an urban population. They assert that because of higher buildout costs, upfront payments and minimum opening bids for less densely populated areas should be lower than those for more densely populated areas. More specifically, many commenters contend that minimum opening bids for licenses covering RSAs should be lowered from $0.05 per MHz*Pop to $0.01, 0.02, or 0.025 per MHz*Pop.
193. In addition, some commenters have argued that prior auction results and private market sales indicate that the proposed minimum opening bids for sparsely populated areas may exceed the market price of the license, potentially resulting in a number of unsold licenses.
194. In Commission auctions, minimum opening bids are intended to serve as useful starting points for bidding. Minimum opening bids are not intended to be estimates of final auction prices or to reflect all differences between license values. Accordingly, differences in license characteristics, such as population density, that may result in different final prices do not always necessitate different minimum opening bids for the licenses.
195. The Commission is persuaded by the record, however, that minimum opening bids based on its proposal may be too high for licenses covering low density RSAs. The Commission concludes that it is appropriate to
196. No equivalent evidence supports a similar reduction in the minimum opening bids for licenses covering MSAs. Accordingly, the Commission will adopt its initial proposal with respect to such licenses and set the minimum opening bids using the proposed formula, i.e., $0.05 per MHz*Pop.
197. In order to take into account that rural and urban populations are covered by a single license in larger geographic area licenses, the Commission will apply the lower minimum opening bid formula for rural areas on a county-by-county basis for all licenses. More specifically, the Commission first will break down the larger geographic areas into their component counties. The lower minimum opening bid formula of $0.03 per MHz*Pop will be applied to the population of those rural counties that are included in an RSA. The formula of $0.05 per MHz*Pop will be applied to the population of the remaining counties. The minimum opening bid for an EA or REAG license will be calculated as the sum of minimum opening bids for the counties in the EA or REAG. Finally, the Commission has made corresponding changes in the upfront payments and bidding units for each license.
198. The Bureau did not receive any comments addressing its proposal that it retain the discretion to reduce minimum opening bid amounts. The Commission adopts this proposal. The minimum opening bid amounts the Commission adopts for Auction No. 66 is reducible at the discretion of the Bureau. The Commission emphasizes, however, that such discretion will be exercised, if at all, sparingly and early in the auction, i.e., before bidders lose all activity waivers. During the course of the auction, the Commission will not entertain requests to reduce the minimum opening bid amount on specific licenses.
199. The specific minimum opening bid amounts for each license available in Auction No. 66 calculated pursuant to the procedure describe above, as well as the aggregate reserve price for all AWS-1 licenses, are set forth in Attachment A of the
200. In each round, each eligible bidder will be able to place a bid on a particular license for which it applied in any of nine different amounts. The FCC Auction System will list the nine bid amounts for each license. The nine bid amounts for each license consist of the minimum acceptable bid amount calculated using an activity-based formula and additional amounts calculated using a bid increment percentage.
201. In the
202. A commenter argues that the Commission should use a smaller percentage to determine acceptable bids for designated entities, in order to encourage designated entities to remain in the auction. Pursuant to the proposal, the Bureau has discretion to change the percentage in appropriate circumstances. It may be appropriate to reduce the percentage to encourage bidders to continue bidding on a license in certain circumstances. However, the Commission is not persuaded that the percentage should be reduced solely for designated entities, or any other particular class of bidder. The Commission does not believe it is necessary or appropriate to supplement the bidding credits the Commission provides to designated entities with customized bidding procedures.
203. As another alternative, a commenter argues that the Commission should simplify the determination of minimum acceptable bids using a simple percentage in place of an activity-based formula. It further argues that the Commission should permit bidders to bid in any amount above the minimum. The Commission declines to adopt these alternatives. Determining minimum acceptable bid amounts based in part on bidding activity on a license helps pace the auction. The Commission cannot be certain in advance of an auction that using a simple percentage will approximate results based on activity. Accordingly, the Commission believes it is appropriate to use an activity-based formula to determine minimum acceptable bids, as well as additional bid amounts. Finally, with respect to amounts greater than the minimum acceptable bid, providing specified bid amounts both prevents bidders from sending signals in their bids and helps bidders avoid errors when inputting their bids. The Commission has successfully used this procedure to help achieve these purposes.
204. Based on the Commission's experience in prior auctions and taking into account the comments submitted on this issue, the Commission adopts its original proposals for Auction No. 66. The activity-based formula calculates minimum acceptable bid amounts by first calculating a percentage increment. The percentage increment for each license is a function of bidding activity on that license in prior rounds; therefore, a license that has received many bids will have a higher percentage increment than a license that has received few bids. This allows the minimum acceptable bid amounts to be tailored to the activity on a license, decreasing the number of rounds it takes for license receiving many bids to reach their final prices. Equations and examples are shown in Attachment F of the
205. The calculation of the percentage increment used to determine the minimum acceptable bid amounts for each license for the next round is made at the end of each round. The computation is based on an activity index, which is a weighted average of the number of bids in that round and the activity index from the prior round. The current activity index is equal to a weighting factor times the number of bidders that submit bids on the license in the most recent bidding round plus one minus the weighting factor times the activity index from the prior round. The activity index is then used to calculate a percentage increment by multiplying a minimum percentage
206. In the case of a license for which the provisionally winning bid has been withdrawn, the minimum acceptable bid amount will equal the second highest bid received for the license.
207. The minimum acceptable bid amount for a license will be equal to its minimum opening bid amount until there is a provisionally winning bid for the license. After there is a provisionally winning bid for a license, the minimum acceptable bid amount for that license will be equal to the amount of the provisionally winning bid plus an additional amount. Using the activity-based formula described above, the FCC Auction system will calculate a percentage increment at the end of each round to determine the minimum acceptable bid amount for each license for the next round.
208. The acceptable bid amounts in addition to the minimum acceptable bid amount for each license are calculated using a bid increment percentage. The first additional acceptable bid amount equals the minimum acceptable bid amount times one plus the bid increment percentage, rounded—e.g., if the increment percentage is 10 percent, the calculation is (minimum acceptable bid amount) * (1 + 0.10), rounded, or (minimum acceptable bid amount) * 1.10, rounded; the second additional acceptable bid amount equals the minimum acceptable bid amount times one plus two times the bid increment percentage, rounded, or (minimum acceptable bid amount) * 1.20, rounded; the third additional acceptable bid amount equals the minimum acceptable bid amount times one plus three times the bid increment percentage, rounded, or (minimum acceptable bid amount) * 1.30, rounded; etc. The Bureau will begin the auction with a bid increment percentage of 10 percent.
209. The Bureau retains the discretion to change the minimum acceptable bid amounts, the parameters of the formula to determine the percentage increment, and the bid increment percentage if it determines that circumstances so dictate. The Bureau will do so by announcement in the FCC Auction System during the auction. The Bureau may also use its discretion to adjust the minimum bid increment amount without prior notice if circumstances warrant.
210. At the end of each bidding round, a provisionally winning bid will be determined based on the highest bid amount received for each license. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same license at the close of a subsequent round. Provisionally winning bids at the end of the auction become the winning bids. Bidders are reminded that provisionally winning bids count toward activity for purposes of the activity rule.
211. In the
212. In the
213.
214. Once a round closes, a bidder may no longer remove a bid. However, in later rounds, a bidder may withdraw provisionally winning bids from previous rounds using the withdraw bids function in the FCC Auction System. A provisionally winning bidder that withdraws its provisionally winning bid from a previous round during the auction is subject to the bid withdrawal payments specified in 47 CFR 1.2104(g).
215. In previous auctions, the Commission has detected bidder conduct that, arguably, may have constituted anti-competitive behavior through the use of bid withdrawals. While the Commission continues to recognize the important role that bid withdrawals may play in an auction, the Commission concludes that, for Auction No. 66, adoption of a limit on the use of withdrawals to two rounds per bidder is appropriate. By doing so the Commission believes it strikes a reasonable compromise that will allow bidders to use withdrawals. The Commission based its decision on this issue upon its experience with bid withdrawals in prior auctions, including PCS D, E and F block and 800 MHz SMR, and FM broadcast auctions.
216. The Commission will therefore limit the number of rounds in which bidders may place withdrawals to two rounds. These rounds will be at the bidder's discretion and there will be no limit on the number of bids that may be withdrawn in either of these rounds. Withdrawals during the auction will be subject to the bid withdrawal payments specified in 47 CFR 1.2104(g). Bidders should note that abuse of the Commission's bid withdrawal procedures could result in the denial of the ability to bid on a market.
217. If a provisionally winning bid is withdrawn, the minimum acceptable bid amount will equal the amount of the second highest bid received for the license, which may be less than, or in the case of tied bids, equal to, the amount of the withdrawn bid. To set the additional bid amounts, the second highest bid amount also will be used in place of the provisionally winning bid in the formula used to calculate bid increment amounts. The Commission will serve as a place holder provisionally winning bidder on the license until a new bid is submitted on that license.
218.
219. Section 1.2104(g)(1) of the rules sets forth the payment obligations of a bidder that withdraws a high bid on a license during the course of an auction, and provides for the assessment of interim bid withdrawal payments. The Commission recently revised § 1.2104(g)(1) to provide that in advance of each auction it shall establish the percentage of the withdrawn bid to be assessed as an interim bid withdrawal payment between three percent (3%) and twenty percent (20%). Further, the rule provides that the Commission will set the percentage of withdrawn bids to be assessed as interim bid withdrawal payments prior to each auction. In the
220. Commenters divided on the proposed interim bid withdrawal percentage, with some arguing that it would be too high, others too low, and others supporting the Bureau's proposal.
221. The Commission adopts the proposal. The Commission will assess an interim withdrawal payment equal to ten percent (10%) of the amount of the withdrawn bids. The ten percent (10%) interim payment will be applied toward any final bid withdrawal payment that will be assessed after subsequent auction of the license. Assessing an interim bid withdrawal payment ensures that the Commission receives a minimal withdrawal payment pending assessment of any final withdrawal payment. § 1.2104(g) provides specific examples showing application of the bid withdrawal payment rule.
222. The information available after each round will vary depending on whether the modified eligibility ratio indicates the strong likelihood of a highly competitive auction. If the modified eligibility ratio is less than three and information is withheld in accordance with the proposed as modified above, information about the results of a round will be made public after the conclusion of the round. Specifically, after a round closes, the Commission will compile a report listing each license, its current provisionally winning bid amount, the minimum acceptable bid amount for the following round, the number of bids placed on the license during the round, and whether the license is FCC held. The Commission will post the report so that it is publicly accessible. Moreover, after the auction, the Commission will release complete reports of all bids placed during each round of the auction, including bidder identities. The Commission will post those reports so that they are publicly accessible.
223. If, however, the modified eligibility ratio indicates the strong likelihood of a highly competitive auction (i.e., the modified eligibility ratio is three or greater), information will be provided in the same fashion typically provided after each round in the auction. Bids placed during a round will be made public at the conclusion of that round. Specifically, after a round closes, the Commission will compile reports of all bids placed and which bidders made them, current provisionally winning bids, new minimum acceptable bid amounts, and bidder eligibility status (bidding eligibility and activity rule waivers) and will post the reports for public access.
224. The Commission will use auction announcements to announce items such as schedule changes and stage transitions. All Commission auction announcements will be available by clicking a link in the FCC Auction System.
225. After the short-form filing deadline, applicants may make only minor changes to their FCC Form 175 applications. In addition, applicants should submit a letter, briefly summarizing the changes, by electronic mail to the attention of Margaret Wiener, Chief, Auctions and Spectrum Access Division, at the following address:
226. Applicants should not submit application-specific material through ECFS into the record of the proceeding concerning Auction No. 66 procedures.
227. After bidding has ended, the Commission will issue a public notice declaring the auction closed and identifying winning bidders, down payments and final payments due.
228. Within ten business days after release of the auction closing notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Commission for Auction No. 66 to 20 percent of the net amount of its winning bids (gross bids less any applicable small business or very small business bidding credits).
229. Each winning bidder will be required to submit the balance of the net amount of its winning bids within 10 business days after the deadline for submitting down payments.
230. Within ten business days after release of the auction closing notice, winning bidders must electronically
231. The recently adopted
232. At the time it submits its long-form application (FCC Form 601), each winning bidder also must comply with the ownership reporting requirements as set forth in 47 CFR 1.913, 1.919, and 1.2112. An ownership disclosure record is automatically created in the Universal Licensing System (ULS) for any applicant that submits an FCC Form 175. However, winning bidders will be required to review and confirm that it is complete and accurate as of the date of filing Form 601.
233. A winning bidder that intends to use its license(s) to deploy facilities and provide services to federally recognized tribal lands that are unserved by any telecommunications carrier or that have a wireline penetration rate equal to or below 85 percent is eligible to receive a tribal lands bidding credit (TLBC) as set forth in 47 CFR 1.2107 and 1.2110(f). A TLBC is in addition to, and separate from, any other bidding credit for which a winning bidder may qualify.
234. Unlike other bidding credits that are requested prior to the auction, a winning bidder applies for the TLBC after winning the auction when it files its long-form application (FCC Form 601). When initially filing the long-form application, the winning bidder will be required to advise the Commission whether it intends to seek a TLBC, for each market won in the auction, by checking the designated box(es). After stating its intent to seek a TLBC, the applicant will have 180 days from the close of the long-form filing window to amend its application to select the specific tribal lands to be served and provide the required tribal government certifications. Licensees receiving a TLBC are subject to performance criteria as set forth in 47 CFR 1.2110(f)(3)(vi).
235. After all such applications have been finally resolved, the Commission will recalculate the amount of pro rata credits using the aggregate amount of actual full credits—
236. Any high bidder that defaults or is disqualified after the close of the auction (
237. Some commenters supported the proposal as setting an appropriate deterrent to default. Others contend that there is no reason to increase the percentage of the additional default payment from three percent (3%) as provided under prior rules. As these comments reflect, the primary purpose of setting the additional default payment is to deter defaults. The precise level of deterrence provided by any particular percentage is difficult to determine. However, continued defaults in past Commission auctions indicate that the prior level of three percent (3%) is not sufficient. Moreover, as noted in the
238. Finally, the Commission notes that in the event of a default, it may re-auction the license or offer it to the next highest bidder (in descending order) at its final bid amount. In addition, if a default or disqualification involves gross misconduct, misrepresentation, or bad faith by an applicant, the Commission may declare the applicant and its principals ineligible to bid in future auctions, and may take any other action that it deems necessary, including institution of proceedings to revoke any existing licenses held by the applicant.
239. All applicants that submit upfront payments but after the close of the auction are not winning bidders for a license in Auction No. 66 may be entitled to a refund of their remaining upfront payment balance after the conclusion of the auction.
240. Bidders that drop out of the auction completely may be eligible for a refund of their upfront payments before the close of the auction. Qualified bidders that have exhausted all of their activity rule waivers, have no remaining bidding eligibility, and have not withdrawn a provisionally winning bid during the auction must submit a written refund request. If the applicant has completed the refund instructions electronically, then a written request for the refund is not necessary. If not, the request must be in writing and include wire transfer instructions, Taxpayer Identification Number (TIN) and FCC Registration Number (FRN). Send refund requests to: Federal Communications Commission, Financial Operations Center, Auctions Accounting Group, Attn: Gail Glasser, 445 12th Street, SW., Room 1-C864, Washington, DC 20554.
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 May 8, 2006.
Board of Governors of the Federal Reserve System, April 18, 2006.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 18, 2006.
Board of Governors of the Federal Reserve System, April 18, 2006.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting.
Agenda items are subject to change as priorities dictate.
Written comments are welcome and should be received by the contact person listed below prior to the opening of the meeting.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Center for Medicare and Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
We are, however, requesting an emergency review of the information collection referenced below. In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we have submitted to the Office of Management and Budget (OMB) the following requirements for emergency review. We are requesting an emergency review because the collection of this information is needed before the expiration of the normal time limits under OMB's regulations at 5 CFR part 1320. This is necessary to ensure compliance with an initiative of the Administration. We cannot reasonably comply with the normal clearance procedures because the use of the normal clearance process would delay the implementation of our survey, which in turn would jeopardize our ability to complete the Report to Congress by August 8, 2006.
1.
CMS is requesting OMB review and approval of this collection by
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web site address at
Interested persons are invited to send comments regarding the burden or any other aspect of these collections of information requirements. However, as noted above, comments on these information collection and recordkeeping requirements must be mailed and/or faxed to the designees referenced below by May 1, 2006:
Centers for Medicare and Medicaid Services, Office of Strategic Operations and Regulatory Affairs, Room C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850, Attn: William N. Parham, III; and,
OMB Human Resources and Housing Branch, Attention: Carolyn Lovett, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any
1.
2.
3.
4.
5.
6.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web site address at
Written comments and recommendations for the proposed information collections must be mailed or faxed within 30 days of this notice directly to the OMB desk officer: OMB Human Resources and Housing Branch, Attention: Carolyn Lovett, New Executive Office Building, Room 10235, Washington, DC 20503, Fax Number: (202) 395-6974.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
2.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received at the address below, no later than 5 p.m. on June 20, 2006.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development—C, Attention: Bonnie L. Harkless, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice with comment period.
This notice with comment period describes the procedure for redistribution of States' unexpended Federal fiscal year (FY) 2003 SCHIP allotments remaining at the end of FY 2005 to those States that fully expended such allotments. This notice also announces the application of the provisions of the Deficit Reduction Act of 2005 (DRA, Pub. L. 109-171, enacted on February 8, 2006) concerning the availability of additional allotments
This notice also describes the DRA amendments to the SCHIP statute relating to the provisions for “qualifying States” to elect to receive a portion of their available SCHIP allotments as increased Federal matching funds for certain expenditures in their Medicaid programs.
In commenting, please refer to file code CMS-2235-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (fax) transmission.
You may submit comments in one of four ways (no duplicates, please):
1.
2.
Please allow sufficient time for mailed comments to be received before the close of the comment period.
3.
4.
Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard, Baltimore, MD 21244-1850.
(Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
Richard Strauss, (410) 786-2019.
Title XXI of the Social Security Act (the Act) sets forth the State Children's Health Insurance Program (SCHIP) to enable States, the District of Columbia, and specified Commonwealths and Territories to initiate and expand health insurance coverage to uninsured, low-income children. In this notice, unless otherwise indicated, the terms “State” and “States” refer to any or all of the 50 States, the District of Columbia, and the Commonwealths and Territories. States may implement the SCHIP through a separate child health program under title XXI of the Act, an expanded program under title XIX of the Act, or a combination of both.
Under section 2104(e) of the Act, the SCHIP allotments for a Federal fiscal year are available to match expenditures under an approved State child health plan for an initial 3-fiscal year “period of availability,” including the fiscal year for which the allotment was provided. After the initial period of availability, the amount of unspent allotments is reallotted and continues to be available during a subsequent period of availability, specified in the SCHIP statute. The statute directs the Secretary to redistribute allotments unexpended at the end of the initial 3-year period of availability from States that did not fully spend the allotments to States that fully spent the allotments for the fiscal year (with an exception for FY 1998 through 2001 allotments that is not relevant to allotments discussed in this notice).
Section 2104(e) of the Act provides that amounts allotted to a State shall remain available for expenditure by the State through the end of the second succeeding fiscal year, except that amounts reallotted to the State are available for expenditure by the State through the end of the fiscal year in which they are reallotted. Section 2104(f) of the Act requires the Secretary to “determine an appropriate procedure for redistribution of allotments” from States that have not expended their allotments for the fiscal year to States that have fully expended their allotments.
Under sections 2104(e) and (f) of the Act, the Secretary is required to establish a procedure that provides for the treatment of States' unused SCHIP allotments. Accordingly, for purposes of this notice, in applying section 2104(f) of the Act, following the initial 3-year period of availability referenced in
A final notice, published in the
In the procedure for redistributing the unexpended FY 2002 allotments described in the September 29, 2005
Section 6101(a) of the DRA added a new section 2104(d) of the Act to provide for additional allotments to eliminate State SCHIP funding shortfalls in FY 2006. The procedure for redistribution of the unexpended FY 2003 allotments remaining at the end of the 3-year period of availability for that fiscal year (that is, FY 2003 through FY 2005), described in this notice below, incorporates a distribution procedure for the additional allotments authorized by new section 2104(d) of the Act.
Under section 2105(a)(1)(A) through (D) and (a)(2) of the Act and before enactment of Pub. L. 108-74 (Extension of Availability of SHIP Allotment Act, enacted on August 15, 2003), only Federal payments for the following Medicaid and SCHIP expenditures were applied against States' available SCHIP allotments: (1) Medical assistance provided under title XIX (Medicaid) to targeted low-income children in a SCHIP-related Medicaid expansion, for which the enhanced SCHIP FMAP rate is available; (2) medical assistance provided on behalf of a child during a period of presumptive eligibility under section 1920A of the Act (these funds are matched at the regular Medicaid FMAP rate); (3) child health assistance to targeted low income children that meets minimum benefit requirements under SCHIP; and (4) expenditures in the SCHIP that are subject to the 10-percent limit on non-primary expenditures (including other child health assistance for targeted low-income children, health services initiatives, outreach, and administrative costs).
Section 1(b) of Pub. L. 108-74, as amended by Pub. L. 108-127 (Social Security Act, Technical corrections, enacted November 17, 2003), added new section 2105(g) to the Act under which certain “qualifying States” that met prescribed criteria may elect to use up to 20 percent of any of the States' available SCHIP allotments for FY 1998, 1999, 2000, or 2001 to increase the FMAP rate for regular Medicaid expenditures to the enhanced FMAP rate available under SCHIP. As described in the
Section 6103 of the DRA provides for continued authority for qualifying States to use a portion of their available FY 2004 and FY 2005 SCHIP allotments to increase the FMAP rate for expenditures made under the Medicaid program on or after October 1, 2005.
The purpose of this notice with comment period is to set forth our procedure for redistributing FY 2003 unexpended allotments. In this regard, this notice applies solely to the redistribution of FY 2003 unexpended allotments and does not describe the procedure for the redistribution of any other unexpended fiscal year allotments. We anticipate publishing notices on redistribution procedures for subsequent fiscal years, unless Congress otherwise amends the Act to set forth procedures for redistributing such unexpended fiscal year allotments. This notice also describes our distribution of additional allotments in FY 2006 to eliminate State SCHIP funding shortfalls in FY 2006, and to implement the continued authority for “qualifying States” to elect to receive a portion of certain of their available FY 2004 and FY 2005 SCHIP allotments as increased Federal matching funds for certain expenditures in their Medicaid programs.
Under section 2104(f) of the Act, the Secretary must determine an appropriate procedure to redistribute the entire amount of States' unexpended SCHIP allotments following the end of the related initial 3-year period of availability only to those States that fully expended the allotments by the end of the initial 3-year period of availability (referred to in this notice as the redistribution States). Furthermore, section 2104(d) of the Act, as added by section 6101(a) of the DRA, provides for additional allotments to FY 2006 “shortfall States.” As described below, the appropriate procedure for redistribution of States' unexpended FY 2003 allotments remaining at the end of FY 2005 incorporates the new provisions at section 2104(d) of the Act relating to the elimination of shortfalls in the SCHIP in FY 2006.
Under section 2104(d)(2) of the Act, a shortfall State is a State with an approved child health plan under title XXI of the Act, for which the Secretary estimates based on the most recent data available to the Secretary as of December 16, 2005 that its projected FY 2006 expenditures under such plan will exceed the sum of:
i. The amount of the State's allotments for each of FYs 2004 and 2005 that were not expended by the end of FY 2005;
ii. The amount, if any, that is redistributed to the State during fiscal year 2006; and
iii. The amount of the State's allotment for FY 2006.
We determined the amount of each State's unexpended FY 2004 and FY 2005 allotments that were not expended by the end of FY 2005 based on States' quarterly expenditure reports (Forms CMS-21 and CMS-64) as submitted and certified by States through November 30, 2005. The amounts of the States' allotments for FY 2006 are as published in the
In determining the appropriate procedure for reallocating the unexpended FY 2003 allotments remaining at the end of FY 2005, we incorporated the above definition of shortfall State under section 2104(d)(2) of the Act, except that we did not include the amount of any FY 2003 redistribution (number ii. above). That is, before we could determine the amounts of any unexpended FY 2003 allotments to be redistributed to States in FY 2006 under number ii. above (and which would be redistributed in association with the additional amounts to be allotted to States to eliminate any shortfall in FY 2006), we first determined whether the amounts of States' available allotments under i. and iii. above were sufficient to meet the States' projected expenditures for FY 2006. A shortfall would be considered to exist for a State whose available allotments would be insufficient to meet its projected expenditures. We refer to the shortfall in FY 2006 determined without including the FY 2003 redistribution as the “initial FY 2006 shortfall.” In particular, the “initial FY 2006 shortfall” for a State is equal to the difference (greater than zero) of a State's projected FY 2006 SCHIP expenditures and the total allotments available to the State in FY 2006 (determined as the sum of i. and iii. above).
The following describes the FY 2003 redistribution procedure established under section 2104(f) of the Act and which incorporates the FY 2006 shortfall provisions referenced under section 2104(d)(2) of the Act.
a.
Section 2104(g)(1)(A)(ii) of the Act specifies the methodology for determining the FY 1998 through FY 2001 redistributed allotments for the Commonwealths and Territories that fully expended their SCHIP allotments related to those fiscal years. We applied the same methodology for purposes of determining an appropriate procedure under section 2104(f) of the Act to redistribute the unexpended FY 2003 allotments remaining at the end of FY 2005; we had also applied this methodology in redistributing the unexpended FY 2002 allotments remaining at the end of FY 2004. Under this procedure, the total FY 2003 allotment amount available for redistribution to the Commonwealths and Territories is determined by multiplying the total amount of the unexpended FY 2003 allotments available for redistribution nationally by 1.05 percent. For the FY 2003 redistribution calculation, this amount is $1,820,404 (1.05 percent of $173,371,863, the total unexpended FY 2003 allotments remaining at the end of FY 2005). Only those Commonwealths and Territories that have fully expended their FY 2003 allotments will receive an allocation of this amount, equal to a specified percentage of the $1,820,404; with respect to the FY 2003 allotments, all five Commonwealths and Territories fully expended those allotments by the end of FY 2005. The specified percentage is the amount determined by dividing the respective SCHIP FY 2003 allotment for each Commonwealth or Territory that fully expended its FY 2003 allotment by the total of such allotments for such Commonwealths and Territories.
Furthermore, section 2104(d)(3)(B) of the Act, as added by the DRA, requires that 1.05 percent of the total $283,000,000 be provided to the Commonwealths and Territories as additional allotments; this amount must be allocated among the jurisdictions in the same proportions as those specified in section 2104(c) of the Act. Therefore, a total of $2,971,000 (1.05 percent of $283,000,000) is available to be allocated as additional allotments for the Commonwealths and Territories in FY 2006.
b.
We then determined the total additional amounts available for allotment to eliminate the States' initial shortfalls. Under section 2104(d)(1) of the Act, a total of $283,000,000 is appropriated to provide for additional allotments to address States' shortfalls in FY 2006. However, as indicated above, under section 2104(d)(3)(B) of the Act, $2,971,500 of the $283,000,000 must be allotted to the Commonwealths and Territories. Therefore, a total of $280,028,500 ($283,000,000 minus $2,971,500) is available for additional allotments in FY 2006 to shortfall States.
In determining the amounts of additional allotment to eliminate the shortfalls for the shortfall States, we also needed to comply with section 2104(d)(4) of the Act, as added by the DRA, which provides that the additional allotments are only available for amounts expended under a SCHIP State
Finally, we determined the total amount of the unexpended FY 2003 allotments to be redistributed to those shortfall States that had fully expended their FY 2003 allotments by the end of FY 2005 and the amount of that total, if any, to be redistributed to each of the shortfall States. The total amount of the unexpended FY 2003 allotments available to be redistributed to the States is $171,551,449, calculated as $173,371,853 (the total unexpended FY 2003 allotments at the end of FY 2005) minus $1,820,404 (the amount of these funds redistributed to the Commonwealths and Territories). Since the total remaining shortfalls at that point were $174,298,185, we determined the remaining shortfall amount (if any) for each shortfall State as a percentage of the total remaining shortfalls. We then multiplied the total amount available for redistribution to the States ($171,551,449) by the remaining shortfall percentages to determine the amount of the redistribution to each of the shortfall States.
As indicated above, we would base both the amounts of the additional allotments and the FY 2003 redistribution on the November 2005 submissions of the estimates of States' FY 2006 expenditures, which we used to calculate the initial shortfall amount for each State. For the FY 2003 redistribution amounts only, however, we are reviewing further whether to use more current estimates to determine the remaining shortfall as of the date of the final notice in our calculations. We invite comments on this issue.
In applying State's expenditures against their available SCHIP allotments, we follow the order of expenditures as provided under section 2105(a)(1)(A) through (D) and (a)(2) of the Act as follows:
(i) Title XIX SCHIP-related expenditures for which payment is made at the enhanced Federal medical assistance percentage (FMAP) (section 2105(a)(1)(A) of the Act);
(ii) Title XIX expenditures for medical assistance provided during a presumptive eligibility period under section 1920A of the Act (section 2105(a)(1)(B) of the Act);
(iii) Child health assistance for targeted low-income children in the form of providing health benefits coverage that meets the requirements of section 2103 (section 2105(a)(1)(C) of the Act);
(iv) Expenditures listed in section 2105(a)(1)(D)(i) through (iv) of the Act, respectively: Other child health assistance for targeted low-income children; health services initiatives under the plan for improving the health of children (including targeted low-income children and other low-income children); expenditures for outreach activities; and administration expenditures.
As discussed previously, Pub. L. 108-74, as amended by Pub. L. 108-127, also added new section 2105(g) to the Act, under which a “qualifying State” meeting specified criteria could, at its option, elect to use up to 20 percent of any of the State's available SCHIP allotments for FY 1998, 1999, 2000, or 2001 for payments under the State's Medicaid program, instead of expenditures under the State's SCHIP. Furthermore, as amended by section 6103 of the DRA, qualifying States may elect to use up to 20 percent of their available FY 2004 and FY 2005 allotments for such purpose. As described in the
In general, in accordance with the ordering of allotments and expenditures provisions, the expenditures of States eligible for the FY 2003 redistribution will be applied against the FY 2003 redistribution amounts.
We believe that the States eligible for the FY 2003 redistribution and additional allotments to eliminate the FY 2006 shortfall should be afforded the flexibility to decide whether the FY 2003 redistributed funds and additional allotments to eliminate the FY 2006 shortfalls would be used before or after other available allotment funds to allow them to optimize the use of such funds. Therefore, we offered States that will receive FY 2003 redistributed amounts and the additional allotment amounts the option of choosing the order of when the funds would be expended during FY 2006 among the other available allotments during FY 2006. In the previous redistributions for the unexpended FY 1998 through FY 2002 allotments, the redistribution States had the same ordering of allotment choice for the redistributed allotment.
An FY 2003 redistribution State (a State that has fully expended its FY 2003 allotment by the end of FY 2005) may have a maximum of four possible choices for the order of the application of FY 2003 redistributed allotments and the additional allotments in FY 2005, depending on the other fiscal year allotments that are available to the States in FY 2006:
(i) Before FY 2004 unexpended allotments;
(ii) After FY 2004 allotments and before FY 2005 allotments;
(iii) After FY 2005 and before FY 2006 allotments;
(iv) After FY 2006 allotments.
As specified in section 2104(e) of the Act, the FY 2003 reallotted amounts for a fiscal year will be available for allowable SCHIP expenditures reported by the redistribution States through the end of the fiscal year in which such amounts are reallotted. Therefore, amounts of the States' FY 2003 reallotments will be available through September 30, 2006 (the end of FY 2006). Under section 2104(d)(5) of the Act, as added by the DRA, the additional allotments to eliminate the FY 2006 shortfall are only available for expenditure by the State through September 30, 2006 and shall not be subject to any further redistribution.
As part of the redistribution process, prior to making the FY 2003 redistribution funds actually available, we contacted all of the States eligible for the FY 2003 redistribution in order to explain the provisions of this notice and to obtain their ordering elections for the FY 2003 redistributed allotment
Consistent with past fiscal year redistribution processes, under the FY 2003 redistribution methodology, once a State chooses the order of the FY 2003 redistribution amounts and the additional allotment amounts to eliminate any FY 2006 shortfall, it cannot change that order at a later date. We then incorporated the amounts of States' FY 2003 redistributed amounts and additional allotment and such States' ordering elections with respect to such amounts on Form CMS-21C (Allocation of Title XIX and Title XXI Expenditures to the SCHIP Fiscal Year Allotment). Form CMS-21C is used for tracking States' expenditures against their available SCHIP allotments. The FY 2003 redistributed allotment amounts and the additional allotment amounts will be automatically entered on this form, and the Medicaid and SCHIP expenditure system will automatically apply expenditures reported on the quarterly expenditure reports for the period of October 1, 2005 through September 30, 2006 against the FY 2003 redistributed amounts and additional allotment amounts available through September 30, 2006 and the other SCHIP allotments available in FY 2006.
In Table 1 of this notice, we set forth the initial FY 2006 shortfall calculation for the 50 States and the District of Columbia. In Table 2 of this final notice, we set forth the amount of States' unexpended FY 2003 allotments, as reflected by the States' expenditure submissions through November 30, 2005. These amounts are used to determine the States' FY 2003 redistributed allotment amounts. We established the amount of States' unexpended FY 2003 allotments at the end of the initial 3-year period of availability, based on the SCHIP-related expenditures, as reported and certified by States to us on the quarterly expenditure reports (Form CMS-64 and/or Form CMS-21) by November 30, 2005. These expenditures are applied and tracked against the States' FY 2003 allotments (as published in the
By November 30, 2005, all States reported and certified their FY 2005 fourth quarter expenditures (representing the last quarter of the 3-year period of availability for FY 2003). Expenditures reflected in Table 2 below were taken from our Medicaid Budget and Expenditure System/State Children's Health Program Budget and Expenditure System (MBES/CBES) “masterfile,” which represents the State's official certified SCHIP and Medicaid expenditure reporting system records related to FY 2003 allotments. Based on States' expenditure reports submitted and certified through November 30, 2005, the total amount of States' FY 2002 SCHIP allotments that were unexpended at the end of the 3-year period ending September 30, 2005, is $173,371,853.
The following describes Table 1 and Table 2, which together present the calculation of the FY 2003 SCHIP redistribution amounts and the additional allotments to eliminate FY 2006 shortfalls.
A total of $3,175,200,000 was allotted nationally for FY 2003, representing $3,142,125,000 in allotments to the 50 States and the District of Columbia, and $33,075,000 in allotments to the Commonwealths and Territories. Based on the quarterly expenditure reports, submitted and certified by November 30, 2005, 40 States fully expended their FY 2003 allotments, 11 States did not fully expend their FY 2003 allotments, and all 5 of the Commonwealths and Territories fully expended their FY 2003 allotments. Furthermore, of the 40 States that fully expended their FY 2003 allotments by the end of FY 2005, there are 12 States that are projected to have a FY 2006 shortfall totaling $454,326,685. For the 11 States that did not fully expend their FY 2003 allotments, their total FY 2003 allotments were $586,678,632 and the total expenditures applied against their FY 2003 allotments were $413,306,779. Therefore, the total amount of unexpended FY 2003 allotments at the end of FY 2005 equaled $173,371,853 ($586,678,632 minus $413,306,779).
In accordance with the redistribution calculation for FY 2003 described above, of the total $173,371,853 in unexpended FY 2003 allotments, $1,820,404 is available for redistribution to the five Commonwealths and Territories, and $171,551,449 is available for redistribution to the 12 FY 2006 shortfall redistribution States. Of the $283,000,000 available to eliminate States' FY 2006 shortfalls, $2,971,500 is allocated to the Commonwealths and Territories, and the remaining $280,020,500 is available for the shortfall States. The FY 2003 redistributed allotment amounts and the additional allotment amounts to eliminate the shortfall will remain available through the end of FY 2006.
Table 1 presents the initial FY 2006 shortfall calculation for the 50 States and the District of Columbia.
Name of State, District of Columbia, the Commonwealth or Territory. This is the only column in Table 1 that includes Commonwealths and Territories. The initial FY 2006 shortfall calculation in Table 1 is not applicable to the Commonwealths and Territories and, therefore, the entries for the Commonwealths and Territories in the rest of the Columns in Table 1 are “NA”.
Table 2 contains the calculation of the States' FY 2003 redistributed allotments and the additional allotments to eliminate the States' FY 2006 shortfalls.
Section 1(b) of Pub. L. 108-74, as amended by Pub. L. 108-127, added new section 2105(g) to the Act under which certain “qualifying States” that met prescribed criteria could elect to use up to 20 percent of the States' available SCHIP allotments for FY 1998, 1999, 2000, or 2001 as additional
We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980 Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). We have determined that with respect to the FY 2003 redistribution amounts, this notice is not a major rule. The States' FY 2003 SCHIP allotments, totaling $3,175,200,000 were originally published in a notice in the
This notice also describes the process for distributing additional allotments to States that are projected to have a shortfall in FY 2006 in SCHIP funds; specifically, under section 2104(d) of the Act, as amended by section 6101(a) of the DRA, $283 million was appropriated and was specifically authorized to eliminate FY 2006 shortfalls. Since the aggregate amount of the additional allotments is $283 million, with respect to this provision this notice is considered a major rule. In that regard, as indicated above, this notice describes the basis for determining the amount of the additional allotment of each State to eliminate the FY 2006 shortfalls in accordance with the provisions of this legislation. In determining the regulatory impact analysis for this provision of the DRA, the primary considerations were to ensure that: (1) The calculation of the amounts of the additional amounts was determined in accordance with the legislation, and (2) the amounts of the additional allotments were used for the purposes specified in the legislation. As indicated in the tables 1 and 2 in this notice, with respect to the first consideration, we determined that the total shortfall in the 12 States having such shortfalls was $454 million. With respect to the second consideration, we considered the amounts of each of these 12 States' estimated targeted low income children expenditures and the amounts of their FY 2006 shortfalls to ensure that the additional allotments did not exceed these amounts. Therefore, the aggregate economic impact of the additional allotments determined in this way will be to provide Federal funds to the impacted States in the aggregate amount of $283 million, and that these amounts may only be used by the States to pay for the targeted low-income children expenditures.
Because State participation in the SCHIP program is voluntary, any payments and expenditures States make or incur on behalf of the program that are not reimbursed by the Federal Government are made voluntarily. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this final notice will not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Core-Based Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this final notice will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This final notice will not create an unfunded mandate on States, tribal, or local governments. Therefore, we are not required to perform an assessment of the costs and benefits of this notice.
Executive Order 13132 establishes certain requirements that an agency must meet when it publishes a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. We have reviewed this final notice and have determined that it does not significantly affect States' rights, roles, and responsibilities.
Low-income children will benefit from payments under this program through increased opportunities for health insurance coverage. We believe this final notice will have an overall positive impact by informing States, the District of Columbia, and Commonwealths and Territories of the extent to which they are permitted to expend funds under their child health
In accordance with the provisions of Executive Order 12866, this final notice was reviewed by the Office of Management and Budget.
[If you choose to comment on issues in this section, please include the caption “Waiver of Notice of Proposed Rulemaking and Delayed Effective Date” at the beginning of your comments.]
We ordinarily publish a proposed notice in the
We find there is good cause to waive notice of proposed rulemaking and the delay in the effective date of this issuance of the FY 2003 redistributed allotments and the additional allotments to eliminate the FY 2006 shortfall in SCHIP funding because such notice of proposed rulemaking and the delay in the effective date would be contrary to the public interest.
We determined the amounts of the FY 2003 redistributed allotments and additional allotments to eliminate the FY 2006 shortfall as expeditiously as possible in order to make them available to the States as soon as possible. To that end, all States had until November 30, 2005 to submit their required fourth quarter FY 2005 expenditure reports. In determining the FY 2003 redistributed amounts, we used State projected expenditures as contained in the most recent (November, 2005) States' quarterly budget report submissions. The redistributed FY 2003 allotments make available Federal funds to the recipient redistribution States, which is especially important for those redistribution States that may need such funds.
Furthermore, under section 2104(e) of the Act and section 2104(d)(5) of the Act, the FY 2003 redistributed allotments and the additional allotments to eliminate the FY 2006 shortfall in SCHIP funding, are only available through the end of the fiscal year in which they are redistributed/distributed, for example, until the end of FY 2006 (September 30, 2006). We believe it is important that we issue these redistributed allotments and additional allotments as soon as possible. Delay in States receiving those funds could result in disruption of program operations. Therefore, in the interest of ensuring that the FY 2003 redistributed allotments and the additional allotments to eliminate the FY 2006 shortfall in SCHIP funding are made available without delay to those States that need such funds, we are waiving notice of proposed rulemaking and the 30-day delay in effective date, and are publishing this issuance of the
Accordingly, we provisionally will make the FY 2003 redistributed funds and the additional allotments to eliminate the FY 2006 shortfall in SCHIP funding available to any State that has spent all of its available SCHIP allotments effective immediately upon publication of this notice with comment period. These FY 2003 redistributed funds are subject to final adjustment based on comments received in response to this notice with comment period. Any such adjustments resulting from review and analysis of comments will be published in the
Food and Drug Administration, HHS.
Notice of solicitation.
The Food and Drug Administration (FDA) is soliciting gene expression datasets from deoxyribonucleic acid (DNA) microarray studies, as well as proposals to analyze these datasets in order to evaluate the impact of different analysis protocols on the selection of genes and their associated signatures for biomarker pattern development. This project is being coordinated by FDA as a followup to the MicroArray Quality Control (MAQC) Project. This evaluation process is open to the public.
Datasets and proposals for participation in the project must be received by the National Center for Toxicological Research on or before 4:30 p.m. c.s.t. on May 31, 2006, or be postmarked on or before May 31, 2006.
Datasets and proposals should be sent to Leming Shi, National Center for Toxicological Research, Food and Drug Administration, 3900 NCTR Rd., Jefferson, AR 72079, 870-543-7387, FAX: 870-543-7686; e-mail:
FDA's Critical Path Initiative (
A microarray is a tool for analyzing gene expression. It consists of a small membrane or glass slide containing samples of many genes arranged in a regular pattern. DNA is a nucleic acid—usually in the form of a double helix—that contains the genetic instructions specifying the biological development of all cellular forms of life and most viruses. DNA microarray is a collection of microscopic DNA spots attached to a solid surface, such as glass, plastic or silicon chip forming an array. DNA microarrays represent a core technology in pharmacogenomics and toxicogenomics; however, before this technology can be reliably applied in clinical practice and regulatory decisionmaking, further evaluation is needed of the process for the analysis of hybridization data that results in predictive signatures.
The MAQC project involves six FDA centers, major providers of microarray platforms and ribonucleic acid (RNA) samples, government agencies, academic laboratories, and other
Food and Drug Administration, HHS.
Notice; withdrawal.
The Food and Drug Administration (FDA) is announcing the withdrawal of a proposed revised form that was issued in the
April 21, 2006.
Joseph L. Okrasinski, Jr., Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852-1448, 301-827-6210.
In a notice published in the
US-VISIT, DHS.
Notice of availability.
A Final Programmatic Environmental Assessment (PEA) and Finding of No Significant Impact (FONSI) for the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program are available to the public for electronic download. The Final PEA examines the potential environmental impacts of four strategic approaches to enhance immigration and border management processes and addresses the substantive comments received on the Draft PEA during the public comment period. These four approaches are aimed at improving information available to determine the identity and immigration status of individuals traveling to and from the United States. The Final PEA resulted in a FONSI that selected the proposed action, or Hybrid Alternative, as the approach to enhance the immigration and border management enterprise. The Final PEA and FONSI are made available to the public in accordance with the National Environmental Policy Act of 1969 (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA.
The Final PEA and FONSI will be available to the public on April 17, 2006.
Copies of the Final PEA and FONSI may be obtained by download through the Internet at
Lisa Mahoney, US-VISIT Environmental Program Manager, at (202) 298-5245, Monday-Friday, 8 a.m.—5 p.m. EDT.
US-VISIT published a Notice of Availability of a Draft Programmatic Environmental Assessment (PEA) on the US-VISIT Plan for Potential Changes to Immigration and Border Management Processes in the
The proposed action, or Hybrid Alternative, has been selected as the approach by which enhancements will be made to immigration and border management processes. This approach was selected after careful review of the environmental assessment and consideration of input received from the public and other federal and state agencies during the public comment period. The Hybrid Alternative was chosen because it provides the most opportunity for the entities responsible for immigration and border management to incorporate and balance the most useful components of the virtual and physical border alternatives to achieve security, facilitation, individual privacy, and immigration system integrity goals. A review of the relative impacts showed that no alternative would result in a significant impact and that the Hybrid Alternative ranked second in terms of environmental preference. As warranted, tiered environmental analyses for specific initiatives at the land border ports of entry resulting from selection of the Hybrid Alternative will be conducted and these tiered analyses will be made available to the public. A collection or “toolbox” of strategies and information for monitoring, mitigation, and environmental stewardship will also be developed to be used in implementing the Hybrid Alternative.
Department of Homeland Security; United States Customs and Border Protection.
Notice of revision to and expansion of Privacy Act system of records.
This notice announces a revision to and expansion of a previously-established Privacy Act system of records, the Global Enrollment System, to facilitate the creation of a consolidated database to collect biometric and biographic data for individuals who voluntarily exchange personally identifiable information in return for expedited transit at U.S. border entry points. The Global Enrollment System will enhance transportation security by affording United States Customs and Border Protection, the system owner, the opportunity to perform advanced screening on low-risk trusted travelers and to expedite the security screening process of these trusted travelers as their low-risk status is confirmed.
The revised System of Records will be effective May 22, 2006, unless comments are received that result in a contrary determination. The public is invited to comment on the proposed System of Records.
You may submit comments, identified by docket number DHS-2005-0053 by one of the following methods:
• Federal eRulemaking Portal:
• Fax: (202) 572-8727.
• Mail: Border Security Regulations Branch, Office of Regulations and Rulings, Bureau of Customs and Border Protection, Mint Annex, Washington, DC 20229; Maureen Cooney, Acting Chief Privacy Officer, Department of Homeland Security, 601 S. 12th Street, Arlington, VA 22202-4220.
If you have any questions about this notice, please contact Laurence Castelli, Chief, Privacy Act Policy and Procedures Branch, U.S. Customs and Border Protection, Washington, DC 20229, Phone: (202) 572-8720, Fax (202) 572-8727; or Maureen Cooney, Acting Chief Privacy Officer, U.S. Department of Homeland Security, Arlington, VA 22202-4220, Phone: (571) 227-3813, Fax: (571) 227-4171.
United States Customs and Border Protection, a component agency of the Department of Homeland Security, currently operates multiple programs at Ports of Entry that offer individuals an expedited transit experience at United States security points in exchange for providing personally identifiable information to facilitate identification of the individual as a “trusted traveler.” The personally identifiable information now collected for these programs is currently maintained in the Global Enrollment System (GES), a Privacy Act system of records, notice of which was last published in the
CBP inherited these Port of Entry expedited border-crossing programs upon the creation of DHS on March 1, 2003. These local programs were created by both the former Immigration and Naturalization Service and the former U.S. Customs Service to facilitate the regular and recurring border transit of individuals who voluntarily provide information to CBP in exchange for expedited processing at the border. The personally identifiable data collected for these programs is maintained in a legacy GES system, notice of which was originally published in the
CBP is now consolidating these various programs, which have operated locally, into a national system as a means for both expanding the expedited border crossing benefit to approved participants and achieving greater uniformity in the criteria for admission to these programs. The information to be collected will continue to be provided primarily by applicants, and will consist of biographic data sufficient for program purposes and biometric data—currently envisioned to be fingerprints and photographs—that will be used for identity verification. In order to complete the enrollment process, the information from applicants will be used to query law enforcement and other databases in order for CBP to decide if an individual can be accepted as a low-risk, “trusted traveler.” There will be an opportunity for the individual to verify the accuracy of the information at enrollment. In addition, a redress program will be available so that if errors are made in decisions regarding applicants, a process is available to resolve these discrepancies.
An enterprise-wide Global Enrollment System (GES) will centralize the application and enrollment functions for these programs in a way that is efficient, integrated and scalable. The proposed revisions to GES are expected to be part of the process by which CBP and the entire Department of Homeland Security, acting in concert with the Department of State and our international partners, adopts 21st century technology to improve the security of our borders while facilitating travel by United States citizens and foreign visitors.
The Privacy Act (5 U.S.C. 552a) embodies fair information principles in a statutory framework governing the means by which the United States Government collects, maintains, uses and disseminates personally identifiable information. The Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
The Privacy Act requires each agency to publish in the
In accordance with 5 U.S.C. 552a(r), a report of this revised system of records has been provided to the Office of Management and Budget (OMB) and to the Congress.
Global Enrollment System (GES).
This computer database is located at U.S. Customs and Border Protection (CBP) National Data Center in Washington, DC. Computer terminals are located at border ports of entry and airport and seaport inspection facilities under the jurisdiction of the Department of Homeland Security (DHS).
Individuals who apply to use any form of automated or other expedited inspection for verifying eligibility to cross the borders into the United States.
The system contains application data such as full name, including nickname or other names used, place and date of birth, gender, current and former addresses, telephone numbers, country of citizenship, alien registration number (if applicable), employment history, biometric data, driver's license number and issuing state or province, the make, model, color, year, license number and license issuing state or province of the applicant's vehicle, the flag and home port (where the vessel is foreign flagged), name, registration number and registration issuing state or province of the applicant's vessel, the name and address of the vehicle's or vessel's registered owners if different from the applicant, and the amount of fee paid. The application may also include such
8 U.S.C. 1101, 1103, 1201, 1304, and 1356.
Information in this system is used to adjudicate applications to enter the United States by any available form of automated or other expedited inspection, including that offered to travelers arriving in the United States via dedicated commuter lanes, to pedestrians and vehicles arriving at ports of entry, to pedestrians and vehicles arriving at other lands borders, and to air and sea travelers.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To Federal, State, local, foreign, international or tribal government agencies or organizations during the course of processing applications to elicit information necessary to make decisions on these applications.
B. To appropriate Federal, State, local, foreign, international or tribal government agencies or organizations that are lawfully engaged in collecting intelligence or law enforcement information (whether civil, criminal or administrative) and/or charged with investigating, prosecuting, enforcing or implementing civil and/or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement and intelligence responsibilities.
C. To a Congressional office response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains.
D. To the National Archives and Records Administration or other federal government agencies pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
E. To the Department of Justice or other federal agency conducting litigation or proceedings before any court, adjudicative or administrative body, when: (a) DHS, or (b) any employee of DHS in his/her official capacity, or (c) any employee of DHS in his/her individual capacity where DOJ or DHS has agreed to represent the employee, or (d) the United States or any agency thereof, is a party to the litigation or has an interest in such litigation.
F. To contractors, grantees, experts, consultants, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal government, when necessary to accomplish an agency function related to this system of records.
G. To an agency, organization, or individual for the purposes of performing authorized audit or oversight operations.
Application information is maintained in paper form and in an automated database in electronic format.
These records are retrieved by name, address, vehicle license number or other personal identifier.
The system is protected through a multi-layer security approach. The protective strategies are physical, technical, administrative and environmental in nature and provide access control to sensitive data, physical access control to DHS facilities, confidentiality of communications, authentication of sending parties, and personnel screening to ensure that all personnel with access to data are screened through background investigations commensurate with the level of access required to perform their duties.
The legacy GES system provides that records will be destroyed three years after the denial of an application as a “trusted traveler” or after an issued permit expires. In light of the changes to the program that are envisioned, CBP will work with its Records personnel to develop an appropriate retention schedule that accounts for both operational and privacy concerns.
Director, Passenger Systems Program Office, Office of Information and Technology, 1300 Pennsylvania Ave., NW., Washington, DC 20229.
To determine whether this system contains records relating to you, write to the CBP Customer Satisfaction Unit, Office of Field Operations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue, NW. (Room 5.5C), Washington, DC 20229.
Requests for access must be in writing and should be addressed to CBP Customer Satisfaction Unit in the Office of Field Operations, or the DHS Director for Departmental Disclosure and FOIA. Requests should conform to the requirements of 6 CFR part 5, subpart B, which provides the rules for requesting access to Privacy Act records maintained by DHS. The envelope and letter should be clearly marked “Privacy Act Access Request.” The request should include a general description of the records sought and must include the requester's full name, current address, and date and place of birth. The request must be signed and either notarized or submitted under penalty of perjury.
Same as Records Access Procedures above. State clearly and concisely the information being contested, the reasons for contesting it, and the proposed amendment to the information sought.
The primary source of information is the application. Other law enforcement records systems may be used as part of adjudicating the applications.
Records and information in this system obtained from checks of other law enforcement databases are exempt from 5 U.S.C. 552a(c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (5) and (8), (f), and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). No exemptions are claimed for information obtained from an application or otherwise submitted by an applicant.
Coast Guard, DHS.
Notice of meeting.
The Chemical Transportation Advisory Committee (CTAC), its Subcommittees on Outreach and Hazardous Cargo Transportation Security (HCTS), and its Working Group on Barge Emissions and Barge Placarding will meet to discuss various issues relating to the marine transportation of hazardous materials in bulk. These meetings will be open to the public.
The Working Group on Barge Emissions and Barge Placarding will meet on Tuesday, May 9, 2006, from 9 a.m. to 3:30 p.m. The Outreach Subcommittee will meet on Wednesday, May 10, 2006, from 9 a.m. to 11 a.m. and the HCTS Subcommittee will meet on Wednesday, May 10, 2006, from 12 noon to 3:30 p.m. CTAC will meet on Thursday, May 11, 2006, from 9 a.m. to 3:30 p.m. These meetings may close early if all business is finished. Written material and requests to make oral presentations should reach the Coast Guard on or before May 1, 2006. Requests to have a copy of your material distributed to each member of the Committee should reach the Coast Guard on or before May 1, 2006.
All meetings will be held at Coast Guard Sector Delaware Bay, One Washington Avenue, Philadelphia, PA 19147. Send written material and requests to make oral presentations to Commander Robert J. Hennessy, Executive Director of CTAC, Commandant (G-PSO-3), U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001 or E-mail:
Commander Robert J. Hennessy, Executive Director of CTAC, or Ms. Sara Ju, Assistant to the Executive Director, telephone 202-267-1217, fax 202-267-4570.
Notice of these meetings is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2.
(1) Introduce Working Group members and attendees.
(2) Review barge emissions guidance documents.
(3) Discuss implementation strategy.
(4) Develop position regarding the placarding of inland barges.
(1) Introduce Subcommittee members and attendees.
(2) Finalize CTAC accomplishments list.
(3) Develop CTAC outreach presentation.
(4) Schedule fall 2006 CTAC meeting.
(1) Introduce Subcommittee members and attendees.
(2) Develop guidance on hazards of certain dangerous cargo (CDC) residues.
(1) Introduce Committee members and attendees.
(2) Status report presentation from the CTAC HCTS Subcommittee.
(3) Status report presentation from the CTAC Outreach Subcommittee.
(4) Status report presentation from the CTAC MARPOL Annex II Working Group.
(5) Status report presentation from the CTAC Barge Emission and Barge Placarding Working Group.
(6) Presentation on the role of the International Tanker Owners Pollution Federation Limited (ITOPF) in marine oil and chemical spill response.
(7) Presentation on hazardous material transportation issues around large populations.
(8) Presentation on cracks in chemical tankers.
(9) Update on Coast Guard regulatory projects.
These meetings are open to the public. Please note that the meetings may close early if all business is finished. At the discretion of the Chair, members of the public may make oral presentations during the meetings generally limited to 5 minutes. If you would like to make an oral presentation at a meeting, please notify the Executive Director and submit written material on or before May 1, 2006. If you would like a copy of your material distributed to each member of the Committee in advance of a meeting, please submit 25 copies to the Executive Director (see
For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, telephone the Executive Director as soon as possible.
60-day notice of information collection under review: Application for Asylum and Withholding of Removal; Form I-589. OMB Control No. 1615-0067.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until June 20, 2006.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Director, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, 3rd floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS Web site at:
If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, 3rd Floor, Washington, DC 20529, (202) 272-8377.
60-day notice of information collection under review; Application by Refugee for Waiver of Grounds of Excludability; Form I-602. OMB No. 1615-0069.
The Department of Homeland Security, U.S. Citizenship and Immigration Services has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until June 20, 2006.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Director, Regulatory Management Division, Clearance Office, 111 Massachusetts Avenue, 4th floor, Washington, DC 20529. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques, or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you have additional comments, suggestions, or need a copy of the proposed information collection instrument with instructions, or additional information, please visit the USCIS Web site at:
If additional information is required contact: USCIS, Regulatory Management Division, 111 Massachusetts Avenue, 3rd Floor, Washington, DC 20529, (202) 272-8377.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Aneita Waites, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410-5000.
Aneita Waites, (202) 708-0713, extension 4114, for copies of the proposed forms and other available documents. (This is not a toll-free number.)
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name/or OMB Control number and should be sent to: Aneita Waites, Reports Liaison Officer, Public and Indian Housing, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410-5000.
Aneita Waites, (202) 708-0713, extension 4114, for copies of the proposed forms and other available documents. (This is not a toll-free number.)
The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended). This notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.
This Notice also lists the following information:
Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
April 21, 2006.
Kathy Ezzell, Department of Housing and Urban Development, Room 7262, 451 Seventh Street, SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 1-800-927-7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of review.
The U.S. Fish and Wildlife Service (Service) announces a 5-year review of 25 southwestern species under the Endangered Species Act of 1973 (Act). The purpose of reviews conducted under this section of the Act is to ensure that the classification of species as threatened or endangered on the List of Endangered and Threatened Wildlife and Plants is accurate. The 5-year review is an assessment of the best scientific and commercial data available at the time of the review.
To allow adequate time to conduct this review, information submitted for our consideration must be received on or before July 20, 2006. However, we will continue to accept new information about any listed species at any time.
Information submitted on these species should be sent to the Service at the following addresses. Information received in response to this notice of review will be available for public inspection by appointment, during normal business hours, at the same addresses.
Information regarding the golden-cheeked warbler, Houston toad, Government Canyon Bat Cave spider, Robber Baron Cave meshweaver, Government Canyon Bat Cave meshweaver, Madla's Cave meshweaver, Braken Bat Cave meshweaver, Cokendolpher Cave harvestman, Helotes mold beetle, ground beetle (
Information regarding the Cochise pincushion cactus, Peebles Navajo cactus, Siler pincushion cactus, jaguar, Apache trout, desert pupfish, and Sonora tiger salamander should be sent to the Field Supervisor, Attention 5-year Review, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021. The office phone number is 602-242-0210.
Information regarding the slender rush-pea and black lace cactus should be sent to the Field Supervisor, Attention 5-year Review, U.S. Fish and Wildlife Service c/o TAMU-CC, Ecological Services, 6300 Ocean Drive, Unit 5837, Corpus Christi, TX 78412. The office phone number is 361-994-9005.
Information regarding the Ozark big-eared bat and leopard darter should be sent to the Field Supervisor, Attention 5-year Review, U.S. Fish and Wildlife Service, Oklahoma Ecological Services Field Office, 222 S. Houston, Suite A, Tulsa, OK 74127. The office phone number is 918-581-7458.
Information regarding Pecos bluntnose shiner, Sacramento prickly poppy, and Todsen's pennyroyal should be sent to the Field Supervisor, Attention 5-year Review, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road NE., Albuquerque, NM 87113. The office phone number is 505-346-2525.
For species specific information, contact the appropriate office named in
Section 4(c)(2)(A) of the Act (16 U.S.C. 1531
The 5-year review is an assessment of the best scientific and commercial data available at the time of the review. Therefore, we are requesting submission of any new information (best scientific and commercial data) on the following 25 species since their original listings as either endangered (golden-cheeked warbler, Houston toad, Government Canyon Bat Cave spider, Robber Baron Cave meshweaver, Government Canyon Bat Cave meshweaver, Madla's Cave meshweaver, Braken Bat Cave meshweaver, Cokendolpher Cave harvestman, Helotes mold beetle, ground beetle (
Our regulations at 50 CFR 424.21 require that we publish a notice in the
A 5-year review considers all new information available at the time of the review. These reviews will consider the best scientific and commercial data that has become available since the current listing determination or most recent status review of each species, such as:
A. Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
B. Habitat conditions, including but not limited to amount, distribution, and suitability;
C. Conservation measures that have been implemented to benefit the species;
D. Threat status and trends (see five factors under heading “How do we determine whether a species is endangered or threatened?”); and
E. Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List of Endangered and Threatened Wildlife and Plants, and improved analytical methods.
The List of Endangered and Threatened Wildlife and Plants (List) is found in 50 CFR 17.11 (wildlife) and 17.12 (plants). Amendments to the List through final rules are published in the
The following definitions are provided to assist those persons who contemplate submitting information regarding the species being reviewed:
A.
B.
C.
Section 4(a)(1) of the Act establishes that we determine whether a species is endangered or threatened based on one or more of the five following factors:
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; or
E. Other natural or manmade factors affecting its continued existence. Section 4(a)(1) of the Act requires that our determination be made on the basis of the best scientific and commercial data available.
If we find that there is new information concerning any of the 25 species listed in Table 1 indicating a change in classification may be warranted, we may propose a new rule that could do one of the following: (a) Reclassify the species from endangered to threatened (downlist); (b) reclassify the species from threatened to endangered (uplist); or (c) remove the species from the List. If we determine that a change in classification is not warranted, then these species will remain on the List under their current status.
We request any new information concerning the status of the 25 species listed in Table 1. See “What information is considered in the review?” heading for specific criteria. Information submitted should be supported by documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources. Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home addresses from the supporting record, which we will honor to the extent allowable by law. There also may be circumstances in which we may withhold from the supporting record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will not consider anonymous comments, however. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
This document is published under the authority of the Endangered Species Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of availability.
The County of San Bernardino (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for a 10-year incidental take permit for one covered species pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of the endangered Delhi Sands flower-loving fly (
We are requesting comments on the permit application and on the preliminary determination that the proposed Plan qualifies as a “Low-effect” Habitat Conservation Plan, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. The basis for this determination is discussed in the Environmental Action Statement (EAS) and the associated Low Effect Screening Form, which are also available for public review.
Written comments should be received on or before May 22, 2006.
Comments should be addressed to the Field Supervisor, Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92011.
Ms. Karen Goebel, Assistant Field Supervisor, Carlsbad Fish and Wildlife Office (see
Individuals wishing copies of the application, proposed Plan, and EAS should immediately contact the Service by telephone at (760) 431-9440 or by letter to the Carlsbad Fish and Wildlife Office. Copies of the proposed Plan and EAS also are available for public inspection during regular business hours at the Carlsbad Fish and Wildlife Office (see
Section 9 of the Act and its implementing Federal regulations prohibit the take of animal species listed as endangered or threatened. Take is defined under the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). However, under section 10(a) of the Act, the Service may issue permits to authorize incidental take of listed species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species, respectively, are found in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32
The Applicant is seeking a permit for take of the Delhi Sands flower-loving fly during the life of the permit. This species is referred to as the “DSF” in the proposed Plan.
The Applicant proposes to relocate the current Valley Boulevard/Pepper Avenue intersection approximately 76 meters (250 feet) north. Pepper Avenue would be widened to six lanes in the segment between San Bernardino Avenue and Interstate 10. The improvement limits on Valley Boulevard are 246 meters (811 feet) west and 284 meters (938 feet) east of Pepper Avenue. Valley Boulevard would retain two through lanes in each direction with turn lanes at the intersection with Pepper Avenue. A signalized street connection approximately 152 meters (500 feet) west of Pepper Avenue would be developed to include a frontage road and cul-de-sac. An access road would be constructed to permit southbound Pepper Avenue traffic direct access to local business. We anticipate that all DSF would be lost within approximately 1.84 acres of DSF occupied habitat within the project footprint. The project site does not contain any other rare, threatened or endangered species or habitat. No critical habitat for any listed species occurs on the project site.
The Applicant proposes to mitigate the effects to the DSF associated with the covered activities by fully implementing the Plan. The purpose of the proposed Plan's conservation program is to promote the biological conservation of the DSF. The County proposes to mitigate impacts to the DSF either through acquisition and conservation of a 2.04-acre parcel adjacent to the proposed project or purchase of 5 acres of credit within the Vulcan Materials Inc. Colton Dunes Conservation Bank.
The Proposed Action consists of the issuance of an incidental take permit and implementation of the proposed Plan, which includes measures to mitigate impacts of the project on the DSF. Two alternatives to the taking of the listed species under the Proposed Action are considered in the proposed Plan. Under the No Action Alternative, no permit would be issued, and no construction would occur. Under the Modified Project Alternative, incidental take of DSF would be authorized, but the impacts would be reduced.
The Service has made a preliminary determination that approval of the proposed Plan qualifies as a categorical exclusion under NEPA, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1) and as a “low-effect” plan as defined by the Habitat Conservation Planning Handbook (November 1996). Determination of Low-effect Habitat Conservation Plans is based on the following three criteria: (1) Implementation of the proposed Plan would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the proposed Plan would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the proposed Plan, considered together with the impacts of other past, present and reasonably foreseeable similarly situated projects would not result, over time, in cumulative effects to environmental values or resources which would be considered significant.
Based upon this preliminary determination, we do not intend to prepare further NEPA documentation. We will consider public comments in making the final determination on whether to prepare such additional documentation.
This notice is provided pursuant to section 10(c) of the Act. We will evaluate the permit application, the proposed Plan, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, we will issue a permit to the County of San Bernardino for the incidental take of the Delhi Sands flower-loving fly from realignment of the intersection of Valley and Pepper avenues in the City of Colton, San Bernardino County, California.
Fish and Wildlife Service, Interior.
Notice.
Pursuant to section 4(c)(2)(A) of the Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531
To allow us adequate time to conduct this review, we must receive your information no later than June 20, 2006. However, we will continue to accept new information about any listed species at any time.
Submit information to the U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, Massachusetts 01035, to the attention of Ms. Mary Parkin. Information received in response to this notice and review will be available for public inspection, by appointment, during normal business hours, at the above address. Information may also be sent to
Ms. Mary Parkin at the above address or at 617-876-6173.
Under the Act, the Service maintains a list of endangered and threatened wildlife and plant species at 50 CFR 17.11 (for animals) and 17.12 (for plants). Section 4(c)(2)(A) of the Act requires that we conduct a review of listed species at least once every 5 years. Then, on the basis of such reviews under section 4(c)(2)(B), we determine whether or not any species should be removed from the list (delisted), or reclassified from endangered to threatened or from threatened to endangered. 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. Any change in Federal classification would require a separate rulemaking process. The regulations in 50 CFR 424.21 require that we publish a notice in the
To ensure that the 5-year review is complete and based on the best available scientific and commercial information, we are soliciting new information from the public, concerned governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of the purple bean, clubshell, northern red-bellied cooter, Roanoke logperch, swamp pink, northern riffleshell, flat-spired three-toothed land snail, Puritan tiger beetle, and dwarf wedgemussel.
The 5-year review considers the best scientific and commercial data and all new information that has become available since the listing determination or most recent status review. Categories of requested information include (A) Species biology, including but not limited to, population trends, distribution, abundance, demographics, and genetics; (B) habitat conditions, including but not limited to, amount, distribution, and suitability; (C) conservation measures that have been implemented that benefit the species; (D) threat status and trends; and (E) other new information, data, or corrections, including but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the list, and improved analytical methods.
If you wish to provide information for this 5-year review, you may submit your comments and materials to the Ms. Mary Parkin (see
This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
U.S. Fish and Wildlife Service, Interior.
Notice of availability; receipt of application.
Blair Warren (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an incidental take permit (TE-124123-0) pursuant to Section 10(a)(1)(B) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531
To ensure consideration, written comments must be received on or before June 20, 2006.
Persons wishing to review the application may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 4102, Albuquerque, New Mexico 87103. Persons wishing to review the EA/HCP may obtain a copy by contacting Clayton Napier, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-0057). Documents will be available for public inspection by written request, by appointment only, during normal business hours (8 a.m. to 4:30 p.m.) at the Service's Austin office. Written data or comments concerning the application and EA/HCP should be submitted to the Supervisor, U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758. Please refer to permit number TE-124123-0 when submitting comments. All comments received, including names and addresses, will become a part of the official administrative record and may be made available to the public.
Clayton Napier at U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, Texas 78758 (512/490-0057) or by e-mail,
The Applicant has applied to the Service for a Section 10(a)(1)(B) incidental take permit for a period of five years in order to authorize incidental take of the Houston toad.
Section 9 of the Act prohibits the “taking” of endangered species such as the Houston toad. However, the Service, under limited circumstances, may issue permits to take endangered wildlife species incidental to, and not the purpose of, otherwise lawful activities.
We provide this notice under section 10(c) of the Act, and its implementing regulations (50 CFR 17.22), the National Environmental Policy Act (42 U.S.C. 4371
This action will eliminate 1.43-acres of Houston toad habitat and result in indirect impacts within the lot. The Applicant proposes to compensate for incidental take of the Houston toad by providing $4,290.00 to the Houston Toad Conservation Fund at the National Fish and Wildlife Foundation for the specific purpose of land acquisition and management within Houston toad habitat.
Fish and Wildlife Service, Interior.
Notice of availability.
This notice announces the availability of the final Coachella Valley Association of Governments Habitat Conservation Plan and Natural Community Conservation Plan (Plan), final Implementing Agreement, and final Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for public review and comment. The Fish and Wildlife Service (Service) is considering the proposed action of issuing a 75-year incidental take permit, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973 as amended (ESA), for 27 species in response to receipt of an application from the Coachella Valley Association of Governments (CVAG), Coachella Valley Conservation Commission, County of Riverside, Riverside County Flood Control and Water Conservation District, Riverside County Parks and Open Space District, Riverside County Waste Management District, Coachella Valley Water District, Imperial Irrigation District, California Department of Transportation, California Department of Parks and Recreation, Coachella Valley Mountains Conservancy, and the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and Rancho Mirage (Applicants). The proposed permit would authorize take of individual members of animal species listed under the Federal Endangered Species Act of 1973, as amended (ESA). The permit is needed because take of species could occur during proposed urban development activities, rural infrastructure projects, and preserve management activities within a 1.1 million-acre planning area located in the Coachella Valley, California.
The Final Plan also incorporates a Public Use and Trails Plan which includes proposals that address non-motorized recreation activities on Federal and non-Federal lands in the Santa Rosa and San Jacinto Mountains. The Bureau of Land Management (BLM) is a Cooperating Agency in this planning process and will use this EIR/EIS to make decisions on BLM-administered public lands pertaining to trail use in the Santa Rosa and San Jacinto Mountains. These proposals constitute activity (implementation) level actions in furtherance of the
The 30-day waiting period will end on May 22, 2006. Written comments must be received on or before this date.
Comments should be sent to Mr. James Bartel, Field Supervisor, Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92011; facsimile (760) 431-9624.
(1) Jim Sullivan, Director of Environmental Resources, CVAG, 73710 Fred Waring Drive, Room 119, Palm Desert, CA 92260, (760) 346-1127; or, (2) Ms. Therese O'Rourke, Assistant Field Supervisor, 6010 Hidden Valley Road, Carlsbad, California 92011, (760) 431-9440.
Copies of the Plan, Implementation Agreement, and Final EIR/EIS are available for public review, by appointment, during regular business hours, at the Carlsbad Fish and Wildlife Office and at the CVAG office (see
The documents can also be viewed on the World Wide Web at
(1) Riverside County Planning Department: 4080 Lemon Street, 9th Floor Riverside, California 92502.
(2) Riverside County Planning: 82675 Hwy 111, Room 209, Indio, California 92201.
(3) U.S. Bureau of Land Management: 690 Garnet Avenue, North Palm Springs, California 92258.
(4) City of Palm Springs: 3200 E. Tahquitz Canyon Way, Palm Springs, California 92262.
(5) City of Cathedral City: 68-700 Avenida Lalo Guerrero, Cathedral City, California 92234.
(6) City of La Quinta: 78-495 Calle Tampico, La Quinta, California 92253.
(7) City of Rancho Mirage: 69825 Highway 111, Rancho Mirage, California 92270.
(8) City of Palm Desert: 73-510 Fred Waring Drive, Palm Desert, California 92260.
(9) City of Indio: 100 Civic Center Mall, Indio, California 92201.
(10) City of Indian Wells: 44950 El Dorado Drive, Indian Wells, California 92210.
(11) City of Coachella: 1515 Sixth Street, Coachella, California 92236.
(12) City of Desert Hot Springs: 65950 Pierson Boulevard, Desert Hot Springs, California 92240.
(13) Cathedral City Public Library: 33520 Date Palm Drive, Cathedral City, California 92234.
(14) Coachella Branch Library: 1538 7th Street, Coachella Valley, California 92260.
(15) Desert Hot Springs Public Library: 1691 West Drive, Desert Hot Springs, California 92240.
(16) Indio Public Library: 200 Civic Center Mall, Indio, California 92201.
(17) Lake Tamarisk Branch Library: Lake Tamarisk Drive, Desert Center, California 92239.
(18) La Quinta Public Library: 78080 Calle Estado, La Quinta, California 92253.
(19) Mecca-North Shore Branch Library: 65250 Cahuilla, Mecca, California 92254.
(20) Palm Springs City Library: 300 South Sunrise Way, Palm Springs, California 92262.
(21) Rancho Mirage Public Library: 42-520 Bob Hope Drive, Rancho Mirage, California 92270.
(22) Riverside County Library: Palm Desert Branch, 73-300 Fred Waring Drive Palm Desert, California 92260.
(23) Thousand Palms Library: 72-715 La Canada Way, Thousand Palms, California 92276.
Section 9 of the Federal ESA of 1973, as amended and Federal regulations prohibit the take of fish and wildlife species listed as endangered or threatened (16 U.S.C. 1538). The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532). Harm includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering [50 CFR 17.3(c)]. Under limited circumstances, the Service may issue permits to authorize incidental take of listed fish or wildlife;
Although take of listed plant species is not prohibited under the Federal ESA, and therefore cannot be authorized under an incidental take permit, plant species may be included on a permit in recognition of the conservation benefits provided to them under a habitat conservation plan. All species included on an incidental take permit would receive assurances under the Services “No Surprises” regulation 50 CFR 17.22(b)(5) and 17.32(b)(5).
The Service has received an application for an incidental take permit for implementation of the Plan. The application was prepared and submitted by the CVAG on behalf of all the Applicants: Riverside County; the cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, Rancho Mirage; California Department of Transportation, California Department of Parks and Recreation, Coachella Valley Association of Governments, Coachella Valley Conservation Commission, Coachella Valley Mountains Conservancy, Coachella Valley Water District, Imperial Irrigation District, Riverside County Flood Control and Water Conservation District, Riverside County Regional Parks and Open Space District, and Riverside County Waste Management Department. The CVAG prepared the Plan to satisfy the application requirements for a section 10(a)(1)(B) permit under the Federal ESA, of 1973, as amended, and a section 2835 permit under the California Natural Community Conservation Planning Act of 2002 (NCCPA). Thus, the Plan constitutes a Habitat Conservation Plan pursuant to the Federal ESA, and a Natural Community Conservation Plan pursuant to the California NCCPA.
The CVAG seeks a 75-year incidental take permit for covered activities within a proposed 1.1 million-acre planning area, located entirely in eastern Riverside County, California. CVAG has requested a permit for 27 species, 10 of which are currently listed as threatened or endangered under the Federal ESA. Of these 27 species, CVAG requests a permit and assurances for 22 animal species and assurances for 5 plant species.
Proposed covered species include 6 wildlife species currently listed as endangered under the Federal ESA [Desert pupfish (
If the proposed Plan is approved and the permit issued, take authorization of covered listed wildlife species would be effective at the time of permit issuance. Take of the currently non-listed covered wildlife species would be authorized concurrent with the species' listing under the Federal ESA, should they be listed during the duration of the permit.
The Plan is intended to be a comprehensive and multi-jurisdictional document, providing for regional species conservation and habitat planning, while allowing the prospective Permittees to better manage anticipated growth and development. The Plan also is intended to provide a coordinated process for permitting and mitigating the take of covered species as an alternative to the current project-by-project approach.
If the Plan is approved, the Local Permittees would review development applications for compliance with the terms of the Plan. Take authorization would be issued to these parties by the Local Permittees if the project is consistent with the Plan. As part of the standard development review process, projects would typically require separate environmental review under the California Environmental Quality Act and, in some cases, the National Environmental Policy Act. In addition, the permit will provide incidental take authorization for public projects, operations and maintenance activities, management and monitoring activities in the Plan area by Permittees.
An Implementing Entity, called the Coachella Valley Conservation Commission (CVCC), would be responsible for conducting broad conservation and management measures, such as acquiring and maintaining preserve land, restoring and enhancing habitat, tracking the success of the conservation strategy, and instituting any necessary changes. Projects conducted by the CVCC would be consistent with the Plan and receive coverage for take.
In order to comply with the requirements of the Federal ESA, California ESA, and the California NCCPA, the proposed Plan addresses a number of required elements, including: Species and habitat goals and objectives; evaluation of the effects of covered activities on covered species, including indirect and cumulative effects; a conservation strategy; a monitoring and adaptive management program; descriptions of changed circumstances and remedial measures; identification of funding sources; and an assessment of alternatives to take of listed species.
Covered Activities would include public and private development within the plan area that requires certain ministerial and discretionary actions by an Applicant subject to consistency with the Plan policies, regional transportation facilities, maintenance of and safety improvements on existing roads, the Circulation Elements of the Applicants, maintenance and construction of flood control facilities, and compatible uses in the reserve. The Plan makes a provision for the inclusion of special districts and other non-Applicant entities in the permit with a certificate of inclusion.
The Plan includes measures to avoid and minimize incidental take of the Covered Species, emphasizing project design modifications to protect both habitats and species' individuals. A monitoring and reporting plan would gauge the Plan's success based on achievement of biological goals and objectives and would ensure that conservation keeps pace with development. The Plan also includes a management program, including adaptive management, which allows for changes in the conservation program if the biological species objectives are not met, or new information becomes available to improve the efficacy of the Plan's conservation strategy.
The Plan identifies the proposed reserve system, which will be established from lands within 21 conservation areas that are either adjacent or linked by biological corridors. The acquisition program for the reserve system is anticipated to occur over the first 30 years of the life of the permit. When completed, the reserve system will include core habitat for Covered Species, essential ecological processes, and biological corridors and linkages to provide for the conservation of the proposed Covered Species.
The Public Use and Trails Plan element of the Plan provides for coordinated management of trails on public lands involving members of the public, local jurisdictions, and State and other Federal agencies.
On November 5, 2004, the Service published a notice in the
The Draft EIS/EIR considered five alternatives in addition to the proposed project described above including: An alternative that would not include the City of Palm Springs; an alternative that includes all existing local, State, and Federal agency land and private conservation land with additional management prescriptions; an alternative that protects core habitat, ecological processes, and biological corridors with less land than the proposed project alternative; an expanded conservation alternative; and a no project alternative.
The proposed project alternative without the City of Palm Springs would have remained the same as the proposed project alternative; however, implementation of the Plan would be altered. The permits would have not provided incidental take authorization for any of the Covered Species under the jurisdiction of the City of Palm Springs and the mitigation fee would not be collected on land subject to the jurisdiction of the City of Palm Springs. All existing conservation lands, except those belonging to the City of Palm Springs, would continue to be part of the Plan Reserve System.
The public lands alternative includes all local, State, and Federal land, and private conservation land, in the Plan Area. The local jurisdictions would contribute to the management of the existing conservation lands as mitigation. This alternative entails no land acquisition; only core habitat, essential ecological processes, and linkages that happen to be on existing public conservation lands or private conservation lands would be protected. As a result, sand transport, watershed, and other ecological processes would not be protected.
The core habitat with ecological processes alternative would protect core habitat for the species and natural communities included in the plan, as well as ecological processes necessary to sustain these habitats. This alternative creates new preserve areas in the Snow Creek area and at the Whitewater River delta at the northwest end of the Salton Sea. Based on comments in the ISA report, comments received from California Department of Fish and Game (CDFG) and the Service, and other information, this alternative was subsequently revised to develop the proposed project alternative.
The enhanced conservation alternative expanded on the public lands alternative by including all additional areas that were recommended for further consideration by the Service and CDFG. This alternative would result in less impact than the proposed project alternative and increased the number of acres to be conserved by approximately 10,200 acres. Much of the area anticipated for conservation under this alternative would cause significant land use conflicts and increased costs.
The No Project alternative entails no plan being developed and no permits issued. Individual projects would have to seek their own incidental take permits or avoid take by not developing portions of the project site that would result in take of a listed species. This alternative would preclude impacts to listed species from activities covered under the plan; however, conservation of species and habitats provided through mitigation and compensation under the existing regulatory framework could result in a pattern of conservation that is fragmented and managed in a piecemeal fashion.
Proposed permit issuance triggers the need for compliance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). Accordingly, a joint NEPA/CEQA document has been prepared. The Service is the Lead Agency responsible for compliance under NEPA and the BLM is a Cooperating Agency, and CVAG is the Lead Agency with responsibility for compliance with
The Service and CVAG invite the public to review the Final Plan, Final EIR/EIS, and Final Implementing Agreement during a 30-day waiting period [see
The Service will evaluate the application, associated documents, and comments submitted to them to prepare a Record of Decision. A permit decision will be made no sooner than 30 days after the publication of the Final EIR/EIS and completion of the Record of Decision.
This notice is provided pursuant to section 10(a) of the Federal ESA and Service regulations for implementing NEPA, as amended (40 CFR 1506.6). We provide this notice in order to allow the public, agencies, or other organizations to review these documents.
Fish and Wildlife Service, Interior.
Notice of intent.
This notice advises the public that the U.S. Fish and Wildlife Service (Service) intends to gather information necessary to prepare Comprehensive Conservation Plans (CCP) and Environmental Assessments (EA) for the following National Wildlife Refuges (NWR), Wildlife Management Area (WMA), and Wetland Management Districts (WMD): Seney NWR in the Upper Peninsula, Michigan and Kirtland's Warbler WMA in 8 counties in the northern Lower Peninsula, Michigan, Swan Lake NWR in Chariton County, Missouri, Leopold WMD with lands in 16 counties in southeastern Wisconsin, and St. Croix WMD with lands in 8 counties in western Wisconsin. The CCPs will describe how we intend to manage the refuges and districts for the next 15 years.
The Service is furnishing this notice in compliance with the National Wildlife Refuge System Administration Act of 1966, as amended (16 U.S.C. 668dd
Open house style meetings and possibly focus group meetings and workshops will be held during the scoping phase of the CCP development process to obtain additional suggestions and information on the scope of alternatives and impacts to be considered.
In addition, the Service is inviting comments on archeological, historic, and traditional cultural sites in accordance with the National Historic Preservation Act.
Special mailings, newspaper articles, internet postings, and other media announcements will inform people of the opportunities for written comments.
Comments for Seney NWR or Kirtland's Warbler WMA can be mailed to: Refuge Manager, Seney National Wildlife Refuge, 1674 Refuge Entrance Road, Seney, Michigan 49883.
Comments for Swan Lake NWR can be mailed to: Refuge Manager, Swan Lake National Wildlife Refuge, 16194 Swan Lake Avenue, Sumner, Missouri 64681.
Comments for Leopold WMD can be mailed to: District Manager, W10040 Cascade Mountain Road, Portage, Wisconsin 53901.
Comments for St. Croix WMD can be mailed to: District Manager, 1764 95th Street, New Richmond, Wisconsin 54017.
You may also find information on the CCP planning process and submit comments electronically on the planning Web site
Tracy Casselman, Seney NWR or Kirtland's Warbler WMA, at 906-586-9851 or John Guthrie, Swan Lake NWR, at 660-856-3323 or Steve Lenz, Leopold WMD, at 608-742-7100 or Chet McCarty, St. Croix WMD, at 715-246-7784.
The National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee
By Federal law, all lands within the National Wildlife Refuge System are to be managed in accordance with an approved CCP. The CCP guides management decisions and identifies refuge goals, long-range objectives, and strategies for achieving refuge purposes. The CCP will provide other agencies and the public with a clear understanding of the desired conditions for Refuge, Wildlife Management Area, and Wetland Management District lands and how the Service will implement management strategies.
The CCP planning process will consider many elements, including wildlife and habitat management, habitat protection and acquisition, wilderness preservation, public recreational activities and cultural resource preservation. Public input into this planning process is essential.
The Service will prepare an Environmental Assessment (EA) for each CCP in accordance with procedures for implementing NEPA found in the Departmental Manual 516 DM 6, Appendix 1.
Review of this project will be conducted in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
Bureau of Land Management, Interior.
Notice.
A 40-acre public parcel of land located east of Glasgow, Valley County, Montana, has been examined and found suitable for sale utilizing competitive sale procedures.
The lands will be segregated on the date of publication of this notice in the
Bureau of Land Management, Glasgow Field Station, P.O. Box 871, 605 2nd Avenue South, Room 206, Glasgow, Montana 59230, 406-228-3750.
Information regarding the competitive sale instructions, procedures, documents, maps, and materials to submit a bid can be obtained at the public reception desk at the above address from 7:30 a.m. to 4 p.m., Monday through Friday (except Federal holidays), or by contacting John Fahlgren, at 406-228-3757, at the Glasgow Field Station. For general information on BLM's public land sale procedures, refer to the following Web address:
The following described parcel of public land is proposed for sale:
Containing 40 acres, more or less in Valley County.
The parcel will be offered through competitive sale pursuant to 43 CFR 2711.3-1. Authority for the sale is sections 203 and section 209 of the Federal Land Policy and Management Act of October 21, 1976 (43 U.S.C. 1701, 1713, 1719). This parcel of public land, east of Glasgow, Montana, is being offered for sale, using both sealed bid and oral bid procedures, at not less than the appraised fair market value of $26,000. The land is not required for Federal purposes and was identified for disposal in the Judith-Valley-Phillips Resource Management Plan approved in October 1992. The disposal (sale) of the parcel would serve the public benefit by making lands available for community expansion and private economic development. As such, these lands meet the criteria for sale under 43 CFR 2710.0-3(a)(2) and (3).
The land is located one mile northwest of Glasgow, Montana, and has physical and legal access via U.S. Highway 2 and a well maintained county roadway, Jensen Trail. Jensen Trail cuts through the property on a north-south axis, bisecting the property. The parcel consists of a flat ridge top giving way to a south facing slope, which levels slightly at its southern border. The vegetation on the property consists mostly of native grasses and shrubs, and there are a few cottonwood trees on the property. There is no running surface water on the property; however, there are several small draws that are no doubt active during spring run-off. Home development is currently on the property's east, south, and northeast borders.
Both sealed bids and oral bids will be accepted. All sealed bids must be received at the BLM, Glasgow Field Station (address stated above), not later than 4:30 p.m., MST, on the day prior to the sale or September 13, 2006. The outside of bid envelopes must be clearly marked on the front lower left-hand corner with “BLM Land Sale MT, MTM-93473,” and the bid opening date. Bids must be for not less than the appraised market value of $26,000. Each sealed bid shall be accompanied by a certified check, money order, bank draft, or cashier's check made payable to the Bureau of Land Management, for not less than 10 (ten) percent of the amount bid. The bid envelope must also contain a statement showing the total amount bid and the name, mailing address, and phone number of the entity making the bid.
Oral bidding on the date of the sale will begin at 1 p.m. at the Glasgow Field Station office at the highest qualified sealed bidder's offer. The highest qualifying oral bidder shall submit payment by cash, personal check, bank draft, money order, or any combination for not less than one-fifth of the amount of the bid immediately following the close of the sale. The successful bidder, whether such bid is a sealed or oral bid, shall submit the remainder of the full bid price prior to the expiration of 180 days from the date of the sale. Failure to submit the full bid price prior to the 180th day shall result in forfeiture of the deposit.
The BLM, in its sole discretion, reserves the right to: (1) Reject any bid; (2) ask for supplemental bids in the case of identical bids; (3) make minor exceptions to procedures to resolve administrative or other conflicts; and (4) withdraw the property from sale or postpone the sale due to protests, appeals, litigation, administrative, or other reasons.
If not sold, the parcel described above in this notice may be identified for sale on a continuing basis, by sealed bid, until sold.
Federal law requires bidders to be U.S. citizens 18 years of age or older, a corporation subject to the laws of any state or of the United States; a state, state instrumentality, or political subdivision authorized to hold property, or an entity including, but not limited to, associations or partnerships legally capable of holding property or interests therein under the laws of the State of Montana.
For a period until June 5, 2006, interested parties may submit comments to the Glasgow Field Station, P.O. Box 871, 605 2nd Avenue South, Room 206, Glasgow, Montana 59230. Any comments are to be in letter format to be addressed and mailed to John Fahlgren, Assistant Field Manager, Glasgow Field Station. Facsimiles, telephone calls, and e-mails are unacceptable means of notification. Comments including names and street addresses of respondents will be available for public review at the Glasgow Field Station during regular business hours, except holidays. Individual respondents may request confidentiality. If you wish to withhold your name or address from public disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comments. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, will be made available for public inspection in their entirety.
Any adverse comments will be reviewed by the State Director, who may sustain, vacate, or modify this realty action and issue a final determination. In the absence of timely filed objections, this realty action will become the final determination of the Department of the Interior.
The publication of this notice of realty action shall segregate the public lands
A right-of-way thereon for ditches and canals constructed by authority of the United States, Act of August 30, 1890 (43 U.S.C. 945) and will be subject to valid existing rights and the following encumbrances of record:
The conveyance will be subject to valid existing rights and the following encumbrances of record:
1. Those rights for an access road which have been granted to Valley County by right-of-way MTM-58710 under the Federal Land Policy and Management Act of 1976; and
2. Those rights for an electrical powerline which have been granted to Valley Electric Cooperative, Inc., right-of-way MTM-60025 under the Federal Land Policy and Management Act of 1976.
No warranty of any kind shall be given or implied as to the potential use of the land offered for sale. In the event of a sale, the unreserved mineral interests will be conveyed simultaneously with the sale of the land. The unreserved mineral interests have no known mineral value. Acceptance of the sale offer will constitute an application for conveyance of those unreserved mineral interests pursuant to section 209 of the Federal Land Policy and Management Act of 1976. The purchaser will be required to pay a $50.00 non-refundable filing fee for conveyance of the available mineral interests with the final payment.
The purchaser/patentee, by accepting patent, agrees to indemnify, defend, and hold the United States harmless from any costs, damages, claims, causes of action, penalties, fines, liabilities, and judgments of any kind arising from the past, present, or future acts or omissions of the patentee, its employees, agents, contractors, or lessees, or a third party arising out of, or in connection with, the patentee's use and/or occupancy of the patented real property resulting in: (1) Violations of Federal, state, and local laws and regulations that are now, or in the future become, applicable to the real property; (2) judgments, claims, or demands of any kind assessed against the United States; (3) costs, expenses, or damages of any kind incurred by the United States; (4) releases or threatened releases of solid or hazardous waste(s) and/or hazardous substance(s), as defined by Federal or state environmental laws, off, on, into, or under land, property, and other interests of the United States; (5) other activities by which solids or hazardous substances or wastes, as defined by Federal and state environmental laws are generated, released, stored, used, or otherwise disposed of on the patented real property, and any cleanup response, remedial action, or other actions related in any manner to said solid or hazardous substances or wastes; or (6) natural resource damages as defined by Federal and State law. This covenant shall be construed as running with the patented real property and may be enforced by the United States in a court of competent jurisdiction.
Bureau of Land Management, Interior.
Notice of Realty Action.
Pursuant to the Recreation and Public Purposes Act, the Bureau of Land Management proposes to lease or convey to the City of Las Vegas, Nevada, 70 acres of public land within the City, for a public safety training center.
The Bureau of Land Management must receive, at the address noted below, the comments of interested parties on or before June 5, 2006.
Please mail your comments to the Las Vegas Field Manager, Bureau of Land Management, Las Vegas Field Office, 4701 N. Torrey Pines Drive, Las Vegas, Nevada 89130-2301.
Frederick Marcell, Acting Supervisor Realty Specialist, (702) 515-5164.
The following described public land in Las Vegas, Clark County, Nevada has been examined and found suitable for lease/conveyance for recreational or public purposes under the provisions of the Recreation and Public Purposes Act, as amended (43 U.S.C. 869
N-76692—The City of Las Vegas proposes to use the land for a public safety training center that will serve citizens in the northwest sector of the City, where much growth has occurred. The center will be used privately to train police and fire personnel in a controlled, safe environment.
The land is not required for any federal purpose. Lease/conveyance is consistent with current Bureau planning for this area and would be in the public interest. The lease/conveyance, when issued, will be subject to the provisions of the Recreation and Public Purposes Act and applicable regulations of the Secretary of the Interior, and will contain the following reservations to the United States:
1. A right-of-way thereon for ditches or canals constructed by the authority of the United States, Act of August 30, 1890 (43 U.S.C. 945).
2. All minerals shall be reserved to the United States, together with the right to prospect for, mine and remove such deposits from the same under applicable law and such regulations as the Secretary of the Interior may prescribe.
The lease/conveyance will be subject to:
1. All valid existing rights.
2. Those rights for public utility purposes which have been granted to Nevada Power Company by permit No's. N-54269, N-57525 and N-43546, Central Telephone by permit No. N-54269, Clark County by permit No's. N-55021, N-56893, N-60079, N-60903 and N-61323 under Title V of the Federal Land Policy and Management Act of October 21, 1976 (FLPMA).
Detailed information concerning this action is available for review in the office of the Bureau of Land Management, Las Vegas Field Office at the address listed above. On April 21, 2006, the above described land will be segregated from all other forms of appropriation under the public land laws, including the general mining laws, except for lease/conveyance under the Recreation and Public Purposes Act, leasing under the mineral leasing laws and disposals under the mineral material disposal laws.
Bureau of Land Management, Interior.
Notice of off-road vehicle (ORV), also referred to as off-highway vehicle (OHV), travel restriction to motorized use on public lands in the Elko Field Office, Spruce Mountain Area, Nevada Department of Wildlife Hunt Unit 105.
Pursuant to 43 Code of Federal Regulations 8341.2, effective on publication of this Notice; off-road vehicles (ORV) travel is restricted to existing roads and two-tracks (approximately 850 miles) on public lands on and in the vicinity of Spruce Mountain, south of Wells, Nevada. The public lands affected by this restriction are located in portions of T. 29 N., R. 64 E; T. 30 N., R. 63 thru 65 E.; and T. 31 thru 34 N., R. 62 thru 66 E., MDM, Elko County, Nevada. This notice also prohibits competitive events on public lands in the area. The purpose of this action is to protect important cultural resources and wildlife habitats.
Clinton R. Oke, Assistant Field Manager, Non Renewable Resources, Elko Field Office. 3900 E. Idaho Street, Elko, Nevada, 89801, telephone (775)-753-0200.
In 1985, the Wells and Elko Resource Management Plans (RMP) designated the majority of public lands managed by the BLM Elko Field Office as “open” to off-road vehicle use. Since that time, improvements to OHV and all-terrain vehicle design, capability, affordability and popularity have led to more numerous and widespread presence of these motorized vehicles. This increased use is creating adverse impacts to important cultural resources and wildlife habitat.
The BLM Elko Field Office is seeking input from interested publics, organizations, and agencies for a Travel Management Plan for the Spruce Mountain Area, NDOW Hunt Unit 105. This Travel Management Plan will also have input from the Northeastern Great Basin Resource Advisory Council (RAC). Any travel limitations recommended will be considered in the Resource Management Plan (RMP) revision process. Maps of the travel restricted area are available for review at the above address.
The purpose of the temporary travel restriction is to protect important cultural resources and wildlife habitat, and address imminent adverse impacts from ORV use off of existing roads and two-tracks.
This notice issued under the authority of 43 CFR 8341.2. Violations of this restriction are punishable by a fine not to exceed $1,000 and/or imprisonment not to exceed 12 months as provided.
Exemptions from this restriction will apply for BLM authorized permittees related to their ranching operations as described within the terms and conditions of their existing permits, official Nevada State and Elko County business and BLM law enforcement. The authorized officer may make other exemptions to the restrictions on a case-by-case basis.
Bureau of Land Management, Interior.
Notice of Interim Final Supplementary Rules for public lands within the Swasey Drive Planning Area, Redding Field Office, Redding, California.
The Bureau of Land Management (BLM) Redding Field Office is publishing interim final supplementary rules applicable to public lands within the Swasey Drive Planning Area, as identified in the Swasey Drive Area Implementation Plan. The interim final supplementary rules will govern activities such as target shooting, motor vehicle use, and camping on public lands managed by the Redding Field Office. These interim final supplementary rules are needed to protect recreation opportunities, public health and safety, and cultural and natural resources in accordance with the Swasey Drive Area Implementation Plan/Environmental Assessment and Decision Record (DR) of September 2004.
The interim final supplementary rules are effective April 21, 2006. We invite comments until June 20, 2006.
Mail or hand deliver all comments concerning the interim final supplementary rules to the Bureau of Land Management, Redding Field Office, 355 Hemsted Drive, Redding, CA 96002; or you may access the Federal eRulemaking Portal:
Copies of the Swasey Drive Area Implementation Plan and Decision Record can be obtained at the BLM Redding Field Office, 355 Hemsted Drive, Redding, CA 96002, (530) 224-2100.
William Kuntz, Outdoor Recreation Planner, Bureau of Land Management, Redding Field Office, 355 Hemsted Drive, Redding, CA 96002, phone (530) 224-2100 or by e-mail at
Written comments on these interim final supplementary rules should be specific, confined to issues pertinent to the interim final supplementary rules, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the rule that the comment is addressing. BLM need not consider or include in the Administrative Record for the final rule: (a) Comments that BLM receives after the close of the comment period (see
You may also access and comment on the interim final supplementary rules at the Federal eRulemaking Portal by following the instructions at that site (see
Comments, including names, street addresses, and other contact information of respondents, will be available for public review at the Redding Field Office, 355 Hemsted Drive, Redding, CA 96002, during regular business hours (7:45 a.m. to 3:45 p.m.), Monday through Friday, except Federal holidays. Individual respondents may request confidentiality. If you wish to request that BLM consider withholding your name, street address, and other contact information (such as Internet address, FAX, or phone number) from public review or from disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your comment. BLM will honor requests for confidentiality on a case-by-case basis to the extent allowed by law. BLM will make available for public inspection in their entirety all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses.
In the Redding Resource Management Plan and Record of Decision of June 1993, the area known as Swasey Drive was designated an Area of Critical Environmental Concern (ACEC). Because of this decision, BLM identified these lands for retention and decided to write a subsequent management plan for the area.
The Swasey Drive ACEC and surrounding planning area includes approximately 1,250 acres. It is used by researchers, hikers, mountain bikers, equestrians, campers, off-road vehicle users, and target shooters. Trails within this area are linked to the National Park Service's Whiskeytown National Recreation Area. Because of the intensive use of the area by the public, BLM implemented some restrictions in 1998 to limit off-road vehicle use and target shooting. These restrictions were designed to protect public health and safety and to protect sensitive cultural resources within the ACEC and the surrounding areas until BLM could complete a detailed management plan.
As a result of a growing population, the development of residential housing on private lands around the Swasey Drive area, and the increasing popularity of the area for non-motorized recreation activities, the human use of the area has increased. Target shooting in the area has also increased, as has illegal trash dumping and underage drinking. The combination of increased recreational use as well as increased levels of target shooting, trash dumping, and underage drinking has created a condition that places the public at risk.
In May 2001, BLM held an initial public scoping meeting for the development of the Swasey Drive Implementation Plan. The meeting was attended by a broad range of individuals, groups, tribes, and agencies. In 2004, the BLM completed the Swasey Drive Area Implementation Plan. As a result of the plan, the specific restrictions in the decision record are implemented in these interim final supplementary rules.
The purpose of the interim final supplementary rules is to protect the historic and prehistoric cultural resources and public health and safety. Also, the rules will help maintain the natural resources and recreation opportunities within the Swasey Drive ACEC and associated public lands. Restrictions on camping and nighttime use will curtail illegal trash dumping and underage drinking, which have been ongoing concerns for many years.
BLM provided for substantial public participation and coordination during the development of the Swasey Drive Implementation Plan and Environmental Assessment. Public participation included one public scoping meeting attended by 65 individuals. BLM received 29 formal responses (letters and e-mails) as a result of the scoping solicitation. The timing of this action is important due to the danger that long rifle target shooting poses for local residents and other users of the area. Numerous reports from local area residents have stated that bullets have been found lodged in the walls of their homes or in the area around their homes. As recreational use increases with a parallel increase in target shooting, the likelihood of an accident occurring rises dramatically. In 2001, BLM used a risk management process to determine the low, medium, high, and extremely high risk management levels of target shooting in this area. We determined that the risk of death caused by this activity could not be mitigated sufficiently over the long term with BLM's limited personnel and current regulations. In short, if these interim final rules are not issued, there is an increasing risk that a recreational visitor or local resident in the adjacent subdivision will be seriously injured or killed by a poorly aimed or skipping/ricocheting bullet. These issues were fully discussed in the scoping meeting. Therefore, due to the increased and increasing safety concerns, and the previous opportunities for public participation, BLM finds that promulgating these supplementary rules as proposed rules would be impracticable, unnecessary, and contrary to the public interest. As such, there is good cause to publish these supplementary rules in interim final form. Similar considerations of good cause support an immediate effective date,
The authorities for these interim final supplementary rules are 43 CFR 8360.0-7, 8364.1 and 8365.1-6.
These interim final supplementary rules are not a significant regulatory action and are not subject to review by the Office of Management and Budget under Executive Order 12866. These interim final supplementary rules will
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these interim final supplementary rules easier to understand, including answers to questions such as the following: (1) Are the requirements in the interim final supplementary rules clearly stated? (2) Do the interim final supplementary rules contain technical language or jargon that interferes with their clarity? (3) Does the format of the interim final supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity? (4) Would the interim final supplementary rules be easier to understand if they were divided into more (but shorter) sections? (5) Is the discussion of the interim final supplementary rules in the
Please send any comments you have on the clarity of the interim final supplementary rules to the address specified in the
BLM has prepared an Environmental Assessment (EA) and a Decision Record for the Swasey Drive Implementation Plan. Within the Plan/EA and subsequent DR, analysis was provided as a basis for the interim final supplementary rules. The Swasey Drive Implementation Plan/EA provided management alternatives, public participation, law enforcement logs, soil analyses, and projected firearm ammunition distances. The Plan and EA called for the restriction of firearms target shooting to the use of shotguns within the existing Swasey Drive target shooting area, and for this use to be phased out over four years, while reserving to the Redding Field Office Manager the authority to allow exceptions to this restriction during the phase-out period by issuing special recreation permits. The Plan, supported by the EA, also requires the use of biodegradable materials for targets. The Plan called for a prohibition of night use of motor vehicles within the area beyond the main developed trailhead parking area near Swasey Drive, and a requirement that campers have a special recreation permit. These interim final supplementary rules expressly implement these Plan elements, as included in the Decision Record on the Plan and fully considered in the EA supporting the Plan. The supplementary rules are designed to mitigate potential user-related issues discussed in the environmental assessment. Also, the Plan/EA informed the public that rules for use of the area would be developed to reduce user conflicts and protect important cultural and natural resources and values.
The interim final supplementary rules are designed to mitigate the specific issues addressed in the Plan/EA. BLM has found, therefore, that the interim final supplementary rules would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). The Plan/EA and DR are available for review in the BLM Administrative Record at the address specified in the
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. These interim final supplementary rules should have little economic effect on business, organizational, or governmental entities of whatever size. They merely would impose reasonable restrictions on certain recreational activities in the Swasey Drive Planning Area to protect cultural and natural resources and the environment, and human health and safety. Therefore, BLM has determined under the RFA that these interim final supplementary rules would not have a significant economic impact on a substantial number of small entities.
These interim final supplementary rules are not a “major rule” as defined at 5 U.S.C. 804(2). They would not result in an annual effect on the economy of $100 million or more, in a major increase in costs or prices, or in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. They would merely impose reasonable restrictions on certain recreational activities in the Swasey Drive Planning Area to protect natural resources and the environment, and human health and safety.
These interim final supplementary rules do not impose an unfunded mandate on state, local, or Tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year, nor do they have a significant or unique effect on small governments. They would merely impose reasonable restrictions on certain recreational activities in the Swasey Drive Planning Area to protect natural and cultural resources and the environment, and human health and safety. Tribal groups and Shasta County were involved in the development of the Swasey Drive Implementation Plan. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act at 2 U.S.C. 1532.
These interim final supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The interim final supplementary rules would have no effect on private lands or property. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require preparation of a takings assessment under this Executive Order.
These interim final supplementary rules would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The interim final supplementary rules would have no effect on state or local government, and specifically exempt state and local government law enforcement and emergency personnel and activities from the effect of the interim final supplementary rules. Shasta County was involved in the development of the underlying Swasey Drive Implementation Plan, which the interim final supplementary rules help implement. Therefore, in accordance with Executive Order 13132, BLM has determined that these interim final supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism assessment.
Under Executive Order 12988, the Office of the Solicitor determined that these interim final supplementary rules would not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.
In accordance with Executive Order 13175 we have found that these interim final supplementary rules do not include policies that have tribal implications. Policies that have tribal implications refer to regulations that have substantial direct effects on one or more Indian tribes, or the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Over one-half of the planning area is identified as an ACEC because of the presence of fragile historic and prehistoric resources of National Register of Historic Places level. Thus, a paramount consideration in the planning effort was archaeological site protection, conservation, research, and interpretation. We recognize that many of the cultural resources of the planning area are considered significant to local Wintu people, based on numerous interactions between them and BLM staff members. Several Wintu serve as local site stewards. The presence of burials at certain locations in the planning area correlates with spiritual locations significant in Wintu religion.
Tribal groups were invited to participate in the development of the Swasey Drive Implementation Plan. We contacted the Bureau of Indian Affairs and the following Tribal entities: Redding Rancheria; Wintu Cultural and Educational Council; and the Wintu Tribe and Toyon-Wintu Center. None of these entities commented on the plan.
The interim final supplementary rules are intended to help protect these cultural, historic, and prehistoric resources. Accordingly, under Executive Order 13175, we have found that these interim final supplementary rules for the planning area do not include policies that have tribal implications.
These interim final supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The principal author of these interim final supplementary rules is William Kuntz, Supervisory Outdoor Recreation Planner, Redding Field Office, Bureau of Land Management.
The State Director, California State Office, Bureau of Land Management, issues the following supplementary rules for the Swasey Drive Planning Area on an interim final basis.
a. “Firearm” means any device from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion, including but not limited to shotguns, rifles, pistols, starting pistols, flintlock rifles and muskets, and revolvers.
b. “Motorized vehicle” means any self-propelled device in, upon, or by which any person or property is or may be propelled, moved, or drawn, including but not limited to, cars, trucks, vans, motorcycles, motor-driven cycles, motorized scooters, motorized skateboards, and snowmobiles. “Motorized vehicle” does not include a self-propelled wheelchair, invalid tricycle, or motorized quadricycle when operated by a person who, by reason of physical disability, is otherwise unable to move about as a pedestrian.
c. “Public entity” means any county, city, public district, public agency, public authority, or public or municipal corporation; the Federal Government or any Federal department or agency; a state, or any state department or agency.
d. “Camping” means the act of occupying ground on which temporary shelters are erected.
a. Firearms target shooting is restricted to the use of shotguns within the existing Swasey Drive target shooting area (boundary is marked by signs). This type of target shooting with shotguns will be phased out over a four-year period beginning April 21, 2006. BLM signs will accurately depict the extent of the target area. During the phase-out period, the Redding Field Office Manager or his representative may authorize an exception to the restriction on target shooting with shotguns by issuing a special recreation permit
b. It is unlawful for any person, other than an employee of a public entity acting within the scope of that employment,
c. Camping is allowed by BLM special recreation permit issued only by the Redding Field Office Manager or his representative.
These supplementary rules apply to all public lands within the Swasey Drive Planning Area, as identified in the Swasey Drive Area Implementation Plan and Decision Record and described as follows:
Totaling approximately 1,250 acres.
These supplementary rules do not apply to the following activities: access by authorized emergency rescue vehicles, BLM operation and maintenance vehicles, and fire and law enforcement vehicles, appropriate access to mining claims by the claimant and to private property by the property owners, as authorized by laws or by the BLM Field Manager or the acting Field Manager; activities consistent with the Redding Resource Management Plan
Under Section 303(a) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)) and 43 CFR 8360.0-7, if you violate these supplementary rules on public lands within the boundaries established, you may be tried before a United States Magistrate and fined no more than $1,000 or imprisoned for no more than 12 months, or both. Such violations may also be subject to the enhanced fines provided for by 18 U.S.C. 3571.
Office of Surface Mining Reclamation and Enforcement, Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Surface Mining (OSM) is announcing its intention to renew its authority for the collection of information for noncoal reclamation, 30 CFR part 875.
Comments on the proposed information collection must be received by June 20, 2006, to be assured of consideration.
Comments may be mailed to John A. Trelease, Office of Surface Mining Reclamation and Enforcement, 1951 Constitution Ave., NW., Room 202-SIB, Washington, DC 20240. Comments may also be submitted electronically to
To request a copy of the information collection request, explanatory information and related forms, contact John A. Trelease, at (202) 208-2783 or at the e-mail address listed above.
The Office of Management and Budget (OMB) regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13), require that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. This notice identifies an information collection activity that OSM will submit to OMB for extension. This collection is contained in 30 CFR part 875, Noncoal reclamation.
OSM has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on reestimates of burden or respondents. OSM will request a 3-year term of approval for this information collection activity.
Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany OSM's submission of the information collection request to OMB.
This notice provides the public with 60 days in which to comment on the following information collection activity:
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on September 12, 2005, Guilford Pharmaceuticals, Inc., 6611 Tributary Street, Baltimore, MD 21224, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Cocaine (9041), a basic class of controlled substance listed in Schedules II.
The company plans to manufacture a cocaine derivative to be used in clinical research studies.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative, Liaison and Policy Section (ODL); or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, VA 22301; and must be filed no later than June 20, 2006.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in Schedule I or II and prior to issuing a regulation under 21 U.S.C. 952(a)(2)(B) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with 21 CFR 1301.34(a), this is notice that on August 29, 2005, Rhodes Technologies, 498 Washington Street, Coventry, Rhode Island 02816, made application to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in Schedule II:
The company plans to import narcotic raw materials in ancillary activities including process development and analytical studies.
Any manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such written comments or objections being sent via regular mail may be addressed, in quintuplicate, to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative, Liaison and Policy Section (ODL); or any being sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than May 22, 2006.
This procedure is to be conducted simultaneously with and independent of the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
By Notice dated November 18, 2005, and published in the
The company plans to manufacture in bulk, small quantities of the listed controlled substances as radiolabeled compounds.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) Dand determined that the registration of American Radiolabeled Chemicals, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated American Radiolabeled Chemicals, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated November 18, 2005, and published in the
The company plans to manufacture small quantities of a cocaine derivative for distribution to its customers for the purpose of research.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Chemic Laboratories, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Chemic Laboratories, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
By Notice dated November 18, 2005, and published in the
The company plans to produce the listed controlled substances in bulk to be used in the manufacturer of reagents and drug calibrator/controls for DEA exempt products.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Dade Behring Inc., to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Dade Behring Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated November 18, 2005, and published in the
The company plans to produce the listed controlled substances in bulk to be used in the manufacturer of reagents and drug calibrator/controls for DEA exempt products.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Dade Behring Inc., to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Dade Behring Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated November 18, 2005, and published in the
The company plans to manufacturer Phenylacetone to be used in the manufacturer of amphetamine for distribution to its customers. The bulk 2,5-dimethoxyamphetamine will be used for conversion into non-controlled substances.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of ISP, Freetown Fine Chemicals, Inc., to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated ISP, Freetown Fine Chemicals, Inc., to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Occupational Safety and Health Administration (OSHA), Department of Labor.
Notice of lawsuit; solicitation of information.
OSHA seeks information about potential objections to public release of sampling data.
Comments must be submitted by the following dates:
You may submit comments by any of the following methods:
Kevin Ropp, Director, OSHA Office of Communications, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-1999 or fax: (202) 693-1635.
This notice pertains to all employers that were subject to air sampling by the Occupational Safety and Health Administration (“OSHA”) from 1979 to June 1, 2005. On November 22, 2005, the Department was sued in the United States District Court for the District of New Jersey under the Freedom of Information Act (FOIA) to compel the disclosure of all air sampling data that OSHA collected nationwide from 1979 to June 1, 2005.
The FOIA request seeks information concerning all samples taken by OSHA from 1979 to June 1, 2005. Information requested for each sample includes the establishment name and address; the identity of the substances sample; the sample type (personal, bulk, area, wipe, etc.); the numerical results of the sample analysis; and other information. OSHA hereby solicits comments from affected employers in order to determine whether public release, in a form that identifies specific employers or workplaces, of sampling data that indicates chemical identities and the use or presence of particular chemicals or substances, would disclose confidential commercial or trade secret information.
U.S. National Commission on Libraries and Information Science (NCLIS).
Notice of meeting.
NCLIS Closed Meeting—May 2, 2006, 1:30 p.m.-5:30 p.m.
National Library of Medicine, Conference Room B, located in NIH Building 38, Room 2S04, 8600 Rockville Pike, Bethesda, Maryland 20894.
Closed meeting.
The U.S. National Commission on Libraries and Information Science is holding a closed meeting to review budget matters and future directions. Closing this meeting is in accordance with the exemption provided under Title 45, CFR 1703.202(a)(9).
Madeleine McCain, Director of Operations, U.S. National Commission on Libraries and Information Science, 1800 M Street, NW., Suite 350 North Tower, Washington, DC 20036, e-mail
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the Arts Advisory Panel (Literature/Translation Fellowships application review) to the National Council on the Arts will be held on May 25, 2006 from 9 a.m. to 6:30 p.m. in Room 714 at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
A portion of this meeting, from 3:30 p.m. to 4:15 p.m., will be open to the public for policy discussion. The remainder of the meeting, from 9 a.m. to 3:30 p.m. and from 4:15 p.m. to 6:30 p.m., will be closed.
Closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 26, 2006, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Further information with reference to this meeting can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506, or call 202-682-5691.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that a meeting of the National Council on the Arts will be held by teleconference on May 17, 2006 from 2 p.m.-2:30 p.m. (ending time is approximate) from the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC 20506.
This meeting will be open to the public on a call in basis. After introductory remarks by Chairman Gioia, there will be a discussion and voice vote on the NEA Jazz Masters Fellowships and NEA National Heritage Fellowships categories. There will be discussion of other business items as necessary, followed by concluding remarks by the Chairman.
If, in the course of the open session discussion, it becomes necessary for the Council to discuss non-public commercial or financial information of intrinsic value, the Council will go into closed session in accordance with the determination of the Chairman of February 26, 2006, pursuant to subsection (c)(4) of the Government in the Sunshine Act, 5 U.S.C. 552b. Additionally, discussion concerning purely personal information about individuals, submitted with grant applications, such as personal biographical and salary data or medical information, may be conducted by the Council in closed session in accordance with subsection (c)(6) of 5 U.S.C. 552b.
Any interested persons may call in and listen to the Council discussions and reviews that are open to the public. Please contact Ed Bishop at 202-682-5625 if you are interested in attending the teleconference. If you need special accommodations due to a disability, please contact the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, 202/682-5532, TTY-TDD 202/682-5429, at least seven (7) days prior to the meeting.
Further information with reference to this meeting can be obtained from the Office of Communications, National Endowment for the Arts, Washington, DC 20506, at 202/682-5570.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463), as amended), the National Science Foundation announces the following meeting:
Day 1: Directorate Activities; Subcommittee Meetings.
Day 2: Subcommittee Reports; Directorate Activities.
Day 3: Plans and Activities.
Energy Nuclear Operations, Inc. (Entergy) has submitted an application for renewal of Facility Operating License No. DPR-28 for an additional 20 years of operation at the Vermont Yankee Nuclear Power Station (VYNPS). VYNPS is located in the town of Vernon, Vermont, in Windham County on the west shore of the Connecticut River immediately upstream of the Vernon Hydroelectric Station.
The operating license for VYNPS expires on March 21, 2012. The application for renewal, dated January 25, 2006, as supplemented by letter dated March 15, 2006, was submitted pursuant to Title 10 of the
In accordance with 10 CFR 51.53(c) and 10 CFR 54.23, Entergy submitted the ER as part of the application. The ER was prepared pursuant to 10 CFR Part 51 and is publicly available at the NRC Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, or from the NRC's Agencywide Documents Access and Management System (ADAMS). The ADAMS Public Electronic Reading Room is accessible at
This notice advises the public that the NRC intends to gather the information necessary to prepare a plant-specific supplement to the Commission's “Generic Environmental Impact Statement (GEIS) for License Renewal of Nuclear Plants,” (NUREG-1437) related to the review of the application for renewal of the VYNPS operating license for an additional 20 years. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative energy sources. The NRC is required by 10 CFR 51.95 to prepare a supplement to the GEIS in connection with the renewal of an operating license. This notice is being published in accordance with NEPA and the NRC's regulations found in 10 CFR Part 51.
The NRC will first conduct a scoping process for the supplement to the GEIS and, as soon as practicable thereafter, will prepare a draft supplement to the GEIS for public comment. Participation in the scoping process by members of the public and local, State, Tribal, and Federal government agencies is encouraged. The scoping process for the supplement to the GEIS will be used to accomplish the following:
a. Define the proposed action which is to be the subject of the supplement to the GEIS.
b. Determine the scope of the supplement to the GEIS and identify the significant issues to be analyzed in depth.
c. Identify and eliminate from detailed study those issues that are peripheral or that are not significant.
d. Identify any environmental assessments and other ElSs that are being or will be prepared that are related to, but are not part of, the scope of the supplement to the GEIS being considered.
e. Identify other environmental review and consultation requirements related to the proposed action.
f. Indicate the relationship between the timing of the preparation of the environmental analyses and the Commission's tentative planning and decision-making schedule.
g. Identify any cooperating agencies and, as appropriate, allocate assignments for preparation and schedules for completing the supplement to the GEIS to the NRC and any cooperating agencies.
h. Describe how the supplement to the GEIS will be prepared, and include any contractor assistance to be used.
The NRC invites the following entities to participate in scoping:
a. The applicant, Energy Nuclear Operations, Inc.
b. Any Federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved, or that is authorized to develop and enforce relevant environmental standards.
c. Affected State and local government agencies, including those authorized to develop and enforce relevant environmental standards.
d. Any affected Indian tribe.
e. Any person who requests or has requested an opportunity to participate in the scoping process.
f. Any person who has petitioned or intends to petition for leave to intervene.
In accordance with 10 CFR 51.26, the scoping process for an EIS may include a public scoping meeting to help identify significant issues related to a proposed activity and to determine the scope of issues to be addressed in an EIS. The NRC has decided to hold public meetings for the VYNPS license renewal supplement to the GEIS. The scoping meetings will be held at the Latchis Theatre, 50 Main Street, Brattleboro, Vermont 05301, on Wednesday, June 7, 2006. There will be two sessions to accommodate interested parties. The first session will convene at 1:30 p.m. and will continue until 4:30 p.m., as necessary. The second session will convene at 7 p.m. with a repeat of the overview portions of the meeting and will continue until 10 p.m., as necessary. Both meetings will be transcribed and will include: (1) An overview by the NRC staff of the NEPA environmental review process, the proposed scope of the supplement to the GEIS, and the proposed review schedule; and (2) the opportunity for interested government agencies, organizations, and individuals to submit comments or suggestions on the environmental issues or the proposed scope of the supplement to the GEIS. Additionally, the NRC staff will host informal discussions one hour prior to the start of each session at the same location. No formal comments on the proposed scope of the supplement to the GEIS will be accepted during the informal discussions. To be considered, comments must be provided either at the transcribed public meetings or in writing, as discussed below. Persons may register to attend or present oral comments at the meetings on the scope of the NEPA review by contacting the NRC Environmental Project Manager, Mr. Richard L. Emch, Jr., by telephone at 1-800-368-5642, extension 1590, or by e-mail to the NRC at
In addition to the environmental scoping meeting described above, the NRC will hold an informal open house at the Quality Inn & Suites, 1380 Putney Road, Brattleboro, Vermont 05301, on Tuesday, June 6, 2006, from 2 p.m. to 8 p.m., as necessary. At the open house, NRC staff will be available to provide information about the environmental review process for license renewal of nuclear plants. During the open house, members of the public will have the opportunity to provide formal comments on the proposed scope of the supplement to the GEIS either verbally or in writing to a transcriptionist. Comments provided to the transcriptionist will be considered in the same manner as comments provided during the scoping meetings described above. No formal comments on the proposed scope of the supplement to the GEIS will be accepted at the open house during informal discussions.
Members of the public may send written comments on the environmental scope of the VYNPS license renewal review to: Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, Mailstop T-6D59, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-0001, and should cite the publication date and page number of this
Participation in the scoping process for the supplement to the GEIS does not
At the conclusion of the scoping process, the NRC will prepare a concise summary of the determination and conclusions reached, including the significant issues identified, and will send a copy of the summary to each participant in the scoping process. The summary will also be available for inspection in ADAMS at
Information about the proposed action, the supplement to the GEIS, and the scoping process may be obtained from Mr. Emch at the aforementioned telephone number or e-mail address.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of availability.
Notice is hereby given that the staff of the Nuclear Regulatory Commission (NRC) has prepared a model Application related to changes to the Diesel Fuel Oil Testing Programs. The changes relocate references to specific American Society for Testing and Materials (ASTM) standards for fuel oil testing to licensee-controlled documents and adds alternate criteria to the “clear and bright” acceptance test for new fuel oil. The NRC staff has also prepared a model safety evaluation (SE) and no significant hazards consideration (NSHC) determination relating to this matter. The purpose of these models is to permit the NRC to efficiently process amendments that propose to adopt the associated changes into plant-specific technical specifications (TS). Licensees of nuclear power reactors to which the models apply could request amendments confirming the applicability of the SE and NSHC determination to their reactors.
The NRC staff issued a
Peter C. Hearn, Mail Stop: O12H2, Division of Inspection and Regional Support, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-1189.
Regulatory Issue Summary 2000-06, “Consolidated Line Item Improvement Process for Adopting Standard Technical Specification Changes for Power Reactors,” was issued on March 20, 2000. The CLIIP includes an opportunity for the public to comment on proposed changes to operating licenses, including the technical specifications (TS), after a preliminary assessment by the NRC staff and a finding that the change will likely be offered for adoption by licensees. The CLIIP directs the NRC staff to evaluate any comments received for a proposed generic change to operating licenses and to either reconsider the change or to proceed with announcing the availability of the change for proposed adoption by licensees. Those licensees opting to apply for the subject change to operating licenses are responsible for reviewing the NRC staff's evaluation, referencing the applicable technical justifications, and providing any necessary plant-specific information. Each amendment application made in response to the notice of availability will be processed and noticed in accordance with applicable rules and NRC procedures. This notice involves changes to the Diesel Fuel Oil Testing Programs.
This proposal to modify technical specification requirements by the adoption of TSTF-374 is applicable to all licensees of Combustion Engineering, Babcock & Wilcox, Westinghouse Pressurized Water Reactors, and General Electric Boiling Water Reactors who have adopted or will adopt in conjunction with the change, technical specification requirements for a Bases control program consistent with the TS Bases Control Program described in Section 5.5 of the STS. Licensees that have not adopted requirements for a Bases control program by converting to the improved STS or by other means, are requested to include the requirements for a Bases control program consistent with the STS in their application for the change. The need for a Bases control program stems from the need for adequate regulatory control of some key elements of the proposal that are contained in the Bases upon adoption of TSTF-374. The staff is requesting that the Bases changes be included with the proposed license amendments consistent with the Bases in TSTF-374. To ensure that the overall change, including the Bases, includes appropriate regulatory controls, the staff plans to condition the issuance of each license amendment on the licensee's incorporation of the changes into the Bases document and on requiring the licensee to control the changes in accordance with the Bases Control Program.
To efficiently process the incoming license amendment applications, the NRC staff requests that each license applying for the changes addressed in TSTF-374 use the CLIIP to submit an application that adheres to the following model. Any deviations from the model application should be explained in the licensee's submittal.
The CLIIP does not prevent licensees from requesting an alternate approach or proposing changes other than those proposed in TSTF-374. Variations from the approach recommended in this notice may, however, require additional
The NRC staff's model SE and model application may be examined, and/or copied for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records are accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Library component on the NRC Web site, (the Electronic Reading Room).
The NRC staff received no responses following the notice published February 22, 2006 (71 FRN 9179), soliciting comments on the model SE and NSHC determination related to the TSTF-374 changes. The NRC staff finds that the previously published models remain appropriate references and has chosen not to republish the model SE and model NSHC determination in this notice. As described in the model application prepared by the NRC staff, licensees may reference in their plant-specific applications to adopt the TSTF-374 changes, the model SE, NSHC determination, and environmental assessment previously published in the
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice
In accordance with the paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and budget (OMB) a request for review of a revised information collection. RI 25-7, Martial Status Certification Survey, is used to determine whether windows, widowers, and former spouses receiving survivor annuities from OPM have remarried before reaching age 55 and, thus, are no longer eligible for benefits.
Approximately 2,500 RI 25-7 forms are completed annually. The form takes approximately 15 minutes to complete. The annual estimated burden in 625 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Brenda Aguilar, OPM Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for review of a revised information collection. RI 38-107, Verification of Who is Getting Payments, is designed for use when OPM, for any reason, must verify that the entitled person is indeed receiving the monies payable. Failure to collect this information would cause OPM to pay monies absent the assurance of a correct payee.
We estimate 25,400 RI 38-107 forms are completed annually. Each form takes approximately 10 minutes to complete. The annual estimated burden is 4,234 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Service, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3349, Washington, DC 20415-3540; and Rachel Potter/Brenda Aguilar, OPM Desk Officer, Office of Information & Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for review of a revised information collection. RI 38-117, Rollover Election, is used to collect information from each payee affected by a change in the tax code (Pub. L. 107-16) so that OPM can make payment in accordance with the wishes of the payee. RI 38-118, Rollover information, explains the election. RI 37-22, Special Tax Notice Regarding Rollovers, provides more detailed information.
Approximately 1,500 RI 38-117 forms will be completed annually. We estimate it takes approximately 30 minutes to complete the form. The annual burden is 750 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Service, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3349, Washington, DC 20415-3540; and Rachel Potter/Brenda Aguilar, OPM Desk Officer, Office of Information & Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for review of a currently approved information collection. RI 20-120, Request for Change to Unreduced Annuity, designed to collect information OPM needs to comply with the wishes of the retired Federal employee whose marriage has ended. This form will provide an organized way for the retiree to give us everything at one time.
We estimate we will process 5,000 RI 20-120's annually. This form takes an average of 30 minutes per response to complete. The annual burden is estimated to be 2,500 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 30 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Service, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3349, Washington, DC 20415-3540; and Rachel Potter/Brenda Aguilar, OPM Desk Officer, Office of Information & Regulatory Affairs, Office of Management and Budget, New Executive Office Building, NW., Room 10235, Washington, DC 20503.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget (OMB) a request for review of an information collection. RI 25-41, Initial Certification of Full-Time School Attendance, is used to determine whether a child is unmarried and a full-time student in a recognized school. OPM must determine this in order to pay survivor annuity benefits to children who are age 18 or older.
Comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the Office of Personnel Management, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Approximately 1,200 RI 25-41 forms are completed annually. It takes approximately 90 minutes to complete the form. The annual burden is 1,800 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, FAX (202) 418-3251 or via e-mail to
Comments on this proposal should be received within 60 calendar days from the date of this publication.
Send or deliver comments to—Pamela S. Israel, Chief, Operations Support Group, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3349, Washington, DC 20415-3540.
In accordance with the requirement of section 3506 (c)(2)(A) of the Paperwork Reduction Act of 1995 which provides opportunity for public comment on new or revised data collections, the Railroad Retirement Board will publish periodic summaries of proposed data collections.
When the Railroad Retirement Board (RRB) determines that an overpayment of Railroad Retirement Act (RRA) or Railroad Unemployment Insurance Act (RUIA) benefits has occurred, it initiates prompt action to notify the annuitant of the overpayment and to recover the money owed the RRB. To effect payment of a debt by credit card, the RRB currently utilizes Form G-421f, Repayment by Credit Card.
The RRB proposes no changes to Form G-421f. One form is completed by each respondent. Completion is voluntary. RRB procedures pertaining to benefit overpayment determinations and the recovery of such benefits are prescribed in 20 CFR parts 255 and 340.
The estimate of annual respondent burden is as follows:
Securities and Exchange Commission (“Commission”).
Notice of application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 12(d)(1)(A) and (B) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from section 17(a) of the Act.
The order would permit certain registered open-end management investment companies to acquire shares of other registered open-end management investment companies outside the same group of investment companies.
Frank Russell Investment Company (the “Trust”), Frank Russell Investment Management Company (“FRIMCo”) and Russell Fund Distributors (the “Distributor”).
The application was filed on February 21, 2003, and amended on April 3, 2006.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 12, 2006, and should be accompanied by proof of service on applicants, in the form of an affidavit, or for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants, 909 A Street, Tacoma, WA 98402.
John Yoder, Senior Counsel, at (202) 551-6878, or Nadya Roytblat, Assistant Director, 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 Public Reference Desk, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington DC 20549-0102, (telephone (202) 551-5850).
1. The Trust is an open-end management investment company registered under the Act that is comprised of 34 separate series (each, a “Fund”, and together, the “Funds”). FRIMCo, a Washington corporation, is registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”) and serves as investment adviser to the Funds.
2. Applicants request relief to permit registered open-end management investment companies that are not part of the same “group of investment companies,” as that term is defined in section 12(d)(1)(G)(ii) of the Act, as the Trust (each, a “Fund of Funds”), to
1. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring shares of an investment company if the securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, any principal underwriter, and any broker or dealer from selling shares of the investment company 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 generally.
2. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Applicants seek an exemption under section 12(d)(1)(J) to permit a Fund of Funds to acquire shares of the Funds and the Funds to sell their shares to the Fund of Funds beyond the limits set forth in section 12(d)(1)(A) of that Act and the Funds, any principal underwriter for a Fund, and any broker or dealer, to sell shares of the Funds to the Funds of Funds in excess of the limits in section 12(d)(1)(B) of the Act.
3. Applicants state that the proposed arrangement will adequately address the policy concerns underlying sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees, and overly complex fund structures. Accordingly, applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
4. Applicants state that the proposed arrangement will not result in undue influence by a Fund of Funds or its affiliates over the Funds. To limit the influence that a Fund of Funds may have over a Fund, applicants propose a condition prohibiting a Fund of Funds' Advisory Group (as defined below) and a Fund of Funds' Subadvisory Group (as defined below) from controlling a Fund within the meaning of section 2(a)(9) of the Act. To limit further the potential for undue influence over the Funds, applicants propose conditions 2 through 7, stated below, to preclude a Fund of Funds and its affiliated entities from taking advantage of a Fund with respect to transactions between the entities and to ensure the transactions will be on an arm's length basis. A Fund of Funds' Advisory Group is any Fund of Funds Adviser, any person controlling, controlled by, or under common control with a Fund of Funds Adviser, and any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act that is advised by a Fund of Funds Adviser or any person controlling, controlled by, or under common control with a Fund of Funds Adviser. A Fund of Funds' Subadvisory Group is any Fund of Funds Subadvisor, any person controlling, controlled by, or under common control with a Fund of Funds Subadvisor, and any investment company or issuer that would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act (or portion of such investment company or issuer) advised by the Fund of Funds Subadvisor or any person controlling, controlled by, or under common control with the Funds of Funds Subadvisor.
5. As an additional assurance that a Fund of Funds understands the implications of an investment by the Fund of Funds under the requested order, each Fund of Funds and Fund will execute a Participation Agreement (prior to an investment in the shares of the Fund in excess of the limits of section 12(d)(1)(A) of the Act) stating that their boards of directors or trustees (“Boards”) and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. Applicants note that a Fund may choose to reject an investment from the Fund of Funds.
6. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. Applicants state that the Board of the Fund of Funds, including a majority of the directors or trustees who are not “interested persons,” as such term is defined in section 2(a)(19) of the Act (“Disinterested Directors”), will find that the investment advisory fees charged under any investment advisory agreements are based on services provided that will be in addition to, rather than duplicative of, services provided under the investment advisory agreement(s) of any Fund in which the Fund of Funds may invest. In addition, among other things, a Fund of Funds Adviser will waive fees otherwise payable to it by a Fund of Funds in an amount at least equal to any compensation received by the Fund of Funds Adviser, or an affiliated person of the Fund of Funds Adviser, from the Funds in connection with the investment by the Fund of Funds in the Fund. Applicants also state that any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds set forth in NASD Conduct Rule 2830.
7. Applicants state that the proposed arrangement will not create an overly complex fund structure. Applicants note a Fund will be prohibited from acquiring securities of any 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), except to the extent permitted by an exemptive order that allows the Fund to purchase shares of an affiliated money market fund for short-term cash management purposes.
1. Section 17(a) of the Act generally prohibits sales or purchases of securities between a registered investment company and any affiliated person of the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote by the other person.
2. Applicants state that a Fund of Funds and a Fund might become affiliated persons if the Fund of Funds acquires 5% or more of the Fund's outstanding voting securities. In light of this possible affiliation, section 17(a) could prevent a Fund from selling shares to and redeeming shares from the Fund of Funds.
3. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act. Section 6(c) of the Act permits the Commission to exempt any class of persons or transactions from any provisions of the Act if such 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.
4. Applicants submit that the proposed transactions satisfy the standards for relief under sections 17(b) and 6(c) of the Act. Applicants state that the terms of the transactions are fair and reasonable and do not involve overreaching. Applicants note that the consideration paid for the sale and redemption of shares of the Funds will be based on the net asset values of the Funds. Applicants state that the proposed transactions will be consistent with the policies of each Fund of Funds as set forth in each Fund of Funds' registration statement, the policies of each Fund, and with the general purposes of the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The members of a Fund of Funds' Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of a Fund of Funds' Subadvisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Fund of Funds' Advisory Group or the Fund of Funds' Subadvisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its shares of the Fund in the same proportion as the vote of all other holders of the Fund's shares. This condition does not apply to the Fund of Funds' Subadvisory Group with respect to a Fund for which the Fund of Funds Subadvisor or a person controlling, controlled by, or under common control with the Fund of Funds Subadvisor acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Fund of Funds or Fund of Funds Advisor, Fund of Funds Subadvisor, promoter, or principal underwriter for a Fund of Funds, or any person controlling, controlled by or under common control with any of those entities (“Fund of Funds Affiliate”) will cause any existing or potential investment by the Fund of Funds in shares of a Fund to influence the terms of any services or transactions between the Fund of Funds or a Fund of Funds Affiliate and the Fund or the investment adviser(s), promoter or principal underwriter of a Fund, or any person controlling, controlled by, or under common control with any of those entities (“Fund Affiliate”).
3. The Board of a Fund of Funds, including a majority of the Disinterested Directors, will adopt procedures reasonably designed to assure that the Fund of Funds Adviser and any Fund of Funds Subadvisor are conducting the investment program of the Fund of Funds without taking into account any consideration received by the Fund of Funds or a Fund of Funds Affiliate from a Fund or a Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, the Board of the Fund, including a majority of the trustees who are not “interested persons,” as such term is defined in section 2(a)(19) of the Act (“Disinterested Trustees”), will determine that any consideration paid by the Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (a) Is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (b) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (c) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s) or any person controlling, controlled by, or under common control with such investment adviser(s).
5. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security during the existence of an underwriting or selling syndicate in which a principal underwriter is an officer, director, member of an advisory board, Fund of Funds Adviser, Fund of Funds Subadvisor, or employee of the Fund of Funds, or a person of which any such officer, director, member of an advisory board, Fund of Funds Adviser, Fund of Funds Subadvisor or employee is an affiliated person (“Underwriting Affiliate” except that any person whose relationship to a Fund is covered by section 10(f) of the Act is not an Underwriting Affiliate). An offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate is an “Affiliated Underwriting.”
6. The Board of a Fund, including a majority of the Disinterested Trustees, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in shares of the Fund. The Board shall consider, among other things, (i) whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount
7. The Fund shall maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and shall maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase from an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of a Fund exceeds the limit in section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
8. Before investing in shares of a Fund in excess of the limits in section 12(d)(1)(A), each Fund of Funds and Fund will execute a Participation Agreement stating, without limitation, that their Boards and their investment advisers understand the terms and conditions of the order and agree to fulfill their responsibilities under the order. At the time of its investment in shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Fund of the investment. At such time, the Fund of Funds will also transmit to the Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Fund and the Fund of Funds will maintain and preserve a copy of the order, the agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
9. Prior to approving any advisory contract under section 15 of the Act, the Board of each Fund of Funds, including a majority of the Disinterested Directors, will find that the advisory fees charged under such advisory contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Fund of Funds may invest. These findings and their basis will be recorded fully in the minute books of the appropriate Fund of Funds.
10. A Fund of Funds Adviser will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b-1 under the Act) received from a Fund by the Fund of Funds Adviser, or an affiliated person of the Fund of Funds Adviser, other than any advisory fees paid to the Fund of Funds Adviser or its affiliated person by the Fund, in connection with the investment by the Fund of Funds in the Fund. Any Fund of Funds Subadvisor will waive fees otherwise payable to the Fund of Funds Subadvisor, directly or indirectly, by the Fund of Funds in an amount at least equal to any compensation received from a Fund by the Fund of Funds Subadvisor, or an affiliated person of the Fund of Funds Subadvisor, other than any advisory fees paid to the Fund of Funds Subadvisor or its affiliated person by the Fund, in connection with the investment by the Fund of Funds in the Fund made at the direction of the Fund of Funds Subadvisor. In the event that the Fund of Funds Subadvisor waives fees, the benefit of the waiver will be passed through to the Fund of Funds.
11. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund will acquire securities of any 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 to the extent permitted by an exemptive order that allows the Fund to purchase shares of an affiliated money market fund for short-term cash management purposes.
13. The Boards of any Fund of Funds and of any Fund will satisfy the fund governance standards as defined in rule 0-1(a)(7) under the Act by the later of (i) the compliance date for the rule or (ii) the date on which the Fund of Funds and the Fund execute a Participation Agreement.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The NYSE is proposing to list and trade notes issued by Barclays Bank PLC (“Barclays”) linked to the performance of the Dow Jones-AIG Commodity Index Total Return (“Index”) (“DJ-AIG Notes” or “Notes”). The text of the proposed rule change is available on the NYSE's Web site (
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 IV below. The
The Exchange believes that the Notes will conform to the initial listing standards for equity securities under Section 703.19, as Barclays is an affiliate of Barclays PLC,
The Notes are a series of medium-term debt securities of Barclays that provide for a cash payment at maturity or upon earlier exchange at the holder's option, based on the performance of the Index, subject to the adjustments described below. The principal amount of each Note is expected to be $50. The Notes will trade on the Exchange's equity trading floor, and the Exchange's existing equity trading rules will apply to trading the Notes. The Notes will not have a minimum principal amount that will be repaid and, accordingly, payment on the Notes prior to or at maturity may be less than the original issue price of the Notes. In fact, the value of the Index must increase for the investor to receive at least the $50 principal amount per Note at maturity or upon exchange or redemption. If the value of the Index decreases or does not increase sufficiently to offset the investor fee (described below), the investor will receive less, and possibly significantly less, than the $50 principal amount per Note. In addition, holders of the Notes will not receive any interest payments from the Notes. The Notes are expected to have a term of 10 to 30 years. The Notes are not callable.
Holders who have not previously redeemed their Notes will receive a cash payment at maturity equal to the principal amount of their Notes times the index factor on the Final Valuation Date (as defined below) minus the investor fee on the Final Valuation Date. The “index factor” on any given day will be equal to the closing value of the Index on that day divided by the initial index level. The “initial index level” is the closing value of the Index on the date of issuance of the Notes (the “Trade Date”), and the “final index level” is the closing value of the Index on the Final Valuation Date. The investor fee is equal to 0.75% per year times the principal amount of a holder's Notes times the index factor, calculated on a daily basis in the following manner: The investor fee on the Trade Date will equal zero. On each subsequent calendar day until maturity or early redemption, the investor fee will increase by an amount equal to 0.75% times the principal amount of a holder's Notes times the index factor on that day (or, if such day is not a trading day, the index factor on the immediately preceding trading day) divided by 365. The investor fee is the only fee holders will be charged in connection with their ownership of the Notes.
Prior to maturity, holders may redeem their Notes on any Redemption Date (defined below) during the term of the Notes, provided that they present at least 50,000 Notes for redemption, or they act through a broker or other financial intermediaries (such as a bank or other financial institution not required to register as a broker-dealer to engage in securities transactions) that are willing to bundle their Notes for redemption with other investors' Notes. If a holder chooses to redeem his Notes, the holder will receive a cash payment on the applicable Redemption Date equal to the principal amount of his Notes times the index factor on the applicable Valuation Date (defined below) minus the investor fee on the applicable Valuation Date. A “Redemption Date” is the third business day following a Valuation Date (other than the Final Valuation Date (defined below)). A “Valuation Date” is each Thursday from the first Thursday after issuance of the Notes until the last Thursday before maturity of the Notes (the “Final Valuation Date”) inclusive (or, if such date is not a trading day
Any of the following will be a market disruption event: (i) A material limitation, suspension or disruption in the trading of any Index component that results in a failure by the trading facility on which the relevant contract is traded to report a daily contract reference price (
If a Valuation Date is postponed by five trading days, that fifth day will nevertheless be the date on which the value of the Index will be determined by the calculation agent. In such an event, the calculation agent will make a good faith estimate in its sole discretion of the value of the Index.
To redeem their Notes, holders must instruct their broker or other person through whom they hold their Notes to take the following steps:
• Deliver a notice of redemption to Barclays via e-mail by no later than 11 a.m. Eastern time (“ET”) on the business day prior to the applicable Valuation Date. If Barclays receives such notice by the time specified in the preceding sentence, it will respond by sending the holder a confinnation of redemption;
• Deliver the signed confirmation of redemption to Barclays via facsimile in the specified form by 4 p.m. ET on the same day; Barclays must acknowledge receipt in order for the confirmation to be effective; and
• Transfer such holder's book-entry interest in its Notes to the trustee. The Bank of New York, on Barclays' behalf at or prior to 10 a.m. ET
If holders elect to redeem their Notes, Barclays may request that Barclays Capital Inc. (a broker-dealer) purchase the Notes for the cash amount that would otherwise have been payable by Barclays upon redemption. In this case, Barclays will remain obligated to redeem the Notes if Barclays Capital Inc. fails to purchase the Notes. Any Notes purchased by Barclays Capital Inc. may remain outstanding.
If an event of default occurs and the maturity of the Notes is accelerated, Barclays will pay the default amount in respect of the principal of the Notes at maturity. The default amount for the Notes on any day will be an amount, determined by the calculation agent in its sole discretion, equal to the cost of having a qualified financial institution, of the kind and selected as described below, expressly assume all Barclays' payment and other obligations with respect to the Notes as of that day and as if no default or acceleration had occurred, or to undertake other obligations providing substantially equivalent economic value to the holders of the Notes with respect to the Notes. That cost will equal:
• The lowest amount that a qualified financial institution would charge to effect this assumption or undertaking, plus
• The reasonable expenses, including reasonable attorneys' fees, incurred by the holders of the Notes in preparing any documentation necessary for this assumption or undertaking.
The Indicative Value will not reflect price changes to the price of an underlying commodity between the close of trading of the futures contract at the relevant futures exchange and the close of trading of the Notes on the NYSE at 4 p.m. ET.
While the market for futures trading for each of the Index commodities is open, the Indicative Value can be expected to closely approximate the redemption value of the Notes.
The Exchange states that the Index was introduced in July 1998 to provide a unique, diversified, economically rational and liquid benchmark for commodities as an asset class. The Index is designed to be a diversified benchmark for commodities as an asset class and reflects the returns that are potentially available through an unleveraged investment in the futures contracts on physical commodities comprising the Index
Dow Jones and AlGI have established the Dow Jones-AIG Commodity Index Oversight Committee (the “Oversight Committee”) to assist them in connection with the operation of the Index. The Exchange states that the Oversight Committee includes prominent members of the financial and academic communities selected by AlG-FP and meets annually to consider any changes to be made to the Index for the coming year.
The Exchange states that a number of commodities have been selected that are believed to be sufficiently significant to the world economy to merit consideration for inclusion in the Index and which are the subject of a qualifying related futures contract. With the exception of several metals contracts (aluminum, lead, tin, nickel and zinc) that trade on the LME, each of the potential commodities is the subject of a futures contract that trades on a U.S. exchange. The 23 potential commodities currently considered for inclusion in the Index are aluminum, cocoa, coffee, copper, corn, cotton, crude oil, gold, heating oil, lead, cattle, hogs, natural gas, nickel, platinum, silver, soybeans, soybean oil, sugar, tin, unleaded gasoline,
A futures contract known as a Designated Contract is selected for each commodity. With the exception of several LME contracts, where the Oversight Committee believes that there exists more than one futures contract with sufficient liquidity to be chosen as a Designated Contract for a commodity, the Oversight Committee selects the futures contract that is traded in North America and denominated in dollars. If more than one such contract exists, the Oversight Committee selects the most actively traded contract. Data concerning this Designated Contract will be used to calculate the Index. The termination or replacement of a futures contract on an established exchange occurs infrequently; if a Designated Contract were to be terminated or replaced, a comparable futures contract would be selected, if available, to replace that Designated Contract. The Designated Contracts for the commodities included in the Index for 2005 were as follows:
For the purposes of applying the diversification rules discussed above and below, the commodities considered for inclusion in the Index are assigned to “Commodity Groups.”
Commodities included in 2006 are:
The relative weightings of the component commodities included in the Index are determined annually according to both liquidity and dollar adjusted production data in
The Index is designed to provide diversified exposure to commodities as an asset class. To ensure that no single
• No related group of commodities designated as a “Commodity Group” (
• No single commodity may constitute more than 15% of the Index.
• No single commodity, together with its derivatives (
• No single commodity that is in the Index may constitute less than 2% of the Index.
Following the annual re-weighting and rebalancing of the Index in January, the percentage of any single commodity or group of commodities at any time prior to the next re-weighting or rebalancing will fluctuate and may exceed or be less than the percentages set forth above.
Following application of the diversification rules discussed above, CIPs are incorporated into the Index by calculating the new unit weights for each Index commodity. Near the beginning of each new calendar year (the “CIM Determination Date”), the CIPs, along with the settlement prices on that date for Designated Contracts included in the Index, are used to determine a Commodity Index Multiplier (“CIM”) for each Index commodity. This CIM is used to achieve the percentage weightings of the Index commodities, in dollar terms, indicated by their respective CIPs. After the CIMs are calculated, they remain fixed throughout the year. As a result, the observed price percentage of each Index commodity will float throughout the year, until the CIMs are reset the following year based on new CIPs.
The Index is composed of futures contracts on physical commodities. Unlike equities, which typically entitle the holder to a continuing stake in a corporation, commodity futures contracts normally specify a certain date for the delivery of the underlying physical commodity. In order to avoid delivering the underlying physical commodities and to maintain exposure to the underlying physical commodities, periodically futures contracts on physical commodities specifying delivery on a nearby date must be sold and futures contracts on physical commodities that have not yet reached the delivery period must be purchased. The rollover for each contract occurs over a period of five DJ-AIG Business Days each month according to a pre-determined schedule. This process is known as “rolling” a futures position. The Index is a “rolling index.”
The Index is calculated by Dow Jones by applying the impact of the changes to the futures prices of commodities included in the Index (based on the commodities' relative weightings). Once the CIMs are determined as discussed above, the calculation of the Index is a mathematical process whereby the CIMs for the Index commodities are multiplied by the daily settlement prices in U.S. dollars for the applicable Designated Contracts. These products are then summed. During the rollover period, the sum includes both nearby and deferred contracts weighted according to the specified roll percentage. The percentage change in this sum from the prior day is then applied to the prior Index value. Finally, the value of one day's interest is added, calculated using the most recent (lagged by one day) 91-Day U.S. Treasury Bill Auction High Rate to arrive at the current Index value. Dow Jones disseminates the Index value at least every 15 seconds (assuming the Index value has changed within such fifteen-second interval) from 8 a.m. to 3 p.m. ET, and publishes a daily Index value at approximately 4 p.m. ET on each DJ-AIG Business Day on its Web site at
Since its inception, the Index has experienced significant fluctuations. Any historical upward or downward trend in the value of the Index during any period shown below is not an indication that the value of the Index is more or less likely to increase or decrease at any time during the term of the Notes. The historical Index levels do not give an indication of future performance of the Index. There can be no assurance that the future performance of the Index or the Index commodities will result in holders of the Notes receiving a positive return on their investment. For purposes of determining the average index performance, the initial index level will be the closing level of the Index on the initial valuation date.
The Index was launched on July 14, 1998. The Exchange states that all data relating to the period prior to the launch of the Index is an historical estimate by the index sponsors using available data as to how the Index may have performed in the pre-launch period based upon the percentage weightings in effect in 1998. The Exchange states that such data does not represent actual performance and should not be interpreted as an indication of actual performance.
Accordingly, the following table illustrates:
(i) On a hypothetical basis, how the Index would have performed from December 3I, 1991 to December 31, 1997 based on the selection criteria and methodology described above; and
(ii) On an actual basis, how the Index has performed from December 31, 1998 onwards.
If AIG-FP and Dow Jones discontinue publication of the Index and they or any other person or entity publishes a substitute index that the calculation agent determines is comparable to the Index and approves as a successor index, then the calculation agent will determine the value of the Index and the amount payable at maturity or upon redemption by reference to such successor index.
If the calculation agent determines that the Index, the Index components, or the method of calculating the Index has
The Exchange states that all determinations and adjustments to be made by the calculation agent with respect to the value of the Index and the amount payable at maturity or upon redemption or otherwise relating to the value of the Index may be made by the calculation agent in its sole discretion.
Continued Listing Criteria. The Exchange prohibits the initial and/or continued listing of any security that is not in compliance with Rule IOA-3 under the Act.
The Exchange will delist the Notes:
• If, (i) following the initial twelve month period from the date of commencement of trading of the Notes, the Notes have more than 60 days remaining until maturity and there are fewer than 50 beneficial holders of the Notes for 30 or more consecutive trading days; (ii) if fewer than 50,000 Notes remain issued and outstanding; or (iii) if the market value of all outstanding Notes is less than $1,000,000;
• If the Index value ceases to be calculated or available during the time the Notes trade on the Exchange on at least a 15 second basis through one or more major market data vendors;
• If, during the time the Notes trade on the Exchange, the Indicative Value ceases to be available on a 15 second delayed basis; or
• If such other event shall occur or condition exists which in the opinion of the Exchange makes further dealings on the Exchange inadvisable.
Additionally, the Exchange will file a proposed rule change pursuant to Rule 19b-4 under the Act
• Dow Jones and AIG-FP substantially change either the Index component selection methodology or the weighting methodology;
• If a new component is added to the Index (or pricing information is used for a new or existing component) that constitutes more than 10% of the weight of the Index with whose principal trading market the Exchange does not have a comprehensive surveillance sharing agreement;
• If a successor or substitute index is used in connection with the Notes. The filing will address, among other things the listing and trading characteristics of the successor or substitute index and the Exchange's surveillance procedures applicable thereto.
1.
2.
As a result of application of NYSE Rule 1300B(b), the specialist in the Notes, the specialist's member organization and other specified persons will be prohibited under paragraph (m) of NYSE Rule 105 Guidelines from acting as market maker or functioning in any capacity involving market-making responsibilities in the Index components, the commodities underlying the Index components, or options, futures or options on futures on the Index, or any other derivatives (collectively, “derivative instruments”) based on the Index or based on any Index component or any physical commodity underlying an Index component. If the member organization acting as specialist in the Notes is entitled to an exemption under NYSE Rule 98 from paragraph (m) of NYSE Rule 105 Guidelines, then that member organization could act in a market making capacity in the Index components, the commodities underlying the Index components, or derivative instruments based on the Index or based on any Index component or commodity underlying an Index component, other than as a specialist in the Notes themselves, in another market center.
Under NYSE Rule 1301B(a), the member organization acting as specialist in the Notes (1) will be obligated to conduct all trading in the Notes in its specialist account, (subject only to the ability to have one or more investment accounts, all of which must be reported to the Exchange), (2) will be required to file with the Exchange and keep current a list identifying all accounts for trading in the Index components or the physical commodities underlying the Index components, or derivative instruments based on the Index or based on the Index components or the physical commodities underlying the Index components, which the member organization acting as specialist may have or over which it may exercise investment discretion, and (3) will be prohibited from trading in the Index components or the physical commodities underlying the Index components, or derivative instruments based on the Index or based on the Index components or the physical commodities underlying the Index components, in an account in which a member organization acting as specialist, controls trading activities which have not been reported to the Exchange as required by NYSE Rule 1301B.
Under NYSE Rule 1301B(b), the member organization acting as specialist
Under NYSE Rule 1301B(c), in connection with trading the Index components or the physical commodities underlying the Index components, or derivative instruments based on the Index or based on the Index components or the physical commodities underlying the Index components, the specialist could not use any material nonpublic information received from any person associated with a member or employee of such person regarding trading by such person or employee in the Index components or the physical commodities underlying the Index components, or derivative instruments based on the Index or based on the Index components or the physical commodities underlying the Index components.
3.
With regard to the Index components, the Exchange can obtain market surveillance information with respect to transactions occurring on the LME, including customer identity information, pursuant to a memorandum of understanding with the LME. The Exchange also has access to transaction information, including customer identity information with respect to all contracts traded on the NYMEX and COMEX pursuant to the Exchange's information sharing agreement with NYMEX. All of the other trading venues on which current Index components are traded, namely CBOT, CSCE and CME, are members of the Intermarket Surveillance Group, and the Exchange therefore has access to all relevant trading information with respect to those contracts without any further action being required on the part of the Exchange. All these surveillance arrangements constitute comprehensive surveillance sharing arrangements.
Telephone conference between Kristie Diemer, Attorney, Division, Commission, and John Carey, Assistant General Counsel, Exchange, on April 10, 2006.
The memorandum will discuss the special characteristics and risks of trading this type of security. Specifically, the memorandum, among other things, will discuss what the Notes are, how the Notes are redeemed, applicable Exchange rules, dissemination of information regarding the Index value and the Indicative Value, trading information, and applicable suitability rules.
The memorandum will also notify members and member organizations about the procedures for redemptions of Notes and that Notes are not individually redeemable but are redeemable only in aggregations of at least 50,000 Notes.
The memorandum will also reference the fact that there is no regulated source of last sale information regarding physical commodities and that the SEC has no jurisdiction over the trading of physical commodities or the futures contracts on which the value of the Notes is based, and that the CFTC has no regulatory jurisdiction over the trading of certain foreign based futures contracts. The memorandum will also discuss other exemptive or no-action relief under the Act provided by the Commission staff.
The NYSE believes that the proposed rule change is consistent with the requirements of Section 6(b)(5),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
The Commission is considering granting accelerated approval of the proposed rule change at the end of a 15-day comment period.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Exchange Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Notes and Exchange Commission, 100 F Street, NE, Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Selective Service System.
Notice.
The form described below has been submitted to the Office of Management and Budget (OMB) for extension of clearance in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35):
Copies of the above identified form can be obtained upon written request to the Selective Service System, Reports Clearance Officer, Arlington, Virginia 22209-2425.
Written comments and recommendations for the proposed extension of clearance of the form should be sent within 30 days of publication of this notice to the Selective Service System, Reports Clearance Officer, Arlington, Virginia, 22209-2425.
A copy of the comments should be sent to the Office of Information and Regulatory Affairs, Attention: Desk Officer, Selective Service System, Office of Management and Budget, New Executive Office Building, Room 3235, Washington, DC 20435.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA-1637-DR), dated April 13, 2006.
Submit completed loan applications to: U.S. Small Business Administration, National Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Suite 6050, Washington, DC 20416.
Notice is hereby given that as a result of the President's major disaster declaration on April 13, 2006, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 10450 C and for economic injury is 10451 0.
Social Security Administration (SSA).
Notice of teleconference.
May 11, 2006—2 p.m. to 4 p.m. Eastern Daylight Savings Time. Ticket To Work and Work Incentives Advisory Panel Conference Call.
The interested public is invited to listen to the teleconference by calling the phone number listed above. Public testimony will not be taken.
• Mail addressed to the Social Security Administration, Ticket To Work and Work Incentives Advisory Panel Staff, 400 Virginia Avenue, SW., Suite 700, Washington, DC 20024.
• Telephone contact with Tinya White-Taylor at (202) 358-6420.
• Fax at (202) 358-6440.
• E-mail to
Federal Aviation Administration, DOT.
Notice of availability of proposed Advisory Circular (AC) 120-XX, and request for comments.
This notice announces the availability of and requests comments on a proposed advisory circular (AC) which sets forth an acceptable means, but not the only means, of demonstrating compliance with the provisions of the airworthiness standards for transport category airplanes related to damage tolerance inspections for repairs. This proposed AC complements revisions to the airworthiness standards that are being proposed by a separate notice. This notice is necessary to give all interested persons an opportunity to present their views on the proposed AC.
Comments must be received on or before June 20, 2006.
Send all comments on this proposed AC to: Federal Aviation Administration, Attention: Greg Schneider, Airframe/Cabin Safety Branch, ANM-115, FAA, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, WA 98055-4056. Comments may be inspected at the above address between 7:30 a.m. and 4 p.m. weekdays, except Federal holidays.
Kenna Sinclair, Transport Standards Staff, at the address above, telephone (425) 227-1556.
Interested persons are invited to comment on the proposed AC by submitting such written data, views, or arguments, as they may desire. Commenters should identify AC 120-XX and submit comments, in duplicate, to the address specified above. All communications received on or before the closing date for comments will be considered by the Transport Standards Staff before issuing the final AC. The proposed AC can be found and downloaded from the Internet at
This proposed AC would provide guidance material for design approval holders and operators for developing and incorporating damage tolerance inspections and procedures (DTIP). The proposed AC would support compliance with Title 14 Code of Federal Regulations (14 CFR) 121.370a and 14 CFR 129.16, the Aging Airplane Safety Final Rule (AASFR), with respect to repairs. For compliance, operators would need to demonstrate that new and existing repairs would have an evaluation and DTIP or other procedures implemented, if needed. The proposed AC would be applicable to repairs that affect fatigue critical structure. The AASFR also requires operators to incorporate DTIP for alterations that affect fatigue critical structure. The Aviation Rulemaking Advisory Committee (ARAC) Airworthiness Assurance Working Group (AAWG) is currently developing guidance for developing DTIP for such alterations. It is anticipated that this guidance will be incorporated into this AC. Upon completion of this work, the
The proposed AC supports compliance with the part 25 revisions proposed in Notice No.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of intent.
The FHWA is issuing this notice to advise the public that an environmental impact statement (EIS) will be prepared for the proposed 3,400-foot (1.0 km) extension of North Hillside Road from its current terminus northward to U.S. Route 44 in Tolland County, Connecticut.
Bradley D. Keazer, Division Administrator, Federal Highway Administration, 628-2 Hebron Avenue, Suite 303, Glastonbury, Connecticut 06033, telephone: (860) 659-6703, ext. 3009; or Richard A. Miller, Esq., Director of Environmental Policy, University of Connecticut, 31 LeDoyt Road U-3055, Storrs, Connecticut, 06269-3055, telephone: (860) 486-8741.
The FHWA, in cooperation with the University of Connecticut (UConn), will prepare an environmental impact statement (EIS) for the proposed extension off North Hillside Road from its current terminus northward to U.S. Route 44 in the town of Mansfield, Connecticut.
The proposed action will construct a road to provide an alternate entrance to the University and to relieve traffic on U.S. Route 44, Route 195, and Hunting Lodge Road. The new road is also intended to facilitate the development of UConn-related academic and research buildings, student housing, and recreational facilities on parcels of land adjacent to the Storrs campus, also known as the “North Campus.”
The extension of North Hillside Road is considered necessary to improve circulation within the campus, to reduce traffic on the local roadway network, and to facilitate development of the North Campus. Alternatives under consideration include, but are not limited to: (1) Taking no action; (2) alternative project locations, including off-site locations; and (3) various roadway alignments within the proposed project area.
Letters describing the proposed action and soliciting comments will be sent to appropriate Federal, State, and local agencies, and to private organizations and citizens who have previously expressed or are known to have an interest in this proposal. A public scoping meeting and a public hearing will be held. Public notice will be given of the time and place of the scoping meeting and public hearing. The draft EIS will be available for public and agency review and comment prior to the public hearing.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to either the FHWA or UConn at the addresses provided above.
23 CFR part 771.
Southern California Regional Rail Authority (SCRRA) has agreed to grant temporary overhead trackage rights to Union Pacific Railroad Company (UP) over SCRRA's rail line between Los Angeles, CA (milepost 0.90), and the City of Industry, CA (milepost 15.00), a distance of 14.1 miles.
The transaction was scheduled to be consummated on April 10, 2006, and the temporary trackage rights are intended to expire on or about April 30, 2006. The purpose of the temporary trackage rights is to allow UP to bridge its train service while its main lines are out of service due to programmed track, roadbed, and structural maintenance.
As a condition to this exemption, any employee affected by the acquisition of the temporary trackage rights will be protected by the conditions imposed in
This notice is filed under 49 CFR 1180.2(d)(8). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34860, 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 Gabriel S. Meyer, Assistant General Attorney, 1400 Douglas Street, STOP 1580, Omaha, NE 68179.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Indiana Boxcar Corporation (INBC),
The transaction was expected to be consummated on April 1, 2006.
INBC states that: (1) The properties presently owned, operated, or managed and the properties to be owned, operated, or managed by INBC do not physically connect; (2) there are no plans to acquire additional rail lines for the purpose of making a connection; and (3) the carriers are all Class III carriers. Therefore, the transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34845, must be filed with the Surface Transportation Board, 1925 K Street, NW., Washington, DC 20423-0001. In addition, a copy of all pleadings must be served on John D. Heffner, 1920 N Street, NW., Suite 800, Washington, DC 20036.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
(b) The Panel shall advise the President and the Secretary of Education (Secretary) consistent with this order on means to implement effectively the policy set forth in section 1, including with respect to the conduct, evaluation, and effective use of the results of research relating to proven-effective and evidence-based mathematics instruction.
(i) no more than 20 members from among individuals not employed by the Federal Government, appointed by the Secretary for such terms as the Secretary may specify at the time of appointment; and
(ii) no more than 10 members from among officers and employees of Federal agencies, designated by the Secretary after consultation with the heads of the agencies concerned.
(b) From among the members appointed under paragraph(3)(a)(i) of this order, the Secretary shall designate a Chair of the Panel.
(c) Subject to the direction of the Secretary, the Chair of the Panel shall convene and preside at meetings of the Panel, determine its agenda, direct its work and, as appropriate to deal with particular subject matters, establish and direct the work of subgroups of the Panel that shall consist exclusively of members of the Panel.
(a) the critical skills and skill progressions for students to acquire competence in algebra and readiness for higher levels of mathematics;
(b) the role and appropriate design of standards and assessment in promoting mathematical competence;
(c) the processes by which students of various abilities and backgrounds learn mathematics;
(d) instructional practices, programs, and materials that are effective for improving mathematics learning;
(e) the training, selection, placement, and professional development of teachers of mathematics in order to enhance students' learning of mathematics;
(f) the role and appropriate design of systems for delivering instruction in mathematics that combine the different elements of learning processes, curricula, instruction, teacher training and support, and standards, assessments, and accountability;
(g) needs for research in support of mathematics education;
(h) ideas for strengthening capabilities to teach children and youth basic mathematics, geometry, algebra, and calculus and other mathematical disciplines;
(i) such other matters relating to mathematics education as the Panel deems appropriate; and
(j) such other matters relating to mathematics education as the Secretary may require.
(b) The Department shall provide such administrative support and funding for the Panel as the Secretary determines appropriate. To the extent permitted by law, and where practicable, agencies shall, upon request by the Secretary, provide assistance to the Panel.
(c) The Panel shall obtain information and advice as appropriate in the course of its work from:
(i) officers or employees of Federal agencies, unless otherwise directed by the head of the agency concerned;
(ii) State, local, territorial, and tribal officials;
(iii) experts on matters relating to the policy set forth in section 1;
(iv) parents and teachers; and
(v) such other individuals as the Panel deems appropriate or as the Secretary may direct.
(d) Members of the Panel who are not officers or employees of the United States shall serve without compensation and may receive travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701-5707), consistent with the availability of funds.
(e) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the “Act”), may apply to the administration of any portion of this order, any functions of the President under that Act, except that of reporting to the Congress, shall be performed by the Secretary in accordance with the guidelines issued by the Administrator of General Services.
(f) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable by any party at law or in equity against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule requires that all providers and suppliers (other than physicians or practitioners who have elected to “opt-out” of the Medicare program) complete an enrollment form and submit specific information to us. This final rule also requires that all providers and suppliers periodically update and certify the accuracy of their enrollment information to receive and maintain billing privileges in the Medicare program. In addition, this final rule implements provisions in the statute that require us to ensure that all Medicare providers and suppliers are qualified to provide the appropriate health care services. These statutory provisions include requirements meant to protect beneficiaries and the Medicare Trust Funds by preventing unqualified, fraudulent, or excluded providers and suppliers from providing items or services to Medicare beneficiaries or billing the Medicare program or its beneficiaries.
Michael C. Collett, (410) 786-6121.
This
The Medicare program, title XVIII of the Social Security Act (the Act), is the primary payer of health care costs for 43 million enrolled beneficiaries. Under section 1802 of the Act, a beneficiary may obtain health services from any institution, agency, or person qualified to participate in the Medicare program. Qualifications to participate are specified in statute and in regulations. (See, for example, sections 1814, 1815, 1819, 1833, 1834, 1842, 1861, 1866, and 1891 of the Act; and 42 CFR Chapter IV, subchapter E, which concerns standards and certification requirements.)
Providers and suppliers furnishing services must comply with the Medicare requirements stipulated in the Act and in our regulations. These requirements are meant to ensure compliance with applicable statutes, as well as to promote the furnishing of high quality care. CMS, State survey and certification agencies, or both inspect facilities when required, for compliance with regulatory and operational requirements before we allow them to participate in the Medicare program. Thereafter, we will review and re-verify the continued adherence to our requirements either as part of a scheduled recertification survey, or as a result of a complaint or other information received that will directly affect the provider's or supplier's business relationship with the Medicare program or indicate noncompliance with this regulation. The initial certification and subsequent recertification ensure that Medicare requirements are met, continue to be met, and promote the appropriate spending of the Medicare Trust Funds by helping to ensure that unqualified providers and suppliers are not granted billing privileges with the Medicare program.
Historically, a provider or supplier wishing to receive payment from Medicare or its beneficiaries would contact a Medicare fiscal intermediary (FI), the State survey agency, or a Medicare carrier. In compliance with sections 1816, 1842 and 1874 of the Act, as stipulated in 42 CFR Part 421, we contract with fee-for-service contractors to administer payment for services and to manage other administrative responsibilities that the law imposes. Our regional offices, State survey agencies, carriers and FIs use statutes, regulations, and operating instructions as guidance when assigning appropriate identification numbers and determining whether to grant billing privileges in the Medicare program to providers and suppliers.
As Medicare program expenditures have grown, increased attention was focused on strategies to curb improper Medicare payments by implementing business processes and standards that safeguard the Medicare program and its beneficiaries, while ensuring that well qualified individuals and health care organizations serve beneficiaries as promptly as possible.
1. Various sections of the Act and the
• Sections 1102 and 1871 of the Act provide general authority for the Secretary of Health and Human Services (the Secretary) to prescribe regulations for the efficient administration of the Medicare program. Under this authority, this final rule will require the collection of information from providers and suppliers for the purpose of enrolling in the Medicare program and granting privileges to bill the program for health care services furnished to Medicare beneficiaries.
• Sections 1814(a), 1815(a), and 1833(e) of the Act require the submission of information necessary to determine the amounts due a provider or other person.
• Section 1842(r) of the Act requires us to establish a system for furnishing a unique identifier for each physician who furnishes services for which payment may be made. To complete this, we need to collect information unique to that physician.
• Section 1862(e)(1) of the Act states that no payment may be made when an item or service was at the medical direction of an individual or entity that is excluded in accordance with sections 1128, 1128A, 1156, or 1842(j)(2) of the Act.
• Section 1834(j)(1)(A) of the Act states that no payment may be made for items furnished by a supplier of durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) unless that supplier obtains, and renews
Section 4313 of the Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33) amended sections 1124(a)(1) and 1124A of the Act to require disclosure of both the Employer Identification Number (EIN) and Social Security Number (SSN) of each provider or supplier, each person with ownership or control interest in the provider or supplier, any subcontractor in which the provider or supplier directly or indirectly has a 5 percent or more ownership interest, and any managing employees including Directors and Board Members of corporations and non-profit organizations and charities. The Secretary signed and sent to the Congress a “Report to Congress on Steps Taken to Assure Confidentiality of Social Security Account Numbers as Required by the Balanced Budget Act” on January 26, 1999, with mandatory collection of SSNs and EINs effective on or after April 26, 1999.
2. Section 31001(i)(1) of the Debt Collection Improvement Act of 1996 (DCIA) (Pub. L. 104-134) amended section 7701 of 31 U.S.C. by adding paragraph (c) to require that any person or entity doing business with the Federal Government must provide their Tax Identification Number (TIN).
3. We are authorized to collect information on the CMS 855-Provider/Supplier Enrollment Application, (Office of Management and Budget (OMB) approval number 0938-0685) to ensure that correct payments are made to providers and suppliers under the Medicare program as established by Title XVIII of the Act.
For a number of years, concern about easy entry into the Medicare program by unqualified or even fraudulent providers or suppliers has led us to step up our efforts on a number of fronts to establish more stringent controls on provider and supplier entry into the Medicare program.
For example, in 1993 we established the National Supplier Clearinghouse (NSC), our contractor for enrolling suppliers of DMEPOS in Medicare. We instituted new procedures to use validation software to certify the existence of the listed business address for suppliers of DMEPOS. The NSC also checked the DMEPOS supplier telephone numbers against a national directory. This initial effort resulted in the revocation of about 1,500 supplier billing numbers and an estimated savings of $7 million per month to the Medicare Trust Funds.
In fiscal year (FY) 1998, we required site visits for all new DMEPOS suppliers. The DMEPOS visits resulted in: 156 denials of new applicants out of 159 visits; and 656 revocations of existing suppliers out of 2,091 visits.
In FY 1998 and FY 1999, our carriers and FIs submitted proposals to conduct site visits for those provider or supplier types that they believed would yield the greatest benefit in their regions. After reviewing the submitted proposals, we funded 320 site visits to various enrolling and currently enrolled Independent Diagnostic Testing Facilities (IDTFs), skilled nursing facilities (SNFs), home health agencies (HHAs), rural health clinics, comprehensive outpatient rehabilitation facilities, physician groups, clinical psychologists, and ambulance companies. The project provided useful information for making appropriate determinations for the eligibility to bill Medicare. In the course of these reviews—
• 219 provider numbers were authorized or maintained;
• 30 provider numbers were deactivated;
• 37 provider applications were denied; and
• 34 providers were referred to contractor fraud units.
These site visits proved valuable to some providers and suppliers by helping them to enroll in the Medicare program properly. The site visits were also helpful to us in ensuring that we only conduct business with legitimate providers and suppliers. We believe that site visits are an important component of successful provider and supplier enrollment. We believe that there is ample authority in the statute for this approach. The statute confers upon the Secretary the authority to seek information he needs to determine the amounts due to providers and suppliers of services. Part of that duty is fulfilled by reviewing documentation offered by those entities submitting claims, but part of that duty may also be performed through the use of on-site reviews that enable the Secretary to verify, for example, that he is paying an entity that actually exists or that is providing a service that it represented it would provide in its enrollment application. Often these kinds of determinations cannot be made solely based on the review of paper documentation submitted to contractors even though they bear heavily on the amounts that may be due to a particular provider or supplier. As past experience has demonstrated, in many cases site visits are the only method we have to ensure that providers and suppliers actually exist and meet the requirements to participate in the Medicare program, particularly in the absence of State licensure or regulation. Left unchecked, Medicare program resources and the health of Medicare beneficiaries may be vulnerable.
In the April 25, 2003
Specifically, we proposed to require that providers and suppliers prove their qualifications and identity and submit specified information to us before they are granted billing privileges in the Medicare program. If the provider or supplier fails to meet the requirements or submit the required information, we would not enroll it in the Medicare program or, if it is currently in the program, we would revoke its billing privileges. We believe the documentation and associated verification methods we use to determine whether to grant a provider or supplier billing privileges are necessary to ensure compliance with Medicare requirements and to prevent abuse of the Medicare program and the inappropriate use of Medicare funds. We also believe that the requirements will not hinder qualified individuals and organizations from enrolling or maintaining enrollment in the Medicare program.
We proposed to establish our standard enrollment requirements in part 424, new subpart P. In proposed § 424.500 (Scope), we stated that these requirements apply to all providers and suppliers except those physicians and other eligible practitioners who have elected to “opt-out” of Medicare as
In proposed § 400.502 (Definitions), we would establish the definitions for several key terms used throughout new subpart P. The terms “provider” and “supplier” are not defined in this subpart because their definitions are already established throughout 42 CFR. The term “provider” is defined in both § 400.202 and § 488.1. Together these sections define a provider as including a hospital, a critical access hospital, a skilled nursing facility, a nursing facility, a comprehensive outpatient rehabilitation facility, a home health agency, or a hospice, that has in effect an agreement to participate in Medicare; or a provider of outpatient physical therapy or speech pathology services; or a community mental health center. The term “supplier,” as defined in § 400.202, is a physician or other practitioner, or an entity other than a provider (as defined in § 400.202 and § 488.1) that furnishes health care services under Medicare. Section 488.1 also defines “supplier” to mean independent laboratory; portable X-ray services; physical therapist in independent practice; ESRD facility; rural health clinic; Federally-qualified health center; or chiropractor. The term “supplier” also includes “indirect suppliers,” as indicated in 45 CFR 61.3.
We proposed to define “managing employee” to be a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who directly or indirectly conducts the day-to-day operations of, the institution, organization, or agency, either under contract or through some other arrangement, regardless of whether the individual is a W-2 employee.
Section 1124A of the Act and § 420.204 authorize the Secretary to collect information about managing employees. Section 1124A of the Act incorporates by reference the definition of managing employee, contained in section 1126(b) of the Act as an individual, including a general manager, business manager, administrator, and director, who exercises operational or managerial control over the entity, or who directly or indirectly conducts the day-to-day operations of the entity. We have found that a number of providers and suppliers are managed by individuals that have control over the day-to-day operations of the entity and are not employees. Some of these individuals are known to bill Medicare fraudulently, and are on the Office of Inspector General (OIG) “List of Excluded Individuals and Entities” and the General Services Administration (GSA) “List of Parties Excluded from Federal Procurement and Non-procurement Programs”. These lists are commonly referred to as the “OIG Sanction List” for those parties excluded by the OIG from participation in any Federal health care programs (as defined in section 1128B(f) of the Act), and the “GSA Debarment List” for those parties debarred, suspended or otherwise excluded by other Federal agencies from participation in Federal procurement and non-procurement programs and activities, in accordance with the Federal Acquisition and Streamlining Act of 1994, and with the HHS Common Rule at 45 CFR part 76.
Extending the term “managing employee” to include individuals performing managerial duties who are not technically employees would be consistent with the legislative intent to require information on those individuals that have effective control over a provider's or supplier's day-to-day operations.
Proposed § 424.505 requires a provider or supplier to have a valid Medicare billing number for the date a service was rendered in order to receive payment for covered Medicare services from either Medicare (in the case of assigned claims) or the Medicare beneficiary (in the case of unassigned claims).
Under longstanding policy and operating procedures, any claim submitted without an active billing number is incomplete and cannot be processed for payment. Providers and suppliers who are not enrolled in the Medicare program must adhere to the mandatory claims submission rules at § 424.32(a)(1) (Basic requirements for all claims) and section 1848(g)(4) of the Act. In addition, a claim submitted without a valid Medicare billing number would not be considered a valid claim and will be rejected. If the mandatory claims submission requirements are not met the provider or supplier could have sanctions imposed as outlined in section 1848(g)(4) of the Act for failure to file a claim as required.
To obtain a Medicare billing number and be eligible to receive payment for Medicare covered services, providers and suppliers must enroll in the Medicare program and meet other applicable Federal requirements. The Medicare program, through its contractors, requires specific identifying information from a provider or supplier before payment is authorized. Our issuance of an identification number to a provider or supplier does not automatically convey the privilege to bill Medicare. There must be a corresponding approval of the provider or supplier as meeting all Federal requirements to bill Medicare for the number to be an approved and active Medicare billing number.
In § 424.510 (CMS 855), we proposed that a provider or supplier must submit to us the appropriate completed CMS 855—Provider/Supplier Enrollment Application based on the type of provider or supplier enrolling. As part of our continuing efforts to improve the enrollment process, the series of CMS 855 enrollment forms with proposed revisions were submitted with the proposed rule, and were published in the
• CMS 855A—For providers billing fiscal intermediaries.
• CMS 855B—For supplier organizations billing carriers.
• CMS 855I—For individual health care practitioners billing carriers.
• CMS 855R—For individual health care practitioners to reassign benefits to an organization.
• CMS 855S—For DMEPOS Suppliers billing the NSC.
The CMS 855 applications will be used to gather information on providers and suppliers for the purpose of authorizing billing numbers and establishing eligibility to furnish services to Medicare beneficiaries. The information submitted will also uniquely identify the providers and suppliers for the purpose of enumeration and payment. OMB approved the CMS 855 for these purposes (OMB approval number 0938-0685).
In § 424.510(a)(1), we proposed to require that a provider or supplier submit the following on its CMS 855:
• Complete and accurate responses to all information requested within each section as applicable to the provider or supplier type.
• Any documentation currently required by CMS under this or other statutory or regulatory authority to
• Any documentation currently required by CMS under this or other statutory or regulatory authority to establish the provider or supplier's eligibility to furnish services to beneficiaries in the Medicare program (for example, a medical license or business license).
Under the authorities noted previously in this preamble all providers, suppliers, and other health care related individuals and entities who would receive Medicare reimbursements, either directly or indirectly as a result of enrolling in the Medicare program, must furnish their SSN and TIN as a condition of maintaining an active enrollment status and billing privileges. We also maintained the right to require persons with ownership or control interests (as that term is defined in section 1124(a)(3) of the Act) in their providers and suppliers, and of all managing employees (as that term is defined in section 1126(b) of the Act and in § 420.201 of the regulations) of these providers and suppliers to also furnish their SSN and TIN as a condition of enrollment.
We proposed to require that providers and suppliers must certify that all the information furnished on the CMS 855 is accurate, complete, truthful, and verifiable. Any concealment or misrepresentation of material information in these applications would constitute violation of this regulation and may result in the rejection, denial, or revocation of the provider or supplier's enrollment and billing privileges. In addition, the concealment or misrepresentation would be referred to the OIG for investigation and appropriate criminal, civil or administrative action.
In § 424.510(a)(2), we proposed to require that the CMS 855 must be signed by an individual who has the authority to bind the provider or supplier both legally and financially to the requirements set forth in subpart P. This person must be the individual practitioner or have an ownership or control interest in the provider or supplier, as that term is defined in section 1124(a)(3) of the Act, such as, be the provider's or supplier's general partner, chairman of the board, chief financial officer, chief executive officer, president, or hold a position of similar status and authority within the provider or supplier organization. The signature would attest that the information submitted is accurate, complete, and truthful, and the provider or supplier is aware of, and will abide by, Medicare rules and regulations.
To ensure that the individual signing the form can bind the enrollee from a financial and legal standpoint, we would require the following persons to sign the enrollment form:
• In the case of an individual practitioner, the applying practitioner.
• In the case of a sole proprietorship, the applying sole proprietor.
• In the case of a corporation, partnership, group, limited liability company (LLC), or other organization, an authorized official as defined in § 424.502.
When an authorized official signs the application, the signed application is considered binding upon the corporation partnership, organization, group, or LLC (hereafter referred to in this section as an organization), as applicable. This requirement establishes accountability for the accuracy of the information on the CMS 855 and ensures that the provider or supplier is committed to taking the necessary steps to comply with these requirements. In addition to the signature requirements, we proposed to establish a delegation of authority. As stated in this section, the original and all subsequent revalidation CMS 855s submitted by an organization to enroll or maintain enrollment in the Medicare program must have certification statements signed by the current authorized official(s) on file with Medicare. Any subsequent updates or changes made outside the enrollment or revalidation process may be signed by a delegated official of the enrolled organization.
The delegated official must be a W-2 managing employee of the provider or supplier who is enrolling in, or currently enrolled in, the Medicare program, or be an individual with ownership or control interest in the provider or supplier.
The delegation of signature authority would not apply for individual practitioners and sole proprietors. All CMS 855s submitted by individual practitioners or sole proprietors must be signed by the enrolling or enrolled individual.
As proposed in § 424.510(a)(2)(ii), the delegation of authority must be assigned by the authorized official currently on file with us or the authorized official who has signed the CMS 855 currently being submitted to us. All delegations of authority must be submitted via the CMS 855 and must include the title of each person delegated authority to update or change the organization's enrollment information. The assignment must be signed by both the authorized official currently on file with Medicare and the person(s) being delegated as an official of the organization. The signature of the delegated official would bind the organization both legally and financially, as if the signature was that of the authorized official. Once the delegation of authority is established, the signatures of the authorized official or the assigned delegated official(s) would be the only acceptable signature(s) on correspondence to report updates or changes to the enrollment information.
In § 424.510(b), we proposed to verify initial compliance with statutes and regulations before providers and suppliers are granted billing privileges, as well as on a continuing basis. The verifications would be based on information submitted by providers and suppliers on the CMS 855.
We proposed to require in § 424.510(c) that providers and suppliers, including those that are deemed to meet Medicare health and safety requirements by virtue of their accreditation by a national accrediting body, must attest via signature on the CMS 855 that they have met all the requirements set forth in this regulation before they are granted billing privileges. Those providers for which certification is required must meet the provisions of part 488 concerning mandatory State survey and certification requirements. Providers also must have completed a provider agreement in accordance with part 489, which specifies the requirements for provider agreements. In addition, in § 424.510(d) and (e), we proposed to require that providers and suppliers must be operational as defined in § 424.502 and must meet additional requirements that apply to both enrolling and currently enrolled providers and suppliers before receiving a Medicare billing number and becoming eligible for Medicare payments.
In recognition of the effectiveness of site visits, we proposed to require, at § 424.510(f), a plan for integrating site visits as part of our enrollment validation process and general program oversight activities. We proposed to reserve the right to perform on-site inspections of the provider or supplier when we deem necessary to ensure compliance with Medicare enrollment requirements. For certain providers and suppliers this practice has always been the case (for example, hospitals, SNFs, and HHAs), but we are extending this to all providers and suppliers when deemed necessary based on questionable enrollment information. Site visits for enrollment purposes will not affect those site visits performed for establishing conditions of participation.
The proposed site visits and on-site inspections to ensure compliance with Medicare enrollment requirements are unrelated to the compliance-related site visits already being conducted by the OIG. After a provider or supplier enters into a corporate integrity agreement with the OIG, usually as the result of a Federal False Claims Act settlement, the OIG may conduct a site visit as part of its work in monitoring the provider or supplier's compliance with the terms of the corporate integrity agreement.
Upon the provider or supplier's successful completion of the enrollment process, including State survey and certification, accreditation, and approval of the CMS 855, we would grant Medicare billing privileges and issue a billing number if one has not already been issued. The effective date for reimbursement of Medicare covered services would continue to be determined based on current Medicare regulations and policy based on the type of provider or supplier submitting claims. Currently, the effective dates for reimbursement can be found at § 489.13 for providers and suppliers requiring State survey or certification or accreditation, § 424.5 and § 424.44 for nonsurveyed or certified/accredited suppliers, and § 424.57 and section 1834(j)(1)(A) of the Act for DMEPOS suppliers. For those providers and suppliers seeking accreditation from a CMS-approved accreditation organization, the effective date for reimbursement is the later of the date accreditation was received or the final approval of the CMS 855. Based on the regulations cited previously, we would not issue Medicare billing numbers or grant Medicare billing privileges retroactive to the date that the provider or supplier received final approval of their enrollment application (CMS 855). We proposed to use this process because we believe there is a relationship between fulfilling the requirements stipulated in the Medicare program statutes and related laws, the integrity of the provider and supplier, the quality of care furnished to Medicare beneficiaries, and the confidence of the public in the Medicare program.
In the future there will be universal provider and supplier numbers, as required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), for uniquely identifying a provider or supplier and for purposes of billing all health plans, including Medicare and Medicaid. When this universal number is in place, it will still be necessary for providers and suppliers to apply for enrollment as a Medicare provider or supplier and be granted Medicare billing privileges.
In § 424.515, we proposed to require that a provider or supplier must update its enrollment information, and recertify as to its accuracy when any changes are made. We would also periodically require revalidation of the enrollment information by all providers and suppliers when enrollment information has aged over 3 years. The revalidation process will ensure that we have complete and current information on all Medicare providers and suppliers and ensure continued compliance with Medicare requirements. In addition, this process further ensures that Medicare beneficiaries are receiving services furnished only by legitimate providers and suppliers, and strengthens our ability to protect the Medicare Trust Funds.
The accuracy of the data describing the individuals or organizations with which we do business is essential to efficient and effective operation of the Medicare program. For this reason, we proposed to require at § 424.520(b), that individuals and organizations are responsible for updating their CMS 855 information to reflect any changes in a timely manner. We would define timely as meaning within 90 days, with the exception of a change in ownership or control of the provider or supplier which must be reported within 30 days. Failure to do so may result in deactivation or even revocation of their billing privileges.
We would determine, upon receipt of any changes, if continued enrollment in the Medicare program is proper. We expect that in the vast majority of cases, updates or changes would not affect the status of the provider or supplier. Where it does, we would follow the revocation procedures outlined later in this rule.
When no such changes or updates were reported or submitted for a period of time, we believe that it is prudent to take steps to confirm the continued validity of the information that was previously submitted. We believe that this revalidation of enrollment information should be accomplished in a way that minimizes the reporting burden to the provider or supplier, but also mitigates the risk to the program of maintaining incomplete or inaccurate information that materially affects the relationship of the program to the provider or supplier. For this reason, we proposed to require that we will initiate a revalidation process for any individual or organization that has not submitted a change or update within the last 3 years. Routine revalidations may or may not be accompanied by site visits.
We will reserve the right to perform non-routine revalidation and request the provider or supplier to recertify as to the accuracy of the enrollment information when warranted to assess and confirm the validity of the enrollment information. Non-routine revalidation may be triggered as a result of information indicating local problems, national initiatives, fraud investigations, complaints from beneficiaries, or other reasons that cause us to question the integrity of the provider or supplier in its relationship with the Medicare program. Like routine revalidation, non-routine revalidation may or may not be accompanied by site visits.
We proposed to require that the revalidation of enrollment information occur no more than once every 3 years. We reserve the right to adjust this schedule if we determine that revalidation should occur on a more frequent basis due to complaints or evidence we receive indicating noncompliance with the statute or regulations by specific provider or supplier types. The schedule may also be on a less frequent basis if we determine that the integrity of and compliance with the statute and regulations by specific provider or supplier types indicates that less frequent validation is justified. If such a change were to occur, we would notify all affected providers and suppliers in writing at least 90 days in advance of implementing the change. We would continue to revalidate enrollment information for Ambulance Service Suppliers in accordance with regulations set forth at § 410.41(c)(2) (Requirements for ambulance suppliers), and DMEPOS suppliers would continue to renew enrollment in accordance with regulations set forth at § 424.57(e) (Special payment rules for items furnished by DMEPOS suppliers and issuance of DMEPOS supplier billing numbers).
We proposed to require at new § 424.515(a) that during the revalidation or update process all providers and suppliers must attest by way of a signed certification statement that the requirements set forth in this regulation continue to be met. This requirement would not only ensure continued accuracy of the CMS 855 information, but would also ensure that the provider or supplier is committed to taking the necessary steps to maintain compliance with these requirements. However, it should be noted that periodic validation of a provider or supplier's Medicare enrollment information is separate from the survey requirements for the provider
We proposed to require the information submitted for revalidation or update to include any new or changed documentation as required by us under this or other statutory or regulatory authority that identifies the provider or supplier, and any documentation as required by us under this or other statutory or regulatory authority required to verify the provider or supplier's continued eligibility to furnish services to beneficiaries in the Medicare program. We would also require a signature on the completed CMS 855 that meets the requirements proposed in § 424.510(a)(3).
In § 424.515(b), we also proposed to require that a provider or supplier must submit a CMS 855 with complete information for revalidation within 60 calendar days of our revalidation notification. For those providers and suppliers who initially enrolled in the Medicare program via the CMS 855, we would furnish a copy of the information currently on file for their review, request that they make any changes, and certify via their signature that the information is accurate, complete, and truthful. We estimate that completion of the form would require on average 8 hours. Therefore, we believe 60 days is a reasonable timeframe for providers and suppliers to comply.
As part of the revalidation process, we would verify the accuracy of the reported information on the applicable CMS 855. Because survey and certification are independent program requirements distinct from the revalidation of enrollment information requirements set forth in this subpart, we proposed in § 424.515(c) that new surveys or certifications are not required for the revalidation process. However, providers must continue to meet the provisions of § 488 and § 489 concerning mandatory State survey and certification requirements. When applicable, providers must also have completed a provider agreement in accordance with § 489, which specifies the requirements for provider agreements. We would also reserve the right, at proposed § 424.515(d), to perform on-site inspections, to further ensure compliance with Medicare requirements.
We understand that the resubmission and update of enrollment information would place an obligation on providers and suppliers. We are considering a variety of ways to minimize the burden of this important information collection and verification provision (including the use of Internet technology).
To reduce the burden when reporting updates or changes in the future, we would require that all providers and suppliers currently in the Medicare program complete, in its entirety, the CMS 855 at least once if they have not done so in the past. This would ensure that we have the most current and accurate information, and would allow us to make full use of electronic data submissions via the Internet. By having a complete enrollment record, we would be able to produce and transmit or mail the CMS 855, pre-populated with previously reported information, to the provider or supplier for their review and signature certification as to the continued accuracy of the information and require them to update any information that is no longer current.
In new § 424.520, we proposed to specify the additional requirements that providers and suppliers must meet to enroll or maintain enrollment in the Medicare program. The provider or supplier must certify that it meets, and continues to meet, the following requirements:
• Compliance with title XVIII of the Act (Medicare Statutory Provisions) and applicable regulations.
• Compliance with all applicable Federal and State licensure and regulatory requirements that apply to the specific provider or supplier type that relate to providing health care services.
• Not employing or contracting with individuals or entities excluded from participation in Federal Health care programs for the provision of items and services reimbursable under these programs in violation of section 1128A(a)(6) of the Act.
The OIG program exclusion regulations were amended effective August 25, 1995, in accordance with the Federal Acquisition Streamlining Act of 1994 (FASA), and with the HHS Common Rule at 45 CFR part 76, to explain the scope and effect of an OIG exclusion. In accordance with the FASA, government-wide reciprocal effect will be given by all Federal agencies to an administrative sanction imposed by any Federal agency. Specifically, the statute provides that: “No agency shall allow a party to participate in any procurement and nonprocurement activity if any [other] agency has debarred, suspended, or otherwise excluded, that party from participation in a procurement or nonprocurement activity,” (FASA, section 2455). Therefore, consistent with the FASA, its implementing regulation, and OIG regulations (§ 1001.1901(b)), we would deny or revoke enrollment (revocation effective on the date of the exclusion) if the provider or supplier is subject to an OIG exclusion, or is debarred, suspended or otherwise excluded by any other Federal health care program or agency.
In new § 424.525, we proposed that if a provider or supplier enrolling in the Medicare program for the first time fails to furnish complete information on the CMS 855, or fails to furnish missing information or any necessary supporting documentation as required by CMS under this or other statutory or regulatory authority within 60 calendar days of our request to furnish the information, we would reject the provider or supplier's CMS 855 application. Rejection would not occur if the provider or supplier is actively communicating with us to resolve any issues regardless of any timeframes.
Upon notification of a rejected CMS 855, the provider or supplier must again begin the enrollment process by completing and submitting a new CMS 855 and all applicable documentation. We proposed to specify in § 424.525(b) that the new form must also update any information that is different from that originally submitted. This would ensure that we have the most recent information about the provider or supplier. The enrollment process would culminate in the granting of billing privileges or denial or rejection of the application.
We would deny enrollment in the Medicare program to providers or suppliers whom we determine to be ineligible. Providers and suppliers who are denied enrollment would not receive Medicare billing privileges. In § 424.530(a), we proposed to require that a provider or supplier applying for enrollment in the Medicare program may be denied enrollment for any of the following reasons:
• Under § 424.530(a)(1), enrollment may be denied if the provider or supplier were found not to be in compliance (for example, failure to furnish required documentation, lack of qualified practice location) with the Medicare enrollment requirements applicable to the type of provider or supplier enrolling, unless the reason for noncompliance were corrected or the provider or supplier has submitted a
• In § 424.530(a)(2), we proposed to require that enrollment may also be denied if: a provider, supplier, an owner, managing employee, authorized or delegated official an supervising physician, medical director, or other health care personnel furnishing Medicare reimbursable services who is required to be reported on the providers' or suppliers' CMS 855 (for example, an ambulance crew member) —
+ Is excluded from the Medicare, Medicaid, or any other Federal health care programs, as defined in § 1001.2, in accordance with § 1001.1901(a); or
+ Is debarred, suspended, or otherwise excluded from participating in any other Federal procurement or nonprocurement activity in accordance with FASA, section 2455; (See HHS Common Rule provisions that discuss the effect of a program exclusion under title XI of the Act, as well as other Federal agency debarments, suspensions, and exclusions found at 45 CFR 76.100(c) and (d)).
We are required to ensure that no payments are made to any providers or suppliers who are excluded from participation in the Medicare program under authorities found in sections 1128, 1156, 1862, 1867, and 1892 of the Act, or who are debarred, suspended or otherwise excluded as authorized by FASA. This includes any individual, entity, or any provider or supplier that arranges or contracts with (by employment or otherwise) an individual or entity that the provider or supplier knows or should know is excluded from participation in a Federal health care program for the provision of items or services for which payment may be made under such a program (section 1128A(a)(6) of the Act), and any provider or supplier that has been debarred, suspended, or otherwise excluded from participation in any other Executive Branch procurement or nonprocurement programs or activity (FASA, section 2455).
Therefore, when an individual or entity is excluded by the OIG under section 1128 of the Act, the exclusion is applicable to participation in all Federal health care programs (including Medicare and Medicaid as defined in section 1128B(f) of the Act). In addition, section 1862(e) of the Act prohibits the Secretary from paying for items and services furnished by excluded individuals. We believe that our general authorities, in combination with the prohibition against paying for items or services furnished by excluded individuals, provides authority for us to deny enrollment unless a provider or supplier terminates its relationship with the relevant individual. The denial will remain effective until that provider, supplier, managing employee, authorized or delegated official, medical director, supervising physician, or other health care personnel furnishing Medicare reimbursable services, is no longer excluded or sanctioned. Section 424.530(b)(3) also would provide that the denial will be effective within 30 days of the denial notification.
In § 424.530(a)(3), we also proposed to require that we may deny enrollment in the Medicare program if the provider or supplier, or any owner of the provider or supplier, has been convicted of a Federal or State felony offense that we determine to be detrimental to the best interests of the Medicare program or its beneficiaries. This authority is afforded to us in many of the HIPAA fraud and abuse provisions and section 4302 of the BBA. In making assessments, we proposed to require including any felony convictions from the last 10 years or more. In addition, we would consider the severity of the underlying offense.
Felonies that we determine to be detrimental to the best interests of the Medicare program or its beneficiaries include the following:
• Within the last 10 years or more preceding enrollment or revalidation of enrollment, crimes against persons, such as rape, murder, kidnapping, assault and battery, robbery, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. We believe it is reasonable for the Medicare program to question the ability of the individual or entity with such a history to respect the life and property of program beneficiaries.
• Within the last 10 years or more preceding enrollment or revalidation of enrollment, financial crimes, such as extortion, embezzlement, income tax evasion, making false statements, insurance fraud, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. We believe it is reasonable for the Medicare program to question the honesty and integrity of the individual or entity with such a history in providing services and claiming payment under the Medicare program.
• Within the last 10 years or more preceding enrollment or revalidation of enrollment, any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that resulted in a conviction of criminal neglect or misconduct.
• Any felonies referred to in section 1128 of the Act.
Under section 1128(a) of the Act, the Secretary must exclude individuals or entities convicted of certain crimes, such as program-related crimes, crimes related to patient abuse or neglect, and conviction of a felony related to health care fraud or controlled substances. In addition, the Secretary has authority to exclude individuals and entities for other adverse actions including when an individual or entity is owned or controlled by a sanctioned or convicted individual, in accordance with section 1128(b)(8) of the Act.
In cases where the provider or supplier is not a convicted individual but, rather, has an ownership or management relationship with a convicted or excluded individual, that provider or supplier may also be subject to civil monetary penalties as stated in section 1128A(a)(6) of the Act. In addition, we may deny or revoke billing privileges if such a relationship exists. However, the denial may be reversed if, within 30 days of the denial notification, the provider or supplier terminates its ownership or management relationship with the convicted or excluded individual or organization.
In § 424.530(a)(4), we proposed to require that we may deny enrollment if the provider or supplier has deliberately submitted false or misleading information on their CMS 855 to gain enrollment in the Medicare program. Offenders may be subject to fines or imprisonment, or both, in accordance with current statute and regulation.
In § 424.530(a)(5), we proposed possible denial of enrollment where there are repeated instances in which, upon on-site review or other reliable evidence, we do not find present those licensed medical professionals required under the statute or regulations to supervise treatment or provide Medicare covered services for Medicare patients; or we determine that the provider or supplier is not operational to furnish Medicare covered services or supplies.
As outlined in § 424.530(b), if the denied provider or supplier appeals the decision, and the denial is upheld, that provider or supplier may submit a new CMS 855 after we notify it that the original determination was upheld. If the provider or supplier did not appeal the determination, it may submit a new CMS 855 when the timeframe for appeal rights has lapsed. We proposed this latter requirement to prevent administrative difficulties that might result in processing two enrollment forms if a new one is submitted during the time period when the provider or supplier may appeal an initial denial.
Medicare enrollment denials would impact the provider or supplier on a national scale. In proposed § 424.530(c), we stated that when a provider or supplier is denied enrollment in Medicare, we would review all other related Medicare enrollment files that the denied provider or supplier has an association with (for example, as an owner or managing employee) to determine if the denial warrants an adverse action of the associated Medicare provider or supplier.
Revocation occurs when an enrolled provider or supplier's billing privileges are terminated. In proposed § 424.535, we outlined the causes for revocation and what a provider or supplier would need to do to re-enroll in the Medicare program after revocation. In considering whether to revoke enrollment and billing privileges in the Medicare program, we would consider the severity of the offenses, mitigating circumstances, program and beneficiary risk if enrollment was to continue, possibility of corrective action plans, beneficiary access to care, and any other pertinent factors.
In general, we proposed to require revocation criteria that are similar to our reasons for denial of initial Medicare program enrollment. In § 424.535(a)(1), we proposed to require that a provider or supplier's enrollment and billing privileges may be revoked if, at any time, it is determined to be out of compliance with the Medicare enrollment requirements outlined in subpart P including failure to report changes to enrollment information timely or failure to adhere to corrective action plans, and has not corrected the problem within 30 days of notice of noncompliance or submitted a plan of corrective action as cited earlier. We may request additional documentation from the provider or supplier to determine compliance if adverse information is received or otherwise found concerning the provider or supplier. If requested documentation we required under this or other statutory or regulatory authority is not submitted within 30 calendar days of our request, we would immediately begin revocation proceedings. If the documentation is received timely, we would review and verify the information to determine if we should proceed with the revocation. Providers requiring State survey and certification would continue to receive payment during the data verification review under current regulations found at part 488 and under section 1819(h)(2)(c) of the Act. Providers and suppliers not subject to State survey and certification may have their payments suspended during the data review.
We also proposed to require that we may revoke a provider or supplier's billing privileges if the provider or supplier establishes the following:
• Repeated instances in which, upon on-site review or other reliable evidence, we do not find present those licensed medical professionals required under the statute or regulation to supervise treatment of, or to provide Medicare covered service for, Medicare patients.
Additional proposed reasons that may result in the revocation of billing privileges in § 424.535(a) includes the following:
• The provider or supplier, any owner, managing employee, authorized or delegated official, supervising physician or other health care personnel who must be reported on the CMS 855 (for example, ambulance crew member) of the provider or supplier, in accordance with section 1862(e)(1) and (2) of the Act, becomes excluded from the Medicare, Medicaid or any other Federal health care programs, as defined in § 1001.2, in accordance with section 1128 or 1156 of the Act, or is debarred, suspended or otherwise by any Federal health care program or agency.
• The provider or supplier, or any owner of the provider or supplier, is convicted of a Federal or State felony offense that we determine to be detrimental to the best interests of the program as outlined in “Denial of Enrollment” above.
• The provider or supplier certified as “true” deliberately submitted false or misleading information on the CMS 855 in order to enroll or maintain enrollment in the Medicare program. (Offenders may be subject to criminal or civil prosecution, in accordance with current laws and regulations).
• Upon on-site review, we determine that the provider or supplier is no longer operational to furnish Medicare covered services or supplies.
• The provider or supplier fails to furnish complete and accurate information on the CMS 855 and any applicable documentation within 60 calendar days of our notice to recertify its enrollment information.
• The provider or supplier knowingly sells to or allows another individual or entity to use its billing number.
In addition to the revocation of the provider's or supplier's billing privileges, we proposed to require at § 424.535(b) that any provider agreement in effect at the time of revocation would also be terminated effective with the date of revocation. We do not believe it would be prudent for us to maintain an active provider agreement for a provider or supplier whose business relationship with Medicare was adverse enough as to cause the revocation of its billing privileges. Section 1866(b)(2)(A) of the Act specifies that the Secretary may terminate a provider agreement after the Secretary has determined that the provider fails to comply substantially with the provisions of title XVIII. We proposed to amend § 489.53 and § 498.3 to reflect this proposal.
In new § 424.535(c), we proposed to require that upon notification of the revocation of its billing number, if the provider or supplier seeks to re-establish enrollment and billing privileges in the Medicare program (either after the appeals process is exhausted or in place of the appeals process), then the provider or supplier must complete and submit a new CMS 855 as a new provider or supplier and applicable documentation. Providers must be resurveyed or recertified by the State survey agency as a new provider and must establish a new provider agreement with our Regional Office.
If the billing privileges are revoked due to the adverse activity of an individual or organization other than the provider or supplier, the revocation may be reversed if the provider or supplier terminates its business relationship with the individual or organization that was responsible for the revocation within 30 days.
As with a denial of Medicare enrollment, revocations would impact the provider or supplier on a national scale. As proposed in § 424.535(d), if a provider or supplier's billing privileges are revoked, we would review all other related Medicare enrollment files that the revoked provider or supplier has an association with (for example, as an owner or managing employee) to determine if the revocation warrants an adverse action of the associated Medicare provider or supplier.
When a provider or supplier's billing number is deactivated, billing privileges are suspended, but can be restored upon the submission of updated or recertified information. In new § 424.540, we proposed to continue to deactivate a provider or supplier's Medicare billing number if no Medicare claims are submitted for 2 consecutive calendar quarters (6 months) unless current policy or regulations specify otherwise for specific provider or supplier types. Our current policy requires deactivation of billing numbers after 4 consecutive
We also proposed to require deactivation of a billing number if we discover changes to the information provided on the provider or supplier's CMS 855 that were not reported within 90 days of the change. This includes, but is not limited to, changes to billing services, a change in the practice location, or a change of any managing employee. A change in ownership or control must be reported within 30 calendar days.
Deactivation of Medicare billing privileges is considered a temporary action to protect the provider or supplier from misuse of their billing number and to also protect the Medicare Trust Funds from unnecessary overpayments. The temporary deactivation of a billing number would not have any effect on a provider or supplier's participation agreement or conditions of participation.
In § 424.540(b), we proposed that a provider or supplier whose billing number has been deactivated for any reason other than nonsubmission of a claim for 6 months and who wants to reactivate its Medicare billing number must complete and submit a new CMS 855. Those providers and suppliers whose billing number are deactivated after nonsubmission of a claim must recertify that the enrollment information currently on file with Medicare is correct before the claim would be paid. In addition, the provider or supplier must meet all current Medicare requirements in place at the time of the reactivation. The provider or supplier must also be prepared to submit a valid claim or risk subsequent deactivation of their billing number. Once notified, we would give all reactivations of Medicare billing numbers priority handling to ensure expedient payment of claims. Reactivation of a Medicare billing number would not require resurvey or certification by State agency, or the establishment of a new provider agreement.
In new § 424.545, we proposed that a provider or supplier that has been denied enrollment in the Medicare program, or whose enrollment has been revoked, may appeal our decision in accordance with our regulations at part 405, subpart H, for suppliers or part 498, subpart A, for providers. We are currently drafting a single regulatory appeals process for all providers and suppliers denied or revoked from participation in the Medicare program. In keeping with current policy, we also proposed that no payments would be made during the appeals process. If the provider or supplier is successful in overturning a denial or revocation, unpaid claims for services furnished during the overturned period may be resubmitted.
In addition, we proposed in § 424.545(b) that a provider or supplier whose billing privilege was deactivated may file a rebuttal using procedures found at § 405.74.
We proposed in new § 424.550 that a provider or supplier would be prohibited from selling its Medicare billing number to any individual or entity, or allowing another individual or entity to use its Medicare billing number. Similarly, we would prohibit a provider or supplier from transferring its Medicare billing privileges to any individual or entity, except during a change in ownership, as stated below. A provider or supplier does not have independent authority to sell or transfer any billing number issued or the billing privileges granted with the billing number assigned.
We proposed this policy because only we and our agents have the authority to issue Medicare billing numbers and grant Medicare billing privileges. These numbers are issued only after the information about the provider or supplier collected on the CMS 855 is verified. Because it is used to uniquely identify a provider or supplier, the Medicare billing number we issue is solely for use by the specific provider or supplier to whom it was issued.
In the case of a provider or supplier undergoing a change of ownership as described in part 489 subpart A, we would require at § 424.550(b) that a CMS 855 be completed and submitted by both the current owner and the new owner before the completion of the ownership change. Failure of the current owner to submit the CMS 855 prior to the change of ownership may result in sanctions and penalties, after the date of ownership change, in accordance with § 424.520, § 424.540, and § 489.53. Failure of the new owner to submit the CMS 855 prior to the change of ownership may result in the deactivation of the Medicare billing number until the CMS 855 has been submitted.
We may deactivate a Medicare billing number at any time before final transference of the provider agreement to the new owner. This may occur as a result of the submission of a CMS 855 with material omissions, or preliminary information received or determined by us that makes us question whether the new owner would ultimately be granted a final transference of the provider agreement. This allows us the right to ensure that billing privileges are given only to a new owner for which we have adequate information to, at a minimum, determine that the new owner should have billing privileges prior to the complete validation of their CMS 855 and the transfer of the provider agreement.
We understand that not all enrollment information is available before the change of ownership. We will work with the new owner(s) to ensure a seamless transition, but it is the provider's or supplier's responsibility to report this and any other changes to us to prevent us from imposing any adverse action against it.
For those providers and suppliers not covered by part 489, any change in the ownership or control of the provider or supplier must be reported on the CMS 855 within 90 days of the change as noted in § 424.540(a)(2). Generally, a change of ownership that also changes the tax identification number would require a new CMS 855 from the new owner.
In new § 424.555, we proposed that any expenses for services furnished to a Medicare beneficiary by those categories of suppliers covered by section 1834 of the Act (that is, suppliers of DMEPOS) are the responsibility of that supplier if the supplier has been denied Medicare billing privileges. We further proposed that no payment may be made for covered services furnished to a Medicare beneficiary by a provider or supplier whose billing privileges were deactivated or revoked. The Medicare beneficiary would have no financial responsibility for this type of expense, and the provider or supplier must refund on a timely basis any amounts collected from the beneficiary for those covered services.
We proposed these provisions because a provider or supplier who fails
Sections 1802(b), 1834(j), 1866, and 1870 of the Act, provide Medicare beneficiaries with certain protections against liabilities imposed by providers and suppliers. In section 1834(j)(4), for example, the statute protects the beneficiary against demands for payment for covered Medicare services by certain categories of suppliers that have not been granted Medicare billing privileges. Section 1866 of the Act prohibits providers that have entered into agreements described in that section from charging the beneficiary for covered items or services that are not paid by Medicare because the provider has failed to comply with certain requirements. Furthermore, section 1802(b) of the Act, which sets forth a variety of criteria under which physicians and practitioners may enter into private contracts with Medicare beneficiaries, provides for additional beneficiary protection. Section 1870 of the Act provides that, except under certain circumstances, any payment to a provider of services for items or services furnished shall be considered a payment to the individual, but that the individual will not be liable for overpayment to the provider where the individual is without fault.
In addition, section 1128A(a)(6) of the Act provides for criminal penalties for providers and suppliers having knowledge of events affecting the right to benefit or payment, and concealing or failing to disclose such an event with an intent to fraudulently secure benefit or payment when it is not authorized.
The CMS 855 states that the following penalties may be imposed:
• 18 U.S.C. 1001 authorizes criminal penalties against an individual who in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme or device a material fact, or makes or uses any false, fictitious, or fraudulent statements or representations, or makes any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry. Individual offenders are subject to fines of up to $250,000 and imprisonment for up to 5 years. Offenders that are organizations are subject to fines of up to $500,000. 18 U.S.C. 3571(d) also authorizes fines of up to twice the gross gain derived by the offender.
• Section 1128B(a)(1) of the Act authorizes criminal penalties against an individual who “knowingly and willfully makes or causes to be made any false statement or representation of a material fact in any application for any benefit or payment under a Federal health care program.” The offender is subject to fines of up to $25,000 or imprisonment for up to 5 years, or both.
• The Civil False Claims Act, 31 U.S.C. 3729, imposes a civil penalty of $5,000 to $10,000 per violation, plus three times the amount of damages sustained by the Government and imposes civil liability, in part, on any person who—
+ Knowingly presents, or causes to be presented, to an officer or an employee of the United States Government a false or fraudulent claim for payment or approval;
+ Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; or
+ Conspires to defraud the Government by getting a false or fraudulent claim allowed or paid.
• Section 1128A(a)(1) of the Act imposes administrative sanctions on a person for the submission to a Federal health care program of false or otherwise improper claims.
These administrative sanctions include a civil monetary penalty of up to $10,000 for each item or service falsely or fraudulently claimed an assessment of up to triple the amount claimed, and exclusion from participation in all Federal health care programs.
The government may assert common law claims such as “common law fraud,” “money paid by mistake,” and “unjust enrichment.” Remedies include compensatory and punitive damages, restitution, and recovery of the amount of the unjust profit.
In addition, the following two sanctions were added to the CMS 855 form:
• 18 U.S.C. 1035 authorizes criminal penalties against individuals in any matter involving a health care benefit program who knowingly and willfully falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false fictitious, or fraudulent statement or entry, in connection with the delivery of or payment for health care benefits, items, or services. The individual shall be fined or imprisoned up to 5 years or both.
• 18 U.S.C. 1347 authorizes criminal penalties against individuals who knowing and willfully execute, or attempt, to execute a scheme or artifice to defraud any health care benefit program, or to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by or under the control of, any health care benefit program in connection with the delivery of or payment for health care benefits, items, or services. Individuals shall be fined or imprisoned up to 10 years or both. If the violation results in serious bodily injury, an individual will be fined or imprisoned up to 20 years, or both. If the violation results in death, the individual shall be fined or imprisoned for any term of years or for life, or both.
We received a total of 152 comments on the April 25, 2003 proposed rule. Below is a summary of the comments received and our responses to them.
We are adopting the provisions of the proposed rule as final with the following changes.
Section 936(a)(2) of the MMA established section 1866(j)(1)(A) of the Act which requires that the Secretary establish a process by regulation for the enrollment of providers and suppliers. Therefore, we refer to this authority to collect enrollment information.
In § 424.530 and § 424.535, we revise the regulation text to include the authority given to us in sections 1128A and 1842 of the Act regarding exclusion authorities.
In § 424.505, we clarify that we will maintain our practice that all providers and suppliers have a valid Medicare billing number at the time that a claim is being submitted for Medicare covered items or services.
Under section 1834 (j)(1)(A) of the Act, DMEPOS suppliers must have an effective Medicare billing number for the date an item or service was rendered in order to receive payment for Medicare covered items or services.
Under longstanding policy and operating procedures any claim submitted with an inactive billing number is incomplete and cannot be processed for payment. Providers and suppliers who are not enrolled in the Medicare program must adhere to the mandatory claims submission rules specified in section 1848(g)(4) of the Act and § 424.32(a)(1) (Basic requirements for all claims). In addition, a claim submitted without a valid Medicare billing number would not be considered a valid claim and will be rejected. If the mandatory claims submission requirements are not met, the provider or supplier may have sanctions imposed as outlined in section 1848(g)(4) of the Act for failure to file a claim as required.
We are adopting a position that the issuance of an identification number, including a NPI, to a provider or supplier does not automatically convey the privilege to bill Medicare. There must be a corresponding approval of the provider or supplier as meeting all Federal and State requirements to bill Medicare for the identification number to be an approved and active Medicare billing number. The NPI, as defined in 45 CFR part 162, subpart D, will be the Medicare billing number upon its adoption the Medicare program.
In § 424.510, we adopted language to clarify that the current policy remains the same and that a provider or supplier must submit to us the applicable provider/supplier enrollment application based on the type of provider or supplier enrolling. Currently, the applicable enrollment applications are identified as follows:
• CMS 855A—Medicare Enrollment Application for Institutional Providers.
• CMS 855B—Medicare Enrollment Application for clinics, Group Practices and Certain Other Suppliers.
• CMS 855I—Medicare Enrollment Application for Physicians and Non-Physician Practitioners.
• CMS 855R—Medicare Enrollment Application for Reassignment of Medicare Benefits.
• CMS 855S—Medicare Enrollment Application for Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Suppliers.
• The appropriate CMS Internet web based electronic version of the provider/supplier enrollment applications.
CMS is currently developing these electronic enrollment applications and expects it to be available in 2007.
The applicable enrollment application is used to gather information on providers and suppliers for the purposes of authorizing billing numbers and establishing eligibility to furnish services to Medicare beneficiaries. The information submitted also allows for the unique identification of the providers and suppliers for the purpose of enumeration and payment. The CMS 855 forms have been used since 1996 and were approved by OMB for these purposes (OMB approval number 0938-0685).
At § 424.510(d)(2), we are adopting the provisions which requires that a provider or supplier submit the following on the appropriate enrollment application:
• Complete, accurate and truthful responses to all information requested within each section as applicable to the provider or supplier type.
• All documentation required by CMS under this or other statutory or regulatory authority, or under the Paperwork Reduction Act of 1995 to uniquely identify the provider or supplier (for example, an NPI, a SSN or a TIN). We are including the NPI because it closely resembles other types of information contained in the proposed rule. Further, CMS will not be able to finalize the enrollment review process after May 23, 2007, unless the provider or supplier furnishes an NPI.
• All documentation required by us under this or other statutory or
In § 424.515, we are adopting a 5-year revalidation cycle. In adopting a 5-year revalidation cycle, we believe that we can address the concerns raised during the public comment process about fee-for-service contractor's ability to continue to process new enrollments while also conducting revalidation activities. Moreover, we believe that extending the revalidation cycle from 3 years to 5 years will significantly decrease the burden on providers and suppliers.
We will contact all providers and suppliers directly as to when their 5-year revalidation cycle starts beginning with those providers and suppliers currently enrolled in the Medicare program but that have not submitted a completed enrollment application. The revalidation process would ensure that we collect and maintain complete and current information on all Medicare providers and suppliers and ensure continued compliance with Medicare requirements. In addition, this process further ensures that Medicare beneficiaries are receiving items or services furnished only by legitimate providers and suppliers, and strengthens our ability to protect the Medicare Trust Funds.
We will reserve the right to perform off cycle (non-routine) revalidations and request a provider or supplier to recertify as to the accuracy of the enrollment information when warranted to assess and confirm the validity of the enrollment information. Off cycle revalidations may be triggered as a result of information indicating local health care fraud problems, national initiatives, fraud investigations, complaints from beneficiaries, or other reasons that cause us to question the integrity of the provider or supplier in its relationship with the Medicare program. Like routine revalidations, off cycle revalidations may or may not be accompanied by site visits.
In § 424.520(b), we are adopting a policy that individuals and organizations are responsible for updating their enrollment information to reflect any changes in a timely manner. We would define timely as meaning within 90 days, with the exception of DMEPOS suppliers which are currently required to report changes of enrollment information within 30 days, or a change in ownership or control of any provider or supplier which also must be reported within 30 days. Failure to do so may result in deactivation or even revocation of their billing privileges.
In § 424.525, we are adopting a position that if a provider or supplier enrolling in the Medicare program for the first time fails to furnish complete information on the enrollment application, or fails to furnish missing information or any necessary supporting documentation as required by CMS under this or other statutory or regulatory authority within 60 calendar days of our request to furnish the information, we would reject the provider or supplier's enrollment application. Rejection would not occur if the provider or supplier is actively communicating with us to resolve any issues regardless of any timeframes.
Upon notification of a rejected enrollment application, if the provider or supplier still wishes to enroll in the Medicare program, they must begin the enrollment process over by completing and submitting a new enrollment application and all applicable documentation. Since CMS cannot process an incomplete enrollment application, we must reject the application. Further, we clarify that applications that are rejected are not afforded appeal rights.
In § 424.530(a)(2) and § 424.535(a)(2), we clarify that no payments will be made to any providers or suppliers who are excluded from participation in the Medicare program under authorities found in sections 1128, 1128A, 1156, 1862, 1867, and 1892 of the Act, or who are debarred, suspended or otherwise excluded as authorized by the FASA. This includes any individual, entity, or any provider or supplier that arranges or contracts with (by employment or otherwise) an individual or entity that the provider or supplier knows or should know is excluded from participation in a Federal health care program for the provision of items or services for which payment may be made under such a program (section 1128A(a)(6) of the Act), and any provider or supplier that has been debarred, suspended, or otherwise excluded from participation in any other Executive Branch procurement or nonprocurement programs or activity (FASA, section 2455).
In § 424.530(a)(3), we are adopting the position that we may deny enrollment in the Medicare program if the provider or supplier, or any owner of the provider or supplier has been convicted of a Federal or State felony offense that we determine to be detrimental to the best interests of the Medicare program or its beneficiaries. This authority is afforded to us in many of the HIPAA fraud and abuse provisions and section 4302 of the BBA. In making assessments, we are stating that any felony convictions within the last 10 years preceding enrollment or revalidation of enrollment. In addition, we would consider the severity of the underlying offense.
Felonies that we determine to be detrimental to the best interests of the Medicare program or its beneficiaries include the following:
• Within the last 10 years preceding enrollment or revalidation of enrollment, crimes against persons, such as murder, kidnapping, rape, assault and battery, robbery, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. We believe it is reasonable for the Medicare program to question the ability of the individual or entity with such a history to respect the life and property of program beneficiaries.
• Within the last 10 years preceding enrollment or revalidation of enrollment, financial crimes, such as extortion, embezzlement, income tax evasion, making false statements, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions. We believe it is reasonable for the Medicare program to question the honesty and integrity of the individual or entity with such a history in providing services and claiming payment under the Medicare program.
• Within the last 10 years preceding enrollment or revalidation of enrollment, any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that resulted in a conviction of criminal neglect or misconduct.
• Any felonies referred to in section 1128 of the Act.
In § 424.530(a)(5), we are adopting a position that we may deny enrollment when, upon on-site review or other reliable evidence, we determine that the provider or supplier is not operational to furnish Medicare covered items or services or is not meeting these Medicare enrollment requirements or the requirements set forth in the enrollment application.
As outlined in § 424.530(b), if the denied provider or supplier appeals the decision, and the denial is upheld, that provider or supplier may submit a new enrollment application after we notify it that the original determination was upheld. If the provider or supplier did not appeal the determination, it may submit a new enrollment application
In § 424.535, we are also adopting a position that we may revoke a provider or supplier's billing privileges if we find:
• The provider or supplier, any owner, managing employee, authorized or delegated official, supervising physician or other health care personnel who must be reported on the enrollment application, of the provider or supplier, becomes excluded from the Medicare, Medicaid or any other Federal health care programs, as defined in § 1001.2, or is debarred, suspended or otherwise excluded from participating in any other Federal health care program or agency.
• The provider or supplier, or any owner of the provider or supplier, is convicted of a Federal or State felony offense that we determine to be detrimental to the best interests of the program as outlined in “Denial of Enrollment” above.
• The provider or supplier certified as “true” deliberately submitted false or misleading information in order to enroll or maintain enrollment in the Medicare program. (Offenders may be subject to criminal or civil prosecution, in accordance with current laws and regulations).
• Upon on-site review, we determine that the provider or supplier is no longer operational to furnish Medicare covered items or services.
• The provider or supplier fails to furnish complete and accurate information on the enrollment application and any applicable documentation within 60 calendar days of our notice to recertify its enrollment information.
• The provider or supplier knowingly sells to or allows another individual or entity to use its billing number.
In addition to the revocation of the provider's or supplier's billing privileges, we will require at § 424.535(b) that any provider agreement or supplier agreement in effect at the time of revocation would also be terminated effective with the date of revocation. We do not believe it would be prudent for us to maintain an active provider agreement for a provider or supplier whose business relationship with Medicare was adverse enough as to cause the revocation of its billing privileges. Section 1866(b)(2)(A) of the Act specifies that the Secretary may terminate a provider agreement after the Secretary has determined that the provider fails to comply substantially with the provisions of title XVIII. We proposed to amend § 489.53 and § 498.3 to reflect this proposal.
In new § 424.535(c), we require upon notification of the revocation of its billing privileges that the provider or supplier must complete and submit a new enrollment application as a new provider or supplier and applicable documentation. Providers must be resurveyed or recertified by the State survey agency as a new provider and must establish a new provider agreement with our Regional Office.
If the billing privileges are revoked due to the adverse activity of an individual or organization other than the provider or supplier, the revocation may be reversed if the provider or supplier terminates its business relationship with the individual or organization that was responsible for the revocation within 30 days.
As with a denial of Medicare enrollment, revocations would impact the provider or supplier on a national scale. In § 424.535(e), we added language to clarify that if a provider or supplier's billing privileges are revoked, we would review all other related Medicare enrollment files and practice locations that the revoked provider or supplier has an association with (for example, as an owner or managing employee of another enrolled organization, or member of a group practice) to determine if the initial revocation warrants additional revocations of the other associated Medicare providers or suppliers.
In § 424.535(f) we added language that the revocation becomes effective within 30 days of the initial revocation notification. In § 424.540, we add that to continue to deactivate a provider or supplier's Medicare billing number if no Medicare claims are submitted for 12 consecutive months unless current policy or regulations specify otherwise for specific provider or supplier types. The 12 month period will begin the 1st day of the 1st month without a claims submission through the last day of the 12th month without a submitted claim.
We are also adopting a position to require deactivation of a billing number if we discover changes to the information provided on the provider or supplier's enrollment application that were not reported within 90 days of the change. This includes, but is not limited to, changes to billing services, a change in the practice location, or a change of any managing employee. A change in ownership or control must be reported within 30 calendar days.
Deactivation of Medicare billing privileges is considered an interim action to protect the provider or supplier from misuse of their billing number and to also protect the Medicare Trust Funds from unnecessary overpayments. The deactivation of a billing number would not have any effect on a provider or supplier's participation agreement or conditions of participation.
In § 424.540(b), we added language to clarify the requirements of reactivation of billing privileges when a provider or supplier's billing number is deactivated, but can be restored upon the submission of updated or recertified information. We are requiring that a provider or supplier whose billing number has been deactivated for any reason other than nonsubmission of a claim for 12 months and who wants to reactivate its Medicare billing number must complete and submit a new enrollment application as appropriate. Those providers and suppliers whose billing number are deactivated after nonsubmission of a claim must recertify that the enrollment information currently on file with Medicare is correct before the claim would be paid. In addition, the provider or supplier must meet all current Medicare requirements in place at the time of the reactivation. The provider or supplier must also be prepared to submit a valid claim or risk subsequent deactivation of their billing number. Once notified, we would give all reactivations of Medicare billing numbers priority handling to ensure expedient payment of claims. Reactivation of a Medicare billing number would not require resurvey or certification by State agency, or the establishment of a new provider agreement.
In § 424.545(a), we clarify that payment will not be made during the appeals process.
In § 424.545(c),we require that the provider or supplier be able to demonstrate that they meet the enrollment requirements and be able to make available any documents and records that support the provisions of this regulation and the Medicare enrollment application.
In § 424.550, we state that a provider or supplier would be prohibited from selling its Medicare billing number to any individual or entity, or allowing another individual or entity to use its Medicare billing number. Similarly, we would prohibit a provider or supplier from transferring its Medicare billing privileges to any individual or entity, except during a change of ownership, as stated below. A provider or supplier does not have independent authority to
We are adopting this policy because only CMS and its agents can enroll providers and suppliers and grant Medicare billing privileges. These numbers are issued only after the information about the provider or supplier collected on the applicable enrollment application is verified. Because it is used to uniquely identify a provider or supplier, the Medicare billing number we issue is solely for use by the specific provider or supplier to whom it was issued.
In the case of a provider or supplier undergoing a change of ownership as described in part 489 subpart A, we would require at § 424.550(b) that an enrollment application be completed and submitted by both the current owner and new owner before the completion of the ownership change. Failure of the current owner to submit an enrollment application prior to the change of ownership may result in sanctions and penalties, after the date of ownership change, in accordance with § 424.520, § 424.540, and § 489.53. Failure of the new owner to submit the enrollment application prior to the change of ownership may result in the deactivation of the Medicare billing privileges until the enrollment application has been submitted.
We may deactivate a Medicare billing number at any time before final transference of the provider agreement to the new owner. This may occur as a result of the submission of an enrollment application with material omissions, or preliminary information received or determined by us that makes us question whether the new owner would ultimately be granted a final transference of the provider agreement. This allows us the right to ensure that billing privileges are given only to a new owner for which we have adequate information to, at a minimum, determine that the new owner should have billing privileges prior to the complete validation of their enrollment application and the transfer of the provider agreement.
We understand that not all enrollment information is available before the change of ownership. We will work with the new owner(s) to ensure a seamless transition, but it is the provider's or supplier's responsibility to report this and any other changes to us to prevent us from imposing any adverse action against it.
For those providers and suppliers not covered by part 489, and change in the ownership of control of the provider or supplier must be reported on the enrollment application within 30 days of the change as noted in § 424.540(a)(2). Generally, a change of ownership that also changes the tax identification number would require a new enrollment application from the new owner.
In § 424.555, we clarify that no payment may be made for otherwise covered items or services furnished to a Medicare beneficiary by a provider or supplier whose billing privileges were deactivated or revoked. The Medicare beneficiary would have no financial responsibility for this type of expense, and the provider or supplier must, after all appeal processes have been exhausted and if the billing privileges have not been restored, refund on a timely basis any amounts collected from the beneficiary for those otherwise covered items or services.
We are adopting these provisions because a provider or supplier who fails to provide valid enrollment information, or who is not a valid provider or supplier type under the Medicare program, cannot be verified as a legitimate provider or supplier for purposes of this rule. Claims or bills submitted for otherwise Medicare covered items or services must have an active Medicare billing number. Claims or bills submitted by a provider or supplier who is not properly enrolled, and does not have an active Medicare billing number, would be considered incomplete and would be returned. The provider or supplier would then be in violation of the mandatory claims submission requirements and could be fined for each occurrence as set forth in Section 1848(g)(4) of the Act. An incomplete claim returned for this reason would not afford appeal rights for the provider or supplier. However, as described earlier, a provider or supplier may appeal a denial or revocation of enrollment in accordance with regulations elsewhere in this subpart.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
To enroll in the Medicare program and obtain and activate a Medicare provider or supplier billing number, § 424.510(a) requires a provider or supplier to complete and submit an enrollment application to us, demonstrating that the provider or supplier meets all of the requirements set forth in this section. The burden associated with these requirements are currently captured in form CMS 855 (OMB Approval Number 0938-0685) and shown below in Table 1.
The estimated number of respondents is based on FY 2004 Medicare contractor workload reports. The cost in dollars is based on hourly salaries for applicable staff to complete the applications.
Section 424.510(a)(7) states that we reserve the right to perform on-site inspections of a provider or supplier to verify and ensure validity of the information submitted to us or our agents and to determine compliance with Medicare requirements. We intend to conduct on-site visits of all new suppliers of DMEPOS before they can enroll in the Medicare program. The burden associated with these requirements are currently captured and approved in form HCFA-R-263 (OMB Approval Number 0938-0749).
We also intend to conduct approximately 500 on-site visits to Community Mental Health Centers. The burden associated with these requirements are currently captured and approved in form HCFA-R-273 OMB Approval Number 0938-0770). In addition, we intend to conduct approximately 2,800 visits to IDTFs on an annual basis. We will seek OMB approval for these visits. The burden associated with this requirement is the time and effort necessary for a facility to provide documentation to verify information provided on their CMS 855 form and to demonstrate that they meet other necessary Medicare requirements and regulations.
Since these site visits are unannounced and performed to ensure proper physical location, equipment, and personnel to meet Medicare requirements, we do not expect the provider or supplier to incur any financial burden.
We may also conduct on-site visits of providers or suppliers based on any information that leads us or our agents to believe that an administrative action, investigation, or audit is warranted. Information collected under these situations is exempt from the PRA, as stipulated in 5 CFR 1320.4.
A provider or supplier must recertify for revalidation its enrollment information once every 5 years. Section 424.515(b) states that within 60 calendar days of our notice to recertify their enrollment information for revalidation, a provider or supplier must submit any new or revised form CMS 855 information and documentation necessary to demonstrate that they meet the requirements set forth in this section.
The burden hours shown above are for the standard 5-year reporting period. We are exploring various options on ways of minimizing the burden on providers and suppliers during the process of revalidating their enrollment information.
The estimated cost is based on an average cost of $100 per application per provider to review and return.
Following enrollment and periodic recertification of enrollment information, a provider or supplier must report to us any changes to the information furnished on the CMS 855 or supporting documentation within 90 calendar days of the change.
We will reject a provider or supplier's enrollment application if the provider or supplier does not furnish missing or necessary information and documentation to us within 60 calendar days of a request. We believe that the burden associated with this requirement is captured in § 424.515, as we will merely be seeking the information initially requested in the CMS 855.
Section 424.525(c) states that upon notification of a rejected CMS 855, the provider or supplier must complete and resubmit a new enrollment application and all applicable documentation to resume the enrollment process and obtain a Medicare billing number and billing privileges.
The annual dollar cost is based on $100 per respondent to update and resubmit a previously submitted enrollment application.
Section 424.535(c) states that upon notification of the revocation of its billing privileges, if the provider or supplier seeks to re-establish enrollment in the Medicare program it must re-enroll in the Medicare program through the completion and submission of a new CMS 855 and applicable documentation.
The annual dollar cost is based on $600 per respondent to re-enroll in the Medicare program.
Providers must also be resurveyed or recertified by the State Survey Agency and must establish a new provider agreement with our Regional Office. The burden associated with the survey and certification requirement is exempt from the PRA, as provided in section 4204(c) of COBRA 87 (Pub. L. 100-203), as amended by the Medicare Catastrophic Coverage Act of 1988 (Pub. L. 100-360). The burden associated with the requirement to establish a new provider agreement (Form HCFA-460) is currently approved under OMB Approval Number 0938-0373.
Section 424.540(a)(1) states that if no Medicare claims are submitted for 12 consecutive calendar months we will deactivate a provider or supplier's Medicare billing number. The provider or supplier must complete and submit an enrollment application for validation to reactivate its Medicare billing number and billing privileges.
The annual cost is based on $100 per respondent to review and recertify via signature their previously submitted enrollment application/information.
Table 8 shows the total estimated hourly and financial burden for all requirements outlined and proposed in this rule.
We have submitted a copy of this final rule to OMB for its review of the information collection requirements in § 424.510, § 424.515, § 424.520, § 424.525, § 424.535, and § 424.540 and related forms in the addendum. These requirements are not effective until they have been approved by OMB.
We have examined the impacts of this final rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, the Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). This final rule will establish in regulations specific provider and supplier initial enrollment procedures and the periodic revalidation of eligibility. It is not expected to have an impact that will meet the threshold criteria to be considered economically significant.
The RFA requires agencies to analyze options for regulatory relief of small businesses. For the purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or having revenues of $6 million to $29 million in any 1 year. Because of the scope of this final rule, all small entities that participate in the Medicare program are considered providers and suppliers and will be affected, but we do not expect that effect to be of a significant nature. As we show in section B of this impact analysis, the annual burden on providers and suppliers for completing the CMS 855 forms will not rise to the level of a significant burden.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. This final rule does not significantly impact small rural hospitals. As noted above, there is a minimum amount of time needed to gather data and provide the information requested on the enrollment application when initially enrolling or when resubmitting enrollment information to obtain and maintain a Medicare billing number. We are not preparing a rural impact statement since we have determined, and certify, that we do not expect this rule to impose any additional burden or otherwise significantly impact the operations of a substantial number of small rural hospitals. By default, due to their smaller size, the burden to small rural hospitals will actually be less than the average provider.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, update annually for inflation. That threshold level is currently approximately $120 million. This final rule has no consequential adverse impact on State, local, or tribal governments. This final rule may reduce some State burdens since they will no longer certify providers that are not qualified to participate in the Medicare program. The impact on the private sector is well below the threshold.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule has no substantial direct requirement costs or consequential adverse impact on State or local governments. This final rule will actually reduce some State burdens since they will no longer certify providers that are not qualified to participate in the Medicare program.
The following analysis, together with the rest of this preamble, explains the rationale, purpose, and alternatives considered in the final rule. This is an administrative initiative that may result in Medicare program savings but at this time those savings are inestimable. We believe the probable costs providers or suppliers will incur as a result of this rule to be negligible.
We are responsible for protecting the Medicare Trust Funds by ensuring that unqualified, fraudulent, or excluded providers and suppliers do not bill the Medicare program. Past experience with a number of program integrity efforts has identified that granting billing privileges to entities that do not exercise sound business practices can result in uncollectible overpayments. The ease of obtaining a billing number in the past has paved the way for unscrupulous businesses to defraud the government deliberately by billing for items or services never furnished or furnished at inflated prices.
The provisions of this final rule supplement, but do not replace or nullify, existing regulations concerning the establishment of provider or supplier agreements, the issuance of provider or supplier billing numbers, and payment for Medicare covered items or services to eligible providers and suppliers.
Basically, this final rule consolidates current regulations found throughout the
The primary goal of this final rule, through standard enrollment requirements and periodic revalidation of the enrollment information, is to allow us to collect and maintain (keep current) a unique and equal data set on all current and future providers and suppliers that are or will bill the Medicare program for items or services rendered to our beneficiaries. By achieving this goal, we will be better positioned to combat and reduce the number of fraudulent and abusive
Studies performed by our contractors, the GAO, and OIG have shown numerous instances of fictitious applicants being granted Medicare billing numbers. This final rule will integrate the request for enrollment with sufficient data to substantiate an appropriate level of performance on the part of a new or continuing business. In prior studies, the OIG has found applicants who had submitted applications with nonexistent addresses. In some instances, suppliers had no inventory of goods to be sold, lacked business licenses, had no financial investment, or lacked any experience in the business venture.
The GAO report (GAO/T-HEHS-94-124), concluded: “Weaknesses in CMS' current provider enrollment process have made Medicare vulnerable to dishonest providers. To protect the integrity of Medicare, CMS and its contractors must have effective practices for reviewing applicants to verify that they are eligible for enrollment in the program, as well as the authority to deny or revoke enrollment to those that are not.” This report also concluded that, “Periodic revalidation of provider enrollment data should be a valuable means of ensuring that we have current, useful data on active providers and that providers no longer eligible to participate in Medicare are dropped from the program.” Therefore, based on the above recommendation and our own successes with our 3-year re-enrollment policy currently in effect for DMEPOS suppliers, we are expanding this requirement to all providers and suppliers billing the Medicare program.
We have already increased our efforts to seek more uniformity in the enrollment process. However, our experience clearly shows that the best means for preventing payment errors and, in worst cases, abuse by providers and suppliers, is to discourage and prevent their entry into the Medicare program through this rule and the authority to deny enrollment or revoke their billing number.
While some entities may perceive our requirements as a barrier to their access to serving Medicare beneficiaries, we do not believe that bona fide businesses will experience any difficulty in obtaining or maintaining a Medicare billing number. We estimate that furnishing the requested information will require no more than 6 hours to complete and that most businesses should have the information readily available.
Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. Such an analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds. As noted above, there is a minimum amount of time needed to gather data and provide the information requested on the enrollment application when initially enrolling or when resubmitting enrollment information to obtain and maintain a Medicare billing number. We are not preparing a rural impact statement since we have determined, and certify, that we do not expect this rule to impose any additional burden or otherwise significantly impact the operations of a substantial number of small rural hospitals. By default, due to their smaller size, the burden to small rural hospitals will actually be less than the average provider.
There are currently about 1.2 million providers (hospitals, HHAs, rural health clinics, and SNFs) and suppliers (physicians, nurses, ambulance companies, clinical laboratories, and durable medical equipment suppliers) enrolled in the Medicare program. In addition, about 74,000 new providers and suppliers apply to enroll in Medicare each year. Listed below is the current estimated annual burden on the affected public in both hours and dollars.
Assumptions:
a. The monetary cost to the respondents is calculated as follows based on the following assumptions:
• The CMS 855I and CMS 855R will be completed by clerical staff (secretary).
• The CMS 855A, CMS 855B, and CMS 855S will be completed by professional staff (attorney or accountant).
b. Estimated Cost per Form
The monetary cost to the respondent to complete and submit the necessary CMS 855 form is:
• $900 for the CMS 855A, CMS 855B, and CMS 855S
• $80 for the CMS 855I, and
• $5 for the CMS 855R
c. Estimated Hourly Wage for Staff Completing Forms
The cost per respondent per form was determined using the following wages:
• $20.00 per hour (administrative wage)
• $150.00 per hour (professional wage)
The estimated number of respondents is based on FY 2004 Medicare contractor workload reports.
2. Completing Forms to Report Changes to Enrollment Information
The hourly burden and monetary cost estimate for this activity for all forms is—
100,000 respondents × 1 hour each = 100,000 hours
Average cost per respondent = $100
Total cost for all respondents = $10 million
3. Completing Forms to Recertify Enrollment Information (5 yr cycle)
The hourly burden and monetary cost estimate for this activity for all forms is—
232,000 respondents × 1.5 hours each = 348,000 hours
Average cost per respondent = $100
Total cost for all respondents = $23.2 million
The estimated current total annual hour burden for all classes of providers (hospitals, HHAs, rural health clinics, and SNFs) and suppliers (physicians, nurses, ambulance companies, clinical laboratories, and durable medical equipment suppliers) is 1.13 million hours.
Based on the above, the estimated current annual monetary burden for all classes of providers (for example, hospitals, HHAs, rural health clinics, SNFs) and suppliers (for example, physicians, nurses, ambulance companies, clinical laboratories durable medical equipment suppliers) is $90.84 million. The 1997 revenue receipts for all classes of providers and suppliers were $913.7 billion. The cost of obtaining and maintaining billing privileges in the Medicare program on average is less than 1 percent of the total revenue.
Although it is possible that a few entities may be significantly affected by this final rule, we do not expect that a substantial number of affected entities will experience a significant increase in the reporting burden; therefore, the Secretary certifies that this rule is not expected to impose any additional burden or otherwise significantly impact a substantial number of small entities.
Since this final rule is a codification of our current policies on provider and supplier enrollment, with the exception of imposing a cyclical revalidation process, we did not consider alternatives to this process. However, the current process was reviewed and, when possible, changes proposed or made that will reduce the current burden, such as the time frame for reporting changes.
Although we do not expect this final rule to have a significant economic impact, we are revising the requirements for reporting changes to the provider or supplier's enrollment information to reduce the current burden. Currently, providers and suppliers must report any changes to their enrollment information within 30 days. We are changing this requirement to 90 days (or quarterly). We considered retaining the current requirement but determined the 30-day timeframe as too stringent in light of the rapid changes seen in today's health care industry. This change is expected to reduce the administrative burden for the providers, suppliers, our contractors, and us.
As required by OMB Circular A-4 (available at
In accordance with the provisions of Executive Order 12866, this final rule was reviewed by OMB.
Fraud, Health facilities, Health professions, Medicare.
Emergency medical services, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Health facilities, Medicare, Reporting and recordkeeping requirements.
Administrative practice and procedure, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh)
(a) * * *
(1) * * *
1833(e)—Requirement to furnish information to determine payment.
The provisions of this subpart contain the requirements for enrollment, periodic resubmission and certification of enrollment information for revalidation, and timely reporting of updates and changes to enrollment information. These requirements apply to all providers and suppliers except for physicians and practitioners who have entered into a private contract with a beneficiary as described in part 405, subpart D of this chapter. Providers and suppliers must meet and maintain these enrollment requirements to bill either the Medicare program or its beneficiaries for Medicare covered services or supplies.
As used in this subpart, unless the context indicates otherwise—
(1) Identification of a provider or supplier;
(2) Validation of the provider's or supplier's eligibility to provide items or services to Medicare beneficiaries;
(3) Identification and confirmation of the provider or supplier's practice location(s) and owner(s); and
(4) Granting the provider or supplier Medicare billing privileges.
To receive payment for covered Medicare items or services from either Medicare (in the case of an assigned claim) or a Medicare beneficiary (in the case of an unassigned claim), a provider or supplier must be enrolled in the Medicare program. Once enrolled, the provider or supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered. (See 45 CFR Part 162 for information on the National Provider Identifier and its use as the Medicare billing number.)
(a) Providers and suppliers must submit enrollment information on the applicable enrollment application. Once the provider or supplier successfully completes the enrollment process, including, if applicable, a State survey and certification or accreditation process, CMS enrolls the provider or supplier into the Medicare program. To be enrolled, a provider or supplier must meet enrollment requirements specified in paragraph (c) of this section.
(b) The effective dates for reimbursement are specified in § 489.13 of this chapter for providers and suppliers requiring State survey or certification or accreditation, § 424.5 and § 424.44 for non-surveyed or certified/accredited suppliers, and
(c) The effective date for reimbursement for providers and suppliers seeking accreditation from a CMS-approved accreditation organization as specified in § 489.13(d).
(d) Providers and suppliers must meet the following enrollment requirements:
(1)
(2)
(i) Complete, accurate, and truthful responses to all information requested within each section as applicable to the provider or supplier type.
(ii) Submission of all documentation required by CMS under this or other statutory or regulatory authority, or under the Paperwork Reduction Act of 1995, to uniquely identify the provider or supplier. This documentation may include, but is not limited to, proof of the legal business name, practice location, social security number (SSN), tax identification number (TIN), National Provider Identifier (NPI), if issued, and owners of the business.
(iii) Submission of all documentation, including all applicable Federal and State licensure and regulatory requirements that apply to the specific provider or supplier type that relate to providing health care services, required by CMS under this or other statutory or regulatory authority, or under the Paperwork Reduction Act of 1995, to establish the provider or supplier's eligibility to furnish Medicare covered items or services to beneficiaries in the Medicare program.
(3)
(i)
(A) An individual practitioner, the applying practitioner.
(B) A sole proprietorship, the applying sole proprietor.
(C) A corporation, partnership, group, limited liability company, or other organization (hereafter referred to collectively in this section as an organization), an authorized official, as defined in § 424.502. When an authorized official signs the certification statement on behalf of an organization, the signed statement is considered legally binding upon the organization.
(ii)
(A) Be assigned by the authorized official currently on file with CMS;
(B) Be submitted to CMS using the appropriate enrollment application or CMS established electronic enrollment process;
(C) Include the title and SSN of each person delegated authority to update or change the organization's enrollment information;
(D) Be an individual that has an ownership or control interest in the organization or is a W-2 managing employee as defined in section 1126(b) of the Act; and
(E) Be signed by the authorized official and the delegated official(s) of the organization.
(4)
(5)
(6)
(7)
(8)
(i)
(ii)
To maintain Medicare billing privileges, a provider or supplier (other than a DMEPOS supplier) must resubmit and recertify the accuracy of its enrollment information every 5 years. All providers and suppliers currently billing the Medicare program or initially enrolling in the Medicare program are required to complete the applicable enrollment application. The provider or supplier then enters a 5-year revalidation cycle once a completed enrollment application is submitted and validated. (Ambulance service providers must continue to resubmit enrollment information in accordance with § 410.41(c)(2) of this chapter and DMEPOS suppliers must continue to renew enrollment in accordance with § 424.57(e)). The requirements for the resubmission, recertification and reverification of enrollment information include the following:
(a)
(1) CMS contacts each provider or supplier directly when it is time to revalidate their enrollment information.
(2) A provider or supplier must submit to CMS the applicable enrollment application with complete and accurate information and applicable supporting documentation within 60 calendar days of our notification to resubmit and certify to the accuracy of its enrollment information.
(b)
(c)
(1)
(2)
(d)
(2) CMS reserve the right to adjust the routine 5-year revalidation schedule if we determine that revalidation should occur on a more frequent basis due to complaints or evidence we receive indicating noncompliance with the statute or regulations by specific provider or supplier types. The schedule may also be on a less frequent basis if we determine that the integrity of and compliance with the statute and regulations by specific provider or supplier types indicates that less frequent validation is justified. If a change occurs, CMS notifies all affected providers and suppliers at least 90 days in advance of implementing the change.
(3) CMS revalidates enrollment information for ambulance service suppliers in accordance with § 410.41(c)(2) of this chapter (Requirements for ambulance suppliers), and DMEPOS suppliers renews enrollment in accordance with § 424.57(e) (Special payment rules for items furnished by DMEPOS suppliers and issuance of DMEPOS supplier billing numbers).
(a)
(1) Compliance with title XVIII of the Act and applicable Medicare regulations.
(2) Compliance with Federal and State licensure, certification and regulatory requirements, as required, based on the type of services or supplies the provider or supplier type will furnish and bill Medicare.
(3) Not employing or contracting with individuals or entities—
(i) Excluded from participation in any Federal health care programs, for the provision of items and services covered under the programs, in violation of section 1128A (a)(6) of the Act; or
(ii) Debarred by the General Services Administration (GSA) from any other Executive Branch procurement or nonprocurement programs or activities, in accordance with the Federal Acquisition and Streamlining Act of 1994, and with the HHS Common Rule at 45 CFR part 76.
(b)
(a)
(1) The provider or supplier fails to furnish complete information on the provider/supplier enrollment application within 60 calendar days from the date of the contractor request for the missing information.
(2) The provider or supplier fails to furnish all required supporting
(b)
(c)
(d)
(a)
(1)
(2)
(i) Excluded from the Medicare, Medicaid and any other Federal health care programs, as defined in § 1001.2 of this chapter, in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act.
(ii) Debarred, suspended, or otherwise excluded from participating in any other Federal procurement or nonprocurement activity in accordance with section 2455 of the Federal Acquisition Streamlining Act (FASA).
(3)
(i) Offenses include—(A) Felony crimes against persons, such as murder, rape, or assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk (such as a malpractice suit that results in a conviction of criminal neglect or misconduct).
(D) Any felonies outlined in section 1128 of the Act.
(ii) Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.
(4)
(5)
(i) A Medicare Part A provider is no longer operational to furnish Medicare covered items or services, or the provider fails to satisfy any of the Medicare enrollment requirements.
(ii) A Medicare Part B supplier is no longer operational to furnish Medicare covered items or services, or the supplier has failed to satisfy any or all of the Medicare enrollment requirements, or has failed to furnish Medicare covered items or services as required by the statute or regulations.
(b)
(1) Was not appealed, the provider or supplier may reapply after its appeal rights have lapsed.
(2) Was appealed, the provider or supplier may reapply after notification that the determination was upheld.
(c)
(d)
(e)
(a)
(1)
(i) CMS may request additional documentation from the provider or supplier to determine compliance if adverse information is received or otherwise found concerning the provider or supplier.
(ii) Requested additional documentation must be submitted within 60 calendar days of request.
(2)
(i) Excluded from the Medicare, Medicaid, and any other Federal health care program, as defined in § 1001.2 of this chapter, in accordance with section 1128, 1128A, 1156, 1842, 1862, 1867 or 1892 of the Act.
(ii) Is debarred, suspended, or otherwise excluded from participating in any other Federal procurement or nonprocurement program or activity in accordance with the FASA implementing regulations and the Department of Health and Human Services nonprocurement common rule at 45 CFR part 76.
(3)
(i) Offenses include—
(A) Felony crimes against persons, such as murder, rape, assault, and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(B) Financial crimes, such as extortion, embezzlement, income tax evasion, insurance fraud and other similar crimes for which the individual was convicted, including guilty pleas and adjudicated pretrial diversions.
(C) Any felony that placed the Medicare program or its beneficiaries at immediate risk, such as a malpractice suit that results in a conviction of criminal neglect or misconduct.
(D) Any felonies that would result in mandatory exclusion under section 1128(a) of the Act.
(ii) Denials based on felony convictions are for a period to be determined by the Secretary, but not less than 10 years from the date of conviction if the individual has been convicted on one previous occasion for one or more offenses.
(4)
(5)
(i) A Medicare Part A provider is no longer operational to furnish Medicare covered items or services, or the provider fails to satisfy any of the Medicare enrollment requirements.
(ii) A Medicare Part B supplier is no longer operational to furnish Medicare covered items or services, or the supplier has failed to satisfy any or all of the Medicare enrollment requirements, or has failed to furnish Medicare covered items or services as required by the statute or regulations.
(6)
(7)
(b)
(c)
(1) The provider or supplier must re-enroll in the Medicare program through the completion and submission of a new applicable enrollment application and applicable documentation, as a new provider or supplier, for validation by CMS.
(2) Providers must be resurveyed and recertified by the State survey agency as a new provider and must establish a new provider agreement with CMS's Regional Office.
(d)
(e)
(f)
(a)
(1) The provider or supplier does not submit any Medicare claims for 12 consecutive calendar months. The 12 month period will begin the 1st day of the 1st month without a claims submission through the last day of the 12th month without a submitted claim.
(2) The provider or supplier does not report a change to the information supplied on the enrollment application within 90 calendar days of when the change occurred. Changes that must be reported include, but are not limited to, a change in practice location, a change of any managing employee, and a change in billing services. A change in ownership or control must be reported within 30 calendar days as specified in § 424.520(b) and § 424.550(b).
(b)
(2) Providers and suppliers deactivated for nonsubmission of a claim are required to recertify that the enrollment information currently on file with Medicare is correct and furnish any missing information as appropriate. The provider or supplier must meet all current Medicare requirements in place at the time of reactivation, and be prepared to submit a valid Medicare claim.
(3) Reactivation of Medicare billing privileges does not require a new certification of the provider or supplier by the State survey agency or the establishment of a new provider agreement.
(c)
(a) A provider or supplier that is denied enrollment in the Medicare program or whose Medicare enrollment has been revoked may appeal CMS' decision in accordance with part 405, subpart H, for suppliers, or part 498, subpart A for providers, of this chapter, which set forth the appeals process for providers and suppliers. When revocation of billing privileges also results in the termination of a corresponding provider agreement, the provider may appeal CMS' decision in accordance with part 498 of this chapter with the final decision of the appeal applying to both the billing privileges and the provider agreement. Payment is not made during the appeals process. If the provider or supplier is successful in overturning a denial or revocation, unpaid claims for services furnished during the overturned period may be resubmitted.
(b) A provider or supplier whose billing privileges are deactivated may file a rebuttal in accordance with § 405.374 of this chapter.
(c) The provider or supplier must be able to demonstrate that it meets the enrollment requirements and it must be able to make available any documents and records that support the provisions of this regulation and the Medicare enrollment application if requested by CMS or its agents.
(a)
(b)
(c)
(a) No payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary by suppliers of durable medical equipment, prosthetics, orthotics, and other supplies unless the supplier obtains (and renews, as set forth in section 1834(j) of the Act) Medicare billing privileges.
(b) No payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary by a provider or supplier if the billing privileges of the provider or supplier are deactivated, denied, or revoked. The Medicare beneficiary has no financial responsibility for expenses, and the provider or supplier must refund on a timely basis to the Medicare beneficiary any amounts collected from the Medicare beneficiary for these otherwise Medicare covered items or services.
(c) If any provider or supplier furnishes an otherwise Medicare covered item or service for which payment may not be made by reason of paragraph (b) of this section, any expense incurred for such otherwise Medicare covered item or service shall be the responsibility of the provider or supplier. The provider or supplier may also be criminally liable for pursuing payments that may not be made by reason of paragraph (b) of this section, in accordance with section 1128B(a)(3) of the Act.
Secs. 1102, 1819, 1861, 1864(m), 1866, 1869, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395i-3, 1395x, 1395aa(m), 1395cc, 1395ff, and 1395hh).
(a) * * *
(15) It had its enrollment in the Medicare program revoked in accordance to § 424.535 of this chapter.
Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
(b) * * *
(17) The revocation of a provider or supplier's Medicare enrollment in accordance to § 424.535 of this chapter.
Office of Policy and International Affairs, U.S. Department of Energy.
Final rule.
Section 1605(b) of the Energy Policy Act of 1992 directed the Department of Energy (DOE) to issue guidelines establishing a voluntary greenhouse gas reporting program. On February 14, 2002, the President directed DOE, together with other involved Federal agencies, to recommend reforms to enhance the Voluntary Reporting of Greenhouse Gases Program established by DOE in 1994. DOE issued interim final General Guidelines on March 24, 2005, and also on that date published a notice of availability inviting public comment on draft Technical Guidelines needed to fully implement the revised Voluntary Reporting of Greenhouse Gases Program. This notice of final rulemaking responds to public comments on the interim final General Guidelines and draft Technical Guidelines; sets forth the final General Guidelines; and announces the availability of the final Technical Guidelines.
Mark Friedrichs, PI-40, Office of Policy and International Affairs, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, or e-mail:
Section 1605(b) of the Energy Policy Act of 1992 (EPACT) directs the Department of Energy, with the Energy Information Administration (EIA), to establish a voluntary reporting program and database on emissions of greenhouse gases, reductions of these gases, and carbon sequestration activities (42 U.S.C. 13385(b)). Section 1605(b) requires that DOE's guidelines provide for the “accurate” and “voluntary” reporting of information on: (1) Greenhouse gas emission levels for a baseline period (1987-1990) and thereafter, annually; (2) greenhouse gas emission reductions and carbon sequestration, regardless of the specific method used to achieve them; (3) greenhouse gas emission reductions achieved because of voluntary efforts, plant closings, or state or federal requirements; and (4) the aggregate calculation of greenhouse gas emissions by each reporting entity (42 U.S.C. 13385(b)(1)(A)-(D)). Section 1605(b) contemplates a program whereby voluntary efforts to reduce greenhouse gas emissions can be recorded, with the specific purpose that this record can be used “by the reporting entity to demonstrate achieved reductions of greenhouse gases” (42 U.S.C. 13385(b)(4)).
In 1994, after notice and public comment, DOE issued General Guidelines and sector-specific guidelines that established the Voluntary Reporting of Greenhouse Gases Program for recording voluntarily submitted data and information on greenhouse gas emissions and the results of actions to reduce, avoid or sequester greenhouse gas emissions. The 1994 General Guidelines and supporting documents may be accessed at
On February 14, 2002, the President directed the Secretary of Energy, in consultation with the Secretary of
On May 6, 2002, DOE published a Notice of Inquiry soliciting public comments on how best to improve the Voluntary Reporting of Greenhouse Gases Program (67 FR 30370). Written comments were received from electric utilities; representatives of energy, manufacturing and agricultural sectors; Federal and State legislators; State agencies; waste management companies; and environmental and other non-profit research and advocacy organizations. DOE held public workshops in Washington, DC, Chicago, San Francisco and Houston during November and December of 2002 to receive information and hear the views of interested persons. In addition, the U.S. Department of Agriculture sponsored two workshops in January 2003 to solicit input on the accounting rules and guidelines for reporting greenhouse gas emissions in the forestry and agriculture sectors. These workshops explored in greater depth many of the issues raised in the Notice of Inquiry and addressed in the written comments.
On December 5, 2003, DOE proposed revised General Guidelines (68 FR 68204). A public workshop was held on January 12, 2004, to discuss that proposal and to receive public comment. Approximately 200 persons attended the workshop. In addition, over 300 written comments were received by the close of the public comment period on February 17, 2004.
DOE published interim final revised General Guidelines on March 24, 2005 (70 FR 15169), and, in a notice published in the
DOE now publishes final General Guidelines and announces the availability of final Technical Guidelines that are incorporated by reference in the General Guidelines. The revised General and Technical Guidelines are designed to enhance the measurement accuracy, reliability and verifiability of information reported under the 1605(b) program and to contribute to the President's climate change goals. The key elements of the revised guidelines remain the same as those present in the interim final General Guidelines:
• Enable larger emitters to register reductions if they provide entity-wide emissions data and can demonstrate they achieved entity-wide emission reductions that contribute to the President's goal of reducing the greenhouse gas emissions of the U.S. economy.
• Provide for simplified procedures for small emitters to report and to register reductions.
• Provide for simplified reports from entities that do not want to register their reductions.
• Encourage companies and other reporting entities to report at the highest level.
• Require participants to ensure the accuracy and completeness of their reports, and encourage independent verification.
• Allow participants to report and register reductions achieved internationally.
Based on the framework set forth by the interim final guidelines and the various improvements made in response to the public comments received, today's final revised guidelines will enhance:
• Measurement accuracy by creating a ranking system for methods to calculate emissions, incorporating the best available inventory methods, and enabling more sources to be covered;
• Reliability by creating a more systematic approach to reporting, stressing inventories and entity-wide reporting; and
• Verifiability by creating a more transparent reporting system for emissions and reductions, requiring recordkeeping and encouraging independent verification.
The Secretary of Energy has approved issuance of this final rule.
The General Guidelines set forth in this notice and the Technical Guidelines incorporated by reference will go into effect on June 1, 2006. In the near future, EIA intends to make available for public review and comment draft forms for collecting the data covered by these guidelines, including the Simplified Emissions Inventory Tool (SEIT) referenced in the guidelines. After taking into account any public comments it receives and complying with the requirements of the Paperwork Reduction Act of 1995, EIA anticipates that final forms will be issued before the end of 2006. In addition, EIA will be developing the software necessary to permit electronic reporting and the creation of an automated and widely accessible data base. EIA does not anticipate completing the necessary software until mid-2007. If time and resources permit, EIA may conduct cognitive testing of beta versions of the reporting software. Should EIA conduct such testing, EIA will solicit potential participants via a public notice, postings to its website, or some other means. According to the forms and software schedule currently anticipated by EIA, the revised guidelines will be used to govern the 2007 reporting cycle. Until then, entities interested in reporting under the program during the 2006 reporting cycle should use the existing guidelines and forms.
The public comments received by DOE expressed considerable support for the emphasis of the revised guidelines on entity-wide reporting on all greenhouse gas emissions, including the added requirements imposed on entities that are seeking to register reductions. There was also substantial support for DOE's efforts to enhance the quality, consistency and credibility of the emission inventories and reductions being reported. The comments, however, raised a number of concerns regarding the potential burdens of reporting under the revised guidelines, possible incompatibilities with various existing reporting programs or protocols, and the limitations on reporting certain types of emission reductions, especially those occurring outside the boundaries of the reporting entity. While the basic framework of the guidelines remains the same, DOE has made a number of changes designed to address these concerns, and has adopted many of the specific recommendations made during the comment period.
To reduce the potential burdens of reporting under the revised guidelines, DOE's final guidelines:
• Enable entities that have their reports independently verified or that certify their use of higher quality inventory methods to file less detailed reports;
• Increase the ratings of some commonly used methods for estimating emissions;
• Enable reports on non-U.S. emissions to be consolidated regionally or globally (as long as U.S. data is kept separate); and
• Clarify the flexibility available to reporters that wish to avoid or minimize the complexities of accounting for changes in carbon stock or other provisions.
To increase the compatibility of the revised guidelines with various existing reporting programs and protocols, DOE's final guidelines update its references to existing protocols and update the emission factors drawn from such protocols; provide an exception in section 300.5(b) for participants in EPA's Climate Leaders or DOE's Climate VISION who may wish to use base periods that end as early as 2000; and attempt to increase the alignment of various definitions and methods with those used by other existing programs.
To expand the opportunities for reporting offset emission reductions, DOE's final guidelines, among other things: (1) Add new action-specific methods for demand-side management programs, the substitution of fly ash for cement by concrete mixers, and anaerobic digestion of waste at agricultural facilities and wastewater treatment plants; (2) enable multiple reporting entities to register portions of the offset reductions achieved by a single other entity, as long as the other entity complies with all of the requirements for registration and has entered into an agreement with each of the reporting entities; and (3) permit the accelerated reporting of carbon stock increases expected to occur on land that is being reforested, restored and permanently protected.
DOE has not adopted the recommendation of commenters who advocated that DOE mandate participation in the 1605(b) program because such a mandate is beyond the statutory authority of DOE.
This section of the Supplementary Information discusses the issues raised by the public comments on the interim final General Guidelines and the draft Technical Guidelines and any changes to the guidelines that DOE has made in response to the comments.
A few comments suggested that DOE consider a delay in the start of the revised program or a phased implementation of the new requirements. DOE does not consider either a delayed or phased implementation of the revised guidelines to be necessary or practical. Starting the program in calendar year 2007 should give most reporters sufficient time to prepare to meet the requirements of the new program. If individual reporters require additional time, they may delay their own participation. Entities that are unable to meet all of the requirements for
DOE intends to review and, if necessary, update the guidelines approximately every three years, although exceptional circumstances may require amendment of the guidelines at other times. Modifications to either the General Guidelines or the Technical Guidelines will be subject to public notice and comment. Some commenters noted that this public process might be too cumbersome and time consuming for the adoption of routine updates to the many emission factors and protocols cited by the guidelines. To address this concern, DOE has modified some provisions of the Technical Guidelines to direct reporters to use the most current version of certain government-sponsored or consensus-based factors, methods and protocols.
The revised guidelines set forth the requirements for all reporters under the 1605(b) program as well as requirements that must be met by only those reporters that are seeking to
Some commenters recommended that the distinction between reporting under the program and registering emission reductions be eliminated, which would enable all reporters to receive the same level of recognition, regardless of whether or not they met the entity-wide reporting requirements. DOE believes that the elimination of this distinction would significantly diminish the incentive for large emitters to improve the overall quality of their reports by undertaking the more costly activities associated with emission inventories and entity-wide assessments of reductions, which are required for registration.
In addition to objecting on policy grounds to the distinction between reported registered reductions and other reported reductions, one commenter argued that in the absence of express authorization, there is no legal basis in section 1605(b) for changing from a unitary system of reporting to a two-tier system that distinguishes between two types of reported emissions and reductions. Other commenters contended that because section 1605(b) expressly includes reductions from plant closings among the information that entities may report under the program, DOE may not exclude such reductions from the reductions that can be registered under the revised guidelines.
DOE rejects the comments arguing that DOE may not distinguish among different types of reported emissions and reductions within EIA's database because there is no express authority for such differentiation in section 1605(b). Section 1605(b) broadly charges DOE with issuing guidelines, after opportunity for public comment, for the “voluntary collection and reporting of information on sources of greenhouse
Nothing in the statute limits the information on sources of greenhouse gases reported under the program to that described in section 1605(b)(1)(A)-(D). Rather, the information described in (A) through (D) is the minimum information that may be reported under DOE's procedures. While the text of section 1605(b) does not specifically address the question of whether DOE may create categories of reported greenhouse gas information within the EIA database, DOE's procedures must provide for the
DOE also rejects the comment that because section 1605(b) expressly includes reductions from plant and facility closings among the information that entities may report under DOE's procedures, DOE may
Several commenters suggested that the revised program guidelines should include a summary of the guidelines' requirements for reporting and for registering emissions and reductions. In response, DOE is providing a summary of the requirements in section 300.1 of today's General Guidelines. The requirements for reporting and registering emissions and reductions are described in the following sections of this Supplementary Information.
Each reporter under the program must be an “entity,” as defined in the guidelines and must file an entity statement. Reporters not intending to register emission reductions must, at minimum, meet the entity statement, record keeping, and certification requirements set forth in sections 300.5(f), 300.9, and 300.10, respectively. They may choose to report their emissions and/or their emission reductions on an entity-wide basis or for selected elements of their entities, selected gases or selected sources. Emission inventories for any year back to 1990 may be reported, and emission reductions may be reported for any year back to 1991, relative to base periods of one to four years, ending no earlier than 1990. All reporting entities, whether or not they intend to register reductions, must use the emission inventory and emission reduction calculation methods specified in the Technical Guidelines. For example, as discussed in section III.K.8. of this Supplementary Information, the guidelines now provide for the reporting of the emissions and reductions associated with chlorofluorocarbons (CFCs), although such reductions are not eligible for registration. In the future, DOE may revise the guidelines to add methods that permit the reporting and, in some cases, the registration of reductions associated with other gases. While entities that do not intend to register reductions need not ensure that their emission inventories achieve a weighted average quality rating of 3.0 or higher (a requirement that is discussed in section III.J.1 below), they must calculate and report the weighted average quality rating of any emission inventories they do report. In most situations, entities not registering reductions may choose an emissions intensity, absolute emissions or generic action-specific method to calculate the emission reductions they report. However, in those situations where a special calculation method is provided, such as sequestration, the sale of distributed energy, or an action-specific method, the entity must use the appropriate method provided in the Technical Guidelines. Entities not intending to register reductions may also report (but not register) offset reductions achieved by third parties outside their boundaries as long as such reductions are reported separately and calculated in accordance with methods specified in the guidelines. The third party that achieved these reductions must agree to their being reported as offset reductions, and must also meet all of the other minimum requirements of reporting under the program, including the provision of an entity statement, the maintenance of records, and necessary certifications as stipulated in §§ 300.9 and 300.10.
Entities that intend to register reductions must meet a number of additional requirements, although these requirements differ depending on whether the entity is a large or small emitter.
To be eligible for registration, a reduction must have been calculated using a base period ending no later than 2002, unless the entity has committed under the Climate Leaders or Climate VISION programs to reduce its entity-wide emissions relative to a base period that ends earlier than 2002, but no earlier than 2000.
In order to register reductions, large emitters must submit entity-wide emission inventories that meet or exceed the minimum quality requirements specified in § 300.6(b) and the Technical Guidelines. Any registered reductions must be based on entity-wide assessments of annual changes in net emissions, determined in accordance with §§ 300.7 and 300.8 and the Technical Guidelines. They must also meet the entity statement and certification requirements specified in §§ 300.5 and 300.10.
Small emitters must also submit emission inventories that meet minimum quality requirements and base their registered reductions on assessments of annual changes in net emissions, but small emitters may restrict these inventories and assessments to a single type of activity, such as forest management, building operations or agricultural tillage, rather than covering all of their entity's emissions. Small emitters must also submit entity statements, certify the accuracy of their reports and meet other requirements of reporting and registering.
Both large emitters and small emitters that have met the requirements for registering their own reductions may also register offset reductions achieved by other entities, as long as they have an agreement with the third party to do
Most of the comments on these provisions of the interim final guidelines were generally supportive, although a few significant concerns were raised and a number of specific changes were recommended.
Several commenters urged DOE to require entities to report at their highest level of aggregation within the United States, while other commenters urged DOE to provide entities even more flexibility in how they define themselves for the purpose of reporting under the program. The final guidelines retain the basic approach put forward in the interim final General Guidelines: entities must have a legal basis and are encouraged—but not required—to report at their highest level of aggregation within the United States. If an entity chooses to report at a lower level of aggregation, the reporting entity must have a legal basis and must be defined in a way that is consistent with the management structure of the parent company or organization.
Section 300.2 of the interim final rule defines “entity or reporting entity” as the whole or part of any business, institution, organization or household that is recognized as an entity under any U.S. Federal, State or local law that applies to it; is located, at least in part, in the United States; and whose operations affect U.S. emissions of greenhouse gases. Some commenters argued that the “legally distinct entity” test is too inflexible and urged DOE to abandon the test. One stated that electricity providers may have different reporting options due to differences in State regulation or the absence of such regulation. The commenter recommended revising the definition to allow an entity to consist of a set of corporate business and other organizational units that comprise a single business activity, even though they may not be legally distinct. Another commenter stated that the definition of “entity” would pose a problem for global corporations that are legally structured by product line, rather than by country. A large industry association did not criticize the substance of DOE's definition of “entity or reporting entity,” but rather offered drafting guidance that it considered would better accomplish DOE's intent. It also suggested a separate definition of “reporting entity.”
After considering the comments, DOE has retained the requirement that an entity that reports under the 1605(b) program must be recognized as an entity under a U.S. Federal, State or local law. In light of changes to the provisions for reporting non-U.S. emissions (discussed elsewhere in this Supplementary Information), DOE does not believe the definition of “entity” in the final guidelines will pose a problem for global corporations. While not necessarily agreeing with many of the criticisms of the interim final guideline definition of “entity or reporting entity,” DOE found the suggested drafting improvements to be helpful and has included several of them in revised definitions for the terms “entity” and “reporting entity.” These changes include increased emphasis on the coverage of government bodies, agencies or other institutions, which DOE always intended to be encompassed by the broad definition of entity included in the guidelines.
The organizational boundaries of reporting entities largely determine which emissions and sources are covered by the entity's reports. DOE's interim final General Guidelines encourage entities to use financial control as the primary basis for determining the organizational boundaries of the reporting entity. While the interim guidelines encourage the use of financial control as the basis for setting organizational boundaries, they permit entities to use other methods, such as equity share or operational control, as long as they are explained.
Boundary definitions are important because they determine what emission and emission reductions a particular reporting entity may assume responsibility for when reporting under the program. As a voluntary reporting program, however, 1605(b) boundaries do not determine the legal rights of reporting entities to emissions or emission reductions. They are used only as the basis for DOE recognition of any registered reductions reported under the program. The comments received by DOE on these provisions of the guidelines were generally supportive of DOE's approach, although some encouraged even more flexibility. No changes have been made to the provisions included in the interim final guidelines.
Financial control encompasses all buildings, facilities, lands, vehicles and equipment that are wholly owned by the entity or in which the entity has a controlling financial interest. Conversely, it usually does not include buildings, facilities, lands, vehicles and equipment that are wholly owned by a different entity or in which another entity has a controlling financial interest. However, financial control would exist if an entity has a long-term lease or other long-term agreement that gives it effective control over capital investment and operational decisions.
An alternative method for determining entity boundaries is equity share, where more than one entity has a financial interest in a particular facility or emission source, and each of the entities takes responsibility for reporting only a portion of the facilities emissions and reductions. Operational control, where an entity controls the day-to-day operations of facility or source, but does not exercise long term financial control might also be an option under certain circumstances. If either equity share or operational control is chosen as the method for determining boundaries, the reporting entity must inform the other entities that share responsibility for particular sources of its intention to report under the 1605(b) in order to ensure that the sources emissions or reductions are not double-counted under the program. Finally, the General Guidelines have been modified to provide further guidance regarding the coverage of partially-owned or leased sources, and sources that are neither owned nor leased by the reporting entity.
The interim final guidelines permit entities to define their entity so as to include operations, and their associated emissions, located outside of the United States. They also permit certain non-U.S. entities to be the source of offset emission reductions, as long as they meet all of the requirements of the revised guidelines. The interim final General Guidelines would allow entities to both report and register emissions and emission reductions occurring outside of the United States, subject to certain requirements. One of these requirements is that non-U.S. emissions
In allowing entities to both report and register emissions and emission reductions occurring outside of the United States, the interim final General Guidelines require that emissions and reductions for each country be segregated in the report submitted to EIA. One stakeholder, a large multinational corporation, argued that this would place an undue burden on companies having operations in numerous countries, particularly where business units that provide an appropriate level of aggregation (
DOE's interim final guidelines include a number of specific requirements for the contents of the entity statements to be submitted by all reporters, although the specific requirements vary somewhat depending on whether the reporter is a large or small emitter interested in registering reductions, or a reporter that is not intending to register reductions. Very few comments were received on the requirements and no significant changes have been made to the provisions concerning the entity statement.
Under the interim final guidelines, “small emitters” are a special category of reporters that are exempted from certain requirements for the registration of reductions, including entity-wide emission inventories and entity-wide assessments of reductions. DOE received a substantial number of comments on these provisions. Several of these comments were critical of the exemptions and argued that small emitters deserve no special treatment. These were countered by a number of other comments that argued that the burdens on small emitters under the interim final guidelines are too onerous, and the exemptions should be expanded. After considering these comments, DOE believes that the provisions in the interim final guidelines strike the proper balance between relieving the burden on small emitters and requiring the submission of emissions information for registration. Consequently, DOE has not significantly altered these provisions of the guidelines. It should be noted that small emitters seeking to register reductions are only required to report on the emissions and reductions associated with a single, chosen “activity,” rather than all of the entity's activities. Finally, the guidelines continue to permit entities to use a Simplified Emissions Inventory Tool (SEIT), to be provided by the Energy Information Administration, to estimate their emissions for purposes of determining whether the entity is a small or large emitter, and for estimating the quantity of emissions excluded as
In the interim final guidelines, DOE provides some special guidance for entities that register reductions on behalf of other entities, so-called “aggregators.” Large emitters that serve as aggregators must meet all of the requirements for registration, including submission of entity-wide emission inventories and entity-wide assessment of their emission reductions. However, entities that are small emitters can register the offset reductions of other entities and not report on any of their own emissions or reductions, although such small emitters would have to submit an entity-statement and an estimate of their total emissions indicating that they qualified as a small emitter. While aggregators can be either small or large emitters, DOE believes that most are likely to be small organizations or companies that would qualify as small emitters. Some aggregators, such as trade associations, might report on behalf of large emitters, but the potential benefits of such indirect reporting by large emitters are limited because essentially the same data and certifications would have to be provided to DOE, whether the entity reported directly or through an aggregator. DOE received some requests for clarification of these requirements, but none of the comments suggested major changes.
The interim final General Guidelines, and the Glossary accompanying the draft Technical Guidelines, define terms used in the guidelines. These definitions were the focus of considerable comment, and many comments offered specific suggestions for changes. Others recommended the addition of new definitions of terms or, in some cases, the transfer of a definition that appeared in the Glossary to the definition section of the General Guidelines. A few comments noted differences between terms and definitions used in the DOE guidelines and comparable terms and definitions used in other protocols for the reporting of greenhouse gas emissions. While DOE has attempted to minimize such differences, DOE has concluded that in some situations, it is necessary to use a new term or define a term in a way that differs from the usage or definition of the term used by other programs. For this reason, DOE urges reporters and other users to carefully review the definitions contained in both the final General Guidelines and the final Technical Guidelines.
The following sections summarize the comments received on definitions and DOE's response to the comments.
The definition for “
The definition of “
The interim final General Guidelines provide that reporters not intending to register reductions can establish base periods as early as the 1987-1990 timeframe identified in section 1605(b) and can report reductions beginning as early as 1991. However, the interim final guidelines provide that entities intent on registering reductions must establish base periods of no more than four years that end no earlier than 2002, and may not register reductions that were achieved prior to 2003.
DOE received a number of comments on these provisions of the interim final guidelines, most of which recommended that entities be allowed to report emissions and emission reductions that occurred prior to 2002/2003. Some commenters indicated that they had made commitments under the Climate Leaders or Climate VISION programs that used base periods that ended prior to 2002 and that they were able to report the progress made toward the achievement of these commitments prior to 2003. In response to these comments, DOE has modified the guidelines to permit entities that have made a commitment to reduce entity-wide emissions under the Climate Leaders or Climate VISION to establish base periods that end as early as 2000. This exception would permit most, but not all participants in these programs to use the same base periods used in such voluntary programs in their reports to DOE under the 1605b program.
DOE believes that even with this exception, the program will continue to be focused on recent and future efforts to reduce greenhouse gas emissions and consistent with providing an indication of the reporting entities' contributions to the President's goal of reducing greenhouse gas emissions intensity of the U.S. economy by 18 percent between 2002 and 2012. The revised General Guidelines still permit reporting of historical activity, however, and therefore fully comply with the statutory requirements of section 1605(b).
The interim final guidelines establish several different kinds of emission factors and benchmarks intended to approximate the emissions associated with electricity use, the emissions avoided as a result of reduced electricity demand, or the emissions avoided by increasing generation from non-emitting or low-emitting sources. For emission inventories, the interim final guidelines provide that entities should convert their electricity demand to emissions using factors supplied by DOE that would be based on the regional averages of electric sector emissions intensities. DOE stated that entities should use factors that were derived from the national average emissions intensity of the electric sector as a whole for calculating reductions associated with reduced electricity demand or increased generation from non-emitting or low-emitting sources. DOE indicated that the national average emissions intensity was considered to be a better indicator of the actual emissions likely to be displaced by reduced demand or increased generation.
Many commenters recommended making the factors used for inventories and for calculating reductions the same, although some supported the DOE's rationale for proposing different factors. Some advocated regional factors as better indicators of the emissions and reductions associated with specific sources. Others advocated national factors as good indicators of actual emissions and reductions, and as a way of simplifying the reporting burden of entities that operated in multiple regions. Some utilities recommended that the benchmark used for estimating avoided emissions be based on the regional averages of fossil-fired generating plants, which they argued would be a better indictor of the emissions being displaced. Other utilities recommended that entities be permitted to choose either a system-specific benchmark, based on the emissions intensity of marginal plants, or a regional average.
After careful consideration of the comments, DOE has adopted the
The definition of the U.S. regions to be used in calculating the indirect emissions associated with electricity use and avoided emission benchmarks is an important technical issue. In the draft Technical Guidelines, DOE indicated its intent to use North American Electric Reliability Council (NERC) regions as the basis for the indirect emission factors used in preparing emission inventories. Some comments suggested that NERC subregions, especially for the western United States would be more appropriate. Others urged DOE to consider the use of EPA's eGRID regions. In choosing among these and other options, DOE considered whether: (1) It would be possible to provide meaningful values for all possible reporting years (the earliest possible reporting year is 1987) based on readily available public data; (2) reporters would be able to readily determine which factor applied to specific facilities or operations; and (3) the resulting factors would provide a good approximation of the indirect emissions associated with electricity use or demand reductions in a particular region. After careful consideration, DOE concluded that basing indirect emission factors on either NERC or eGRID regions would not achieve one or more of these three objectives. For example, because the NERC and eGRID regions cut across state lines, it will likely be difficult for reporters to determine which region is applicable to a specific facility.
Consequently, DOE decided to base these factors on the electric sector emission intensities of state-based regions that approximate the most current NERC regions and, in the case of the western United States, appropriate subregions. The purpose of these state-based regions is to approximate the actual emissions associated with the electricity supplied to users, while also utilizing data that is readily available for all reporting years and boundaries that are well recognized by potential reporters. EIA will determine the most appropriate State groupings for the development of the indirect and avoided emission factors based on NERC regions and applicable subregions, as defined in June 2006. Generally, those states that are split among two or more NERC regions or subregions should be assigned to the state grouping that contains most of the state's population. One possible grouping that will be considered by EIA is: (1) New York, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire and Maine; (2) New Jersey, Delaware, Pennsylvania, Maryland, West Virginia, Ohio, Indiana and Michigan; (3) Illinois and Wisconsin; (4) Missouri, Kentucky, Virginia, Arkansas, Tennessee, North Carolina, South Carolina, Louisiana, Mississippi, Alabama and Georgia; (5) Florida; (6) Texas; (7) Oklahoma and Kansas; (8) North Dakota, South Dakota, Nebraska, Minnesota and Iowa; (9) Colorado, Utah, Nevada, Wyoming and Montana; (10) New Mexico and Arizona; (11) Oregon, Washington and Idaho; (12) California; (13) Hawaii; and (14) Alaska. EIA will provide factors for 1999 and subsequent data years and will periodically (
Several comments focused on the treatment of transmission and distribution (T&D) losses in the calculation of the factors used to represent the emissions associated with electricity demand (to be included in emission inventories) and reductions in electricity demand (to be included in emission reduction calculations). Some noted that T&D losses were not included in the emission factors widely used by the Climate Leaders program. Others favored the inclusion of such T&D losses in the factors representing emissions associated with electricity demand and reductions. DOE decided to continue to include such losses in the factors used to estimate both the inventories and reductions associated with electricity use. By including such losses, these factors will provide a better indicator of the emissions resulting from electricity demand. Entities that wish to include both generation and T&D losses in their reporting of indirect emissions to the Climate Leaders program may do so, as long as they note that their reports include both types of losses, based on the factors provided by DOE.
The interim final guidelines provide detailed guidelines for the conduct of emission inventories. DOE received a large number of comments that touched on emission inventory guidelines in some way. Most comments were generally supportive of the framework for emission inventories set forth in the General Guidelines and the more detailed provisions of the draft Technical Guidelines. However, some commenters raised concerns regarding the start year and
In the final guidelines, an emissions inventory is an accounting of an entity's actual emissions (direct, indirect and sequestered) during a specified year. An emissions inventory provides, by itself, a useful record of an entity's actual emissions over time, but it also serves as one of the inputs necessary for the calculation of the base values used in determining emission reductions. For this reason, an emissions inventory is usually a major element of an entity's first report under the program.
Since emission inventories are a critical part of calculating emission reductions, all reports under the revised program should include some kind of inventory. Entities that do not intend to register reductions and small emitters may restrict their inventory data to those sources or activities that will be the focus of future emission reduction calculations. However, large emitters that intend to register reductions must submit entity-wide emission inventories and may exclude from such inventories only
The following sections summarize the major comments that addressed the emission inventory requirements of the interim final guidelines and DOE's responses to the comments.
The interim final guidelines established a quality rating system for emission inventories. Reporters could choose among a range of different methods for measuring or estimating the emissions from specific sources. Each
Most comments received by DOE supported the emphasis of the interim final guidelines on quality entity-wide inventories. The final rule retains the requirement for a 3.0 quality rating for the emissions inventories that large emitters must submit as a prerequisite for registering reductions. DOE believes that methods given an A or B rating are sufficiently accurate to serve as the basis for entity-wide reporting, while methods given a C or D rating should be used only for those gases or sources that represent a small share of the reporting entity's total emissions. Several commenters suggested that the A and B methods available for specific sources or industrial sectors are too burdensome and will make it difficult for some entities to prepare inventories that meet the 3.0 quality rating. DOE has made some modifications to the ratings for the available methods to ensure that a cost-effective and practical A- or B-rated method is available for every emissions source.
As the table below demonstrates, three very different companies with diverse emission profiles could meet the 3.0 quality rating threshold using an inventory approach specific to their company. Company A is a large electric utility, with a vast preponderance of emissions attributable to stationary fossil fuel combustion. As a result, this company may use lower rated (and lower cost) methods for estimating emissions from its smaller sources, such as fleet vehicles and sulfur hexafluoride used as an insulator on transmission lines. Similarly, a landfill operator could achieve the quality-rating threshold by ensuring that it uses “B” or better-rated methods for estimating methane emissions from the landfill. Company C, a large Federal defense contractor, is able to offset its lower rated estimates of emissions from mobile sources with higher rated methods for estimating emissions from stationary combustion at its lone manufacturing facility.
DOE has modified the guidelines to enable entities that obtain independent verification to simplify their inventory reports and to permit entities that certify their use of only A or B methods to forego the reporting or calculation of a quantity-weighted quality rating. Finally, DOE has made some clarifying changes to emphasize that prior year inventories may be modified only to correct significant errors, and that entities may choose at any time to modify the methods used to prepare their current and future year inventories. DOE hopes that such modifications lead to improvements in inventories over time.
Numerous comments proposed changes to the provision of the interim final General Guidelines that allows entities to exclude from their entity-wide emission inventories up to 3 percent of their total emissions. Many of these commenters recommended that entities be permitted to exclude up to 5 percent of their total emissions, while others proposed to permit entities to exclude certain types of sources entirely, such as motor vehicles that are not an integral part of the production process or small tracts of undeveloped land. On the other hand, a number of commenters requested that the
The interim final Technical Guidelines contain a rating system for determining the quality of emission inventories reported under the 1605(b) program. Up to four methods are identified and rated for measuring or estimating the emissions from every source, with the highest rating being an A (worth 4 points) and the lowest a D (worth 1 point). For each distinct source, the ratings are ordinal—meaning that the best method received an A rating and the poorest method received a D. Under the interim final guidelines, this approach results in some very large disparities between the “A” methods of different sources. For some sources, where field measurement methods are not practical and estimation methods are not well developed, a method that relies on default factors is given an “A” rating because it is the best available method. In other cases, such as forest ecosystems, the use of well-researched default factors rate a “C” or “D”, unless they have been validated by independent data from the specific site and management condition. These disparities were the focus of a number of critical comments.
In response to these comments, the final guidelines have been modified to restrict “A” ratings to methodologies where computations are based primarily on values indicative of on-site conditions measured continuously or over multiple periods. In cases where no methodology qualifies for an A rating, the best method will be rated “B” and given a value of three points. Using this approach, the best methods for certain agricultural sources warrant only a B.
A related issue concerns the quality ratings given methods that rely upon default factors that have been widely reviewed and adopted by a public agency, a standards-setting organization or an industry group. The draft Technical Guidelines could have made it difficult for reporters in certain industries to receive a 3.0 quality rating or above, even though they utilized methods and factors that were generally accepted within the relevant industry as being the most practical and effective means of estimating emissions from certain sources. For example, in many cases, the draft technical guidelines provided a C rating for widely accepted default factors, even though source-specific emission measurements would be very costly or impractical. To correct this problem, the final guidelines raise certain consensus-based default factors to “B” ratings where more accurate methods are not considered cost-effective and where the default factors have been established by an industry-wide peer review process, with public documentation.
A number of commenters pointed out that CEMS are not practical for many industrial applications. For such applications, mass balance or default emission factors may be the only practical options. In the oil and gas exploration and production industry, for example, estimating emissions by using measured activity data and emission factors available through government (AP-42, available at:
If CEMS are used, albeit rarely, for a particular source, direct measurement is kept in the final guidelines as an A-rated option, while other methods for this source that use mass balance or default emission factors methods are also given an “A” rating, as long as they are derived from site-specific measurements.
The interim final guidelines include citations to several other protocols or standards, and include a number of emission factors drawn from such protocols or standards. Numerous comments noted that some of the documents and emission factors cited in the guidelines had not been subsequently updated. Many of these comments recommended that DOE update these citations and some recommended that DOE's guidelines direct reporters to use future updates of such protocols or standards, as they become available.
The final guidelines do include a number of updated references and emission factors, as recommended by commenters. In addition, they direct reporters to use the most current methods established by specified government agencies (EPA, USDA) or independent standards-setting organizations (IPCC) and direct EIA to periodically update forms/instructions to reflect such methods/factors. With regard to methods in other sources, the final guidelines provide that DOE will review and update, as appropriate, the guidelines periodically and in response to specific requests.
A number of entities expressed concerns regarding the potential burdens of reporting detailed, entity-wide inventories and a few suggested options for reducing these burdens. In the final guidelines, DOE provides for two approaches that will enable entities to reduce the detail of the reports submitted to DOE. First, if an entity certifies that it has used only A or B rated emission inventory methods, it need not calculate or report the quantity-weighted average quality rating of its emissions inventory. When accepted, EIA will indicate in the database that the quality rating of the inventory meets or exceeds the 3.0 level. Second, if an entity has its report independently verified, including the quantity-weighted quality rating of its inventory, it may report its inventory data at a higher level of aggregation (by greenhouse gas, rather than by source category).
The interim final guidelines require the reporting of many uses of fossil fuels and a determination of whether a non-fuel use of a fossil fuel involves a sequestering, non-sequestering, or partially sequestering activity. The interim final guidelines also require the reporting of certain biogenic emissions, such as the carbon dioxide emitted by combusting ethanol in vehicles. To reduce the burdens of reporting, the final guidelines require reporters to
The draft Technical Guidelines would provide extensive new methodologies for estimating greenhouse gas emissions and carbon sequestration from the forest and agriculture sectors. A number of commenters expressed appreciation for the improvements in the draft guidelines, noting specifically the benefit of the COMET model for estimating changes in carbon stocks on agricultural soils and new advances in estimating forest carbon. Several comments proposed improvements in the technical methods and underlying coefficients and data. Some commenters expressed concern that the methods proposed were too complex and detailed. Other commenters maintained that the methods were not adequate and included significant uncertainties that would limit their use under a potential future regulatory system.
USDA and DOE reviewed the inventory methods for forestry and agriculture in light of these comments and made changes where appropriate to reflect new information. The review noted that relatively simple inventory methods are available for virtually all of the sources and sinks in the agriculture and forest sectors. The availability of methods for all greenhouse gas emission sources and carbon sinks was important to enable entities to provide comprehensive entity-wide inventories. The review also noted that alternative methods are provided for many sources and that these alternative methods vary from the simple to the complex. The complex methods generally provide entities with the ability to reduce uncertainties. For some agricultural sources, the guidelines only provide simple default methodologies. In the draft guidelines, these methods were given an “A” rating. In the final guidelines, these methods are given a “B” rating. The explanation for these changes is explained in section J.3., above.
a.
The USDA Forest Service reviewed four existing certification systems and determined that while there are some differences among the major certification programs in their goals and technical details, all of the programs set high standards, have rigorous third-party audit protocols, are generally viewed as credible by many stakeholder groups, and can assure (with reasonable confidence) long-term carbon neutrality. Therefore, the final guidelines specify that any changes in sequestration for forests managed under certified sustainable management systems need not be part of an entity's annual report. All or part of an entity's forest land can be certified as being managed sustainably. If an entity chooses to use the assumption that sustainable forest lands are
DOE received comments urging it to eliminate provisions of the interim final guidelines that require reporting of carbon stock changes on forestlands. These comments contend that the sequestration accounting requirement in § 300.6(f) is complex, costly and intrusive. The comments further contend that detecting meaningful periodic change in large forest inventories is a daunting task, both logistically and statistically, even for entities with sophisticated commercial timberland inventories.
No changes were made to the guidelines in response to these comments. The guidelines provide three classes of methods to estimate changes in carbon stocks from forests. The guidelines provide default lookup tables, guidance on the use of models, and procedures for applying sampling techniques. In addition, the guidelines allow land that has been certified by third parties as being sustainably managed to be considered
Several changes to the “Stationary Source Combustion” part of the inventory guidelines were made in response to comments. Some were motivated by a desire to simplify the reporting process or render it more accurate. For example, the draft Technical Guidelines would have required entities to identify and report emissions from non-fuel use of fossil fuels. Several commenters felt that the requirement placed too great a burden given the small amount of potential emissions involved. While DOE has modified the guidelines to indicate that biogenic emissions and non-fuel uses of fossil fuels need not be reported, the final guidelines continue to require the reporting of all emissions for which measurement or estimation methods are identified. The draft Technical Guidelines would have required that combined heat and power (CHP) plants assume an 80% thermal generating efficiency. The final guidelines follow the World Resources Institutes and World Business Council for Sustainable Development (WRI/WBCSD) Greenhouse Gas Protocol of allowing plants to enter their own estimated efficiency values. Also, the draft Technical Guidelines would not provide for the registering of avoided emissions associated with the use of coal combustion products. The final guidelines recognize fly ash use through an action-specific method.
Some changes were made to make the rating system for methods used to measure stationary combustion emissions compatible with the new procedure outlined above. The mass balance approach was raised to an “A” status for emissions from hydrogen plants and certain non-CEMS methods were given the same rating or raised to a “B” if based on regular site-specific measurements and fuel use default values derived through a consensus process. Some suggested changes, such as the proposal to treat methane from landfills as a biogenic emission, were not accepted. Here the wording of the draft Technical Guidelines was retained because DOE views the emissions of methane from landfills as anthropogenic. Only the CO
One commenter sought clarification on the exclusion from entity-wide inventories of carbon dioxide emissions from biomass combustion. Another wanted to ensure that non-combustion biomass oxidation was also excluded from entity-wide inventories. The DOE has revised the Technical Guidelines to clearly confirm the exclusion of these biogenic emission sources.
One major change in the “Mobile Sources” part of the inventory guidelines was made in response to comments that specific emission factors were outdated, according to the most recent government or private industry publications. DOE has updated many of these emission factors and has revised the guidelines to provide that reporters and EIA should use to develop their inventories future updates to factors made by certain government agencies or consensus-based standards organizations. However, the final guidelines do not provide for the automatic updating of factors developed by trade groups or other industry sources, such as the American Petroleum Institute's Compendium of Greenhouse Gas Emission Methodologies. DOE will consider updates of such industry-developed values during DOE's planned periodic updates to the guidelines.
Another suggestion made by commenters was to exclude vehicles unless they were “integral to production.” Several commenters state that it is overly burdensome for emission inventories to include mobile source related emissions where mobile sources are not an entity's dominant greenhouse gas emitting activity. DOE disagrees with the comment that mobile sources should be excluded. While mobile source emissions may be a small share for many reporters, they may be large in absolute terms, and they are a substantial source of emissions for some entities. Therefore, the final guidelines continue to require inventories to include all vehicles within the organizational boundaries defined by the reporting entity, which would normally include all vehicles that are owned or under the financial control of the entity. DOE notes that under the final guidelines, entities are permitted to exclude such emissions as
DOE received comments requesting clarification on the effect on inventory quality ratings of using default emission factors versus measured data on heat content, density, or carbon content of fuel data for mobile source emissions. The draft Technical Guidelines have been revised to provide such clarification.
Some of the same issues that arose in the Stationary Source Combustion and Mobile Sources parts of the guidelines also appeared in the comments on the Industrial Processes part. Several commenters pointed out that CEMS methods are not appropriate or practical for many industrial applications because of cost considerations. After considering these comments, DOE has dropped CEMS as an “A” method for some industrial sources, and elevated the rating of other methods. The final guidelines allow direct measurements (for mass balance or default factors) an “A” rating if they are based on site-specific, periodic measurements. Several comments on this part of the Technical Guidelines also urged DOE to use the most recent emission factors established by other government, consensus or industry protocols. These factors have been updated and the final guidelines provide that values from
The National Lime Association (NLA) recommended that the guidelines adopt its method for estimating CO
One commenter from the pulp and paper industry requested that a statement be added to the guidelines indicating that the emissions from the manufacture of lime in the Kraft pulping process are biogenic and that emissions from this source should not be included in emission inventories. The pulp and paper mill module prepared under the auspices of the Climate Change Working Group of the International Council of Forest and Paper Associations (ICFPA), which has been adopted by the WRI/WBCSD Greenhouse Gas Protocol Initiative, states that “the carbon released from CaCO
The industry trade group noted the absence of methods for estimating methane emissions from petrochemical production and DOE has added these methods to the Industrial Process part of the Technical Guidelines.
The treatment of indirect emissions under the interim final guidelines was the subject of a number of comments. Some expressed concern about the mixing of indirect and direct emissions and reductions. In response to these comments, DOE has modified the guidelines to emphasize that indirect emissions must be reported separately from direct emissions in inventories, although they are added together to determine the total emissions of a reporting entity. Direct and indirect emissions are often combined in a single emission reduction calculation formula, but emission factors used for indirect emissions ensure that there is no double-counting by electricity generators and users.
Some comments were directed at the emission factors used to calculate the emissions associated with electricity use. Although some comments suggested that these emission factors exclude the losses associated with electricity transmission and distribution (T&D) losses, the final guidelines continue to include these losses because they provide a better indication of the total emissions avoided by reductions in electricity consumption.
Some commenters suggested that the owners of electricity T&D systems be required to include in their emission inventories the indirect emissions associated with T&D system losses. Because such indirect emissions would overlap with the direct emissions of some entities (that both generate and distribute electricity) and because T&D system losses are often associated the transmission of power from one system to another, DOE has decided not to require the indirect emissions associated with T&D system losses to be included in the inventories of owners of electricity T&D systems at this time. However, if an entity chooses to report (or register) the emission reductions associated with its efforts to reduce such losses, then it must calculate such reductions based on a system-wide assessment, as specified in the action-specific method provided for this purpose in the Technical Guidelines.
Geologic sequestration is still an emerging field with few generally recognized standards for accounting and monitoring. As a result, several comments requested that DOE clarify and/or add information to the interim final guidelines and regularly review work by other governments and organizations for relevant guidance. Recognizing that this is a rapidly developing and changing field, DOE will continue to monitor the development of new accounting standards for geologic sequestration and, whenever appropriate, revise the reporting guidelines accordingly. DOE also has clarified the inventory guidance for geologic sequestration in the final Technical Guidelines. For example, in response to a request that naturally occurring carbon dioxide emissions near, but unrelated to, an enhanced oil recovery field should be excluded from an entity's inventory, DOE added text specifically stating that entities may exclude emissions of CO
The monitoring approaches for geologic sequestration in the draft Technical Guidelines were the subject of a number of comments. One commenter argued that to avoid excessive monitoring, entities should be able to use technical, site-specific monitoring approaches developed in response to rules by relevant regulatory agencies. Accordingly, DOE has added text to permit other monitoring plans that have been agreed to by a relevant Federal or state agency, if these plans have specific provisions for tracking the amount of carbon dioxide being re-released from the storage site.
Another commenter objected to the requirement that reporters assume that all stored carbon dioxide will be re-emitted to the atmosphere and to include all such future emissions in the current inventory year. According to this commenter, reporters have enough understanding of reservoir characteristics to generate a reasonable prediction of future losses.
In October 2005, the Intergovernmental Panel on Climate Change (IPCC) published its
The interim final guidelines identify five categories of methods for calculating emission reductions: emissions intensity, absolute emissions, changes in carbon stocks, avoided emissions and action-specific methods. They also specify the use of an integrated method—combining emissions intensity and avoided emissions—by electricity and other generators of distributed energy that
DOE received a large number of comments on its guidelines for calculating emission reductions, some of which raised broad concerns. One commenter urged DOE to focus emission reductions calculations on either emissions intensity or absolute emissions, and to exclude emission reductions resulting from increases in carbon stock, energy-related avoided emissions or other action-specific methods until a comprehensive project accounting framework is established. On the other hand, a number of other commenters urged DOE to retain and expand the provisions for recognizing reductions from sequestration, avoided emissions and additional action-specific methods. While DOE agrees that most reporters can and should rely primarily on emissions intensity or absolute emissions methods to assess annual changes in their emissions, we also see a need for the retention of other emission reduction calculation methods in order to permit the reporting and registration of reductions associated with certain special sources and actions.
A few commenters continued to urge DOE to permit the registration of reductions resulting from stand-alone projects, especially when undertaken to reduce emissions outside the boundaries of the reporting entity (offset reductions). Other commenters, however, supported DOE's emphasis on an assessment of entity-wide emission trends, rather than on the results of individual projects. While DOE recognizes that entities are undertaking a wide range of actions that can reduce its emissions of greenhouse gases, DOE believes that the enhanced program, to be consistent with the objectives established by the President's Global Climate Change Initiative of February 2002, should focus on the net result of such actions on an entity's overall emissions and sequestration, and its contribution to the goal of reducing the nation's emissions intensity. Therefore, DOE has not changed the requirement that large emitters calculate their registered reductions on the basis of an entity-wide assessment. It has, however, modified the guidelines to permit the reporting and registration of additional types of action-specific reductions, and to emphasize that all reporters have the option to continue to report, but not register, the emission reductions resulting from a wide array of action-specific efforts.
The interim final guidelines emphasize that entities must choose among the five categories of reduction calculation methods identified in the guidelines. Some of the public comments received by DOE indicated that there was some confusion regarding the degree of choice available to individual reporters. DOE provides the following guidance to clarify how it views reporters' selection of calculation methods under the final guidelines. The appropriate calculation methods a reporter uses should be determined largely by the characteristics of the reporting entity and its emission sources and sinks. Most reporters will find it advantageous, where feasible, to use an emissions intensity metric as the basic calculation tool for determining the emission reductions achieved by most or all of the entity. Changes in absolute emissions may be used as an alternative, as long as the economic output associated with the emissions is not declining. If output is flat or increasing, the reductions calculated using the absolute emissions method should always be equal to or less than the reductions calculated using an emission intensity method. For all terrestrial sequestration, entities should assess the annual changes in carbon stock. Entities that generate electricity, steam, hot or chilled water for distribution to other entities should use the energy-related avoided emissions method or the integrated method to assess the reductions associated with such generation. Finally, entities should use the action-specific methods only in situations specifically addressed by the methods provided in § 300.8(h)(5), or situations where no other methods are applicable.
The interim final guidelines describe how entities should establish and use base periods and base values in the process of calculating and reporting emissions reductions. They also define the circumstances that might require some entities to adjust their base values or, under certain circumstances, establish new base periods and base values.
In all cases, the final year of the chosen base period must immediately precede the first year of reported or registered reductions. Some commenters suggested that entities be permitted to establish base periods that ended one or more years prior the first reduction year. DOE did not adopt this suggested change because it believes that all reductions should be based on an uninterrupted record of emissions from the base period onward.
Several commenters expressed concerns about the provisions covering revisions to base periods, base values, and methods due to boundary changes, such as acquisitions, divestitures, mergers, and the outsourcing or insourcing of emissions-producing operations. Some commenters argued that assigning a different base period for acquired operations other than that used by the original entity would impose a significant administrative burden for some reporters. Other commenters suggested that requiring an entity to adjust its base value to include the emissions of an acquisition would make that entity responsible for any changes in the acquisition's emissions that had occurred between the base period and the year of acquisition.
DOE has retained a degree of flexibility in the final guidelines regarding whether an entity must recalculate base values and change base periods. The Technical Guidelines establish some general principles in section 2.3.3 regarding whether and how base values and base periods should be adjusted to reflect boundary changes. However, a reporting entity may incorporate a new acquisition into an existing base value only if the reporting entity has all of the required emissions and other data for the established base period. If this historical data do not exist, the reporting entity must establish a new base period for the acquired subentity. Whenever base values and base periods are adjusted, the reporting entity must include a discussion of the rationale for the adjustment in the report it submits to EIA.
Several stakeholders expressed concern that they will be required to recalculate reductions and resubmit prior year reports to reflect boundary changes. DOE has clarified § 300.8(f) of the final rule to indicate that resubmission of previous years' reports revised to reflect boundary changes occurring in subsequent years is not required. In general, the final guidelines provide that previously reported or registered emission reductions may not be altered unless such an alteration is necessary to correct a significant reporting error.
One stakeholder proposed providing a grace period of 18 months before a reporter is required to adjust base values or base periods to reflect a boundary change to allow time for emissions accounting systems to be reconfigured. DOE recognizes that such boundary changes can pose significant problems
One commenter requested that DOE allow reporters to establish base values that are more stringent than those derived from historical performance. While it is unlikely that many reporters would take advantage of such flexibility, DOE concedes that using a more stringent base value could be desirable under some circumstances (
In 2002, the President set a goal of reducing U.S. emissions intensity by 18 percent in 2012, relative to 2002. Establishing methods for tracking the contribution that individual entities are making to this national goal is one of the key objectives of the revised guidelines for the 1605(b) program. Thus, the interim final General Guidelines and draft Technical Guidelines define a method for calculating emission reductions based on declines in emissions intensity.
Most comments were generally supportive of the guidelines for calculating reductions based on emission intensity, including the flexibility to use either physical or monetary methods for calculating reductions. Some commenters, however, opposed the registration of reductions based on declining emissions intensity because it would permit entities with rising output to qualify for registered reductions even though their net, absolute emissions might be increasing. Others pointed out that since most industries experienced declining emissions intensity over time, as a result of technological and productivity improvements, emission reductions derived from declines in emissions intensity do not necessarily reflect any new efforts to reduce emissions by the reporting entity. Still others appeared to oppose such reductions because they implicitly exclude reductions attributable to declining output. After considering the comments, many of which raised some valid concerns, DOE has nonetheless concluded that emissions intensity remains the best approach to measuring emission reductions because it avoids adverse economic impacts on entities. DOE also has concluded that the basic methodology set forth in the interim final guidelines is valid.
The interim final guidelines provide a method for calculating reductions from declines in absolute emissions, as long as the output associated with these emissions had not declined. The requirement for output to be level or increasing was the focus of most of the comments received on these provisions of the guidelines. Some companies stated that this requirement would prevent them from registering reductions that were recognized under other reporting programs. Several companies also raised concerns about the apparent exclusion in the draft inventory guidelines of emission reductions associated with plants or other facilities that are closed.
Since a key objective of the revised program is to give special recognition to reductions that contribute to the national goal defined by the President, DOE has retained the provision that permits the registration of reductions calculated using the absolute emissions method only if the economic output associated with such reductions is not declining. However, since some plant closings can contribute to reduced emissions intensity or to declines in absolute emissions, even if the output of an entity is stable or increasing, DOE has struck the language in the inventory guidelines that appeared to exclude such emission reductions from the reductions calculation. In addition, DOE has modified the guidelines to more clearly permit entities to report (but not register) absolute emission reductions when output is declining.
One entity suggested that DOE permit entities to adjust the base value used in calculating absolute emission reductions to reflect the prior year emissions of acquisitions, even if the data available for the acquired entity does not match the base period used by the reporting entity. DOE has not accepted the suggestion because it would lead to base values that were no longer tied to specific base periods. In such circumstances, an entity should establish a new sub-entity to account for each acquisition. The new sub-entity could have its own unique base period and base value.
The draft Technical Guidelines allow entities to register 1/100th of the base year/base period carbon stocks on preserved forestland plus any incremental carbon stocks gained in the reporting year. Comments received on the draft guidelines were critical of this provision, citing it as arbitrary and stating that only increases (or decreases) in existing carbon stocks should be eligible for registration; that an easement in and of itself is not an adequate basis for assessing avoided emissions; and that the approach is not scientifically valid.
In response to these comments, USDA conducted a further review of this provision and has determined that preserved forests are not static with respect to carbon stocks. Vegetation growth and mortality will occur, and the balance between those two factors will determine whether the net carbon flow is positive or negative. Preserved forests are likely to be affected by natural disturbances that affect growth and mortality rates, and, therefore, carbon stocks can be altered both positively and negatively by such changes. USDA also concluded that there is no technical basis for the registration of 1/100th, or any fraction, of the base period carbon stocks in preserved forests. DOE has eliminated from the final guidelines the provision providing special treatment of forest preservation. Entities reporting and registering forest preservation should follow the methods described in section 1.I.2 of the Technical Guidelines.
Another commenter expressed concern that DOE had not made a clear enough distinction between increases in carbon sequestration and emission reductions achieved through other forestry-related activities. Detailed methods for calculating changes in carbon storage as well as methods for calculating emission reductions from other forestry-related activities are included under individual sections of the Technical Guidelines. The distinction between these multiple methods of reducing atmospheric carbon loadings is included in multiple sections of the General Guidelines and most specifically in Part I of the Technical Guidelines.
The interim final guidelines provide a method for calculating the emissions avoided by generating electricity, steam, or hot/chilled water from non-emitting or low-emitting sources of energy and distributing these secondary forms of energy to users. To estimate the quantity of emissions that would be avoided by the distribution of electricity generated from non-emitting or low-emitting sources, the draft Technical Guidelines used a “benchmark” value based on the average emissions intensity of the U.S. electricity generating sector, approximately 0.6 metric tons of CO
Numerous comments were received on the avoided emissions method and the benchmark value for distributed electricity in the draft Technical Guidelines. Several commenters noted that the national average intensity of the U.S. electricity generating sector is not necessarily a good indicator of the emissions avoided by the distribution of non-emitting or low-emitting generation. They stated that regional averages of fossil-fired generation are likely to be a better indicator, because such averages exclude hydro-electric, nuclear and other sources of power that tend to be fully utilized, regardless of changes in electricity usage or the availability of other forms of generation. DOE has decided to change the avoided emissions benchmark for electricity to the regional fossil-fired averages for the electric sector, but the final guidelines impose a maximum value of 0.9 metric tons of CO
Other commenters expressed concerns regarding assignment of all reductions associated with avoided emissions to the generator, rather than to the buyer or ultimate user. DOE has not changed this aspect of the guidelines, but it has attempted to provide a workable mechanism by which the generators of avoided emissions can permit registered reductions to be registered by buyers or users, if they so choose.
Some commenters recommended that DOE expand the concept of avoided emissions to encompass other areas where conventional fossil-fuels are being replaced by fuels generated from low-emitting and largely renewable resources. The interim final guidelines provide an action-specific method for recognizing the emissions avoided by the productive use of methane recovered from landfills. The final guidelines provide additional action-specific methods to recognize the emissions avoided by the expanded production of methane from anaerobic digestion of waste at agricultural facilities and wastewater treatment plants. These methods are described in more detail in the action-specific methods section that follows. During the development of these guidelines, DOE also considered the possibility of changing the treatment of ethanol used in the transportation sector so as to shift the recognition for the emission reductions that result from increased ethanol supply and use from vehicle-owners to producers. Recognition of producers might encourage such companies to participate and report on all of their emissions, including those associated with ethanol production. While the guidelines continue to consider the emissions from ethanol combustion as biogenic and the responsibility of users, DOE may reconsider the treatment of ethanol in the future.
Several commenters also pointed out that actions taken by an entity affecting the emissions of one or more other entities are not limited to the export or import of energy products. These commenters provided examples such as the reuse of fly ash as a substitute for Portland cement in concrete, which displaces emissions from the manufacture of Portland cement, and post-consumer materials recycling, which reduces emissions associated with the manufacture of materials from virgin resources. Many of these actions are not conducive to the use of entity-wide methods to estimate emissions reductions. DOE has modified the definition of “avoided emission” to make it more clearly applicable to these other types of avoided emissions, and it has included an action-specific method for estimating reductions associated with fly ash reuse as a substitute for Portland cement in concrete. DOE may consider in the future additional action-specific methods for estimating reductions of indirect emissions from such activities as manufacturing of energy efficient products and increased recycling of certain materials.
With respect to the increased manufacturing of energy efficient products, DOE may seek to develop methods capable of quantifying the net emission reductions realized by very small emitters as a result of the efforts of some manufacturers to increase the average efficiency of their products to levels well above Federally-mandated efficiency standards. Such very small emitters are very unlikely to participate directly in the 1605(b) reporting program, so doublecounting of such emission reductions would not be likely.
For recycled materials, DOE may seek to develop methods capable of quantifying the net emission reductions that result from increased use of recycled materials in new products, taking into account the full life cycle emissions associated with production, recovery, transport and reprocessing of the affected materials, while also ensuring that the double registration of reductions associated with increased recycling is prevented.
The interim final guidelines provide for the use of action-specific methods under a number of different circumstances. A generic method is provided that was designed to be used in estimating the reductions that resulted from a variety of different types of actions, such as fuel switching or efficiency investments. In addition, several other methods included in the interim final guidelines are designed to estimate the reductions resulting from specific types of actions, including landfill gas recovery, coal mining gas recovery, geologic sequestration, and transmission and distribution losses. It was DOE's intent in the interim final guidelines to permit reporters not planning to register reductions to use action-specific methods wherever they are applicable. Reporters intending to register reductions, however, are permitted to use action-specific methods only when none of the other four methods are applicable. As a result of this limitation, it was expected that entities registering reductions would generally use action-specific methods only for sources or activities for which they were specifically designed. In general, entities were strongly encouraged to report on an entity-wide basis and use emissions intensity or absolute emission methods as their primary means of estimating their reductions.
DOE received a large number of comments on these provisions of the interim final guidelines. Many of these comments urged DOE to expand the opportunities to register emission reductions estimated using action-specific (or project-based) methods.
The final guidelines retain the provisions of the interim final guidelines that strictly limit the use of action-specific methods as the basis for registered reductions, while not restricting the use of other action-specific methods by reporters not interested in registering reductions. The experience under the existing 1605(b) reporting program has shown that the relationship between individual projects and an entity's overall emissions is ambiguous, because so many factors other than emission reduction projects conducted by the entity can affect these emissions. DOE believes that allowing registration of project-based reductions would invite criticism similar to that directed at the existing 1605(b) program, namely that it allows entities to “cherry-pick” activities that achieve emission reductions while obscuring the overall emission performance of the organization. However, DOE recognizes that data on project-level emission reductions can be useful in disseminating information on effective ways to reduce emissions of greenhouse gases, and DOE has clarified the final guidelines to place more emphasis on the two ways that reporters can highlight individual actions that they believe have contributed to their improved greenhouse gas emissions profile. First, they can quantify the effects of specific actions or projects by reporting, but not registering, reductions using a reporter-defined action-specific method; and, second, they can provide anecdotal information regarding emission reduction activities in the summary description of actions taken to reduce emissions required by § 300.8(i).
Section 300.8(h)(5) of the interim final guidelines states that an entity-wide reporter may use the action-specific approach to estimate emission reductions for actions within the entities boundaries only if it is not possible to measure accurately emission changes based on changes in emissions intensity, changes in absolute emissions, changes in carbon storage, or changes in avoided emissions as outlined in section 300.8, paragraphs (h)(1) through (h)(4). In the draft Technical Guidelines accompanying the interim final General Guidelines, DOE identified several specific actions for which it will be difficult to accurately measure emission reductions using the methods in section 300.8 paragraphs (h)(1) through (h)(4). They are: coalmine methane recovery, landfill methane recovery, geologic sequestration, and transmission and distribution improvements.
a.
b.
Other comments sought to expand the range of action-specific reductions allowed to be registered. DOE was persuaded that methods for several of these actions should be added to the guidelines. These include a method for measuring action-specific reductions from anaerobic digestion of waste at agricultural facilities or wastewater treatment plants. DOE views this method as similar to and a logical extension of methods for estimating reductions from coal mine and landfill gas recovery. DOE was also persuaded that the volume and magnitude of reductions attributable to residential and commercial demand-side management and other programs, and the limited likelihood that individual residential and small commercial end-users would be participants in the program, justified a method for electric power generators and others that implement such programs to register emissions reductions that can be reliably attributed to those efforts. However, the final guidelines provide that reporting entities must certify that the program was directed at residential or other very small emitters (such as small businesses or other entities that the reporter estimates typically emit less than 500 metric tons of CO
Several commenters sought inclusion of action-specific methods for registering reductions from increases in the manufacturing and sale of energy efficient products such as home appliances and automobiles, and others requested a method for registering reductions from increased materials recycling. Although DOE has not adopted these additional methods, DOE expects in the future to solicit comment on methods for calculating reductions from energy efficient products and materials recycling and will then consider incorporating suitable methods in the Technical Guidelines.
c.
Comments related to geologic sequestration were also provided, focusing on monitoring and ownership. One commenter asked whether available monitoring methods only apply to enhanced oil recovery, or to all geologic sequestration projects. DOE clarified that the monitoring methods should be used for all types of geologic sequestration. Another commenter argued that site-specific monitoring should be required of all available monitoring options, including those based on estimating future losses of carbon dioxide after injection has been completed. The argument is that the data and methodologies for undertaking such estimates of future losses are insufficient. In October 2005, the IPCC published a
d.
Because of the development of rated methods for calculating emissions and emission reductions of ozone depleting substances would be complex and time-consuming, the final guidelines do not permit the registration of reductions of these gases. However, DOE has included an action-specific method for calculating reductions from the destruction of CFCs that have been captured or replaced, and these reductions may be reported under the 1605(b) program. DOE may in the future solicit comment on methods for calculating reductions of other ozone depleting substances and will consider incorporating suitable methods in the Technical Guidelines.
For electricity generators, the interim final guidelines provide a single formula that integrates the emissions intensity and avoided emissions methods. DOE considered this integrated formula to be necessary to provide the same opportunity for recognition to any generator of additional electric power, regardless of the characteristics of that entity's base period generation. Some utilities objected to the use of the integrated formula and proposed that DOE permit utilities to base the emission reduction calculations on any decline in the entity's base period emissions intensity, regardless of whether the entity had increased its power generation. After careful consideration of these comments, DOE has decided to retain the integrated formula. Because the electricity generating sector is both very diverse and is given special recognition for emissions avoided by addition of new generation from non-emitting or low-emitting sources, the integrated formula is necessary to give all generators a roughly equal opportunity to qualify for registered reductions.
The integrated formula uses the same benchmark value used for the calculation of avoided emissions from electricity generation. In response to comments, DOE has decided to change this benchmark to the regional average emissions intensity of fossil-fired generation. This decision is described in more detail in the section on avoided emissions, above.
One commenter asserted that the method for allocating emissions to thermal and electric streams for combined heat and power (CHP) generators does not accurately reflect actual thermal efficiencies. The method included in the interim final guidelines requires reporters to assume the efficiency of the thermal component of CHP systems to be 80 percent. The final guidelines are more flexible and allow the reporter to use the actual efficiency of thermal energy generation, if known. Reporters may use a default value for thermal efficiency of 80 percent if this value is unknown.
The interim final guidelines provide a mechanism by which a reporting entity could register the reductions achieved by another entity that was willing to forego this recognition. To ensure that this mechanism for reporting offset reductions did not undermine the emphasis on entity-wide reporting, the interim final guidelines require that the other entity complete annual reports that meet all of DOE's requirements and that these reports be submitted to DOE by the reporting entity.
A broad range of commenters noted that this mechanism was simply not practical for use in a number of situations, such as:
• When multiple entities are supporting the offset reductions achieved by a single entity (such as a group of utilities supporting reforestation projects on the land of single public agency, or when a number of different electric power users seek recognition for the offset reduction reductions created by a single renewable or nuclear power generator).
• When a reporting entity supports the offset reductions achieved by a large number of very small emitters, such as a utility that supports a demand-side management program that provides incentives for the purchase of energy efficient lights by homeowners.
To address these problems, DOE has made a few modifications to the offset reduction provisions of the guidelines. The final guidelines now provide an action-specific method to enable utilities to register the reductions that can be attributed specifically to the effects of utility-sponsored demand-side management programs. The guidelines also permit more than one entity to be the recipient of offset reductions from a
Most comments supported the need for reporting entities to certify the accuracy of their reports, although there were different views on which representatives of an entity should be required to provide such certifications and the nature of these certifications. Similarly, there was widespread support for DOE's decision to encourage, but not require, independent verification of reports, and a number of specific comments addressed how DOE should define such an independent verification.
Section 300.10 of the interim final General Guidelines states that all reports must be certified by the head of household, chief executive officer, agency head, or an officer or employee of the entity who is responsible for reporting the entity's compliance with environmental regulations. DOE received comments calling for a higher level of corporate certification and others calling for more flexibility in the identity of a certifier. DOE believes that it has properly addressed the need for a high level of certification while granting sufficient flexibility to participating entities.
More narrow comments sought a definition of “reasonable steps,” in § 300.10(c)(1) of the interim final General Guidelines, that a reporter must have taken to ensure emissions, emission reductions and/or sequestration are not double-counted, and asked that certification requirements on third parties that are redundant with those for reporting entities be removed to limit reporter burden. DOE has revised the final guidelines language to address these concerns by explaining what it considers to be “reasonable steps” and by eliminating certain redundant certification requirements.
Several commenters expressed concerns that the certification requirements would discourage farmers, ranchers, and small woodland owners from participating in the 1605(b) program. DOE has included provisions for aggregators and offsets (described above) that should mitigate these concerns.
Section 300.11 of the interim final General Guidelines states that reporting entities are encouraged to have their annual reports reviewed by independent and qualified auditors and then defines the characteristics required for an auditor to be viewed by DOE as both independent and qualified. That section also enumerates the expected scope of an independent verification.
DOE received a substantial number of comments on independent verification. Some comments expressed the view that independent verification is necessary for data credibility, and, therefore, should be required rather than encouraged. Other comments argued against requiring independent verification. DOE recognizes the value of independent verification but remains sensitive to the cost and burden it may impose on prospective program participants. DOE seeks in the final guidelines to encourage independent verification, while limiting reporter burden, by permitting reporting entities to register reductions without reporting and rating emissions estimates at the individual source or sink level if they receive independent verification that the quantity-weighted average of methods used for preparing their emissions inventory meet or exceed 3.0. Further, DOE has extended the July 1 annual reporting deadline to September 1 for independently verified reports.
Other comments sought inclusion of additional detail on the processes and procedures that verifiers must follow when undertaking an independent verification, and expressed a desire for consistency with existing standards. DOE wishes to provide greater flexibility than could be obtained through the adoption of a single existing standard, but it also wishes its guidelines to be generally consistent with current domestic and international practices. Accordingly, the final guidelines direct independent verifiers to refer to such sources as the California Climate Action Registry Certification Protocol, the Climate Leaders Inventory Management Plan Checklist and the draft ISO 14064.3 standard when completing a verification.
DOE received comments suggesting that a separate and distinct set of rules for “accrediting” verifiers should be prepared by DOE. DOE believes this approach is too prescriptive and deterministic for a rapidly developing and evolving field of expertise. Moreover, DOE recognizes that many potential reporters may seek independent verification of data submitted to other domestic and international programs, in addition to the Voluntary Reporting of Greenhouse Gases Program, and does not wish to preclude verifiers accepted by other programs from performing an independent verification under these guidelines. Consistent with that approach, DOE has not created a new set of rules for accrediting independent verifiers; instead, the final guidelines incorporate and reference elements of the California Climate Action Registry requirements and the draft ISO 14064.3 guidance.
Section 300.9 of the interim final General Guidelines requires entities intending to register reductions to maintain adequate supporting records for at least three years to enable verification of all information reported. A number of comments voiced concern that the three-year requirement was not long enough to support the transition to a future regulatory program. The comments sought a five-year or longer recordkeeping requirement. Meanwhile, other comments noted the potential burden of even a three-year recordkeeping requirement. It was not DOE's intent to envisage the existence or design of a future regulatory regime, but rather to ensure that reports submitted to this program be verifiable for a number of years subsequent to submission. In addition, DOE believes many entities are likely to retain records beyond the period required by DOE guidelines in anticipation that there may be a regulatory program in the future. Thus, DOE was not persuaded to extend the overall recordkeeping requirement. However, several of the comments pointed out that such verification would require base period data that may pre-date the three year recordkeeping requirement. In response, DOE has extended the recordkeeping requirement for base period data to the duration of an entity's participation in the program.
Section 300.12 of the interim final General Guidelines states that EIA will review all reports to ensure that they are consistent with the General Guidelines and Technical Guidelines. Subject to the availability of adequate resources, EIA intends to notify reporters of the acceptance or rejection of any report within six months of receipt and sooner if feasible. If EIA does not accept a report or if it determines that emission reductions intended for registration do
Comments indicated concern that the EIA review process would not be sufficiently rigorous in the absence of independent verification. More generally, comments sought inclusion of more detail on the review process to be undertaken by EIA. In response to these comments, DOE has included additional language on the specifics of EIA's review process.
Several commenters claim that by publishing the General Guidelines as a rule for codification in the
DOE addressed the question of publication in the
DOE rejects the comments contending that mandatory language may not be used in the revised guidelines, for two reasons. First, the revised guidelines are largely procedural rules, and procedural rules usually are stated in mandatory terms. Second, the requirements in the revised guidelines do not alter the voluntary nature of the 1605(b) program. Entities, in their sole discretion, may decide to report under the Voluntary Reporting of Greenhouse Gases Program. Those who do decide to report may, again in their sole discretion, decide to seek the greater credibility that would be associated with registering their emissions and reductions. Their participation is voluntary, but if they decide to report or register their emissions and reductions, then they must abide by any requirements in the revised guidelines. This is entirely consistent with section 1605(b).
Today's action has been determined to be “a significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).
Because of new requirements associated with the revised General Guidelines and the Technical Guidelines, it is anticipated that the costs for participants to report and register reductions are likely to increase. The anticipated benefits of the new requirements include enhanced data quality associated with reported and registered reductions. The magnitude of these effects has not been assessed.
The Regulatory Flexibility Act (5 U.S.C. 601
DOE has reviewed today's revised General Guidelines for the Voluntary Greenhouse Gas Reporting Program under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The Guidelines establish procedures and guidance for the accurate voluntary reporting of information on greenhouse gas emissions and reductions. Participation in the reporting program is voluntary, and the Department anticipates that small entities will weigh the benefits and costs when deciding to participate. To minimize the burden on small entities that choose to participate, the guidelines exempt “small emitters” (usually small businesses or organizations) from requirements for an entity-wide inventory and an entity-wide assessment of emission reductions. These exemptions mean that small emitters can participate at a significantly lower cost than otherwise. On the basis of the foregoing, DOE certifies that these guidelines will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking.
EIA previously obtained Paperwork Reduction Act clearance by the Office of Management and Budget (OMB) for forms used in the current Voluntary Reporting of Greenhouse Gases program (OMB Control No. 1905-0194). EIA is preparing new forms and associated instructions to implement the revised guidelines for the program, and it will publish a separate notice in the
DOE has concluded that these revised General Guidelines fall into a class of actions that will not individually or cumulatively have a significant impact on the human environment, as determined by DOE's regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism” (64 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
One organization commented on DOE's interim final and draft Technical Guidelines and sought clarification on whether and how DOE and EIA information quality guidelines apply to information submitted under section 1605(b). The organization criticized the interim final guidelines for failing to address issues that it thought would arise when third parties challenge the quality of publicly disseminated emissions reduction data voluntarily submitted to DOE by business and industry stakeholders. In this commenter's view, third party challenges will require EIA to request substantiation of the validity of the reported data and possibly lead to disclosure of confidential business information or trade secrets. This, it argued, could cause business and industry stakeholders to be reluctant to take part in the voluntary reporting program or, at least, add to the cost of doing business. This commenter also felt the perceived value of registered reductions would be called into question if, as a result of data quality challenges, the underlying data were viewed as unreliable.
As requested, DOE clarifies here the application of DOE and EIA information quality guidelines to information submitted under section 1605(b). Agency information quality guidelines apply to information disseminated by DOE based on the voluntary reports of greenhouse gas emissions information reported to EIA under section 1605(b) of the Energy Policy Act of 1992. When EIA disseminates information reported under section 1605, the public has the opportunity to utilize DOE's established administrative mechanisms to seek and obtain, where appropriate, timely correction of information maintained and disseminated by EIA that does not comply with applicable information quality guidelines. As set forth in DOE's Information Quality Guidelines, requests for correction must: (1) Specifically identify the information in question and the document(s) containing the information; (2) explain with specificity the reasons why the information is inconsistent with the applicable quality standards in the OMB, DOE, or EIA guidelines; (3) present substitute information, if any, with an explanation showing that such information is consistent with the applicable quality standards in the OMB, DOE, or EIA guidelines; and (4) justify the necessity for, and the form of, the requested correction.
While DOE and EIA seek to ensure the transparency and accuracy of 1605(b) information by specifying the methods that must be used to calculate emission reductions that are to be registered and by requiring certain information about the entity that produced the emissions, section 1605(b)(2) requires self-certification by reporting entities and does not authorize or direct EIA to verify the accuracy of information in reports. In addition, section 1605(b)(3) provides that trade secret and commercial or financial information that is privileged or confidential shall be protected as provided in 5 U.S.C. 552(b)(4). If a member of the public seeking correction submits information that calls into question the accuracy of information in a particular 1605(b) report, then EIA may ask the person who submitted the report to respond to the issues raised and, if appropriate, submit corrected 1605(b) information.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, these revised guidelines meet the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of a Federal regulatory action on state, local, and tribal governments, and the private sector. The Department has determined that today's action does not impose a Federal mandate on state, local or tribal governments or on the private sector.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. These revised guidelines would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May
As required by 5 U.S.C. 801, DOE will report to Congress the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).
Administrative practice and procedure, Energy, Gases, Incorporation by reference, Reporting and recordkeeping requirements.
42 U.S.C. 7101,
(a)
(b)
(i) File an entity statement that meets the appropriate requirements in § 300.5(d) through (f) of this part;
(ii) Use appropriate emission inventory and emission reduction calculation methods specified in the Technical Guidelines (incorporated by reference, see § 300.13), and calculate and report the weighted average quality rating of any emission inventories it reports;
(iii) Comply with the record keeping requirements in § 300.9 of this part; and
(iv) Comply with the certification requirements in § 300.10 of this part;
(2) Each reporting entity, whether or not it intends to register emissions as described in paragraph (c) of this section, may report offset reductions achieved by other entities outside their boundaries as long as such reductions are reported separately and calculated in accordance with methods specified in the Technical Guidelines. The third-party entity that achieved these reductions must agree to their being reported as offset reductions, and must also meet all of the requirements of reporting that would apply if the third-party entity reported directly under the 1605(b) program.
(3) An entity that intends to register emissions and emission reductions must meet the additional requirements referenced in paragraph (c) of this section.
(4) An entity that does not intend to register emissions and emission reductions may choose to report its emissions and/or emission reductions on an entity-wide basis or for selected elements of the entity, selected gases or selected sources.
(5) An entity that does not intend to register emissions may report emission inventories for any year back to 1990 and may report emission reductions for any year back to 1991, relative to a base period of one to four years, ending no earlier than 1990.
(c)
(1) To be eligible for registration, a reduction must have been achieved after 2002, unless the entity has committed under the Climate Leaders or Climate VISION programs to reduce its entity-wide emissions relative to a base period that ends earlier 2002, but no earlier than 2000.
(2) A large emitter must submit an entity-wide emission inventory that meets or exceeds the minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13). Registered reductions of a large emitter must be based on an entity-wide assessment of net emission reductions, determined in accordance with § 300.8 and the Technical Guidelines.
(3) A small emitter must also submit an emission inventory that meets minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13) and base its registered reductions on an assessment of annual changes in net emissions. A small emitter, however, may restrict its inventory and assessment to a single type of activity, such as forest management, building operations or agricultural tillage.
(4) Reporting entities may, under certain conditions, register reductions achieved by other entities:
(i) Reporting entities that have met the requirements for registering their own reductions may also register offset reductions achieved by other entities if:
(A) They have an agreement with the third-party entities to do so and these
(B) They were the result of qualified demand management or other programs and are calculated in accordance with the action-specific method identified in § 300.8(h)(5).
(ii) Small emitters that serve as an aggregator may register offset reductions achieved by non-reporting entities without reporting on their own emissions, as long as they have an agreement with the third-party entities to do so and these third-party entities have met all of the requirements for registration.
(d)
(e)
(f)
(1) The addition of greenhouse gases that have been demonstrated to have significant, quantifiable climate forcing effects when released to the atmosphere in significant quantities;
(2) Changes to the minimum, quantity-weighted quality rating for emission inventories;
(3) Updates to emission inventory methods, emission factors and other provisions that are contained in industry protocols or standards. The review may also consider updates to any government-developed and consensus-based emission factors for which automatic updating is not provided in the Technical Guidelines;
(4) Modifications to the benchmarks or emission conversion factors used to calculate avoided and indirect emissions; and
(5) Changes in the minimum requirements for registered emission reductions.
This section provides definitions for commonly used terms in this part.
(1) Is recognized under any U.S. Federal, State or local law that applies to it;
(2) Is located and operates, at least in part, in the United States; and
(3) The emissions of such operations are released, at least in part, in the United States.
(1) Transmission, pipeline, or transportation right of ways that are not managed for timber production;
(2) Land surrounding commercial enterprises or facilities; and
(3) Land where carbon stock changes are determined by natural factors.
(a) A reporting entity must be composed of one or more businesses, public or private institutions or organizations, households, or other entities having operations that annually release emissions, at least in part, in the United States. Entities may be defined by, as appropriate, a certificate of incorporation, corporate charter, corporate filings, tax identification number, or other legal basis of identification recognized under any Federal, State or local law or regulation. If a reporting entity is composed of more than one entity, all of the entities included must be responsible to the same management hierarchy and all entities that have the same management hierarchy must be included in the reporting entity.
(b) All reporting entities are strongly encouraged to define themselves at the
(c) A name for the defined entity must be specified by all reporters. For entities that intend to register reductions, this should be the name commonly used to represent the activities being reported, as long as it is not also used to refer to substantial activities not covered by the entity's reports. While DOE believes entities should be given considerable flexibility in defining themselves at an appropriate level of aggregation, it is essential that the name assigned to an entity that intends to register reductions corresponds closely to the scope of the operations and emissions covered by its report. If, for example, an individual plant or operating unit is reporting as an entity, it should be given a name that corresponds to the specific plant or unit, and not to the responsible subsidiary or corporate entity. In order to distinguish a parent company from its subsidiaries, the name of the parent company generally should not be incorporated into the name of the reporting subsidiary, but if it is, the name of the parent company usually should be secondary.
(a) Each reporting entity must disclose in its entity statement the approach used to establish its organizational boundaries, which should be consistent with the following guidelines:
(1) In general, entities should use financial control as the primary basis for determining their organizational boundaries, with financial control meaning the ability to direct the financial and operating policies of all elements of the entity with a view to gaining economic or other benefits from its activities over a period of many years. This approach should ensure that all sources, including those controlled by subsidiaries, that are wholly or largely owned by the entity are covered by its reports. Sources that are under long-term lease of the entity may, depending on the provisions of such leases, also be considered to be under the entity's financial control. Sources that are temporarily leased or operated by an entity generally would not be considered to be under its financial control.
(2) Entities may establish organizational boundaries using approaches other than financial control, such as equity share or operational control, but must disclose how the use of these other approaches results in organizational boundaries that differ from those resulting from using the financial control approach.
(3) Emissions from facilities or vehicles that are partially-owned or leased may be included at the entity's discretion, provided that the entity has taken reasonable steps to assure that doing so does not result in the double counting of emissions, sequestration or emission reductions. Emissions reductions or sequestration associated with land, facilities or other sources not owned or leased by an entity may not be included in the entity's reports under the program unless the entity has long-term control over the emissions or sequestration of the source and the owner of the source has agreed that the emissions or sequestration may be included in the entity's report.
(4) If the scope of a defined entity extends beyond the United States, the reporting entity should use the same approach to determining its organizational boundaries in the U.S. and outside the U.S.
(b) Each reporting entity must keep separate reports on emissions or emission reductions that occur within its defined boundaries and those that occur outside its defined boundaries. Entities must also keep separate reports on emissions and emission reductions that occur outside the United States and those that occur within the United States.
(c) An entity that intends to register its entity-wide emissions reductions must document and maintain its organizational boundary for accounting and reporting purposes.
(a)
(1) Large emitters that intend to register emission reductions;
(2) Small emitters that intend to register emission reductions; and
(3) Emitters that intend to report, but not register emission reductions.
(b)
(1) For all entities, it is the year immediately preceding the first year for which the entity intends to register emission reductions and the last year of the initial base period(s).
(2) For entities intending to register emission reductions, the start year may be no earlier than 2002, unless the entity has made a commitment to reduce its entity-wide emissions under the Climate Leaders or Climate VISION program. An entity that has made such a commitment may establish a start year derived from the base period of the commitment, as long as it is no earlier than 2000.
(i) For a large emitter, the start year is the first year for which the entity submits a complete emissions inventory under the 1605(b) program.
(ii) The entity's emissions in its start year or its average annual emissions over a period of up to four years ending in the start year determine whether it qualifies to begin reporting as a small emitter.
(3) For entities not intending to register reductions, the start year may be no earlier than 1990.
(c)
(2) An entity must estimate its total emissions using methods specified in Chapter 1 of the Technical Guidelines (incorporated by reference, see § 300.13) or by using the Simplified Emission Inventory Tool (SEIT) provided by EIA and also discussed in Chapter 1. The results of this estimate must be reported to EIA. [
(3) After starting to report, each small emitter must annually certify that the emissions-related operations and boundaries of the entity have not changed significantly since the previous report. A new estimate of total emissions must be submitted after any significant increase in emissions, any change in the operations or boundaries of the small emitter, or every five years, whichever occurs first. Small emitters with estimated annual emissions of over 9,000 metric tons of CO
(d)
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) The criteria used to determine:
(i) The organizational boundaries of the entity, if other than financial control; and
(ii) The sources of emissions included or excluded from the entity's reports, such as sources excluded as
(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity's reports;
(5) The names of any large subsidiaries or organizational units covered comprehensively by the entity's reports. All subsidiaries of the entity must be covered by the entity's reports, but only large subsidiaries must be specifically identified in the entity statement;
(6) A list of each country where operations occur, if the entity is including any non-U.S. operations in its report;
(7) A description of the entity and its primary U.S. economic activities, such as electricity generation, product manufacturing, service provider or freight transport; for each country listed under paragraph (d)(6) of this section, the large emitter should describe the economic activity in that country.
(8) A description of the types of emission sources or sinks to be covered in the entity's emission inventories, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles;
(9) The names of other entities that substantially share the ownership or operational control of sources that represent a significant part of the reporting entity's emission inventories, and a certification that, to the best of the certifier's knowledge, the direct greenhouse gas emissions and sequestration in the entity's report are not included in reports filed by any of these other entities to the 1605(b) program; and
(10) Identification of the start year.
(e)
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) An identification of the entity's control over the activities covered by the entity's reports, if other than financial control;
(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity's reports;
(5) An identification or description of the primary economic activities of the entity, such as agricultural production, forest management or household operation; if any of the economic activities covered by the entity's reports occur outside the U.S., a listing of each country in which such activities occur;
(6) An identification or description of the specific activity (or activities) and the emissions, avoided emissions or sequestration covered by the entity's report, such as landfill gas recovery or forest sequestration;
(7) A certification that, to the best of the certifier's knowledge, the direct greenhouse gas emissions and sequestration in the entity's report are not included in reports filed by any other entities reporting to the 1605(b) program; and
(8) Identification of the start year.
(f)
(1) The name to be used to identify the reporting entity;
(2) The legal basis of the entity;
(3) An identification of the entity's control over the activities covered by the entity's reports, if other than financial control;
(4) A description of the entity and its primary economic activities, such as electricity generation, product manufacturing, service provider, freight transport, agricultural production, forest management or household operation; if any of the economic activities covered by the entity's reports occur outside the United States, a listing of each country in which such activities occur; and
(5) A description of the types of emission sources or sinks, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles, covered in the entity's reports of emissions or emission reductions.
(g)
(2) From time to time, a reporting entity may choose to change the scope of activities included within the entity's reports or the level at which the entity wishes to report. A reporting entity may also choose to change its organizational boundaries, its base period, or other elements of its entity statement. For example, companies buy and sell business units, or equity share arrangements may change. In general, DOE encourages changes in the scope of reporting that expand the coverage of an entity's report and discourages changes that reduce the coverage of such reports unless they are caused by divestitures or plant closures. Any such changes should be reported in amendments to the entity statement, and major changes may warrant or require changes in the base values used to calculate emission reductions and, in some cases, the entity's base periods. Changes in the scope of reporting made on or before May 31 of a given calendar year must be reflected in the report submitted
(h)
(1) For significant changes in the reporting entity's scope or organizational boundaries, the entity should document:
(i) The acquisition or divestiture of discrete business units, subsidiaries, facilities, and plants;
(ii) The closure or opening of significant facilities;
(iii) The transfer of economic activity to or from specific subentities covered by the entity's reports, such as the transfer of operations to non-U.S. subsidiaries;
(iv) Significant changes in land holdings (applies to entities reporting on greenhouse gas emissions or sequestration related to land use, land use change, or forestry);
(v) Whether the reporting entity is reporting at a higher level of aggregation than it did in the previous report, and if so, a listing of the subsidiary entities that are now aggregated under a revised conglomerated entity, including a listing of any non-U.S. operations to be added and the specific countries in which these operations are located; and
(vi) Changes in its activities or operations (
(a)
(b)
(1) Entities may at any time choose to modify the measurement or estimation methods that they use for their current or future year emission inventories. Such modifications would enable entities to gradually improve the quality of the ratings over time, but prior year inventories may be modified only to correct significant errors.
(2) Entities that have had their emission quantities and the quantity-weighted quality rating of their emissions inventory independently verified may report their emissions and average quality ratings by greenhouse gas, indirect emissions and sequestration, rather than by source or sink category.
(3) Entities that certify that they have used only A or B methods, may forego indicating in their reports the quality ratings of the methods used and may forego calculating the quantity-weighted average quality of their emission inventories.
(c)
(d)
(e)
(2) Entities may choose to report other forms of indirect emissions, such as emissions associated with employee commuting, materials consumed or products produced, although such other indirect emissions may not be included in the entity's emission inventory and may not be the basis for registered emission reductions. All such reports of other forms of indirect emissions must be distinct from reports of indirect emissions associated with purchased energy and must be based on emission measurement or estimation methods identified in the Technical Guidelines (incorporated by reference, see § 300.13) or approved by DOE.
(f)
(g)
(2) After starting to report, each reporting entity that excludes from its annual reports any
(h)
(i)
(j)
(a) Entities that intend to register emission reductions achieved must comply with the requirements of this section. Entities may voluntarily follow these procedures if they want to demonstrate the achievement of net, entity-wide reductions for years prior to the earliest year permitted for registration. Only large emitters must follow the requirements of paragraph (b) of this section, but small emitters may do so voluntarily. Only entities that qualify as small emitters may use the special procedures in paragraph (c) of this section. Entities seeking to register emission reductions achieved by other entities (offsets) must certify that these emission reductions were calculated in a manner consistent with the requirements of paragraph (d) of this section and use the emission reduction calculation methods identified in § 300.8. All entities seeking to register emission reductions must comply with the requirements of paragraph (e) of this section. Only reductions in the emissions of the first six categories of gases listed in the definition of “greenhouse gases” in § 300.2 are eligible for registration.
(b)
(2) If it is not practicable to assess the changes in net emissions resulting from certain entity activities using at least one of the methods described in § 300.8 of this part, the entity may exclude them from its estimate of net emission reductions. The entity must identify as one or more distinct subentities the sources of emissions excluded for this reason and describe the reasons why it was not practicable to assess the changes that had occurred. DOE believes that few emission sources will be excluded for this reason, but has identified at least two situations where such an exclusion would be warranted. For example, it is likely to be impossible to assess the emission changes associated with a new manufacturing plant that produces a product for which
(3) In calculating its net annual emission reductions, an entity should exclude any emissions or sequestration that have been excluded from the entity's inventory. The entity should also exclude all
(c)
(i) Perform a complete assessment of the annual emissions and sequestration associated with each of the activities upon which they report, using methods that meet the same quality requirements applicable to entity-wide emission inventories; and
(ii) Determine the changes in the emissions, eligible avoided emissions or sequestration associated with each of these activities.
(2) An entity reporting as a small emitter must report on one or more specific activities and is encouraged, but not required to report on all activities occurring within the entity boundary. Examples of small emitter activities include: vehicle operations; product manufacturing processes; building operations or a distinct part thereof, such as lighting; livestock operations; crop management; and power generation. For example, a farmer managing several woodlots and also producing a wheat crop may report emission reductions associated with managing an individual woodlot. However, the farmer must also assess and report the net sequestration resulting from managing all the woodlots within the entity's boundary. The small emitter is not required to report on emissions or reductions associated with growing the wheat crop.
(3) A small emitter must certify that the reductions reported were not caused by actions likely to cause increases in emissions elsewhere within the entity's operations. This certification should be based on an assessment of the likely direct and indirect effects of the actions taken to reduce greenhouse gas emissions.
(d)
(e)
(f)
(2) [Reserved]
(a)
(i) How the entity's subentities are defined;
(ii) How the reporter will gather and report emissions data; and
(iii) The availability of other types of data that might be needed, such as production or output data.
(2) For some entities, a single calculation method will be sufficient, but many entities may need to apply more than one method because discrete components of the entity require different calculation methods. In such a case, the entity will need to select a method for each subentity (or discrete component of the entity with identifiable emission or reductions). The emissions and output measure (generally a physical measure) of each subentity must be clearly distinguished and reported separately. Guidance on the selection and specification of calculation methods is provided in Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13).
(b)
(c)
(d)
(e)
(1) An identification and description of the method used to calculate emission reductions, including:
(i) The type of calculation method;
(ii) The measure of output used (if any); and
(iii) The method-specific base period for which any required base value will be calculated.
(2) The base period used in calculating reductions. When an entity starts to report, the base period used in calculating reductions must end in the start year. However, over time the reporting entity may find it necessary to revise or establish new base periods and base values in response to significant changes in processes or output of the subentity.
(3) A description of the subentity and its primary economic activity or activities, such as electricity generation, product manufacturing, service provider, freight transport, or household operation; and
(4) A description of the emission sources or sinks covered, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles.
(f)
(g)
(h)
(1)
(i) A reasonable indicator of the output produced by the entity;
(ii) A reliable indicator of changes in the entity's activities;
(iii) Related to emissions levels; and
(iv) Any appropriate adjustments for acquisitions, divestitures, insourcing, outsourcing, or changes in products have been made, as described in the Technical Guidelines (incorporated by reference, see § 300.13).
(2)
(3)
(4)
(i) The measurement and calculation methods used comply with the Technical Guidelines (incorporated by reference, see § 300.13);
(ii) The entity certifies that any increased sales were not attributable to the acquisition of a generating facility that had been previously operated, unless the entity's base period includes generation values from the acquired facility's operation prior to its acquisition; and
(iii) Generators of distributed energy that have net emissions in their base period and intend to report reductions resulting from changes in eligible avoided emissions, use a method specified in the Technical Guidelines (incorporated by reference, see § 300.13) that integrates the calculation of reductions resulting from both changes in emissions intensity and changes in avoided emissions.
(5)
(i) Uses output, utilization and other factors that are consistent, to the maximum extent practicable, with the action's actual performance in the year for which reductions are being reported;
(ii) Excludes any emission reductions that might have resulted from reduced output or were caused by actions likely to be associated with increases in emissions elsewhere within the entity's operations; and
(iii) Uses methods that are in compliance with the Technical Guidelines (incorporated by reference, see § 300.13).
(i)
(j)
(2) If emission reductions were, in whole or in part, the direct result of plant closings that caused a decline in output, the report must identify the reductions as such; these reductions do not qualify for registration. EIA will presume that reductions calculated using the emissions intensity method do not result from a decline in output.
(3) If the reductions were associated, in whole or part, with U.S. or non-U.S. government requirements, the report should identify the government requirement involved and the effect these requirements had on the reported emission reductions. If, as a result of the reduction, a non-U.S. government issued to the reporting entity a credit or other financial benefit or regulatory relief, the report should identify the government requirement involved and describe the specific form of benefit or relief provided.
(k)
(a)
(b)
(i) Revised reports may be submitted to correct errors that have a significant effect on previously estimated emissions or emission reductions; and
(ii) Emission inventories may be revised in order to create a consistent time series based on improvements in the emission estimation or measurement techniques used.
(2) Reporting entities must provide the corrected or improved data to EIA, together with an explanation of the significance of the change and its justification.
(3) If a change in calculation methods (for inventories or reductions) is made for a particular year, the reporting entity must, if feasible, revise its base value to assure methodological consistency with the reporting year value.
(c)
(d)
(1) The content of entity statements, including the identification of the specific facilities, buildings, land holding and other operations or emission sources covered by the entity's reports and the legal, equity, operational and other bases for their inclusion;
(2) Information on the identification and assessment of changes in entity boundaries, processes or products that might have to be reported to EIA;
(3) Any agreements or relevant communications with other entities or third parties regarding the reporting of emissions or emission reductions associated with sources the ownership or operational control of which is shared;
(4) Information on the methods used to measure or estimate emissions, and the data collection and management systems used to gather and prepare this data for inclusion in reports;
(5) Information on the methods used to calculate emission reductions, including the basis for:
(i) The selection of the specific output measures used, and the data collection and management systems used to gather and prepare output data for use in the calculation of emission reductions;
(ii) The selection and modification of all base years, base periods and baselines used in the calculation of emission reductions;
(iii) Any baseline adjustments made to reflect acquisitions, divestitures or other changes;
(iv) Any models or other estimation methods used; and
(v) Any internal or independent verification procedures undertaken.
(e)
(a)
(b)
(1) The information reported is accurate and complete;
(2) The information reported has been compiled in accordance with this part; and
(3) The information reported is consistent with information submitted in prior years, if any, or any inconsistencies with prior year's information are documented and explained in the entity statement.
(c)
(1) The entity took reasonable steps to ensure that direct emissions, emission reductions, and/or sequestration reported are neither double counted nor reported by any other entity. Reasonable steps include telephone, fax, letter, or e-mail communications to ensure that another entity does not intend to report the same emissions, emission reductions, and/or sequestration to DOE. Direct communications of this kind with participants in demand-side management or other programs directed at very small emitters are not required;
(2) Any emission reductions reported or registered by the entity that were achieved by another entity (other than a very small emitter that participated in a demand-side management or other program) are included in the entity's report only if:
(i) The other entity does not intend to report or register theses reductions directly;
(ii) There exists a written agreement with each other entity providing that the reporting entity is the entity entitled to report or register these emission reductions; and
(iii) The information reported on the other entity would meet the requirements of this part if the entity were reporting directly to DOE;
(3) None of the emissions, emission reductions, or sequestration reported were produced by shifting emissions to other entities or to non-reporting parts of the entity;
(4) None of any reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the entity's base period includes generation values from the acquiring facility's operation prior to its acquisition;
(5) The entity maintains records documenting the analysis and calculations underpinning the data reported on this form and records documenting the analysis and calculations underpinning the base values used in calculating annual reductions are maintained in accordance with § 300.9(d) of this part; and
(6) The entity has, or has not, obtained independent verification of the report, as described in § 300.11.
(a)
(b)
(i) The lead individual verifier and other members of the verification team are accredited by one or more independent and nationally-recognized accreditation programs, described in paragraph (c) of this section, for the types of professionals needed to determine compliance with DOE's 1605(b) guidelines;
(ii) The lead verifier has experience managing an auditing or verification process, including the recruitment and allocation of other individual verifiers, and has been empowered to make decisions relevant to the provision of a verification statement; and
(iii) All members of a verification team have education, training and/or professional experience that matches the tasks performed by the individual verifiers, as deemed necessary by the verifier accreditation program.
(2) As further guidance, all members of the verification team should be familiar with:
(i) The subject matter covered by the scope of the verification;
(ii) The requirements of this part;
(iii) Greenhouse gas emission and emission reduction quantification;
(iv) Data and information auditing sampling methods; and
(v) Risk assessment and methodologies and materiality analysis procedures outlined by other domestic and international standards.
(3) An individual verifier should have a professional degree or accreditation in engineering (environmental, industrial, chemical), accounting, economics, or a related field, supplemented by specific training and/or experience in emissions reporting and accounting, and should have his or her qualifications and continuing education periodically reviewed by an accreditation program. The skills required for verification are often cross-disciplinary. For example, an individual verifier reviewing a coal electric utility should be knowledgeable about mass balance calculations, fuel purchasing accounting, flows and stocks of coals, coal-fired boiler operation, and issues of entity definition.
(4) Companies that provide verification services must use professionals that possess the necessary skills and proficiency levels for the types of entities for which they provide verification services. Continuing training may be required to ensure all individuals have up-to-date knowledge regarding the tasks they perform.
(c)
(d)
(i) The content of entity statements, annual reports and the supporting records maintained by the entity;
(ii) The representation in entity statements (or lack thereof) of any significant changes in entity boundaries, products, or processes;
(iii) The procedures and methods used to collect emissions and output data, and calculate emission reductions (for entities with widely dispersed operations, this process should include on-site reviews of a sample of the facilities);
(iv) Relevant personnel training and management systems; and
(v) Relevant quality assurance/quality control procedures.
(2) DOE expects qualified verifiers to refer to the growing body of literature on methods of evaluating the elements listed in paragraph (d)(1) of this section, such as the California Climate Action Registry Certification Protocol, the Climate Leaders Inventory Management Plan Checklist, and the draft ISO 14064.3 Protocol for Validation, Verification and Certification.
(e)
(1) The verifier has examined all components listed in paragraph (d) of this section;
(2) The information reported in the verified entity report and this verification statement is accurate and complete;
(3) The information reported by the entity has been compiled in accordance with this part;
(4) The information reported on the entity report is consistent with information submitted in prior years, if any, or any inconsistencies with prior year's information are documented and explained in the entity statement;
(5) The verifier used due diligence to assure that direct emissions, emission reductions, and/or sequestration reported are not reported by any other entity;
(6) Any emissions, emission reductions, or sequestration that were achieved by a third-party entity are included in this report only if there exists a written agreement with each third party indicating that they have agreed that the reporting entity should be recognized as the entity entitled to report these emissions, emission reductions, or sequestration;
(7) None of the emissions, emission reductions, or sequestration reported was produced by shifting emissions to other entities or to non-reporting parts of the entity;
(8) No reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the base year generation values are derived from records of the facility's operation prior to its acquisition;
(9) The verifying entity has procedures in place for the maintenance of records that are sufficient to document the analysis and calculations underpinning this verification. The verifying entity shall maintain such records related to base period data submitted by the reporting entity for the duration of the reporting entity's participation in the 1605(b) program and records related to all other verified data for a period of no less than three years; and
(10) The independent verifier is not owned in whole or part by the reporting entity, nor provides any ongoing operational or support services to the entity, except services consistent with independent financial accounting or independent certification of compliance with government or private standards.
(f)
(a)
(b)
(c)
(d)
The Technical Guidelines for the Voluntary Reporting of Greenhouse Gases Program (March 2006), referred to throughout this part as the “Technical Guidelines,” have been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the Technical Guidelines from the Office of Policy and International Affairs, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, or by visiting the following Web site:
Employee Benefits Security Administration.
Final regulations.
This document contains three final regulations under the Employee Retirement Income Security Act of 1974 (ERISA or the Act) that facilitate the termination of, and distribution of benefits from, individual account pension plans that have been abandoned by their sponsoring employers. The first regulation establishes a procedure for financial institutions holding the assets of an abandoned individual account plan to terminate the plan and distribute benefits to the plan's participants and beneficiaries, with limited liability. The second regulation provides a fiduciary safe harbor for making distributions from terminated plans on behalf of participants and beneficiaries who fail to make an election regarding a form of benefit distribution. The third regulation establishes a simplified method for filing a terminal report for abandoned individual account plans. Appendices to these rules contain model notices for use in connection therewith. These regulations will affect fiduciaries, plan service providers, and participants and beneficiaries of individual account pension plans.
All three regulations are effective May 22, 2006.
Stephanie L. Ward or Melissa R. Spurgeon, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8500. This is not a toll-free number.
Thousands of individual account plans have, for a variety of reasons, been abandoned by their sponsors. Financial institutions holding the assets of these abandoned plans often do not have the authority or incentive to perform the responsibilities otherwise required of the plan administrator with respect to such plans. At the same time, participants and beneficiaries are frequently unable to access their plan benefits. As a result, the assets of many of these plans are diminished by ongoing administrative costs, rather than being paid to the plan's participants and beneficiaries.
Over the past few years, the Department of Labor's Employee Benefits Security Administration (the Department or EBSA) has seen an increase in the number of requests for assistance from participants who are unable to obtain access to the money in their individual account plans. According to these participants, even though a bank or other service provider of the plan may be holding their money, neither the bank nor the participants are able to locate anyone with authority under the plan to authorize benefit distributions.
In some cases, plan abandonment occurs when the sponsoring employer ceases to exist by virtue of a bankruptcy proceeding. In other cases, abandonment occurs because the plan sponsor has been incarcerated, died, or fled the country. Whatever the causes of abandonment, participants in these so-called “orphan plan” or “abandoned plan” situations are effectively denied access to their benefits and are otherwise unable to exercise their rights guaranteed under ERISA. At the same time, benefits in such plans are at risk of being significantly diminished by ongoing administrative expenses, rather than being distributed to participants and beneficiaries.
EBSA responded to those participants' requests for assistance with a series of enforcement initiatives, including the National Enforcement Project on Orphan Plans (NEPOP), which began in 1999. NEPOP focuses primarily on identifying abandoned plans, locating their fiduciaries, if possible, and requiring those fiduciaries to manage and terminate (including making benefit distributions to participants and beneficiaries) the plans in accordance with ERISA. When no fiduciary can be found, the Department often requests a federal court to appoint an independent fiduciary to manage, terminate, and distribute the assets of the plan. EBSA had opened over 1,500 civil cases involving defined contribution orphan plans as of September 30, 2005. In the over 1,000 orphan plan cases closed with results through that date, there were approximately 50,000 participants affected and $255 million in assets involved. As of September 30, 2005, there were approximately 400 active cases involving orphan plans.
During 2002, the ERISA Advisory Council created the Working Group on Orphan Plans to study the causes and extent of the orphan plan problem. On November 8, 2002, after public hearings and testimony, the Advisory Council issued a report, entitled Report of the Working Group on Orphan Plans,
Taking into account the problem of abandoned plans and the Department's efforts to date, the Advisory Council generally recommended measures (whether regulatory, legislative, or both) to encourage service providers to voluntarily terminate abandoned plans and distribute assets to participants and beneficiaries. Specific recommendations of the Advisory Council included new regulations for determining when a plan is abandoned, procedures for terminating abandoned plans and distributing assets, and rules defining who may terminate and wind up such plans.
On March 10, 2005, the Department published in the
In addition to the notice of proposed rulemaking, the Department published for public comment a related class exemption addressing various
Set forth below is an overview of the three regulations and the public comments received in response to the proposals.
In general, § 2578.1 sets forth a regulatory framework under which an individual account plan will be considered abandoned and terminated and pursuant to which a qualified termination administrator can take steps to wind up the affairs of the plan and distribute benefits to the plan's participants and beneficiaries.
Like the proposal, the final regulation authorizes a “qualified termination administrator” (QTA) to determine that an individual account plan is abandoned and to carry out related activities necessary to the termination and winding up of the plan's affairs. The conditions for being a QTA are set forth in paragraph (g) of § 2578.1. That section, as proposed, established two conditions for QTA status. First, the QTA must be eligible to serve as a trustee or issuer of an individual retirement plan within the meaning of section 7701(a)(37) of the Internal Revenue Code (Code) and, second, the QTA must be holding assets of the plan on whose behalf it will serve as the QTA.
A number of the commenters on the proposed regulation suggested that the Department expand the types of persons that could serve as a QTA under the regulation. In this regard, several of the commenters recommended expanding the proposed QTA definition to include recordkeepers, third-party contract administrators, accountants, and other service providers of plans, indicating that in many, if not most, instances, recordkeepers, third-party contract administrators and other service providers will be in a better position than financial institutions to determine that a plan has been abandoned and reconcile the information necessary to a plan's termination because of their ready access to plan documents and records.
Although the Department recognizes the critical role that recordkeepers, third-party contract administrators and other service providers to plans can and will play in the process of winding up the affairs of an abandoned plan, the Department nonetheless believes that, given the authority and control over plans vested in QTAs under the regulation, QTAs must be subject to standards and oversight that will reduce the risk of losses to the plans' participants and beneficiaries. In developing its criteria for QTAs, the Department limited QTA status to trustees or issuers of an individual retirement plan within the meaning of section 7701(a)(37) of the Code because the standards applicable to such trustees and issuers are well understood by the regulated community and the Department is unaware of any problems attributable to weaknesses in the existing Code and regulatory standards for such persons. Accordingly, the Department believed that the Code and regulatory standards could be adopted for purposes of this regulation without imposing unnecessary costs and burdens on either plans or potential QTAs. The Department notes that, while commenters did propose varying procedures and criteria for defining QTA status, there was no consensus among the commenters as to what regulatory standards might be applicable to such persons. For these reasons, the Department is adopting the definition of “qualified termination administrator” without change from the proposal.
As noted above, the Department anticipates that recordkeepers and other providers of services to abandoned plans will play an important role in winding up the affairs of the plan and that QTAs will, to the extent necessary to discharge their responsibilities under the regulation, utilize existing service providers as a means of maximizing efficiencies in the termination process and keeping administrative costs attendant to plan termination as low as possible. Paragraph (d)(2)(iv) of the final regulation makes clear that a QTA may engage, on behalf of the plan, such service providers as are necessary for the QTA to carry out its responsibilities.
One commenter, noting the possibility that an abandoned plan might have assets invested with more than one financial institution, asked whether each such institution could be a QTA of that plan with respect to the assets held by that institution. The Department intends that there will be only one QTA for an abandoned plan and to the extent that one or more institutions is determined to hold assets of an abandoned plan subsequent to the approval of a QTA, such institutions will be expected to cooperate with the QTA in winding up the plan. To facilitate this process, the Department has added a new paragraph to the limited liability section of the regulation, paragraph (e)(3), that limits the liability of a party holding plan assets when transferring or disposing of a plan's assets at the direction of the QTA. Paragraph (e)(3) is discussed in greater detail under subsection 6 of this preamble, entitled “Limited Liability.”
Two commenters argued in favor of conferring QTA status on court appointed bankruptcy trustees in liquidation cases where the debtor also is the plan administrator. The Department did not adopt this suggestion. Such individuals are empowered by virtue of their court appointment to take the steps necessary to terminate and wind up the affairs of a plan and, therefore, do not need the authority conferred by the regulation. The final regulation does not limit, in any way, the ability of other parties who may be acting pursuant to court appointment, court order, or otherwise acting on behalf of the sponsor of the plan, to terminate and wind up the affairs of a pension plan, without regard to whether the plan is considered abandoned under this regulation.
One commenter raised the issue of whether an affiliate of an otherwise eligible financial institution could itself be a QTA. As noted above, paragraph (g) of the final regulation provides that, in order to be a QTA, an entity must both (1) be eligible to serve as a trustee or issuer of an individual retirement plan under section 7701(a)(37) of the Code, and (2) hold assets of the abandoned plan. Accordingly, by definition, an entity that does not satisfy these two conditions could not itself be a QTA even if it is affiliated with a financial institution that does satisfy the conditions. Of course, a QTA may engage any of its affiliates to provide administrative services necessary to the termination and winding-up process, provided that all of the requirements of the regulation and prohibited transaction class exemption are satisfied.
As in the proposal, the final regulation describes the circumstances under which a QTA may find an individual account plan to be abandoned. Such circumstances are when there have been no contributions to (or distributions from) a plan for a consecutive 12-month period, or where facts and circumstances known to the QTA (such as a plan sponsor's liquidation under title 11 of the United States Code, or communications from
With respect to the facts and circumstances clause, one commenter suggested adding language to expressly cover situations in which the plan sponsor has been dissolved without a successor under applicable State law. Although the Department agrees that the dissolution of the sponsor may cause the plan to become abandoned, the Department believes it is unnecessary to add this particular example to the regulation. The examples listed in the regulation are not exclusive. Rather, the Department anticipates that a variety of circumstances, regardless of whether they are listed as examples in the regulation, might justify a finding of immediate abandonment.
As a second condition to a finding of abandonment, the proposal provided that the QTA must, following reasonable efforts to locate or communicate with the known plan sponsor, determine that the plan sponsor no longer exists, cannot be located, or is unable to maintain the plan. Because there were no negative comments on this provision, it was adopted without modification. See § 2578.1(b)(1)(ii).
With respect to the proposal's requirement of reasonable efforts to locate the missing plan sponsor, one commenter objected to the provision requiring the QTA to communicate with the sponsor's corporate agent for service of legal process. The commenter argued that this is an unnecessary and unhelpful provision and suggested eliminating it. The Department notes that the provision of the regulation referenced by the commenter is not a mandate, but rather part of a safe harbor under which the QTA will be deemed to have made a reasonable effort to locate or communicate with the plan sponsor if the corporate agent receives notification. Accordingly, if a QTA determines that contacting the agent for service of legal process is unnecessary or unhelpful, it is not required to do so. No changes were made to paragraph (b) in response to this comment.
One commenter requested that the Department confirm that the regulation would apply to a situation where a plan becomes abandoned after the plan sponsor decides to terminate the plan, but before the sponsor actually completes the termination and winding-up process. While the regulation would cover this situation, the Department notes that a sponsor's decision to terminate a plan would not relieve a QTA from following the entire process established by the regulation, including the requirements in paragraph (c) of the final regulation relating to deemed termination.
Under the proposal, a QTA was precluded from finding a plan to be abandoned if at any time before the plan is deemed terminated under the regulation the QTA receives an objection, whether oral or written, from the plan sponsor regarding the QTA's finding and the proposed termination. One commenter suggested the final regulation should mandate that such objections be put in writing and include representations regarding the sponsor's ability and willingness to administer the plan in accordance with plan documents. While the Department has not modified the final regulation in response to this comment, the Department notes that, given the facts that would give rise to a QTA's determination that the plan at issue may have been abandoned, the QTA may wish to inform the Department of the situation involving the plan and the sponsor's objection to the plan's termination.
The final regulation provides that following a QTA's finding that a plan is abandoned, the plan will be deemed to be terminated on the ninetieth (90th) day following the date of the letter from EBSA's Office of Enforcement acknowledging receipt of the notice of plan abandonment. The furnishing of notice to the Department, in conjunction with the 90-day delay in the deemed termination of the plan, is intended to afford the Department an opportunity to review the circumstances of the proposed plan termination and, if appropriate, object to the termination. If the Department objects to a termination within the 90-day period, the plan is not deemed terminated until such time as the Department informs the QTA that the Department's concerns have been addressed. See § 2578.1(c).
The proposal provided that the 90-day period starts when the notice is furnished to the Department. For this purpose, paragraph (c)(4) of the proposal provided that a notice would be considered furnished to the Department on receipt, unless sent by certified mail, in which case the notice would be considered furnished when mailed. Given the significance of the 90-day period to potential QTAs, plans, participants, and the Department, the Department has revised the regulation to ensure actual receipt by the agency and to eliminate any ambiguity concerning the running of the 90-day period. In this regard, the regulation now provides, in paragraph (c)(1), that, subject to the waiver exception in paragraph (c)(2), a plan shall be deemed to be terminated on the ninetieth (90th) day following the date of the letter from EBSA's Office of Enforcement acknowledging receipt of the notice of plan abandonment described in paragraph (c)(3) of the regulation. A conforming change has been made to paragraph (c)(2) and proposed paragraph (c)(4) has been eliminated from the final regulation.
As with the proposal, the Department, in its sole discretion, may waive some or all of the 90-day waiting period. Such a waiver might occur, for example, in the case of plans with few participants and few assets or if the facts relating to the abandonment are not very complicated, and if it is readily apparent to the Department that the proposed termination would be unlikely to put the participants' interests at risk. If the Department waives some or all of the 90-day period, the plan would be deemed terminated when the Department furnishes notification of the waiver to the QTA. See § 2578.1(c)(2)(ii). This provision was adopted without change.
The proposal provided that the notification to the Department must be signed and dated by the QTA and include certain information about the QTA and the abandoned plan. Except as provided below, the notification requirements of the proposal were adopted without modification. See § 2578.1(c)(3).
Under the proposal, the notification to the Department was required to include certain information about the QTA, including whether the person electing to be the QTA (or any affiliate of the person) is, or within the past 24 months has been, the subject of an investigation, examination, or enforcement action by the Department, Internal Revenue Service, or Securities and Exchange Commission concerning such entity's conduct as a fiduciary or party in interest with respect to any plan
In response to these comments, the Department is adding a definition of “affiliate” that is intended to provide certainty to the identification process. As set forth in paragraph (h), the term affiliate under the regulation generally means any person directly or indirectly controlling, controlled by, or under common control with, the person; or any officer, director, partner or employee of the person. See § 2578.1(h)(1). However, for purposes of the notification requirement in paragraph (c)(3)(i)(C), the regulation adopts a narrower definition, focusing on those affiliates that a QTA should have no difficulty identifying—those affiliates that are a 50 percent or more owner of a QTA or any affiliate (within the meaning of paragraph (h)(1)) that provides services to the plan. See § 2578.1(h)(2).
The content requirements for this notification also are amended to include a statement by the QTA that it has received no objection to the plan termination from the plan sponsor. This change merely clarifies the intent of the requirement that a QTA has made a reasonable effort to contact the plan sponsor. See § 2578.1(c)(3)(iii).
The final regulation, like the proposal, includes, at Appendix B, a model notice that may be used by a QTA to satisfy the notice requirement of § 2578.1(c)(3).
In the preamble to the proposed regulation, the Department invited comment on whether notices to be submitted to the Department (
The proposal set forth specific steps that a QTA must take to wind up an abandoned plan and, with respect to most such steps, the standards applicable to carrying out the particular activity.
The proposal provided that the QTA must use reasonable care in calculating benefits payable based on the plan records assembled. Two commenters raised issues concerning the calculation of benefits and the likelihood of missing or incomplete plan and other employment records in the abandoned plan context. One commenter noted that defined contribution plans often use allocation formulas based on employee compensation levels but that a QTA is unlikely to have access to employment records showing such levels. Another commenter noted that many defined contribution plans provide for a reversion of unallocated assets to the plan sponsor at termination, which generally would be unfeasible given that the plan sponsor is usually missing in the abandoned plan context.
In an effort to provide QTAs with more certainty with respect to satisfying their obligations in making benefit determinations under the regulation, the final regulation includes a new provision addressing the allocation of expenses and unallocated assets. See § 2578.1 (d)(2)(ii)(B). In instances where a plan document is unavailable, ambiguous, or if compliance with the terms of the plan document is not feasible, the regulation provides that, for purposes of allocations in connection with calculating benefits payable under this regulation, the QTA shall be deemed to have used reasonable care when allocating expenses to the individual accounts of participants and beneficiaries if such expenses are allocated either on a pro rata basis (proportionately in the ratio that each individual account balance bears to the total of all individual account balances) or on a per capita basis (allocated
In the case of unallocated assets (including forfeitures and assets in a suspense account), a QTA, under the new provision, will be deemed to have used reasonable care if such assets are allocated on a per capita basis (allocated equally to all accounts). See § 2578.1(d)(2)(ii)(B)(1). A more restrictive approach to allocations of unallocated assets was adopted due to concerns that allocating such assets on a pro rata basis (proportionately in the ratio that each individual account balance bears to the total of all individual account balances) would tend to result in discrimination in favor of highly compensated employees that is not permitted under the Code.
A number of commenters requested guidance on the handling of an individual account with respect to which the amount in the account is less than the anticipated administrative cost of processing and distributing that account in accordance with the regulation. These commenters noted that payment of administrative expenses from plan assets frequently extinguishes very small accounts. It was explained that expenses unable to be paid out of a specific individual account are then charged back to the plan as a whole, thereby reducing the account balances of other plan participants or beneficiaries. In order to reduce overall administrative costs, these commenters generally recommended that any account balance worth less than its share of anticipated expenses be treated as forfeited and reallocated to the remaining accounts.
In response to these comments, the final regulation provides that a QTA shall not have failed to use reasonable care in calculating benefits payable solely because the QTA treats as forfeited an account balance that, taking into account that account's share of estimated forfeitures and other unallocated assets, is less than the estimated share of plan expenses allocable to that account. See § 2578.1(d)(ii)(A). This provision also requires the QTA to use forfeited account balances to defray plan expenses or to allocate them to other plan participant or beneficiary accounts on a per capita basis. This provision is intended to minimize accrual of unnecessary administrative expenses at the plan level in connection with individual accounts that have little, if any, likelihood of ever being distributed due to their size.
In response to questions raised about a QTA's obligations with respect to collecting delinquent employer and employee contributions on behalf of the plan, the Department has included in the final regulation a new paragraph (d)(2)(iii). Paragraph (d)(2)(iii)(A) of the final regulation provides that a QTA must notify the Department of known delinquent contributions owed to the plan. This information must be included in either the notice of plan abandonment (§ 2578.1(c)(3)) or the final notice (§ 2578.1(d)(2)(ix)). Paragraph (d)(2)(iii)(B) of the final regulation provides that the QTA is not required to collect delinquent contributions on behalf of the plan. The final regulation includes minor conforming amendments to the content requirements of the notice of plan abandonment and the final notice to reflect the new requirement to report delinquent contributions. See §§ 2578.1(c)(3)(iv)(D) and (d)(2)(ix)(F). In addition, the model notice of plan abandonment (Appendix B) and the model final notice (Appendix D) were changed by adding a new box, entitled “Other,” in which the QTA may identify such delinquencies, thereby entitling the QTA to the special relief provided under the regulation. Further discussion of this issue can be found in subsection 6 of this preamble, entitled “Limited Liability.”
As noted above, the proposal provided that reasonable expenses incurred in connection with the termination and winding up of a plan may be paid from plan assets. In this regard, paragraph (d)(2)(iv)(B) of the proposal provided that an expense shall be considered reasonable if it is not in excess of rates charged by the QTA (or affiliate) to other customers (
The proposal provided that a QTA shall, as one of its duties in winding up the affairs of a plan, furnish to each participant or beneficiary a notice concerning the termination of his or her plan. The content requirements of this notice were adopted largely as proposed. See § 2578.1(d)(2)(vi). Minor modifications were made to reflect other changes to the regulation, such as the inclusion of additional distribution options in the case of missing or non-responsive participants or beneficiaries. See § 2578.1(d)(2)(vi)(A)(5)-(8).
This notice of plan termination must include, among other things, the individual's account balance and date on which the balance was calculated. The reason for mandating this information in the notice is to inform participants of the immediacy of their distribution and help them choose an appropriate distribution option in light of the amount of their benefits. The proposal did not mandate a specific calculation date, but given the purpose and timing of the notice, the calculation date ordinarily should be on or about the date the notice is sent to the participant or beneficiary. One commenter inquired whether a QTA could omit the account balance and calculation date from notices if participants and beneficiaries could access their daily account balances via telephonic or web-based systems. This commenter indicated that its current notification system is able to produce this information only at predetermined intervals (e.g., monthly, quarterly, semiannually, or annually). Modifying existing notification systems, according to the commenter, would increase costs attendant to terminating and winding up plans under the regulation.
The Department believes it is important to keep administrative costs of winding up an abandoned plan as low as possible, thereby preserving assets for distribution to participants and beneficiaries. Accordingly, a telephonic or web-based system that makes daily account balances readily accessible to participants and beneficiaries complies with the content requirements set forth in paragraph (d)(2)(vi)(A)(3)(i) of the final regulation if, in lieu of specific account information, the required notification includes the following: (1) A description of the method for accessing the system and account information, such as relevant telephone numbers, passwords, and access codes; (2) a statement indicating that participants and beneficiaries have a right to request a paper version of their specific account information; and (3) a description of the procedures for obtaining such a paper statement from the QTA.
Like the proposal, the final regulation mandates that the notice of plan termination must include a description of the plan's distribution options and the procedure for a participant or beneficiary to make an election. One commenter indicated that it currently sends to participants in tax-qualified plans, upon a distributable event, a booklet containing, among other things, a description of the distribution options available under the plan. As described by the commenter, the booklet is intended to meet the notice requirements under section 402(f) of the Code, outlining the participant or beneficiary's distribution options and explaining the tax consequences associated with each such option. The commenter asked if a QTA could exclude from the termination notice information on distribution options if such information was furnished simultaneously to participants and beneficiaries as part of the disclosure required under section 402(f) of the Code. Recognizing that furnishing duplicative information to participants and beneficiaries about their distribution options may be both confusing and costly, it is the view of the Department that the requirement of paragraph (d)(2)(vi)(A)(4) of the final regulation does not preclude the furnishing of information concerning the distribution options of participants and beneficiaries in a separate document that complies with section 402(f) of Code and is included in the same mailing as the termination notice.
In general, QTAs must distribute benefits in accordance with the form of benefit elected by the participant or beneficiary. See § 2578.1(d)(2)(vii)(A). Because spousal consent is sometimes required for a distribution, this section has been modified to add the clause “with spousal consent, if required.”
Commenters noted that, if participants and beneficiaries fail to make a timely election concerning the form of benefit distribution, and the plan is subject to the survivor annuity requirements in sections 401(a)(11) and 417 of the Code, a QTA might not be able to comply with the distribution requirements of § 2550.404a-3 (Safe Harbor for Distributions from Terminated Individual Account Plans) as required by the proposal. In recognition of this problem, the final regulation has been amended to provide that, if a QTA determines that the survivor annuity requirements of the Code prevent a distribution in accordance with § 2550.404a-3, the QTA shall distribute benefits “in any manner reasonably determined to achieve compliance with those requirements.” See § 2578.1(d)(2)(vii)(B)(2). In those cases where a QTA is required to select an annuity provider, it is expected that the selection process will be carried out in accordance with the fiduciary standards under section 404 of ERISA. See § 2578.1(e)(1)(iii).
Further discussion relating to annuity purchases pursuant to paragraph (d)(2)(vii)(B)(2) is contained in subsection 6 of this preamble, entitled “Limited Liability,” and subsection 7, entitled “Internal Revenue Service.” Also, it should be noted that an additional change was made to 29 CFR 2550.404a-3 for distributions on behalf of missing or non-responsive participants in situations where the present value of the benefits does not exceed $1,000. See 29 CFR 2550.404a-3(d)(1)(iii) and the preamble discussion related to that final regulation for an explanation of this change.
In the context of plan distributions, several commenters requested guidance concerning a QTA's duties with respect to assets for which there is no readily ascertainable fair market value (e.g., limited partnership/joint venture interests, employer securities, participant loans, defaulted mortgages and bonds, and employer real property). Recognizing that there is no one course of action that would be appropriate to all types of assets that QTAs might confront in the course of winding up the affairs of abandoned plans, QTAs, as with plan fiduciaries generally, will be required to evaluate the options and costs and make a determination as to what course of action is in the best interest of participants and beneficiaries. The actions of a QTA in liquidating hard to value plan assets are not covered by the safe harbor in paragraph (e) of the final regulation. The Department notes that significant holdings of hard to value or illiquid assets by a plan may indicate that the plan is not suitable for termination under this regulation. Rather, it might be more appropriate for the plan termination to occur under the Department's National Enforcement Project on Orphan Plans (NEPOP).
Because the Department is interested in receiving information about hard to value and illiquid assets held by abandoned plans, the Department has added a new provision to the Special Terminal Report for Abandoned Plans to enable the Department to collect data on this topic. See § 2520.103-13(b)(5). Under this provision, a QTA is required to identify and report the fair market value and method of valuation of any assets with respect to which there is no readily ascertainable fair market value.
The last step in the winding-up process is for the QTA to notify EBSA's Office of Enforcement that all benefits have been distributed in accordance with the regulation. Paragraph (d)(2)(viii) of the proposal set forth the content requirements of this notification. These requirements have been adopted largely as proposed. See § 2578.1(d)(2)(ix). Unlike the proposal, however, the final regulation does not require the final notice to include a statement that a special terminal report meeting the requirements of § 2520.103-13 is attached to the final notice. This change was made to preserve maximum flexibility with respect to the filing requirements of the special terminal report. As explained below in the preamble to § 2520.103-13, initially all terminal reports will be filed as attachments to final notices. Ultimately, though, such attachments will be unnecessary as the Department anticipates an electronic system for filing terminal reports.
Paragraph (d)(3) of the proposal provided that the terms of the plan shall, for purposes of title I of ERISA, be deemed amended to the extent necessary to allow the QTA to wind up the plan in accordance with this
Paragraph (e) of the final regulation, like the proposal, provides that, if a QTA carries out its responsibilities with regard to winding up the affairs of the plan in accordance with paragraph (d)(2) of the regulation, the QTA will be deemed to satisfy any responsibilities it may have under section 404(a) of ERISA with respect to such activity, except for selecting and monitoring service providers. In addition, if the QTA selects and monitors service providers consistent with the prudence requirements in part 4 of ERISA, the QTA will not be held liable for the acts or omissions of the service providers with respect to which the QTA does not have knowledge. See § 2578.1(e)(1).
With regard to the liability of a QTA, commenters argued that: (1) The winding-up provisions under the regulation should not be considered fiduciary acts; (2) the QTA should be protected from lawsuits by plan sponsors and participants and beneficiaries; and (3) the Department should adopt a substantial compliance approach to assessing compliance with the regulation. The Department believes that it has constructed a regulatory framework that serves to minimize to the greatest extent possible the liability and exposure of QTAs who carry out their responsibilities in accordance with the provisions of the regulation. In this regard, the Department does not believe it can take the position that acts involving the exercise of discretion are not fiduciary acts. Nonetheless, the Department has, in many instances, attempted to define the type of activity that would be viewed as satisfying the fiduciary requirements under ERISA in the context of abandoned plans. See § 2578.1(e)(1) (referring to the activities in paragraph (d)(2) of the regulation). Further, the Department believes that compliance with the requirements of the regulation will provide a meaningful defense for the actions of a QTA in the event the QTA is sued by the plan sponsor or a plan participant or beneficiary.
Two commenters questioned the obligations of a QTA with respect to the retention of service providers that had been engaged to provide services to the plan by the plan sponsor (or another plan fiduciary) prior to the plan's abandonment. It is the view of the Department that a QTA does not have a duty to second guess the prudence of an earlier determination by the plan sponsor (or fiduciary) to engage a service provider for, or on behalf of, the plan. However, the QTA does have an obligation to monitor those who provide services to the plan, consistent with the requirements of section 404(a), without regard to whether the service provider was selected by the plan sponsor (or other fiduciary of the plan) or by the QTA. Like the proposal, the final regulation provides, however, that, to the extent that a QTA discharges its duties to select and monitor service providers in a manner consistent with section 404(a), the QTA will not be liable for the acts or omissions of the service provider with respect to which the QTA does not have actual knowledge. See § 2578.1(e)(1)(ii).
As with the selection and monitoring of service providers, it is the view of the Department that the selection of annuity providers is of such significance to plan participants and beneficiaries that the selection process should be governed by the fiduciary standards of section 404(a) of ERISA. For this reason, the limited liability provisions of § 2578.1(e)(1)(i) do not extend to a QTA's selection of an annuity provider in those instances where a QTA determines that the survivor annuity requirements of the Code prevent a distribution in accordance with § 2550.404a-3. See § 2578.1(e)(1)(iii).
Several commenters inquired whether a QTA would have a fiduciary duty under ERISA to identify and correct fiduciary breaches that were committed before the person became a QTA (i.e., before the date of the plan's deemed termination). Most of these inquiries concerned delinquencies in forwarding participant contributions to the plan. The commenters noted that correcting such violations could add significantly to the cost of terminating an abandoned plan.
In an effort to clarify the responsibilities of a QTA with regard to such circumstances, the Department has added two new provisions to the final regulation. The first provision makes it clear that a QTA is not required to conduct an inquiry or review to determine whether or what breaches of fiduciary responsibility may have occurred with respect to a plan prior to becoming the QTA for such plan. See § 2578.1(e)(2).
Another issue raised by commenters relates to circumstances when the assets of an abandoned plan are held by more than one institution. In such circumstances, the Department intends that there will be only one QTA and that other parties holding plan assets cooperate with the QTA in winding up the affairs of the plan and distributing assets to the plan's participants and beneficiaries in accordance with this regulation. The Department recognizes that persons holding such assets may have concerns about their potential liability under ERISA in following a QTA's direction. The Department, therefore, has added a new paragraph (§ 2578.1(e)(3)) to make clear that a person holding assets of an abandoned plan will not be considered to violate section 404(a) of ERISA to the extent that person cooperates with and follows the direction of the QTA, as the QTA carries out its responsibilities under the regulation. The regulation conditions relief on the person holding plan assets confirming that the person representing to be the QTA of an abandoned plan is the QTA recognized by the Department
In developing the proposed regulation, the Department conferred with representatives of the IRS regarding the qualification requirements under the Code as applied to plans that are terminated pursuant to the regulation. As indicated in the preamble of the proposed regulation, the Department has been advised by the IRS that it will not challenge the qualified status of any plan terminated under the regulation or take any adverse action against, or seek to assess or impose any penalty on, the QTA, the plan, or any participant or beneficiary of the plan as a result of such termination, including the distribution of the plan's assets, provided that the QTA satisfies three conditions. First, the QTA, based on plan records located and updated in accordance with paragraph (d)(2)(i) of the proposed regulation, reasonably determines whether, and to what extent, the survivor annuity requirements of sections 401(a)(11) and 417 of the Code apply to any benefit payable under the plan and takes reasonable steps to comply with those requirements (if applicable). Second, each participant and beneficiary has a nonforfeitable right to his or her accrued benefits as of the date of deemed termination under paragraph (c)(1) of the proposed regulation, subject to income, expenses, gains, and losses between that date and the date of distribution. Third, participants and beneficiaries must receive notification of their rights under section 402(f) of the Code. This notification should be included in, or attached to, the notice described in paragraph (d)(2)(v) of the proposed regulation. Notwithstanding the foregoing, as indicated in the preamble to the proposed regulation, the IRS reserves the right to pursue appropriate remedies under the Code against any party who is responsible for the plan, such as the plan sponsor, plan administrator, or owner of the business, even in its capacity as a participant or beneficiary under the plan.
The Department received several comments regarding the position of the IRS, as stated above, particularly with respect to the three conditions. Many of the commenters stated a need for clarification of the conditions with respect to specific issues likely to arise in connection with distributions on behalf of missing or non-responsive participants or beneficiaries. Other commenters requested that the Department continue to consult with the IRS throughout the rulemaking process in order to provide the best possible final regulation under the circumstances. These commenters suggested that the overall success of a final regulation would depend, in part, on a clear statement from the IRS regarding the qualification requirements under the Code as applied to plans that would be terminated pursuant to the final regulation. All relevant comment letters were transmitted to the IRS for its consideration along with the three final regulations being published in this notice. The IRS has advised that its view, as expressed above, has not changed. Set forth below is a discussion of the specific issues raised by the commenters and, where appropriate, the IRS response.
With respect to the first IRS condition, one commenter requested clarification on how a QTA would be able to effect a distribution on behalf of a missing or non-responsive participant in those circumstances when the benefit payable is subject to the Code's survivor annuity requirements.
With respect to the second IRS condition, one commenter asked for guidance from the IRS regarding compliance with the partial termination requirements of section 411(d)(3) of the Code. The IRS has advised as follows. The partial termination provisions apply in this context only if there is a forfeiture account (not a Code 415 suspense account) with plan assets as of the date of deemed termination under paragraph (c)(1) of the final regulation. In such a circumstance, the Code generally requires an evaluation, based on plan records located and updated in accordance with paragraph (d)(2)(i) of the final regulation, of whether a partial termination occurred at any point during the plan year preceding the year in which the plan is terminated. If the QTA determines there was a partial termination, the benefits of affected participants, if any, would have to be fully vested in accordance with section 411 of the Code. However, no such evaluation, vesting, and distribution would be necessary if the QTA reasonably determines that the cost of carrying out those acts would exceed the value of the benefits that would otherwise vest under the partial termination provisions.
With respect to the third IRS condition (regarding the written explanation requirement imposed by Code section 402(f)), the view of the IRS is that the section 402(f) notice should be included in, or attached to, the participant notification of termination described in paragraph (d)(2)(v) of the proposed regulation. Paragraph (d)(2)(vi)(B) of the proposed regulation required that a participant be given at least 30 days from the furnishing of the notification described in paragraph (d)(2)(v) of the proposal to elect a form of distribution, after which the QTA is required to distribute the participant's benefits in accordance with the regulation. One commenter suggested that the timing requirements for when a plan administrator must furnish the Code section 402(f) notice might not always be consistent with the “at least 30 days” requirement in paragraph (d)(2)(vi)(B) of the proposed regulation. After consulting with the IRS, the Department has decided to adopt paragraph (d)(2)(vi)(B) of the proposed
One commenter asked for clarification regarding compliance with the Code's consent requirements in cases where the present value of a missing or non-responsive participant's vested accrued benefit exceeds $5,000.
One commenter requested clarification on the position of the IRS as to whether, in addition to satisfying the three conditions discussed above, a QTA would be expected or required under the Code to amend an abandoned plan at or before termination for qualification purposes. The commenter specifically mentioned the general practice of amending or restating a tax-qualified plan to reflect legislative or other updates to the Code, such as adopting plan amendments for the Economic Growth and Tax Relief Reconciliation Act of 2001. The Department has been advised that the position of the IRS is that, if a plan is terminated (as provided in § 2578.1) and the three conditions described above are satisfied, a QTA would not be required or expected to amend the plan to reflect future guidance under the Code.
On March 10, 2005, the Department published in the
Like the proposal, the final regulation provides that if the conditions of the safe harbor are met, a fiduciary (including a QTA in the case of an abandoned plan) is deemed to have satisfied the requirements of section 404(a) of the Act with respect to the distribution of benefits, selection of an individual retirement plan provider or other account provider, and the investment of funds in connection with the distribution. See § 2550.404a-3(c). In this regard, the proposal set forth three conditions. These conditions related to the qualifications of individual retirement plan providers, permissible investment products, limits on fees and expenses, a written agreement requirement, participant enforcement rights, and prohibited transactions. Except as otherwise indicated below, the final regulation retains each of these conditions without modification.
The proposal conditioned relief on, among other things, the rollover of distributions to an individual retirement plan, as defined in section 7701(a)(37) of the Code.
In response to these comments, the final regulation includes an alternative to direct rollovers to individual retirement plans. Under this alternative, a QTA may make distributions to certain bank accounts or State unclaimed property funds. This alternative is available only in the case of a distribution by a QTA with respect to which the amount to be distributed is $1,000 or less and that amount is less than the minimum amount required to be invested in an individual retirement plan product offered by the QTA to the
For example, a financial institution offers to the public an IRA with a minimum initial investment requirement of $200. The financial institution also is the QTA of an abandoned plan, with respect to which there are two missing or non-responsive participants. The present value of the benefits for one of the participants is $900 and the present value of the other participant's benefits is $175. After determining that the Code's survivor annuity rules do not apply to either distribution, the QTA must distribute the benefits totaling $900 directly to an individual retirement plan within the meaning of section 7701(a)(37) of the Code. The benefit distribution of $175 must, at the election of the QTA, be distributed to an interest-bearing federally insured bank or savings association account in the name of the participant, to the unclaimed property fund of the State in which the participant's last known address is located, or, if available, to an individual retirement plan offered by an institution other than the QTA.
Paragraph (d)(2)(i) and (ii) address the types of investments that are permitted under the safe harbor in the case of distributions to individual retirement plans (pursuant to paragraph (d)(1)(i) or (d)(1)(iii)(C)) or to other accounts in the case of distributions on behalf of non-spousal beneficiaries (pursuant to paragraph (d)(1)(ii)).
As noted above, this regulation provides a fiduciary safe harbor for distributions from terminated individual account plans (whether abandoned or not) on behalf of missing or non-responsive participants and beneficiaries, without regard to the value of such distributions. In the context of distributions from non-abandoned plans, one commenter requested guidance on the application of the consent requirements in section 411(a)(11) of the Code to a distribution of vested accrued benefits in excess of $5,000 where the plan offers an annuity option (purchased from a commercial provider), or where the sponsoring employer, or any entity within the same controlled group as the employer, maintains another defined contribution plan (other than an employee stock ownership plan as defined in section 4975(e)(7) of the Code) into which the benefits could be transferred.
The proposed fiduciary safe harbor was limited to distributions from plans described in section 401(a) of the Code to reflect the tax deferred nature of the rollover in the safe harbor.
One commenter expressed concern over the application of the customer identification and verification (CIP) procedures of the USA PATRIOT Act (the Patriot Act) in connection with a rollover by a QTA on behalf of a missing participant. Generally, the perceived difficulties concern situations where a QTA is required to make a direct rollover to an individual retirement plan, but the participant cannot be located or is otherwise not communicating with the plan concerning the distribution of plan benefits. If the CIP provisions of the Patriot Act were construed to require active participant involvement at the time an individual retirement plan is established on his or her behalf, QTAs would be unable to comply with the distribution requirements under § 2578.1 (d)(2)(vii)(B) and, consequently, would be unable utilize the rollover safe harbor in § 2550.404a-3.
In response to this comment, the Department notes that it has been advised by Treasury staff, along with staff of other Federal functional regulators,
Like the proposed safe harbor, the final regulation includes a model notice of plan termination in the appendix to facilitate compliance with the requirement to notify participants and beneficiaries of their distribution options and to request that each such participant or beneficiary elect a form of distribution. While the Department intends that use of an appropriately completed model notice would be considered compliance with paragraph (e) of the final regulation, the Department does not intend to require its use and anticipates a variety of other notices could satisfy the requirements of the regulation.
On March 10, 2005, the Department published in the
Like the proposal, the final regulation addresses the content, timing, and method of filing rules for the reporting requirement imposed on qualified termination administrators pursuant to 29 CFR 2578.1(d)(2)(viii). With respect to content requirements, in addition to basic identifying information of the plan and QTA, the report is required to specify the plan's total assets as of a particular date, termination expenses paid by the plan, and the total amount of distributions, along with other relevant information. Regarding timing, the report must be filed within 2 months after the month in which all of the plan's affairs have been completed (except for the requirements in § 2578.1(d)(2)(viii) and (ix)).
With respect to method of filing rules, the report must be filed on the latest available Form 5500 in accordance with the Form's special instructions for abandoned plans terminated pursuant to § 2578.1. The instructions to the Form 5500 do not currently address plans terminated pursuant to § 2578.1. Until such time as the Department revises the instructions to the Form 5500 to reflect the requirements of § 2520.103-13, the terminal report should be completed in accordance with temporary instructions which will be posted on the Abandoned Plan section of EBSA's website and the EFAST website.
The proposed regulation provided that the filing of a terminal report with the Department would be accomplished when a report meeting the requirements of proposed § 2520.103-13 is furnished to the Department as an attachment to the notice described in § 2578.1(d)(2)(ix) (
Paragraph (e) of § 2520.103-13 addresses concerns regarding the responsibilities of QTAs under part 1 of title I of ERISA. This paragraph clarifies that a QTA is not subject to the generally applicable reporting requirements in part 1 of title I of ERISA, and that the filing of a report in accordance with this section does not relieve the plan's administrator (within the meaning of section 3(16) of ERISA) of any obligation it has under ERISA. Similarly, any failure by the QTA to meet the requirements of 29 CFR 2520.103-13 does not for that reason make the QTA subject to the requirements of part 1 of title I of ERISA, although it would prevent compliance with § 2578.1.
One commenter recommended an extension of the deadline for filing the report. The commenter was concerned that 60 days would be an insufficient period of time to complete and file the report. As noted above, the proposal required the report to be filed within two months after the month in which all of the plan's affairs have been
A new provision was added to the report to enable the Department to collect data on the extent to which abandoned plans hold assets for which there is not a readily ascertainable fair market value, (
This regulatory initiative comprises three separate regulations. The first, entitled Termination of Abandoned Individual Account Plans (29 CFR 2578.1), establishes a procedure that financial institutions holding assets of abandoned individual account pension plans may follow to terminate the plan and distribute benefits to the plan's participants and beneficiaries, with limited liability. The first regulation includes, as appendices, model forms that can be used to provide the notices required under the regulatory termination procedures. The second regulation, entitled Safe Harbor for Distributions from Terminated Individual Account Plans (29 CFR 2550.404a-3), provides a fiduciary safe harbor for making distributions from terminated plans on behalf of participants and beneficiaries who fail to make an election regarding a form of benefit distribution. The third regulation, entitled Special Terminal Report for Abandoned Plans, establishes a simplified method for filing a terminal report for abandoned individual account plans. The Department is also publishing, simultaneously with this regulatory initiative, a final class exemption for services provided in connection with the termination of abandoned individual account plans. As described further in the preamble to the exemption, published elsewhere in this issue of the
These regulations address the problems caused when the employer sponsor of an individual account pension plan abandons the plan, relinquishing the responsibility to either administer the plan or to appoint an administrator. The assets of such plans often languish in financial institutions that hold the funds under a limited delegation of authority without the power to distribute them. The establishment of the standards and procedures set forth in these regulations will reduce the difficulties that participants and beneficiaries often face in seeking to gain access to the account balances attributable to them under an abandoned plan. By establishing an efficient method of winding up the plan's affairs and distributing account balances, the regulations will also eliminate unnecessary expenses that are charged to the plan assets being passively held by the financial institution and increase the likelihood that participants and beneficiaries will receive the benefits due them under abandoned plans. The following section summarizes the Department's economic analysis of these regulations. Additional sections describe the basis of the analysis and the Department's conclusions in more detail.
Although abandoned plans will pay certain additional costs as a result of these regulations, their qualitative and quantitative benefits are expected to be substantial. Most significantly, they will produce the qualitative benefit of facilitating voluntary, timely, efficient termination of abandoned plans. These regulations will encourage appropriate financial institutions to serve as QTAs to wind up the affairs of abandoned plans. The regulations' requirements for timing and content of notices to the Department and to participants and beneficiaries; specification of QTA obligations with respect to the condition of plan records, the selection and monitoring of service providers, and the payment of fees and expenses; and standards for plan amendments all protect the benefits of affected participants and beneficiaries in the termination of abandoned plans.
The orderly termination of abandoned plans will also produce quantitative benefits by maximizing the account balances ultimately payable to participants and beneficiaries. First, prompt, efficient termination of an abandoned plan will eliminate future administrative expenses charged to the plan that would otherwise diminish the plan's assets. Second, through the specific standards and procedures, the regulations will reduce the overall cost of terminating an abandoned plan.
The regulations will result in abandoned plans' incurring costs to wind up their affairs. However, the magnitude of such costs is meaningful only when compared to the savings that will result from reliance on the regulations' procedures and termination of the plans. The Department's analysis, detailed below, shows that, although a plan's termination costs in some cases may exceed the anticipated administrative cost savings in the actual year of termination, the administrative cost savings produced by the termination will exceed the termination costs by the year next following termination. To the extent that a plan, if not terminated, would have continued to be abandoned for more than one year, therefore, the aggregate savings resulting from termination will substantially exceed the termination costs, resulting in a substantial preservation of plan assets and larger benefits for participants and beneficiaries.
Because the specific circumstances of abandoned plans are thought to vary considerably, the Department's quantitative estimates of savings from efficiency gains are subject to some uncertainty. Regardless of the variations in termination costs across the spectrum of abandoned plans, however, if the regulations are successful in reducing termination costs in the aggregate by 10 percent, the Department estimates that they would reduce the aggregate (one-time) cost of terminating the currently existing abandoned plans by at least $800,000. If the regulations further increase efficiency in the termination process and therefore reduce termination costs by 20 percent overall, about $1.7 million in aggregate termination costs will be saved. Under this assumption, the benefits of terminating existing abandoned plans under these regulations will exceed the administrative costs these plans would otherwise incur by about $900,000, even in the year of termination. For the estimated currently existing abandoned plans, this net benefit is expected to increase to $6.6 million, if it is presumed that abandonment would continue for a year beyond the year of
Similar effects will be seen for the somewhat smaller number of plans that become abandoned and are terminated in future years. In future years, termination of an additional 1,650 plans that become abandoned annually is expected to result in a net benefit ranging from about $400,000 to $2.7 million at the year beyond the year of termination or to $14.5 million at the fourth year beyond the year of termination. A more detailed discussion of the data, assumptions, and methodology underlying this analysis will be found below.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and review by the Office of Management and Budget (OMB). Under section 3(f) of the Executive Order, a “significant regulatory action” is an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has determined that this action is significant under section 3(f)(4) because it raises novel legal or policy issues arising from the President's priorities. Accordingly, the Department has undertaken an analysis of the costs and benefits of the regulations. OMB has reviewed this regulatory action.
This regulation establishes the process for terminating abandoned plans. It will have the effect of causing abandoned plans to incur certain costs in connection with termination and distribution of their assets. These costs include, among others, the costs associated with determining whether the plan is abandoned; notifying participants, beneficiaries, and the Federal government of the abandonment; distributing benefits to participants and beneficiaries; and reporting the termination of the plan to the Federal government.
Estimation of the total cost attributable to this regulation depends on the number of abandoned plans to which it will apply. To estimate the number of abandoned plans, the Department examined information on Form 5500 filings that describes the contribution and distribution activity of individual account pension plans. This data, although not conclusive as to whether a plan has been abandoned, was considered the only reliable source of information available for approximating the total number of abandoned plans.
Using 1999 plan year data, the Department first ascertained the number of plans that had filed a Form 5500 indicating both no contributions received by the plan and no distributions made to participants or beneficiaries. The Department then examined Form 5500 filings for these same plans for each subsequent year from 2000 to 2002 to determine whether, at any time during those years, the plans had received contributions or made distributions. The Department considered a plan to be abandoned, for purposes of this analysis, if neither activity was reported for the plan throughout this entire period. The Department emphasizes that it adopted this methodology merely to produce a reasonable estimate of existing abandoned plans for the purpose of conducting this economic analysis; the Department's use of this methodology is not intended to reflect a view on the regulatory requirements for finding abandonment; nor does it indicate any view regarding whether a particular plan included in this survey was or is in fact abandoned.
This approach yielded an estimate of approximately 4,000 plans currently existing in a state of abandonment. Because witnesses before the Working Group had indicated that most abandoned plans are small plans with 20 or fewer participants, the Department estimated that the estimated 4,000 abandoned plans would cover 78,500 participants. Other analysis of Form 5500 data suggested that, in the future, an estimated additional 1,650 plans, with an aggregate 33,000 participants, and an estimated $868 million in assets, may become newly abandoned annually.
The Department notes that this use of Form 5500 data to estimate the number of abandoned plans results in a fair degree of uncertainty. For example, these estimates do not include an estimate of abandoned plans that did not file a Form 5500 in 1999 or a later year. Further, each plan counted within the 4,000-plan estimate represents a plan for which an annual report was actually filed, indicating that some administrative activities were conducted on behalf of the plan and suggesting that circumstances other than abandonment may explain the apparent lack of financial activity.
The Department has estimated the net impact of the regulation by comparing the ongoing administrative costs of maintaining an abandoned plan with the cost of terminating such a plan. Assuming that termination costs will be significantly affected by the degree to which plan administration was maintained following abandonment, the Department expected an inverse relationship between continuing administration and termination costs of abandoned plans, such that a well-maintained plan would be less costly to terminate and a less-well-maintained plan would be relatively more costly to terminate.
Based on available information regarding plans in general, the ongoing administrative costs for abandoned plans are estimated to range from approximately $900 to $3,000 per plan annually, or $3.5 million to $11.8 million annually for 4,000 currently abandoned plans. Testimony before the Working Group indicated that terminating an abandoned plan can add ten percent to the ordinary expenses related to plan administration. As such, termination costs are expected to range from $1,000 to $3,300 per plan, or $3.9 million to $13 million for all currently abandoned plans.
Regardless of whether costs of terminating abandoned plans would exceed ongoing administrative costs in the year the plans are terminated, the future savings of eliminating continuing administrative expenses that result from termination will quickly exceed those termination expenses. The Department expects, however, that the one-time termination costs under this regulation may actually be less than one year's ongoing administrative expenses for such plans because its specific standards and procedures will increase the efficiency of terminating abandoned plans. The aggregate savings that would arise from this greater efficiency is subject to uncertainty. However, each 10 percent reduction in the cost of termination is assumed to produce savings in excess of $800,000. Assuming that this regulation reduces the costs of terminating abandoned plans by at least 20 percent, $1.7 million in termination costs will be saved, and total one-time termination costs would amount to $6.7 million. Savings of about $700,000 would arise from greater efficiency in terminating plans that become abandoned in each future year, reducing ongoing estimated annual termination costs from $3.5 million to $2.8 million.
In response to public comments on the proposals, as explained above, the Department has modified the two model notices (the Notice to the Department and the Final Notice) to provide QTAs with the opportunity to inform the Department of known delinquent contributions. Because this modification imposes only a very small additional cost relative to the overall range of cost estimates for the regulation, the Department has not increased its cost estimates for these two model notices. The Notice to the Department and the Final Notice are discussed more fully below in the section of the preamble on the Paperwork Reduction Act.
The safe harbor provided in section 2550.404a-3 requires a notice to be furnished to participants and beneficiaries informing them of the plan's termination and the options available for distribution of their account balances. The Department's estimate of the number of notices that will be sent and the cost for these notices is based on the number of missing or non-responsive individuals whose account balances are likely to be directly transferred by a fiduciary.
Based on data about terminating plans that are not abandoned plans from the year 2000 Form 5500 Annual Report, the Department estimates that, annually, there are 2.3 million participants and beneficiaries in terminating plans. Although it is not known how many of these participants and beneficiaries will fail to make an election concerning distribution of their benefits, other information about participants and beneficiaries in defined benefit plans has led the Department to assume that approximately one percent, or 23,500, individuals will fail to do so annually. As such, it is estimated that plan administrators will be required to furnish 23,500 notices to participants in order to take advantage of the safe harbor under section 404(a). The cost for these notices, at two minutes per notice and $.38 each for mailing, is $62,170.
The Department has modified the proposed regulation for simplified reporting for abandoned plans to add a provision to collect data on abandoned plan assets for which there is not a readily ascertainable fair market value. Despite this minor modification, the Department has not attributable any costs to the changes in reporting for abandoned plans provided by this regulation. This simplified reporting is treated, for purposes of this analysis, as a benefit to abandoned plans, as explained below.
The final regulation has both qualitative and quantitative benefits. The standards and procedures it provides will encourage timely, efficient termination of abandoned plans and appropriate, careful distribution of account balances, thereby increasing the benefit security of participants and beneficiaries. The regulation's requirements for timing and content of notices to the Department and to the participants and beneficiaries; specification of QTA obligations with respect to the condition of plan records, selection and monitoring of service providers, and payment of fees and expenses; and standards for plan amendments protect the benefits of participants and beneficiaries during the termination of abandoned plans.
The orderly termination of abandoned plans will also produce quantitative benefits by maximizing account balances ultimately payable to participants and beneficiaries. First, prompt, efficient termination of an abandoned plan will eliminate future administrative expenses that would otherwise diminish the plan's assets. Second, application of the regulation's specific standards and procedures will reduce costs of termination. Both of these effects will reduce the extent to which benefits held in individual accounts under abandoned plans are drawn upon to pay for expenses.
The most significant qualitative benefit of the regulation will arise from encouraging QTAs to terminate abandoned plans. Absent the standards and procedures of this regulation, including its provisions limiting a QTA's liability in certain circumstances, the institutions holding assets of abandoned plans would likely lack the necessary authority and/or incentive to properly terminate the plans and distribute benefits. Termination of abandoned plans further will produce the benefit of making previously inaccessible plan accounts available to the participants and beneficiaries of abandoned plans. The regulation's specifications for how the QTA should wind up the affairs of an abandoned plan will also protect benefits in the course of that process.
Benefits ultimately payable to participants and beneficiaries will be maximized in two important ways. First, termination will eliminate future administrative expenses that would diminish plan assets (and therefore participant account balances). Second, the regulation's specific standards and procedures will reduce the costs associated with plan termination. Each of these effects will moderate the extent to which benefits will be reduced due to either continued administration or termination.
The magnitude of the costs incurred by a plan to wind up its affairs under
The comparison of estimated termination costs of $8.4 million with the present value of future administrative costs discounted over the range of durations noted above shows that, while termination costs are estimated to exceed the estimated $7.7 million savings of administrative expenses in the year of termination, the present value of administrative expenses that would otherwise be paid in the year following termination exceeds the estimated termination cost by $6.6 million, resulting in a substantial preservation of account balances and therefore retirement benefits. The present value of administrative expenses that would otherwise be paid over the five years following termination exceeds the termination cost by $27 million. Similarly, the cost of termination of the 1,650 additional plans assumed to become newly abandoned each year would be slightly greater than eliminated administrative costs for the year of termination, but termination would have the effect of eliminating over $2.8 million in administrative expenses by the end of the next year following termination, and $11.6 million if those plans had remained abandoned for five years. These net benefits would also represent account balances preserved for retirement benefits.
As noted earlier, the estimates of reduction in termination costs that might arise from efficiency gains due to this regulation's specific standards and procedures are subject to some uncertainty. However, each 10 percent reduction in the cost of terminating abandoned plans under these new standards is assumed to produce savings in excess of $800,000. Assuming that the specific provisions of the regulation will increase efficiency and reduce costs by at least 20 percent, an additional $1.7 million in termination costs will be saved, further preserving retirement benefits for participants and beneficiaries of currently abandoned plans. With that assumption, the benefits of these terminations would be estimated to exceed their costs by about $900,000 in the year of plan termination. Efficiency gains for the 1,650 plans that become abandoned from year to year would be expected to amount to $710,000 annually, such that the benefits of terminating these abandoned plans would exceed their termination costs by about $400,000 each year.
By providing a safe harbor for plan fiduciaries that directly transfer individual account balances to appropriate investment vehicles, this regulation will increase retirement security and reduce fiduciaries' uncertainty regarding how to comply with ERISA section 404(a). The benefits of greater retirement savings protection for participants and increased certainty for fiduciaries under the safe harbor cannot be specifically quantified.
The regulation will provide qualitative benefits to fiduciaries by affording them greater assurance of compliance and reduced exposure to risk; the substantive conditions of the safe harbor will benefit many former participants by directing their retirement savings to appropriate retirement savings investment vehicles that minimize risk and offer preservation of principal and liquidity.
This regulation provides for simplified reporting to the Department for QTAs that wind up the affairs of an abandoned plan. The time savings resulting from abbreviated reporting requirements will reduce administrative costs for abandoned plans and preserve account balances, resulting in increased benefits to participants and beneficiaries.
As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data will be provided in the desired format, that the reporting burden (time and financial resources) imposed on respondents is minimized, that collection instruments are clearly understood, and that the Department can properly assess the impact of its collection requirements on respondents.
The Department first solicited comments concerning the information collection request (ICR) included in the Proposed Regulations on Termination of Abandoned Individual Account Plans (29 CFR 2578.1), the Proposed Safe Harbor for Rollovers From Terminated Individual Account Plans (29 CFR 2550.404a-3), and the Proposed Class Exemption for Services Provided in Connection with the Termination of Abandoned Individual Account Plans when these documents were published in the
Currently, the Department is soliciting comments concerning revisions in the burden estimates for the ICR resulting from the promulgation of these final regulations, in particular with respect to the Termination of Abandoned Individual Account Plans Regulation (29 CFR 2578.1) (the Abandoned Plan Regulation) and the Class Exemption for Services Provided in Connection with the Termination of Abandoned Individual Account Plans (published simultaneously with this document) (the QTA Exemption). The Department has submitted the revised ICR to OMB in accordance with 44 U.S.C. 3507(d) for review of its information collections. All other paperwork burdens covered by the ICR, including the recordkeeping burden under the Department's Class Exemption for the Establishment, Investment and Maintenance of Certain
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Employee Benefits Security Administration. Although comments may be submitted through June 20, 2006 OMB requests that comments be received within 30 days of publication of the Notice of Final Rulemaking to ensure their consideration.
The information collection provisions of these rules are intended to ensure that, in the case of an abandoned plan, a plan sponsor has been determined to be unavailable to fulfill its responsibilities to the plan before further action is taken by a QTA; to facilitate federal oversight of the actions taken by a QTA in winding up the affairs of an abandoned plan; to ensure that participants and beneficiaries are apprised of actions that might affect their rights and benefits under the plan; and to provide for a final notice and reporting regarding the resolution of the affairs of the plan. The Department has included model notices that may be used to satisfy these notice requirements and has provided for reporting in the format of the Form 5500 for purposes of minimizing compliance burden.
The Department has modified the requirements for the content of the notices to the Department under the final Abandoned Plan Regulation to require a QTA to report any delinquent contributions discovered in the course of terminating an abandoned plan in either the Notice to the Department or the Final Notice. The regulation provides that, if a QTA provides such information to the Department in either notice, nothing in the regulations will be construed to require the QTA to collect the delinquent contributions. Although a QTA may elect to report delinquent contribution information in either notice, for purposes of this estimation of paperwork burden, the Department has assigned the cost adjustment solely to the Final Notice (paragraph (d)(2)(ix)).
The Department estimates, based on its experience in NEPOP in providing assistance to identify and terminate abandoned plans over the last two years, that QTAs will report delinquent contributions in approximately 14 percent of abandoned plan terminations. Therefore, the Department estimates that 560 respondents (14 percent of 4,000 QTAs terminating the existing abandoned plans) will complete the new section in either the Notice to the Department or the Final Notice. Similarly, for plans that will be abandoned in the future, the Department has estimated that 244 respondents (14 percent of 1,650 QTAs terminating plans that newly become abandoned each year) will complete the new section in each subsequent year. Accordingly, the Department has adjusted the cost burdens for these notices to account for the additional information collection.
For the 560 QTAs that will require an estimated 15 minutes to complete the notice, the cost burden will rise to $9,492; for the remaining 3,440 QTAs that need only the originally estimated 10 minutes to complete the notice, the cost burden will be $38,872. After adding the costs of supplies and postage, the aggregate cost burden for this notice is estimated at $ 52,364. (Mailing, including the cost of the Terminal Report that will be filed with the Final Notice, remains the same, at an estimated $1.00 each, for a total cost of $4,000.) Estimated annual costs for future abandoned plans, derived in a similar fashion, are increased to $3,915 annually for QTAs reporting delinquent contributions and remains $16,035 annually for QTAs not reporting delinquent contributions, for a total, including supplies and postage, of $21,733 for 1,650 plans annually.
Under the regulation on Termination of Abandoned Individual Account Plans, a QTA that terminates an abandoned plan is permitted, under certain specified conditions, to distribute account balances by directly transferring or depositing them into an individual retirement plan or account. The QTA exemption, also published in final form in today's
Inasmuch as banks, insurance companies, and other financial institutions acting as QTAs to provide services to abandoned plans will act in accordance with customary business practices in entering into this type of transaction, the Department assumes that both the added requirement of providing the written agreement to the
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of analysis under the RFA, EBSA proposes to continue to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary of Labor to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Under section 104(a)(3), the Secretary may also provide for exemptions or simplified annual reporting and disclosure for welfare benefit plans. Pursuant to the authority of section 104(a)(3), the Department has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46 and 2520.104b-10 certain simplified reporting provisions and limited exemptions from reporting and disclosure requirements for small plans, including unfunded or insured welfare plans, covering fewer than 100 participants and which satisfy certain other requirements.
Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, EBSA believes that assessing the impact of these rules on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business which is based on size standards promulgated by the Small Business Administration (SBA) (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631
For purposes of analyzing the economic impact of this regulation, the Department has assumed that all abandoned plans are small plans. As explained earlier in the regulatory analysis for these regulations, the final rules will have a significant beneficial economic impact on a substantial number of small entities. Efficiency gains are assumed to arise from the provision of specific standards and procedures for terminating abandoned plans and the resolution of uncertainty concerning what are reasonable efforts to satisfy these standards. The model notices provided as part of the regulations are also intended to minimize compliance burdens. In an effort to provide a sound basis for this conclusion, EBSA prepared an initial regulatory flexibility analysis when the proposed regulations were published. Financial institutions and service providers that commented on the proposed regulations were appreciative of the Department's efforts to establish guidelines to assist them in terminating abandoned plans and distributing benefits to participants and beneficiaries. Changes that have been made to the final regulations are, for the most part, clarifications and explanations of the proposed rules. No comments were received that related specifically to small plan issues and plan termination. Comments related to abandoned plans in general, the majority of which are small plans, have been discussed earlier in the preamble.
The final rules will have an impact on participants and beneficiaries, abandoned individual account plans, entities that provide a variety of services to plans, and financial institutions and entities acting as QTAs that undertake the termination of individual account plans that have been abandoned.
As explained earlier in the preamble, in drafting the final regulations, the Department relied on recommendations in a 2002 report to the ERISA Advisory Council by the Working Group on Orphan Plans. Witnesses before the Working Group recommended that regulatory action be undertaken to encourage the early termination of abandoned plans and distribution of their assets to participants and beneficiaries. The conditions set forth in this regulation are intended to facilitate voluntary, safe, and efficient terminations of abandoned plans and to increase the likelihood that participants and beneficiaries will receive the greatest retirement benefit practicable under the circumstances. The final rules meet the objectives of providing QTAs the authority and incentive they need for undertaking to terminate abandoned plans by offering them greater certainty on how to comply with the requirements of ERISA section 404(a), to the extent applicable. Streamlined procedures for terminating and winding up an abandoned plan will reduce some of the cost that would otherwise have been incurred to terminate abandoned plans.
The Department estimated that there are 4,000 currently abandoned plans, with 78,500 participants. Another 1,650 plans, with 33,000 participants, are expected to be abandoned annually in subsequent years. All plans are assumed to be small plans with approximately 20 participants. Currently, small abandoned plans represent less than one percent of all small plans; the 1,650 small plans expected to be abandoned annually hereafter represent less than
Because essentially all abandoned plans are assumed to be small plans, the more detailed discussion earlier in the preamble of the costs and benefits of this regulation is directly applicable to this analysis of costs and benefits under the RFA. In summary, under varying assumptions, the net benefits of terminating the 4,000 plans currently assumed to be abandoned range from $900,000 for efficiency gains to $6.6 million in administrative cost savings, if it is assumed that the plans would otherwise have remained abandoned for at least one year following the year of termination, and to $27 million, if the plans would have remained abandoned for five years following termination. The estimated beneficial impact on small plans therefore ranges from $225 per plan to $1,650 per plan, or $6,750 per plan over five years. The per-plan net benefits are very similar for the 1,650 plans assumed to become newly abandoned annually in future years.
The Department has revised the final regulation to allow forfeiture of an account with a balance less than the estimated share of plan expenses allocable to that account. See § 2578.1(d)(2)(ii)(A). Commenters requested this option, in part, as an alternative to requiring a QTA to undertake a costly and time-consuming search for account holders with small balances, which would frequently result in the extinguishment of those small accounts. Although not measurable, this change may produce additional benefit for abandoned plans due to the time savings, and participants may benefit from increased account balances as a result of the reallocations and forfeitures. There is no cost to small plans for this option.
The final regulation provides safe harbor protection under section 404(a) of ERISA for fiduciaries that terminate small plans and directly transfer account balances into specified types of investment vehicles in cases in which the participant or beneficiary fails to elect a form of distribution. This regulation benefits fiduciaries by providing clarity on how to fulfill fiduciary obligations under ERISA and plan participants and beneficiaries by increasing retirement savings. In addition, the two model Notices to Participants provided by the Department for use in connection with the safe harbor will contribute to lower administrative costs for small plans that terminate. Based on an estimated 78,500 participants in currently abandoned plans, the initial cost to small plans is estimated at $207,800. The annual cost to ongoing terminating plans is considerably less in future years when current small abandoned plans will have been terminated, an estimated $95,820.
The Department has revised this final regulation to permit QTAs that would generally, in the absence of participant direction, roll over individual account distributions into proprietary investment vehicles, to choose instead, if the QTA's minimum account requirement for such investments is greater than $1,000 and greater than the amount to be rolled over, to deposit such distributions in an interest-bearing federally insured bank account or in an unclaimed property fund of the State. See § 2550.404a-3(d)(iii). This alternative and the benefits that will accrue to small plans are discussed more fully earlier in the preamble. There is no cost to small plans for this option.
The final regulation provides simplified terminal reporting to the Department for QTAs that wind up the affairs of small abandoned plans. The resulting time-savings will reduce administrative costs, thereby increasing benefits to participants and beneficiaries. No cost has been attributed to the final regulation.
This notice of final rulemaking is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, the final rules do not include any federal mandate that will result in expenditures by state, local, or tribal governments in the aggregate of more than $100 million, or increased expenditures by the private sector of more than $100 million.
Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires federal agencies to adhere to specific criteria in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The final rules do not have federalism implications because they have no 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. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in the final rules do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States.
Accounting, Employee benefit plans, Pensions, Reporting and recordkeeping requirements.
Employee benefit plans, Employee Retirement Income Security Act, Employee stock ownership plans, Exemptions, Fiduciaries, Investments, Investments foreign, Party in interest, Pensions, Pension and Welfare Benefit Programs Office, Prohibited transactions, Real estate, Securities, Surety bonds, Trusts and Trustees.
Employee benefit plans, Pensions, Retirement.
29 U.S.C. 1135; 1104(a); 1103(d)(1).
(a)
(b)
(i) Either: (A) No contributions to, or distributions from, the plan have been made for a period of at least 12 consecutive months immediately preceding the date on which the determination is being made; or
(B) Other facts and circumstances (such as a filing by or against the plan sponsor for liquidation under title 11 of the United States Code, or communications from participants and beneficiaries regarding distributions) known to the qualified termination administrator suggest that the plan is or may become abandoned by the plan sponsor; and
(ii) Following reasonable efforts to locate or communicate with the plan sponsor, the qualified termination administrator determines that the plan sponsor:
(A) No longer exists;
(B) Cannot be located; or
(C) Is unable to maintain the plan.
(2) Notwithstanding paragraph (b)(1) of this section, a qualified termination administrator may not find a plan to be abandoned if, at any time before the plan is deemed terminated pursuant to paragraph (c) of this section, the qualified termination administrator receives an objection from the plan sponsor regarding the finding of abandonment and proposed termination.
(3) A qualified termination administrator shall, for purposes of paragraph (b)(1)(ii) of this section, be deemed to have made a reasonable effort to locate or communicate with the plan sponsor if the qualified termination administrator sends to the last known address of the plan sponsor, and, in the case of a plan sponsor that is a corporation, to the address of the person designated as the corporation's agent for service of legal process, by a method of delivery requiring acknowledgement of receipt, the notice described in paragraph (b)(5) of this section.
(4) If receipt of the notice described in paragraph (b)(5) of this section is not acknowledged pursuant to paragraph (b)(3) of this section, the qualified termination administrator shall be deemed to have made a reasonable effort to locate or communicate with the plan sponsor if the qualified termination administrator contacts known service providers (other than itself) of the plan and requests the current address of the plan sponsor from such service providers and, if such information is provided, the qualified termination administrator sends to each such address, by a method of delivery requiring acknowledgement of receipt, the notice described in paragraph (b)(5) of this section.
(5) The notice referred to in paragraph (b)(3) of this section shall contain the following information:
(i) The name and address of the qualified termination administrator;
(ii) The name of the plan;
(iii) The account number or other identifying information relating to the plan;
(iv) A statement that the plan may be terminated and benefits distributed pursuant to 29 CFR 2578.1 if the plan sponsor fails to contact the qualified termination administrator within 30 days;
(v) The name, address, and telephone number of the person, office, or department that the plan sponsor must contact regarding the plan;
(vi) A statement that if the plan is terminated pursuant to 29 CFR 2578.1, notice of such termination will be furnished to the U.S. Department of Labor's Employee Benefits Security Administration;
(vii) The following statement: “The U.S. Department of Labor requires that you be informed that, as a fiduciary or plan administrator or both, you may be personally liable for costs, civil penalties, excise taxes, etc. as a result of your acts or omissions with respect to this plan. The termination of this plan will not relieve you of your liability for any such costs, penalties, taxes, etc.”; and
(viii) A statement that the plan sponsor may contact the U.S Department of Labor for more information about the federal law governing the termination and winding-up process for abandoned plans and the telephone number of the appropriate Employee Benefit Security Administration contact person.
(c)
(2) If, prior to the end of the 90-day period described in paragraph (c)(1) of this section, the Department notifies the qualified termination administrator that it—
(i) Objects to the termination of the plan, the plan shall not be deemed terminated under paragraph (c)(1) of this section until the qualified termination administrator is notified that the Department has withdrawn its objection; or
(ii) Waives the 90-day period described in paragraph (c)(1), the plan shall be deemed terminated upon the qualified termination administrator's receipt of such notification.
(3) Following a qualified termination administrator's finding, pursuant to paragraph (b)(1) of this section, that an individual account plan has been abandoned, the qualified termination administrator shall furnish to the U.S. Department of Labor a notice of plan abandonment that is signed and dated by the qualified termination administrator and that includes the following information:
(i)
(B) A statement that the person (identified in paragraph (c)(3)(i)(A) of this section) is a qualified termination administrator within the meaning of paragraph (g) of this section and elects to terminate and wind up the plan (identified in paragraph (c)(3)(ii)(A) of this section) in accordance with the provisions of this section; and
(C) An identification whether the person electing to be the qualified termination administrator or its affiliate is, or within the past 24 months has been, the subject of an investigation, examination, or enforcement action by the Department, Internal Revenue Service, or Securities and Exchange Commission concerning such entity's conduct as a fiduciary or party in interest with respect to any plan covered by the Act.
(ii)
(B) The name and last known address and telephone number of the plan sponsor; and
(C) The estimated number of participants in the plan;
(iii)
(iv)
(B) The length of time plan assets have been held by the person electing to be the qualified termination administrator, if such period of time is less than 12 months;
(C) An identification of any assets with respect to which there is no readily ascertainable fair market value, as well as information, if any, concerning the value of such assets; and
(D) An identification of known delinquent contributions pursuant to paragraph (d)(2)(iii) of this section;
(v)
(B) An identification of any services considered necessary to wind up the plan in accordance with this section, the name of the service provider(s) that is expected to provide such services, and an itemized estimate of expenses attendant thereto expected to be paid out of plan assets by the qualified termination administrator; and
(vi)
(d)
(2) For purposes of paragraph (d)(1) of this section, the qualified termination administrator shall:
(i)
(B) For purposes of paragraph (d)(2)(i)(A) of this section, a qualified termination administrator shall not have failed to make reasonable and diligent efforts to update plan records merely because the administrator determines in good faith that updating the records is either impossible or involves significant cost to the plan in relation to the total assets of the plan.
(ii)
(A) Treats as forfeited an account balance that, taking into account estimated forfeitures and other assets allocable to the account, is less than the estimated share of plan expenses allocable to that account, and reallocates that account balance to defray plan expenses or to other plan accounts in accordance with (d)(2)(ii)(B) of this section;
(B) Allocates expenses and unallocated assets in accordance with the plan documents, or, if the plan document is not available, is ambiguous, or if compliance with the plan is unfeasible,
(
(
(iii)
(B) Nothing in paragraph (d)(2)(iii)(A) of this section or any other provision of the Act shall be construed to impose an obligation on the qualified termination administrator to collect delinquent contributions on behalf of the plan, provided that the qualified termination administrator satisfies the requirements of paragraph (d)(2)(iii)(A) of this section.
(iv)
(v)
(B) Expenses of plan administration shall be considered reasonable solely for purposes of paragraph (d)(2)(v)(A) of this section if:
(
(
(ii) Are not in excess of rates ordinarily charged by the qualified termination administrator (or affiliate) for same or similar services provided to customers that are not plans terminated pursuant to this section, if the qualified termination administrator (or affiliate) provides same or similar services to such other customers, and
(
(vi)
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(B)(
(
(vii)
(B) If the participant or beneficiary fails to make an election within 30 days from the date the notice described in paragraph (d)(2)(vi) of this section is furnished, distribute benefits—
(
(
(C) For purposes of distributions pursuant to paragraph (d)(2)(vii)(B) of this section, the qualified termination administrator may designate itself (or an affiliate) as the transferee of such proceeds, and invest such proceeds in a product in which it (or an affiliate) has an interest, only if such designation and investment is exempted from the prohibited transaction provisions under the Act pursuant to section 408(a) of the Act.
(viii)
(ix)
(A) The name, EIN, address, e-mail address, and telephone number of the qualified termination administrator, including the address and telephone number of the person signing the notice (or other contact person, if different from the person signing the notice);
(B) The name, account number, EIN, and plan number of the plan with respect to which the person served as the qualified termination administrator;
(C) A statement that the plan has been terminated and all the plan's assets have been distributed to the plan's participants and beneficiaries on the basis of the best available information;
(D) A statement that plan expenses were paid out of plan assets by the qualified termination administrator in accordance with the requirements of paragraph (d)(2)(v) of this section;
(E) If fees and expenses paid to the qualified termination administrator (or its affiliate) exceed by 20 percent or more the estimate required by paragraph (c)(3)(v)(B) of this section, a statement that actual fees and expenses exceeded estimated fees and expenses and the reasons for such additional costs;
(F) An identification of known delinquent contributions pursuant to paragraph (d)(2)(iii) of this section (if not already reported under paragraph (c)(3)(iv)(D)); and
(G) A statement that the information being provided in the notice is true and complete based on the knowledge of the qualified termination administrator, and that the information is being provided by the qualified termination administrator under penalty of perjury.
(3) The terms of the plan shall, for purposes of title I of ERISA, be deemed amended to the extent necessary to allow the qualified termination
(e)
(ii) A qualified termination administrator shall be responsible for the selection and monitoring of any service provider (other than monitoring a provider selected pursuant to paragraph (d)(2)(vii)(B) of this section) determined by the qualified termination administrator to be necessary to the winding up of the affairs of the plan, as well as ensuring the reasonableness of the compensation paid for such services. If a qualified termination administrator selects and monitors a service provider in accordance with the requirements of section 404(a)(1) of the Act, the qualified termination administrator shall not be liable for the acts or omissions of the service provider with respect to which the qualified termination administrator does not have knowledge.
(iii) For purposes of a distribution pursuant to paragraph (d)(2)(vii)(B)(
(2) Nothing herein shall be construed to impose an obligation on the qualified termination administrator to conduct an inquiry or review to determine whether or what breaches of fiduciary responsibility may have occurred with respect to a plan prior to becoming the qualified termination administrator for such plan.
(3) If assets of an abandoned plan are held by a person other than the qualified termination administrator, such person shall not be treated as in violation of section 404 (a) the Act solely on the basis that the person cooperated with and followed the directions of the qualified termination administrator in carrying out its responsibilities under this section with respect to such plan, provided that, in advance of any transfer or disposition of any assets at the direction of the qualified termination administrator, such person confirms with the Department of Labor that the person representing to be the qualified termination administrator with respect to the plan is the qualified termination administrator recognized by the Department of Labor.
(f)
(g)
(1) It is eligible to serve as a trustee or issuer of an individual retirement plan, within the meaning of section 7701(a)(37) of the Internal Revenue Code, and
(2) It holds assets of the plan that is considered abandoned pursuant to paragraph (b) of this section.
(h)
(2) For purposes of paragraph (c)(3)(i)(C) of this section, the term affiliate means a 50 percent or more owner of a qualified termination administrator, or any person described in paragraph (h)(1) of this section that provides services to the plan.
(3) For purposes of paragraph (h)(1) of this section, the term control means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(i)
29 U.S.C. 1135; and Secretary of Labor's Order No. 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2550.401b-1 also issued under sec. 102, Reorganization Plan No. 4 of 1978, 43 FR 47713 (Oct. 17, 1978), 3 CFR, 1978 Comp. 332, effective Dec. 31, 1978, 44 FR 1065 (Jan. 3, 1978), 3 CFR, 1978 Comp. 332. Sec. 2550.401c-1 also issued under 29 U.S.C. 1101. Sec. 2550.404c-1 also issued under 29 U.S.C. 1104. Sec. 2550.407c-3 also issued under 29 U.S.C. 1107. Sec. 2550.404a-2 also issued under 26 U.S.C. 401 note (sec. 657, Pub. L. 107-16, 115 Stat. 38). Sec. 2550.408b-1 also issued under 29 U.S.C. 1108(b) (1) and sec. 102, Reorganization Plan No. 4 of 1978, 3 CFR, 1978 Comp. p. 332, effective Dec. 31, 1978, 44 FR 1065 (Jan. 3, 1978), and 3 CFR, 1978 Comp. 332. Sec. 2550.412-1 also issued under 29 U.S.C. 1112.
(a)
(2) This section shall apply to an individual account plan only if—
(i) In the case of an individual account plan that is an abandoned plan within the meaning of § 2578.1 of this chapter, such plan was intended to be maintained as a tax-qualified plan in accordance with the requirements of section 401(a), 403(a), or 403(b) of the Internal Revenue Code of 1986 (Code); or
(ii) In the case of any other individual account plan, such plan is maintained in accordance with the requirements of section 401(a), 403(a), or 403 (b) of the Code at the time of the distribution.
(3) The standards set forth in this section apply solely for purposes of determining whether a fiduciary meets the requirements of this safe harbor. Such standards are not intended to be the exclusive means by which a fiduciary might satisfy his or her responsibilities under the Act with respect to making distributions described in this section.
(b)
(1) The participant or beneficiary, on whose behalf the distribution will be made, was furnished notice in accordance with paragraph (e) of this section or, in the case of an abandoned plan, § 2578.1(d)(2)(vi) of this chapter, and
(2) The participant or beneficiary failed to elect a form of distribution within 30 days of the furnishing of the notice described paragraph (b)(1) of this section.
(c)
(d)
(1) The distribution described in paragraph (b) of this section is made'
(i) To an individual retirement plan within the meaning of section 7701(a)(37) of the Code;
(ii) In the case of a distribution on behalf of a distributee other than a participant or spouse, within the meaning of section 402(c) of the Code, to an account (other than an individual retirement plan) with an institution eligible to establish and maintain individual retirement plans within the meaning of section 7701(a)(37) of the Code; or
(iii) In the case of a distribution by a qualified termination administrator with respect to which the amount to be
(A) An interest-bearing federally insured bank or savings association account in the name of the participant or beneficiary,
(B) The unclaimed property fund of the State in which the participant's or beneficiary's last known address is located, or
(C) An individual retirement plan within the meaning of section 7701(a)(37) of the Code (or to an account described in paragraph (d)(1)(ii) of this section in the case of a distribution on behalf of a distributee other than a participant or spouse) offered by a financial institution other than the qualified termination administrator to the public at the time of the distribution.
(2) Except with respect to distributions to State unclaimed property funds (described in paragraph (d)(1)(iii)(B) of this section), the fiduciary enters into a written agreement with the transferee entity which provides:
(i) The distributed funds shall be invested in an investment product designed to preserve principal and provide a reasonable rate of return, whether or not such return is guaranteed, consistent with liquidity (except that distributions under paragraph (d)(1)(iii)(A) of this section to a bank or savings account are not required to be invested in such a product);
(ii) For purposes of paragraph (d)(2)(i) of this section, the investment product shall—
(A) Seek to maintain, over the term of the investment, the dollar value that is equal to the amount invested in the product by the individual retirement plan or other account, and
(B) Be offered by a State or federally regulated financial institution, which shall be: a bank or savings association, the deposits of which are insured by the Federal Deposit Insurance Corporation; a credit union, the member accounts of which are insured within the meaning of section 101(7) of the Federal Credit Union Act; an insurance company, the products of which are protected by State guaranty associations; or an investment company registered under the Investment Company Act of 1940;
(iii) All fees and expenses attendant to the transferee plan or account, including investments of such plan or account, (e.g., establishment charges, maintenance fees, investment expenses, termination costs and surrender charges) shall not exceed the fees and expenses charged by the provider of the plan or account for comparable plans or accounts established for reasons other than the receipt of a distribution under this section; and
(iv) The participant or beneficiary on whose behalf the fiduciary makes a distribution shall have the right to enforce the terms of the contractual agreement establishing the plan or account, with regard to his or her transferred account balance, against the plan or account provider.
(3) Both the fiduciary's selection of a transferee plan or account and the investment of funds would not result in a prohibited transaction under section 406 of the Act, unless such actions are exempted from the prohibited transaction provisions by a prohibited transaction exemption issued pursuant to section 408(a) of the Act.
(e)
(i) The name of the plan;
(ii) A statement of the account balance, the date on which the amount was calculated, and, if relevant, an indication that the amount to be distributed may be more or less than the amount stated in the notice, depending on investment gains or losses and the administrative cost of terminating the plan and distributing benefits;
(iii) A description of the distribution options available under the plan and a request that the participant or beneficiary elect a form of distribution and inform the plan administrator (or other fiduciary) identified in paragraph (e)(1)(vii) of this section of that election;
(iv) A statement explaining that, if a participant or beneficiary fails to make an election within 30 days from receipt of the notice, the plan will distribute the account balance of the participant or beneficiary to an individual retirement plan (i.e., individual retirement account or annuity) or other account (in the case of distributions described in paragraph (d)(1)(ii)) and the account balance will be invested in an investment product designed to preserve principal and provide a reasonable rate of return and liquidity;
(v) A statement explaining what fees, if any, will be paid from the participant or beneficiary's individual retirement plan or other account, if such information is known at the time of the furnishing of this notice;
(vi) The name, address and phone number of the individual retirement plan or other account provider, if such information is known at the time of the furnishing of this notice; and
(vii) The name, address, and telephone number of the plan administrator (or other fiduciary) from whom a participant or beneficiary may obtain additional information concerning the termination.
(2)
(ii) In the case of a notice that is returned to the plan as undeliverable, the plan fiduciary shall, consistent with its duties under section 404(a)(1) of ERISA, take steps to locate the participant or beneficiary and provide notice prior to making the distribution. If, after such steps, the fiduciary is unsuccessful in locating and furnishing notice to a participant or beneficiary, the participant or beneficiary shall be deemed to have been furnished the notice and to have failed to make an election within 30 days for purposes of paragraph (b)(2) of this section.
(f)
29 U.S.C. 1021-1025, 1027, 1029-31, 1059, 1134 and 1135; and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.102-3, 2520.104b-1 and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1 and 2520.107 also issued under 26 U.S.C. 401 note, 111 Stat. 788. Section 2520.101-4 also issued under sec. 103 of Pub. L. 108-218.
(a)
(b)
(1) Identification information concerning the qualified termination administrator and the plan being terminated.
(2) The total assets of the plan as of the date the plan was deemed terminated under § 2578.1(c) of this chapter, prior to any reduction for termination expenses and distributions to participants and beneficiaries.
(3) The total termination expenses paid by the plan and a separate schedule identifying each service provider and amount received, itemized by expense.
(4) The total distributions made pursuant to § 2578.1(d)(2)(vii) of this chapter and a statement regarding whether any such distributions were transfers under § 2578.1(d)(2)(vii)(B) of this chapter.
(5) The identification, fair market value and method of valuation of any assets with respect to which there is no readily ascertainable fair market value.
(c)
(1) On the most recent Form 5500 available as of the date the qualified termination administrator satisfies the requirements in § 2578.1(d)(2)(i) through § 2578.1(d)(2)(vii) of this chapter; and
(2) In accordance with the Form's instructions pertaining to terminal reports of qualified termination administrators.
(d)
(e)
(2) Filing of a report under this section by the qualified termination administrator shall not relieve any other person from any obligation under part 1 of title I of ERISA.
Employee Benefits Security Administration, Department of Labor.
Grant of class exemption.
This document contains a final exemption from certain prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and from certain taxes imposed by the Internal Revenue Code of 1986, as amended (the Code). The exemption permits a “qualified termination administrator” (QTA) of an individual account plan that has been abandoned by its sponsoring employer to select itself or an affiliate to provide services to the plan in connection with the termination of the plan, to pay itself or an affiliate fees for those services, and to pay itself for services provided prior to the plan's deemed termination. The exemption also permits a qualified termination administrator of an abandoned plan to: (1) Designate itself or an affiliate as the provider of an individual retirement plan or other account for the distribution of a participant or beneficiary who fails to make an election regarding the disposition of such benefits; (2) select a proprietary investment product as the initial investment for such plan or account; (3) provide a federally insured bank or savings association account for small distributions; and (4) pay itself or its affiliate fees in connection therewith. This exemption is being granted in connection with the Department's final regulation at 29 CFR 2578.1, relating to the Termination of Abandoned Individual Account Plans, the Department's final regulation at 29 CFR 2550.404a-3, relating to the Safe Harbor for Distributions From Terminated Individual Account Plans, and the Department's final regulation at 29 CFR 2520.103-13, relating to the Terminal Report for Abandoned Individual Account Plans, which are being published simultaneously in this issue of the
Brian Buyniski, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, Washington, DC 20210, (202) 693-8545. This is not a toll free number.
On March 10, 2005, the Department published a notice in the
For purposes of this exemption, references to specific provisions of Title I of the Act, unless otherwise specified, refer also to the corresponding provisions of the Code.
The notice of pendency gave interested persons an opportunity to comment or request a public hearing on the proposal. Five (5) public comments were received by the Department. No requests for a public hearing were received. Upon consideration of the comments received, the Department has determined to grant the proposed class exemption subject to certain modifications. These modifications and the comments are discussed below.
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this exemption is significant for “raising novel policy issues” under section 3(f)(4) of the Executive Order. Accordingly, the exemption has been reviewed by OMB.
This exemption is being published simultaneously with a group of three regulatory actions (the Abandoned Plan Regulations) that are also being issued in final form. In the Department's view, the conditional relief provided by the exemption is necessary in order to effectuate the purposes underlying the Abandoned Plan Regulations. Accordingly, the Department's basic statement regarding the economic benefits and costs of encouraging efficient, effective termination of abandoned plans, which is described in detail in the preamble to the Abandoned Plan Regulations, published elsewhere in this issue of the
The purpose of the Abandoned Plan Regulations is to facilitate the orderly, efficient termination of abandoned individual account plans in order to give participants and beneficiaries of those plans access to the amounts held in their individual accounts, which are frequently unavailable to them because of the abandonment. The relief provided by the exemption facilitates this goal by permitting a QTA, under the conditions of the exemption, to select itself or an affiliate to provide services to the plan, to pay itself or an affiliate fees for those services, and to pay itself fees for services provided prior to the plan's deemed termination, in connection with terminating the abandoned plan. Without the availability of the exemptive relief, QTAs and their affiliates would be unable to use plan assets as a source of compensation for their services; since those plan assets are usually the only available source of payment, QTAs would be highly unlikely to undertake abandoned plan terminations.
The exemption also permits a QTA to designate itself or an affiliate as the provider of an individual retirement plan or other account for distributions of benefits for which the participant or beneficiary has failed to make an election; select a proprietary investment product as the initial investment for the distributed benefits of a participant or
The exemption imposes certain conditions on use of proprietary or affiliated investments, including (1) the condition that fees other than establishment fees and expenses attendant to an individual retirement plan or account may be charged only against the income earned by the individual retirement plan or account and (2) the condition that no sales commissions may be imposed in connection with acquiring an Eligible Investment Product. The exemption also conditions relief for payment for services provided prior to a plan's deemed termination on the services' being provided in good faith pursuant to a written agreement and the QTA's providing the Department with a copy of the written agreement and a statement under penalty of perjury that such services were actually performed.
In response to comments on the proposed regulations concerning the limitations on fees, the Department has revised one of the Abandoned Plan Regulations (the QTA Regulation, discussed below under “Discussion of Comments Received”) to permit QTAs to transfer certain small accounts to bank or savings association accounts or the unclaimed property fund of the relevant state, but has determined not to make further changes in the conditions imposed on transactions under the exemption. The Department believes that these conditions, which shape the transactions for which relief will be available, are justified by the protection they provide to participants and beneficiaries.
The conditions appropriately limit the extent to which a QTA may pay itself or its affiliate. Although the conditions restrict the fees that QTAs and their affiliates may receive for their services, they protect against potential self-dealing and depletion of account balances. In these circumstances, the fee limitations substitute for an independent fiduciary's assessment of the value of using products or services of the QTA or its affiliate. Further, QTAs are not required to make use of proprietary or affiliated individual retirement plans or accounts, but are merely permitted by the exemption to choose voluntarily whether to do so. The Department believes that the fee limitations will encourage a QTA to make decisions regarding whether to use its own or an affiliate's individual retirement plans or accounts and investment products based not on the availability of a pool of assets for payment of fees, but on whether it will be in the best interests of the participants and beneficiaries to do so.
As part of its continuing effort to reduce paperwork and respondent burden, the Department of Labor conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that respondents will be able to provide the requested data in the desired format; that the public understands the Department's collection instruments; that the Department minimizes the reporting burden it imposes, both in time and financial resources; and that the Department properly assesses the impact of its collection requirements on respondents.
Because QTAs that rely on the exemption are required, as a condition for the relief, to comply with the requirements of the Abandoned Plan Regulations, published elsewhere in this issue of the
The Department received five comment letters regarding the proposed class exemption.
The Department received several comments regarding the fees associated with the establishment of an account for participants and beneficiaries who fail to provide direction as to the disposition of their account balances. Two commenters requested that the Department eliminate the requirement in section III(i)(2) of the proposed exemption that fees and expenses attendant to the individual retirement plan or other account, with the exception of establishment charges, may be charged only against the income earned by the individual retirement plan or other account.
The Department recognizes that the fee limitations in the class exemption may serve as a disincentive to a QTA providing an individual retirement plan for distributions from abandoned
A commenter also requested that the Department clarify that a one-time closing fee would be treated the same as an establishment fee which, under the exemption, is not limited to the amount of income earned by the account. The Department continues to believe that only establishment fees may be charged against the principal balance of the account. All other fees, including termination costs, can only be charged against the income earned.
The commenter further requested that the Department clarify whether an IRA owner's ability to transfer his or her account to a different institution must be made without penalty to principal. Section III(h) of the proposed exemption provided that the IRA owner may, within a reasonable period of time after his or her request and without penalty to the principal amount of the investment, transfer his or her account balance to a different investment offered by the QTA or its affiliate. The commenter asked for clarification of how this rule would apply if the transfer was made to a different financial institution. In response to this comment, the Department does not believe that a participant who determines to transfer his or her account balance to a different financial institution should be faced with a penalty deducted from the principal amount of the investment. Thus, the final exemption has been clarified to provide that the IRA owner must be able to transfer his or her account balance to a different financial institution without penalty to the principal.
Several comments addressed the definitions contained in section V of the proposed exemption. One commenter recommended that the definition of “Eligible Investment Product” be expanded to permit investments in lifestyle, retirement date and other balanced fund options. The commenter stated that these options are designed for long-term investors who choose not to actively manage their accounts. The Department notes that, given the nature of the accounts governed by this exemption, investments should be designed to minimize risk, preserve assets for retirement and maintain liquidity until the IRA owner becomes available to take control of his or her account. Accordingly, the Department has determined not to expand the definition of “Eligible Investment Product” as requested.
Several commenters requested expansion of the definition of QTA in the Regulation, as well as certain related changes to the class exemption. For reasons more fully set forth in the QTA Regulation, the Department has determined not to expand the definition of QTA. In light of the determination not to modify this final definition under the QTA Regulation, no changes have been made to the class exemption.
As proposed, the class exemption permitted a QTA to select itself to furnish services to the plan in its capacity as a QTA, and to pay itself for those services. It was suggested to the Department that the final exemption also should permit a QTA to pay itself for services rendered prior to becoming a QTA. Such services may have been rendered in connection with a determination of plan abandonment under the QTA Regulation or pursuant to an existing written contract previously entered into with the plan sponsor or other independent fiduciary prior to the time the service provider became the plan's QTA.
After considering the issues, the Department has expanded the class exemption to permit a QTA to pay itself for services rendered before becoming a QTA. In this regard, the exemption applies to two scenarios involving the payment of fees. First, the exemption permits the payment for services provided pursuant to the terms of a written contract previously entered into with the plan sponsor, or other independent fiduciary. This modification recognizes that a service provider might be viewed as exercising authority or control with respect to the disposition of a plan's assets, and therefore acting as a fiduciary, when paying itself fees from plan assets for services under circumstances where the service provider knows that there is no plan fiduciary monitoring plan services or otherwise responsible for the management of the plan, as would be the case in a plan that is determined to have been abandoned by the plan sponsor. Second, the exemption also permits payment for services that were not provided pursuant to a written contract, but were rendered in connection with a determination of plan abandonment under the QTA Regulation. Such services will generally take place prior to the service provider becoming a QTA.
One commenter on the QTA Regulation requested clarification on how a QTA would be able to effect a distribution on behalf of a missing or non-responsive participant in circumstances when the benefit payable is subject to the Code's survivor annuity requirements. The Department has modified the final QTA Regulation by adding a provision that provides that if a QTA determines that the survivor annuity requirements in section 401(a)(11) and 417 of the Code prevent a distribution in accordance with the Safe Harbor Regulation, the QTA shall distribute benefits in any manner reasonably determined to achieve compliance with the survivor annuity requirements of the Code.
Although the commenter did not request exemptive relief for the purchase of annuity contracts from the QTA or an affiliate, it does not foreclose future consideration of additional exemptive relief if the requisite findings under section 408(a) of the Act can be made. Specifically, the Department is interested in information with regard to the types of products that are currently available in the marketplace to annuitize benefits, and the standards and safeguards that the Department would include in an exemption for the purchase of such annuities.
The class exemption has five sections. Section I describes the transactions that are covered by the exemption. Section II contains conditions for the provision of termination services and the receipt of fees. Section III contains the conditions for distributions. Section IV contains the general recordkeeping provisions imposed on the QTA, and section V contains definitions.
Under section I(a), relief is provided from the restrictions of sections 406(a)(1)(A) through (D), 406(b)(1) and
Section I(b) of the exemption provides relief from the restrictions of sections 406(a)(1)(A) through (D), 406(b)(1) and 406(b)(2) of the Act and the taxes imposed by section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, for a QTA to use its authority in connection with the termination of an abandoned individual account plan to designate itself or an affiliate as provider of an individual retirement plan or other account to receive the account balance of a participant that does not provide direction as to the disposition of such assets. The other accounts authorized by the exemption include an account, other than an individual retirement account, as described in section (d)(1)(ii) of the Safe Harbor Regulation, for a distribution made to a distributee other than a participant or spouse, and an interest-bearing, federally insured bank or savings association account for distributions of less than $1,000, as described in section (d)(1)(iii) of the Safe Harbor Regulation.
Section I(b) of the class exemption further permits the QTA to make the initial investment of the distributed proceeds in a proprietary investment product, receive fees in connection with the establishment or maintenance of the individual retirement plan or other account, and receive investment fees as a result of the investment of the individual retirement plan or other account's assets in a proprietary investment product in which the QTA or an affiliate has an interest.
Section II of the exemption describes the conditions that apply to a transaction described in section I(a) of the exemption. The QTA must comply with the requirements of the QTA Regulation, which is published elsewhere in this issue of the
Under the exemption, fees and expenses paid to the QTA and its affiliate must be consistent with industry rates for such or similar services, based on the experience of the QTA, and must not be in excess of rates charged by the QTA (or its affiliate) for the same or similar services provided to customers that are not individual account plans terminated pursuant to the QTA Regulation, if the QTA (or its affiliate) provides the same or similar services to such other customers. The reference to “industry rates” and “based on the experience of the QTA” are intended to enable a QTA who possesses knowledge about the services needed for a plan termination and industry rates for such or similar services, to engage or retain itself, an affiliate, and other service providers without going through a potentially timely and costly bidding process.
With respect to payment to the QTA for services provided to the plan prior to its deemed termination, the exemption provides relief in two situations. First, the exemption covers payment for services performed by a service provider pursuant to the QTA Regulation prior to the deemed termination of the plan and the service provider becoming a QTA. Such services will generally have been performed by the service provider in determining that a plan has been abandoned and in preparing the notice of plan abandonment as required by section (c)(3) of the QTA Regulation.
Second, the exemption covers payment for services provided in good faith pursuant to the terms of a written agreement prior to the service provider becoming a QTA. This includes services provided under a valid, unexpired contract, as well as the continuation of such services after the contract had expired. With respect to such services, the QTA must demonstrate to the Department, in its initial notification of plan abandonment (as required in section (c)(3) of the QTA Regulation), by a representation under penalty of perjury, that such services were actually performed. The QTA also must provide a copy of the executed contract between the QTA and the plan fiduciary or plan sponsor that authorized such services.
Section III contains conditions for transactions described in section I(b) of the exemption. In this regard, the conditions of the QTA Regulation must be met. In addition, the QTA must inform the participant or beneficiary in the notice required by section (d)(2)(vi) of the QTA Regulation that: (1) Absent his or her election within the 30-day period from receipt of the notice, the QTA will directly distribute the account balance of the participant or beneficiary to an individual retirement plan or other account offered by the QTA or its affiliate; and (2) the account balance may be invested in the QTA's own proprietary investment product, which is designed to preserve principal and provide a reasonable rate of return and liquidity.
The exemption also requires that the individual retirement plan or other account must be established and maintained for the exclusive benefit of the individual retirement plan or other account holder, his or her spouse or their beneficiaries.
The terms of the individual retirement plan or other account, including the fees and expenses for establishing and maintaining the individual retirement plan or other account, must be no less favorable than those available to comparable individual retirement plans or other accounts established for reasons other than the receipt of a distribution described in the QTA Regulation.
In addition, the exemption requires that, other than in the case of a bank or savings account described in section I(b)(1)(iii) of the exemption for distributions of less than $1,000, the distribution must be invested in an Eligible Investment Product, as defined in section V(c) of the exemption. The rate of return or the investment performance received by the individual retirement plan or other account from an investment product must be no less than that received by comparable individual retirement plans or other accounts that are not established pursuant to the QTA Regulation but are invested in the same product. For example, the rate of return received by the individual retirement plan for an investment in a one-year certificate of deposit which is an Eligible Investment Product cannot be less than the rate of return received by an individual retirement plan or other account established for reasons other than the receipt of a distribution that is invested in an identical one-year certificate of deposit.
The exemption does not permit the individual retirement plan or other account to pay a sales commission in connection with the acquisition of an Eligible Investment Product.
Under the exemption, the individual retirement plan or other account holder must be able, within a reasonable period of time after his or her request and without penalty to the principal amount of the investment, to transfer his or her individual retirement plan or other account balance to a different
Under the exemption, fees and expenses attendant to the individual retirement plan or other account, including the investment of the assets of such plan or account, (e.g., establishment charges, maintenance fees, investment expenses, termination costs, and surrender charges) must not exceed the fees and expenses charged by the QTA for comparable individual retirement plans or other accounts established for reasons other than the receipt of a distribution made pursuant to the QTA regulation. Additionally, fees and expenses attendant to the individual retirement plan or other account, other than establishment charges, may be charged only against the income earned by the individual retirement plan or other account. Finally, fees and expenses shall not exceed reasonable compensation within the meaning of section 4975(d)(2) of the Code.
Section IV of the exemption contains a recordkeeping requirement. The QTA must maintain records to enable certain persons to determine whether the applicable conditions of the class exemption have been met. The records must be made available for examination by the IRS, the Department, and any account holder or duly authorized representative of such account holder of an individual retirement plan or other account, for at least six years from the date the QTA provides notice to the Department of its determination of plan abandonment and its election to serve as the QTA.
Lastly, section V of the exemption contains certain definitions. The term “qualified termination administrator” is defined in section V(a) as an entity that is eligible to serve as a trustee or issuer of an individual retirement plan within the meaning of section 7701(a)(37) of the Code and that holds the assets of the abandoned plan.
The term “Eligible Investment Product” is defined in section V(c) to mean an investment product designed to preserve principal and provide a reasonable rate of return, whether or not such return is guaranteed, consistent with liquidity. In this regard, the product must be offered by a Regulated Financial Institution as defined in section V(d) and must seek to maintain, over the term of the investment, a dollar value that is equal to the amount invested in the product by the individual retirement plan or other account. Such term includes money market funds maintained by registered investment companies and interest-bearing savings accounts and certificates of deposit of a bank or similar financial institution. In addition, the term includes stable value products issued by a financial institution that are fully benefit-responsive to the individual retirement plan or other account holder. For purposes of this class exemption, the term “benefit responsive” means a stable value product that provides a liquidity guarantee by a financially responsible third party of principal and previously accrued interest for liquidations or transfers initiated by the individual retirement plan or other account holder exercising his or her right to withdraw or transfer funds under the terms of an arrangement that does not include substantial restrictions to the account holder's access to the individual retirement plan or other account assets.
The term “Regulated Financial Institution” is defined in section V(d) to mean an entity that: (i) Is subject to state or federal regulation, and (ii) is a bank or savings association, the deposits of which are insured by the Federal Deposit Insurance Corporation; a credit union, the member accounts of which are insured within the meaning of section 101(7) of the Federal Credit Union Act; an insurance company, the products of which are protected by state guaranty associations; or an investment company registered under the Investment Company Act of 1940.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act and section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which require, among other things, that a fiduciary discharge his duties with respect to the plan solely in the interests of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act;
(2) In accordance with section 408(a) of the Act and section 4975(c)(2) of the Code, the Department finds that the exemption is administratively feasible, in the interests of plans and their participants and beneficiaries and protective of the rights of participants and beneficiaries of such plans;
(3) The exemption is applicable to a transaction only if the conditions specified in the exemption are met; and
(4) The exemption is supplemental to and not in derogation of any other provisions of the Act and the Code, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive of whether the transaction is in fact a prohibited transaction.
Accordingly, the following exemption is granted under the authority of section 408(a) of the Act and section 4975(c)(2) of the Code, and in accordance with the procedures set forth in 29 CFR 2570, subpart B (55 FR 32836, 32847, August 10, 1990).
(a) The restrictions of sections 406(a)(1)(A) through (D), 406(b)(1) and 406(b)(2) of the Act, and the taxes imposed by section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to a QTA, (as defined in section V(a) of this class exemption), using its authority in connection with the termination of an abandoned individual account plan pursuant to the Department's regulation at 2550.404a-3, relating to the Termination of Abandoned Individual Account Plans (the QTA Regulation) to:
(1) Select itself or an affiliate to provide services to the plan;
(2) Receive fees for the services performed as a QTA; and
(3) Pay itself fees for services provided to the plan prior to the deemed termination of the plan, provided that the conditions set forth in sections II and IV of this exemption are satisfied.
(b) The restrictions of sections 406(a)(1)(A) through (D), 406(b)(1) and 406(b)(2) of the Act, and the taxes imposed by section 4975(a) and (b) of the Code, by reason of section 4975(c)(1)(A) through (E) of the Code, shall not apply to a QTA, using its authority in connection with the termination of an abandoned individual account plan pursuant to the QTA Regulation to:
(1) Designate itself or an affiliate as: (i) Provider of an individual retirement plan; (ii) provider of an account (other
(2) Make the initial investment of the account balance of the participant or beneficiary in the QTA's or its affiliate's proprietary investment product;
(3) Receive fees in connection with the establishment or maintenance of the individual retirement plan or other account; and
(4) Pay itself or an affiliate investment fees as a result of the investment of the individual retirement plan or other account assets in the QTA's or its affiliate's proprietary investment product, provided that the conditions set forth in sections III and IV of this exemption are satisfied.
(a) The requirements of the QTA Regulation are met. The QTA provides, in a timely manner, any other reasonably available information requested by the Department regarding the proposed termination.
(b) Fees and expenses paid to the QTA, and its affiliate, in connection with the termination of the plan and the distribution of benefits:
(1) Are consistent with industry rates for such or similar services, based on the experience of the QTA, and
(2) Are not in excess of rates ordinarily charged by the QTA (or affiliate) for the same or similar services provided to customers that are not plans terminated pursuant to the QTA regulation, if the QTA (or affiliate) provides the same or similar services to such other customers.
(c) In the case of a transaction described in section I(a)(3):
(1) Such services: (i) Were performed in good faith pursuant to the terms of a written agreement executed prior to the service provider becoming a QTA, or (ii) were performed pursuant to the QTA Regulation; and
(2) The QTA, in the initial notification of plan abandonment described in section (c)(3) of the QTA Regulation: (i) Represents under penalty of perjury that such services were actually performed and (ii) in the case of section II(c)(1)(i) above, provides the Department with a copy of the executed contract between the QTA and a plan fiduciary or the plan sponsor that authorized such services.
(a) The conditions of the QTA Regulation are met.
(b) In connection with the notice to participants and beneficiaries described in the QTA Regulation, a statement is provided explaining that:
(1) If the participant or beneficiary fails to make an election within the 30-day period referenced in the QTA Regulation, the QTA will directly distribute the account balance to an individual retirement plan or other account offered by the QTA or its affiliate;
(2) The proceeds of the distribution may be invested in the QTA's (or affiliate's) own proprietary investment product, which is designed to preserve principal and provide a reasonable rate of return and liquidity.
(c) The individual retirement plan or other account is established and maintained for the exclusive benefit of the individual retirement plan account holder or other account holder, his or her spouse, or their beneficiaries.
(d) The terms of the individual retirement plan or other account, including the fees and expenses for establishing and maintaining the individual retirement plan or other account, are no less favorable than those available to comparable individual retirement plans or other accounts established for reasons other than the receipt of a distribution described in the QTA Regulation.
(e) Except in the case of a QTA providing a bank or savings account pursuant to section I(b)(1)(iii) of the exemption, the distribution proceeds are invested in an Eligible Investment Product(s), as defined in section V(c) of this class exemption.
(f) The rate of return or the investment performance of the individual retirement plan or other account is no less favorable than the rate of return or investment performance of an identical investment(s) that could have been made at the same time by comparable individual retirement plans or other accounts established for reasons other than the receipt of a distribution described in the QTA Regulation.
(g) The individual retirement plan or other account does not pay a sales commission in connection with the acquisition of an Eligible Investment Product.
(h) The individual retirement plan account holder or other account holder must be able, within a reasonable period of time after his or her request and without penalty to the principal amount of the investment, to transfer his or her account balance to a different investment offered by the QTA or its affiliate, or to a different financial institution not related to the QTA or its affiliate.
(i)(1) Fees and expenses attendant to the individual retirement plan or other account, including the investment of the assets of such plan or account, (e.g., establishment charges, maintenance fees, investment expenses, termination costs, and surrender charges) shall not exceed the fees and expenses charged by the QTA for comparable individual retirement plans or other accounts established for reasons other than the receipt of a distribution made pursuant to the QTA Regulation;
(2) Fees and expenses attendant to the individual retirement plan or other account, with the exception of establishment charges, may be charged only against the income earned by the individual retirement plan or other account; and
(3) Fees and expenses attendant to the individual retirement plan or other account are not in excess of reasonable compensation within the meaning of section 4975(d)(2) of the Code.
(a) The QTA maintains or causes to be maintained, for a period of six (6) years from the date the QTA provides notice to the Department of its determination of plan abandonment and its election to serve as the QTA described in the QTA Regulation, the records necessary to enable the persons described in paragraph (b) of this section to determine whether the applicable conditions of this exemption have been met. Such records must be readily available to assure accessibility by the persons identified in paragraph (b) of this section.
(b) Notwithstanding any provisions of section 504(a)(2) and (b) of the Act, the records referred to in paragraph (a) of this section are unconditionally available at their customary location for examination during normal business hours by—
(1) Any duly authorized employee or representative of the Department of Labor or the Internal Revenue Service; and
(2) Any account holder of an individual retirement plan or other account established pursuant to this
(c) A prohibited transaction will not be considered to have occurred if due to circumstances beyond the control of the QTA, the records necessary to enable the persons described in paragraph (b) to determine whether the conditions of the exemption have been met are lost or destroyed, and no party in interest other than the QTA shall be subject to the civil penalty that may be assessed under section 502(i) of the Act or to the taxes imposed by sections 4975(a) and (b) of the Code if the records are not maintained or are not available for examination as required by paragraph (b).
(3) None of the persons described in paragraph (b)(2) of this section shall be authorized to examine the trade secrets of the QTA or its affiliates or commercial or financial information that is privileged or confidential.
(a) A termination administrator is “qualified” for purposes of the QTA Regulation and this exemption if:
(1) The QTA is eligible to serve as a trustee or issuer of an individual retirement plan or other account, within the meaning of section 7701(a)(37) of the Code, and
(2) The QTA holds plan assets of the plan that is considered abandoned.
(b) The term “individual retirement plan” means an individual retirement plan described in section 7701(a)(37) of the Code. For purposes of this exemption, the term individual retirement plan shall not include an individual retirement plan which is an employee benefit plan covered by Title I of ERISA.
(c) The term “Eligible Investment Product” means an investment product designed to preserve principal and provide a reasonable rate of return, whether or not such return is guaranteed, consistent with liquidity. For this purpose, the product must be offered by a Regulated Financial Institution as defined in paragraph (d) of this section and shall seek to maintain, over the term of the investment, the dollar value that is equal to the amount invested in the product by the individual retirement plan or other account. Such term includes money market funds maintained by registered investment companies, and interest-bearing savings accounts and certificates of deposit of a bank or similar financial institution. In addition, the term includes “stable value products” issued by a financial institution that are fully benefit-responsive to the individual retirement plan account holder or other account holder,
(d) The term “Regulated Financial Institution” means an entity that: (i) Is subject to state or federal regulation, and (ii) is a bank or savings association, the deposits of which are insured by the Federal Deposit Insurance Corporation; a credit union, the member accounts of which are insured within the meaning of section 101(7) of the Federal Credit Union Act; an insurance company, the products of which are protected by state guaranty associations; or an investment company registered under the Investment Company Act of 1940.
(e) An “affiliate” of a person includes:
(1) Any person directly or indirectly controlling, controlled by, or under common control with, the person; or
(2) Any officer, director, partner or employee of the person.
(f) The term “control” means the power to exercise a controlling influence over the management or policies of a person other than an individual.
(g) The term “individual account plan” means an individual account plan as that term is defined in section 3(34) of the Act.