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Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. The conditions to which the importation of tomatoes will be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States. This action will allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States.
Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1228; (301) 734-8758.
The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 though 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.
Section 319.56-2dd of the regulations contains administrative instructions allowing the importation of tomatoes from various countries where the Mediterranean fruit fly (Medfly,
On February 6, 2006, we published in the
We solicited comments concerning our proposal for 60 days ending April 7, 2006. We received 15 comments by that date. They were from representatives of State and foreign agricultural departments, industry organizations, importers and exporters, producers, farmers, and individuals. Eight of these commenters supported the proposed rule. The others expressed reservations, which are discussed below.
In our proposal, we explained that the proposed conditions to which tomatoes from Central America would be subject were very similar to current requirements for importing tomatoes from France, Morocco and Western Sahara, and Spain. We also stated that since the start of the tomato systems approach in France and Spain, the number of pest interceptions has been very low, with an approximate shipment infestation rate of 0.005 percent in Spain and 0.06 percent in France. With respect to those numbers, one commenter asked if the pest interception rates were for Medfly or for some other pest.
The interceptions on tomatoes from France and Spain were leafminers, not Medfly.
One commenter questioned why the pea leafminer (
The commenter is correct in that the pea leafminer feeds on foliage and not fruit. While foliage and leaf litter will not be permitted entry with tomato fruit, leafminer pupae may fall from tomato foliage onto the fruit during harvesting, packing, etc. These pupae are easy to detect and inspectors should readily detect any that may end up on fruit.
Two commenters expressed concern that allowing more imports of tomatoes from foreign markets would result in negative economic impacts on small family farms in the United States. Two additional commenters stated that the Florida tomato industry has already experienced disasters such as freezes and hurricanes and that the entry of Medfly into Florida could devastate an already struggling industry.
Our proposed rule was prepared in response to requests from several Central American countries that we allow the importation of pink and red tomatoes grown under a systems approach. Our scientific review of pests, similar programs, and other available documents led us to conclude that pest risk would be mitigated under the systems approach. The Plant Protection Act authorizes the Secretary to prohibit or restrict importations only when necessary to prevent the introduction of plant pests.
One commenter stated that any imports of pink and red tomatoes from the Central American countries as proposed will increase the risk of the Medfly entering the United States and noted that the proposed rule claims only that the risk of Medfly introduction will be mitigated, not eliminated.
This rule is designed to prevent the introduction and dissemination of quarantine pests into the United States. We recognize that there is no such thing as “zero risk” with respect to the
One commenter stated that we did not clearly explain how the risks presented by tomatoes from Central America were similar to the risks presented by tomatoes from other countries. The commenter asked that we explain this conclusion. In addition, the commenter stated that we did not provide an explanation as to how the systems approach itself was very similar to the current requirements for importing tomatoes from France, Morocco and Western Sahara, and Spain, nor did we provide any documentation that the enforcement regimes in Europe are similar or equivalent to those in Central America.
With regard to risks presented by Central American tomatoes, we did not state that the risks associated with tomatoes from Central America and other countries were the same, merely that the systems approach we were proposing to add has been successful at mitigating the risk of Medfly introduction into the United States when applied to tomatoes produced in those other countries. With regard to the specific similarities of the systems approaches, tomatoes from Spain, France, and Morocco and Western Sahara are imported under conditions similar to those which will be applied to Central American tomatoes. The use of pest-exclusionary greenhouses, trapping/triggering programs, and inspection are similar in all of the programs. The requirements pertaining to the importation of pink and red tomatoes from Spain and France are contained in § 319.56-2dd, paragraphs (a) and (b), and requirements for Morocco and Western Sahara are contained in paragraph (c), and may be compared to the provisions of § 319.56-2dd, paragraph (f) in this rule.
With regard to growing conditions, the proposed rule did not make any claims as to the similarity of the growing conditions and practices in France, Morocco and Western Sahara, and Spain, thus we have not prepared any documentation on that subject. The enforcement regimes of those countries with respect to their tomato export programs would equate to compliance with the relevant regulations in § 319.56-2dd, thus any similarities in their respective enforcement regimes would be in line with the similarities among the respective paragraphs in those regulations.
One commenter stated that in a draft report titled, “Exotic Fruit Fly Strategic Plan, FY 2006-2010,” APHIS acknowledged that the fruit fly populations in Central America and in Mexico are a significant threat to U.S. agriculture due to the large numbers of people migrating north from fruit fly infested areas. The commenter stated that APHIS did not acknowledge this risk in the proposed rule.
The proposed rule pertains to the importation of commercial shipments of tomatoes from the specified Central American countries. Therefore, the risk documentation prepared for the proposed rule, as well as the proposed rule itself, focus on the commercial fruit pathway and do not examine or seek to address the risks associated with individuals migrating from fruit fly infested areas in those countries to the United States.
One commenter stated that APHIS should consider requiring the use of aerial spraying of spinosad in the areas where Medfly exists and/or a program releasing sterile fruit flies in the Medfly areas of these countries to reduce the risk of exporting Medfly on pink and red tomatoes to the United States.
The measures suggested by the commenter would be undertaken by a country seeking to eradicate a fruit fly or to establish areas of pest freedom or low prevalence. They are not phytosanitary measures APHIS can require with respect to a particular imported commodity.
One commenter requested that we limit distribution of pink and red tomatoes to States with crops that are not susceptible to Medfly or other quarantine pests from Central American countries. The commenter stated that at a minimum, Central American tomatoes should not be allowed to be distributed in the southern United States.
Based on our experience with similar programs in France, Spain, and Morocco and Western Sahara, we believe that limiting distribution of tomatoes in the United States would be beyond what is necessary to ensure pest mitigation is achieved. As stated previously, the Plant Protection Act authorizes the Secretary to prohibit or restrict importations only when necessary to prevent the introduction of plant pests.
One commenter stated that APHIS did not consider the use of ethylene gas on green tomatoes to ripen them. The commenter added that using ethylene gas will not increase the risk of Medfly introduction because it would involve importing green tomatoes only.
Ethylene gas is not a phytosanitary measure; therefore, we would not require the use of it in our regulations. Further, green tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama are currently enterable into the United States and importers are free to use ethylene gas to color tomatoes if they desire.
One commenter stated that we did not consider irradiation as an alternative.
As stated previously, we evaluated the risks associated with pink and red tomatoes from Central America and determined that the risks could be mitigated through the application of the measures described in the proposed rule and in this document. If we had determined that the designated measures were insufficient to provide an appropriate level of quarantine security, it is possible that we would have considered requiring the application of phytosanitary treatments such as irradiation. That was not necessary, however.
One commenter asked if APHIS will provide oversight to ensure compliance with the program.
APHIS will provide oversight of the programs by monitoring, conducting inspections, reviewing reports, and removing from the program any participating sites that are not in compliance with the mitigation measures.
A second commenter stated that he requested specific information regarding the participating national plant protection organizations (NPPOs) from APHIS and was provided with contact information for each NPPO instead of the specific information. The commenter questioned our ability to trust the individual Central American NPPOs to provide sufficient oversight if we do not have specific information on their workforces and capacities. One commenter raised similar concerns stating that a systems approach is complicated and assumes that the necessary technical, inspection, and other resources are available to the exporting countries and are effective.
The NPPO of each of the countries covered by the rule, like the NPPO of
We do not routinely request that our trading partners provide us with specific information concerning the number and experience level of the individual employees of their NPPOs, nor do our trading partners normally ask that information of APHIS. We have full confidence in the Central American NPPOs to oversee the prescribed mitigation measures. Further, it is in the best interest of the participating Central American countries to succeed with this program and doing so will require they meet our phytosanitary standards.
One commenter asked that APHIS include provisions for conducting compliance audits during the active shipping and growing season to ensure full compliance with the systems approach. The commenter added that results of these compliance audits should be made available for review by all stakeholders in the United States.
As described in the proposed rule and in this document, APHIS would be directly involved in the approval of production sites and determinations as to whether risk mitigation has been achieved following pest detections. In addition, each exporting country's NPPO will have to maintain an APHIS-approved quality control program to monitor or audit its fruit fly trapping program, and the trapping records will have to be maintained for APHIS review. We believe that these measures will be adequate to provide the compliance assurance sought by the commenter.
One commenter took issue with the statement in the economic analysis that, “[b]etween 1997 and 2002 there is not likely to have been substantial changes in the [domestic] industry.” The commenter said this statement is unsupportable and not relevant to the potential economic impacts on U.S. tomato growers in 2006.
Our statement that “Between 1997 and 2002, there is not likely to have been substantial changes in the industry” followed three sentences describing fruit and vegetable wholesale trade firms (
One commenter took issue with a statement in the economic analysis that the proposed rule would provide importers with alternative sources of tomatoes at a more advanced stage of ripeness. The commenter said that while this is technically true, it is meaningless because importers have not requested an alternative source for pink and red tomatoes and there is no indication that there are insufficient supplies of green, pink, or red tomatoes available in the United States.
The availability of alternative sources of tomatoes at a more advanced stage of ripeness was cited as a potential result of the proposed action, not as an initiating factor behind it.
One commenter took issue with the statement that the effects on small businesses would not be significant. The commenter noted that APHIS indicates it does not have information on the size distribution of domestic tomato producers and makes assumptions, for example, that the subject imports will “compete with all fresh tomatoes produced domestically.” The commenter claimed that this statement was inaccurate based solely on the cost of transportation from Central America to all parts of the United States. The commenter stated that APHIS also notes that the domestic price would fall by as much as $0.50 per cwt. The commenter stated that even if the price decline was “only” 1.4 percent, this does not render the decline insubstantial, and that the answer depends on the marketplace at the time the imports enter the United States because we are dealing with a perishable commodity, and with pink and red tomatoes we are dealing with a most perishable commodity. In such cases, the commenter stated, a small decline in price can and has had a profound negative effect on the price of tomatoes, and that if these tomatoes were to enter the United States during the winter months, then only the tomato producers in Florida would be harmed and the harm could be much greater than that suggested in the economic analysis.
The economic analysis did not quantitatively account for the possibility that imports from Central America may displace imports from other countries. In fact, the economic analysis cautions that the impacts are likely overstated because the displacement of other tomato imports was not taken into account. Florida and other tomato-producing States do not produce enough field-grown tomatoes to meet domestic demand. Thus, domestic field production is supplemented by domestic greenhouse production and by imports. Over the past 6 years, fresh tomato imports have comprised approximately 34 percent of U.S. supply (production plus imports minus exports). Over one-third of annual imports arrive in the United States during the winter months, with the bulk of these imports coming from Mexico.
We are unclear as to the commenter's intent in stating that transportation costs of imports of fresh tomatoes from Central America would prevent them from competing with all fresh tomatoes produced domestically and about pink and red tomatoes being a most perishable commodity. We presume the commenter believes that it will not be cost effective, nor feasible time-wise due to a more advanced stage of ripeness, for importers to transport tomatoes all over the United States. It would appear that the commenter is concerned that the bulk of Central American tomato imports will end up in the southern States because of their closer proximity to Central America. Most of the tomatoes produced in Florida are shipped to markets in the eastern United States, while Mexican imports serve mainly the western States. We believe that Central American imports will follow a similar pattern as Mexican imports. These marketing patterns would suggest that Florida producers may be less affected by fresh tomato imports from Central America than other domestic and foreign suppliers.
In our proposed provisions concerning the placement of Medfly traps in the buffer area surrounding each production site, we referred to Medfly traps with an approved protein bait. In this final rule, those provisions (§ 319.56-2dd(f)(2)(iii)(C)) refer to Medfly traps with an approved lure, as it will be parapheromone lures, rather than protein baits, that will be used outside of the greenhouses.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.
This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made
This rule relieves restrictions on the importation of tomatoes from Central America while continuing to protect against the introduction of plant pests into the United States. Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow interested producers, importers, shippers, and others to benefit immediately from the relief in restrictions. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the
This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the economic effects of this rule on small entities.
Under the Plant Protection Act (7 U.S.C. 7701
We are amending the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. The conditions to which the importation of tomatoes will be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States. This action will allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States.
While agriculture is an important industry in the countries that will be affected by this rule, it does not account for the largest share of gross domestic product in any of the countries. Tomatoes do not appear to be major crops in those Central American countries. However, production and exports of tomatoes are following upward trends.
Tomato production in Central America has been steadily increasing since the early 1960s. Over this period, production has increased almost 300 percent. In conjunction with this increase in production, exports of tomatoes from the region have also increased. Exports in 2003 were 42 times the exports in 1962. Between 1980 and 2003, exports increased by 45 percent.
Nearly all of this trade has been intraregional. From 1962 to 2003, 96 percent of Central American tomato exports were to other countries within Central America. Thus, the vast majority of the tomatoes exported from any Central American country are destined for another country within the same region.
U.S. imports of Central American tomatoes have fluctuated greatly over the last 15 years.
Although this rule will allow for more liberal importation of tomatoes from certain Central American countries, it is unlikely that the changes will lead to dramatic increases in U.S. import levels from that region.
This rule will affect domestic producers of tomatoes as well as importers that deal with these commodities. It is likely that the entities affected will be small according to Small Business Administration (SBA) guidelines. As detailed below, information available to APHIS indicates that the effects on these small entities will not be significant.
Two alternatives to this course of action are as follows: Maintaining the status quo with respect to the importation of tomatoes from these Central American countries (
The first alternative would maintain current safeguards against the entry of quarantine pests. However, this option would also mean that those specified Central American countries as well as the United States would forgo the economic benefits expected to be afforded by the trade of Central American tomatoes.
Allowing the importation of fresh tomatoes from certain Central American countries under less restrictive phytosanitary requirements could potentially lead to the introduction of pests not currently found in the United States. This option could result in significant damage and costs to domestic production and is not desirable for those reasons.
Affected U.S. tomato producers are expected to be small based on the 2002 Census of Agriculture data and SBA guidelines for entities in two farm categories: Other Vegetable (except Potato) and Melon Farming (North American Industry Classification System [NAICS] code 111219) and Other Food Crops Grown Under Cover (NAICS code 111419). The SBA classifies producers in these farm categories as small entities if their total annual sales are $750,000 or less. APHIS does not have information on the size distribution of domestic tomato producers, but according to 2002 Census data, there were a total of 2,128,892 farms in the United States.
Economic analysis of the expected increase in imports of tomatoes from Central America shows that the importation of this commodity will lead to negligible changes in domestic prices. APHIS estimates that an additional 13,092 metric tons of tomatoes may be imported from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama on a yearly basis. Using historical consumption data to estimate an elasticity of demand for tomatoes, an increase in imports of this size will result in a price decrease of $0.50 per hundredweight (cwt) overall.
For this analysis, it is assumed that imports of tomatoes from Central America will compete with all fresh tomatoes produced domestically. In 2004, U.S. fresh tomato production totaled 3,976 million pounds (table 1). APHIS estimates that an additional 13,092 metric tons (28.7 million pounds) of tomatoes will be imported from Central America. These import levels equate to only 0.7 percent of domestic production in 2004 and 1.4 percent of 2004 imports. Given the additional imports, it is possible that the domestic price will fall by as much as $0.50 per cwt. In 2004, the average producer price was $36.70 per cwt. Thus, the expected price decline will represent a 1.4 percent decline. However, this percentage is likely overstated because the new imports will be close substitutes for tomatoes from other countries. Imports from Central America will probably displace at least some of those imports from other countries. This likely substitution is not taken into account in the analysis.
In order to put this price change into perspective, we consider it in terms of average revenue for small-entity tomato producers. Due to the lack of data on tomato farming, it is difficult to determine an accurate potential change in revenues for all producers. Averaging the total drop in revenues across all firms will overstate the loss to small producers while understating that for the larger ones. Data from the 2002 Census of Agriculture were used to estimate tomato production by small and large firms. This, in turn, was used to estimate revenues for these two categories. An average revenue per firm was then calculated. We conclude that any producer with fewer than 80 acres of tomatoes may be considered small, based on industry yields and revenues and the small-entity definition of not more than $750,000 in annual revenue. For small-entity producers with fewer than 100 acres (the reported category closest to 80 acres), a price change of $0.50 per cwt will lead to an estimated per firm decline in annual revenue of $293, or 1.6 percent. Given this small change and recalling that these effects are likely overstated, domestic producers are not likely to be significantly impacted by the rule.
Although domestic producers may face slightly lower prices as a result of the potential increase in the tomato supply, these price changes are expected to be negligible. Domestic import firms, on the other hand, may actually benefit from more open trade with Central America resulting from increased opportunities that could be made available as a result of establishing new sources of tomatoes at a more advanced stage of ripeness. In both instances, changes of the magnitude presented here should not have large repercussions for either domestic producers or importers of tomatoes.
This rule contains various recordkeeping requirements, which were described in our proposed rule, and which have been approved by the Office of Management and Budget (see “Paperwork Reduction Act” below).
This rule will allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. State and local laws and regulations regarding tomatoes imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public and will remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.
An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation of tomatoes under the conditions specified in this rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact were
The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
(f)
(1) From areas free of Mediterranean fruit fly:
(i) The tomatoes must be grown and packed in an area that has been determined by APHIS to be free of Mediterranean fruit fly (Medfly) in accordance with the procedures described in § 319.56-2(f) of this subpart.
(ii) A pre-harvest inspection of the production site must be conducted by the national plant protection organization (NPPO) of the exporting country for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests are found to be generally infesting the production site, the NPPO may not allow exports from that production site until the NPPO and APHIS have determined that risk mitigation has been achieved.
(iii) The tomatoes must be packed in insect-proof cartons or containers or covered with insect-proof mesh or plastic tarpaulin at the packinghouse for transit to the United States. These safeguards must remain intact until arrival in the United States.
(iv) The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an area recognized to be free of Medfly and the shipment has been inspected and found free of the pests listed in the requirements.”
(2) From areas where Medfly is considered to exist:
(i) The tomatoes must be grown in approved registered production sites. Initial approval of the production sites will be completed jointly by the exporting country's NPPO and APHIS. The exporting country's NPPO must visit and inspect the production sites monthly starting 2 months before harvest and continuing through until the end of the shipping season. APHIS may monitor the production sites at any time during this period.
(ii) Tomato production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 (or less) mm screening.
(iii) Registered sites must contain traps for the detection of Medfly both within and around the production site as follows:
(A) Traps with an approved protein bait for Medfly must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of two traps per greenhouse. Traps must be serviced on a weekly basis.
(B) If a single Medfly is detected inside a registered production site or in a consignment, the registered production site will lose its ability to export tomatoes to the United States until APHIS and the exporting country's NPPO mutually determine that risk mitigation is achieved.
(C) Medfly traps with an approved lure must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near the greenhouse. Traps must be set for at least 2 months before export and trapping must continue to the end of the harvest.
(D) Capture of 0.7 or more Medflies per trap per week will delay or suspend the harvest, depending on whether harvest has begun, for consignments of tomatoes from that production site until APHIS and the exporting country's NPPO can agree that the pest risk has been mitigated.
(E) The greenhouse must be inspected prior to harvest for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests, or other quarantine pests, are found to be generally infesting the greenhouse, exports from that production site will be halted until the exporting country's NPPO and APHIS determine that the pest risk has been mitigated.
(iv) The exporting country's NPPO must maintain records of trap
(v) The tomatoes must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The tomatoes must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. The tomatoes must be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit into the United States. These safeguards must remain intact until arrival in the United States or the consignment will be denied entry into the United States.
(vi) During the time the packinghouse is in use for exporting tomatoes to the United States, the packinghouse may only accept tomatoes from registered approved production sites.
(vii) The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.” The shipping box must be labeled with the identity of the production site.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; approval of amendment.
We are approving an amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). West Virginia revised the Code of West Virginia (W. Va. Code) as amended by Senate Bill 461 concerning water rights and replacement, and revised the Code of State Regulations (CSR) as amended by Committee Substitute for House Bill 4135 by adding a postmining land use of bio-oil cropland, and the criteria for approving bio-oil cropland as a postmining land use for mountaintop removal mining operations.
Mr. Roger W. Calhoun, Director, Charleston Field Office, 1027 Virginia Street East, Charleston, West Virginia 25301. Telephone: (304) 347-7158, E-mail address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its 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 the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the 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 West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981,
By letter dated April 17, 2006 (Administrative Record Number WV-1462), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its permanent regulatory program in accordance with SMCRA (30 U.S.C. 1201
The West Virginia Governor also signed Senate Bill 774, on April 4, 2006, which amends language concerning definitions, offices, and officers within the WVDEP. The amendments to Senate Bill 774 are non-substantive changes to the West Virginia program that do not require OSM approval. Therefore, the amendments to Senate Bill 774 can take effect as provided therein on June 9, 2006.
We announced receipt of the proposed amendment in the June 2, 2006,
Following are the findings that we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment in full. Any revisions that we do not specifically discuss below concern non-substantive wording or editorial changes and are approved herein without discussion.
Senate Bill 461, which was passed by the Legislature on March 11, 2006, and signed into law by the Governor on April 4, 2006, amends Article 3 of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). Specifically, section 22-3-24 concerning water rights and replacement, waiver of replacement is amended at subsection (c) by deleting the last sentence and by adding new subsections (d) and (h). As amended, section 22-3-24 provides as follows:
22-3-24. Water rights and replacement; waiver of replacement.
(a) Nothing in this article affects in any way the rights of any person to enforce or protect, under applicable law, the person's interest in water resources affected by a surface mining operation.
(b) Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the surface mining operation, unless waived by the owner.
(c) There is a rebuttable presumption that a mining operation caused damage to an owner's underground water supply if the inspector determines the following: (1) Contamination, diminution or damage to an owner's underground water supply exists; and (2) a preblast survey was performed, consistent with the provisions of section thirteen-a of this article, on the owner's property, including the underground water supply, that indicated that contamination, diminution or damage to the underground water supply did not exist prior to the mining conducted at the mining operation.
(d) The operator conducting the mining operation shall: (1) Provide an emergency drinking water supply within twenty-four hours; (2) provide temporary water supply within seventy-two hours; (3) within thirty days begin activities to establish a permanent water supply or submit a proposal to the secretary outlining the measures and timetables to be utilized in establishing a permanent supply. The total time for providing a permanent water supply may not exceed two years. If the operator demonstrates that providing a permanent replacement water supply can not be completed within two years, the secretary may extend the time frame on [a] case-by-case basis; and (4) pay all reasonable costs incurred by the owner in securing a water supply.
(e) An owner aggrieved under the provisions of subsections (b), (c) or (d) of this section may seek relief in court or pursuant to the provisions of section five, article three-a of this chapter.
(f) The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this section.
(g) The provisions of subsection (c) of this section shall not apply to the following: (1) Underground coal mining operations; (2) the surface operations and surface impacts incident to an underground coal mine; and (3) the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods.
(h) Notwithstanding the denial of the operator of responsibility for the damage of the owners [owner's] water supply or the status of any appeal on determination of liability for the damage to the owners [owner's] water supply, the operator may not discontinue providing the required water service until authorized by the division. Notwithstanding the provisions of subsection (g) of this section, on and after the effective date of the amendment and reenactment of this section during the regular legislative session of two thousand six, the provisions of this section shall apply to all mining operations for water replacement claims resulting from mining operations regardless of when the claim arose.
The sentence that was deleted from Subsection (c) provided as follows:
The operator conducting the mining operation shall: (1) Provide an emergency drinking water supply within twenty-four hours; (2) provide a temporary water supply within seventy-two hours; (3) provide a permanent water supply within thirty days; and (4) pay all reasonable costs incurred by the owner in securing a water supply.
The deleted information quoted above was added, with modifications, as new Subsection 22-3-24(d). The language at new Subsection (d) is substantively identical to the language deleted from Subsection (c) and can be approved with the following understanding. At Subsection (d), item (3) no longer requires the operator to provide a permanent water supply within thirty days. As revised, the operator is required to begin, within 30 days, activities to establish a permanent water supply or submit a proposal to the WVDEP Secretary outlining the measures and timetables to be utilized in establishing a permanent water supply. The total time for providing a permanent water supply may not exceed two years. The new language also provides that if the operator demonstrates that providing a permanent replacement water supply can not be completed within two years, the WVDEP Secretary may extend the time frame on a case-by-case basis. Our evaluation of the new language at Subsection (d), item (3) follows.
SMCRA at section 717 addresses water rights and replacement. Section 717(b) provides as follows:
(b) The operator of a surface coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where such supply has been affected by contamination, diminution, or interruption proximately resulting from such surface coal mine operation.
The implementing Federal regulations at 30 CFR 816.41(h) is substantively identical to section 717(b).
Section 720(a)(2) of SMCRA concerning subsidence and replacement of a water supply provides that underground coal mining operations conducted after October 24, 1992, shall:
(2) Promptly replace any drinking, domestic, or residential water supply from a well or spring in existence prior to the application for a surface coal mining and reclamation permit, which has been affected by contamination, diminution, or interruption resulting from underground coal mining operations. Nothing in this section shall be construed to prohibit or interrupt underground coal mining operations.
The implementing Federal regulation at 30 CFR 817.41(j) essentially repeat the requirement provided at section 720(a)(2) of SMCRA.
The SMCRA provisions and implementing Federal regulations described above require prompt replacement of water supplies, but they do not provide specific timetables for replacement. Moreover, neither SMCRA section 720(a)(2) nor the implementing Federal regulations at 30 CFR 817.41(j) define the term “prompt replacement” of a water supply.
The Federal provision at 30 CFR 817.41(j), concerning a drinking, domestic or residential water supply affected by underground mining activities conducted after October 24, 1992, was promulgated on March 31, 1995 (60 FR 16722, 16749). In the preamble to that promulgation, OSM provided the following guidance concerning the meaning of the term “prompt replacement” that was intended to assist regulatory authorities in deciding if water supplies have been “promptly” replaced:
OSM believes that prompt replacement should typically provide: Emergency replacement, temporary replacement, and permanent replacement of a water supply. Upon notification that a user's water supply was adversely impacted by mining, the permittee should reasonably provide drinking water to the user within 48 hours of such notification. Within two weeks of notification, the permittee should have the user hooked up to a temporary water supply. The temporary water supply should be connected to the existing plumbing, if any, and allow the user to conduct all normal domestic usage such as drinking, cooking, bathing, and washing. Within two years of notification, the permittee should connect the user to a satisfactory permanent water supply. (60 FR 16727)
We believe that the State's proposed provision, which provides that if the operator demonstrates that providing a permanent replacement water supply cannot be accomplished within two years, the WVDEP Secretary may extend the time frame on a case-by-case basis, is not unreasonable and provides the WVDEP with appropriate flexibility while continuing to require a replacement permanent water supply. Overall, the State's provision at W. Va. Code 22-3-24(d) provides for emergency, temporary, and permanent replacement of a water supply that is no less effective than the Federal requirements.
We believe that the proposed flexibility is necessary because in some instances public water lines have to be extended by public service districts and in some rare instances these extensions may take longer than two years to complete. During this period, operators cannot provide the affected water supply owner a permanent water supply hook up. This may also be true in situations where private replacement wells are to be drilled, but drilling is delayed due to very unusual circumstances. In either situation, during the period of delay, the operator will have to post a performance bond in the amount of the estimated cost to replace the water supply, as provided by 30 CFR 817.121(c)(5). The State counterpart to this Federal provision at CSR 38-2-16.2.c.4 was previously approved by OSM on May 1, 2002 (67 FR 21918-21919). It essentially requires that an escrow bond be posted whenever water supply replacement takes longer than 90 days to complete. Therefore, we find that W. Va. Code 22-3-24(d), item (3), is not inconsistent with SMCRA section 720(a)(2), which requires prompt replacement of water supplies, or the Federal regulations at 30 CFR 817.41(j) concerning the prompt replacement of water supply, and it can be approved.
New subsection (e) is being amended by including a reference to subsection (d). As amended, it states that a water supply owner aggrieved under the provisions of subsection (d) may seek relief in court or under the State claims procedures. We find that the proposed revision is in accordance with SMCRA section 720(a)(2) and consistent with the Federal water replacement requirements at 30 CFR 817.41(j) and it can be approved.
The State proposes to redesignate Subsection (f) as subsection (g). Newly designated Subsection (g) limits the applicability of Subsection (c). While there have been no substantive changes in this new subsection, it is important to note that this provision was initially approved by OSM on November 12, 1999, with the understanding that it would not relieve an operator of replacing a water supply which is adversely affected by an underground mining operation. This same understanding continues in force (64 FR 61513).
Under new Subsection (h), an operator cannot discontinue providing water service to an owner of an adversely affected water supply until authorized by the WVDEP. In addition, with the enactment of Subsection (h), the water supply replacement provisions of W.Va. Code 22-3-24 apply to all surface and underground mining operations regardless of when the claim arose. We find that the proposed statutory provisions are not inconsistent with the Federal requirements at SMCRA sections 717(b) and 720(a)(2) and they can be approved.
Committee Substitute for House Bill 4135, which was passed by the Legislature on March 11, 2006, and signed into law by the Governor on April 4, 2006, amends CSR 38-2 by authorizing the WVDEP to promulgate legislative rules. The CSR 38-2-7.2 concerns premining and postmining land use categories. The CSR 38-2-7.2.e, concerning cropland land use category is amended by adding new paragraph 38-2-7.2.e.1 concerning “Bio-oil Cropland.” As amended, Subsection 7.2.e provides as follows:
7.2.e. Cropland. Land used primarily for the production of cultivated and close-growing crops for harvest alone or in association with sod crops. Land used for facilities in support of farming operations are included;
7.2.e.1. Bio-oil Cropland. Agricultural production of renewable energy crops through long-term intensive cultivation of close-growing commercial biological oil species (such as soybeans, rapeseed or canola) for harvest and ultimate production of bio-fuels as an alternative to petroleum based fuels and other valuable products;
The Federal regulations at 30 CFR 701.5, under the definition of “Land use” define “Cropland,” at paragraph (a) as land used for the production of adapted crops for harvest, alone or in rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops. While the Federal regulations do not specifically define “bio-oil” cropland, we find that as proposed, the State's definition of “Bio-oil Cropland” is consistent with and no less effective than the Federal definition of “Cropland” at 30 CFR 701.5 and it can be approved.
New Subsection 7.8, concerning bio-oil cropland, is added to provide as follows:
7.8. Bio-oil Crop Land.
7.8.1. Criteria for Approving Bio-oil Cropland Postmining Land Use.
7.8.1.a. An alternative postmining land use for bio-oil cropland may be approved by the secretary after consultation with the landowner and or land management agency having jurisdiction over state or federal lands: Provided, That [that] the following conditions have been met.
7.8.1.a.1. There is a reasonable likelihood for the achievement of bio-oil crop production (such as soybeans, rapeseed or canola) as witnessed by a contract between the landowner and a commercially viable individual or entity, binding the parties to the production of bio-oil crops for a measurement period of at least two years after the competition [completion] of all restoration activity within the permitted boundaries;
7.8.1.a.2. The bio-oil crop reclamation plan is reviewed and approved by an agronomist employed by the West Virginia Department of Agriculture. The applicants shall pay for any review under this section;
7.8.1.a.3. The use does not present any actual or probable hazard to the public health or safety or threat of water diminution or pollution;
7.8.1.a.4. Bio-oil crop production is not:
7.8.1.a.4.A. Impractical or unreasonable;
7.8.1.a.4.B. Inconsistent with applicable land use policies or plans;
7.8.1.a.4.C. Going to involve unreasonable delays in implementation; or
7.8.1.a.4.D. In violation of any applicable law.
7.8.2. Soil reconstruction specifications for bio-oil crop postmining land use shall be established by the W. Va. Department of Agriculture in consultation with the U. S. Natural Resources Conservation Service and based upon the standards of the National Cooperative Soil Survey and shall include, at a minimum, physical and chemical characteristics of reconstructed soils and soil descriptions containing soil-horizon depths, soil densities, soil pH, and other specifications such that constructed soils will have the capability of achieving levels of yield equal to, or higher that [than], those required for the production of commercial seed oils species (such as soybeans, rapeseed or canola) and meets the requirement of 14.3 of this rule.
7.8.3. Bond Release.
7.8.3.a. Phase I bond release shall not be approved until W. Va. Department of Agriculture certifies and the secretary finds that the soil meets the criteria established in this rule and has been placed in accordance with this rule. The applicants shall pay for any review under this section.
7.8.3.b. The secretary may authorize in consultation with the W. Va. Department of Agriculture, the Phase III bond release only after the applicant affirmatively demonstrates, and the secretary finds, that the reclaimed land can support bio-oil
7.8.3.c. Once final bond release is authorized, the permittee's responsibility for implementing the bio-oil cropland reclamation plan shall cease.
As noted above, W.Va. Code 22-3-24, CSR 38-2-7.8.1.a, 7.8.1.a.1 and 7.8.2 contain typographical errors. We have inserted words in brackets which are intended to correct those errors. The most substantive change concerns Subsection 7.8.1.a.1. Instead of competition, we believe that the State intends that the measurement period for bio-oil cropland last for at least two years after “completion” of all restoration activities within the permitted boundaries. We encourage the State to correct both typographical errors at its earliest convenience.
It is important to note that, as required by Subsection 7.8.2, constructed bio-oil cropland soils will have to achieve levels of yield equal to, or higher than those required for the production of commercial seed oil species (such as soybeans, rapeseed, or canola ) and meet the requirements of Subsection 14.3. Subsection 14.3 contains the topsoil requirements for all surface coal mining operations. In addition to meeting the reconstruction requirements of Subsection 7.8 as established by the West Virginia Department of Agriculture and the U.S. Natural Resources Conservation Service, all bio-oil cropland soils will have to meet the requirements of Subsection 14.3. The cross reference to subsection 14.3 ensures that Subsection 7.8.2 is no less effective than the Federal topsoil requirements at 30 CFR 816.22.
In addition, we should note that that bond release requirements at subsection 7.8.3.b provide that the WVDEP secretary may authorize final bond release, in consultation with the West Virginia Department of Agriculture, only after the applicant demonstrates and the secretary finds that (1) The reclaimed land can support bio-oil crop production, (2) there is a binding contract for that production, and (3) the requirements of Subsection 9.3.f.2 are met. Subsection 9.3.f.2 contains the reclamation success standards for areas to be used for cropland. Consistent with the Federal requirements at 30 CFR 816.116(c)(2), the State rules provide that, for areas to be used for cropland, the success of crop production from the mined area must be equal to or greater than that of the approved standard for the crop being grown over the last two consecutive growing seasons of the five growing season liability period, which commences at the date of the initial planting of the crop being grown. In addition to requiring that the area attain certain soil standards, the proposed rule requires a demonstration of actual bio-oil crop production. Because the proposed State rule references other requirements used to demonstrate attainment of revegetation success for cropland, we find that Subsection 7.8.3.b is no less effective than the Federal requirements at 30 CFR 816.116 and 800.40(c) and it can be approved.
The new provisions at CSR 38-2-7.8 provide supplemental criteria for the approval of bio-oil cropland as an alternative postmining land use for mountaintop removal mining operations with variances from AOC. The existing State provisions at W. Va. Code 22-3-13(c) and CSR 38-2-14.10 continue to provide the requirements for approval and the environmental performance standards for a mountaintop removal mining operation with a variance from AOC.
We note that the proposed provisions do not specifically provide that other applicable provisions of the approved State surface mining program continue to apply. However, there is nothing in proposed Subsection 7.8 that supersedes or negates compliance with other applicable provisions such as the permit approval requirements at W. Va. Code 22-3-22(c), the general provisions concerning premining and postmining land use at CSR 38-2-7.1, the alternative postmining land use requirements at CSR 38-2-7.3, the bond release requirements at CSR 38-2-12.2 or the topsoil requirements at CSR 38-2-14.3, as mentioned above. It is our understanding that the other applicable provisions of the West Virginia program will continue to apply to the extent they are consistent with promoting bio-oil cropland as an approved postmining land use for mountaintop removal mining operations with AOC variances. Therefore, we find that the State's proposed bio-oil cropland provisions at CSR 38-2-7.8, as described above, are consistent with and no less stringent than SMCRA section 515(c) concerning mountaintop removal mining operations with AOC variances, and no less effective than the Federal regulations governing mountaintop removal mining activities at 30 CFR 785.14 and they can be approved. Our approval of CSR 38-2-7.8 is based upon the understandings discussed above.
CSR 38-2-7.3 concerning criteria for approving alternative postmining use of land is amended by adding new paragraph 38-2-7.3.d to provide as follows:
7.3.d. A change in postmining land use to bio-oil cropland constitutes an equal or better use of the affected land, as compared with pre-mining use for purposes of W. Va. Code 22-3-13(c) in the determination of variances of approximate original contour for mountaintop removal operations subject to Subsection 38-2-7.8 of this rule;
SMCRA at section 515(c)(2) provides for a variance from the requirement to restore land to AOC for mountaintop removal mining operations in which an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except for areas required to be retained in place as a barrier to slides and erosion under section 515(c)(4)(A)) will be removed. SMCRA at section 515(c)(3) provides that in cases where an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed for the postmining use of the affected land, the regulatory authority may grant a permit for a surface mountaintop removal mining operation where, at section 515(c)(3)(A), after consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed to constitute an equal or better economic or public use of the affected land, as compared with premining use.
Proposed Subsection 7.3.d differs from section 515(c)(3)(A) of SMCRA and 30 CFR 785.14(c)(1)(i) in one important respect. Unlike its Federal counterparts, the State's proposed provision does not specifically require consultation with appropriate land use planning agencies, if any, on a permit-by-permit basis in order to determine whether bio-oil cropland is an equal or better use of the affected land, as compared with the premining use. Rather, CSR 38-2-7.3.d categorically states that a postmining land use of bio-oil cropland does constitute an equal or better use of the affected land, as compared with the premining use for purposes of W. Va. Code 22-3-13(c), which is the State's counterpart to SMCRA section 515(c) concerning AOC variance for mountaintop removal mining operations. Nevertheless, we believe that the West Virginia program at Subsection 7.3.d is not rendered less stringent than section 515(c)(3)(A) of SMCRA, or less effective than 30 CFR 785.14(c)(1)(i), for the following reasons.
Land use planning is a function of State law and land use planning agencies operate solely under a grant of authority under West Virginia law (W. Va. Code Chapter 8A, Articles 1 through 12). If the State Legislature elects to
Finally, we note that all the other requirements of the approved West Virginia program, including the alternative postmining land use approval criteria at CSR 38-2-7.3.a, will have to be met prior to the approval of an AOC variance for a mountaintop removal mining operation with a postmining land use of bio-oil cropland. Bio-oil cropland is an agricultural postmining land use that is one of the five approved postmining land uses provided for by W. Va. Code 22-3-13(c) for mountaintop removal mining operations with AOC variances; and, W. Va. Code 22-3-13(c)(3)(C) requires a determination that the proposed use would be compatible with adjacent land uses, and existing State and local land use plans and programs. Therefore, based upon the discussion above, we find that the proposed provision at CSR 38-2-7.3.d does not render the West Virginia program less stringent than SMCRA section 515(c)(3)(A) nor less effective than the Federal regulations at 30 CFR 785.14(c)(1)(i) and it can be approved.
In approving these requirements, we should note that it is our understanding that rapeseed and canola are not currently produced in West Virginia. Only soybeans are grown in commercial quantities within the State. According to the 2005 Agricultural Statistics Bulletin, West Virginia produced 828,000 bushels of soybeans in 2004. Mason and Jefferson Counties produced about 86 percent of the State's soybeans. Other unidentified counties produced 118,000 bushels of soybeans (USDA National Agricultural Statistics Service, 2005 West Virginia Bulletin No. 36 (Administrative Record Number WV-1465)). Currently, there are no coal mining activities in Mason or Jefferson Counties. Furthermore, it is believed that no soybeans were produced in counties where mountaintop removal mining activities occurred during 2005. The proposed rules are intended to encourage production of bio-crops in areas within the State where mountaintop removal mining activities occur in order to ease our Nation's dependency on foreign sources of oil.
During 2005, 70 percent of the State's surface coal production was produced by mountaintop mining operations, which include both steep slope and mountaintop removal mining operations. There were approximately 70 mountaintop mining operations in West Virginia in 2005. As mentioned above, mountaintop removal mining activities remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill. Steep slope mining activities do not remove the entire coal seam or seams and occur on slopes that are more than 20 degrees. It must be noted that the State's steep slope mining requirements at CSR 38-2-14.12.a.1, like the Federal requirements at SMCRA section 515(e)(2), do not provide for an approved postmining land use of agriculture, and therefore, steep slope mining operations cannot be approved with a postmining land use of bio-oil cropland. This postmining land use will be limited to only mountaintop removal mining operations with AOC variances.
As of April 2006, there were 65 biodiesel production plants in the United States (Administrative Record Number WV-1470). The total annual production of these plants is 395 million gallons. There are also plans to construct 50 new plants and to expand eight existing plants, according to the National Biodiesel Board. The anticipated annual production capacity for these plants will be 714 million gallons. The primary feedstock of most of these plants is soybean oil.
Currently, there are no production plants in the State that convert rapeseed, canola, or soybeans to bio-fuel. The closest plants are in Pennsylvania and Virginia. In April 2006, the West Virginia Department of Agriculture started a pilot project of selling soy-based bio-diesel. The biodiesel is sold at a farmers market in Berkeley County and purchased from a plant near Richmond, Virginia. Biodiesel is available for $3.89 per gallon, but the price is expected to decline as biodiesel supplies increase. This is one of three facilities (farmers markets) operated by the West Virginia Department of Agriculture (Administrative Record Number WV-1471).
Biodiesel is used to power farm machinery and school buses within the State. At least 13 counties in West Virginia use a biodiesel mixture to operate their school buses as reported by The Associated Press in
We published a
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Number WV-1463). We received comments from the U.S. Department of Labor, Mine Safety and Health Administration (MSHA) on June 27, 2006 (Administrative Record Number WV-1467). MSHA stated that its review revealed that none of the proposed changes are relevant to miners' health and safety. MSHA stated that it has determined that there is no inconsistency or conflicts with MSHA standards.
Under 30 CFR 732.17(h)(11) (ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record Number WV-1463). EPA responded by letter dated June 29, 2006 (Administrative Record Number WV-1468), and stated that it has reviewed the proposed revisions and has not identified any apparent inconsistencies with the Clean Water Act, Clean Air Act, or other statutes and regulations under EPA's jurisdiction. EPA also provided the following comments on the proposed use of bio-oil cropland for postmining land use.
EPA urged that bio-oil cropland be approved as a postmining land use for a particular mine only after due consideration is given to the broader watershed context in which the mine is located. If the mining proposal is part of, or should be made part of, a broader watershed mitigation or stewardship plan, the EPA stated, such a plan should take precedence over bio-oil cropland, particularly if the plan requires reforestation. In addition, the EPA stated, the impacts to downstream water quality from this kind of agricultural practice should also be considered in determining whether to approve bio-cropland for a particular mine. Tilling and fertilizing practices for bio-oil crops, the EPA stated, should be factored into potential downstream impacts as stressors to streams that may be already stressed from the mine in question as well as from mines, past and present, in other areas of the same watershed.
We concur with these comments and note that the approved State provisions currently require consideration of post-reclamation water quality. The State provisions at CSR 38-2-7.3 provide the criteria for approving an alternative postmining land use. Subsection 7.3.a.2 provides that an alternative postmining land use may be approved by the WVDEP Secretary if, among other required criteria, the use does not present any actual or probable hazard to the public health or safety or threat of water diminution or pollution. As discussed above, the State's proposed bio-oil cropland provisions at Subsection 7.8 do not supersede or negate the existing State provisions at CSR 38-2-7.3.
Based on the above findings, we are approving the program amendment West Virginia sent us on April 17, 2006 (Administrative Record Number 1462). To implement this decision, we are amending the Federal regulations at 30 CFR part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
This rule is exempt from review by the Office of Management and Budget 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, 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. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.
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 analysis performed under various laws and executive orders for the counterpart Federal regulations.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We are approving an amendment to the Wyoming regulatory program (“Program” or “Wyoming program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). It involves revisions to and additions of rules about bonding, revegetation and highwall retention. Wyoming intends to revise its program to be consistent with the corresponding Federal regulations, and clarify ambiguities and improve operational efficiency.
Jeffrey Fleischman, Telephone: 307/261-6550, E-mail address:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (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 conditions of approval in the November 26, 1980,
By letter dated October 24, 2005, Wyoming sent us an amendment to its program (Administrative Record No. WY-39-1) under SMCRA (30 U.S.C. 1201
The Federal regulation at 30 CFR 732.17(h)(10) requires that State program amendments meet the criteria for approval of State programs set forth in 30 CFR 732.15, including that the State's laws and regulations are in accordance with the provisions of the Act and consistent with the
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment in its entirety.
Wyoming proposed minor wording changes (from “SCS” to “NRSC,” (Natural Resources Soil Conservation) in Chapter 4, Section 2(d)(ix)) as well as an addition of an administrative paragraph (Chapter 15, Section 1(a)), to Wyoming's Coal Rules.
Because these changes to Wyoming's rules are minor and do not alter their meaning, we find that the revised rules are consistent with the corresponding Federal regulations.
Wyoming proposed revisions to its regulations for applications for bond release. These revisions are in response to a letter we sent dated June 19, 1997, under 30 CFR 732.17, informing Wyoming of changes to Federal regulations and the need to make corresponding changes to the State regulations. Wyoming's proposed revisions contain language that is nearly the same as the corresponding Federal provisions and is therefore consistent with the Federal regulations.
Wyoming proposes to add a new rule at Chapter 4, Section 2(d)(x)(J) to state that the Administrator (of Wyoming's Land Quality Division, (LQD)) may set technical success standards for cover and production based on data collected from undisturbed portions of the permit area or adjacent areas for a minimum of five independent sampling programs over a minimum of five years and that the technical success standards may be set for a single mine or a group of mines in the same geographical area.
The Federal regulations at 30 CFR 816.116(b)(1), and (2) require that for grazing land, pastureland, and cropland, the cover and production of the revegetated area shall be at least equal to that of the reference area or such other success standards approved by the regulatory authority. Wyoming states the purpose of the proposed rule is to provide an alternate method to evaluate revegetation success, specifically, the development of technical standards for cover and production. The proposed standards are calculated from baseline vegetation data and the cover and production of the reclaimed area would be compared to those standards.
Wyoming believes that a five-year period is necessary to account for differing climatic factors during the collection of baseline information for the development of these technical standards.
Vegetation does vary across Wyoming and within smaller regions such as the Powder River Basin. However, smaller sub-regions (such as the southern portion of the Powder River Basin) and individual permit areas may have similar vegetation that could lend itself, or might be conducive to, development of technical standards. Mine operators could opt to apply for mine-specific technical standards in the event the LQD has not developed standards for the sub-region in which the mine is located. Alternatively, an operator could apply to “fine tune” technical standards developed by LQD for a particular sub-region.
We have determined that the new technical standards Wyoming proposes to allow permittees to use are representative of unmined lands in the area being reclaimed. They were developed using baseline vegetation information collected from areas proposed for mining thereby ensuring that the success standards will be representative of the extent of cover compared to the cover occurring in the natural vegetation of the area. For these reasons, we find Wyoming's new technical standards to be consistent with the Federal regulations.
Wyoming proposes changing Section 2(d)(x)(E)(III) to require that trees be returned to a number equal to the premining number by substituting the word “number” for the word “density”. In its submission, Wyoming states the proposed rule clarifies that the standard is the number of trees (sometimes the number of trees per species) on the affected lands, not on a unit area. Wyoming also proposes revisions to Section 2(d)(x)(F) to allow the inclusion of volunteer trees in evaluations of revegetation success. The revised rule requires that on affected lands, the total number of postmining trees must be at least equal to the premining total number on those lands. The reclamation plan will be required to specify the tree species, the number per species, and the location of tree plantings. To be included in success measurements, volunteer tree species which invade the reclaimed lands must support the postmining land use and must be approved by the Administrator. Planted trees must be healthy, and at least 80 percent must have been planted for at least eight years. Invading trees that are counted to meet the approved stocking rate must be healthy and may be of any age. Preference is given to those species that are native or which are known not to be “weedy” (e.g. species approved by the Natural Resources Conservation Service). Wyoming states that trees that invade indicate an evolving self-renewing ecosystem and therefore the age of trees that invade is not an issue as long as they are healthy.
The Federal regulation at 30 CFR 816(a)(2) requires, in part, that standards for success shall include criteria representative of unmined lands in the area being reclaimed. 30 CFR 816.116(b)(3) establishes criteria for revegetation success standards for tree and shrub establishment.
OSM agrees with Wyoming that the proposed wording change from “density” to “number” reflects the actual intent of the existing rule language, which is replacement of premine tree numbers. It should be noted that replacement of premine tree numbers is the same as replacement of premine tree density (total number of trees over the total disturbed area).
We also agree with Wyoming's proposal to include volunteer trees that support the postmining land use and are not considered weedy. Section 515(b)(19) of the Act requires the operator to establish vegetation that is “capable of self-regeneration and plant
Wyoming proposes to revise Section 2(d)(xiv) to require that the operator must control and minimize the introduction of noxious weeds in accordance with Federal and State requirements until bond release.
Section 2(d)(xiv) currently requires that in those areas where there were no or very few noxious weeds prior to being affected by mining, the operator must control and minimize the introduction of noxious weeds into the revegetated areas for a period of at least five years after the initial seeding.
The Federal regulation at 30 CFR 816.111(b)(5) requires, in part, that reestablished plant species shall meet the requirements of applicable State and Federal noxious plant laws or regulations.
In its submission, Wyoming indicated that the current rule was enacted in 1975 prior to the passage of SMCRA when the State's time period for bond release was five years. The intent of the original rule was to control noxious weeds until bond release. The period for bond release is now ten years as required by SMCRA. While Wyoming's current rule was found to be consistent with the Federal rule when the Wyoming Program was approved in 1980, OSM revised the Federal rule in 1983. Wyoming's current rule could be interpreted to mean that noxious weeds are only controlled for the first five years after seeding. The Federal rule does not include a time restriction for the control of noxious weeds. To clarify and ensure consistency, with the ten year liability period, the existing language concerning five years has been struck and replaced with “until bond release.”
The proposed State rule ensures that control of noxious weeds will continue throughout the period of responsibility in accordance with State and Federal requirements. This is consistent with the Federal regulations.
The revised rule will require that the Administrator not release the entire bond of any operator until such time as revegetation is complete, if revegetation is the method of reclamation as specified in the operator's approved reclamation plan. Revegetation shall be deemed to be complete when: (1) The vegetation cover of the affected land is shown to be capable of renewing itself under natural conditions prevailing at the site, and the vegetative cover and total ground cover are at least equal to the cover on the area before mining; (2) the productivity is at least equal to the productivity on the area before mining; (3) the species diversity and composition are suitable for the approved postmining land use; and (4) the requirements in (1), (2), and (3) are met for the last two consecutive years of the bonding period for those mines using native area comparisons, or the requirements in (1), (2), and (3) are met for two out of four years beginning no sooner than year eight of the bonding period for those mines using technical standards.
In addition, Subsections III.A.8 and VIII.A.4 of Appendix A are being revised to require attainment of cover, production, diversity and composition requirements for the last two consecutive years for those mines using reference areas, or for those mines using an approved technical standard two out of four years beginning no sooner than year eight of the bonding period.
The Federal regulation at 30 CFR 816.116(c)(3)(i) requires, in part, that in areas of 26 inches or less average annual precipitation, vegetation parameters identified in paragraph (b) of this section shall equal or exceed the approved success standard for at least the last two consecutive years of the responsibility period. The major difference between the Federal regulation and Wyoming's proposal is that Wyoming's proposal would allow measurement in nonconsecutive years for areas evaluated using a technical standard.
In discussing the proposed change in the timeframes for evaluating revegetation success, the State has indicated that the climatic conditions in Wyoming vary greatly from one year to the next. The climatic variability is not considered a problem in the use of a reference area because the reference area would be impacted by drought or other adverse environmental conditions in a manner similar to the corresponding reclaimed area. However, the climatic variability may impact an operator's ability to achieve two consecutive years of vegetation success when using a technical standard because the standard would not be based on drought conditions but on a mean or median of several years of differing climatic conditions (see approval of the use of technical standards in this review under Chapter 4, Section 2(d)(x)(J)). Wyoming hopes that allowing success to be measured in two out of four years beginning no sooner that year eight in lieu of requiring measurement in consecutive years will encourage operators to start bond release demonstrations sooner. Wyoming notes that the existing requirement for success to be measured in consecutive years means a failure to meet the criteria during the second year of sampling will force the sampling period to start over.
Wyoming also notes that OSM regulations recognize climatic variability in the east and operators can meet the bond release criteria in any two years after year one. Wyoming states that eastern states have only a five-year bond period due to the amount of rainfall received and the positive effect the added moisture has on the ability to meet reclamation standards. Conversely, the western states have a ten-year bond period because of the limited rainfall and the longer time required for vegetation to become established during reclamation.
Originally the Federal regulation applicable for areas with greater than 26 inches of annual precipitation (30 CFR 816.116(c)(2)) required success standards to be met for the last two consecutive years of the responsibility period. This regulation was amended (53 FR 34636, September 7, 1988) to allow the standard to be met during any two years of the five year responsibility period excluding the first year for areas with a land use of crop land, pasture land or grazing land, and only for the last year for all other postmining land uses. The change eliminated the requirement to measure revegetation success during the last two (consecutive) years of the responsibility
Previously, we approved New Mexico regulations stating that ground cover and productivity shall equal the approved standard for at least two of the last four years, starting no sooner than year eight of the responsibility period. New Mexico, like Wyoming, experiences less than 26 inches of annual precipitation. We based our approval on the fact that the climatic variability of New Mexico was greater than that in areas with greater than 26 inches of precipitation. We stated it is appropriate to avoid penalizing permittees in New Mexico for the negative effects of climatic variability (the same reasoning used for areas receiving greater than 26 inches of precipitation). See New Mexico's approval at 65 FR 65770, November 2, 2000.
Wyoming's mines are located in areas that represent variable precipitation ranges as shown on the table below. The data in the following table is from the monthly climate data, Western Regional Climate Center (
As seen in the table above, the coefficient of variation (a measure of the variability of the data) for the Wyoming locations is greater than the Henderson, Kentucky, location, which is representative of conditions in the east. Given the variability in precipitation, a dry year may present an obstacle to the second year of revegetation success sampling, particularly when the success standard is a technical standard based on a cover or production mean or median from several years of sampling during differing climatic conditions. Flexibility in vegetation success sampling is needed to skip the drought year(s), and allow the operator to sample in one of the two following non-consecutive years. A demonstration of successful revegetation following a drought would clearly indicate the revegetation could withstand drought and the variable climatic conditions. Arguably, revegetation that is capable of meeting the performance standards both before and after a period of drought or pestilence would provide a better demonstration of resilience, effectiveness, and permanence than revegetation meeting the standards during two consecutive years of more or less normal precipitation and damage. The likelihood of drought in Wyoming needs to be recognized. The proposed rule changes ensure that performance standards will be met without undue costs or extensions of the ten year liability period.
Wyoming's proposed rules prohibit the inclusion of measurements taken during the first seven years of the responsibility period and are applicable only to reclaimed areas using technical standards for evaluation of revegetation success. This ensures that the plants will have the opportunity to become well established prior to any evaluation of the vegetation. This also provides the same level of flexibility in evaluating revegetation success provided by the Federal regulations for States receiving more than 26 inches of precipitation. The proposed rules do not affect the length of the extended period of responsibility, which is 10 years in Wyoming.
The preamble to 30 CFR 816.116(c)(3)(i) published in the
Wyoming's proposed rules at Chapter 4, Section 2(d)(x)and Appendix A, Subsections III.A and VIII.A are consistent with the corresponding Federal regulations at 30 CFR 816.116(c)(3) and in accordance with the achieving the revegetation requirements of sections 515(b)(19) and (b)(20) of SMCRA.
Wyoming is proposing in Section 2(b)(iv) to allow the retention of limited stretches of highwall to replace escarpments and cliffs that exist naturally in the area of the mine prior to the mine operations. Previously. OSM approved similar provisions for the New Mexico and Utah State regulatory programs (45 FR 86464, December 31, 1980 and 60 FR 28040, May 30, 1995).
In the New Mexico and Utah approvals, OSM required the State programs to contain the following provisions: (1) Requirement for regulatory authority approval; (2) restrictions on allowable height and length of the retained highwall in relation to natural escarpments and cliffs; (3) requirement that a retained highwall replace a preexisting cliff or similar natural premining feature that was removed by the mining operation; and (4) requirement for the permit applicant to demonstrate that the retained highwall feature is stable and will achieve a long term static safety factor of 1.3 and will not pose a hazard to the public health and safety. With these restrictions, OSM found provisions for limited highwall retention in the New Mexico and Utah regulatory programs to be in accordance with the requirements in section 515(b)(3) of the Act and consistent with 30 CFR 816.102(a)(2) to backfill and grade to achieve the approximate original contour (AOC). AOC in these requirements includes the provision to eliminate all highwalls. The establishment of the above restrictions, however ensures that for a limited stretch of highwall to be retained, it must replace a similar feature that exists in the original contours thereby meeting the requirement to restore AOC. In the approval of the provision for New Mexico, OSM found that if an operator
Wyoming's provisions for highwall retention to replace existing natural features are contained in Chapter 4, Section 2(b)(iv) of Wyoming's Coal Rules. As we required in the Utah and New Mexico programs, Wyoming requires the features to be approved by the regulatory authority (Administrator). In addition, Wyoming's provisions ensure stability and a factor of safety of 1.3; contain restrictions on allowable height and length in relation to premine features; require restoration of wildlife habitat; and replacement of natural features that were mined out or are planned to be mined out under the current mine plan. For these reasons, we find Wyoming's provisions for highwall retention to be in accordance with section 515(b)(3) of SMCRA and consistent with 30 CFR 816.102(a)(2).
Wyoming proposes to revise this rule to eliminate the requirement that the revegetated area be capable of withstanding grazing pressure at least comparable to that which the land could have sustained prior to mining unless Federal, State or local regulations prohibit grazing on such lands. There is no Federal counterpart to this Wyoming Coal Rule.
The State requirement now being eliminated corresponded to Federal regulations promulgated in 1979 at 30 CFR 816.115, but removed by OSM on September 2, 1983 (48 FR 40160) in response to a U.S. District Court ruling “Permanent Surface Mining Regulation Litigation,” No. 79-1144 (D.D.C., February 26, 1980). Eliminating Wyoming's requirement is consistent with the Federal regulations.
Wyoming proposes to reinstate its shrub goal rule for the postmining land use of grazing and wildlife and also clarify that this is to be applied from May 3, 1978, to August 6, 1996. The rule establishes postmining requirements for density, composition and distribution of shrubs. There is no Federal counterpart to this Wyoming Coal Rule.
In its submission, Wyoming indicated that in 1978 rules were adopted that required shrubs to be replaced to a density equal to the premining density. For the postmining land use of grazing land and wildlife, and other areas, the amount of shrubs required by the rule was not desirable. In 1981, Wyoming changed the rules to establish a goal of returning shrubs to one shrub per square meter across 10% of the reclaimed lands. In 1996, a rule was approved which changed the requirement for the reestablishment of shrubs from a 10% goal to a 20% standard. The effective date of the new rules was the date those rules were approved by OSM. Lands disturbed before that date retained the shrub goal requirement.
Unfortunately, the 1996 rule inadvertently deleted the shrub goal rule. The deletion of the shrub goal rule was an oversight, and it was intended that the shrub goal rule still applied to those lands affected after the initial date of the shrub reestablishment requirement (1978) and prior to the approval of the shrub standard rule (1996). In practice, both the LQD and the operators have been working with the understanding that the shrub goal would be reinstated.
The proposed change reinstates the goal and clarifies that prior to May 3, 1978, there was no specific requirement for shrub reestablishment. The change clarifies that the shrub goal is to be applied from May 3, 1978, to August 6, 1996.
OSM concurs with Wyoming's analysis of the shrub density requirements applicable to lands reclaimed under Wyoming's regulatory program. Since neither SMCRA nor the Federal regulations contain shrub goals, Wyoming's proposal to reinstitute this previously-approved rule is consistent with the Federal regulations.
We asked for public comments on the amendment (Administrative Record No. WY-39-3), but did not receive any from State agencies or individuals. Since no one requested a public hearing or meeting, none was held.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Wyoming program (November 1, 2005, Administrative Record No. WY-39-3).
The U.S. Fish and Wildlife Service (FWS or the Service) commented in a December 23, 2005, memorandum (Administrative Record No. WY-39-06), and the Bureau of Land Management (BLM) commented in a November 30, 2005, e-mail (Administrative Record No. WY-39-05). The U.S. Department of Agriculture's Natural Resources Conservation Service (NRCS) also commented in a November 28, 2005, letter (Administrative Record No. WY-39-04).
NRCS stated that it reviewed the Amendment and had no comments.
BLM stated that the requirement in existing Section 2(b) Backfilling, Grading and Contouring, for covering the uppermost minable coal seam should be changed from 4 feet to at least 20 feet. BLM states this is necessary to “prevent outcrop burn in the future” and that “this is important in SW Wyoming.”
The State's proposed revision is only applicable to areas subject to the AOC Alternative. OSM's regulation in this matter, 30 CFR 816.102(f), that all exposed coal seams be “adequately covered,” and does not define a minimum depth. Wyoming stated that, while 4 feet is the minimum cover requirement, it often requires 10 or 15 feet or more depending upon the circumstances. The preamble to 30 CFR 816.102(f) (see 48 FR 23362, May 24, 1983) rejects a national standard for cover thickness and relies on the regulatory authority to set whatever standards, specific or otherwise, which provide the best solution within the State. The State's proposed regulation requiring a minimum of 4 feet of cover is consistent with the Federal provisions. Wyoming can require additional depth should it determine that is necessary.
The FWS stated that it “supports the rule package as written;” however, it was providing specific comments that it believed would assist in clarifying the rule changes. The FWS provided seven specific comments listed below. Each comment is followed by OSM's response:
1.
2.
3.
4.
5.
6.
7.
Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. WY-39-3). EPA did not respond to our request.
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On November 1, 2005, we requested comments on Wyoming's amendment (Administrative Record No. WY-39-3), but neither responded to our request.
Based on the above findings, we approve Wyoming's October 24, 2005 amendment, as discussed in: finding no. A; finding no. B; findings no. C.1, C.2, C.3, C.4, and C.5; and finding nos. D.1, and D.2.
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 (Regulatory Planning and Review).
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
In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 CFR 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. 3501
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), 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.
30 U.S.C. 1201
Mitigation Division, Federal Emergency Management Agency (FEMA), Department of Homeland Security.
Final rule.
This rule identifies communities that are participating and suspended from the National Flood Insurance Program (NFIP). These communities have applied to the program and have agreed to enact certain floodplain management measures. The communities' participation in the program authorizes the sale of flood insurance to owners of properties located in the communities listed below.
Flood insurance policies for properties located in the communities listed below can be obtained from any licensed property insurance agent or broker serving the eligible community or from the NFIP by calling 1-800-638-6620.
David H. Stearrett, Chief, Floodplain Management Section, Risk Reduction Branch, Mitigation Division, 500 C Street, SW., Washington, DC 20472, (202) 646-2953.
The NFIP enables property owners to purchase flood insurance that is generally not otherwise available. In return, communities agree to adopt and implement local floodplain management regulations that contribute to protecting lives and reducing the risk of new construction from future flooding. Because the communities on the attached list have recently entered the NFIP, subsidized flood insurance is now available for properties in these communities.
FEMA has identified the Special Flood Hazard Areas (SFHAs) in some of these communities by publishing a Flood Hazard Boundary Map (FHBM) or Flood Insurance Rate Map (FIRM). The date of the flood map, if one has been published, is indicated in the fourth column of the table. In the communities listed where a flood map has been published, Section 202 of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4016(a), requires the purchase of flood insurance as a condition of Federal or Federally-related financial assistance for acquisition or construction of buildings in the SFHAs shown on the map.
The Administrator finds that delayed effective dates would be contrary to the public interest and that notice and public procedure under 5 U.S.C. 553(b) are impracticable and unnecessary.
Flood insurance, Floodplains.
42 U.S.C. 4001
The tables published under the authority of § 64.6 are amended as follows:
In Title 48 of the Code of Federal Regulations, Parts 52 to 99, revised as of October 1, 2005, on pages 32 and 33, section 52.208-9 is corrected to read as follows:
As prescribed in 8.004, insert the following clause:
(a) Certain supplies or services to be provided under this contract for use by the Government are required by law to be obtained from nonprofit agencies participating in the program operated by the Committee for Purchase From People Who Are Blind or Severely Disabled (the Committee) under the Javits-Wagner-O'Day Act (JWOD) (41 U.S.C. 48). Additionally, certain of these supplies are available from the Defense Logistics Agency (DLA), the General Services Administration (GSA), or the Department of Veterans Affairs (VA). The Contractor shall obtain mandatory supplies or services to be provided for Government use under this contract from the specific sources indicated in the contract schedule.
(b) The Contractor shall immediately notify the Contracting Officer if a mandatory source is unable to provide the supplies or services by the time required, or if the quality of supplies or services provided by the mandatory source is unsatisfactory. The Contractor shall not purchase the supplies or services from other sources until the Contracting Officer has notified the Contractor that the Committee or a JWOD central nonprofit agency has authorized purchase from other sources.
(c) Price and delivery information for the mandatory supplies is available from the Contracting Officer for the supplies obtained through the DLA/GSA/VA distribution facilities. For mandatory supplies or services that are not available from DLA/GSA/VA, price and delivery information is available from the appropriate central nonprofit agency. Payments shall be made directly to the source making delivery. Points of contact for JWOD central nonprofit agencies are:
(1) National Industries for the Blind (NIB), 1901 North Beauregard Street, Suite 200, Alexandria, VA 22311-1705, (703) 998-0770.
(2) NISH, 2235 Cedar Lane, Vienna, VA 22182-5200, (703) 560-6800.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
The Federal Motor Carrier Safety Administration (FMCSA or the Agency) adopts as final, with minor changes, its interim regulations as published in the
David Mancl, phone (202) 493-0442, e-mail
Section 205 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 113 Stat. 1748] amended 49 U.S.C. 13902 by authorizing the Secretary of Transportation to place out of service vehicles operated by motor carriers that fail to comply with registration requirements under 49 U.S.C. 13902. Paragraph (e)(1) of section 13902 reads as follows:
(e) Penalties for failure to comply with registration requirements.—In addition to other penalties available under law, motor carriers that fail to register their operations as required by this section or that operate beyond the scope of their registrations may be subject to the following penalties:
(1) Out-of-service orders.—If, upon inspection or investigation, the Secretary determines that a motor vehicle providing transportation requiring registration under this section is operating without a registration or beyond the scope of its registration, the Secretary may order the vehicle out-of-service. Subsequent to the issuance of the out-of-service order, the Secretary shall provide an opportunity for review in accordance with section 554 of title 5, United States Code; except that such review shall occur not later than 10 days after issuance of such order.
Under 49 CFR 1.73(a)(5), the Secretary's authority to carry out the functions relating to section 13902 registration requirements is delegated to the FMCSA Administrator. On August 28, 2002 (67 FR 55162), FMCSA published an interim final rule (IFR) implementing section 205 by requiring that a vehicle providing transportation requiring registration under 49 U.S.C. 13902 be ordered out of service if determined to be operating without registration or beyond the scope of the carrier's registration. Accordingly, the IFR and this final rule are authorized by section 13902(e).
The IFR added a new section (392.9a) to 49 CFR part 392 to prohibit a commercial motor vehicle (CMV) providing transportation requiring registration under 49 U.S.C. 13902 from operating unless the carrier complies with the registration requirements. For example, a motor carrier fails to obtain registration pursuant to section 13902 but is later discovered hauling appliances in a CMV for a department store from one State to another. Under 49 CFR 392.9a(b), the vehicle would be placed out of service and the carrier may be subject to additional penalties under 49 U.S.C. 14901. Under 49 CFR 392.9a(c), the carrier would be entitled to a hearing to review the out-of-service order within 10 days of the issuance of the order. In addition, the IFR amended the reference to registration requirements enforced by the States in 49 CFR 350.201(t)(1) to add 49 CFR 392.9a.
The IFR became effective September 27, 2002 and closed a loophole that could have been used to circumvent the Federal Motor Carrier Safety Regulations (FMCSRs). Before the issuance of the IFR, motor carriers who operated without registration would be cited for a violation during a roadside inspection and then be allowed to continue operating.
The States are currently required to enforce these registration requirements as a condition for receiving Motor Carrier Safety Assistance Program (MCSAP) funds. States had until September 27, 2005 to adopt the new regulations. To date, all States have adopted 49 CFR 392.9a. The States, acting through the Commercial Vehicle Safety Alliance (CVSA), have amended or revised their enforcement tolerances (the North American Standard Out-of-Service Criteria) to include a new part for registration enforcement to ensure uniformity in implementing section 205 of MCSIA. From the September 2002 effective date through May 2004, FMCSA completed 840 enforcement reports citing violations of 49 CFR 392.9a. Out of 4,405 violations discovered, 1,315 counts were asserted in Notices of Claim. FMCSA settled 1,045 of these counts with penalties totaling $1,109,648.00.
Since implementation of the IFR, operational experience with 49 CFR 392.9a has been positive, although a few problems have been identified. Most issues that have arisen in implementing the IFR could be resolved through policy directives rather than regulatory change but a few issues are best resolved by minor revisions in the rule text.
1. The use of the word “registration” has been inconsistently interpreted by Federal and State enforcement personnel because the term is used in several different contexts at the Federal and State levels. Enforcement personnel have mistakenly cited other registration violations, such as vehicle registration and failure to submit the MCS-150, under 49 CFR 392.9a. FMCSA has revised the rule to make it easier to understand and has replaced the term “registration” with the term “operating authority” in 49 CFR 350.201(t) and 49 CFR 392.9a. The final rule amends the definitions in 49 CFR 390.5 to include the term “operating authority.” This definition clarifies that operating authority means registration required under 49 U.S.C. 13902.
2. Currently, the definition of “out-of-service order” in 49 CFR 390.5 includes references to other parts of the FMCSRs that specifically call for a driver or vehicle to be placed out of service. Adding 49 CFR 392.9a to the definition of out-of-service order in 49 CFR 390.5 updates this definition to reflect FMCSA's current out-of-service rules.
3. Since the effective date of the IFR, numerous violations of 49 CFR 392.9a have been discovered. To strengthen the quality of data FMCSA collects in the Motor Carrier Management Information System (MCMIS), it is more effective to list the two violations separately rather than listing both violations in the same paragraph. The final rule lists operating without authority as 49 CFR 392.9a(a)(1) and operating beyond the scope of authority as 49 CFR 392.9a(a)(2). This clarifies which violation is being cited in enforcement actions.
FMCSA received 18 public comments on the IFR from 17 commenters. Commenting were seven State Police and State DOTs—Iowa DOT (Iowa), Oregon DOT (Oregon), Idaho State Police (Idaho), Georgia Department of Motor Vehicle Safety (Georgia), New York State DOT and New York Division of State Police (New York), California Highway Patrol (California), and Missouri State Highway Patrol (Missouri); four trade associations—National School Transportation Association (NSTA), Health and Personal Care Logistics Conference (H&PCLC), Pennsylvania Farm Bureau (PA Farm Bureau), and American Bus Association (ABA); one North American enforcement association—Commercial Vehicle Safety Alliance; three motor carriers—Wertz Motor Carriers (Wertz), United Parcel Service (UPS), and Adirondack Transit Lines, Inc. (Adirondack); one individual—Ken Carr; and Advocates for Highway and Auto Safety (Advocates).
Of the 18 comments, four (from Iowa, Wertz, Advocates, and Adirondack) supported the IFR and the resulting enforcement actions. One comment (from CVSA) suggested that the term “out-of-service” be changed to “cease operations” in several locations. This comment was addressed separately in FMCSA's disposition of a September 4, 2003 petition submitted by CVSA. In its petition, CVSA requested amending the FMCSRs by changing the term “out-of-service” to “cease operations.” CVSA also proposed adding a definition for the term “cease operations order” to 49 CFR 390.5. FMCSA was not able to
The other comments are discussed below together with FMCSA's responses on the issues raised.
Several comments concerned training materials and training sessions for employees and the databases that will be used for roadside inquiries. Another concern with implementation is the requirement that the States adopt this rule and implement it as part of their standard roadside inspection. As the Missouri State Highway Patrol stated, “This places the entire enforcement effort on the shoulders of the state MCSAP agencies, agencies that do not process registration forms nor grant operating authority.” CVSA stated that most jurisdictions do not have the legislative authority to enforce the requirements. Commenters pointed out that to avoid issuing erroneous out-of-service orders for administrative violations, enforcement personnel must base such orders on accurate and real-time registration information. Those commenters suggested that currently this information must be obtained from several databases, which are not all sufficiently accurate and consistent even if they could be made available to enforcement personnel at any time. Several States, including Idaho, Georgia, and New York, have questioned the reliability of FMCSA's database to provide quality information in a timely manner. Comments have also arisen concerning the need for training of inspectors to help them identify when a carrier is required to have operating authority. Idaho suggested that States will need time to phase in the requirements because of training issues. New York argued that FMCSA will need to provide training to States.
FMCSA is currently developing training materials and incorporating the requirements for operating authority into existing courses to help the roadside officer or inspector identify when operating authority is required. This training will also address which operating authority violations discovered result in placing the vehicle out of service. To ensure proper enforcement, FMCSA will continually review policies and procedures to identify the training needs necessary to fully implement and enforce this rule.
FMCSA and the States currently identify out-of-service violations through the FMCSRs and the CVSA's North American Standard Out-of-Service Criteria (CVSA Criteria). The FMCSRs require compliance with all applicable requirements at all times. The FMCSRs are the real out-of-service criteria. The CVSA Criteria represent enforcement tolerances and ensure that the decision by Federal and State personnel to place a vehicle out of service is not an arbitrary action based solely on the discretion of the inspector. The use of the CVSA Criteria by State officials is covered through either a documented policy or State laws and regulations. This process will continue. To date, all States have adopted and are enforcing the provisions of the rule.
Some commenters argued that FMCSA has inappropriately determined that out-of-service orders be mandatory for any registration violation, even administrative violations that are not based on safety concerns. Ken Carr stated, “I question the proposition that failure to register or operating beyond the scope of registration rises to that level.” Given their limited resources, States are concerned that the time enforcement personnel spend on placing these vehicles out of service could be better spent on getting hazardous vehicles off the road. As Georgia pointed out, “* * * the time spent by enforcement personnel to run down the information takes officers away from time that could be spent doing more safety inspections.”
Commenters, including Oregon, H&PCLC, ABA, Missouri, and New York, also stated that operating authority violations are not an imminent hazard and CMVs should not be placed out of service during a roadside inspection. They recommend that these violations be noted on the inspection report and forwarded to the local FMCSA office. The local FMCSA office would make contact with the company and place the entire fleet out of service if the investigation confirmed the violation. Once the carrier's operation has been placed out of service, any of the carrier's vehicles discovered to be operating could be placed out of service by the roadside officer or inspector.
In order to restrict commercial highway transportation to those entities having the appropriate operating authority and possessing adequate insurance, FMCSA specifically mandated placing out of service any driver and vehicle discovered to be operating without the required authority or beyond the scope of the carrier's authority. Prior to this requirement, unauthorized or improperly authorized drivers and vehicles could travel our Nation's highways unchecked. FMCSA believes this action—the placing of a vehicle out of service during a roadside inspection when the carrier operating that vehicle is operating without authority or beyond the scope of its authority—is necessary in light of the current heightened security environment. FMCSA further believes that this action ensures that all carriers are apprised of and compliant with the applicable FMCSRs, operate only within the scope of their authority, and operate safe vehicles within the United States. Given FMCSA's mission of ensuring safe transportation, it is incumbent upon the Agency to close this potential loophole. As further discussed under Rulemaking Analyses and Notices later in this rule, experience has taught FMCSA that carrier noncompliance with the operating authority requirements correlates with carrier noncompliance with the safety regulations.
In response to the suggestion that FMCSA put the carrier's entire fleet out of service, 49 U.S.C. 13902(e)(1) states that if, upon inspection or investigation,
Certain categories of CMV operations are exempted by 49 U.S.C. 13506 from the operating authority (registration) requirement of 49 U.S.C. 13902. NSTA requested clarification concerning the exemption at 49 U.S.C. 13506(a)(1) for “a motor vehicle transporting only school children and teachers to or from school.” NSTA noted that during the period from 1976 through 1984, the former Interstate Commerce Commission (ICC) issued “rulings that established an interpretation of the exemption to include interstate transportation of students in school buses on trips that are directly connected with school-related activities and are sponsored and supervised by school authorities.” It requested FMCSA to support this interpretation and clarify that the exemption includes for-hire motor carriers transporting students to school-related activities across State lines.
The PA Farm Bureau, while not requesting that agricultural-related commercial vehicle operations be exempted from section 13902, commented on the disproportionate burden an out-of-service order could place on certain agricultural operations, such as livestock hauling, transportation of perishable commodities, and agricultural-operation owners driving their own farm vehicles. The PA Farm Bureau requested that trucks licensed as farm vehicles under State law not be automatically placed out of service when found in violation of the registration requirement.
With regard to the PA Farm Bureau's comment, 49 CFR part 372, subpart A—Exemptions contains several provisions implementing 49 U.S.C. 13506. 49 CFR 372.115 includes a list of commodities that are not exempt under 49 U.S.C. 13506(a)(6). Under this statute, motor vehicles used in carrying ordinary livestock, fish, and manufactured agricultural commodities are exempt from the section 13902 operating authority requirements.
FMCSA has determined that this action is a non-significant regulatory action within the meaning of Executive Order 12866 and DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). FMCSA's full Final Rule Regulatory Evaluation, explaining in detail the estimated cost impacts of the rulemaking, is in the docket. This Final Rule results in no changes to the Regulatory Evaluation of the IFR.
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies to take small businesses' particular concerns into account when developing, writing, publicizing, promulgating, and enforcing regulations. FMCSA has prepared a Final Regulatory Flexibility Analysis (FRFA) of this rule and has determined that this rule will not impose a significant economic impact on a substantial number of small entities.
Using the Small Business Administration's criteria, FMCSA estimates that 75 to 80 percent of motor carriers are small. Thus, this rule could theoretically affect a large number of motor carriers. However, the rule does not impose any new requirement on these motor carriers. It merely increases the penalty for carriers operating without the required operating authority or beyond the scope of their authority.
More details on our evaluation can be found in the FRFA in the docket.
This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999 (64 FR 43255, August 10, 1999). FMCSA has determined that this action does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.
As we stated in the IFR (67 FR 55163), FMCSA administers a grant-in-aid program, MCSAP, as an incentive for State enforcement of motor carrier safety regulations. As a condition of participating in this program, States are required to adopt and enforce safety regulations compatible with the FMCSRs and the hazardous materials regulations. Section 207 of MCSIA required States, as a condition of receiving MCSAP funds, to cooperate in the enforcement of FMCSA's authority and financial responsibility requirements. In revising the agency's MCSAP regulations in March 2000 (65 FR 15102), FMCSA required the States to enforce the authority and financial responsibility requirements [49 CFR 350.201(t)]. The IFR clarified how the States are to implement their enforcement responsibilities by specifying that vehicles shall be placed out of service if discovered to be operated in violation of the authority requirements. The final rule makes no substantive changes to this requirement.
The basic nature of MCSAP and the level of total funding for the program are not affected by these changes. Nothing in this document preempts any State law or regulation. Therefore, this rulemaking does not have sufficient Federalism implications to warrant consultation with State and local elected officials or their representative national organizations early in the process of developing this proposed regulation, or in the preparation of a federalism summary impact statement.
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. The act requires that any agency promulgating a final rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the act. FMCSA uses a threshold value of $120.7 million, which is the value of 100 million 1995 dollars inflated to 2003 dollars. FMCSA has determined that this rulemaking will not have an impact of $120.7 million or more in 2003 dollars in any one year.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The Agency analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) [42 U.S.C. 4321
We have also analyzed this proposed rule under the Clean Air Act (CAA), as amended section 176(c) [42 U.S.C. 7401
This rule is not economically significant and does not concern an environmental risk to health or safety that would disproportionately affect children. The Agency has determined that this rule is not a “covered regulatory action” as defined under Executive Order 13045. First, this rule is not economically significant under Executive Order 12866 because FMCSA has determined that the changes in this rulemaking would not have an impact of $100 million or more in any one year. Second, the Agency has no reason to believe that the rule would result in an environmental health risk or safety risk that would disproportionately affect children.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This action is not a significant energy action within the meaning of section 4(b) of the Executive Order because it is not economically significant and will not have a significant adverse effect on the supply, distribution, or use of energy.
This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Grant programs—transportation, highway safety, motor carriers.
Highway safety, motor carriers.
Highway safety, motor carriers.
49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-31141, 31161, 31310-31311, 31502, and 49 CFR 1.73.
(t)(1) Enforce operating authority requirements under 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a by placing out of service a vehicle operated by a motor carrier without operating authority or beyond the scope of its operating authority.
(2) Enforce financial responsibility requirements under 49 U.S.C. 13906, 31138, 31139, and 49 CFR part 387.
49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
Unless specifically defined elsewhere in this subchapter:
49 U.S.C. 13902, 31136, 31502, and 49 CFR 1.73.
(a)
(1) Without the required operating authority or
(2) Beyond the scope of the operating authority granted.
(b)
(c)
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We are announcing receipt of a proposed amendment to the Pennsylvania regulatory program (hereinafter, the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposes to revise its program concerning reclamation fees, financial guarantees for bonding, money received from fees, the definition of reclamation, reclamation of bond forfeiture sites, alternate reclamation plans for bond forfeiture sites, bond forfeiture sites where reclamation is unreasonable, unnecessary or impossible, and evaluation of bond sites.
The proposed amendments are intended to revise the Pennsylvania program to be consistent with the corresponding Federal regulations and to amend provisions at its own initiative.
This document gives the times and locations that the Pennsylvania program and this submittal are available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing.
We will accept written comments until 4 p.m., local time, September 27, 2006. If requested, we will hold a public hearing on September 22, 2006. We will accept requests to speak until 4 p.m., local time on September 12, 2006.
You may submit comments, identified by “PA-147-FOR”, by any of the following methods:
• E-mail:
• Federal eRulemaking Portal:
Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection, Rachel Carson State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone: (717) 787-5103.
George Rieger, Telephone: (717) 782-4036. 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 Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982,
By letter dated May 23, 2006 (Administrative Record Number PA 793.11), Pennsylvania sent OSM a proposed program amendment to revise their program regulations at 25 Pa. Code. The submission includes the following: (1) Revisions to the Pennsylvania program initiated by Pennsylvania at 25 Pa. Code 86.17(e), 86.187(a)(2) and 86.283(c); (2) revisions intended to correct a typographical error in the State program at 25 Pa. Code 86.187(a)(1); (3) revisions intended to satisfy five required amendments codified in the Federal regulations at 30 CFR 938.16(mm)-(qq); and (4) revisions to address a previous OSM disapproval of language at 25 Pa. Code 86.188 (Administrative Record Number PA 793.11). The Pennsylvania Department of Environmental Protection (PADEP or Department) believes that this amendment will make its program consistent with the Federal program and satisfy the required amendments at 30 CFR 938.16(mm)-(qq). The letter described Pennsylvania's intended program changes at 25 Pa. Code 86.17(e), 86.187(a)(1), 86.187(b), 86.187(c) and 86.189(c)(2)-(c)(5), 86.188(b) and (c), 86.190(a), and 86.283(c). The full text of the proposed amendments is available for you to read
On October 24, 1991, OSM published a final rule requiring the PADEP to amend its program to be no less effective than the Federal program (56 FR 55080-55087). The required amendments concern reclamation of bond forfeiture sites, alternate reclamation plans for bond forfeiture sites, bond forfeiture sites where reclamation is unreasonable, unnecessary or impossible, and evaluation of bond forfeiture sites. In response, PADEP submitted an informal amendment on March 27, 2002, with draft proposed changes intended to satisfy five required amendments codified at 30 CFR 938.16(mm)-(qq). The regulatory process in Pennsylvania was delayed until the State proposed the changes to the Mining and Reclamation Board in 2005.
On March 31, 2005, Pennsylvania sent a summary of the findings for those proposed regulatory changes to OSM (Administrative Record Number PA 793.09). By letter dated April 15, 2005 (Administrative Record Number PA 793.10), we provided Pennsylvania with our comments on their draft amendments.
A summary of the proposed changes are as follows.
Pennsylvania has proposed a revision of this Subsection that would discontinue the collection of the Alternative Bonding System (ABS) $100 per acre reclamation fee. Pennsylvania believes that this fee is no longer needed because the State now uses a Conventional Bonding System (CBS).
Until 2001, Pennsylvania's bonding program was funded under its ABS, which included a central pool of money used for reclamation which was funded in part by a per-acre reclamation fee paid by operators of permitted sites, and supplemented by site bonds posted by those operators for each mine site. Because of growing problems with the solvency of ABS, in 2001, Pennsylvania began converting all active surface coal mining permits issued under the ABS, to a Full Cost Bonding (FCB) program. This FCB requires a permittee to post bonds in an amount sufficient to cover the estimated costs to complete reclamation in the event of bond forfeiture. The State believes that because all of its permittees are now subject to FCB, there is no longer a basis for maintaining the per acre reclamation fee, and is therefore, proposing to delete the per-acre fee requirement.
PADEP proposes to revise Section 86.187(a)(2), to include a requirement that the forfeited bond money be used “only to reclaim land and restore water supplies affected by the surface mining operation upon which liability was charged on the bond, except as provided in Section 86.190 * * *” The State also provided clarification of its policy on bond collection in a letter to OSM dated May 23, 2006 (Administrative Record No. PA 793.11). The clarification indicates that “when a bond is collected, Pennsylvania earmarks the bond, assigning it to the site for which it was forfeited. It can only be used for that site unless it is released, pursuant to Section 86.190.” Before releasing the funds, PADEP stated that it “conducts a rigorous review to assure that the bond money is not needed for the reclamation at the site for which the bond was forfeited.”
Pennsylvania has proposed to remove the requirement relating to the per acre reclamation fees for remining areas for mine operators approved to participate in the financial guarantees program. The State has proposed this change for consistency with the change proposed in Section 86.17(e); PADEP believes that the removal of the $100 per acre reclamation fee, as discussed in the previous Section of this proposed amendment, will make this provision inapplicable.
Pennsylvania has proposed a revision of this Subsection to correct a typographical error. PADEP is deleting the reference to Section 86.17(b) and replacing that correction with a reference to Section 86.17(e).
Required Amendment: Pennsylvania has proposed revisions of these Subsections to address a required amendment codified in the Federal regulations at 30 CFR 938.16(mm) (56 FR 55080-55087). The required program amendment requires that Pennsylvania delete 25 Pa. Code 86.187(b)(1), or otherwise amend its program, by requiring that alternative reclamation plans comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3) or (c)(4), whichever is appropriate to be consistent with 30 CFR 800.50.
The State is proposing to revise Section 86.187(b) to make clear that an alternative reclamation plan must meet applicable performance standards identified in Section 86.189(c) and to assure that the Department will notify and consult with the landowner prior to expending funds for reclamation of a bond forfeiture site in all cases and not just when an alternative reclamation plan is being considered.
Required Amendment: Pennsylvania has proposed revisions of these Subsections to address required amendments published in the Federal regulations at 30 CFR 938.16(nn) and (oo) (56 FR 55080-55087). The required amendment requires that Pennsylvania amend 25 Pa. Code 86.187(c) and Section 18(c) of the Pennsylvania Surface Mining and Conservation Act or otherwise amend its program to be no less effective than the Federal regulations at 30 CFR 816.133(a) and 817.133(a). The required amendments require Pennsylvania to require that alternative postmining land use determinations for sites with forfeited bonds under the Federal interim program or under Pennsylvania's permanent program be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses.
The State is proposing to revise Subsection 86.189(c)(5), to delete the language requiring reclamation plans for bond forfeiture sites allowing the sites to be made suitable at a minimum for agriculture, forests, recreation, wildlife or water conservation. Subsection 86.187(c) is proposed to be revised further by adding language requiring the alternate reclamation plans to provide for restoration of the disturbed land to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. Paragraphs (c)(2)-(4) of Section 86.189 are proposed to be revised to delete the reference to paragraph (5). The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require that all disturbed areas be restored to uses they were capable of supporting before any mining, or to a higher or better use. Paragraph (c)(5) is being deleted to render Section 86.189 consistent with the Federal provisions.
Both 30 CFR 938.16(nn) and (oo) require that Pennsylvania amend 25 Pa. Code 86.187(b)(1) and Section 18(c) of the Pennsylvania Surface Mining and Conservation Act or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that alternative postmining land use determinations for sites with forfeited bonds under the Federal interim program or under Pennsylvania's permanent program be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses.
Required Amendment: Pennsylvania has proposed revisions of these Subsections to address required program amendments codified in the Federal regulations at 30 CFR 938.16(pp) and (qq) (56 FR 55080-55087), which require that the State delete words “but are not limited to” from the introductory paragraph of Section 86.190(a), as well as the entire Subsection (a)(3) to be consistent with 30 CFR 800.50.
Pennsylvania proposes to delete Subsection (a)(3) which allows the landowner of a bond forfeiture site to prevent reclamation. The State is also proposing to revise Subsection (a) to delete language that allows for additional reclamation of bond forfeiture sites for reasons beyond those specifically listed in Subsection (a).
Required Amendment: Pennsylvania has proposed revisions of these Subsections to address an OSM disapproval of Section 86.188 to the extent that Subsections (b) and (c) would allow bond forfeiture funds posted for and needed to complete reclamation of a specific site be used for reclamation of other sites. In that disapproval, OSM stated that the provision would render the Pennsylvania program less effective than the Federal regulations at 30 CFR 800.50(b)(2). (See 56 FR 55084, October 24, 1991).
In this submission, the State is proposing to revise Subsections 86.188(b) and (c) to delete the language in paragraphs (b)(5) and (c)(3). The PADEP stated in its May 23, 2006, letter to OSM that this proposed revision will make it clear that bond forfeiture funds posted for and still needed to complete reclamation of the specific site for which the bonds were forfeited will not be used for reclamation of other sites until reclamation of the forfeited site has been completed. The PADEP also stated that the Department fully intends to maintain adequate bonding so that funds are available for the completion of reclamation should the bonds be forfeited (Administrative Record No. PA 793.11).
In accordance with 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendments, they will become part of the Pennsylvania program.
Send your written 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 may 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 file avoiding the use of special characters and any form of encryption. Please also include “Attn: PA-147-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 Pittsburgh Field Division's Harrisburg Office at (717) 782-4036.
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 submission, 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 regulations.
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, to the extent
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 basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving 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. 4321
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, geographic regions, or Federal, State or local governmental agencies; 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.
National Park Service, Department of the Interior.
Notice of meeting.
Notice is hereby given, in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App 1, section 10), of the fifth meeting of the Negotiated Rulemaking Advisory Committee for Dog Management at Golden Gate National Recreation Area (GGNRA).
The Committee will meet on Thursday, September 21, 2006 in the Officer's Club, upper Fort Mason. The meeting will begin at 3 p.m., and is open to the public.
Although the Committee may modify its agenda during the course of its work, the proposed agenda for this meeting is as follows: agenda review; approval of July 31, 2006 meeting summary; update on activities since July meeting; discuss Technical Subcommittee report; discuss potential selection/evaluation criteria; next steps; public comment; adjourn.
The Committee provides for a public comment period during the meeting; written comments may also be sent to: Superintendent, GGNRA, Ft. Mason, Bldg. 201, San Francisco, CA 94123, Attn: Negotiated Rulemaking.
To request a sign language interpreter, please call the park TDD line (415) 556-2766, at least a week in advance of the meeting. Please note that federal regulations prohibit pets in public buildings, with the exception of service animals.
Go to the
The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570) to consider developing a special regulation for dogwalking at GGNRA.
Department of Veterans Affairs.
Proposed rule.
This document proposes to amend regulations of the Department of Veterans Affairs (VA) concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits. These proposed regulations are intended to reflect changes in law, VA's interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, to improve readability, and to make other nonsubstantive changes.
Comments must be received on or before October 27, 2006.
Written comments may be submitted by: mail or hand-delivery to Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or e-mail through
Catherine Kruger, Senior Policy Analyst, (202) 273-7344, or Mark Hawkins, Vocational Rehabilitation Counselor, (202) 273-6923, Vocational Rehabilitation and Employment Service (28), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420.
We propose to amend VA's regulations in 38 CFR Part 21, Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31, concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits. These proposed regulations are intended to reflect changes in law regarding initial evaluations and VA's interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, and to improve readability. We also propose to make a nonsubstantive conforming change in 38 CFR Part 21, Subpart M—Vocational Training and Rehabilitation for Certain Children of Vietnam Veterans—Spina Bifida and Covered Birth Defects.
In
On October 9, 1996, Congress enacted the Veterans' Benefits Improvements Act of 1996 (Pub. L. 104-275), which redefined the terms “employment handicap” and “serious employment handicap” to include a requirement that an individual's vocational impairment be one “resulting in substantial part from” one or more service-connected disabilities, with respect to applications received on or after the date of enactment.
To reflect the dates of applicability of these changes in legal requirements, the proposed rule would provide that for determinations made on any applications filed on or after March 30, 1995, the date of the
For clarification, the table below summarizes the standards used to determine entitlement to vocational rehabilitation and employment benefits and services for applicants during these three distinct time periods. These concern entitlement determinations made for:
(1) Claims filed prior to the
(2) Claims filed after the
(3) Claims filed following enactment of Public Law 104-275.
In our view, the phrase “resulting in substantial part” in the statutory definitions of “employment handicap” and “serious employment handicap” has the same meaning that “material contribution” has in current § 21.51(c)(2). We are proposing to amend the regulations to reflect the statutory language. We propose to revise §§ 21.50 through 21.52 in light of these changes in law, and for the additional reasons that we discuss in this preamble.
We propose to revise current § 21.50 to make clear what constitutes an initial evaluation for vocational rehabilitation and employment benefits, who is entitled to an initial evaluation, who conducts it, what questions it seeks to answer, and how a veteran's service-connected disability(ies) must contribute to vocational impairment. The initial evaluation is central to employment handicap and serious employment handicap determinations under § 21.51 and § 21.52, respectively.
We propose to further revise § 21.50 by consolidating and clarifying the factors VA develops and assesses in determining whether an individual has an employment handicap; if so, whether the individual has a serious employment handicap; and, lastly, whether the achievement of a vocational goal by the individual is currently reasonably feasible. Proposed § 21.50(c) would set forth various factors for development and assessment as part of the initial evaluation, with minor modifications to existing provisions to improve readability.
We propose to remove the provisions of current § 21.50(d)(1) as unnecessary and obsolete, because that paragraph concerns determinations made prior to the initial evaluation and the determinations it refers to are no longer made by staff outside the Vocational Rehabilitation and Employment Division.
Current § 21.50(d)(2) identifies who, within VA, is responsible for making initial evaluation determinations. We propose to remove these provisions from § 21.50 and to make appropriate references in § 21.51 and § 21.52, respectively, as to who is responsible for making each determination.
We propose to revise § 21.51 to reflect criteria that VA develops and assesses in determining the existence of an employment handicap. Certain factors for determining that the service-connected disability(ies) “materially contribute” to the impairment to employment set forth in current § 21.51(e) would be set forth in proposed § 21.51 for determining that the service-connected disability(ies) contribute “in substantial part” to the impairment to employment, as discussed above.
Current § 21.52 requires that the determination of serious employment handicap directly relate to differing levels of service-connected disability ratings. Current § 21.52 also requires a finding of serious employment handicap if an individual is found to have an employment handicap along with a neuropsychiatric service-connected disability rated at 30 percent or more or any other service-connected disability rated at 50 percent or more.
Public Law 104-275 redefined the term “serious employment handicap” to make clear that the impairment to employability must meet both of the following conditions:
• It must be a significant impairment of an individual's ability to prepare for, obtain or retain employment consistent with abilities, aptitudes, and interests.
• It must result in substantial part from service-connected disabilities rated at 10 percent or more.
We propose to revise § 21.52 to reflect the factors VA develops and assesses in making the determination of “significant impairment.” These factors differ, in part, from the factors used to develop and assess the lower level of “impairment” necessary for employment handicap in § 21.51, to ensure that an individual with a significant vocational impairment receives the rehabilitation services he or she needs.
Lastly, we propose to make a nonsubstantive change in subpart M to § 21.8032(a) by removing a reference to § 21.50(b)(5) and adding, in its place, a reference to § 21.50(b)(3).
This proposed rule contains no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of Management and Budget has approved collection of information provisions that are related to the provisions of proposed 38 CFR 21.50 under OMB control number 2900-0009 (entitled “Disabled Veterans Application for Vocational Rehabilitation and 38 CFR 21.30”) and has approved collection of information provisions that are related to the provisions of proposed §§ 21.50 through 21.52 under OMB control number 2900-0092 (entitled “Counseling Record—Personal Information”).
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this proposed rule and has concluded that it is a significant regulatory action under Executive Order 12866 because it raises novel policy issues.
The Secretary hereby certifies that this proposed regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance numbers and titles for programs that would be affected by this proposed rule are 64.116, Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects.
Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation.
For the reasons set forth in the preamble, VA proposes to amend 38 CFR part 21 (subparts A and M) as follows:
1. Revise the authority citation for part 21, subpart A to read as follows:
38 U.S.C. 501(a), ch. 31, and as noted in specific sections.
2. Revise § 21.50 to read as follows:
(a)
(1) Applies for benefits under 38 U.S.C. chapter 31; and
(2) Meets the service-connected disability requirements of § 21.40.
(b)
(1) Whether the individual has an employment handicap as determined in accordance with this section and § 21.51;
(2) Whether an individual with an employment handicap has a serious employment handicap as determined in accordance with this section and § 21.52; and
(3) Whether the achievement of a vocational goal is currently reasonably feasible as described in § 21.53.
(c)
(1) The handicapping effects of the individual's service-connected and nonservice-connected disability(ies) on employability and on independence in daily living;
(2) The individual's physical and mental capabilities that may affect employability and ability to function independently in daily living activities in family and community;
(3) The impact of the individual's identified vocational impairments on the individual's ability to prepare for, obtain, and keep suitable employment;
(4) The individual's abilities, aptitudes, and interests;
(5) The individual's personal history and current circumstances (including educational and training achievements, employment record, developmental and related vocationally significant factors, and family and community adjustment); and
(6) Other factors that may affect the individual's employability.
(d)
3. Revise § 21.51 to read as follows:
For the purposes of § 21.50, an employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(a)
(b)
(c)
(2) When determining the individual's overall vocational impairment, the CP or VRC will consider the factors identified in § 21.50(c).
(3) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall vocational impairment.
4. Revise § 21.52 to read as follows:
(a)
(1)
(2)
(3)
(ii) For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall significant vocational impairment.
(b)
(1) Number of disabling conditions;
(2) Severity of disabling condition(s);
(3) Existence of neuropsychiatric condition(s);
(4) Adequacy of education or training for suitable employment;
(5) Number, length, and frequency of periods of unemployment or underemployment;
(6) A pattern of reliance on government support programs, such as welfare, service-connected disability compensation, nonservice-connected disability pension, worker's compensation, or Social Security disability;
(7) Extent and complexity of services and assistance the individual needs to achieve rehabilitation;
(8) Negative attitudes toward individuals with disabilities and other evidence of restrictions on suitable employment, such as labor market conditions; discrimination based on age, race, gender, disability or other factors; alcoholism or other substance abuse; and
(9) Other factors that relate to preparing for, obtaining, or keeping employment consistent with the individual's abilities, aptitudes, and interests.
5. Revise the authority citation for part 21, subpart M to read as follows:
38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and as noted in specific sections.
6. In § 21.8032, amend paragraph (a) by removing “§§ 21.50(b)(5)” and adding, in its place, “§§ 21.50(b)(3)”.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing, under the Clean Air Act, approval of revisions to the applicable state implementation plan for the State of Nevada and disapproval of other revisions. These revisions involve certain regulations and statutes for which the State of Nevada is requesting rescission. EPA is also proposing approval of certain updated statutes submitted by the State of Nevada as replacements for outdated statutes in the applicable plan. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. EPA is proposing this action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect is to rescind unnecessary provisions from the applicable plan, retain necessary provisions, and approve replacement provisions for certain statutes for which rescissions are proposed for disapproval. EPA is taking comments on this proposal and plans to follow with a final action.
Any comments must arrive by
Submit comments, identified by docket number EPA-R09-OAR-2006-0590, by one of the following methods:
1. Federal eRulemaking Portal:
2. E-mail:
3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901.
Julie Rose, EPA Region IX, (415) 947-4126,
Throughout this document, the terms “we,” “us” and “our” refer to EPA.
The State of Nevada's Department of Conservation and Natural Resources, Division of Environmental Protection (NDEP) submitted a large revision to the applicable SIP on January 12, 2006. This 2006 SIP revision submittal supersedes the regulatory portion of the earlier SIP revision submittal dated February 16, 2005.
The primary purpose of this SIP revision is to clarify and harmonize the provisions approved by EPA into the applicable SIP with the current provisions adopted by the State. Because this revision incorporates so many changes from the 1970s and 1980s vintage SIP regulations, EPA has decided to review and act on the submittal in a series of separate actions. The first such action was proposed in the
In today's action, we are taking another step in the process of acting on the State's January 12, 2006 SIP revision submittal by proposing action on the State's request for rescission of nearly 200 rules and statutes currently approved in the applicable SIP.
Pursuant to the Clean Air Amendments of 1970, the Governor of Nevada submitted the original Nevada SIP to EPA in January 1972. EPA approved certain portions of the original SIP and disapproved other portions under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For some of the disapproved portions of the original SIP, EPA promulgated substitute provisions under CAA section 110(c).
Nevada adopted and submitted many revisions to the original set of regulations and statutes in the SIP, some of which EPA approved on February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to Nevada's applicable SIP despite numerous changes that have been adopted by the State Environmental Commission. As a result, the version of the rules enforceable by NDEP is often quite different from the SIP version enforceable by EPA.
The purpose of this proposal is to present EPA's conclusions with respect to the State's request contained in NDEP's January 12, 2006 SIP revision submittal for rescission of nearly 200 rules and statutes in the applicable SIP. We provide our reasoning in general terms below but provide a more detailed analysis for each of the relevant rules and statutes in the technical support document (TSD) that has been prepared for this proposed rulemaking.
Under CAA section 110(k)(2), EPA is obligated to take action on submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) authorizes EPA to approve or disapprove, in whole or in severable part, such submittals. EPA has reviewed the regulations and statutes submitted on January 12, 2006 by NDEP for rescission for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2) and 40 CFR part 51 and also for compliance with CAA requirements for SIP revisions in CAA sections 110(l) and 193.
We are proposing to approve most of the rules for which NDEP has requested rescission (see Table 1), but are proposing disapproval for rescission requests related to certain rules and statutes (see Table 2), and are proposing to approve submitted replacement provisions (see Table 3) for certain provisions for which we believe the State's rescission request should be disapproved.
Table 1 lists all of the SIP (or FIP) provisions for which the State's rescission request is proposed for approval along with the related submittal and approval dates. The vast majority of the provisions in table 1 represent defined terms that, although approved by EPA and therefore made part of the applicable SIP, are not relied upon by any rule or statute in the existing applicable SIP nor in any rule or statute in the submitted SIP revision and thus are unnecessary and appropriate for rescission. We are also proposing approval of the rescission request with respect to certain other rules and statutes (and one FIP) that we have found to be unnecessary because they are not needed generally in a SIP under CAA section 110(a)(2) or under 40 CFR part 51 or because there are other federally enforceable provisions that would provide equivalent or greater control. Neither NDEP's February 16, 2005 nor January 12, 2006 SIP submittal contained documentation of notice and public hearing for repeal or rescission of these provisions as required under CAA section 110(l) for all SIP revisions. Thus, we are making our proposed approval of these rescissions contingent upon receipt of this documentation from NDEP.
The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 1.
Table 2 lists the rules and statutes for which the State's rescission request is proposed for disapproval along with the related submittal and approval dates. Generally, we believe that retention of these provisions is appropriate to satisfy certain specific requirements for SIPs under CAA section 110(a)(2) or that retention is appropriate because the State has not provided sufficient documentation to show that rescission would not interfere with continued attainment of the national ambient air quality standards (NAAQS) as required under CAA section 110(l). The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 2.
Table 3 lists the submitted provisions for which EPA is proposing approval and that, upon final approval, will supersede corresponding outdated provisions in the applicable SIP. In its January 12, 2006 SIP revision submittal, NDEP requests EPA to approve new statutory provisions to replace any outdated State statutory provisions for which EPA determines that the rescission request should not be approved. As noted above, we are proposing to disapprove requests for rescission of certain statutory provisions, and thus, consistent with the State's request, we are proposing approval of 14 specific statutory provisions, submitted by NDEP in appendix III-E of the January 12, 2006 SIP revision submittal, to replace the corresponding statutory provisions in the applicable SIP (see table 3, below). In general, we find that the current statutory provisions listed in table 3 essentially mirror the corresponding outdated provisions in the applicable SIP and thus would not relax any existing requirement.
The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 3.
Under CAA section 110(k)(3), EPA is proposing approval of most of the State of Nevada's requests to rescind nearly 200 rules and statutes from the applicable SIP but is proposing disapproval of some of those requests. EPA is also proposing approval of certain statutory provisions submitted by the State of Nevada as replacements for outdated provisions in the applicable SIP. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. We will accept comments from the public on this proposal for the next 30 days.
Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will rescind the rules and statutes shown in table 1, above, from the applicable SIP (contingent upon receipt of public notice and hearing documentation), retain certain rules and statutes in the applicable SIP (shown in table 2, above), and approve certain replacement provisions (shown in table 3, above).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve or disapprove a State request for rescission and to approve certain replacement provisions as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed 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 proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve or disapprove a State request for rescission and to approve certain replacement provisions implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Air pollution control, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Animal and Plant Health Inspection Service, USDA.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. App. II), we are giving notice of a meeting of the Secretary's Advisory Committee on Foreign Animal and Poultry Diseases.
The meeting sessions will be held from 8:30 a.m. to 5 p.m. on September 12 and 13, 2006.
The meeting will be held in Room 2A04 (Training Room 1) and Room 2A06 (Training Room 2) at the USDA Center at Riverside, 4700 River Road, Riverdale, MD.
Dr. Mark Teachman, Acting Director, Interagency Coordination, Emergency Management, VS, APHIS, 4700 River Road Unit 41, Riverdale, MD 20737-1231; (301) 734-8073.
The Secretary's Advisory Committee on Foreign Animal and Poultry Diseases (the Committee) advises the Secretary of Agriculture on actions necessary to prevent the introduction of foreign diseases of livestock and poultry into the United States. In addition, the Committee advises the Secretary on contingency planning and on maintaining a state of preparedness to deal with these diseases, if introduced.
The meeting will focus on the U.S. animal health emergency management system and the foreign animal disease situation worldwide and its relevance to the United States. The meeting will be open to the public. However, due to time constraints, the public will not be allowed to participate in the Committee's discussions.
You may obtain an agenda for the meeting by contacting Dr. Mark Teachman at the address listed under
You may file written statements on meeting topics with the Committee before or after the meeting by sending them to Dr. Mark Teachman at the
Please note that a fee of $2.25 is required to enter the parking lot at the USDA Center. The machine accepts $1 bills and quarters.
Upon entering the building, visitors should inform security personnel that they are attending the Advisory Committee Meeting on Foreign Animal and Poultry Diseases, and contact the APHIS Veterinary Services Emergency Management office at (301) 734-8073 from the lobby telephone to be ushered to the meeting. Photo identification is required. Visitor badges must be worn at all times while inside the building.
Forest Service, USDA.
Notice of Intent to Prepare an Environmental Impact Statement.
The Department of Agriculture, Forest Service will prepare an Environmental Impact Statement (EIS) on a proposal to harvest timber in the Iyouktug valley on Chicagof Island, Hoonah Ranger District of the Tongass National Forest. The Proposed Action is to harvest an estimated 57 million board feet (MMBF) of timber from approximately 4,430 acres of forested land through various small sales, and one or more larger sales, offered over a 10-year period. Approximately 5 miles of National Forest System road would be constructed, and 12 miles of temporary road would be constructed; temporary road would be closed after timber management activities have been completed. The Proposed Action would include harvest of approximately 2,050 acres and construction of approximately 3 miles of National Forest System road and 6 miles of temporary road in inventoried roadless areas. The existing Long Island log transfer facility will be used as needed. In order to meet Tongass Land and Resource Management Plan (Forest Plan) criteria for old growth reserves, a non-significant Forest Plan amendment to change the boundaries of the small old-growth habitat reserves (OGRs) will be part of the Proposed Action.
Opportunities for comment are available throughout the analysis process. Those interested in receiving a scoping package should contact us at the address below. Comments concerning this stage of the project will be most helpful if received by October 2, 2006. Additional opportunities for comment will be provided after release of the Draft EIS, which is expected to be published September 2007. A 45-day comment period will begin the date the Environmental Protection Agency (EPA) publishes the Notice of Availability in the
Send or hand deliver written comments to: IDT Leader, Sitka Ranger District, Tongass National Forest, Attn: Iyouktug Timber Sales EIS, 204 Siginaka Way, Sitka, AK 99835. Send written e-mail comments to:
Chris Budke, Acting District Ranger, Hoonah Ranger District, P.O. Box 135, Hoonah, AK 99829, phone (907) 945-3631 or Hans von Rekowski, Team Leader, Sitka Ranger District, 204 Siginaka Way, Sitka, AK 99835, phone (907) 747-4217.
This EIS will tier to the EIS for the 1997 Tongass Land and Resource Management Plan (Forest Plan) that provides overall guidance, goals, objectives, standards, guidelines, and management area direction to achieve the desired condition for the project area.
The project area is administered by the Hoonah Ranger District of the Tongass National Forest, Hoonah, Alaska and occurs in Value Comparison Units (VCU) 2080, 2090, and 2100 as designated by the Forest Plan. The project area includes approximately 40,650 acres. The Iyouktug project area is located northwest of Iyoukeen Peninsula on the northeastern part of Chichagof Island about 12 air miles east-southeast of Hoonah, Alaska, 30 air miles west of Juneau, Alaska, and 15 air miles northeast of Tenakee Springs. The project area lies north of Freshwater Bay, west of False Bay and Chatham Strait, and south of Icy Strait, along National Forest System Road #8530; it lies within the Iyouktug and Suntaheen Creek valleys and includes Whitestone Harbor. The project area is in Townships 43-44 South, and Ranges 62-64 East, Copper River Meridian.
The purpose and need for the Iyouktug Timber Sales project is to: (1) Maintain and promote wood production from suitable timber lands, providing a supply of wood to meet society's needs; (2) Seek to provide a stable supply of timber from the Tongass National Forest which meets the annual planning-cycle market demand, while managing these lands for sustained long-term yields, consistent with sound multiple-use and sustained-yield objectives; (3) Seek to provide a long-term, stable supply of timber for local sawmills and timber operators; and (4) Provide a diversity of opportunities for resource uses that contribute to the local and regional economies of Southeast Alaska to support a wide range of natural resource employment opportunities within Southeast Alaska's communities. The Iyouktug Timber Sales Proposed Action is consistent with the 1997 Tongass Forest Plan.
The Proposed Action for the Iyouktug project area is to harvest an estimated 57 million board feet (MMBF) of timber from approximately 4,430 acres of forested land while meeting Forest Plan standards. The timber would be offered through various small sales, and one or more large sales over a 10-year period following the Record of Decision (ROD). It is anticipated that 1 to 5 MMBF (averaging 3 MMBF) of timber harvested through ground-based logging systems would be offered annually as small sales. The large sale(s) would be composed primarily of units harvested through helicopter logging. The larger timber sale(s) would be offered concurrently with the small sales.
Timber harvest would occur on an estimated 4,430 acres of the 9,290 acres within the entire timber unit pool. Some areas in the timber unit pool are not being considered for timber harvest in this Proposed Action; however, when other alternatives are developed, we may propose harvest in some of the other units in the pool. The Proposed Action includes approximately 2,680 acres of helicopter and 1,750 acres of ground-based shovel and cable yarding systems. Areas suitable for ground-based logging would be harvested either even-aged (clearcut) or uneven-aged
The Proposed Action includes construction of approximately 5 miles of National Forest System road and 12 miles of temporary road; it would also include reconstruction of 3 miles of existing road. The existing Long Island Log Transfer Facility (LTF) will be utilized for these sales, if needed.
Harvest activities are proposed to occur only on land allocated to the Timber Production Land Use Designation (LUD); the other LUDs in the project area are Scenic Viewshed and Old-growth Habitat.
The Iyouktug project area includes two small old-growth habitat reserves (OGRs) and a portion of a large OGR as designated in the Forest Plan. The small OGRs are located in Value Comparison Units (VCUs) 2080, 2090, and 2100; the portion of the large OGR is a VCU 2100. To meet Forest Plan criteria for old-growth reserves, changes to the small OGR boundaries will be proposed as part of this project. A non-significant Forest Plan amendment will be required to address these changes.
Harvest is proposed in unroaded areas including parts of three inventoried roadless areas. Approximately 25,590 acres of the Iyouktug project area are in three inventoried roadless areas; the Proposed Action would include harvest of approximately 2,050 acres and construction of approximately 3 miles of National Forest System road and 6 miles of temporary road in inventoried roadless areas.
Tentative issues identified for analysis in this EIS relate to the location and design of small Old-Growth Habitat Reserves and connectivity, subsistence use, economics, and timber harvest in roadless areas. Resource concerns that will be considered and discussed in the analysis include heritage resources, fisheries, karst features, steep slopes, threatened, endangered, and sensitive species, scenery, and the potential for cumulative watershed impacts in the project area.
Public participation has been an integral component of the analysis process and will continue to be especially important at several points during the analysis. This Notice of intent (NOI) and the project scoping letter initiate the scoping process that guides the development of the Environmental Impact Statement. The Forest Service will be seeking information, comments and suggestions from Tribal Governments, Federal, State, and local agencies, as well as individuals and organizations that may be interested in, or affected by, the Proposed Action. This process will determine the scope of the project and significant issues to be analyzed in depth in the Environmental Impact Statement. A scoping letter has recently been mailed to interested people and organizations; the scoping letter is available upon request. The letter briefly describes the project and project area, the purpose and need for the project, the Proposed Action, and invites public comment. An open house meeting will be held in Hoonah, Alaska on September 6, 2006, at the Hoonah Ranger District Office. The meeting will be announced in local newspapers and on local radio stations.
Through the scoping process the Interdisciplinary Planning Team will review comments received during the scoping period to determine which issues are significant and within the scope of this project. The team will develop a range of alternatives to address the significant issues. One of these will be the “No Action” alternative, in which no additional timber harvest or road construction is proposed. Other alternatives will consider various levels and locations of timber harvest in response to issues and non-timber objectives. The team will then prepare a Draft Environmental Impact Statement (DEIS) that will display the alternatives and the direct, indirect, and cumulative effects of each alternative. Non-significant issues or those issues that have been covered by a previous environmental review will be discussed briefly and documented in the EIS or project planning record.
The DEIS is expected to be filed with the Environmental Protection Agency (EPA) by September 2007. The comment period on the DEIS will be 45 days from the date the EPA publishes the Notice of Availability in the
The Forest Service believes that at this early scoping stage, it is important to inform reviewers of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the Proposed Action, comments on the Draft Environmental Impact Statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the DEIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. Additionally, pursuant to 7 CFR 1.27(d), any person may request that the agency withhold a submission from the public record by showing how the Freedom of Information Act (FOIA) permits such confidentiality. Persons requesting such
The permits listed below are required to implement the project, if the Long Island LTF is used. These permits are current and are held by Huna Totem Corporation. The Forest Service has a cost-share agreement with the Huna Totem Corporation to utilize the LTF under the following permits:
The Forest Supervisor, Tongass National Forest, Federal Building, 648 Mission Street, Ketchikan, Alaska 99901, is the responsible official.
The responsible official will decide whether or not to authorize timber harvest within the Iyouktug project area, and if so, how this timber would be harvested. The responsible official would also determine the location of OGR boundaries. The Responsible Official will consider the comments, responses, and disclosure of environmental consequences displayed in the FEIS, and applicable laws, regulations, and policies in making a decision. The Responsible Official will state the decision and the rationale for the decision in the Record of Decision (ROD).
Forest Service, USDA.
Notice of meeting.
The Eastern Arizona Counties Resource Advisory Committee will meet in Overgaard, Arizona. The purpose of the meeting is to evaluate project proposals for possible funding in accordance with Pub. L. 106-393 (the Secure Rural Schools and Community Self-Determination Act).
The meeting will be held September 22, 2006 starting at 11 a.m.
The meeting will be held in the fellowship room at the First Southern Baptist Church, 2727 Church Lane, Overgaard, Arizona 85933. Send written comments to Robert Dyson, Eastern Arizona Counties Resource Advisory Committee, c/o Forest Service, USDA, P.O. Box 640, Springerville, Arizona 85938 or electronically to
Robert Dyson, Public Affairs Officer, Apache-Sitgreaves National Forests (928) 333-4301.
The meeting is open to the public. Committee discussion is limited to Forest Service staff, project proponents, and Committee members. However, persons who wish to bring Pub. L. 106-393 related 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 September 6, 2006, will have the opportunity to address the Committee at those sessions.
Import Administration, International Trade Administration, Department of Commerce.
August 28, 2006.
Kristina Boughton or Bobby Wong, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-8173 or (202) 482-0409, respectively.
On June 7, 2006, the Department of Commerce (the Department) published in the
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(i)(1) require the Department to issue the preliminary results of a new shipper review within 180 days after the date on which the new shipper review was initiated and final results of a review within 90 days after the date on which the preliminary results were issued. The Department may, however, extend the deadline for completion of the final results of a new shipper review to 150 days if it determines that the case is
At the request of interested parties, the Department extended the deadline for the submission of surrogate value information and case and rebuttal briefs by three weeks. As a result of the extensions and the extraordinarily complicated issues raised in this review segment, including the honey valuation and
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on stainless steel sheet and strip in coils from the Republic of Korea (Korea) for the period January 1, 2004, through December 31, 2004. We preliminarily find that the net subsidy rate for the producer/exporter under review is
August 28, 2006.
Preeti Tolani or Darla Brown, AD/CVD Operations, Office 3, Import Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0395 or (202) 482-2849, respectively.
On August 6, 1999, the Department published in the
In accordance with 19 CFR 351.213(b), this review covers only those producers or exporters for which a review was specifically requested. The only company subject to this review is DMC.
The products subject to this order are certain stainless steel sheet and strip in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. The subject sheet and strip is a flat-rolled product in coils that is greater than 9.5 mm in width and less than 4.75 mm in thickness and that is annealed or otherwise heat treated and pickled or otherwise descaled. The subject sheet and strip may also be further processed (
The merchandise subject to this order is currently classifiable in the
Excluded from the scope of this order are the following: (1) sheet and strip that is not annealed or otherwise heat treated and pickled or otherwise descaled, (2) sheet and strip that is cut to length, (3) plate (
The Department has determined that certain specialty stainless steel products are also excluded from the scope of this order. These excluded products are described below:
Flapper valve steel is defined as stainless steel strip in coils containing, by weight, between 0.37 and 0.43 percent carbon, between 1.15 and 1.35 percent molybdenum, and between 0.20 and 0.80 percent manganese. This steel also contains, by weight, phosphorus of 0.025 percent or less, silicon of between 0.20 and 0.50 percent, and sulfur of 0.020 percent or less. The product is manufactured by means of vacuum arc remelting, with inclusion controls for sulphide of no more than 0.04 percent and for oxide of no more than 0.05 percent. Flapper valve steel has a tensile strength of between 210 and 300 ksi, yield strength of between 170 and 270 ksi, plus or minus 8 ksi, and a hardness (Hv) of between 460 and 590. Flapper valve steel is most commonly used to produce specialty flapper valves in compressors.
Also excluded is a product referred to as suspension foil, a specialty steel product used in the manufacture of suspension assemblies for computer disk drives. Suspension foil is described as 302/304 grade or 202 grade stainless steel of a thickness between 14 and 127 microns, with a thickness tolerance of plus-or-minus 2.01 microns, and surface glossiness of 200 to 700 percent Gs. Suspension foil must be supplied in coil widths of not more than 407 mm, and with a mass of 225 kg or less. Roll marks may only be visible on one side, with no scratches of measurable depth. The material must exhibit residual stresses of 2 mm maximum deflection, and flatness of 1.6 mm over 685 mm length.
Certain stainless steel foil for automotive catalytic converters is also excluded from the scope of this order. This stainless steel strip in coils is a specialty foil with a thickness of between 20 and 110 microns used to produce a metallic substrate with a honeycomb structure for use in automotive catalytic converters. The steel contains, by weight, carbon of no more than 0.030 percent, silicon of no more than 1.0 percent, manganese of no more than 1.0 percent, chromium of between 19 and 22 percent, aluminum of no less than 5.0 percent, phosphorus of no more than 0.045 percent, sulfur of no more than 0.03 percent, lanthanum of between 0.002 and 0.05 percent, and total rare earth elements of more than 0.06 percent, with the balance iron.
Permanent magnet iron-chromium-cobalt alloy stainless strip is also excluded from the scope of this order. This ductile stainless steel strip contains, by weight, 26 to 30 percent chromium, and 7 to 10 percent cobalt, with the remainder of iron, in widths 228.6 mm or less, and a thickness between 0.127 and 1.270 mm. It exhibits magnetic remanence between 9,000 and 12,000 gauss, and a coercivity of between 50 and 300 oersteds. This product is most commonly used in electronic sensors and is currently available under proprietary trade names such as “Arnokrome III.”
Certain electrical resistance alloy steel is also excluded from the scope of this order. This product is defined as a non-magnetic stainless steel manufactured to American Society of Testing and Materials (ASTM) specification B344 and containing, by weight, 36 percent nickel, 18 percent chromium, and 46 percent iron, and is most notable for its resistance to high temperature corrosion. It has a melting point of 1390 degrees Celsius and displays a creep rupture limit of 4 kilograms per square millimeter at 1000 degrees Celsius. This steel is most commonly used in the production of heating ribbons for circuit breakers and industrial furnaces, and in rheostats for railway locomotives. The product is currently available under proprietary trade names such as “Gilphy 36.”
Certain martensitic precipitation-hardenable stainless steel is also excluded from the scope of this order. This high-strength, ductile stainless steel product is designated under the Unified Numbering System (UNS) as S45500-grade steel, and contains, by weight, 11 to 13 percent chromium and 7 to 10 percent nickel. Carbon, manganese, silicon and molybdenum each comprise, by weight, 0.05 percent or less, with phosphorus and sulfur each comprising, by weight, 0.03 percent or less. This steel has copper, niobium, and titanium added to achieve aging, and will exhibit yield strengths as high as 1700 Mpa and ultimate tensile strengths as high as 1750 Mpa after aging, with elongation percentages of 3 percent or less in 50 mm. It is generally provided in thicknesses between 0.635 and 0.787 mm, and in widths of 25.4 mm. This product is most commonly used in the manufacture of television tubes and is currently available under proprietary trade names such as “Durphynox 17.”
Finally, three specialty stainless steels typically used in certain industrial blades and surgical and medical instruments are also excluded from the scope of this order. These include stainless steel strip in coils used in the production of textile cutting tools (
(1) For countervailable foreign currency-denominated loans, pursuant to 19 CFR 351.505(a)(2)(i), and consistent with our practice to date, our preference is to use the company-
(2) For countervailable won-denominated long-term loans, our practice is to use the company-specific corporate bond rate on the company's public and private bonds, as we determined that the GOK did not control the Korean domestic bond market after 1991, and that domestic bonds may serve as an appropriate benchmark interest rate.
In the 1993 investigation of steel products from Korea, the Department determined (1) that the GOK influenced the practices of lending institutions in Korea; (2) that the GOK regulated long-term loans provided to the steel industry on a selective basis; and (3) that the selective provision of these regulated loans resulted in a countervailable benefit.
In
In proceedings subsequent to the investigation, with regard to subsequent periods through 2001, the Department has consistently found that the GOK's control over lending practices of domestic commercial banks and government-owned banks continued to be specific to the steel industry and that such loans conferred a benefit on the producer of the subject merchandise to the extent that the interest rates on these loans were lower than the interest rates on comparable commercial loans, within the meaning of section 771(5)(E)(ii) of the Act.
During the POR, DMC continued to have outstanding loans that were received prior to the 2001 period. DMC also received a loan during the POR, but no interest payments were due until after the POR. As stated above, the Department has found direction of
DMC did not have won-denominated loans outstanding during the POR which could be used for benchmark purposes. For the won-denominated loans we used the national average of the yields on three-year corporate bonds, as reported by the BOK, as a benchmark.
DMC did not have foreign currency-denominated loans outstanding during the POR which could be used for benchmark purposes. For the foreign currency-denominated loans we used the lending rates as reported by the IMF's
To calculate the total subsidy amount for all directed credit, we added the subsidy amount related to foreign currency loans in Korean won to the subsidy amount related to won-denominated loans. We then divided the total subsidy amount by DMC's total f.o.b. sales value during the POR, as this program is not tied to exports or a particular product. On this basis, we preliminarily determine the countervailable subsidy to be 0.02 percent
A.
On December 28, 1998, the Tax Reduction and Exemption Control Act (TERCL) was replaced by the Restriction of Special Taxation Act (RSTA). Pursuant to this change in law, TERCL Article 8 is now identified as RSTA Article 9. Apart from the name change, the operation of RSTA Article 9 is the same as the previous TERCL Article 8 and its Enforcement Decree.
This program allows a company operating in manufacturing or mining, or in a business prescribed by the Presidential Decree, to appropriate reserve funds to cover expenses related to the development or innovation of technology. These reserve funds are included in the company's losses and reduce the amount of taxes paid by the company. Under this program, capital goods and capital intensive companies can establish a reserve of five percent of total revenue, while companies in all other industries are only allowed to establish a three percent reserve.
In
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Article 27 of TERCL was replaced by Article 26 of RSTA in 1998. This article authorizes a tax credit equaling a maximum of ten percent of the amount a domestic company temporarily invests in eligible machinery and equipment. In
C.
During the POR, DMC applied for a tax credit under Article 7-2 of RSTA. The GOK states that the program permits any company that uses a modern corporate billing/promissory note system to make payments for its purchases from small or medium enterprises to claim a tax credit on its income taxes. The GOK provided the Department with the language of the regulation, which allows for three possible methods of payment: (a) issuing a bill of exchange or settling a request for collection of sale proceeds, (b) using an exclusive-use card for business purchase, or (c) using a loan system against security of credit sales claims. The tax credit is calculated as 0.3 percent of the total amount paid pursuant to these methods described, but not to exceed 10 percent of a company's corporate income tax amount.
In conducting the Department's investigation of this tax credit program, the Department must determine whether the program is specific within the meaning of section 771(5A) of the Act. We preliminarily determine that the tax credit under Article 7-2 of RSTA is not
Where there are reasons to believe that a subsidy may be specific as a matter of fact, the Department must then examine the program under section 771(5A)(D)(iii) of the Act. If the Department finds that one of the following factors exist, then the program is
(I) The actual recipients of the subsidy, whether considered on an enterprise or industry basis, are limited in number.
(II) An enterprise or industry is a predominant user of the subsidy.
(III) An enterprise or industry receives a disproportionately large amount of the subsidy.
(IV) The manner in which the authority providing the subsidy has exercised discretion in the decision to grant the subsidy indicates that an enterprise or industry is favored over others.
Pursuant to section 771(5A)(D)(iii)(I) of the Act, the Department preliminarily finds that under the tax credit under Article 7-2 of RSTA, the actual recipients of the subsidy are not limited in number.
Sections 771(5A)(D)(iii)(II) and (III) of the Act direct the Department to examine whether an enterprise or an industry is a predominant user of the subsidy or receives a disproportionately large amount of the subsidy. There is nothing on the record to indicate that the steel industry received a greater monetary benefit from the program than did other participants or that the steel industry was a dominant user or received disproportionate benefits. Rather, the GOK states that the tax credit is widely available and can be used by any Korean company, regardless of industry or location, by claiming the tax credit on the tax return.
Therefore, we preliminarily determine that the information on the record does not support a finding that the percentage of the benefits DMC or the steel industry received were disproportionately high or that the company or the industry was a dominant user. Accordingly, we preliminarily find that the tax credit under Article 7-2 of RSTA is not
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the producer/exporter subject to this administrative review. For the period January 1, 2004, through December 31, 2004, we preliminarily determine the net subsidy for DMC to be 0.02 percent
If the final results of this review remain the same as these preliminary results, the Department intends to instruct U.S. Customs and Border Protection (CBP), within 15 days of publication of the final results, to liquidate shipments of certain stainless steel sheet and strip in coils from DMC, entered, or withdrawn from warehouse, for consumption from January 1, 2004, through December 31, 2004, without regard to countervailing duties. Also, the Department intends to instruct CBP to require a new cash deposit rate for estimated countervailing duties of 0.00 percent for all shipments of certain stainless steel sheet and strip in coils from DMC, entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review. The Department will issue appropriate instructions directly to CBP within 15 days of the final results of this review.
We will instruct CBP to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by this order, but not examined in this review, are those established in the most recently completed administrative proceeding for each company. These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested.
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of the public announcement of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless otherwise indicated by the Department, case briefs must be submitted within 30 days after the publication of these preliminary results. Rebuttal briefs, which are limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs, unless otherwise specified by the Department. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs
Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.
This administrative review is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The North Pacific Fishery Management Council's Gulf of Alaska (GOA) and Bering Sea/Aleutian Islands (BS/AI) groundfish plan teams will meet in Seattle, WA.
The meetings will be held on September 19-22, 2006. The meetings will begin at 1 p.m. on Tuesday, September 19, and continue through Friday September 22. The meetings will end when business for the day is completed, each day.
The meetings will be held at the Alaska Fisheries Science Center, 7600 Sand Point Way N.E., Building 4, Observer Training Room (BS/AI Plan Team) and Traynor Room (GOA Plan Team), Seattle, WA.
Jane DiCosimo or Diana Stram, North Pacific Fishery Management Council; telephone: (907) 271-2809.
Principal business is to prepare and review the draft Economic Report, the draft Ecosystems Consideration Chapter, draft stock assessments for some target-categories, and recommend preliminary groundfish catch specifications for 2007/08.
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.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, (907) 271-2809, at least 5 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
NOAA Fisheries and The Pacific Fishery Management Council (Council) will hold a workshop to discuss the comparability of pre-recruit data collected from two existing west coast surveys and to evaluate methods for utilizing those data in groundfish assessments.
The Pre-recruit Survey workshop will be held Wednesday, September 13, 2006 through Friday, September 15, 2006. The workshop will start at 8:30 a.m. each day and end at 5 p.m. on Wednesday and Thursday and 12 noon on Friday, or as necessary to complete business.
The Pre-recruit Survey workshop will be held at the Southwest Fisheries Science Center, 110 Shaffer Road, Santa Cruz, CA 95060.
Ms. Stacey Miller, Northwest Fisheries Science Center (NWFSC); telephone: (206) 860-3480; or Mr. John DeVore, Pacific Fishery Management Council; telephone: (503) 820-2280.
The workshop discussion will be guided by the following four questions: (1) Can data from the R/V David Starr Jordan and the F/V Excalibur be combined into a coast-wide index for young-of-the-year Pacific whiting and rockfish; (2) Is a power transformation an acceptable way of modeling these processes and, if not, what other analytical techniques are more appropriate; (3) What processes affect the relationship between a survey index of pre-recruit abundance and model estimates of recruitment; and (4) How influential are pre-recruit survey data on historical estimated time-series of stock abundance and projections into the near term and how can the informational value of a pre-recruit survey to a stock assessment be evaluated?
All participants are encouraged to pre-register for the workshop by contacting Ms. Stacey Miller, Northwest Fisheries Science Center (NWFSC) by phone at (206) 860-3480 or by email at
Although non-emergency issues not contained in the meeting agenda may come before the workshop participants for discussion, those issues may not be the subject of formal workshop action during this meeting. Workshop action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold a joint meeting of the South Atlantic Council and Gulf of Mexico Fishery Management Councils' King and Spanish Mackerel Committees. The Council will also hold a joint meeting of its Executive and Finance Committees, Personnel Committee (CLOSED SESSION), King and Spanish Mackerel Committee, Snapper Grouper Committee, Advisory Panel Selection Committee (CLOSED SESSION), and a meeting of the full Council. In addition, the Council will hold a public hearing on Amendment 14 to the Snapper Grouper Fishery Management Plan (FMP), a public hearing regarding a regulatory amendment to the Coastal Migratory Pelagics FMP, and a public input session.
The meeting will be held September 18 through September-22, 2006. See
The meeting will be held at the Westin Hotel, 2 Grasslawn Avenue, Hilton Head, SC 29928; telephone: (1-800) 937-8461 or (843) 681-4000, fax: (843) 681-7004. Copies of documents are available from Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699.
Kim Iverson, Public Information Officer; telephone: 843/571-4366 or toll free at 866/SAFMC-10; fax: (843) 769-4520; e-mail:
The South Atlantic and Gulf of Mexico Fishery Management Councils' Mackerel Committees will meet jointly to receive and overview of issues affecting the mackerel fishery, review a draft decision document, and take action as appropriate. The Committees will also receive a review of the South Atlantic Council's regulatory amendment to reduce the Total Allowable Catch (TAC) for Atlantic Group king and Spanish Mackerel and change the Atlantic migratory group Spanish mackerel commercial trip limit to track recent changes in the fishing year.
The Executive and Finance Committees will meet jointly to review the status of the Regional Operational Agreement (ROA) between the Council and NOAA Fisheries' Southeast Regional Office (SERO), receive an update on the Calendar Year 2006 budget, and status report of the Fiscal Year 2007 Congressional budget.
The Personnel Committee will meet in Closed Session to discuss personnel issues.
(1) Amendment 14 to the Snapper Grouper FMP - Proposed marine protected areas.
(2) Mackerel Regulatory Amendment - Changes in Total Allowable Catch for Atlantic group king and Spanish mackerel, and change to commercial trip limit for Atlantic group Spanish mackerel to reflect the new fishing year.
The Council's Mackerel Committee will meet to review the regulatory amendment and develop recommendations. The Committee will also review the issues in the mackerel fishery included in the decision document and develop recommendations for public scoping for the mackerel fishery.
The Snapper Grouper Committee will receive an update on Oculina evaluation activities and develop recommendations to staff as necessary. The Committee will also receive a status report on Amendment 14 to the Snapper Grouper FMP regarding marine protected areas and provide direction/clarification on issues relevant to the amendment. In addition, the Committee will receive an update on the development of Amendment 15 regarding rebuilding schedules for overfished species of snapper and grouper, and provide direction to staff as necessary. NOAA Fisheries' SERO will provide presentations on (1) Final 2005 landings for species in Amendment 13C, (2) the status of Amendment 13C Final Rule, and (3) the status of the quota monitoring program and a report on the level of 2006 landings for species in Amendment 13C. The Committee will develop recommendations as necessary.
Members of the public are invited to address the Council on items listed on the agenda or any other fishery issue that falls under the jurisdiction of the Council.
The Advisory Panel Selection Committee will review advisory panel applications and develop recommendations for Council consideration.
Documents regarding these issues are available from the Council office (see
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
Except for advertised (scheduled) public hearings and public comment, the times and sequence specified on this agenda are subject to change.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce; U.S. Fish and Wildlife Service (FWS), Interior.
Notice; receipt of application.
Notice is hereby given that the Darlene R. Ketten, Ph.D., Woods Hole Oceanographic Institution, Biology Department, MRF- Room 233, MS 50, Woods Hole, MA 02543 has applied in due form for a permit from NMFS and FWS to take parts from species of marine mammals for purposes of scientific research.
Written or telefaxed comments must be received on or before September 27, 2006.
The application request and related documents are available for review upon written request or by appointment in the following office(s):
Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 713-2289; fax (301) 427-2521;
Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978) 281-9200; fax (978) 281-9371; and
U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 700, Arlington, VA 22203; phone (800) 358-2104; fax (703) 358-2281.
Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate.
Comments may also be submitted by facsimile at (301) 427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.
Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is
Jennifer Skidmore or Kate Swails, Office of Protected Resources, NMFS, (301) 713-2289.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
Dr. Ketten is requesting a permit for the possession and worldwide import/export of marine mammal and endangered species parts from the orders of Cetacea (dolphins, porpoises and whales), Pinnipedia (seals, sea lions and walrus), Carnivora (sea otter,
The research proposed by Dr. Ketten utilizes three-dimensional analyses of aquatic mammals ears to generate estimates of auditory sensitivity, seeking to determine how structural elements of these ears contribute to underwater hearing. Mathematical models and three-dimensional reconstructions of
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
Department of Defense, DoD.
Notice of Advisory Committee Meeting.
The Defense Business Board (DBB) will meet in open session on Wednesday, September 6, 2006 at the Pentagon, Washington, DC from 9:30 a.m. until 10 a.m. The mission of the DBB is to advise the Secretary of Defense on effective strategies for implementation of best business practices of interest to the Department of Defense. At this meeting, the Board will deliberate on their findings and recommendations related to Military Health System Governance and to the Alignment and Configuration of Business Activities.
Wednesday, September 6, 2006, 9:30 a.m. to 10 a.m.
1155 Defense Pentagon, 2C554, Washington, DC 20301-1155.
Members of the public who wish to attend the meeting must contact the Defense Business Board no later than Wednesday, August 30th for further information about escort arrangements in the Pentagon. Additionally, those who wish to provide input to the Board should submit written comments by Wednesday, August 30th to allow time for distribution to the Board members prior to the meeting.
The DBB may be contacted at: Defense Business Board, 1155 Defense Pentagon, Room 3C288, Washington, DC 20301-1155, via e-mail at
Due to an administrative oversight, this notice has not been published within the 15 day notification requirement.
Notice of open meeting.
This notice announces a meeting of the DAB-ESGR. This meeting will focus on the status of DoD actions and recommendations from previous DAB meetings and relevant discussions of DoD planning guidance for future mobilizations and targeted communications to employers. This meeting is open to the public.
0830-1530, September 22, 2006.
Interested attendees may contact LCDR Vic Lopez at 703 696-1386 x540, or e-mail at
Department of the Air Force, DoD.
Notice to alter a record system.
The Department of the Air Force proposes to alter a system of records notice to its existing inventory of records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The actions will be effective on September 27, 2006 unless comments are received that would result in a contrary determination.
Send comments to the Air Force Privacy Act Officer, Office of Warfighting Integration and Chief Information Officer, SAF/XCISI, 1800 Air Force Pentagon, Suite 220, Washington, DC 20330-1800.
Ms. Novella Hill at (703) 588-7855.
The Department of the Air Force's record system notices for records systems 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 August 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).
Investigative Support Records (June 11, 1997, 62 FR 31973).
Delete entry and replace with “Investigative Information Management System (I2MS).”
Delete entry and replace with “Headquarters, Air Force Office of Special Investigations (AFOSI), 1535 Command Drive, Andrews AFB, MD 20762-7002.”
Delete entry and replace with “Any individual involved in, or suspected of being involved in, crimes or acts of terrorism affecting U.S. interests (
Delete entry and replace with “Reports of investigation, collection reports, statements of individuals, affidavits, correspondence, and other documentation pertaining to criminal collection activities, investigative surveys, technical, forensic, polygraph, and other investigative support to criminal and counterintelligence investigations to include source control documentation and region indices.”
Add a second paragraph to read “Data on individuals (victims, witnesses, complainants, offenders, and suspects) involved in incidents may include, but is not limited to, name; digital photograph; Social Security Number; date of birth; place of birth; home address and telephone number; duty/work address and telephone number; alias; race; ethnicity; sex; marital status; identifying marks (tattoos), scars, etc.); height; weight; eye and hair color; biometric data; date, location, nature and details of the incident/offense to include whether alcohol, drugs and/or weapons were involved; driver's license information; tickets issued; vehicle information; whether bias against any particular group was involved or if offense involved sexual harassment; actions taken by military commanders (
Delete entry and replace with “10 U.S.C. Chapter 47, Uniform Code of Military Justice, and 8013, Secretary of the Air Fore; 18 U.S.C. 922 note, Brady Handgun Violence Prevention Act; 28 U.S.C. 534 note, Uniform Federal Crime Reporting Act; 42 U.S.C. 10601 et seq., Victims Rights and Restitution Act of 1990; and E.O. 9397; DoD Directive 7730.47, Defense Incident Based Reporting System (DIBRS).”
Delete entry and replace with “To conduct and exercise overall responsibility within the Department of Air Force for all matters pertaining to the investigation of alleged crimes and acts of terrorism committed against U.S. citizens, U.S. property or interest; used in judicial and adjudicative proceedings including litigation or in accordance with a court order; and reporting of statistical data to Department of Defense officials.
To assist (1) AFOSI and other Military commanders in directing and supporting criminal investigative, law enforcement, counterintelligence, and distinguished visitor protection program; (2) in managing the AFOSI criminal and counterintelligence investigative program at the various USAF and U.S. military installations worldwide; (3) USAF and other military commander sin identifying areas of possible criminality and in developing and managing the installation law enforcement, include crime prevention, program; (4) in managing the AFOSI source program; (5) in determining if, in fact, possible criminal activity requiring further specialized investigation is occurring in a specific area; (6) USAF and other authorized individuals to request AFOSI investigation; (7) USAF and other military commanders, as well as Department of Justice officials, to determine if judicial or administrative action is warranted; (8) in joint investigations by AFOSI and Federal, state, or local law enforcement agencies; (9) in joint investigations by AFOSI and foreign law enforcement agencies; (10) in developing and managing the AFOSI Distinguished Visitor Protection Program; (11) in developing and managing the AFOSI Investigative Survey Program for both appropriated and non-appropriated fun activities; (12) in recording technical investigative support provided to other investigative activities; (13) in reporting forensic and polygraph support to other investigative activities; (14) HQ USAF activities in the promotion, reassignment, and similar personnel actions for Air Force personnel only.
To serve as a repository of criminal and non-criminal incidents used to satisfy statutory and regulatory reporting requirements: to provide crime statistics required by the Department of Justice (DoJ) under the Uniform Federal Crime Reporting Act; to provide personal information required by the DoJ under the Brady Handgun Violence Prevention Act; to provide statistical information required by DoD under the Victim's Rights and Restitution Act; to enhance AF's capability to analyze trends and to respond to executive, legislative, and oversight requests for statistical crime data relating to criminal and other high-interest incidents; to provide such data as other federal laws may require.”
Delete second paragraph and replace with “To the United States Citizenship and Immigration Service for purposes of immigration and naturalization investigations.”
Delete third paragraph and replace with “To Federal medical and forensic laboratory personnel to assist in making laboratory tests and medical examinations in support of the investigative, judicial, and administrative process.
To the Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), and other counterintelligence/intelligence agencies in matters pertaining to hostile intelligence activities and terrorism directed against the U.S., its installations, personnel, and allies.”
Delete fourth paragraph and replace with “To the Department of Veterans Affairs for purposes of verifying and settling claims.”
Delete fifth paragraph and replace with “To the Department of State and
Delete sixth paragraph and replace with “To the U.S. Secret Service for purposes of aiding and assisting in the provision of protective services to the President, Vice President, and other designated officials.”
Add a new routine to read “To the Department of Justice for criminal reporting purposes as required by the Brady Handgun Violence Prevention Act.”
Add a new routine use to read “To courts and state, local, and foreign law enforcement agencies for purpose of criminal or civil investigative or judicial proceedings.”
Add a new routine use to read “To victims and witnesses for purposes of complying with the requirements of the Victim and Witness Assistance Program, the Sexual Assault Prevention and Response Program, and the Victims' Rights and Restitution Act of 1990.”
Delete entry and replace with “Maintained on computers and computer output products; maintained in file folders, video and audio tape.”
Delete entry and replace with “Retrieved by Name, Social Security Number, or Case File Number.”
Delete entry and replace with “Records are accessed by custodian of the records system and by persons responsible for servicing the records system in performance of their official duties who are properly screened and cleared for need-to-know. Buildings are equipped with alarms, security guards, and/or security-controlled areas accessible only to authorized persons. Electronically and optically stored records are maintained in “fail-safe” system software with password-protected access.”
Delete entry and replace with “Record paper and electronic copies of criminal and counterintelligence investigative cases at HQ AFOSI are retained under the same criteria assigned to the substantive case supported (as determined by Public Law and/or DoD and Air Force records retention rules).
At AFOSI field units, documentation is transferred to HQ AFOSI/XILI and once receipt is confirmed it is destroyed at the field unit after 90 days for criminal or one year for counterintelligence cases, after command action is reported to HQ AFOSI, or when no longer needed, whichever is sooner.
Source control documentation at HQ AFOSI is destroyed after 25 years. At AFOSI field units, hard copy source documentation is destroyed one year after termination of source use.
Paper copies furnished USAF Commanders are destroyed when all actions are completed and reported to AFOSI or when no longer needed.
At HQ AFOSI, all copies of reciprocal investigations conducted on request of a local, state or federal investigative agency in the US, or host country investigative agencies overseas, are destroyed after one year. Copies retained by AFOSI field units are destroyed after 90 days.”
Delete entry and replace with “Director of Warfighting Integration, HQ AFOSI/XI, 1535 Command Drive, Andrews AFB, MD 20762-7002.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Chief, Information Release Branch, HQ AFOSI/XILI, ATTN: Freedom of Information/Privacy Act Officer, PO Box 2218, Waldorf, MD 20604-2218, or via e-mail to
Delete entry and replace with “Individuals seeking access to information about themselves should address written inquiries to the Chief, Information Release Branch, HQ AFOSI/XILI, ATTN: Freedom of Information/Privacy Act Officer, PO Box 2218, Waldorf, MD 20604-2218, or via e-mail to
Delete entry and replace with “The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 33-332; 32 CFR part 806b; or may be obtained from the system manager.”
Delete entry and replace with “Individuals (suspects, witnesses, victims, informants, DoD personnel and other individuals); DoD record systems; Federal, state, local, and foreign law enforcement agencies; Federal, state, local and foreign governmental agencies and non-governmental organizations; and other sources that may provide pertinent information relevant to the investigative proceedings.”
Investigative Information Management System (I2MS)
Headquarters, Air Force Office of Special Investigations (AFOSI), 1535 Command Drive, Andrews AFB, MD 20762-7002.
Any individual involved in, or suspected of being involved in, crimes or acts of terrorism affecting U.S. interests (
Reports of investigation, collection reports, statements of individuals, affidavits, correspondence, and other documentation pertaining to criminal collection activities, investigative surveys, technical, forensic, polygraph, and other investigative support to criminal and counterintelligence investigations to include source control documentation and region indices.
Data on individuals (victims, witnesses, complainants, offenders, and suspects) involved in incidents may include, but is not limited to, name; digital photograph; Social Security Number; date of birth; place of birth; home address and telephone number; duty/work address and telephone number; alias; race; ethnicity; sex;
10 U.S.C. Chapter 47, Uniform Code of Military Justice, and 8013, Secretary of the Air Force; 18 U.S.C. 922 note, Brady Handgun Violence Prevention Act; 28 U.S.C. 534 note, Uniform Federal Crime Reporting Act; 42 U.S.C. 10601
To conduct and exercise overall responsibility within the Department of Air Force for all matters pertaining to the investigation of alleged crimes and acts of terrorism committed against U.S. citizens, U.S. property or interests; used in judicial and adjudicative proceedings including litigation or in accordance with a court order; and reporting of statistical data to Department of Defense officials.
To assist (1) AFOSI and other military commanders in directing and supporting criminal investigative, law enforcement, counterintelligence, and distinguished visitor protection programs; (2) in managing the AFOSI criminal and counterintelligence investigative program at the various USAF and U.S. military installations worldwide; (3) USAF and other military commanders in identifying areas of possible criminality and in developing and managing the installation law enforcement, to include crime prevention, programs; (4) in managing the AFOSI source program; (5) in determining if, in fact, possible criminal activity requiring further specialized investigation is occurring in a specific area; (6) USAF and other authorized individuals to request AFOSI investigations; (7) USAF and other military commanders, as well as Department of Justice officials, to determine if judicial or administrative action is warranted; (8) in joint investigations by AFOSI and Federal, state, or local law enforcement agencies; (9) in joint investigations by AFOSI and foreign law enforcement agencies; (10) in developing and managing the AFOSI Distinguished Visitor Protection Program; (11) in developing and managing the AFOSI Investigative Survey Program for both appropriated and non-appropriated fund activities; (12) in recording technical investigative support provided to other investigative activities; (13) in reporting forensic and polygraph support to other investigative activities; (14) HQ USAF activities in the promotion, reassignment, and similar personnel actions for Air Force personnel only.
To serve as a repository of criminal and non-criminal incidents used to satisfy statutory and regulatory reporting requirements: to provide crime statistics required by the Department of Justice (DoJ) under the Uniform Federal Crime Reporting Act; to provide personal information required by the DoJ under the Brady Handgun Violence Prevention Act; to provide statistical information required by DoD under the Victim's Rights and Restitution Act; to enhance AF's capability to analyze trends and to respond to executive, legislative, and oversight requests for statistical crime data relating to criminal and other high-interest incidents; to provide such data as other federal laws may require.
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:
To the United States Citizenship and Immigration Service for purposes of immigration and naturalization investigations.
To Federal medical and forensic laboratory personnel to assist in making laboratory tests and medical examinations in support of the investigative, judicial, and administrative process.
To the Central Intelligence Agency (CIA), Federal Bureau of Investigation (FBI), and other counterintelligence/intelligence agencies in matters pertaining to hostile intelligence activities and terrorism directed against the U.S., its installations, personnel, and allies.
To the Department of Veterans Affairs for purposes of verifying and settling claims.
To the Department of State and U.S. embassies overseas for purposes of providing information affecting U.S. diplomatic relations with foreign nations.
To the U.S. Secret Service for purposes of aiding and assisting in the provision of protective services to the President, Vice President, and other designated officials.
To the Department of Justice for criminal reporting purposes as required by the Brady Handgun Violence Prevention Act.
To courts and state, local, and foreign law enforcement agencies for purposes of criminal or civil investigative or judicial proceedings.”
To victims and witnesses for purposes of complying with the requirements of the Victim and Witness Assistance Program, the Sexual Assault Prevention and Response Program, and the Victims' Rights and Restitution Act of 1990.
The DoD ‘Blanket Routine Uses’ published at the beginning of the Air Force's compilation of systems of records notices apply to this system.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Maintained on computers and computer output products; maintained in file folders, video and audio tape.
Retrieved by Name, Social Security Number, or Case File Number.
Records are accessed by custodian of the records system and by persons responsible for servicing the records system in performance of their official duties who are properly screened and cleared for need-to-know. Buildings are equipped with alarms, security guards, and/or security-controlled areas accessible only to authorized persons. Electronically and optically stored records are maintained in “fail-safe” system software with password-protected access.
Record paper and electronic copies of criminal and counterintelligence investigative cases at HQ AFOSI are retained under the same criteria assigned to the substantive case supported (as determined by Public Law and/or DoD and Air Force records retention rules).
At AFOSI field units, documentation is transferred to HQ AFOSI/XILI and
Source control documentation at HQ AFOSI is destroyed after 25 years. At AFOSI field units, hard copy source documentation is destroyed one year after termination of source use.
Paper copies furnished USAF Commanders are destroyed all when all actions are completed and reported to AFOSI or when no longer needed.
At HQ AFOSI, all copies of reciprocal investigations conducted on request of a local, state or federal investigative agency in the U.S., or host country investigative agencies overseas, are destroyed after one year. Copies retained by AFOSI field units are destroyed after 90 days.
Director of Warfighting Integration, HQ AFOSI/XI, 1535 Command Drive, Andrews AFB, MD 20762-7002.
Individuals seeking to determine whether information about themselves is contained in this system of records should address written inquiries to the Chief, Information Release Branch, HQ AFOSI/XILI, ATTN: Freedom of Information/Privacy Act Officer, P.O. Box 2218, Waldorf, MD 20604-2218-, or via e-mail to
Individuals seeking access to information about themselves should address written inquiries to the Chief, Information Release Branch, HQ AFOSI/XILI, ATTN: Freedom of Information/Privacy Act Officer, P.O. Box 2218, Waldorf, MD 20604-2218-, or via e-mail to
The Air Force rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Air Force Instruction 33-332; 32 CFR part 806b; or may be obtained from the system manager.
Individuals (suspects, witnesses, victims, informants, DoD personnel and other individuals); DoD record systems; Federal, state, local, and foreign law enforcement agencies; Federal, state, local and foreign governmental agencies and non-governmental organizations; and other sources that may provide pertinent information relevant to the investigative proceedings.
Parts of this system may be exempt under 5 U.S.C. 552a(j)(2), as applicable.
An exemption rule for this record system has been promulgated in accordance with 5 U.S.C. 553(b)(1), (2) and (3) and (e) and published in 32 CFR part 806b. For additional information contact the system manager.
Department of the Army.
Notice to alter a system of records.
The Department of the Army is proposing to alter 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 September 27, 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. 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 August 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).
AAFES Customer Service (May 31, 2002, 67 FR 38070).
Delete entry and replace with “Army and Air Force Exchange Service (AAFES) customers including but not limited to those who make purchases, use the services of the Customer Service Desk, purchase merchandise on a time payment, layaway, or special order basis, or who need purchase adjustments or refunds.”
After AR 60-10, insert “Army Regulation 60-20, Army and Air Force Exchange Service Operation Policies.”
Add at the end of the entry “and, to help detect and prevent criminal activity, and identify potential abuse of exchange privileges.”
AAFES Customer Service.
Headquarters, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598; Army and Air Force Exchange Service-Europe Region, Building 4001, In der Witz 14-18, 55252 Mainz-Kastel, Germany, APO 09251-4580; and Exchange Regions and Area Exchanges at posts, bases, and satellites world-wide. Official mailing addresses are published as an appendix to the Army's compilation of systems of records notices.
Army and Air Force Exchange Service (AAFES) customers including but not limited to those who make purchases, use the services of the Customer Service Desk, purchase merchandise on a time payment, layaway, or special order basis, or who need purchase adjustments or refunds.
Individual's name, address, and Social Security Number, copies of layaway tickets, requests for refunds, special order forms/procurement request/logs, cash receipt/charge or credit vouchers, rebate coupons, register transaction journal/log, repair vouchers, warranty documents, shipping/delivery information, correspondence between AAFES and the customer and/or vendor.
10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 8013, Secretary of the Air Force; Army Regulation 25-1, Morale, Welfare, and Recreation Activities and Non-Appropriated Fund Instrumentalities; Army Regulation 60-10, Army and Air Force Exchange Service General Policies; Army Regulation 60-20, Army and Air Force Exchange Service Operation Policies; and E.O. 9397 (SSN).
To record customer transactions/payment for layaway and special orders; to determine payment status before finalizing transactions; to identify account delinquencies and prepare customer reminder notices; to mail refunds on canceled layaway or special orders; to process purchase refunds; to document receipt from customer of merchandise subsequently returned to vendors for repair or replacement, shipping/delivery information, and initiate follow-up actions; to monitor individual customer refunds; to perform market basket analysis; to improve efficiency of marketing system(s); and, to help detect and prevent criminal activity, and identify potential abuse of exchange privileges.
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.
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to ‘consumer reporting agencies’ as defined in the Fair Credit Reporting Act (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)). The purpose of this disclosure is to aid in the collection of outstanding debts owed to the Federal government; typically to provide an incentive for debtors to repay delinquent Federal government debts by making these debts part of their credit records.
Disclosure of records is limited to the individual's name, address, Social Security Number, and other information necessary to establish the individual's identity; the amount, status, and history of the claim; and the agency program under which the claim arose. This disclosure will be made only after the procedural requirement of 31 U.S.C. 3711(f) has been followed.
Paper in file folders and on electric storage media.
By customer's surname, Social Security Number, document control number, and/or due date.
Records are maintained in secured areas, accessible only to authorized personnel having need for the information in the performance of their duties.
Cancelled or completed layaway tickets are held for 6 months after cancellation or delivery of merchandise; purchase orders are retained for 2 years; transaction records are retained for 2 years; refund vouchers are retained for 6 years; returned merchandise slips are retained for 6 years; cash receipt vouchers are retained for 3 years; repair/replacement order slips are held 2 years. All records are destroyed by shredding, all electronic records are destroyed by erasing/reformatting the media.
Commander, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commander, Army and Air Force Exchange Service, ATTN: SD, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide name and sufficient details of purchaser to enable locating pertinent records, current address and telephone number.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, Army and Air Force Exchange Service, ATTN: SD, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide name and sufficient details of purchase to enable locating pertinent records, current address and telephone number.
The Army's rules for accessing records and for contesting contents and appealing initial agency determinations are contained in Army Regulation 340-21; CFR part 505; or may be obtained from the system manager.
From the individual and/or vendor.
None.
Department of the Army.
Notice to alter a system of records.
The Department of the Army is proposing to alter 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 September 27, 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. 52a(r) of the Privacy Act of 1974, as amended, was submitted on August 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).
Customer Comments, Inquiries, and Direct Line Files (August 9, 1996, 61 FR 41572).
Delete name and replace with “Customer Solicitations, comments, Inquiries, and Direct Line Records.”
Add to entry “customers' e-mail solicitations.”
Delete entry and replace with “10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 8013, Secretary of the Air Force; Army Regulation 60-10, Army and Air Force Exchange Service General Policies; and Army Regulation 60-20, Army and Air Force Exchange Service Operating Policies.”
Delete entry and replace with “To aid the Exchange management in determining needs of customers and action required to settle customer complaints and to electronically notify potential customers, who voluntarily provide their e-mail address, information about special events, sales, and other information about shopping at the Exchange.”
Delete entry and replace with “Paper records in file folders and on electronic storage media.”
Add at the end of the entry “and local managers at Exchanges world-wide.”
Customer Solicitations, Comments, Inquiries, and Direct Line Records.
Headquarters, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598; Army and Air Force Exchange Service-Europe Region, Building 4001, In der Witz 14-18, 55252 Mainz-Kastel, Germany; and Exchange Regions and Area Exchanges at posts, bases, and satellites world-wide. Official mailing addresses are published as an appendix to the Army's compilation of systems of records notices.
Users of the Army and Air Force Exchange Service who make inquiries, complaints, or comments on its operations.
Customer's name, address and telephone number, information pertaining to the subject of inquiry, complaint, or comment and response thereto; customer opinion survey data; and customers' e-mail solicitations.
10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 8013, Secretary of the Air Force; Army Regulation 60-10, Army and Air Force Exchange Service General Policies; and Army Regulation 60-20, Army and Air Force Exchange Service Operating Policies.
To aid the Exchange management in determining needs of customers and action required to settle customer complaints and to electronically notify potential customers, who voluntarily provide their e-mail address, information about special events, sales, and other information about shopping at the Exchange.
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.
Paper records in file folders and on electronic storage media.
By customer's name.
Records are accessible only by designated employees having official need therefore. Buildings housing records are protected by security guards.
Records are destroyed by shredding after 3 years.
Commander, Army and Air Force Exchange Service, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598, and local managers at Exchanges world-wide.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commander, Army and Air Force Exchange Service, ATTN: Director, Public Affairs Division, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide their full name, current address and telephone number, case number that appeared on correspondence received from AAFES, and signature.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, Army and Air Force Exchange Service, ATTN: Director, Public Affairs Division, 3911 S. Walton Walker Boulevard, Dallas, TX 75236-1598.
Individual should provide their full name, current address and telephone number, case number that appeared on correspondence received from AAFES, and signature.
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.
U.S. Army Corps of Engineers, DOD.
Notice of intent.
The U.S. Army Corps of Engineers (Corps) is initiating the preparation of an Environmental Impact Statement under the National Environmental Policy Act (NEPA). The EIS is for a Department of the Army permit issued under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act to install the infrastructure necessary to support an approximately 500-acre development of water dependent and industrial facilities at the Port of Vancouver.
Ms. Janice Stuart, Project Manager, Portland District, Corps of Engineers, CENWP-OD-G, 333 SW. First Avenue, P.O. Box 2946, Portland, Oregon 97208-2946, phone: (503) 808-4393.
The Port of Vancouver has submitted an application to the Corps for a Department of the Army permit to develop a multi-faceted port facility that would create economic development opportunities for water dependent and industrial facilities at the Port of Vancouver. These facilities are necessary to generate increased employment opportunities for Vancouver area residents and enhance the import and export opportunities within the Lower Columbia River region.
The proposed action would require the discharge of dredged or fill material into waters of the United States, including wetlands, under Section 404 of the Clean Water Act and affect navigable waters of the United States under Section 10 of the Rivers and Harbors Act. Before making permitting decisions, the Corps is required to evaluate potential effects on the human environment under the National Environmental Policy Act (NEPA).
The Corps will also need to demonstrate compliance with Endangered Species Act and the National Historic Preservation Act before a permit can be issued. The proposed action must also be reviewed by the City of Vancouver for Compliance with the Washington State Growth Management Act, Shoreline Management Act, State Environmental Policy Act (SEPA) and City of Vancouver Development Code. This EIS is intended to meet the requirements for SEPA compliance. Alternatives to be evaluated in the EIS include No Action and development of approximately 500 acres of Port-owned property adjacent to the Columbia River. Significant issues to be analyzed in the EIS include effects the proposed action may have on wetlands, endangered species, air quality, water quality and quantity, noise, transportation, and public facilities.
The railroad improvements to serve the existing facilities at the Port of Vancouver and the NW 26th Avenue extension will be analyzed under separate NEPA processes. Both projects are independent of the development of Columbia Gateway.
The Corps will conduct a public scoping meeting for this EIS on September 12, 2006, 4 to 7 p.m. at the Port of Vancouver, 3103 NE. Lower River Road, Vancouver, Washington. Affected Federal, state, and local agencies; Indian tribes; and other interested organizations and individuals are asked to provide input to the Corps on the scope of this EIS. To ensure consideration, input on the scope should be provided to the Corps by September 25, 2006. The Corps will provide notice to the public of additional opportunities for public input on the EIS during review periods for the draft and final EIS. The draft EIS is currently scheduled to be available for public review Summer 2007.
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 September 27, 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.
Not-for-profit institutions.
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
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, September 13, 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:
Southeastern Power Administration, DOE.
Notice of rate order.
The Deputy Secretary, Department of Energy, confirmed and approved, on an interim basis, Rate Schedules VA-1-A, VA-2-A, VA-3-A, VA-4-A, CP&L-1-A, CP&L-2-A, CP&L-3-A, CP&L-4-A, AP-1-A, AP-2-A, AP-3-A, AP-4-A, NC-1-A, Replacement-2, and VANC-1. The rates were approved on an interim basis through September 30, 2011, and are subject to confirmation and approval by the Federal Energy Regulatory Commission on a final basis.
Approval of rates on an interim basis is effective October 1, 2006.
Leon Jourolmon, Assistant Administrator, Finance & Marketing, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635-4578, (706) 213-3800.
The Federal Energy Regulatory Commission, by Order issued March 6, 2002, in Docket No. EF01-3041-000, confirmed and approved Wholesale Power Rate Schedules VA-1, VA-2, VA-3, VA-4, CP&L-1, CP&L-2, CP&L-3, CP&L-4, AP-1, AP-2, AP-3, AP-4, and NC-1 through September 30, 2006. This order replaces these rate schedules.
Pursuant to sections 302(a) and 301(b) of the Department of Energy Organization Act, Public Law 95-91, the functions of the Secretary of the Interior and the Federal Power Commission under section 5 of the Flood Control Act of 1944, 16 U.S.C. 825s, relating to the Southeastern Power Administration (SEPA), were transferred to and vested in the Secretary of Energy. By Delegation Order No. 00-037.00, effective December 6, 2001, the Secretary of Energy delegated: (1) The authority to develop power and transmission rates to Southeastern's Administrator, (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy, and (3) the authority to confirm approve, and place into effect on a final basis, to remand or to disapprove such rates to the Federal Energy Regulatory Commission (Commission). Existing DOE procedures for public participation in power rate adjustments (10 CFR part 903) were published on September 18, 1985.
Power from the Kerr-Philpott Projects is presently sold under Wholesale
Notice of a proposed rate adjustment for the Kerr-Philpott System, based on a repayment study prepared in February of 2006, was published in the
Comments have been condensed into three major categories. The three major categories are as follows:
1. Power Marketing Policy;
2. Inclusion of investments that are not currently used and useful;
3. Establishment of a true-up mechanism;
4. A question on Corps Operation & Maintenance (O&M) Expense; and
5. Questions directed at the Corps of Engineers (Corps).
SEPA has traditionally included the cost of power investment that is estimated to be in service during the cost evaluation period (normally 5 years). SEPA is setting the rate at the beginning of the cost evaluation period; therefore it must be an estimate of when it will go into service.
The budget process of the Corps is to request a new start for a major rehabilitation. The Corps may ask for several years of additional appropriations to complete the rehabilitation. When the first monies are appropriated the cost are included in the repayment study if the in service date is estimated to be within the cost evaluation period.
It should be noted that ¶ 10(l.) does not include a requirement that the replacements included in the Repayment Study to have been appropriated funds by Congress. The paragraph is discussing costs to be included beyond the cost evaluation period. These costs have not been appropriated and are estimated assuming the need to be made in order to keep the projects in good operating order. It should also be noted that RA 6120.2 does not include a requirement that the investment be “used and useful” before it can be included in the repayment study.
¶ 10(k.) requires that investment costs that “* * * will be in service within the cost evaluation period will be included.” At this time, the customers point out that it is unclear that the ongoing rehabilitation of the John H. Kerr Project will be complete at the end of the cost evaluation period, which is the end of Fiscal Year 2011. Accordingly, SEPA has removed these projected investment costs from the Repayment Study used to develop the proposed rate schedules, and established a true-up mechanism that is discussed in SEPA's response to comments 9 and 10.
The Repayment Study includes projections of future replacement costs for which funds have not been appropriated by Congress, as required by ¶ 10(l.) of RA 6120.2.
The Corps response follows each question.
An examination of SEPA's revised system power repayment study, prepared in July 2006, for the Kerr-Philpott System shows that with the proposed rates, all system power costs are paid within the 50-year repayment period required by existing law and DOE Procedure RA 6120.2. The Administrator of SEPA has certified that the rates are consistent with applicable law and that they are the lowest possible rates to customers consistent with sound business principles.
SEPA has reviewed the possible environmental impacts of the rate adjustment under consideration and has concluded that, because the adjusted rates would not significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, the proposed action is not a major Federal action for which preparation of an Environmental Impact Statement is required.
Information regarding these rates, including studies and other supporting materials, is available for public review in the offices of Southeastern Power Administration, 1166 Athens Tech Road, Elberton, Georgia 30635, and in the Power Marketing Liaison Office, James Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm and approve on an interim basis, effective October 1, 2001, attached Wholesale Power Rate Schedules VA-1-A, VA-2-A, VA-3-A, VA-4-A, CP&L-1-A, CP&L-2-A, CP&L-3-A, CP&L-4-A, AP-1-A, AP-2-A, AP-3-A, AP-4-A, NC-1-A, Replacement-2, and VANC-1. The Rate Schedules shall remain in effect on an interim basis through September 30, 2011, unless such period is extended or until the FERC confirms and approves them or substitutes Rate Schedules on a final basis.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia and North Carolina to whom power may be transmitted and scheduled pursuant to contracts between the Government, Virginia Electric and Power Company (hereinafter called the Company) , the Company's Transmission Operator, currently PJM Interconnection LLC (hereinafter called PJM), and the Customer. This rate schedule is applicable to customers receiving power from the Government on an arrangement where the Company schedules the power and provides the Customer a credit on their bill for Government power. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and any ancillary services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company or PJM. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and Ancillary Services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia and North Carolina to whom power may be transmitted pursuant to contracts between the Government, Virginia Electric and Power Company (hereinafter called the Company), the Company's Transmission Operator, currently PJM Interconnection LLC (hereinafter called PJM), and the Customer. The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government. The Government is responsible for arranging transmission with the Company and PJM. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and any ancillary services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company or PJM. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia and North Carolina to whom power may be transmitted pursuant to contracts between the Government, Virginia Electric and Power Company (hereinafter called the Company), the Company's Transmission Operator, currently PJM Interconnection LLC (hereinafter called PJM), and the Customer. The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government. The Government is responsible for arranging transmission with the Company and PJM. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and any ancillary services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company or PJM. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under Section 205 of the Federal Power Act or Southeastern Power Administration under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia and North Carolina served through the transmission facilities of Virginia Electric and Power Company (hereinafter called the Company) and PJM Interconnection LLC (hereinafter called PJM). The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects (hereinafter called the Projects) and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company or PJM. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under Section 205 of the Federal Power Act or Southeastern Power Administration under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be transmitted and scheduled pursuant to contracts between the Government and Carolina Power & Light Company (hereinafter called the Company) and the Customer. This rate schedule is applicable to customers receiving power from the Government on an arrangement where the Company schedules the power and provides the Customer a credit on their bill for Government power. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$1.0475 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The rate is subject to periodic adjustment and will be computed in accordance with the terms of the Government-Company contract.
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government on behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the terms of the Government-Company contract.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission, in accordance with the Government-Company contract, is six (6) per cent. This loss factor will be governed by the terms of the Government-Company contract.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be transmitted pursuant to contracts between the Government and Carolina Power & Light Company (hereinafter called the Company) and the Customer. The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government. The Government is responsible for arranging transmission with the Company. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$1.0475 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The rate is subject to periodic adjustment and will be computed in accordance with the terms of the Government-Company contract.
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the terms of the Government-Company contract.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission, in accordance with the Government-Company contract, is six (6) per cent. This loss factor will be governed by the terms of the Government-Company contract.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be scheduled pursuant to contracts between the Government and Carolina Power & Light Company (hereinafter called the Company) and the Customer. The Government is responsible for providing the scheduling. The Customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects (hereinafter called the Projects) and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the terms of the Government-Company contract.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission, in accordance with the Government-Company contract, is six (6) per cent. This loss factor will be governed by the terms of the Government-Company contract.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina served through the transmission facilities of Carolina Power & Light Company (hereinafter called the Company). The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects (hereinafter called the Projects) and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the terms of the Government-Company contract.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission, in accordance with the Government-Company contract, is six (6) per cent. This loss factor will be governed by the terms of the Government-Company contract.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia to whom power may be transmitted and scheduled pursuant to contracts between the Government, American Electric Power Service Corporation (hereinafter called the Company), the Company's Transmission Operator, currently PJM Interconnection LLC (hereinafter called PJM), and the Customer. This rate schedule is applicable to customers receiving power from the Government on an arrangement where the Company schedules the power and provides the Customer a credit on their bill for Government power. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia to whom power may be transmitted pursuant to contracts between the Government, American Electric Power Service Corporation (hereinafter called the Company), the Company's Transmission Operator, currently PJM Interconnection LLC (hereinafter called PJM), and the Customer. The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government. The Government is responsible for arranging transmission with the Company. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by American Electric Power Service Corporation under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia to whom power may be scheduled pursuant to contracts between the Government, American Electric Power Service Corporation (hereinafter called the Company), PJM Interconnection LLC (hereinafter called PJM), and the Customer. The Government is responsible for providing the scheduling. The Customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects (hereinafter called the Projects) and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia served through the facilities of American Electric Power Service Corporation (hereinafter called the Company) and PJM Interconnection LLC (hereinafter called PJM). The Customer has chosen to self-schedule and does not receive Government power under an arrangement where the Company schedules the power and provides a credit on the Customer's bill for Government power. The Customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects (hereinafter called the Projects) and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving the Company's or PJM's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The applicable energy loss factor for transmission is specified in the OATT.
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Virginia and North Carolina to whom power may be transmitted pursuant to a contract between the Government and Virginia Electric and Power Company (hereinafter called the Virginia Power) and PJM Interconnection LLC (hereinafter called PJM), scheduled pursuant to a contract between the Government and Carolina Power & Light Company (hereinafter called CP&L), and billed pursuant to contracts between the Government and the Customer. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the John H. Kerr and Philpott Projects and sold under appropriate contracts between the Government and the Customer.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Virginia Power's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$2.35 Per kilowatt of total contract demand per month.
9.38 Mills per kilowatt-hour.
The Capacity Charge and the Energy Charge will be subject to annual adjustment on January 1 of each year based on transfers to plant in service for the preceding Fiscal Year that are not included in the proposed repayment study. The adjustment will be for each increase of $1,000,000 to plant in service an increase of $0.01 per kilowatt per month added to the capacity charge and 0.04 mills per kilowatt-hour added to the energy charge.
Additional rates for Transmission and Ancillary Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Virginia Power and CP&L. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of Virginia Power's or CP&L's rate.
$2.43 Per kilowatt of total contract demand per month as of February 2006, is presented for illustrative purposes.
3.63 Mills per kilowatt-hour of energy as of February 2006, is presented for illustrative purposes.
The initial charge for transmission and ancillary services will be the Customer's ratable share of the charges for transmission, distribution, and ancillary services paid by the Government. The charges for transmission and ancillary services are governed by and subject to refund based upon the determination in proceedings before the Federal Energy Regulatory Commission (FERC) involving the Company's or PJM's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
$1.69 Per kilowatt of total contract demand per month, as an estimated cost as of February 2006.
The tandem transmission charge will recover the cost of transmitting power from a project to the border of another transmitting system. This rate will be a formulary rate based on the cost to the Government for transmission of power from the Philpott project to the border of the Virginia Electric and Power Company System and the cost to the Government for transmission of power from the John H. Kerr Project to the border of the Carolina Power & Light System.
The charges for Transmission and Ancillary Services shall be governed by and subject to refund based upon the determination in the proceeding involving Virginia Electric and Power Company's or Carolina Power & Light Company's Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. The
These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company or PJM under section 205 of the Federal Power Act or Southeastern Power Administration under section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and Virginia to whom power is provided pursuant to contracts between the Government and the customer from the John H. Kerr and Philpott Projects (or Kerr-Philpott System).
This rate schedule shall be applicable to the sale of wholesale energy purchased to meet contract minimum energy and sold under appropriate contracts between the Government and the Customer.
The energy supplied hereunder will be delivered at the delivery points provided for under appropriate contracts between the Government and the Customer.
The customer will pay its ratable share of Southeastern's monthly cost for replacement energy. The ratable share will be the cost allocation factor for the customer listed in the table below times Southeastern's monthly cost for replacement energy purchased for the Kerr-Philpott System, rounded to the nearest $0.01.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Facilitator (less any losses required by the Facilitator). The customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Facilitator's system.
The billing month for power sold under this schedule shall lend at 1200 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives or their agents (any one of whom is hereinafter called the Customer) in North Carolina and Virginia to whom transmission is provided from the PJM Interconnection LLC (hereinafter called PJM) or Carolina Power & Light Company (hereinafter called CP&L). The Customer must have a contractual arrangement with the Government to provide this service and currently pay the tandem transmission rate under another Kerr-Philpott rate schedule.
This rate schedule shall be applicable to transmission services provided and sold under appropriate contracts between the Government and the Customer.
The services supplied hereunder will be delivered at the delivery points provided for under appropriate contracts between the Government and the Customer.
The monthly charge will be the customer's ratable share of the transmission and ancillary services incurred by the Government in behalf of the customer.
The billing month for power sold under this schedule shall lend at 1200 midnight on the last day of each calendar month.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given by the U.S. Environmental Protection Agency (“EPA”), Region II, of a proposed administrative agreement pursuant to Section 122(h) of CERCLA, 42 U.S.C. 9622(h), for recovery of response costs concerning the Peter Cooper Landfill Superfund Site located in the Village of Gowanda, Cattaraugus County, New York (“Gowanda Site”) and the Peter Cooper (Markhams) Superfund Site located in the Town of
Comments must be submitted on or before September 27, 2006.
The proposed settlement is available for public inspection at EPA Region II offices at 290 Broadway, New York, New York 10007-1866. Comments should reference the Peter Cooper Landfill Superfund Site and the Peter Cooper (Markhams) Superfund Site located in the Village of Gowanda and the Town of Dayton, respectively, in Cattaraugus County, New York, Index No. CERCLA-02-2006-2018. To request a copy of the proposed settlement agreement, please contact the individual identified below.
George A. Shanahan, Assistant Regional Counsel, New York/Caribbean Superfund Branch, Office of Regional Counsel, U.S. Environmental Protection Agency, 17th Floor, 290 Broadway, New York, New York 10007-1866. Telephone: 212-637-3171; e-mail
U.S. Environmental Protection Agency (“Agency”).
Extension of notice; request for public comment on proposed administrative cost recovery settlement.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), 42 U.S.C. 9622(i), notice is hereby given of a proposed administrative settlement for recovery of past response costs concerning the Rawleigh Building site in Freeport, Illinois with the following settling parties: Tusc. Corp. No. 1, Inc., Tusc. Corp. No. 4, Inc., Tusc. International, GP, The Tuscarora Corporation.
The settlement requires the settling parties to pay $35,000 to the Hazardous Substance Superfund. The settlement includes a covenant not to sue the settling parties pursuant to Section 107(a) of CERCLA, 42 U.S.C. 9607(a).
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate.
Comments must be submitted on or before September 27, 2006.
The proposed settlement is available for public inspection at the U.S. EPA Records Center, Room 714, 77 West Jackson Boulevard, Chicago, Illinois 60604. A copy of the proposed settlement may be obtained from Steven P. Kaiser, Associate Regional Counsel, 77 West Jackson Boulevard, Chicago, Illinois 60604 whose telephone number is (312) 353-3804. Comments should reference the Rawleigh Building Site, U.S. EPA Docket No. V-W-06-C-844, and should be addressed to Steven P. Kaiser, Associate Regional Counsel, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Steven P. Kaiser, 77 West Jackson Boulevard, Chicago, Illinois 60604 whose telephone number is (312) 353-3804.
Background: Additional background information and/or the Agency's response to any comments received will be available for public inspection at the following locations:
The Comprehensive Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. 9601-9675.
Site ID: Spill ID Number B5 G4.
Federal Election Commission.
Notice of filing dates for special election.
Ohio has scheduled a special primary election on September 14, 2006, to fill the vacancy on the November 7, 2006, general election ballot that was created by the withdrawal of Representative Bob Ney.
Committees participating in the Ohio Special Primary Election are required to file pre-election reports.
Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463; Telephone: (202) 694-1100; Toll Free (800) 424-9530.
All principal campaign committees of candidates who participate in the Ohio Special Primary shall file a 12-day Pre-Primary Report on September 2, 2006. (See chart below for the closing date for each report).
Political committees filing on a quarterly basis in 2006 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Ohio Special Primary Election by the close of books for the applicable report(s). (See chart below for the closing date for each report).
Committees filing monthly that support candidates in the Ohio Special
As required by the Bipartisan Campaign Reform Act of 2002, the Federal Election Commission promulgated new electioneering communications rules governing television and radio communications that refer to a clearly identified Federal candidate and are distributed within 30 days prior to a special primary election or 60 days prior to a special general election. 11 CFR 100.29. The statute and regulations require, among other things, that individuals and other groups not registered with the FEC who make electioneering communications costing more than $10,000 in the aggregate in a calendar year disclose that activity to the Commission within 24 hours of the distribution of the communication. See 11 CFR 104.20.
The 30-day electioneering communications period in connection with the Ohio Special Primary runs from August 15, 2006 through September 14, 2006.
Federal Election Commission.
Notice of filing dates for special elections.
Texas has scheduled special elections on November 7, 2006, based upon an opinion and order by the U.S. District Court for the Eastern District of Texas, Marshall Division, in
There are two possible elections, but only one may be necessary. The majority winner of the special election in each district is declared elected. Should no candidate achieve a majority vote, the Secretary of State will then order and set the date for a Special Runoff Election that will include only the top two vote-getters. All runoff elections will be held on the same date.
Committees participating in the Texas special elections are required to file pre- and post-election reports.
Mr. Kevin R. Salley, Information Division, 999 E Street, NW., Washington, DC 20463; Telephone: (202) 694-1100; Toll Free (800) 424-9530.
All principal campaign committees of candidates participating in the Texas Special General Election shall file a 12-day Pre-General Report on October 26, 2006. If there is a majority winner, committees must also file a 30-day Post-General Report on December 7, 2006. (See chart below for the closing date for each report).
Political committees filing on a quarterly basis in 2006 are subject to special election reporting if they make previously undisclosed contributions or expenditures in connection with the Texas Special General Elections by the close of books for the applicable report(s). (See chart below for the closing date for each report).
Committees filing monthly that support candidates in the Texas Special General Elections should continue to file according to the monthly reporting schedule.
As required by the Bipartisan Campaign Reform Act of 2002, the Federal Election Commission promulgated new electioneering communications rules governing television and radio communications that refer to a clearly identified Federal candidate and are distributed within 60 days prior to a special general election. See 11 CFR 100.29. The statute and regulations require, among other things, that individuals and other groups not registered with the FEC who make electioneering communications costing more than $10,000 in the aggregate in a calendar year disclose that activity to the Commission within 24 hours of the distribution of the communication. See 11 CFR 104.20.
The 60-day electioneering communications period in connection with the Texas Special General runs from September 8, 2006, through November 7, 2006.
In the event that no candidate receives a majority of the votes in a Special General Election, a Special Runoff Election will be held. The Commission will publish a future notice giving the filing dates for that election if it becomes necessary.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 22, 2006.
Board of Governors of the Federal Reserve System, August 22, 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 Web site at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 22, 2006.
Board of Governors of the Federal Reserve System, August 23, 2006.
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection 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.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access the HHS Web site address at
Office of the Secretary, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection 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.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access the HHS Web site address at
Announcement of meeting.
This notice announces the eighth meeting of the American Health Information Community Consumer Empowerment Workgroup in accordance with the Federal Advisory Committee Act (Pub. L. No. 92-463, 5 U.S.C., App.)
September 7, 2006, from 9 a.m. to 11 a.m.
Mary C. Switzer Building (330 C Street, SW., Washington, DC 20201), Conference Room 4090 (please bring photo ID for entry to a Federal building).
The meeting will be available via Web cast at
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Evaluation of Efficacy of Household Water Filtration/Treatment Devices in Households with Private Wells—Extension—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
Approximately 42.4 million people in the United States are served by private wells. Unlike community water systems, private wells are not regulated by the U.S Environmental Protection Agency's (EPA) Safe Drinking Water Act (SDWA). Under the SDWA, EPA sets maximum contaminant levels (MCLs) for contaminants in drinking water. A 1997 U.S. General Accounting Office (GAO) report on drinking water concluded that users of private wells may face higher exposure levels to groundwater contaminants than users of community water systems. Increasingly, the public is concerned about drinking water quality, and the public's use of water treatment devices rose from 27% in 1995 to 41% in 2001 (
The purpose of the proposed study is to evaluate how water treatment device efficacy is affected by user behaviors such as maintenance and selection of appropriate technologies. Working with public health authorities in Colorado, Maine, Missouri, Nebraska, North Carolina, and Wisconsin, NCEH will recruit 600 households to participate in a study to determine whether people using water treatment devices are protected from exposure to contaminants found in their well water. We plan to recruit households on private well water that use water filtration/treatment devices to treat tap water for drinking and cooking. Study participants will be selected from geographical areas of each state where groundwater is known or suspected to contain contaminants of public health concern. We will administer a questionnaire at each household to obtain information on selection of water treatment type, adherence to suggested maintenance, and reasons for use of treatment device. We will also obtain samples of treated water and untreated well water at each household to analyze for contaminants of public health concern. There is no cost to respondents other than their time. The total estimated annual burden hours are 300.
The LIHEAP leveraging report obtains information on the resources leveraged by LIHEAP grantees each fiscal year (as cash, discounts, wailers, and in-kind); the benefits provided to low-income households by these resources (for example, as fuel and payments for fuel, as home heating and cooling equipment, and as weatherization materials and installation); and the fair market value of these resources/benefits. HHS needs this information in order to carry out statutory requirements for administering the LIHEAP leveraging incentive program, to determine countability and valuation of grantees' leveraged non-federal home energy resources, and to determine grantees' shares of leveraging incentive funds. HHS proposes to request a three-year extension of OMB approval for the currently approved LIHEAP leveraging report information collection.
The statistical report requires States, the District of Columbia, and the Commonwealth of Puerto Rico to report on assisted households having at least one elderly person who is homebound; an unduplicated count of assisted households having at least one member who is elderly, disabled, or a young child; and an unduplicated count of assisted households receiving one or more types of LIHEAP assistance.
Insular areas receiving less than $200,000 annually in LIHEAP funds and Indian Tribal Grantees are required to submit data only on the number of households receiving heating, cooling, energy crisis, or weatherization benefits. The information is being collected for the Department's annual LIHEAP report to Congress. The data also provides information about the need for LIHEAP funds. Finally, the data are used in the calculation of LIHEAP performance measures under the Government Performance and Results Act of 1993. The additional data elements will improve the accuracy of measuring LIHEAP targeting performance and LIHEAP cost efficiency.
In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Administration, Office of Information Services, 370 L'Enfant Promenade, SW., Washington, DC 20447, attn: ACF Reports Clearance Officer. E-mail address:
The Department specifically requests comments on (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Heart, Lung, and Blood Institute (NHLBI), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
The annualized cost to respondents is estimated at $60,525, assuming respondents time at the rate of $16.5 per hour and physician time at the rate of $75 per hour. There are no Capital Costs to report. There are no Operating or Maintenance Costs to report.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Hanyu Ni, Project Officer, NIH, NHLBI, 6701 Rockledge Drive, MSC 7934, Bethesda, MD 20892-7934, or call non-toll-free number 301-435-0448 or e-mail your request, including your address to:
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Heart, Lung, and Blood Institute (NHLBI), the National Institutes of Health (NIH), will publish periodic summaries of proposed projects to the Office of Management and Budget (OMB) for review and approval.
The primary goal of the study is to evaluate the effects of blood donation intensity on iron and hemoglobin status and assess how these are modified as a function of baseline iron/hemoglobin measures, demographic factors, and reproductive and behavioral factors. Hemoglobin levels, a panel of iron protein, red cell and reticulocyte indices will be measured at baseline and at a final follow-up visit 15-24 months after the baseline visit. A DNA sample will be obtained once at the baseline visit to assess three key iron protein polymorphisms. Donors will also complete a self-administered survey assessing past blood donation, smoking history, use of vitamin/mineral supplements, iron supplements, aspirin, frequency of heme rich food intake, and, for females, menstrual status and pregnancy history at these two time points. This study aims to identify the optimal laboratory measures that would predict the development of iron depletion, hemoglobin deferral, and/or iron deficient hemoglobin deferral in active whole blood and double red cell donors at subsequent blood donations. The data collected will help evaluate hemoglobin distributions in the blood donor population (eligible and deferred donors) and compare them with NHANES data. Other secondary objectives include elucidating key genetic influences on hemoglobin levels and iron status in a donor population as a function of donation history; and establishing a serum and DNA archive to evaluate the potential utility of future iron studies and genetic polymorphisms.
This study will develop better predictive models for iron depletion and hemoglobin deferral (with or without iron deficiency) in blood donors; allow for the development of improved donor screening strategies and open the possibility for customized donation frequency guidelines for individuals or classes of donors; provide important baseline information for the design of targeted iron supplementation strategies in blood donors, and improved counseling messages to blood donors regarding diet or supplements; and by elucidating the effect of genetic iron protein polymorphisms on the development of iron depletion, enhance the understanding of the role of these proteins in states of iron stress, using frequent blood donation as a model.
There are no Capital Costs to report. There are no Operating or Maintenance Costs to report.
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. George Nemo, Project Officer, NHLBI, Two Rockledge Center, Room 10142, 6701 Rockledge Drive, MSC 7950, Bethesda, MD 20892-7950, or call 301-435-0075, or e-mail your request to
National Institutes of Health, Public Health Service, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 207 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, Maryland 20852-3804; telephone: 301/496-7057; fax: 301/402-0220. A signed Confidential Disclosure Agreement will be required to receive copies of the patent applications.
Osteopontin (OPN) is a well known serum prognostic marker for breast cancer. This technology identifies a 10kD residue of OPN as a potential prognostic marker and therapeutic target for metastatic hepatocellular carcinoma (HCC). Mechanistically, OPN has been shown to be a novel substrate for MMP-9 and the 10kD fragment is demonstrated to be a mediator of cell invasion and metastasis. Short synthetic peptides against OPN have been shown to block OPN mediated cell invasion, providing a novel therapeutic approach targeting OPN. Finally, polyclonal antibodies against the 10kD fragment of OPN have been developed that can be used for detection of OPN in physiological fluids of HCC patients. This technology provides a novel therapeutic and diagnostic strategy for the management of HCC patients using OPN.
1. A manuscript relating to this invention has been submitted for publication and will be available once accepted.
2. J Kim, SS Ki, SD Lee, CJ Han, YC Kim, SH Park, SY Cho, YJ Hong, HY Park, M Lee, HH Jung, KH Lee, SH Jeong. Elevated plasma osteopontin levels in patients with hepatocellular carcinoma. Am J Gastroenterol. 2006 Jul 18; Epub ahead of print, doi: 10.1111/j.1572-0241.2006.00679.
3. QH Ye, LX Qin, M Forgues, P He, JW Kim, AC Peng, R Simon, Y Li, AI Robles, Y Chen, ZC Ma, ZQ Wu, SL Ye, YK Liu, ZY Tang, XW Wang. Predicting hepatitis B virus-positive metastatic hepatocellular carcinomas using gene expression profiling and supervised machine learning. Nat Med. 2003 Apr; 9(4):416-423.
T cell receptors (TCR) are the proteins responsible for the T cell's ability to recognize infected or transformed cells. TCR consists of two domains, one variable domain that recognizes the antigen and one constant region that helps the TCR anchor to the membrane and transmit the recognition signal by interacting with other proteins.
The present invention involves the construction of hybrid anti-cancer TCR that is half mouse and half human. Functional analysis reveals that human TCR with a mouse constant region is significantly better than pure human TCR. This hybrid protein when put into human T cells makes these cells much better in recognizing cancer associated proteins. The hybrid protein can be used to improve the function of a T cell providing diagnostic and therapeutic applications in cancer and infectious diseases.
1. CJ Cohen, Y Zhao, Z Zheng, SA Rosenberg, RA Morgan. Enhanced antitumor activity of murine-human hybrid T-cell receptor (TCR) in human lymphocytes is associated with improved pairing and TCR/CD3 stability. Cancer Res., in press.
2. MS Hughes, YY Yu, ME Dudley, Z Zheng, PF Robbins, Y Li, J Wunderlich, RG Hawley, M Moayeri, SA Rosenberg, RA Morgan. Transfer of a TCR gene derived from a patient with a marked antitumor response conveys highly active T-cell effector functions. Hum Gene Ther. 2005 Apr;16(4):457-472.
Adoptive immunotherapy has repeatedly been shown to be useful in the treatment of patients with metastatic melanoma. However, clinical efficacy of this treatment is limited by the short-lived survival of the transferred, autologous, antigen-specific T cells. It would be desirable to genetically modify effector cells to provide not only enhanced effector cell survival, but also desired antigen specificity, and improved function, and safety. The current technology provides a method address this desire, by genetically modifying lymphocytes using retroviral vectors.
Specifically, isolated autologous T lymphocytes can be transformed with polynucleotides encoding endogenous cytokines, for example IL-7 or IL-15. IL-15-transduced lymphocyte cultures demonstrate prolonged in vitro persistence. In addition, T cells can be transduced to express not only cytokines but also T cell receptors to confer specificity for certain antigens. Recent data showed that human T lymphocytes engineered to express a murine anti-human p53 T cell receptor can recognize tumor cell lines, as well as fresh human tumors, and are able to kill p53-expressing human tumor cells.
Also provided in the invention are methods for treating patients with transformed lymphocytes as part of adoptive immunotherapy. Applications of this technology beyond cancer include the potential use of cytokine expressing cells in treating infectious and autoimmune diseases and vaccination.
1. L Gattinoni, SE Finkelstein, CA Klebanoff, PA Antony, DC Palmer, PJ Spiess, LN Hwang, Z Yu, C Wrzesinski, DM Heimann, CD Surh, SA Rosenberg, NP Restifo. Removal of homeostatic cytokine sinks by lymphodepletion enhances the efficacy of adoptively transferred tumor-specific CD8+ T cells. J Exp Med. 2005 Oct 3;202(7):907-912.
2. LX Wang, R Li, G Yang, M Lim, A O'Hara, Y Chu, BA Fox, NP Restifo, WJ Urba, HM Hu. Interleukin-7-dependent expansion and persistence of melanoma-specific T cells in lymphodepleted mice lead to tumor regression and editing. Cancer Res. 2005 Nov 15;65(22):10569-10577.
3. L Gattinoni, DJ Powell Jr, SA Rosenberg, NP Restifo. Adoptive immunotherapy for cancer: building on success. Nat Rev Immunol. 2006 May;6(5):383-393.
4. CJ Cohen,
5. C Hsu,
6. SA Rosenberg and ME Dudley. Cancer regression in patients with metastatic melanoma after the transfer of autologous antitumor lymphocytes. Proc Natl Acad Sci USA 2004 Oct 5;101 Suppl 2:14639-14645.
7. CA Klebanoff,
8. K Liu and SA Rosenberg. Interleukin-2-independent proliferation of human melanoma-reactive T lymphocytes transduced with an exogenous IL-2 gene is stimulation dependent. J Immunother. 2003 May-Jun;26(3):190-201.
9. K Liu and SA Rosenberg. Transduction of an IL-2 gene into human melanoma-reactive lymphocytes results in their continued growth in the absence of exogenous IL-2 and maintenance of specific antitumor activity. J Immunol. 2001 Dec1;167(11):6356-6365.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the Clinical and Integrative Gastrointestinal Pathobiology Study Section, September 17, 2006, 6 p.m. to September 19, 2006, 4 p.m., Bethesda Marriott Suites, 6711 Democracy Boulevard, Bethesda, MD 20817 which was published in the
The meeting will be held September 17, 2006, 7 p.m. to September 18, 2006, 6 p.m. The meeting location remains the same. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the Gastrointestinal Cell and Molecular Biology Study Section, September 18, 2006, 7:30 a.m. to September 18, 2006, 6 p.m., Bethesda Park Clarion Hotel, 8400 Wisconsin Ave., Bethesda, MD 20814, which was published in the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, Public Health Service, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR 404.7(a)(1)(i), that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of an exclusive license to practice the inventions embodied in PCT (application number pending) filed July 28, 2006 from U.S. provisional application 60/703,814 (E-167-2005/0-US-01), entitled “System and Methods for Detecting and Characterizing Macromolecular Interactions in Solution” (Inventors: Drs. Allen Minton and Arun Attri) to Wyatt Technology Corporation (hereafter Wyatt), having a place of business in Goleta, California. The patent rights in these inventions have been assigned to the United States of America.
Only written comments and/or application for a license, which are received by the NIH Office of Technology Transfer on or before October 27, 2006 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Chekesha Clingman, Ph.D., Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; e-mail:
The present invention relates to systems and methods for sensitive detection and characterization of macromolecular interactions in homogenous or heterogeneous solutions of macromolecules, such as proteins, DNA, RNA, biopolymers, organic and inorganic polymers, macromolecular pharmaceutical compounds and others. The methods employed by this system do not require the need for labeling or chemical modification of any test substance, and it is more rapid than any conventional methods. The system includes a dispenser to dispense a solution containing the macromolecule, and one or more detectors to measure a light scattering and concentration associated with the macromolecule in solution. For instance, the first detector can be a light scattering detector (such as a static light-scattering detector). The second detector (such as a UV-Vis detector) can be added in to measure light absorbance and hence concentration. The detectors can be arranged in parallel, to receive identical flow of solution from the dispenser, so that at any given time point, both detectors collect data on flow of identical concentrations.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within 60 days from the date of this published Notice, NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
The field of use may be limited to the development of a system and method for detecting and characterizing macromolecular interactions in solution.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
This regulation establishes a certification program managed by SAMHSA's Center for Substance Abuse Treatment (CSAT). The regulation requires that Opioid Treatment Programs (OTPs) be certified. “Certification” is the process by which SAMHSA determines that an OTP is qualified to provide opioid treatment under the Federal opioid treatment standards established by the Secretary of Health and Human Services. To become certified, an OTP must be accredited by a SAMHSA-approved accreditation body. The regulation also provides standards for such services as individualized treatment planning, increased medical supervision, and assessment of patient outcomes. This submission seeks continued approval of the information collection requirements in the regulation and of the forms used in implementing the regulation.
SAMHSA currently has approval for the Application for Certification to Use Opioid Drugs in a Treatment Program Under 42 CFR 8.11 (Form SMA-162); the Application for Approval as Accreditation Body Under 42 CFR 8.3(b) (Form SMA-163); and the Exception Request and Record of Justification Under 42 CFR 8.12 (Form SMA-168), which may be used on a voluntary basis by physicians when there is a patient care situation in which the physician must make a treatment decision that differs from the treatment regimen required by the regulation. Form SMA-162 is used as the initial application to request certification of an OTP, to request renewal of certification and to change existing information regarding the program's location, sponsor and medical director. This form collects information such as address, program name, contact information, sponsor name and address and medical director name and address. Attachments are required to complete this form regarding the OTPs accrediting status, organizational structure, and operating procedures. Form SMA-163 is used as an application to become a SAMHSA approved accrediting body. This form collects accrediting body name, address and contact information. Attachments are required to complete this form regarding the accrediting body's operating procedures and standards and their staff's education and experience. Form SMA-168 is a simplified, standardized form to facilitate the documentation, request, and approval process for exceptions. This form collects patient admission date, dosage amount, patient status, attendance schedule per week, dates of exception and justification.
The tables that follow summarize the annual reporting burden associated with the regulation, including burden associated with the forms.
Written comments and recommendations concerning the proposed information collection should be sent by September 27, 2006 to: SAMHSA Desk Officer, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503; due to potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, respondents are encouraged to submit comments by fax to: 202-395-6974.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration's (SAMHSA), Center for Mental Health Services (CMHS) has implemented the Targeted Capacity Expansion Grants for Jail Diversion Programs. The Program currently collects client outcome measures from program participants
The current proposal requests:
1. Adding a new instrument, the PTSD Checklist (PCL), as a measure of trauma-specific symptoms to the baseline, 6- and 12-month interviews.
2. Extending the use of DC Trauma Screen, currently administered only at baseline, to be included in the 6- and 12 month interviews. The DC Trauma Screen examines the prevalence of experience of trauma within general types.
The PCL and the DC Trauma Screen each take 5 minutes to complete. Including these measures would add 5 minutes to the length of the Baseline interview and ten minutes to the length of the 6- and 12-Month interviews.
New grantees were awarded on April 30, 2006 under the TCE Grants for Jail Diversion program and will commence data collection efforts in FY 2007. The following tables summarize the burden for the data collection.
Send comments to Summer King, SAMHSA Reports Clearance Officer, OAS, Room 7-1044, 1 Choke Cherry Road, Rockville, MD 20857. Written comments should be received by October 27, 2006.
30-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 (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until September 27, 2006. This process is conducted in accordance with 5 CFR 1320.10.
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), and to the Office of Management and Budget (OMB) USCIS Desk Officer. Comments may be submitted to: 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
When submitting comments by E-mail please make sure to add OMB Control Number 1615-0067 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
If you 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 Community Planning and Development, HUD.
Notice of funding awards.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Notice of Funding Availability (NOFA) for the Community Development Technical Assistance programs. This announcement contains the names of the awardees and the amounts of the awards made available by HUD.
Mark A. Horwath, Director, Office of Technical Assistance and Management, Office of Community Planning and Development, 451 Seventh Street, SW., Room 7218, Washington, DC 20410-7000; telephone (202) 708-3176 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number via TTY by calling the Federal Relay Service toll-free at (800) 877-8339. For general information on this and other HUD programs, call Community Connections at 1-800-998-9999 or visit the HUD Web site at
The Fiscal Year 2005 Community Development Technical Assistance program was designed to increase the effectiveness of HUD's HOME Investment Partnerships Program (HOME), CHDO (HOME) program, Youthbuild program, Community Development Block Grant (CDBG) program, McKinney-Vento Homeless Assistance programs (Homeless), and Housing Opportunities for Persons with AIDS (HOPWA) program through the selection of technical assistance (TA) providers for these six programs.
The competition was announced in the SuperNOFA published March 21, 2005 (70 FR 14012). The NOFA allowed for approximately $30,120,000 for CD-TA grants. Applications were rated and selected for funding on the basis of selection criteria contained in that Notice.
For the Fiscal Year 2005 competition, a total of $28,930,335 was awarded to 72 technical assistance providers nationwide.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the grantees and the amounts of the awards in Appendix A to this document.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of funding awards.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Notice of Funding Availability (NOFA) for the Community Development Technical Assistance programs. This announcement contains the names of the awardees and the amounts of the awards made available by HUD.
Mark A. Horwath, Director, Office of Technical Assistance and Management, Office of Community Planning and Development, 451 Seventh Street, SW., Room 7218, Washington, DC 20410-7000; telephone (202) 708-3176 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number via TTY by calling the Federal Relay Service toll-free at (800) 877-8339. For general information on this and other HUD programs, call Community Connections at (800) 998-9999 or visit the HUD Web site at
The Fiscal Year 2004 Community Development Technical Assistance program was designed to increase the effectiveness of HUD's HOME Investment Partnerships Program (HOME), CHDO (HOME) program, Youthbuild program, Community Development Block Grant (CDBG) program, McKinney-Vento Homeless Assistance programs (Homeless), and Housing Opportunities for Persons with AIDS (HOPWA) program through the selection of technical assistance (TA) providers for these six programs.
The competition was announced in the SuperNOFA published May 14, 2004 (69 FR 27023). The NOFA allowed for approximately $36,800,000 for CD-TA grants. Applications were rated and selected for funding on the basis of selection criteria contained in that Notice.
For the Fiscal Year 2004 competition, a total of $36,282,809 was awarded to 82 technical assistance providers nationwide.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545), the Department is publishing the grantees and the amounts of the awards in Appendix A to this document.
Office of Insular Affairs, U.S. Department of the Interior.
The U.S. Department of the Interior's Office of Insular Affairs will make available for comment its draft report produced pursuant to sec. 251 of the Energy Policy Act of 2005 (Pub. L. 109-58), concerning power utilities and energy usage in the U.S.-affiliated insular areas. These areas include the territories of Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and American Samoa, as well as the freely associated states of the Republic of Palau, the Republic of the Marshall Islands, and the Federated States of Micronesia. The report was produced in consultation with the consultation with the U.S. Department of Energy. The draft report will be available on the Web site of the Department of the Interior's Office of Insular Affairs; the comments will be used to produce the final draft of the report by the end of FY 2006.
Please submit all comments in writing on or before September 27, 2006. There will be no second opportunity to submit comments.
The draft report is available on the Office of Insular Affairs Web site,
Joseph Gean, (202) 208-4736.
Any electronic comments should be submitted in Word, WordPerfect, or PDF document formats only.
Fish and Wildlife Service, Interior.
Notice.
The public is invited to comment on the following applications to conduct certain activities with endangered species.
We must receive written data or comments on these applications at the address given below, by September 27, 2006.
Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to the following office within 30 days of the date of publication of this notice: Fish and Wildlife Service, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Victoria Davis, Permit Biologist).
Victoria Davis, telephone 404/679-4176; facsimile 404/679-7081.
The public is invited to comment on the following applications for permits to conduct certain activities with endangered and threatened species. This notice is provided under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
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 address from the administrative record. We will honor such requests to the extent allowable by law. There may also be other circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and address, you must state this prominently at the beginning of your
The applicant requests authorization to take (capture, identify, release) the red-cockaded woodpecker (
The applicant requests authorization to take (capture, identify, measure, release) the following species: Southern acornshell (
Fish and Wildlife Service, Interior.
Notice.
Paul Athanas (Applicant) requests an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The Applicant anticipates taking about 0.275 acre of Florida scrub-jay (
Written comments on the ITP application and HCP should be sent to the Service's Regional Office (see
Persons wishing to review the application and HCP may obtain a copy by writing the Service's Southeast Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (
Mr. David Dell, Regional HCP Coordinator, (see
If you wish to comment, you may submit comments by any one of several methods. Please reference permit number TE126176-0 in such comments. You may mail comments to the Service's Regional Office (see
The Florida scrub-jay is geographically isolated from other species of scrub-jays found in Mexico and the western United States. The scrub-jay is found exclusively in peninsular Florida and is restricted to xeric uplands (predominately in oak-dominated scrub). Increasing urban and agricultural development has resulted in habitat loss and fragmentation which has adversely affected the distribution and numbers of scrub-jays. The total estimated population is between 7,000 and 11,000 individuals.
According to surveys accomplished in 1992-1993, 2000, and 2004, the Applicant's lot is within the territory of a family of scrub-jays. The scrub-jays using the Project area and adjacent properties are part of a larger complex of scrub-jays located in a matrix of urban and natural settings in southern Sarasota County. Construction of the Project's infrastructure and facilities will result in harm to scrub-jays, incidental to the carrying out of these otherwise lawful activities. Habitat alteration associated with the proposed residential construction will reduce the availability of foraging, sheltering, and possible nesting habitat for one family of scrub-jays.
The Applicant proposes to mitigate the take of scrub-jays through contribution of $25,875 to the Sarasota County Scrub-jay Mitigation Plan Fund administered by Sarasota County. Funds in this account are earmarked for use in the conservation and recovery of scrub-jays and may include habitat acquisition, restoration, and management.
The Service has determined that the Applicants' proposal, including the proposed mitigation and minimization measures, will individually and cumulatively have a minor or negligible effect on the species covered in the HCP. Therefore, the ITP is a “low-effect” project and qualifies as a categorical exclusion under the National Environmental Policy Act (NEPA), as provided by the Department of Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). This preliminary information may be revised based on our review of public comments that we receive in response to this notice. Low-effect HCPs are those involving: (1) Minor or negligible effects on Federally listed or candidate species and their habitats, and (2) minor or negligible effects on other environmental values or resources.
The Service will evaluate the HCP and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice.
The City of Palm Bay (Applicant) requests an incidental take permit (ITP) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The Applicant prepared a Habitat Conservation Plan (HCP) identifying anticipated impacts to two federally-listed threatened species, the Florida scrub-jay (
Written comments on the ITP application, HCP, and environmental assessment should be sent to the Service's Regional Office (see
Persons wishing to review the application, HCP, and environmental assessment may obtain a copy by writing the Service's Southeast Regional Office, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (Attn: Endangered Species Permits), or Jacksonville Field Office, Fish and Wildlife Service, 6620 Southpoint Drive South, Suite 310, Jacksonville, Florida 32216-0912. Please reference permit number TE118199-0 in such requests. Documents will also be available for public inspection by appointment during normal business hours at the Service's regional office or the Jacksonville field office.
Mr. David Dell, Regional HCP Coordinator, (see
If you wish to comment, you may submit written comments by any one of several methods. Please reference permit number TE118199-0 in such comments. You may mail comments to the Service's Regional Office (see
The scrub-jay is geographically isolated from other species of scrub-jays found in Mexico and the western United States. The scrub-jay is found exclusively in peninsular Florida and is restricted to xeric uplands (predominately in oak-dominated scrub). Increasing urban and agricultural development has resulted in habitat loss and fragmentation that has adversely affected the distribution and numbers of scrub-jays. The total estimated population is between 7,000 and 11,000 individuals.
The eastern indigo snake is distributed in dry pinelands of the
Gopher tortoises are widely distributed throughout the southeastern United States where they are typically found in association with xeric vegetative communities. Gopher tortoises require well-drained soils with relatively deep water tables in which to excavate their burrows. Habitat loss, degradation, and fragmentation due to urban, agricultural, and silvicultural development have resulted in a decline in the numbers and distribution of gopher tortoises throughout Florida.
According to the Applicant's HCP, up to 20 families of scrub-jays, about 40 eastern indigo snakes living within 12,904 acres of potential habitat and about 1,233 gopher tortoises residing in 10,966 acres of potential habitat might be taken as a result of urban development. The Applicant intends to minimize impacts to listed species by: (1) Prohibiting land clearing during the scrub-jay nesting season if active nests are on or near properties to be cleared, (2) requiring that scrub vegetation be retained for landscaping or ornamental purposes within new development, and (3) developing Web-based public education information for the covered species. Mitigation measures proposed by the Applicant include the collection of environmental fees as a component of the local building permit issuance process. The Applicant anticipates that environmental fees collected over the duration of the requested permit period will be approximately $10.7 million dollars. The Applicant proposes to donate environmental fees to the Scrub-jay Conservation Fund that is administered by The Nature Conservancy (TNC). Pursuant to an agreement between the Service and TNC, donated environmental fees will be used for the acquisition, management, and restoration of scrub-jay habitat. The Service will review proposed acquisition, management and restoration of habitat funded by the City's environmental fees to ensure that the eastern indigo snake and gopher tortoise benefit as well.
The Service has made a preliminary determination that issuance of the requested ITP is not a major Federal action significantly affecting the quality of the human environment within the meaning of Section 102(2)(C) of National Environmental Policy Act (NEPA). This preliminary information may be revised due to public comment received in response to this notice and is based on information contained in the EA and HCP.
The Service will evaluate the HCP and comments submitted thereon to determine whether the ITP application meets the requirements of section 10(a) of the Act (16 U.S.C. 1531
National Park Service, Interior.
Notice of meeting.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix, that the National Park System Advisory Board will meet September 14-15, 2006, in Three Rivers, California. On September 14, the Board will tour Sequoia and Kings Canyon National Parks and will be briefed regarding environmental, education and partnership programs. The Board will convene its business meeting on September 15 at 8:30 a.m., PST, at the Wuksachi Lodge, 64740 Wuksachi Way, Three Rivers, California, telephone 559-565-4070. The Board will be addressed by National Park Service Director Fran Mainella and will receive the reports of its Partnerships Committee, Committee on Federal Historic Rehabilitation Tax Credit, Committee on Philanthropy, Committee on Health and Recreation, National Parks Science Committee, and Education Committee. The business meeting will be adjourned at 4:30 p.m.
Other officials of the National Park Service and the Department of the Interior may address the Board, and other miscellaneous topics and reports may be covered.
The order of the agenda may be changed, if necessary, to accommodate travel schedules or for other reasons.
The Board meeting will be open to the public. Space and facilities to accommodate the public are limited and attendees will be accommodated on a first-come basis. Anyone may file with the Board a written statement concerning matters to be discussed. The Board also may permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time.
Anyone who wishes further information concerning the meeting, or who wishes to submit a written statement, may contact Ms. Shirley Sears Smith, Office of Policy, National Park Service; 1849 C Street, NW., Room 7250; Washington, DC 20240; telephone 202-208-7456.
Draft minutes of the meeting will be available for public inspection about 12 weeks after the meeting, in room 7252, Main Interior Building, 1849 C Street, NW., Washington, DC.
60-day Notice of Information Collection Under Review.
The Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division has submitted the following information collection request to the Office of
All comments and suggestions, or questions regarding additional information, to include obtaining a copy of the proposed information collection instrument with instructions, should be directed to Penny L. Valentine, Management/Program Analyst, Federal Bureau of Investigation, Criminal Justice Information Services Division (CJIS), Identification and Investigative Services Section, Support Services Unit, Module E-1, 1000 Custer Hollow Road, Clarksburg, West Virginia, 26306, or facsimile to (304) 625-5392.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have a practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the propose 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 of other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
Ms. Lynn Bryant, Department Clearance Officer, Justice Management Division, United States Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530.
Petitions have been filed with the Secretary of Labor under section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Division of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 7, 2006.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Division of Trade Adjustment Assistance, at the address shown below, not later than September 7, 2006.
The petitions filed in this case are available for inspection at the Office of the Director, Division of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room C-5311, 200 Constitution Avenue, NW., Washington, DC 20210.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of August 7 through August 11, 2006.
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A)—all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B)—both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department as determined that criterion (1) of Section 246 has not been met. Workers at the firm are 50 years of age or older.
The Department as determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department as determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Since the workers of the firm are denied eligibility to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The investigation revealed that the predominate cause of worker separations is unrelated to criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.C) (shift in production to a foreign country).
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria of Section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the month of August 7 through August 11, 2006. Copies of these determinations are available for inspection in Room C-5311, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210 during normal business hours or will be mailed to persons who write to the above address.
The following parties have filed petitions to modify the application of existing safety standards under section 101(c) of the Federal Mine Safety and Health Act of 1977.
Eastern Associated Coal, LLC, 1044 Miracle Run Road, Fairview, West Virginia 26570 has filed a petition to modify the application of 30 CFR 75.500(d) (Permissible electric equipment) to its Federal No. 2 Mine (MSHA I.D. No. 46-01456) located in Monongalia County, West Virginia. The petitioner requests a modification of the existing standard to permit the use of non-permissible battery-powered hand-held computers in or inby the last open crosscut, including in the return airways. The petitioner proposes to use the hand-held computers to allow supervisors and selected miners to collect and record data pertinent to safety observations during work processes. The petitioner has listed specific procedures in this petition that will be followed when the proposed alternative method is implemented. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
AMFIRE Mining Company, LLC, One Energy Place, Latrobe, Pennsylvania 15650 has filed a petition to modify the application of 30 CFR 75.1100-2(e)(2) (Quantity and location of firefighting equipment) to its Gillhouser Run Mine (MSHA I.D. No. 36-09033) located in Cambria County, Pennsylvania. The petitioner requests a modification of the existing standard to permit an alternative method of compliance with the firefighting equipment required at temporary electrical installations. The petitioner proposes to use two (2) fire extinguishers or one fire extinguisher of twice the required capacity at all temporary electrical installations in lieu of using 240 pounds of rock dust. The petitioner asserts that the proposed alternative method would provide at least the same measure of protection as the existing standard.
Eastern Associated Coal, LLC, Three Gateway Center, 401 Liberty Avenue, Suite 1340, Pittsburgh, Pennsylvania 15222 has filed a petition to modify the application of 30 CFR 75.1700 (Oil and gas wells) to its Federal No. 2 Mine (MSHA I.D. No. 46-01456) located in Monongalia County, West Virginia. The petitioner requests a modification of the existing standard to permit oil and gas wells to be plugged and abandoned in order to mine through them or to reduce
Persons interested in these petitions are encouraged to submit comments by any of the following methods: via E-mail:
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of a letter terminating Construction Permit No. CPPR-122 for Bellefonte Nuclear Plant (BLN), Unit 1, and CPPR-123 for BLN, Unit 2, issued to the Tennessee Valley Authority (TVA, permittee). The facility is located about 6 miles East-Northeast of Scottsboro, Alabama, on the west shore of the Guntersville Reservoir at Tennessee River Mile 392, in Jackson County, Alabama. This action is in accordance with the permittee's request in a letter dated April 6, 2006, as supplemented by letter dated June 29, 2006.
The proposed action is issuance of a letter that would terminate Construction Permit No. CPPR-122 for BLN Unit 1 and CPPR-123 for BLN Unit 2. Canceling construction of the existing facility and withdrawal of the construction permits is necessary in order to close out the existing BLN project. These actions also facilitate the consideration of other possible uses of the BLN site.
Because there are other ongoing activities on the BLN site (i.e., training centers for the Transmission Service Organization and the Tennessee Valley Public Power Association), and because the switchyard at BLN is utilized as a substation for system operations in the region, TVA would not withdraw existing environmental permits or remove equipment associated with these other activities.
TVA would keep and maintain BLN in regulatory compliance. Compliance activities would include National Pollutant Discharge Elimination System permits, division monitoring reports, demolition permits, and air permits that are applicable to the entire site. These measures would continue as long as TVA has ownership of the BLN site. Maintaining and complying with these existing permits and regulations would ensure the stability of the site, until such time that TVA may decide, if or how the site would be alternatively utilized.
Because so much of the site will be maintained, the general activities associated with the redress of the site are relatively minor in nature. Most of the minor environmental impacts resulting from redress would be associated with removal of equipment or structures not identified as necessary for other site activities. Materials and structures removed would be above grade or in areas that have experienced substantial previous ground disturbance for the original construction of the plant. TVA currently plans to maintain such major components as the intake and discharge facilities, cooling towers, wastewater system, and transmission switch yards. The existing containment, turbine, and auxiliary buildings would not be demolished. The other structures not identified as necessary would be sold, taken apart, and removed from the site, abandoned in place, or demolished. Most of these structures are metal and wood warehouses located along the western portion of the site. Any unwanted construction material or waste associated with disposition of equipment and structures would be properly disposed of in appropriately permitted solid waste or other disposal facilities in accordance with pertinent Federal, state, and local laws, regulations and ordinances, as well as TVA processes and procedures.
Equipment identified as unnecessary would have the power disconnected and would either be reused by other TVA facilities, sold for reuse, or abandoned in place. Such items may include, but are not limited to: valves, strainers, battery boards and chargers, transfer switches, vent fans, motors, cabinet panels, breakers, power systems, shop equipment such as lathes, air compressors, and dryers; as well as other miscellaneous equipment. Additional materials may include, but are not limited to items such as: piping, tubing, conduit, cable, instrumentation, and general construction materials. TVA would continue to conduct periodic site inspections to ensure that none of the equipment or materials are causing environmental, health, or safety problems.
Redress would involve the removal of diesel generator fuel and lube, or control fluids from the main turbine lube oil tanks, feedwater pump lube oil tanks, reactor coolant pump motors, control fluid tanks, and diesel generator lube oil
By letter dated June 29, 2006, the permitee stated that neither of the units can be considered a utilization facility as defined in 10 CFR 50.2. At the time that construction of the units was deferred, TVA considered Unit 1 to be 88 percent complete and Unit 2 to be 58 percent complete. At this time, neither reactor has the necessary structures, systems, or components in place to sustain a controlled nuclear reaction. Over the past several years, key components such as the control rod drive mechanisms for both Unit 1 and 2 have been removed from the site, which precludes the ability of the units to operate as nuclear reactors. The current condition of the plants does not allow operation; therefore, neither plant can be considered a utilization facility.
All special nuclear material was removed from the site, as verified in NRC Inspection Reports 50-438/92-05 and 50-439/92-05 dated August 21, 1992. The only radioactive material to be disposed of is from the removal of smoke detectors and exit signs from various buildings to be sold, demolished, or abandoned in place. Upon removal, these materials shall be sent to an NRC-approved recycler. Safeguards information has been shredded or removed. Fenced areas are currently under industrial-type security. The withdrawal of the construction permits will not release air pollutants, generate water pollutants, generate wastewater streams, or cause soil erosion. The BNL site is in an environmentally stable condition that poses no significant hazard to persons on site.
TVA has terminated construction of both BLN Units 1 and 2. This action by the NRC would terminate the construction permits.
This administrative action would terminate the construction permits to reflect the fact that there are no longer utilization facilities under construction at the BLN site, and that the site has been adequately stabilized. Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the staff considered denial of the proposed action (i.e., the “no-action” alternative). Denial of the application would result in no change in current environmental impacts. The environmental impacts of the proposed action and the alternative action are similar.
The action does not involve the use of any different resources than those previously considered in the Final Environmental Statement for the Bellefonte Nuclear Plant, Units 1 and 2, dated May 24, 1974.
In accordance with its stated policy, on July 7, 2006, the staff consulted with the Alabama State official, Mr. Kirk Whatley of the Office of Radiation Control, Alabama Department of Public Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the permitee's letter dated April 6, 2006, as supplemented by letter dated June 29, 2006, and TVA's Final Environmental Assessment dated January 30, 2006. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
2 p.m., Thursday, September 14, 2006.
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue, NW., Washington, DC.
Hearing open to the Public at 2 p.m.
Public Hearing in conjunction with each meeting of OPIC's Board of Directors, to afford an opportunity for any person to present views regarding the activities of the Corporation.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Friday, September 8, 2006. The notice must include the individual's name, title, organization, address, and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request to participate an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Friday, September 8, 2006. Such statements must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Information on the hearing may be obtained from Connie M. Downs at (202)
Office of Personnel Management.
Notice of Expansion of the Department of Commerce Personnel Management Demonstration Project.
Title VI of the Civil Service Reform Act, now codified in 5 U.S.C. 4703, authorizes the Office of Personnel Management (OPM) to conduct demonstration projects that experiment with new and different human resources management concepts to determine whether changes in policies and procedures result in improved Federal human resources management. OPM approved a demonstration project covering several operating units of the U.S. Department of Commerce (DOC). OPM has authority to implement new legislation affecting demonstration projects (5 U.S.C. 4703 and 5 CFR 470.101(b) and 470.103). Modifications to the demonstration project plan also require OPM approval (5 CFR 470.315).
As provided for in title II of Public Law 109-108, Department of Commerce and Related Agencies Appropriations Act of 2006, signed November 22, 2005, this notice expands the coverage of the DOC Demonstration Project to include up to 3,500 additional employees in the National Oceanic and Atmospheric Administration (NOAA) increasing the total number of employees in NOAA to 6,925, as well as additional NOAA organizations and locations. This expansion results in the total number of employees covered by the DOC Demonstration Project to 8,500 individuals. This notice also serves to make changes to the plan to accommodate the expansion. These changes include the addition of specific occupational series, Departmental Personnel Management Board composition, and pre-project cost formulas for the NOAA organizations new to the demonstration project as part of the expansion.
This notice expanding the DOC Demonstration Project is effective August 28, 2006.
Department of Commerce: Joan Jorgenson, U.S. Department of Commerce, 14th and Constitution Avenue NW., Room 5004, Washington, DC 20230, (202) 482-4233. Office of Personnel Management: Jill Rajaee, U.S. Office of Personnel Management, 1900 E Street NW., Washington, DC 20415, (202) 606-0836.
The Office of Personnel Management (OPM) approved the DOC Demonstration Project and published the final plan in the
The key features of the project involve increased delegation of authority and accountability to line managers, simplified classification and broad banding, pay for performance, hiring and pay-setting flexibility, and modified reduction-in-force procedures.
This notice serves to list all NOAA organizations and their locations that will be included in the DOC Demonstration Project. This notice also lists additional occupational series that will be included in the DOC Demonstration Project. Additional changes to the plan are made to accommodate the expansion. These changes include composition of the Departmental Personnel Management Board, pre-project cost formulas for new organizations entering the demonstration project during this expansion phase, and edits to the pay administration provisions to reflect the use of law enforcement officer special base rates under section 403 of the Federal Employees Pay Comparability Act of 1990 (Pub. L. 101-509) for certain law enforcement officers that will be added to the project through this expansion. This notice also incorporates minor changes to the pay administration provisions for consistency with the amendments made to the General Schedule pay-setting rules by the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411) and OPM's implementing regulations. The Department of Commerce will follow the project plan as published in the
The Department of Commerce (DOC) Demonstration Project utilizes many features similar to those implemented by the National Institute of Standards and Technology (NIST) Demonstration Project in 1988. The DOC Demonstration Project supports several key objectives: to simplify the classification system for greater flexibility in classifying work and paying employees; to establish a performance management and rewards system for improving individual and organizational performance; and to improve recruiting and examining to attract highly qualified candidates and hire them more quickly. The DOC Demonstration Project is designed to test whether the interventions of the NIST project, which is now a permanent alternative system, could be successful in other DOC environments. The current participating organizations include six offices of the Chief Financial Officer/Assistant Secretary of Administration in the Office of the Secretary, Technology Administration, the Bureau of Economic Analysis, the Institute for Telecommunication Sciences, and five units of the National Oceanic and Atmospheric Administration: Office of Oceanic and Atmospheric Research, National Marine Fisheries Service, the National Environmental Satellite, Data,
The DOC Demonstration Project is designed to provide managers at the lowest organizational level, the authority, control and flexibility needed to recruit, retain, develop, recognize and motivate its workforce, while ensuring adequate accountability and oversight. Expansion of the DOC Demonstration Project will allow the Department to broaden the scope of this test to additional organizations with different missions. This should improve the Department assessment of the effectiveness of its interventions in its efforts to compete more effectively for high quality personnel while strengthening the manager's role in human resources management. All provisions of the DOC Demonstration Project plan, as published in the
Employee notification of this expansion proposal is being accomplished by providing a full set of briefings to employees and managers and providing electronic access to all DOC Demonstration Project policies, procedures, evaluations and published
Labor organizations are being separately notified about the project's expansion pertaining to their bargaining unit membership. DOC is proceeding to fulfill its obligation in accordance with 5 U.S.C. 4703(f).
The Departmental Personnel Management Board (DPMB) will expand to include additional board DPMB members representing the new major operating units included in the project. It is the intent of the DOC to ensure the composition of the board DPMB reflects the diversity of employee groups to ensure the objectives of the demonstration project are achieved in an equitable and consistent manner.
The current plan identifies Fiscal Years (FY) 1994, 1995, and 1996 as the basis of analysis of pre-project costs to determine whether project costs are being maintained at acceptable levels. For those organizations that have never participated in the demonstration project, costs will be computed as annual averages over the past three pre-project fiscal years immediately preceding implementation. For those NOAA organizations that are already part of the demonstration project, costs will continue to be computed using FY 1994—1996.
The following organizations will be added to the project plan, Section II D Participating Organizations:
Within the National Oceanic and Atmospheric Administration, up to 3,500 new GS/GM employees from the following offices and locations will be added to the DOC Demonstration Project as part of the expansion:
Within the National Marine Fisheries Service:
The following bargaining units are added to Table 4—Bargaining Unit Coverage.
The following series are added to Table 2:
F. This section provides changes to the project plan to accommodate law enforcement officer special base rates and the recent changes to the General Schedule pay administration rules. The following page numbers refer to the pages of the project plan, published December 24, 1997, in the
(1) Page 67448: Section III.A.3. In third sentence, insert “under 5 U.S.C. 5305” after first “special rate”. After third sentence, insert “For a law enforcement officer (LEO) covered by special base rates under section 403 of the Federal Employees Pay Comparability Act of 1990 (section 529 of Public Law 101-509, November 5, 1990, as amended), when the minimum or maximum grade in the LEO's band is any one of grades GS-3 through GS-10 (e.g., ZA Bands I and II), the band's minimum and maximum rate of pay will be set for that LEO using applicable
(2) Page 67452: Section III.D.5.—In the first sentence, insert “LEO special base rate,” after “GS rate,”.
(3) Page 67452. Section III.D.6. In the second sentence, insert “GS base” after “maximum” and “or LEO special base rates” before “of each band”. In the third sentence, insert “under 5 U.S.C. 5305” after “special rates”.
(4) Page 67452: Section III.D.7. Replace “special salary rate” with “special rate” throughout paragraph 7. In the first sentence, insert “under 5 U.S.C. 5305” before “will be used”. In the second sentence, replace “5 CFR 530.303” with “5 CFR 530.304”.
(5) Page 67453: Section III.D.13. In the second sentence, insert “GS base rate, LEO special base rate,” before “locality rate” in the parenthetical.
(6) Page 67453: Section III.D. 14. In the second sentence, insert “GS base rate, LEO special base rate,” before “locality rate” in the parenthetical.
(7) Page 67455: Section IV.A.1. In the first sentence, insert “or LEO special base schedule” after “GS base schedule” in the parenthetical.
(8) Page 67455: Section IV.B.2. In the first sentence, insert “or LEO special base schedule” after “GS base schedule” in the parenthetical.
(9) Page 67455: Section IV.B.3. In the third sentence, insert “or LEO special base rate” after “GS base rate”. Delete the last parenthetical.
(10) Page 67455—67456: Section IV.B.5. Delete all text in paragraph 5. after the first sentence.
(11) Page 67456; Section IV.B.6. In the second sentence, replace “GS rate” with “GS rates” and delete “of basic pay (or converted special rate, if applicable)”.
(12) Page 67456. Section IV.C. Replace last sentence with “(See 5 CFR 531.407(b) for additional information on equivalent increase determinations.)”
On June 27, 2006, the Chicago Board Options Exchange, Incorporated (“CBOE” or “Exchange”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Pilot Program currently provides that the Exchange may open up to five short-term series for each expiration date in an approved class. CBOE has proposed to increase the maximum to seven. The Exchange has stated it would list approximately the same number of series with strike prices above and below the price of the underlying security or value of the index at about the time the series is opened. CBOE also proposed that, if the Exchange has opened less than seven series in a particular options class for a given expiration date, it could open additional series in that class if the Exchange deems it necessary to maintain an orderly market or meet customer demand, or when the current value of the underlying index moves substantially from the exercise price or prices of the series already opened.
After careful review, the Commission finds that the proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The CBOE proposes to extend an existing pilot program that increases the standard position and exercise limits for certain options traded on the Exchange (“Pilot Program”). The text of the proposed rule change is available on the CBOE's Web site (
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Pilot Program, as previously approved by the Commission, provides for an increase to the standard position and exercise limits for equity option contracts and for options on QQQQs for a six-month period.
The purpose of the proposed rule change is to extend the Pilot Program for an additional six-month period, through March 1, 2007. The Exchange believes that extending the Pilot Program for six months is warranted due to the positive feedback from members and for the reasons cited in the original rule filing that proposed the adoption of the Pilot Program.
The Exchange believes that the proposed rule change is consistent with the requirements provided under Section 6(b)(5)
The CBOE 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.
No written comments were solicited or received with respect to the proposed rule change.
Because the forgoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File No. SR-CBOE-2006-69. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The ISE proposes to extend the time period for the ISE Rule 412 and ISE Rule 414 position and exercise limits pilot program for equity option contracts and options on the Nasdaq-100 Index Tracking Stock (“QQQQ”) (“Pilot Program”). The text of the proposed rule change is available on the ISE's Web site (
In its filing with the Commission, the ISE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Pilot Program provides for an increase to the standard position and exercise limits for equity option contracts and for options on QQQQs.
The
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The proposed rule change does not impose any burden on competition.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the forgoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to amend Rules 4200(a)(15), IM-4200 and 4350. Nasdaq will implement the proposed rule upon approval by the Commission.
The text of the proposed rule change is below. Proposed new language is in
(a) For purposes of the Rule 4000 Series, unless the context requires otherwise:
(1)-(14) No change.
(15) “Independent director” means a person other than an
(A) A director who is, or at any time during the past three years was, employed by the company [or by any parent or subsidiary of the company];
(B) A director who accepted or who has a Family Member who accepted any [payments]
(i) Compensation for board or board committee service;
[(ii) payments arising solely from investments in the company's securities;]
(ii[i]) compensation paid to a Family Member who is [a non-executive]
(i
[(v) loans from a financial institution provided that the loans (1) were made in the ordinary course of business, (2) were made on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with the general public, (3) did not involve more than a normal degree of risk or other unfavorable factors, and (4) were not otherwise subject to the specific disclosure requirements of SEC Regulation S-K, Item 404;]
[(vi) payments from a financial institution in connection with the deposit of funds or the financial institution acting in an agency capacity, provided such payments were (1) made in the ordinary course of business; (2) made on substantially the same terms as those prevailing at the time for comparable transactions with the general public; and (3) not otherwise subject to the disclosure requirements of SEC Regulation S-K, Item 404; or]
[(vii) loans permitted under Section 13(k) of the Act.]
Provided, however, that in addition to the requirements contained in this paragraph (B), audit committee members are also subject to additional, more stringent requirements under Rule 4350(d).
(C) A director who is a Family Member of an individual who is, or at any time during the past three years was, employed by the company [or by any parent or subsidiary of the company] as an executive officer;
(D) No change.
(E) A director of the [listed company]
(F)-(G) No change.
(16)-(39) No change.
(b)-(c) No change.
It is important for investors to have confidence that individuals serving as independent directors do not have a relationship with the listed company that would impair their independence. The board has a responsibility to make an affirmative determination that no such relationships exist through the application of Rule 4200. Rule 4200 also provides a list of certain relationships that preclude a board finding of independence. These objective measures provide transparency to investors and companies, facilitate uniform application of the rules, and ease administration. Because Nasdaq does not believe that ownership of company stock by itself would preclude a board finding of independence, it is not included in the aforementioned objective factors. It should be noted that there are additional, more stringent requirements that apply to directors serving on audit committees, as specified in Rule 4350.
The Rule's reference to
The three year look-back periods referenced in paragraphs (A), (C), (E) and (F) of the Rule commence on the date the relationship ceases. For example, a director employed by the company is not independent until three years after such employment terminates.
Paragraph (B) of the Rule is generally intended to capture situations where [a payment]
Paragraph (D) of the Rule is generally intended to capture payments to an entity with which the director or Family Member of the director is affiliated by serving as a partner, controlling shareholder or executive officer of such entity. Under exceptional circumstances, such as where a director has direct, significant business holdings, it may be appropriate to apply the corporate measurements in paragraph (D), rather than the individual measurements of paragraph (B). Issuers should contact Nasdaq if they wish to apply the Rule in this manner. The reference to a partner in paragraph (D) is not intended to include limited partners. It should be noted that the independence requirements of paragraph (D) of the Rule are broader than SEC Rule 10A-3(e)(8) under the Act.
Under paragraph (D), a director who is, or who has a Family Member who is, an executive officer of a charitable organization may not be considered independent if the company makes payments to the charity in excess of the greater of 5% of the charity's revenues or $200,000. However, Nasdaq encourages companies to consider other situations where a director or their Family Member and the company each have a relationship with the same charity when assessing director independence.
For purposes of determining whether a lawyer is eligible to serve on an audit committee, SEC Rule 10A-3 under the Act generally provides that any partner in a law firm that receives payments from the issuer is ineligible to serve on that issuer's audit committee. In determining whether a director may be considered independent for purposes other than the audit committee, payments to a law firm would generally be considered under Rule 4200(a)(15)(D), which looks to whether the payment exceeds the greater of 5% of the recipient's gross revenues or $200,000; however, if the firm is a sole proprietorship, Rule 4200(a)(15)(B), which looks to whether the payment exceeds $60,000, applies.
Paragraph (G) of the Rule provides a different measurement for independence for investment companies in order to harmonize with the Investment Company Act of 1940. In particular, in lieu of paragraphs (A)-(F), a director who is an “interested person” of the company as defined in Section 2(a)(19) of the Investment Company Act of 1940, other than in his or her capacity as a member of the board of directors or any board committee, shall not be considered independent.
(a)-(c) No change.
(d) Audit Committee
(1)-(4) No change.
(e)-(n) No change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this rule filing is to provide additional clarity and transparency to certain Nasdaq corporate governance standards.
(i) Rule 4200(a)(15)(B)—Compensation Over $60,000
Nasdaq proposes to modify the definition of independent director in Rule 4200(a)(15)(B) to provide that a finding of independence is precluded if a director accepts any compensation from the company or its affiliates in excess of $60,000 during any consecutive twelve month period within the three years prior to the independence determination. Under the existing rule, a director's independence is evaluated based on payments accepted from the company or its affiliates.
Nasdaq first proposed a detailed definition of independent director in 1999, following the recommendations of the Blue Ribbon Committee on Improving the Effectiveness of Corporate Audit Committees.
In 2002, following certain corporate scandals, Nasdaq reviewed its corporate governance standards and proposed the rule that exists today. The existing rule, which was approved in November 2003, precludes a finding of independence if a director, or any family member of the director, accepts any payments from the company or any parent or subsidiary of the company in excess of $60,000 during any period of twelve consecutive months within the three years preceding
Since the rule was approved, however, Nasdaq staff has been confronted by several examples of “payments” that do not fall within the original intent of the rule and which Nasdaq believes unlikely to taint a director's independence. For example, in the case of a company that is a bank, payments may include amounts such as interest on a director savings account, proceeds from the redemption of a savings bond, or even the return of the director's deposit. The Commission approved rule changes last year that specifically excluded these types of bank payments. In addition, in the case of a company that is an insurance company, payments could include the payment of claims on a director's policy.
Rather than continuing to codify examples of “payments” that should be excluded from the rules as they arise, Nasdaq believes that the more effective approach is to modify the rule to focus on compensation rather than payments. To provide further guidance, Rule IM-4200 would provide specific examples of direct and indirect compensation that would preclude a director's independence under the rule, such as contributions made to the political campaign of a director or family member. Based on its experience, Nasdaq believes that a revised rule based on compensation rather than payments would better capture the types of compensation that bear on a director's independence, while still addressing the issues that gave rise to concerns about the original rule.
The comparable rule of the New York Stock Exchange, Inc. (“NYSE”) precludes independence if the director or family member has received direct compensation above a minimum threshold.
(ii)
Nasdaq also proposes to modify the interpretive material to Rule 4200(a)(15) to provide that past service as a compensated interim officer should not preclude a director from being considered independent. Nasdaq has received inquiries from issuers who have named an independent director as an interim officer until a successor can be found. These companies have asked for clarity as to whether, under the current rules, serving as an interim officer would preclude a director from being considered independent as a result of such service.
Nasdaq has interpreted the existing rules such that a director serving as an interim officer would not be deemed to be a former employee of the company. However, concerns have been raised that compensation paid to these individuals would disqualify many directors from rendering such services. Nasdaq believes that it is appropriate to provide additional transparency to companies in this situation and, in doing so, to offer broader relief to these companies.
Companies that seek the services of an independent director as a temporary officer typically are responding to an urgent internal problem. Furthermore, companies in this position are likely to provide compensation to such persons in an amount greater than $60,000. Once a permanent replacement is found, and the individual seeks to return to “normal” service as a board member, Nasdaq believes it is unfair to penalize the company by preventing such person from serving as an independent director for another three years. Nasdaq is proposing a clarification to the rule that would address the difficulties faced at such times by issuers, especially smaller companies, that need to fill key executive slots, and are forced by timing exigencies to turn for help to experienced independent directors on their board. Nevertheless, if, while acting as an interim officer, the director participated in the preparation of the company's financial statements, the director would be precluded from serving on the Audit Committee for three years under Rule 4350(d)(2)(A)(iii).
Accordingly, Nasdaq proposes to amend IM-4200 to clarify that after the effective date of this rule, an issuer's Board may determine that a director who served as an officer of the company on an interim basis for up to a year is not precluded from being considered independent solely as a result of that service (including service that occurs before the approval of this proposed change).
NYSE rules also provide that compensated service as an interim officer does not disqualify a director from being considered independent following such service.
(iii)
Nasdaq also proposes to make other clarifying changes to the corporate governance rules. Specifically, Nasdaq proposes to clarify that the term “non-executive employee” used in Rule 4200(a)(15)(B)(iii) means an employee other than an executive officer, a term defined in the rules by reference to SEC Rule 16a-1(f) under the Act. Further, Nasdaq proposes to clarify that references to “the company” in Rule 4200(a)(15) include any parent or subsidiary of the listed company. Finally, Nasdaq proposes to clarify that an exception to the audit committee requirements contained in Rule 10A-3(c)(2) under the Act for certain issuers that have a listed parent also is applicable to Nasdaq's audit committee requirements.
(iv)
Nasdaq will implement the proposed rule change immediately upon approval by the Commission. In order to facilitate the transition to the new rules, any director that would be considered independent under the existing rules prior to the rule change, but that would no longer be deemed independent under the new rules, would be permitted to continue to serve on the issuer's Board of Directors as an independent director
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2006-021 and should be submitted on or before September 18, 2006.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On February 12, 2004, the National Association of Securities Dealers, Inc. (“NASD”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission received a total of five comment letters from three commenters on the proposed rule change.
The BMA, while objecting to this requirement, also believes that the Best Execution Rule should not apply to the bond market.
Instinet raises two additional points. First, Instinet argues that use of the term “market center” creates a competitive disadvantage because the rule would not apply to market centers operated by NASD and other self-regulatory organizations (“SROs”).
In response to the comments, NASD filed Amendment Nos. 3 and 4 to the proposed rule change.
NASD amended the proposed rule change to replace the term “market center” with the term “market,” which is a broader term. According to NASD, this change was made to address the BMA's concern that the term “market center” is not relevant in the bond market, as well as Instinet's concern with respect to the proposed rule creating a competitive disadvantage. As amended, the Best Execution Rule will apply to all trading venues.
In response to the BMA's assertion that the proposed rule should not apply to the bond market, NASD stated the rule has “never been limited to equity securities.” NASD cites to Rule 0116, which enumerates the NASD rules that apply to government and other exempt securities.
Amendment No. 5 is purely a technical amendment, as its substance was published for notice and comment in Amendment Nos. 3 and 4. With Amendment No. 5, NASD took the substance of Amendment Nos. 3 and 4 and placed that information in IM-2320.
The Commission has reviewed carefully the proposed rule change, the comment letters, and NASD's response to the comments, and believes that NASD has responded appropriately to the concerns raised by the commenters. The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and rules and regulations thereunder applicable to a national securities association, and, in particular, with Section 15A(b)(6) of the Act, which requires, among other things, that the rules of a national securities association be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and, in general, to protect investors and the public interest.
With regard to the commenters' claim that the proposal would create an unfair competitive disparity between otherwise similarly situated market centers that execute orders on an electronic agency basis, the Commission notes that electronic communications networks (“ECNs”) are subject to a different regulatory regime than SROs. ECNs are broker-dealers by definition, and must be members of an SRO; consequently ECNs are subject to SRO rules. Moreover, the Commission believes the proposed rule change, as amended, will not unfairly affect ECN operations.
With respect to the commenters' concern that implementation of this proposal should be delayed until after the Commission has adopted guidance under the trade through proposal of Regulation NMS, the Commission notes that the Commission adopted Regulation NMS subsequent to the commenters filing their comment letters.
Finally, the Commission views markup obligations and the duty of best execution as separate and distinct requirements. NASD Rule 2320(f) states that best execution obligations “do not relate to the reasonableness of commission rates, markups or markdowns which are governed by Rule 2440 and IM-2440.”
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NASD proposes to amend NASD Rule 2860 to extend a pilot program increasing certain options position and exercise limits. The text of the proposed rule change is available on NASD's Web site (
In its filing with the Commission, NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. NASD has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
NASD proposes to amend NASD Rule 2860 to extend a pilot program until March 1, 2007 (unless extended) increasing position and exercise limits for both standardized and conventional options (“Pilot Program”).
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the forgoing rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is proposing to amend NYSE Rules 123D and 15 to shorten the minimum time periods between tape indications and openings or reopenings of a security and after an “Equipment Changeover.”
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Exchange specialists are responsible for ensuring that their specialty securities open for trading as close to the opening bell as possible, and reopen for trading after a trading halt as soon as possible, consistent with the relevant circumstances. In addition to being timely, however, openings and reopenings after a trading halt should also be fair and orderly, reflecting a professional assessment of market conditions at the time and appropriate consideration of the balance of supply and demand as reflected by orders represented in the market.
Ordinarily, the specialist provides this information to the market before the opening bell in the form of price indications that are published on the consolidated tape. However, under certain circumstances, including a delayed opening of a security and the reopening of trading in a security after a trading halt, the specialist may be required to publish a price indication to the market that reflects the specialist's assessment of market conditions at the time of the delayed opening or reopening to provide market participants with the opportunity to react and participate as they deem appropriate.
Over the years, in developing procedures for openings and reopenings of trading, the Exchange has focused on providing a balance between timeliness and appropriateness of price,
Recognizing that the speed of communication has increased exponentially in the last decade and that market conditions may change substantially between the indication and the opening or resumption of trading under the time frames included in the current rule, the Exchange believes it is desirable to shorten the time between indications and the opening or reopening of trading in a security. The Exchange believes shortening the time periods would provide the market with the flexibility to react quickly if circumstances are such that it would be appropriate to open or reopen trading in a short period of time. Accordingly, the Exchange is proposing to revise the minimum time required for delayed openings of trading and reopenings of trading after a trading halt.
In connection with a delayed opening of trading in a security, Exchange Rule 123D (Openings and Halts in Trading) currently requires a minimum of ten minutes to elapse between the first price indication and the opening of the stock, and where there is more than one indication, a minimum of five minutes to elapse after the last indication, provided in all cases that at least ten minutes have elapsed since the first indication. The Exchange proposes that these minimum time periods be compressed from ten to three minutes after the first indication, and to one minute after the last indication, provided that a minimum of three minutes have elapsed since the first indication.
With respect to the reopening of trading after a stock has been halted during the trading day, Exchange Rule 123D currently requires a minimum of five minutes to elapse between the first indication and the reopening of trading, and a minimum of three minutes to elapse after the last indication, provided that at least five minutes has elapsed since the first indication. The Exchange proposes that these minimum time periods be compressed to three minutes after the first indication, and to one minute after the last indication, provided that a minimum of three minutes has elapsed since the first indication.
With respect to the reopening of trading after a stock has been halted during the trading day because of “Equipment Changeover,” Exchange Rule 123D currently requires a minimum of five minutes to elapse before trading resumes. Further, if, during the “Equipment Changeover” trading halt, a significant order imbalance (
The Exchange notes that there are different indication requirements for different classes of securities, such as foreign-listed securities and convertible preferred stock. The proposed amendments to Exchange Rule 123D do not alter those requirements.
The Exchange also proposes that the same minimum time period changes be added to a related rule, Exchange Rule 15 (ITS and Pre-Opening Applications), in order to conform Exchange Rule 15 to the recently amended Intermarket Trading System Plan. Specifically, the Exchange proposes to amend Exchange Rule 15 to require that, when more than one indication is disseminated, a stock may reopen one minute after the last indication if three minutes have elapsed after the first indication.
The Exchange also notes that the Consolidated Tape Association Plan has been amended to provide that following a trading halt, last sale information will be disseminated pursuant to a listing market's rules and Exchange Rule 123D for Exchange-listed securities.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, as amended; or
B. Institute proceedings to determine whether the proposed rule change, as amended, should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, Station Place, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Richard Lahne, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8058). The address is U.S. Department of State, SA-44, 301 4th Street, SW. Room 700, Washington, DC 20547-0001.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Carol B. Epstein, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW. Room 700, Washington, DC 20547-0001.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Richard Lahne, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202/453-8058). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
This notice announces a meeting of the International Telecommunication Advisory Committee (ITAC). The International Telecommunication Advisory Committee (ITAC) will meet by conference call to prepare advice on proposed U.S. contributions to Study Group 9 (Integrated broadband cable networks and television and sound transmission) of the International Telecommunication Union's Telecommunication Standardization Sector on Thursday September 14, 2006 2-4 p.m. Eastern Time. This call is open to the public. Particulars on the conference bridge are available from the secretariat
The U.S. National Commission for UNESCO will hold a conference call on Wednesday, September 6, 2006 beginning at 11:30 a.m. Eastern Time. The open portion of the call should last one hour and will address recommendations from the Commission's Literacy Subcommittee and U.S. National Committee for the International Hydrological Program. Additional topic areas that relate to UNESCO may be discussed as needed.
The Commission will accept brief oral comments from members of the public during the open portion of this conference call. The public comment period will be limited to approximately fifteen minutes in total with about three minutes allowed per speaker. Members of the public who wish to present oral comments or listen to the conference call must make arrangements with the Executive Secretariat of the National Commission by September 1, 2006.
The second portion of the teleconference meeting will be closed to the public to allow the Commission to discuss applications for the UNESCO-L'OREAL Co-Sponsored Fellowships for Young Women in Life Sciences Program. It has been determined that this portion of the call will be closed to the public pursuant to section 10 (d) of the Federal Advisory Committee Act and 5 U.S.C. 552b [c] [6] because it is likely to involve discussion of information of a personal nature regarding the relative merits of
For more information or to arrange to participate in the open portion of the teleconference meeting, contact Alex Zemek, Acting Executive Director of the U.S. National Commission for UNESCO, Washington, DC 20037. Telephone: (202) 663-0026; Fax: (202) 663-0035; E-mail:
Federal Aviation Administration (FAA), DOT.
Notice.
Under the provisions of Title 49, U.S.C. Section 47153(c), notice is being given that the FAA is considering a request from the Charleston County Aviation Authority to waive the requirement that approximately 17.9 acres of airport property (Faison Road), located at the Mount Pleasant Regional Airport, be used for aeronautical purposes.
Comments must be received on or before September 27, 2006.
Comments on this notice may be mailed or delivered in triplicate to the FAA at the following address: Atlanta Airports District Office, Attn: Anthony Cochran, Program Manager, 1701 Columbia Ave., Suite 2-260, Atlanta, GA 30337-2747.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Sam Hoerter, A.A.E., Director of Airports, Charleston County Aviation Authority at the following address: Charleston County Aviation Authority, Charleston International Airport, 5500 International Blvd. #101, Charleston, SC 29418.
Anthony Cochran, Program Manager, Atlanta Airports District Office, 1701 Columbia Ave., Suite 2-260, Atlanta, GA 30337-2747, (404) 305-7144. The application may be reviewed in person at this same location.
The FAA is reviewing a request by the Charleston County Aviation Authority to release approximately 17.9 acres of airport property (Faison Road) at the Mount Pleasant Regional Airport. The property consists of an access road on one parcel roughly located on the East side of the airport. This property is currently shown on the approved Airport Layout Plan as aeronautical use land; however the property is currently not being used for aeronautical purposes and the proposed use of this property is compatible with airport operations. The Charleston County Aviation Authority will ultimately transfer the property to the Town of Mount Pleasant for continued use as a public road in exchange for providing future maintenance/repair of the road and public services to the airport.
Any person may inspect the request in person at the FAA office listed above under
Federal Aviation Administration (FAA), DOT.
Notice of intent of waiver with respect to land.
The FAA is publishing notice of proposed release of 31.413 acres of land at the Raleigh County Memorial Airport, Beckley, West Virginia to the Raleigh County Airport Authority and the Raleigh County Commission for the development of an industrial park. There are no impacts to the Airport and the land is not needed for airport development as shown on the Airport Layout Plan. Fair Market Value of the land will be paid to the Raleigh County Airport and the Raleigh County Commission, and used for Airport purposes.
Comments must be received on or before September 27, 2006.
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Connie Boley-Lilly, Program Specialist, Federal Aviation Administration, Beckley Airports District Office, 176 Airport Circle, Room 101, Beaver, West Virginia 25813.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Thomas Cochran, Airport Manager, Raleigh County Memorial Airport at the following address: Thomas Cochran, Airport Manager, Raleigh County Memorial Airport, 176 Airport Circle, Room 105, Beaver, West Virginia 25813.
Connie Boley-Lilly, Program Specialist, Beckley Airport District Office, (304) 252-6216 ext. 125, FAX (304) 253-8028.
On April 5, 2000, new authorizing legislation became effective. That bill, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Public Law 10-181 (April 5, 2000; 114 Stat. 61) (AIR 21) requires that a 30 day public notice must be provided before the Secretary may waive any condition imposed on an interest in surplus property.
Federal Aviation Administration, DOT.
Request for Comments.
The Federal Aviation Administration (FAA) announces an additional comment period, closing on September 22, 2006, for a Draft Written Reevaluation of environmental impacts of a proposed centerfield taxiway at Boston-Logan International Airport, Boston, Massachusetts.
Send comments on or before September 22, 2006.
John C. Silva, Federal Aviation Administration, New England Region, Airports Division, ANE-600, 12 New England Executive Park, Burlington, Massachusetts 01803.
On August 2, 2002, FAA issued
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 212, Helicopter Terrain Awareness and Warning System (HTWAS).
The FAA is issuing this notice to advise the public of a first meeting of RTCA Special Committee 212, Helicopter Terrain Awareness and Warning system (HTWAS).
The meeting will be held September 21, 2006, from 9 a.m.-5 p.m.
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
RTCA Secretariat, 1828 L Street, NW., Suite 805, Washington, DC, 20036, telephone (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 19(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given for a Special Committee 212 meeting. The agenda will include:
• September 21:
• Opening Plenary Session (Welcome, Introductions, and Administrative Remarks, Select Secretary, Agenda Overview).
• RTCA Overview.
• Previous Terrain Awareness and Warning System (TAWS) History.
• Current Committee Scope, Terms of Reference Overview.
○ Presentation, Discussion, Recommendations.
• Organization of Work, Assign Tasks, and Workshops.
○ Select Workgroup members to study historical helicopter CFIT accidents.
○ Assign Responsibilities.
• Closing Plenary Session (Other Business, Establish Agenda, Date and Place of Next Meeting, Adjourn).
Attendance is open to the interested public but limited to space availability. Pre-Registration for this meeting is not required for attendance but is desired and can be done through the RTCA secretariat. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Highway Administration (FHWA), DOT.
Notice; solicitation of applications.
This notice solicits applications for the truck parking initiative for which funding is available under Section 1305 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU directs the Secretary to establish a pilot program to address the shortage of long-term parking for commercial motor vehicles on the National Highway System. States, metropolitan planning organizations (MPOs) and local governments are eligible for the funding available for fiscal years (FY) 2006-2009. Section 1305 allows for a wide range of eligible projects, ranging from construction of spaces and other capital improvements to using intelligent transportation systems (ITS) technology to increase information on the availability of both public and private commercial vehicle parking spaces. For purposes of this program, long-term parking is defined as parking available for 10 or more consecutive hours.
Applications must be received by the FHWA Division Office no later than November 27, 2006.
The FHWA Division Office locations can be found at the following URL:
Mr. William Mahorney, Office of Freight Management and Operations, telephone 202-366-6817
An electronic copy of this notice may be downloaded from the Office of the Federal Register's home page at
The Truck Parking Initiative could further the goals of the Department of Transportation's new National Strategy to Reduce Congestion on America's Transportation Network, announced on May 16, 2006.
The shortage of long-term truck parking on the National Highway System (NHS) is a problem that needs to be addressed. The 2002 FHWA Report “Study of Adequacy of Parking Facilities”
1. Promote the real-time dissemination of publicly or privately provided commercial motor vehicle parking availability on the NHS using ITS and other means;
2. Opening non-traditional facilities to commercial motor vehicle parking, including inspection and weigh stations, and park and ride facilities;
3. Making capital improvements to public commercial motor vehicle parking facilities currently closed on a seasonal basis to allow the facilities to remain open year round;
4. Constructing turnouts along the NHS to facilitate commercial motor vehicle access to parking facilities, and/or improving the geometric design of interchanges to improve access to commercial motor vehicle parking facilities;
5. Constructing commercial motor vehicle parking facilities adjacent to commercial truck stops and travel plazas; and
6. Constructing safety rest areas that include parking for commercial motor vehicles.
The FHWA believes that projects designed to disseminate information on the availability and/or location of public or private long-term parking spaces provides the greatest opportunity to maximize the effectiveness of this pilot program.
1. The Administrator has determined that $5.385 million is available for grants in FY 2006 under Section 1305, after obligation limitations.
2. Section 1305 authorizes $6.25 million for each of the fiscal years 2006 through 2009. Each year, after Congress has appropriated funds for the program, the obligation limitation will be determined. A similar solicitation for grant applications will be published each fiscal year. Funds authorized to carry out this section remain available until expended.
3. Projects funded under this section shall be treated as projects on a Federal-Aid System under Chapter 1 of Title 23, United States Code.
4. Grants may be funded at an 80 to 100 percent funding level based on the criteria specified in Sections 120(b) and (c) of Title 23, U.S. Code.
This notice will also be posted on the FHWA Office of Freight Management and Operations Web site,
1. A detailed project description, which would include the extent of the long-term truck parking shortage in the corridor/area to be addressed, along with contact information for the project's primary point of contact, and whether funds are being requested under 23 U.S.C. 120(b) or (c). Data helping to define the shortage may include truck volume (Average Daily Truck Traffic—ADTT) in the corridor to be addressed, current number of long-term commercial motor vehicle parking spaces, use of current long-term parking spaces, driver surveys, observational field studies, proximity to freight loading/unloading facilities, and proximity to the NHS.
2. The rationale for the project should include an analysis and demonstration of how the proposed project will positively affect truck parking, safety, traffic congestion, or air quality in the identified corridor. Examples may include: advance information on availability of parking that may help to reduce the number of trucks parked on roadsides and increase the use of available truck parking spaces.
3. The scope of work should include a complete listing of activities to be funded through the grant, including technology development, information processing, information integration activities, developmental phase activities (planning, feasibility analysis, environmental review, engineering or design work, and other activities), construction, reconstruction, acquisition of real property (including land related to the project and improvements to land), environmental mitigation, construction contingencies, acquisition of equipment, and operational improvements.
4. Stakeholder identification should include evidence of prior consultation and/or partnership with affected Metropolitan Planning Organizations (MPOs), local governments, community groups, private providers of commercial motor vehicle parking, and motorist and
5. A detailed quantification of eligible project costs by activity, an identification of all funding sources that will supplement the grant and be necessary to fully fund the project, and the anticipated dates on which the additional funds are to be made available. Public and private sources of funds (non-Federal commitment) will be considered by the FHWA as an in-kind match contributing to the project. State matching funds will be required for projects eligible under 23 U.S.C. 120 U.S.C. (b).
6. Applicants should provide a timeline that includes work to be completed and anticipated funding cycles. Gantt charts are preferred.
7. Environmental process: Please include a timeline for complying with the National Environmental Policy Act (NEPA) process, if applicable.
8. Include a project map that consists of a schematic illustration depicting the project and connecting transportation infrastructure.
9. Measurement Plan. Submitter must describe a measurement plan to determine whether or not the project achieved its intended results. The measurement plan must continue for three years beyond the completion date of the project. After the three-year period, a final report quantifying the results of the project must be submitted to the FHWA.
10. Proposals should not exceed 20 pages in length.
Grant applications that contain the mandatory elements will be scored competitively according to the soundness of their methodology and subject to the criteria listed below. Sub-factors listed under each factor are of equal importance unless otherwise noted.
1. Demonstration of severe shortage (number of spaces, access to existing spaces or information/knowledge of space availability) of commercial motor vehicle parking capacity/utilization in corridor or area to be addressed (20 percent).
• Average Daily Truck Traffic (ADTT) in proposal area.
• Average daily shortfall of truck parking in proposal area.
• Ratio of ADTT to average daily shortfall of truck parking in proposal area.
• Proximity to NHS.
2. The extent to which the proposed solution resolves the described shortage (35 percent).
• Number of truck parking spaces per day that will be used as a result of the proposed solution.
• The effect on highway safety, traffic congestion, and/or air quality.
3. Cost effectiveness of proposal (25 percent).
• How many truck parking spaces will be used per day per dollar expended?
• Total cost of project, including all non-Federal funds that will be contributed to the project.
4. Scope of proposal (20 percent).
• Evidence of a wide range of input from affected parties, including State and local governments, community groups, private providers of commercial motor vehicle parking, and motorist and trucking organizations.
• Whether the principles outlined in the proposal can be applied to other locations/projects and possibly serve as a model for other locations.
1. All applications for grants must be submitted to the FHWA Division Office by the State DOT by the date specified in this notice.
2. State DOTs should ensure that the project proposal is compatible with or documented on their planning documents (TIP and STIP). They should also validate, to the extent the can, any analytic data.
3. Each application will be reviewed for conformance with the provisions in this notice.
4. Applications lacking any of the mandatory elements or arriving after the deadline for submission will not be considered. To assure full consideration, proposals should not exceed 20 pages in length.
5. Applicants may be contacted for additional information or clarification.
6. Applications complying with the requirements outlined in this notice will be evaluated competitively by a panel selected by the Director, Office of Freight Management and Operations, and will be scored as described in the scoring criteria.
7. If the FHWA determines that the project is technically or financially unfeasible, FHWA will notify the applicant, in writing.
8. The FHWA reserves the right to partially fund or request modification of projects.
9. All information described in the submitter's mandatory proposal elements must be quantifiable and sourced.
10. Submitter must describe a measurement plan to determine whether or not the project will achieve its intended results. The measurement plan must continue for three years beyond the date of the project. After a three-year period, a final report quantifying the results of the project must be submitted to the FHWA.
11. The proposed projects should not compete with local businesses or commercial enterprises.
The grant applications will be ranked by final score. The FHWA will select applications based on those rankings, subject to the availability of funds.
The FHWA recognizes that each funded project is unique, and therefore may attach conditions to different projects' award documents. The FHWA will send an award letter with a grant agreement that contains all the terms and conditions for the grant. These successful applicants must execute and return the grant agreement, accompanied by any additional items required by the grant agreement.
Failure to provide the measurement plan will be considered during the past-performance element of future grant applications.
Pub. L. 109-59; Aug. 10, 2005.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of renewal of exemption; request for comments.
FMCSA announces its decision to renew the exemptions from the vision requirement in the Federal Motor Carrier Safety Regulations for 19 individuals. FMCSA has statutory authority to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. The Agency has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these commercial motor vehicle (CMV) drivers.
This decision is effective September 9, 2006. Comments must be received on or before September 27, 2006.
You may submit comments identified by DOT Docket Management System (DMS) Docket Numbers FMCSA-99-5748, FMCSA-99-6480, FMCSA-00-7006, FMCSA-01-11426, FMCSA-02-11714, FMCSA-02-12294, using any of the following methods.
• Web site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
• Federal eRulemaking Portal: Go to
Dr. Mary D. Gunnels, Chief, Physical Qualifications Division, (202) 366-4001,
Under 49 U.S.C. 31136(e) and 31315, FMCSA may renew an exemption from the vision requirements in 49 CFR 391.41(b)(10), which applies to drivers of CMVs in interstate commerce, for a two-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” The procedures for requesting an exemption (including renewals) are set out in 49 CFR part 381. This Notice addresses 19 individuals who have requested renewal of their exemptions in a timely manner. FMCSA has evaluated these 19 applications for renewal on their merits and decided to extend each exemption for a renewable two-year period. They are:
These exemptions are extended subject to the following conditions: (1) That each individual have a physical examination every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in 49 CFR 391.41(b)(10), and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file and retain a copy of the certification on his/her person while driving for presentation to a duly authorized Federal, State, or local enforcement official. Each exemption will be valid for two years unless rescinded earlier by FMCSA. The exemption will be rescinded if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315.
Under 49 U.S.C. 31315(b)(1), an exemption may be granted for no longer than two years from its approval date and may be renewed upon application for additional two year periods. In accordance with 49 U.S.C. 31136(e) and
FMCSA will review comments received at any time concerning a particular driver's safety record and determine if the continuation of the exemption is consistent with the requirements at 49 U.S.C. 31136(e) and 31315. However, FMCSA requests that interested parties with specific data concerning the safety records of these drivers submit comments by September 27, 2006.
FMCSA believes that the requirements for a renewal of an exemption under 49 U.S.C. 31136(e) and 31315 can be satisfied by initially granting the renewal and then requesting and evaluating, if needed, subsequently comments submitted by interested parties. As indicated above, the Agency previously published Notices of final disposition announcing its decision to exempt these 19 individuals from the vision requirement in 49 CFR 391.41(b)(10). The final decision to grant the exemption to each of these individuals was based on the merits of each case and only after careful consideration of the comments received in response to the Notices announcing the applications. The Notices of applications stated in detail the qualifications, experience, and medical condition of each applicant for an exemption from the vision requirements. That information is available by consulting the above cited
Interested parties or organizations possessing information that would otherwise show that any, or all of these drivers, are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315, FMCSA will take immediate steps to revoke the exemption of a driver.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice; request for comments.
FMCSA seeks comments on its proposed plan to implement National Transportation Safety Board (NTSB) recommendations for providing pre-trip safety information to motorcoach passengers. The NTSB recommends that the agency require, and develop minimum guidelines for, pre-trip safety information to be provided by motorcoach companies to passengers. FMCSA, in conjunction with stakeholders, has developed a basic plan for all motorcoach companies to implement a passenger safety awareness program. FMCSA proposes a flexible plan that would approve several methods of informing motorcoach passengers using visual and/or audio presentation, with or without technology assistance. FMCSA seeks motorcoach industry and stakeholder input in finalizing the plan. The goal of this initiative is to develop, and encourage adoption of, passenger safety awareness guidelines suited for diverse motorcoach operational types.
We must receive your comments by November 27, 2006.
You may submit comments, identified by Docket Number FMCSA-2005-21324, by any of the following methods:
• Federal eRulemaking Portal:
• Agency Web Site:
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. Please submit three copies of written comments.
• Hand Delivery: Submit three copies of written comments to 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.
Mr. Peter Chandler, Commercial Passenger Carrier Safety Division (MC-ECP), 202-366-5763; Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 8 a.m. to 5 p.m., ET, Monday through Friday, except Federal holidays.
The DMS is available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “Help” section of the DMS Web site. If you want us to notify you of receiving your comments, please include a self-addressed, stamped envelope or postcard or print the acknowledgement page displaying after received of on-line comments.
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
On February 26, 1999, NTSB issued five recommendations to the Secretary of Transportation. This public notice addresses the two 1999 recommendations subsequently delegated to FMCSA:
NTSB made similar recommendations to the American Bus Association (ABA) and the United Motorcoach Association (UMA). The two 1999 recommendations were in response to a motorcoach crash on I-95 near Stony Creek, Virginia. On July 29, 1997, a 1985 Transportation Manufacturing Corporation motorcoach operated by Rite-Way Transportation, Inc. drifted off the side of I-95 and down an embankment into the Nottoway River, where it came to rest on its left side. At the time, a driver and 34 passengers were onboard the motorcoach. One passenger was fatally injured. The driver and 3 passengers sustained serious injuries; 28 passengers sustained minor injuries. NTSB believed this fatal accident highlighted the need for motorcoach passengers to receive pre-trip safety information similar to the emergency evacuation information given during pre-flight safety briefings for commercial airline passengers. During several motorcoach crash investigations by NTSB, passengers described a general sense of panic because they did not know what to do or how to get out of the motorcoach.
In the spring of 2003, FMCSA held informal meetings with ABA, UMA, and the Commercial Vehicle Safety Alliance (CVSA) which culminated in a working group to address the NTSB recommendations. Individuals from the motorcoach operating industry, motorcoach manufacturers, insurance industry, safety consulting industry, trade associations, State agencies, and other Federal regulatory agencies comprised the working group. the working group met initially via conference call on August 19, 2003, and reached consensus on a response to the NTSB recommendations on September 16, 2003.
The working group concluded it would be best to initially encourage the motorcoach industry to take voluntary action to improve pre-trip safety awareness. Motorcoach industry officials asserted it is impossible to develop a uniform passenger safety awareness regulation, flexible enough for industry-wide application, due to wide-ranging operational variances within the motorcoach industry. The group believed development and promotion of a list of best practices is a more effective and realistic alternative to ensure motorcoach passengers receive safety information. This notice announces FMCSA's intent to work together with stakeholders on these safety guidelines. The guidelines would allow motorcoach companies to conduct pre-trip safety briefings as they deem appropriate.
In an April 1, 2005, letter to FMCSA, the NTSB stated that the activities described above will provide motorcoach passengers with increased information about safety, and are responsive to recommendation H-99-7. In addition, NTSB stated such activities also provide an acceptable alternate approach to recommendation H-99-8. Based upon FMCSA's actions taken and plans made, NTSB classified recommendation H-99-7 as “Open—Acceptable Response” and recommendation H-99-8 as “Open—Acceptable Alternate Response.” After reaching general consensus among stakeholders about a basic plan for motorcoach passenger safety awareness and developing a model informational pamphlet, FMCSA will submit such information and material to the NTSB for review. At such time, FMCSA and its safety partners will also begin monitoring crashes and complaints to verify that motorcoach companies are presenting pre-trip safety information to their passengers.
1. Driver Direction—Advise passengers to look to the driver for direction and follow his/her instructions.
2. Avoiding Slips and Falls—Warn passengers to exercise care when boarding and de-boarding the motorcoach, and to use the handrail when ascending or descending steps. Encourage passengers to remain seated as much as possible while the motorcoach is in motion. If it is necessary to walk while the motorcoach is moving, passengers should always use handrails and supports.
Keep the aisle free of all property and debris.
3. Emergency Contact—Advise passengers to call 911 via cellular telephone in the event of an emergency.
4. Emergency exits—Point out the location of all emergency exits (push-out windows, roof vent, and side door) and explain how to operate them, including the emergency door release located on the dash or in the stairwell. Emphasize that, whenever feasible, the motorcoach door should be the primary exit choice. Encourage able-bodied passengers to assist any injured or mobility-impaired passengers during an emergency evacuation.
5. Restroom Emergency Push Button on Switch—Inform motorcoach passengers of the emergency signal advice in the restroom.
6. Fire extinguisher—Point out the location of the fire extinguisher.
1. During passenger boarding:
a. Informational pamphlets distributed to motorcoach passengers during boarding.
2. After passenger boarding, immediately prior to moving the motorcoach:
a. Suggestion by the driver for passengers to review informational pamphlets located in the pouches or sleeves on the back of seats.
b. Oral presentation on safety information by the motorcoach driver (similar to the presentations by airline flight attendants prior to take-off) with or without informational pamphlets as visual aids.
c. Automated audio presentation broadcasting a cassette tape or compact disk over the motorcoach audio system.
d. Automated video presentation using a videotape or DVD on the motorcoach video system.
Demand-responsive motorcoach operations such as charter and tour service should present the safety information to motorcoach passengers after boarding, prior to movement of the motorcoach.
At a minimum, fixed route motorcoach service operations should present the safety information at all major stops or terminals after boarding, prior to movement of the motorcoach.
FMCSA requests comments on the adequacy and comprehensiveness of the basic plan as well as recommendations for additional plan details.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of the Railroad Safety Advisory Committee (RSAC) meeting.
FRA announces the next meeting of the RSAC, a Federal Advisory Committee that develops railroad safety regulations through a consensus process. The RSAC meeting topics include opening remarks from the FRA Administrator, the private crossing safety inquiry, electronically controlled pneumatic brakes, a summary of the Collision Analysis Working Group Final Report, an update on Remote Control Locomotive training efforts, and a status report on the Notice of Proposed Rulemaking on Railroad Operating Rules. Status reports will be given on the Passenger Safety, Roadway Worker, Continuous Welded Rail, and Locomotive Standards working groups. The Committee may possibly be asked to vote to accept a task on medical standards. This agenda is subject to change, and may include briefings on railroad security and other issues.
The meeting of the RSAC is scheduled to commence at 9:30 a.m., and conclude at 4 p.m., on Thursday, September 21, 2006.
The meeting of the RSAC will be held at the Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005, (202) 842-1300. The meeting is open to the public on a first-come, first-serve basis, and is accessible to individuals with disabilities. Sign and oral interpretation can be made available if requested 10 calendar days before the meeting.
Patricia Butera, RSAC Coordinator, FRA, 1120 Vermont Avenue, NW., Stop 25, Washington, DC 20590, (202) 493-6212 or Grady Cothen, Deputy Associate Administrator for Safety Standards and Program Development, FRA, 1120 Vermont Avenue, NW., Mailstop 25, Washington, DC 20590, (202) 493-6302.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), FRA is giving notice of a meeting of the RSAC. The meeting is scheduled to begin at 9:30 a.m., and conclude at 4 p.m., on Thursday, September 21, 2006. The meeting of the RSAC will be held at the Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005, (202) 842-1300.
RSAC was established to provide advice and recommendations to the FRA on railroad safety matters. The RSAC is composed of 54 voting representatives from 31 member organizations, representing various rail industry perspectives. In addition, there are non-voting advisory representatives from the agencies with railroad safety regulatory responsibility in Canada and Mexico, the National Transportation Safety Board, the Federal Transit Administration, and the Transportation Security Administration. The diversity of the Committee ensures the requisite range of views and expertise necessary to discharge its responsibilities.
See the RSAC Web site for details on pending tasks at:
Maritime Administration, DOT.
Synopsis of July 26 and 27, 2006 meeting with VISA participants.
Mr. Taylor E. Jones II, Director, Office of Sealift Support, (202) 366-2323.
The VISA program requires that a notice of the time, place, and nature of each JPAG meeting be published in the
On July 26 and 27, 2006, the Maritime Administration (MARAD) and the U.S. Transportation Command (USTRANSCOM) co-hosted a meeting of the VISA JPAG at the Military Sealift Command in Washington, DC. Meeting attendance was by invitation only, due to the nature of the information discussed and the need for a government-issued security clearance. Of the 52 U.S.-flag carrier corporate participants enrolled in the VISA program, 17 companies participated in the JPAG meeting. In addition, representatives from MARAD and the Department of Defense (DOD) attended the meeting.
Margaret LeClaire, Deputy Director, Strategy, Plans, Policy & Programs, USTRANSCOM, and James Caponiti, Associate Administrator for National Security, MARAD, welcomed the participants. Ms. LeClaire noted that this JPAG was a table-top exercise to match industry capabilities to military requirements related to the findings of DOD's Mobility Capabilities Study (MCS). She asked industry participants to be creative and to collaborate as necessary to offer solutions. She noted that there were DOD representatives present to answer specific questions related to the exercise. Mr. Caponiti remarked that while some progress has been made in recent JPAG meetings regarding the findings of DOD's Mobility Capabilities Study, he expected that this exercise would provide the government with a better appreciation of industry capabilities. He requested that industry representatives itemize their concerns related to the exercise so that they might be addressed after the meeting.
VISA participants coordinated their efforts to ensure that commercial resources were utilized in an efficient and innovative manner. As a result of the exercise there was general agreement that there was more capability in the commercial industry than was assumed in the MCS to meet timelines and satisfy requirements. The participants noted that their responses were based on numerous assumptions. It was agreed that a closer examination of equipment, infrastructure and intermodal constraints was needed, and that factors such as market conditions and trade seasonality should be considered and evaluated before final conclusions could be reached.
The following VISA companies participated in the July 26 and 27, 2006 JPAG meeting: American President Lines, Ltd.; American Roll-On Roll-Off Carrier, LLC; American Shipping Group;
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of receipt of petition for temporary exemption from provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
In accordance with the procedures in 49 CFR part 555, Koenigsegg Automotive AB (“Koenigsegg”) has petitioned the agency for a temporary exemption from certain head lighting requirements of FMVSS No. 108, advanced air bag requirements of FMVSS No. 208, and bumper standard requirements of 49 CFR part 581. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard.
This notice of receipt of an application for temporary exemption is published in accordance with the statutory provisions of 49 U.S.C. 30113(b)(2). NHTSA has made no judgment on the merits of the application.
You should submit your comments not later than September 12, 2006.
Mr. Ed Glancy or Mr. Eric Stas, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Room 5219, Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
• Web Site:
• Fax: 1-(202)-493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to
We shall consider all comments received before the close of business on the comment closing date indicated above. To the extent possible, we shall also consider comments filed after the closing date.
In 2000, NHTSA upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The advanced air bag requirements were a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of air bags. This plan also included an extensive consumer education program to encourage the placement of children in rear seats. The new requirements were phased in beginning with the 2004 model year.
Small volume manufacturers are not subject to the advanced air bag requirements until September 1, 2006, but their efforts to bring their respective vehicles into compliance with these requirements began several years ago. However, because the new requirements were challenging, major air bag suppliers concentrated their efforts on working with large volume manufacturers, and thus, until recently, small volume manufacturers had limited access to advanced air bag technology. Because of the nature of the requirements for protecting out-of-position occupants, “off-the-shelf” systems could not be readily adopted. Further complicating matters, because small volume manufacturers build so few vehicles, the costs of developing custom advanced air bag systems compared to potential profits discouraged some air bag suppliers from working with small volume manufacturers.
The agency has carefully tracked occupant fatalities resulting from air bag deployment. Our data indicate that the agency's efforts in the area of consumer education and manufacturers' providing depowered air bags were successful in reducing air bag fatalities even before advanced air bag requirements were implemented.
As always, we are concerned about the potential safety implication of any
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR part 555, Koenigsegg has petitioned the agency for a temporary exemption from certain headlight requirements of FMVSS No. 108 (S7), advanced air bag requirements of FMVSS No. 208 (S14), and bumper requirements of 49 CFR part 581. The basis for each portion of the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with these standards. A copy of the petition
A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do not include any provision indicating that a manufacturer might have substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
The petitioner argues that it tried in good faith, but could not bring the vehicle into compliance with the headlamp, advanced air bag, and bumper requirements, and would incur substantial economic hardship if it cannot sell vehicles in the U.S. after January 1, 2007.
According to its current forecasts, Koenigsegg anticipates the following number of CCX vehicles would be imported into the United States, if its requested exemptions were to be granted: 25 in calendar year (CY) 2007; 30 in CY 2008, and 30 in CY 2009.
As for the CCX's compliance with the other advanced air bag requirements, Koenigsegg states that it does not know whether the CCX will be compliant because to date it has not had the financial ability to conduct the necessary testing.
As such, Koenigsegg is requesting an exemption for the CCX from the rigid barrier unbelted test requirement with the 50th-percentile adult male test dummy (S14.5.2), the rigid barrier test requirement using the 5th-percentile adult female test dummy (belted and unbelted, S15), the offset deformable barrier test requirement using the 5th-percentile adult female test dummy (S17), the requirements to provide protection for infants and children (S19, S21, and S23) and the requirement using an out-of-position 5th-percentile adult female test dummy at the driver position (S25).
Koenigsegg further requests an exemption from the headlamp requirements set forth in S7 of FMVSS No. 108 and the bumper standard in 49 CFR part 581.
Koenigsegg stated its intention to produce a second generation of the CCX model by late 2009, which would be certified as complying with all applicable U.S. standards, including ones for headlamps (FMVSS No. 108 S7), advanced air bags (FMVSS No. 208 S14), and bumpers (49 CFR part 581). Accordingly, Koenigsegg seeks an exemption from the enumerated requirements from January 1, 2007 through December 31, 2009.
In the past three years (2003 to 2005), the company has had losses totaling $1,637,399, and during this time period, the company's factory burned to the ground and had to be rebuilt. Koenigsegg did make a profit of $58,341 in 2003 and $722,406 in 2004, but it incurred a substantial loss of $2,418,416 in 2005.
As of the time of the application, Koenigsegg has invested over $3.2 million on the CCX project in order to have the vehicle meet U.S. standards—not including the three provisions which are the subject of the present petition for temporary exemption. The company has stated that it cannot hope to attain profitability if it incurs additional research and development expenses at this time.
Koenigsegg stated that costs for external assistance with developing an
In its petition, Koenigsegg reasoned that worldwide sales (including the U.S. market) of the current CCX in higher volumes over the next 3 years is necessary to reduce production costs and to make available funding for development of the next generation of the CCX, which would be compliant with all U.S. air bag, headlamp, and bumper requirements. In essence, Koenigsegg argued that the exemption is necessary to allow the company to “bridge the gap” until fully compliant vehicles can be funded, developed, tooled, and introduced.
If the exemption is denied, Koenigsegg projects a net loss of $82.4 million over the period from 2006-2009. However, if the petition is granted, the company anticipates a profit of over $27 million during that same period. The petitioner argued that a denial of this petition could preclude entry into the U.S. market until 2010 or later, a development which would have a highly adverse impact on the company. According to the petitioner, if the exemption request is not granted, the company would face a “virtually insurmountable problem” in terms of funding and introducing a vehicle that meets all applicable U.S. requirements, and it might ultimately drive the company out of business because the rest of the world export market would be inadequate to ensure profitability.
In light of limited resources, the petitioner stated that it was necessary to first develop the vehicle with a standard U.S. air bag system. The company reengineered the CCX with an Audi TT driver air bag system and developed a new passenger air bag system, a $641,000 project which is nearing completion.
According to its petition, Koenigsegg anticipates that 2 years will be needed to install an advanced air bag system on the CCX. Modifications would involve development of new components, such as changes to the instrument panel design and advanced air bag installation components such as mountings and brackets. Vehicle testing would also be conducted during that time.
Furthermore, because the vehicle was not originally designed for the U.S. market, it likewise did not have headlamps or a bumper system or an underlying bumper structure that complies with U.S. requirements. According to Koenigsegg, achieving compliance with those requirements will necessitate a redesign of the vehicle body and headlamps at the same time, so to that extent, the petitioner argued that these two modifications should be considered together.
To provide a part 581-compliant bumper would require re-engineering and retooling the current CCX bumper system. The company explained that it has undertaken redesign of its front and rear bumper systems in an effort to achieve compliance with U.S. bumper standard requirements, including inserting foam and reinforcements, increasing rear deck offset, and moving the front bumper cut line as high and inboard as possible. However, Koenigsegg stated that it has been unable to fully meet the requirements of part 581, for the following reasons.
First, the petitioner stated that extremely low vehicle height and aerodynamic requirements for the vehicle dictate that the standard 20-inch pendulum height falls above the current bumper cut lines. In addition, the company stated that packaging constraints for the structure required to fulfill the high-speed crash requirements of FMVSS No. 208 and the requirements of the roof stowage under the front hood dictate the maximum size of the front bumpers. Koenigsegg argued that despite its good faith efforts, additional time will be required to achieve full compliance with part 581, and the company does not currently have the resources to fund the requisite development efforts.
As to headlamps, Koenigsegg explained that it has undertaken significant efforts in pursuit of CCX compliance with the headlamp requirements of FMVSS No. 108, but problems have stemmed from the company's inability to find a supplier. The petitioner stated that given the unique shape of the CCX, there is no available “off-the-shelf” headlamp system available, and efforts to find a supplier willing to undertake the project to produce a FMVSS No. 108-compliant headlamp for the CCX have been unavailing, presumably due to the ultra-low quantity of vehicles involved.
According to Koenigsegg, the company did explore the possibility of developing an “interim U.S. headlamp” without a polycarbonate cover. However, that alternative was determined to be unworkable for the following reasons. First, there were concerns that the absence of the polycarbonate lens “ruins the design of the body,” a result which customers were deemed unlikely to accept and which was expected to result in decreased sales.
In light of the above, the company again stated that because of the cost and length of this project, such headlighting
In short, Koenigsegg argued that, despite good faith efforts, limited resources prevent it from bringing the vehicle into compliance with all applicable requirements, and it is beyond the company's current capabilities to bring the vehicle into full compliance until such time as additional resources become available as a result of U.S. sales. With funding from sale of the current generation of U.S. CCX, the company expects that additional development efforts could start in 2007, thereby allowing production of a fully compliant vehicle in late 2009.
As additional bases for showing that its requested exemption would be in the public interest, Koenigsegg offered the following. The company asserted that there is consumer demand in the U.S. for the CCX, and granting this application will allow the demand to be met, thereby expanding consumer choice. The company also suggested another reason why granting the exemption would not be expected to have a significant impact on safety, specifically because the vehicle is unlikely to be used extensively by owners, due to its “sporty (second car) nature.” Koenigsegg reasoned that given its very low production volume and customer base, the possibility of any child being in the vehicle is extremely small. Finally, Koenigsegg indicated that the CCX incorporates advanced engineering and certain advanced safety features that are not required by the FMVSSs, including racing brakes with anti-lock capability and traction control. In addition, the company argued that the CCX has enhanced fuel efficiency due to its highly aerodynamic design.
We are providing a 15-day comment period, in light of the short period of time between now and the time the advanced air bag requirements become effective for small volume manufacturers (i.e., September 1, 2006). After considering public comments and other available information, we will publish a notice of final action on the application in the
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of receipt of petition for temporary exemption from provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
In accordance with the procedures in 49 CFR part 555, SS II of America, Inc. (SS II) has petitioned the agency for a temporary exemption from the air bag requirements of FMVSS No. 208. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard.
This notice of receipt of an application for temporary exemption is published in accordance with the statutory provisions of 49 U.S.C. 30113(b)(2). NHTSA has made no judgment on the merits of the application.
You should submit your comments not later than September 12, 2006.
Mr. Ed Glancy or Mr. Eric Stas, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Room 5219, Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
• Web site:
• Fax: 1-(202)-493-2251.
• Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to
We shall consider all comments received before the close of business on the comment closing date indicated
Under S4.1.5.3 of FMVSS No. 208, new passenger vehicles manufactured on or after September 1, 1997 are required to be equipped with an inflatable restraint system (
In 2000, NHTSA upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The advanced air bag requirements were a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of air bags. This plan also included an extensive consumer education program to encourage the placement of children in rear seats. The new requirements were phased in beginning with the 2004 model year.
Small volume manufacturers are not subject to the advanced air bag requirements until September 1, 2006, but their efforts to bring their respective vehicles into compliance with these requirements began several years ago. However, because the new requirements were challenging, major air bag suppliers concentrated their efforts on working with large volume manufacturers, and thus, until recently, small volume manufacturers had limited access to advanced air bag technology. Because of the nature of the requirements for protecting out-of-position occupants, “off-the-shelf” systems could not be readily adopted. Further complicating matters, because small volume manufacturers build so few vehicles, the costs of developing custom advanced air bag systems compared to potential profits discouraged some air bag suppliers from working with small volume manufacturers.
The agency has carefully tracked occupant fatalities resulting from air bag deployment. Our data indicate that the agency's efforts in the area of consumer education and manufacturers' providing depowered air bags were successful in reducing air bag fatalities even before advanced air bag requirements were implemented.
As always, we are concerned about the potential safety implication of any temporary exemptions granted by this agency. In the present case, we are seeking comments on a petition for a temporary exemption from the air bag requirements submitted by a manufacturer of very expensive, low volume, exotic sports cars.
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR part 555, SS II has petitioned the agency for a temporary exemption from the air bag requirements of FMVSS No. 208 (S4.1.5.3 and S14). The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. A copy of the petition is available for review and has been placed in the docket for this notice.
A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do not include any provision indicating that a manufacturer might have substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
In a supplement to its petition, SS II stated that Shelby American Inc. (another small volume manufacturer) produced Shelby Series 1 vehicles for sale only in model year 1999, and these vehicles were sold without an inflatable restraint system, because NHTSA granted that company a temporary exemption under part 555 (
The petitioner argued that it tried in good faith, but could not bring the vehicle into compliance with the air bag requirements of FMVSS No. 208, and that it would incur substantial economic hardship if it cannot sell vehicles in the U.S. after September 1, 2006.
As a relatively new company, SS II has not produced any vehicles in prior years. According to its current forecasts, SS II anticipates the following production of Shelby Series II vehicles over calendar years (CY) 2006-2008: 86 vehicles in CY 2006; 120 vehicles in CY 2007, and 44 vehicles in CY 2008.
As of the time of the application, SS II has invested over $1.4 million on the design, development, and homologation of the Shelby Series II project in order to have the vehicle meet U.S. standards—not including the air bag requirements which are the subject of the present petition for temporary exemption. The company has stated that it cannot hope to attain profitability if it incurs additional research and development expenses at this time.
SS II stated that costs associated with air bag engineering and development (including materials, tooling, testing, and test vehicles) have been estimated to be almost $4.2 million. In its petition, SS II reasoned that sales in the U.S. market must commence in order to finance this work and that the exemption is necessary to allow the company to “bridge the gap” until fully compliant vehicles can be funded, developed, tooled, and introduced.
If the exemption is denied, SS II projects a net loss of nearly $4.8 million over the period from calendar years 2006-2008. However, if the petition is granted, the company anticipates a net profit of over $1.7 million during that same period.
SS II considered the alternative of installing a standard air bag system (
The petitioner estimates that development of an advanced air bag system for the SS II would entail an average expenditure of $174,000 per month for the approximately 24 months it would take to develop and validate the system. According to its petition, even though air bags are beyond its current capabilities, SS II is nonetheless planning for the introduction of these devices.
The company expects to subcontract most of the air bag development project to an experienced outside company, and as noted above, current plans estimate a cost of nearly $4.2 million and a minimum lead time of 24 months for the advanced air bag project. SS II stated that the following engineering efforts are needed to equip the Shelby Series II with an advanced air bag system: (1) Tooling for both prototypes and production vehicles; (2) contractor engineering; (3) air bag system materials; (4) cost of test vehicles; (5) integration of air bag wiring; (6) radio frequency interference/electromagnetic compatibility (RFI/EMC) testing and engineering; (7) design and development of a new seat with sensors; (8) frontal barrier crash testing; and (9) system validation.
In terms of specific vehicle modifications necessary to install air bags in the Shelby Series II, the petitioner stated that the following changes are required: (1) Redesign of the dashboard exterior and supporting skeletal structure to add a passenger-side air bag; (2) redesign of the steering column to install a driver-side air bag; (3) installation of new seats with sensors; (4) integration of the air bag system's wiring harness with the vehicle's main wiring harness, and (5) installation of crash sensors and a properly calibrated restraint control module.
In short, SS II argued that, despite good faith efforts, limited resources prevent it from bringing the vehicle into compliance with all applicable requirements, and it is beyond the company's current capabilities to bring the vehicle into full compliance until such time as additional resources become available as a result of U.S. sales. With funding from sale of the current generation of Shelby Series II vehicles, the company expects that additional development efforts could commence as would permit production of a fully compliant vehicle in July 2008.
The company asserted that granting the exemption will benefit U.S. employment, companies, and citizens, because Shelby Series II vehicles will be produced in the U.S., will have major components (
As an additional basis for showing that its requested exemption would be in the public interest, SS II stated that Shelby Series II vehicles have utilized advanced composite technology and lightweight materials, which provide both strength and durability. According to SS II, this reduced weight translates into improved emissions and fuel efficiency.
We are providing a 15-day comment period, in light of the short period of time between now and the time the advanced air bag requirements become effective for small volume manufacturers (
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of receipt of petition for temporary exemption from provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
In accordance with the procedures in 49 CFR part 555, YES! Sportscars has petitioned the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard.
This notice of receipt of an application for temporary exemption is published in accordance with the statutory provisions of 49 U.S.C. 30113(b)(2). NHTSA has made no judgment on the merits of the application.
You should submit your comments not later than September 12, 2006.
Mr. Ed Glancy or Mr. Eric Stas, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Room 5219, Washington, DC 20590. Ttlephone: (202) 366-2992; fax: (202) 366-3820.
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We shall consider all comments received before the close of business on the comment closing date indicated above. To the extent possible, we shall also consider comments filed after the closing date.
In 2000, NHTSA upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.”
The advanced air bag requirements were a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of air bags. This plan also included an extensive consumer education program to encourage the placement of children in rear seats. The new requirements were phased in beginning with the 2004 model year.
Small volume manufacturers are not subject to the advanced air bag requirements until September 1, 2006, but their efforts to bring their respective vehicles into compliance with these requirements began several years ago. However, because the new requirements were challenging, major air bag suppliers concentrated their efforts on working with large volume manufacturers, and thus, until recently, small volume manufacturers had limited access to advanced air bag technology. Because of the nature of the requirements for protecting out-of-position occupants, “off-the-shelf” systems could not be readily adopted. Further complicating matters, because small volume manufacturers build so few vehicles, the costs of developing custom advanced air bag systems compared to potential profits discouraged some air bag suppliers from working with small volume manufacturers.
The agency has carefully tracked occupant fatalities resulting from air bag deployment. Our data indicate that the agency's efforts in the area of consumer education and manufacturers' providing depowered air bags were successful in reducing air bag fatalities even before
As always, we are concerned about the potential safety implication of any temporary exemptions granted by this agency. In the present case, we are seeking comments on a petition for a temporary exemption from the advanced air bag requirements submitted by a manufacturer of very expensive, low volume, exotic sports cars.
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR part 555, YES! Sportscars has petitioned the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that compliance would cause substantial economic hardship to a manufacturer that has tried in good faith to comply with the standard. A copy of the petition
A manufacturer is eligible to apply for a hardship exemption if its total motor vehicle production in its most recent year of production did not exceed 10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that criterion, NHTSA considers whether a second vehicle manufacturer also might be deemed the manufacturer of that vehicle. The statutory provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do not include any provision indicating that a manufacturer might have substantial responsibility as manufacturer of a vehicle simply because it owns or controls a second manufacturer that assembled that vehicle. However, the agency considers the statutory definition of “manufacturer” (49 U.S.C. 30102) to be sufficiently broad to include sponsors, depending on the circumstances. Thus, NHTSA has stated that a manufacturer may be deemed to be a sponsor and thus a manufacturer of a vehicle assembled by a second manufacturer if the first manufacturer had a substantial role in the development and manufacturing process of that vehicle.
YES! Sportscars, a separate vehicle manufacturing part of the company, began production in 2001 of high-performance sports cars based on an aluminum spaceframe. This application concerns the YES! Roadster (currently the company's only model) which is expected to retail for $59,000. To date, the primary markets for the YES! Roadster have been Europe and the Middle East, with the following numbers of vehicles being produced over the past five years: 12 vehicles in 2001; 37 vehicles in 2002; 42 vehicles in 2003; 48 vehicles in 2004, and 54 vehicles in 2005. None of those vehicles has been sold in the U.S. market.
According to the petition, the company had originally planned to produce vehicles for the European market, but it has been determined to be a matter of financial necessity for YES! Sportscars to enter the U.S. market, particularly given the limited but global market for these high-end sports cars. The company anticipates that approximately 65 percent of its total sales will be to the U.S. market.
The petitioner argued that it tried in good faith, but could not bring the vehicle into compliance with the advanced air bag requirements, and would incur substantial economic hardship if it cannot sell vehicles in the U.S. after September 1, 2006.
The company is a small volume manufacturer whose total production has ranged from 12 to 54 vehicles per year over the period from 2001 to 2005. According to its current forecasts, YES! Sportscars anticipates that approximately 250 vehicles would be imported into the U.S. during the three-year period for its requested exemption, if such request were granted.
As for the YES! Roadster's compliance with the other advanced air bag requirements, YES! Sportscars stated that it does not know whether the YES! Roadster will be compliant because to date it has not had the financial ability to conduct the necessary testing.
As such, YES! Sportscars is requesting an exemption for the YES! Roadster from the rigid barrier unbelted test requirement with the 50th-percentile adult male test dummy (S14.5.2), the rigid barrier test requirement using the 5th-percentile adult female test dummy (belted and unbelted, S15), the offset deformable barrier test requirement using the 5th-percentile adult female test dummy (S17), the requirements to provide protection for infants and children (S19, S21, and S23) and the requirement using an out-of-position 5th-percentile adult female test dummy at the driver position (S25).
YES! Sportscars stated its intention to certify compliance of a second generation of the YES! Roadster, to be produced by September 1, 2009, which would be certified as complying with all applicable U.S. standards, including advanced air bags. Accordingly, the company seeks an exemption from the above-specified requirements of FMVSS No. 208 from September 1, 2006 to August 31, 2009.
Over the period 2001-2005, the YES! Sportscars division of Funke & Will AG has had net operational losses totaling 484,000 euros ($618,000 at an exchange rate of 1 euro = $1.277).
YES! Sportscars stated that costs associated with advanced air bag engineering and development (including research and development, testing, tooling, and test vehicles) have been estimated to be $1.7 million (including internal costs). In its petition, YES! Sportscars reasoned that sales in the U.S. market must commence in order to finance this work and that non-U.S. sales alone cannot generate sufficient income for this purpose. In essence, YES! Sportscars argued that the exemption is necessary to allow the company to “bridge the gap” until fully compliant vehicles can be funded, developed, tooled, and introduced for the U.S. market.
If the exemption is denied, YES! Sportscars projects a net loss of $1.1 million over the period from 2006-2008 (assuming a delayed start of U.S. sales until 2008). However, if the petition is granted, the company anticipates a profit of nearly $1.4 million during that same period. The petitioner argued that a denial of this petition could preclude financing of the project for USA-compliant vehicles, a development which would have a highly adverse impact on the company.
In light of limited resources, the petitioner stated that it was necessary to first develop the vehicle with a standard U.S. air bag system. The company has spent over $630,000 to reengineer the YES! Roadster to include a standard air bag system, which it stated will then be “expanded” into an advanced air bag system.
According to its petition, even though advanced air bags are beyond its current capabilities, YES! Sportscars is nonetheless planning for the introduction of these devices. The company stated that Siemens Restraint Systems will spearhead this effort, and current plans estimate a cost of $1.1 million (excluding internal costs) and a minimum lead time of 24 months for the advanced air bag project. YES! Sportscars stated that the following engineering efforts are needed to upgrade the YES! Roadster's standard air bag system to an advanced air bag system: (1) Interior redesign work to the dashboard, steering column, and electronic systems; (2) sourcing and organization of supplier and engineering personnel and resources for development work (including sensor calibration); (3) construction of prototypes, and (4) testing.
In addition, YES! Sportscars stated that finding suppliers willing to work with a manufacturer with very low production volumes has proven extremely difficult, and as a result, the company must wait for technology to “trickle down” from larger manufacturers and suppliers. YES! Sportscars further stated that small volume manufacturers simply do not have the internal resources to do full U.S. homologation projects without reliance on outside suppliers of advanced engineering technologies.
In short, YES! Sportscars argued that, despite good faith efforts, limited resources prevent it from bringing the vehicle into compliance with all applicable requirements, and it is beyond the company's current capabilities to bring the vehicle into full compliance until such time as additional resources become available as a result of U.S. sales. With funding from sale of the current generation of YES! Roadsters, the company expects that additional development efforts could start in 2007, thereby allowing production of a fully compliant vehicle in September 2009.
The company asserted that granting the exemption will benefit U.S. employment, companies, and citizens, because YES! Roadsters will be sold and serviced through a network of U.S. dealers. YES! Sportscars also argued that denial of the exemption request would have an adverse impact on consumer choice, suggesting that there is domestic demand for a performance vehicle in the YES! Roadster's price range. The company also argued that an exemption is unlikely to have a significant safety impact because these vehicles are not expected to be used extensively by their owners, due to their “second vehicle” nature and “minimalist design.” The company also reasoned that given the nature of the vehicle, it is less likely to be used to transport young children than most other vehicles.
As an additional basis for showing that its requested exemption would be in the public interest, YES! Sportscars stated that the YES! Roadster has an extremely strong and protective chassis, which is composed of aluminum tubes and composite structure parts. According to YES! Sportscars, the vehicle design is such that occupants are effectively placed in a “protective ‘cell’ ” with the chassis structure built around them.
We are providing a 15-day comment period, in light of the short period of time between now and the time the advanced air bag requirements become effective for small volume manufacturers (i.e., September 1, 2006). After considering public comments and other available information, we will publish a notice of final action on the application in the
Applications for the FY 2007 Funding Round of the CDFI Program must be received by 5 p.m. ET on November 14, 2006.
A. Through the CDFI Program, the Fund provides: (i) Financial Assistance (FA) awards to CDFIs that have Comprehensive Business Plans for creating demonstrable community development impact through the deployment of credit, capital, and financial services within their respective Target Markets or the expansion into new Investment Areas, Low-Income Targeted Populations, or Other Targeted Populations, and (ii) Technical Assistance (TA) grants to CDFIs and entities proposing to become CDFIs in order to build their capacity to better address the community development and capital access needs of their particular Target Markets, to expand into new Investment Areas, Low-Income Targeted Populations, or Other Targeted Populations, and/or to become certified CDFIs.
B. The regulations governing the CDFI Program are found at 12 CFR Part 1805 (the Interim Rule) and provide guidance on evaluation criteria and other requirements of the CDFI Program. The Fund encourages Applicants to review the Interim Rule. Detailed application content requirements are found in the applicable funding application and related guidance materials. Each capitalized term in this NOFA is more fully defined in the Interim Rule, the application or the guidance materials.
C. The Fund reserves the right to fund, in whole or in part, any, all, or none of the applications submitted in response to this NOFA. The Fund reserves the right to re-allocate funds from the amount that is anticipated to be available under this NOFA to other Fund programs, particularly if the Fund determines that the number of awards made under this NOFA is fewer than projected.
Through this NOFA, and subject to funding availability, the Fund expects that it may award approximately $26 million in appropriated funds, of which: (i) Approximately $2 million in appropriated funds may be awarded to Category I/SECA Applicants in the form of FA awards that may be coupled with TA grants; (ii) approximately $22 million in appropriated funds may be awarded to Category II/Core Applicants in the form of FA awards that may be coupled with TA grants; and (iii) approximately $2 million in appropriated funds may be awarded to Applicants in the form of TA grants only. The Fund reserves the right to award in excess of $26 million in appropriated funds to Applicants (and/or more or less than $2 million to Category I/SECA Applicants, and/or more or less than $22 million to Category II/Core Applicants) in the FY 2007 Funding Round, provided that the funds are available and the Fund deems it appropriate.
Funds for the FY 2007 Funding Round have not yet been appropriated. If funds are not appropriated for the FY 2007 Funding Round, there will not be a FY 2007 Funding Round. Further, it is possible that if funds are appropriated for the FY 2007 Funding Round, the amount of such funds may be less than the amounts set forth above.
An Applicant may submit an application either for: (i) A FA award only; (ii) a FA award and a TA grant; or (iii) a TA grant.
The Fund may provide FA awards in the form of equity investments (including, in the case of certain Insured Credit Unions, secondary capital accounts), grants, loans, deposits, credit union shares, or any combination thereof. The Fund reserves the right, in its sole discretion, to provide a FA award in a form and amount other than that which is requested by an Applicant; however, the award amount will not exceed the Applicant's award request as stated in its application. The Fund reserves the right, in its sole discretion, to provide a FA award on the condition that the Applicant agrees to use a TA grant for specified capacity building purposes, even if the Applicant has not requested a TA grant.
(a) The Fund may provide TA awards in the form of grants. The Fund reserves the right, in its sole discretion, to provide a TA grant for uses and amounts other than that which are requested by an Applicant; however, the award amount will not exceed the Applicant's award request as stated in its application.
(b) TA grants may be used to address a variety of needs including, but not limited to, development of strategic planning documents (such as business, strategic or capitalization plans), market analyses or product feasibility analyses, operational policies and procedures, curricula for Development Services (such as entrepreneurial training, home buyer education, financial education or training, borrower credit repair training), improvement of underwriting and portfolio management, development of outreach and training strategies to enhance product delivery, operating support to expand into a new Target Market, and tools that allow the Applicant to assess the impact of its activities in its community. Each Applicant for a TA grant through this NOFA is required to provide information in the application regarding the expected cost, timing and provider of the TA, and a narrative description of how the TA grant will enhance its capacity to provide greater community development impact and/or to become certified as a CDFI, if applicable.
(c) Eligible TA grant uses include, but are not limited to: (i) Acquiring consulting services; (ii) acquiring/enhancing technology items, including computer hardware, software and Internet connectivity; (iii) acquiring training for staff, management and/or board members; and (iv) paying recurring expenses, including staff
Each Awardee under this NOFA must sign a Notice of Award and an Assistance Agreement in order to receive a disbursement of award proceeds by the Fund. The Notice of Award and the Assistance Agreement contain the terms and conditions of the award. For further information, see Sections VI.A and VI.B of this NOFA.
The Interim Rule specifies the eligibility requirements that each Applicant must meet in order to be eligible to apply for assistance under this NOFA. The following sets forth additional detail and dates that relate to the submission of applications under this NOFA:
All Applicants for FA awards through this NOFA must meet the criteria for one of the following two categories of CDFIs:
Any Applicant, regardless of total assets, years in operation, or prior Fund awards, that requests FA funding in excess of $500,000 is classified as a Category II/Core Applicant.
For the purposes of this NOFA, the term “began operations” is defined as the month and year in which the Applicant first incurred operating expenses of any type. Also, for purposes of this NOFA, the term “Native Initiatives Funding Programs” refers to the following programs administered by the Fund: the Native American CDFI Technical Assistance (NACTA) Component of the CDFI Program, the Native American CDFI Development (NACD) Program, the Native American Technical Assistance (NATA) Component of the CDFI Program, and the Native American CDFI Assistance (NACA) Program.
The Fund will evaluate, rank and make awards to Category I/SECA Applicants separately from Category II/Core Applicants. The Fund, in its sole discretion, reserves the right to award amounts in excess of or less than the anticipated maximum award amounts permitted in this NOFA, if the Fund deems it appropriate.
The Fund, in its sole discretion, reserves the right to award amounts less than the anticipated maximum award amounts permitted in this NOFA, if the Fund deems it appropriate.
For purposes of this NOFA, eligible FA Applicants include Certified CDFIs and Certifiable CDFIs; eligible TA Applicants include Certified CDFIs, Certifiable CDFIs and Emerging CDFIs, defined as follows:
(a)
The Fund provided a number of CDFIs with certifications expiring in 2003 through 2005 written notification that their certifications had been extended. The Fund will consider the extended certification date (the later date) to determine whether those CDFIs meet this eligibility requirement.
(b)
(c)
The Fund will respond to questions and provide support concerning CDFI certification related to this NOFA between the hours of 9 a.m. and 5 p.m. ET, through October 4, 2006. The Fund will not respond to questions or provide support concerning CDFI certification, related to this NOFA, that are received after 5 p.m. ET on October 4, 2006, until after the deadline for submitting applications under this NOFA. The CDFI Certification Application and other information regarding CDFI certification may be obtained from the Fund's Web site at
Applicants must be aware that success in a prior round of any of the Fund's programs is not indicative of success under this NOFA. Prior awardees are eligible to apply under this NOFA, except as follows:
The Fund is generally prohibited from obligating more than $5 million in assistance, in the aggregate, to any one organization and its Subsidiaries and Affiliates during any three-year period. In general, the three-year period extends back three years from the date that the Fund signs a Notice of Award; for purposes of this revised NOFA, and for ease of administration, the Fund will count any assistance documented with a Notice of Award dated between July 31, 2004 and July 31, 2007 (which is the anticipated date that the Fund will issue Notices of Award for the FY 2007 Funding Round).
The Fund will not consider an application submitted by an Applicant if the Applicant, or an entity that Controls the Applicant, is Controlled by the Applicant or shares common management officials with the Applicant (as determined by the Fund) is a prior Fund Awardee or allocatee under any Fund program and is not current on the reporting requirements set forth in a previously executed assistance, allocation or award agreement(s), as of the applicable application deadline of this NOFA. Please note that the Fund only acknowledges the receipt of reports that are complete. As such, incomplete reports or reports that are deficient of required elements will not be recognized as having been received.
If an Applicant is a prior Awardee or allocatee under any Fund program and if: (i) It has submitted complete and timely reports to the Fund that demonstrate noncompliance with a previous assistance, allocation or award agreement; and (ii) the Fund has yet to make a final determination as to whether the entity is in default of its previous assistance, allocation or award agreement, the Fund will consider the Applicant's application under this NOFA pending full resolution, in the sole determination of the Fund, of the noncompliance. Further, if another entity that Controls the Applicant, is Controlled by the Applicant or shares common management officials with the Applicant (as determined by the Fund), is a prior Fund Awardee or allocatee and if such entity: (i) Has submitted complete and timely reports to the Fund that demonstrate noncompliance with a previous assistance, allocation or award agreement; and (ii) the Fund has yet to make a final determination as to whether the entity is in default of its previous assistance, allocation, or award agreement, the Fund will consider the Applicant's application under this NOFA pending full resolution, in the sole determination of the Fund, of the noncompliance.
The Fund will not consider an application submitted by an Applicant that is a prior Fund Awardee or allocatee under any Fund program if, as of the applicable application deadline of this NOFA, the Fund has made a final determination that such Applicant is in default of a previously executed assistance, allocation or award agreement(s). Further, an entity is not eligible to apply for an award pursuant to this NOFA if, as of the applicable application deadline of this NOFA, the Fund has made a final determination that another entity that Controls the Applicant, is Controlled by the Applicant or shares common management officials with the Applicant (as determined by the Fund) is a prior Fund Awardee or allocatee under any Fund program and has been determined by the Fund to be in default of a previously executed assistance, allocation or award agreement(s).
The Fund will not consider an application submitted by an Applicant that is a prior Fund Awardee or allocatee under any Fund program if: (i) Within the 12-month period prior to the applicable application deadline of this NOFA, the Fund has made a final determination that such Applicant's prior award or allocation terminated in default of a previously executed assistance, allocation or award agreement(s); and (ii) the final reporting period end date for the applicable terminated assistance, allocation or award agreement(s) falls in Calendar Year 2006. Further, an entity is not eligible to apply for an award pursuant to this NOFA if: (i) Within the 12-month period prior to the applicable application deadline, the Fund has made a final determination that another entity that Controls the Applicant, is Controlled by the Applicant or shares common management officials with the Applicant (as determined by the Fund), is a prior Fund Awardee or allocatee under any Fund program whose award or allocation terminated in default of a previously executed assistance, allocation or award agreement(s); and (ii) the final reporting period end date for the applicable terminated assistance, allocation or award agreement(s) falls in Calendar Year 2006.
The Fund will not consider an application submitted by an Applicant that is a prior Fund Awardee under any
Please note that the provisions of paragraphs 2 (Failure to meet reporting requirements) and 6 (Undisbursed balances) of this section do not apply to any Applicant that has an office located in, or that provides a significant volume of services or financing to residents of or businesses located in, a county that is within a “major disaster area” as declared by the Federal Emergency Management Agency (FEMA) as a result of Hurricanes Katrina and/or Rita. Said requirements are waived for those Applicants under this NOFA.
Accordingly, Applicants that are prior Awardees are advised to: (i) Comply with requirements specified in assistance, allocation and/or award agreement(s), and (ii) contact the Fund to ensure that all necessary actions are underway for the disbursement or deobligation of any outstanding balance of said prior award(s). All outstanding reports, disbursement or compliance questions should be directed to the Grants Manager by E-mail at
An Applicant may receive only one award through either the CDFI Program or the Native American CDFI Assistance (NACA) Program in the same funding year. An Applicant may apply under both the CDFI Program and the NACA Program, but will not be selected for funding under both. A CDFI Program Applicant, its Subsidiaries or Affiliates also may apply for and receive: (i) A tax credit allocation through the NMTC Program, but only to the extent that the activities approved for CDFI Program awards are different from those activities for which the Applicant receives a NMTC Program allocation; and (ii) an award through the BEA Program (subject to certain limitations; refer to the Interim Rule at 12 CFR 1805.102).
Other Targeted Populations are defined as identifiable groups of individuals in the Applicant's service area for which there exists a strong basis in evidence that they lack access to loans, Equity Investments and/or Financial Services. The Fund has determined that there is strong basis in evidence that the following groups of individuals lack access to loans, Equity Investments and/or Financial Services on a national level: Blacks or African Americans, Native Americans or American Indians, and Hispanics or Latinos. In addition, for purposes of this NOFA, the Fund has determined that there is a strong basis in evidence that Alaska Natives residing in Alaska, Native Hawaiians residing in Hawaii, and Other Pacific Islanders residing in other Pacific Islands, lack adequate access to loans, Equity Investments or Financial Services. An Applicant designating any of the above-cited Other Targeted Populations is not required to provide additional narrative explaining the Other Targeted Population's lack of adequate access to loans, Equity Investments or Financial Services.
For purposes of this NOFA, the Fund will use the following definitions, set forth in the Office of Management and Budget (OMB) Notice, Revisions to the Standards for the Classification of Federal Data on Race and Ethnicity (October 30, 1997), as amended and supplemented:
(a) American Indian, Native American or Alaska Native: a person having origins in any of the original peoples of North and South America (including Central America) and who maintains tribal affiliation or community attachment;
(b) Black or African American: a person having origins in any of the black racial groups of Africa (terms such as “Haitian” or “Negro” can be used in addition to “Black or African American”);
(c) Hispanic or Latino: a person of Cuban, Mexican, or Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race (the term “Spanish origin” can be used in addition to “Hispanic or Latino”); and
(d) Native Hawaiian: a person having origins in any of the original peoples of Hawaii; and
(e) Other Pacific Islander: a person having origins in any of the original
Applicants responding to this NOFA must obtain non-Federal matching funds from sources other than the Federal government on the basis of not less than one dollar for each dollar of FA funds provided by the Fund (matching funds are not required for TA grants). Matching funds must be at least comparable in form and value to the FA award provided by the Fund (for example, if an Applicant is requesting a FA grant from the Fund, the Applicant must have evidence that it has obtained matching funds through grant(s) from non-Federal sources that are at least equal to the amount requested from the Fund). Funds used by an Applicant as matching funds for a prior FA award under the CDFI Program or under another Federal grant or award program cannot be used to satisfy the matching funds requirement of this NOFA. If an Applicant seeks to use as matching funds monies received from an organization that was a prior Awardee under the CDFI Program, the Fund will deem such funds to be Federal funds, unless the funding entity establishes to the reasonable satisfaction of the Fund that such funds do not consist, in whole or in part, of CDFI Program funds or other Federal funds. For the purposes of this NOFA, BEA Program awards are not deemed to be Federal funds and are eligible as matching funds. The Fund encourages Applicants to review the Interim Rule at 12 CFR 1805.500
Due to funding constraints and the desire to quickly deploy Fund dollars, the Fund will not consider for a FA award any Applicant that has no matching funds in-hand or firmly committed as of the application deadline under this NOFA. Specifically, FA Applicants must meet the following matching funds requirements:
(a)
(b)
(a)
(b)
(c) The Fund may contact the matching funds source to discuss the matching funds and the documentation provided by the Awardee. If the Fund determines that any portion of the Applicant's matching funds is ineligible under this NOFA, the Fund, in its sole discretion, may permit the Applicant to offer alternative matching funds as substitute for the ineligible matching funds; provided, however, that (i) the Applicant must provide acceptable alternative matching funds documentation within 2 business days of the Fund's request and (ii) the alternative matching funds documentation cannot increase the total amount of Financial Assistance requested by the Applicant.
Please note that the Interim Rule allows an Insured Credit Union to use retained earnings to serve as matching funds for a FA grant in an amount equal to: (i) The increase in retained earnings that have occurred over the Applicant's most recent fiscal year; (ii) the annual average of such increases that have occurred over the Applicant's three most recent fiscal years; or (iii) the entire retained earnings that have been accumulated since the inception of the Applicant or such other financial measure as may be specified by the Fund. For purposes of this NOFA, if option (iii) is used, the Applicant must increase its member and/or non-member shares or total loans outstanding by an amount that is equal to the amount of retained earnings that is committed as matching funds. This amount must be raised by the end of the Awardee's second performance period, as set forth in its Assistance Agreement, and will be based on amounts reported in the Applicant's Audited or Reviewed Financial Statements or NCUA Form 5300 Call Report.
In the case of any Applicant that has an office that is located in, or that provides a significant volume of services or financing to residents of or businesses located in, any county that is within a “major disaster area” as declared by the Federal Emergency Management Agency (FEMA) as a result of Hurricanes Katrina and/or Rita, and that has severe constraints on available sources of matching funds, such Applicant may be eligible for a “severe constraints waiver” (see section 1805.203 of the Interim Rule) if (i) it can demonstrate to the satisfaction of the Fund that an Investment Area(s) or Targeted Population(s) would not be adequately served without such a waiver and (ii) it projects to use the assistance to address issues resulting from Hurricanes Katrina and/or Rita (such as a significant volume of loan defaults) or to provide financial products, financial services, or Development Services to residents of or businesses located in any county that is within a “major disaster area” as declared by FEMA as a result of Hurricanes Katrina and/or Rita. If eligible for such a waiver, the Applicant may comply with the matching funds requirements of this NOFA as follows: (i) The matching funds requirement for such Applicant would be reduced to 50 percent (meaning, the Applicant must match 50 percent of the Fund's FA award rather than 100 percent), or (ii) such an Applicant may provide matching funds in alternative (meaning, non-monetary) forms if the Applicant has total assets of less than $100,000 at the time of the application deadline, serves non-metropolitan or rural areas, and is not requesting more than $25,000 in financial assistance from the Fund. In the case of item (i) of this paragraph, the Applicant must demonstrate that it has eligible matching funds equal to no less than 25 percent of the amount of the FA award requested in-hand or firmly committed, on or after January 1, 2006 and on or before the application deadline. The Fund reserves the right to rescind all or a portion of a FA award and re-allocate the rescinded award amount to other qualified Applicant(s), if an Applicant fails to obtain in-hand 50 percent of the required matching funds by March 14, 2008 (with required documentation of such receipt received by the Fund not later than March 31, 2008), or to grant an extension of such matching funds deadline for specific Applicants selected to receive FA, if the Fund deems it appropriate. For any such Applicant that demonstrates that it has less than 50 percent of matching funds in-hand or firmly committed as of the application deadline, the Fund will evaluate the Applicant's ability to raise the remaining matching funds by March 14, 2008. In the case of item (ii) of this paragraph, the CDFI Program funding application contains further instructions on the type of documentation that the Applicant must provide as evidence that such match was received and its valuation. The Fund reserves the right, in its sole discretion, to disallow any such match for which adequate documentation or valuation is not provided.
Applicants may submit applications under this NOFA either (i) electronically (via an Internet-based application) or (ii) in paper form. Applications sent by facsimile or other form will not be accepted.
Electronic applications must be submitted solely by using the Fund's Web site and must be sent in accordance with the submission instructions provided in the electronic application form. Applications are accessible only through an active myCDFIFund account (see Section E, below). Applicants must have access to Internet Explorer 5.5 or higher or Netscape Navigator 6.0 or higher, Windows 98 or higher (or other system compatible with the above Explorer and Netscape software) and optimally at least a 56Kbps Internet connection in order to meet the electronic application submission requirements. The Fund's electronic application system will only permit the submission of applications in which all required questions and tables are fully completed; incomplete applications cannot be submitted. Please note that each application must include the signature of the Applicant's Authorized Representative and certain supporting documentation; for an electronic application, the Applicant must submit such documents separately, in paper form, to the address and by the deadlines set forth below. Additional information, including instructions relating to the submission of signature forms and supporting information, is set forth in further detail in the electronic application.
If an applicant is unable to submit an electronic application, it must submit to the Fund a request for a paper application using the CDFI Program Paper Application Submission Form, and the request must be received by 5 p.m. ET on October 11, 2006. The CDFI Program Paper Application Submission Form may be obtained from the Fund's Web site at
Detailed application content requirements are found in the application and guidance. Please note that, pursuant to OMB guidance (68 FR 38402), each Applicant must provide, as part of its application submission, a Dun and Bradstreet Data Universal Numbering System (DUNS) number. In addition, each application must include a valid and current Employer Identification Number (EIN), with a letter or other documentation from the Internal Revenue Service (IRS) confirming the Applicant's EIN. An electronic application that does not include an EIN is incomplete and cannot be transmitted to the Fund. A paper application that does not include a valid EIN is incomplete and will be rejected and returned to the sender. Applicants should allow sufficient time for the IRS and/or Dun and Bradstreet to respond to inquiries and/or requests for identification numbers. Once an application is submitted, the Applicant will not be allowed to change any element of the application. The preceding sentence does not limit the Fund's ability to contact an Applicant for the purpose of obtaining clarifying or confirming application information (such as a DUNS number or EIN information).
All Applicants must register User and Organization accounts in myCDFIFund, the Fund's Internet-based interface. An Applicant must be registered as both a User and an Organization in myCDFIFund as of the applicable application deadline in order to be considered to have submitted a
Applicants must submit all materials described in and required by the application by the applicable deadline.
Electronic applications must be received by the Fund via the Applicant's myCDFIFund account and in accordance with the instructions provided on the Fund's Web site, by 5 p.m. ET on November 14, 2006. In addition, Applicants that submit electronic applications must separately submit (by mail or other courier/delivery service) a signature page, signed by the Applicant's Authorized Representative, and all other required paper attachments; said documents must be received at the address set forth below by 5 p.m. ET on November 17, 2006. Paper applications, including the requisitesigned signature page and all attachments, must be received at the address set forth below by 5 p.m. ET on November 17, 2006.
A complete paper application (or, in the case of an electronic application, the required paper submissions) must be received at the following address, within the applicable deadline: CDFI Fund Grants Manager, CDFI Program, Bureau of Public Debt, 200 Third Street, Parkersburg, WV 26101. The telephone number to be used in conjunction with overnight delivery or mailings to this address is (304) 480-6088 (this is not a toll free number). Any documents received in any other office, including the Fund's Washington, DC office, will be rejected and returned to the sender.
The Fund will neither accept a late application nor any portion of an application that is late; an application that is late, or for which any portion is late, will be rejected and returned to the sender. An electronic application, the required signed signature page, and all required paper attachments must be received by the applicable time and date set forth above. A paper application, including the required signed signature page, and all required paper attachments, must be received by the applicable time and date set forth above. The Fund will not grant exceptions or waivers for late delivery of documents including, but not limited to, late delivery that is caused by third parties such as the United States Postal Service, couriers or overnight delivery services.
Not applicable.
For allowable uses of FA proceeds, please see the Interim Rule at 12 CFR 1805.301.
The Fund will evaluate each application using numeric scores with respect to the following five sections:
(TA-only Applicants: 25 points; Category I/SECA: 25 points; Category II/Core: 20 points): The Fund will evaluate: (i) The extent and nature of the economic distress within the designated Target Market including the Applicant's understanding of its current and prospective customers; and (ii) the extent of demand for the Applicant's Financial Products, Development Services, and Financial Services within the designated Target Market. The Fund will give special consideration to any Applicant that has an office that is located in, or that provides a significant volume of services or financing to residents of or businesses located in, (i) any county that is within the area declared to be a “major disaster” by FEMA as a result of Hurricanes Katrina and/or Rita; and/or (ii) any state that has been declared a “reception state” by FEMA. The form and content of such special consideration will be further clarified in the CDFI Program application.
(TA-only Applicants: 25 points; Category I/SECA: 25 points; Category II/Core: 20 points): The Fund will evaluate the Applicant's business strategy for addressing market demand and creating community development impact through: (i) Its Financial Products, Development Services, and/or Financial Services; (ii) its marketing, outreach, and delivery strategy; and (iii) the extent, quality and nature of coordination with other similar providers of Financial Products and Financial Services, government agencies, and other key community development entities within the Target Market. The Fund will take into consideration whether the Applicant is proposing to expand into a new Target Market.
(TA-only Applicants: 20 points; Category I/SECA: 20 points; Category II/Core: 20 points): The Fund will evaluate (i) The Applicant's vision for its Target Market, specific outcomes or impacts for measuring progress towards achieving this vision, and the extent to which this award will allow it to achieve them; (ii) the Applicant's track record in providing Financial Products, Financial Services, and Development Services to the Target Market; (iii) the extent to which proposed activities will benefit the Target Market; (iv) the likelihood of achieving the impact projections, including the extent to which the activities proposed in the Comprehensive Business Plan will expand economic opportunities or promote community development within the designated Target Market by promoting homeownership, affordable housing development, job creation or retention, the provision of affordable financial services, and other community development objectives; and (v) the extent to which the Applicant will maximize the effective use of the Fund's resources. If an Applicant has a prior track record of serving Investment Areas(s) or Targeted Population(s), it must demonstrate that (i) it has a record of success in serving said Investment Area(s) or Targeted Population(s) and (ii) it will expand its operations into a new Investment Area or to serve a new Targeted Population, offer more products or services, or increase the volume of its current business.
(TA-only Applicants: 20 points; Category I/SECA: 20 points; Category II/Core: 20 points): The Fund will evaluate the Applicant's organizational capacity to achieve the objectives set forth in its Comprehensive Business Plan as well as its ability to use its award successfully and maintain compliance with its Assistance Agreement through an evaluation of: (i) The capacity, skills, size and experience of the Applicant's current and proposed Governing Board, management team, and key staff; and (ii) the Applicant's management controls and risk mitigation strategies including policies and procedures for portfolio underwriting and review, financial management, risk management, management information systems.
(TA-only Applicants: 10 points; Category I/SECA: 10 points; Category II/Core: 20 points): The Fund will evaluate the Applicant's: (i) Audited or otherwise prepared Financial Statements; (ii) safety and soundness, including an analysis of the Applicant's financial services industry ratios (capital, liquidity, deployment and self-sufficiency) and ability to sustain positive net revenue; (iii) projected financial health, including its ability to raise operating support from sources other than the Fund and its capitalization strategy; and (iv) portfolio performance including loan delinquency, loan losses, and loan loss reserves. If an Applicant does not have 100 percent of the required matching funds in-hand (versus committed), the Applicant must demonstrate to the satisfaction of the Fund that it will raise the outstanding balance of matching funds within the time table set forth above.
Any Applicant applying for a TA grant, either alone or in conjunction with a request for a FA award, must complete a Technical Assistance Proposal (TAP) as part of its application. The TAP consists of a summary of the organizational improvements needed to achieve the objectives of the application, a budget, and a description of the requested goods and/or services comprising the TA award request. The budget and accompanying narrative will be evaluated for the eligibility and appropriateness of the proposed uses of the TA award (described above). In addition, if the Applicant identifies a capacity-building need related to any of the evaluation criteria above (for example, if the Applicant requires a market need analysis or a community development impact tracking/reporting system), the Fund will assess its plan to use the TA grant to address said needs. An Applicant that is not a Certified CDFI and that requests TA to address certification requirements, must explain how the requested TA grant will assist the Applicant in meeting the certification requirement. The Fund will assess the reasonableness of the plan to become certified by December 31, 2009, taking into account the requested TA. For example, if the Applicant does not currently make loans and therefore does not meet the Financing Entity requirement, it might describe how the TA funds will be used to hire a consultant to develop underwriting policies and procedures to support the Applicant's ability to start its lending activity. An Applicant that requests a TA grant for recurring activities must clearly describe the benefit that would accrue to its capacity or to its Target Market(s) (such as plans for expansion of staff, market, or products) as a result of the TA award. If the Applicant is a prior Fund Awardee, it must describe how it has used the prior assistance and explain the need for additional Fund dollars over and above such prior assistance. Such an Applicant also must describe the additional benefits that would accrue to its capacity or to the Target Market(s) if the Applicant receives another award from the Fund, such as plans for expansion of staff, market, or products. The Fund will not provide funding for the same activities funded in prior awards.
The Fund will review each application to determine whether it is complete and the Applicant meets the eligibility requirements set forth above. An incomplete application will be rejected as incomplete and returned to the sender. If an Applicant does not meet eligibility requirements, its application will be rejected and returned to the sender.
If an application is determined to be complete and the Applicant is determined to be eligible, the Fund will conduct the substantive review of the application in accordance with the criteria and procedures described in the Interim Rule, this NOFA and the application and guidance. Each FA application will be reviewed and scored by multiple readers. Each TA application will be read and scored by one reader. Readers may include Fund staff and other experts in community development finance. As part of the review process, the Fund may contact the Applicant by telephone or through an on-site visit for the purpose of obtaining clarifying or confirming application information. The Applicant may be required to submit additional information to assist the Fund in its evaluation process. Such requests must be responded to within the time parameters set by the Fund.
(a)
(b)
(i)
(ii)
The Fund will make its final award selections based on the rank order of Applicants by their scores and the amount of funds available. Subject to the availability of funding, the Fund will award funding in the order of the ranking. TA-only Applicants, Category I/ SECA and Category II/Core Applicants will be ranked separately. In addition, the Fund may consider the institutional and geographic diversity of Applicants when making its funding decisions.
In the case of Insured Depository Institutions and Insured Credit Unions, the Fund will take into consideration the views of the Appropriate Federal Banking Agencies; in the case of State-Insured Credit Unions, the Fund may consult with the appropriate State banking agencies (or comparable entity). The Fund will not approve a FA award or a TA grant to any Insured Credit Union (other than a State-Insured Credit Union) or Insured Depository Institution Applicant that has a CAMEL rating that is higher than a “3” or for which its Appropriate Federal Banking Agency indicates it has safety and soundness concerns, unless the Appropriate Federal Banking Agency asserts, in writing, that: (i) An upgrade to a CAMEL 3 rating or better (or other improvement in status) is imminent and such upgrade is expected to occur not later than September 30, 2007 or within such other time frame deemed acceptable by the Fund, or (ii) the safety and soundness condition of the Applicant is adequate to undertake the activities for which the Applicant has requested a FA award and the obligations of an Assistance Agreement related to such a FA award.
Each Applicant will be informed of the Fund's award decision either through a Notice of Award if selected for an award (see Notice of Award section, below) or written declination if not selected for an award. Each Applicant that is not selected for an award based on reasons other than completeness or eligibility issues will be provided a written debriefing on the strengths and weaknesses of its application. This feedback will be provided in a format and within a timeframe to be determined by the Fund, based on available resources. The Fund will notify Awardees by E-mail using the addresses maintained in the Awardee's myCDFIFund account (postal mailings will be used only in rare cases).
7. The Fund reserves the right to reject an application if information (including administrative errors) comes to the attention of the Fund that either adversely affects an applicant's eligibility for an award, or adversely affects the Fund's evaluation or scoring of an application, or indicates fraud or mismanagement on the part of an Applicant. If the Fund determines that any portion of the application is incorrect in any material respect, the Fund reserves the right, in its sole discretion, to reject the application. The Fund reserves the right to change its eligibility and evaluation criteria and procedures, if the Fund deems it appropriate; if said changes materially affect the Fund's award decisions, the Fund will provide information regarding the changes through the Fund's Web site. There is no right to appeal the Fund's award decisions. The Fund's award decisions are final.
The Fund will signify its conditional selection of an Applicant as an Awardee by delivering a signed Notice of Award to the Applicant. The Notice of Award will contain the general terms and conditions underlying the Fund's provision of assistance including, but not limited to, the requirement that the Awardee and the Fund enter into an Assistance Agreement. The Applicant must execute the Notice of Award and return it to the Fund. By executing a Notice of Award, the Awardee agrees, among other things, that, if prior to entering into an Assistance Agreement with the Fund, information (including administrative error) comes to the attention of the Fund that either adversely affects the Awardee's eligibility for an award, or adversely affects the Fund's evaluation of the Awardee's application, or indicates fraud or mismanagement on the part of the Awardee, the Fund may, in its discretion and without advance notice to the Awardee, terminate the Notice of Award or take such other actions as it deems appropriate. Moreover, by executing a Notice of Award, the Awardee agrees that, if prior to entering into an Assistance Agreement with the Fund, the Fund determines that the Awardee is in default of any Assistance Agreement previously entered into with the Fund, the Fund may, in its discretion and without advance notice to the Awardee, either terminate the Notice of Award or take such other actions as it deems appropriate. The Fund reserves the right, in its sole discretion, to rescind its award if the Awardee fails to return the Notice of Award, signed by the authorized representative of the Awardee, along with any other requested documentation, within the deadline set by the Fund.
If an Awardee, or an entity that Controls the Awardee, is Controlled by the Awardee or shares common management officials with the Awardee (as determined by the Fund) is a prior Fund Awardee or allocatee under any Fund program and is not current on the reporting requirements set forth in the previously executed assistance, allocation or award agreement(s), as of the date of the Notice of Award, the Fund reserves the right, in its sole discretion, to delay entering into an Assistance Agreement until said prior Awardee or allocatee is current on the reporting requirements in the previously executed assistance, allocation or award agreement(s). Please note that the Fund only acknowledges the receipt of reports that are complete. As such, incomplete reports or reports that are deficient of required elements will not be recognized as having been received. If said prior Awardee or allocatee is unable to meet this requirement within the timeframe set by the Fund, the Fund reserves the right, in its sole discretion, to terminate and rescind the Notice of Award and the award made under this NOFA.
If an Applicant is a prior Awardee or allocatee under any Fund program and if: (i) It has submitted complete and timely reports to the Fund that demonstrate noncompliance with a previous assistance, award or allocation agreement; and (ii) the Fund has yet to make a final determination as to whether the entity is in default of its previous assistance, award or allocation agreement, the Fund reserves the right, in its sole discretion, to delay entering
If, at any time prior to entering into an Assistance Agreement through this NOFA, the Fund has made a final determination that an Awardee that is a prior Fund Awardee or allocatee under any Fund program is in default of a previously executed assistance, allocation or award agreement(s), the Fund reserves the right, in its sole discretion, to delay entering into an Assistance Agreement, until said prior Awardee or allocatee has submitted a complete and timely report demonstrating full compliance with said agreement within a timeframe set by the Fund. Further, if at any time prior to entering into an Assistance Agreement through this NOFA, the Fund has made a final determination that another entity that Controls the Awardee, is Controlled by the applicant or shares common management officials with the Awardee (as determined by the Fund), is a prior Fund Awardee or allocatee under any Fund program and is in default of a previously executed assistance, allocation or award agreement(s), the Fund reserves the right, in its sole discretion, to delay entering into an Assistance Agreement, until said prior Awardee or allocatee has submitted a complete and timely report demonstrating full compliance with said agreement within a timeframe set by the Fund. If said prior Awardee or allocatee is unable to meet this requirement, the Fund reserves the right, in its sole discretion, to terminate and rescind the Notice of Award and the award made under this NOFA.
If (i) within the 12-month period prior to entering into an Assistance Agreement through this NOFA, the Fund has made a final determination that an Awardee that is a prior Fund Awardee or allocatee under any Fund program whose award or allocation was terminated in default of such prior agreement; and (ii) the final reporting period end date for the applicable terminated agreement falls in Calendar Year 2006, the Fund reserves the right, in its sole discretion, to delay entering into an Assistance Agreement. Further, if (i) within the 12-month period prior to entering into an Assistance Agreement through this NOFA, the Fund has made a final determination that another entity that Controls the Awardee, is Controlled by the Awardee or shares common management officials with the Awardee (as determined by the Fund), is a prior Fund Awardee or allocatee under any Fund program whose award or allocation was terminated in default of such prior agreement; and (ii) the final reporting period end date for the applicable terminated agreement falls in Calendar Year 2006, the Fund reserves the right, in its sole discretion, to delay entering into an Assistance Agreement.
An Awardee that receives a FA award pursuant to this NOFA for which an amount over $200,000 is deobligated by the Fund subsequent to the expiration of the period of award funds availability (generally, any funds deobligated after the September 30th following the year in which the award was made) but within the 12 months prior to the application deadline, may not apply for a new award through another NOFA for one CDFI or NACA Program funding round after the date of said deobligation.
Each Applicant that is selected to receive an award under this NOFA must enter into an Assistance Agreement with the Fund in order to receive disbursement of award proceeds. The Assistance Agreement will set forth certain required terms and conditions of the award, which will include, but not be limited to: (i) The amount of the award; (ii) the type of award; (iii) the approved uses of the award; (iv) the approved Target Market to which the funded activity must be targeted; (v) performance goals and measures; and (vi) reporting requirements for all Awardees. FA and FA/TA Assistance Agreements under this NOFA generally will have three-year performance periods; TA-only Assistance Agreements generally will have two-year performance periods.
The Fund reserves the right, in its sole discretion, to terminate the Notice of Award and rescind an award if the Awardee fails to return the Assistance Agreement, signed by the authorized representative of the Awardee, and/or provide the Fund with any other requested documentation, within the deadlines set by the Fund.
In addition to entering into an Assistance Agreement, each Awardee that receives an award either (i) in the form of a loan, equity investment, credit union shares/deposits, or secondary capital, in any amount, or (ii) a FA grant in an amount greater than $500,000, must furnish to the Fund an opinion from its legal counsel, the content of which will be specified in the Assistance Agreement, to include, among other matters, an opinion that the Awardee: (A) Is duly formed and in good standing in the jurisdiction in which it was formed and/or operates; (B) has the authority to enter into the Assistance Agreement and undertake the activities that are specified therein; and (C) has no pending or threatened litigation that would materially affect its ability to enter into and carry out the activities specified in the Assistance Agreement. Each other Awardee must provide the Fund with a good standing certificate (or equivalent documentation) from its state (or jurisdiction) of incorporation.
The Fund will collect information, on at least an annual basis, from each Awardee including, but not limited to, an Annual Report that comprises the following components: (i) Financial Report; (ii) Institution Level Report; (iii) Transaction Level Report (for Awardees receiving FA); (iv) Financial Status Report (for Awardees receiving TA); (v) Uses of Financial Assistance and Matching Funds Report (for Awardees receiving Financial Assistance); (vi) Explanation of Noncompliance (as applicable); and (vii) such other information as the Fund may require. Each Awardee is responsible for the timely and complete submission of the Annual Report, even if all or a portion of the documents actually is completed by another entity or signatory to the Assistance Agreement. If such other entities or signatories are required to provide Institution Level Reports,
The Fund will require each Awardee that receives FA and TA awards through this NOFA to account for and track the use of said FA and TA awards. This means that for every dollar of FA and TA awards received from the Fund, the Awardee will be required to inform the Fund of its uses. This will require Awardees to establish separate administrative and accounting controls, subject to the applicable OMB Circulars. The Fund will provide guidance to Awardees outlining the format and content of the information to be provided on an annual basis, outlining and describing how the funds were used. Each Awardee that receives an award must provide the Fund with the required complete and accurate Automated Clearinghouse (ACH) form for its bank account prior to award closing and disbursement.
The Fund will respond to questions and provide support concerning this NOFA and the funding application between the hours of 9 a.m. and 5 p.m. ET, starting the date of the publication of this NOFA through November 10, 2006. The Fund will not respond to questions or provide support concerning the application that are received after 5 p.m. ET on said dates, until after the respective funding application deadline. Applications and other information regarding the Fund and its programs may be obtained from the Fund's Web site at
Technical support can be obtained by calling (202) 622-2455 or by E-mail at
If you have any questions about the programmatic requirements of this NOFA, contact the Fund's Program office by e-mail at
If you have any questions regarding the administrative requirements of this NOFA, including questions regarding submission requirements, contact the Fund's Grants Manager by e-mail at
If you have any questions regarding the compliance requirements of this NOFA, including questions regarding performance on prior awards, contact the Fund's Compliance Manager by e-mail at
If you have any questions or matters that you believe require response by the Fund's Office of Legal Counsel, please refer to the document titled “How To Request a Legal Review,” found on the Fund's Web site at
The Fund will use its myCDFIFund Internet interface to communicate with Applicants and Awardees under this NOFA. Applicants must register through myCDFIFund in order to submit a complete application for funding. Awardees must use myCDFIFund to submit required reports. The Fund will notify Awardees by e-mail using the addresses maintained in each Awardee's myCDFIFund account. Therefore, the Awardee and any Subsidiaries, signatories, and Affiliates must maintain accurate contact information (including contact person and authorized representative, e-mail addresses, fax numbers, phone numbers, and office addresses) in their myCDFIFund account(s). For more information about myCDFIFund, please see the Help documents posted at
The Fund may conduct Information Sessions to disseminate information to organizations contemplating applying to, and other organizations interested in learning about, the Fund's programs. For further information on the Fund's Information Sessions, dates and locations, or to register to attend an Information Session, please visit the Fund's Web site at
12 U.S.C. 4703, 4703 note, 4704, 4706, 4707, 4717; 12 CFR part 1805.
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G, as amended, by the Health Insurance Portability and Accountability Act (HIPPA) of 1996. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a)) with respect to whom the Secretary received information during the quarter ending June 30, 2006.
Internal Revenue Service, Treasury.
Notice of closed meeting of Art Advisory Panel.
Closed meeting of the Art Advisory Panel will be held in Washington, DC.
The meeting will be held September 20 and 21, 2006.
The closed meeting of the Art Advisory Panel will be held on September 20 and 21, 2006, in Room 4136 beginning at 9:30 a.m., Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
Karen Carolan, C:AP:ART, 1099 14th Street, NW., Washington, DC 20005. Telephone (202) 435-5609 (not a toll free number).
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App., that a closed meeting of the Art Advisory Panel will be held on September 20 and 21, 2006, in Room 4136 beginning at 9:30 a.m., Franklin Court Building, 1099 14th Street, NW., Washington, DC 20005.
The agenda will consist of the review and evaluation of the acceptability of fair market value appraisals of works of art involved in Federal income, estate, or gift tax 2 returns. This will involve the discussion of material in individual tax returns made confidential by the provisions of 26 U.S.C. 6103.
A determination as required by section 10(d) of the Federal Advisory Committee Act has been made that this meeting is concerned with matters listed in section 552b(c)(3), (4), (6), and (7), and that the meeting will not be open to the public.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 2 Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, September 20, 2006, at 2:30 p.m. ET.
Inez E. De Jesus at 1-888-912-1227, or 954-423-7977.
Notice is hereby given pursuant to section 10 (a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 2 Taxpayer Advocacy Panel will be held Wednesday, September 20, 2006 at 2:30 p.m. ET via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7977, or write Inez E. De Jesus, TAP Office, 1000 South Pine Island Rd., Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Inez E. De Jesus. Ms. De Jesus can be reached at 1-888-912-1227 or 954-423-7977, or post comments to the Web site:
The agenda will include the following: Various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 3 Taxpayer Advocacy Panel will be conducted (via teleconference).
The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, September 19, 2006 from 11:30 a.m. ET.
Sallie Chavez at 1-888-912-1227, or 954-423-7979.
Notice is hereby given pursuant to section 10 (a) (2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 3 Taxpayer Advocacy Panel will be held Tuesday, September 19, 2006, from 11:30 a.m. ET via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7979, or write Sallie Chavez, TAP Office, 1000 South Pine Island Rd., Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Sallie Chavez. Ms. Chavez can be reached at 1-888-912-1227 or 954-423-7979, or post comments to the Web site:
The agenda will include: Various IRS issues.
The Department of Veterans Affairs gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the meeting of the Geriatrics and Gerontology Advisory Committee scheduled to be held at VA Central Office, 810 Vermont Avenue, NW., Washington, DC on September 19-20, 2006
For more information, please contact Mrs. Marcia Holt-Delaney, Program Analyst, Office of Geriatrics and Extended Care, at (202) 273-8540.
By Direction of the Secretary.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Final rule.
This final rule specifies uniform requirements for the accuracy, collection, storage, survivability, and retrievability of onboard motor vehicle crash event data in passenger cars and other light vehicles equipped with event data recorders (EDRs). This final rule responds to the growing practice in the motor vehicle industry of voluntarily installing EDRs in an increasing number of light vehicles. This final rule is intended to standardize the data obtained through EDRs so that such data may be put to the most effective future use and to ensure that EDR infrastructure develops in such a way as to speed medical assistance through providing a foundation for automatic crash notification (ACN). This final regulation: requires that the EDRs installed in light vehicles record a minimum set of specified data elements; standardizes the format in which those data are recorded; helps to ensure the crash survivability of an EDR and its data by requiring that the EDR function during and after the front and side vehicle crash tests specified in two Federal motor vehicle safety standards; and requires vehicle manufacturers to ensure the commercial availability of the tools necessary to enable crash investigators to retrieve data from the EDR. In addition, to ensure public awareness of EDRs, the regulation also requires vehicle manufacturers to include a standardized statement in the owner's manual indicating that the vehicle is equipped with an EDR and describing the functions and capabilities of EDRs.
This final rule for standardization of EDR data will ensure that EDRs record, in a readily usable manner, the data necessary for ACN, effective crash investigations, and analysis of safety equipment performance. Standardization of EDR data will facilitate development of ACN, e-911, and similar systems, which could lead to future safety enhancements. In addition, analysis of EDR data can contribute to safer vehicle designs and a better understanding of the circumstances and causation of crashes and injuries.
Petitions for reconsideration should refer to the docket number above and be submitted to: Administrator, Room 5220, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.
Event data recorders have been used in recent years in a variety of transportation modes to collect crash information. EDR data will play an increasing role in advancing developing networks for providing emergency medical services. Specifically, EDR data can help the safety community develop ACN, electronic 911 (e-911), and other emergency response systems to improve medical services to crash victims. In addition, EDR data can also provide information to enhance our understanding of crash events and safety system performance, thereby potentially contributing to safer vehicle designs and more effective safety regulations.
EDRs have experienced dramatic changes in the past decade, both in terms of their technical capabilities and fleet penetration. EDRs today demonstrate a range of features, with some systems collecting only vehicle acceleration/deceleration data, but
In light of the relatively high new vehicle fleet penetration of EDRs (currently estimated at 64%) and present trends, we do not believe that it is necessary to mandate the installation of EDRs in all new vehicles. Were these trends reversed or slowed, we would consider revisiting this assessment. For now, we believe that standardization of EDR data represents the most important area of opportunity in terms of enhancing the yield of benefits from EDRs. We recognize that the automobile industry has already invested considerable effort and resources into developing effective EDR technologies, so we want to be especially careful not to adopt requirements that would result in unnecessary costs.
Accordingly, this final rule regulates voluntarily-provided EDRs by specifying a minimum core set of required data elements and accompanying range, accuracy, and resolution requirements for those elements. This will help ensure that EDRs provide the types of data most useful for the emergency medical services (EMS) community and crash reconstructionists, and in a manner that promotes the consistency and comparability of these data. We note that by specifying this minimum data set, we are not limiting manufacturers' ability to design EDRs that collect a broader set of data, provided that the required elements are present.
The rule also includes requirements for the survivability of EDR data (so that it is not lost in most crashes) and the retrievability of EDR data (so that it can be obtained by authorized users). In sum, the objectives of our regulation are to get the right data, in sufficient quantity and in a standardized format, and to ensure that the data can survive most crash events and be retrieved by intended users.
By promulgating a uniform national regulation for EDRs, it is our intent to provide one consistent set of minimum requirements for vehicle manufacturers that choose to install EDRs. We believe that this approach will not only enhance the quality of EDR data, but also facilitate increased numbers of new light vehicles equipped with EDRs. We also believe that this minimum data set provides key elements in a standardized format that will be useful for ACN or other telematic systems.
NHTSA has been assessing the potential benefits of EDR for over a decade, and in that time, we have witnessed a significant maturation of EDR technology. The agency initially began examining EDRs in 1991 as part of the Special Crash Investigations (SCI) program. In 1997, the National Transportation Safety Board (NTSB) and the National Aeronautics and Space Administration (NASA) Jet Propulsion Laboratory (JPL) recommended that NHTSA consider the possibility of requiring the installation of EDRs in motor vehicles. NTSB made additional recommendations related to EDRs in 1999 (i.e., suggesting that EDRs be installed in school buses and motor coaches). Since 1998, NHTSA has sponsored two Working Groups to examine and report on EDR issues.
As discussed below, the agency received two petitions for rulemaking in the late 1990s asking that light vehicles be equipped with “black boxes” (i.e., EDRs) that would record data during a crash so that it could be read later by crash investigators. However, the agency denied those petitions because the industry was already moving voluntarily in the direction recommended by the petitioners, and because the agency believed that certain outstanding issues would best be addressed in a non-regulatory context.
In 2001, NHTSA received a third petition for rulemaking related to EDRs from Dr. Ricardo Martinez, seeking a requirement for installation of EDRs as well as standardization of EDR data. After considering the Martinez petition and the current situation vis-à-vis EDRs, we decided to publish a request for comments as to what future role the agency should take related to the continued development and installation of EDRs in motor vehicles. This notice was published on October 11, 2002 (67 FR 63493), and after considering the input from a variety of interested stakeholders and the public, we decided to grant the Martinez petition in part (i.e., the request for standardization and retrievability) and to deny it in part (i.e., the request for an EDR mandate).
On June 14, 2004, NHTSA published a notice of proposed rulemaking (NPRM) proposing requirements for EDRs voluntarily installed by light vehicle manufacturers (69 FR 32932).
In summary, the NPRM proposed to require light vehicles voluntarily equipped with an EDR to meet uniform, national requirements for the collection, storage, and retrievability of onboard motor vehicle crash event data. The proposal included Table I,
The NPRM also proposed a methodology for data capture under specified conditions and circumstances (i.e., providing a hierarchy for when new EDR data would overwrite existing data already stored in memory). Simply put, EDRs are constantly monitoring a variety of vehicle systems and parameters when the vehicle is in operation, but the devices only have a limited amount of short-term (volatile) memory and long-term (non-volatile) memory available for recording for these
Because data standardization is only beneficial if the data can be retrieved and used, the agency decided to address the issue of data retrievability as part of our rulemaking. The NPRM also proposed to require vehicle manufacturers to submit sufficient non-proprietary technical information to the public docket as would permit third parties to manufacture a device capable of accessing, interpreting, and converting the data stored in the EDR. Under the proposal, such information would be required to be submitted to the docket not later than 90 days prior to the start of production of the EDR-equipped vehicle makes and models to which the information relates, and vehicle manufacturers would be required to keep that information updated, by providing information not later than 90 days prior to making any changes that would make the previously submitted information no longer valid. However, as discussed in the NPRM, our proposal offered one possible way to handle the data retrievability issue, and we sought comment on alternative approaches.
In addition, the NPRM proposed survivability requirements for EDR data when the vehicle is crash tested under existing testing requirements of Federal Motor Vehicle Safety Standard (FMVSS) Nos. 208,
Finally, the NPRM proposed a specific owner's manual statement related to EDRs that would make members of the public aware when their vehicle is equipped with an EDR and also explain the intended purpose of the EDR and how it operates.
After careful consideration of the public comments on the NPRM, we are promulgating this final rule to establish a regulation for voluntarily-installed EDRs in order to standardize EDR data. The approach of this final rule is generally consistent with that of the NPRM, although we have further tailored the requirements of the regulation to advance the stated purposes of this rulemaking without requiring substantial costs or impeding the technological development of EDRs. We believe that with certain modest modifications, many current EDR systems can meet our goals of facilitating ACN and improving crash reconstructions.
In overview, the final rule specifies uniform, national requirements for light vehicles voluntarily equipped with EDRs, including the collection, storage, and retrievability of onboard motor vehicle crash event data. It also specifies requirements for vehicle manufacturers to make tools and/or methods commercially available so that authorized crash investigators and researchers are able to retrieve data from such EDRs.
Specifically, the regulation applies to passenger cars, multipurpose passenger vehicles, trucks, and buses with a gross vehicle weight rating (GVWR) of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service, that are equipped with an event data recorder and to manufacturers of these vehicles. Subject to an exception for final-stage manufacturers and alterers discussed below, compliance with the requirements of the final rule commences for covered vehicles manufactured on or after September 1, 2010. The final rule is intended to be technology-neutral, so as to permit compliance with any available EDR technology that meets the specified performance requirements.
The following points highlight the key provisions of the final rule:
• Each vehicle equipped with an EDR must record all of the data elements listed in Table I, during the interval/time and at the sample rate specified in that table. There are 15 required data elements (
• Each vehicle equipped with an EDR that records any of the data elements listed in Table II identified as if recorded (most elements in that table) must capture and record that information according to the interval/time and at the sample rate specified in that table. Data elements listed in Table II as “if equipped” (i.e., “frontal air bag deployment, time to n
• The data elements required to be collected by the EDR pursuant to Tables I and II, as applicable, must be recorded in accordance with the range, accuracy, and resolution requirements specified in Table III,
• For EDRs that record acceleration, the longitudinal and lateral acceleration time-history data must be filtered in accordance with the filter class specified in Table III (i.e., Society of Automotive Engineers (SAE) Recommended Practice J211-1, March 1995, “Instrumentation For Impact Test—Part 1—Electronic Instrumentation” (SAE J211-1, Class 60), which the regulation incorporates by reference (
• The EDR must collect and store data elements for events in accordance with the following conditions and circumstances as specified in paragraph 563.9:
(1) In an air bag deployment crash, the data recorded from any previous crash must be deleted; the data related to the deployment must be recorded, and the memory must be locked in order to prevent any future overwriting of these data.
(2) In an air bag non-deployment crash that meets the trigger threshold, all previously recorded data in the EDR's memory must be deleted from the EDR's memory, and the current data (up to two events) must be recorded.
• In order to ensure the survivability of EDR data in most crashes, the EDR is tested in conjunction with crash tests already required under FMVSS No. 208,
The EDR is not required to meet the above survivability requirements for the following data elements: (1) “Engine throttle, % full,” (2) “service brake, on/off,” and (3) “engine RPM.” These elements have been excluded from these requirements because vehicles are crash tested without the engine running for safety reasons, so the EDR would not be able to record the above data elements under those circumstances.
• For vehicles equipped with an EDR, vehicle manufacturers must include a specified statement in the owner's manual to make the operator aware of the presence, function, and capabilities of the EDR.
• In order to ensure the retrievability of EDR data, each vehicle manufacturer that installs EDRs must ensure by licensing agreement or other means that the necessary tool(s) are commercially available for downloading the required EDR data. The tool must be commercially available not later than 90 days after the first sale of the vehicle for purposes other than resale.
In order to limit the transition costs associated with the standardization of EDR data, we sought in the NPRM to provide adequate lead time to manufacturers to enable them to incorporate necessary changes as part of their routine production cycles. To that end, the NPRM proposed a compliance date of September 1, 2008 for the EDR regulation. However, vehicle manufacturers commented that the lead time in the proposed rule would be inadequate to allow manufacturers to incorporate the necessary changes as part of their regular production cycle. Those commenters argued that a longer lead time is needed to minimize the costs and burdens associated with the EDR rule, particularly for those manufacturers which have already incorporated EDRs in a large proportion of their fleets.
After carefully considering the public comments on lead time, we have decided to require covered vehicles manufactured on or after September 1, 2010 to comply with the requirements of this final rule, subject to the exception below. Again, it is our intention to limit the costs associated with this final rule for the standardization of EDR data, including implications associated with new definitions, new pre-crash data collection, data download strategies, and data element costs associated with meeting the range and accuracy requirements. We believe that a lead time in excess of four years should prove adequate for all vehicle manufacturers and all vehicle lines, without the need for a phase-in. Vehicle manufacturers may voluntarily comply with these requirements prior to this date.
Consistent with the policy set forth in NHTSA's February 14, 2005 final rule on certification requirements under Federal motor vehicle safety standards for vehicles built in two or more stages and altered vehicles (70 FR 7414), we are providing final-stage manufacturers and alterers that produce vehicles covered by this regulation with an extra year to comply. Accordingly, these manufacturers must meet the requirements of this final rule for vehicles manufactured on or after September 1, 2011. However, final-stage manufacturers and alterers may voluntarily comply with the requirements of the regulation prior to this date.
As noted above, NHTSA has decided to issue the present final rule to standardize EDR data in order to further our stated purposes of ensuring that EDRs record the data necessary for effective implementation of ACN, crash investigations, and analysis of safety equipment performance. In order to achieve these objectives (and to garner the derivative benefits that EDR-generated data may provide in terms of safer vehicle designs), we have largely retained the general approach presented in the NPRM. However, after further study and a careful review of the public comments, we have decided to make a number of modifications as part of the final rule in order to better reflect the current state of EDR technology and the data elements (including form and format) that will meet our research and policy objectives in a manner that is both effective and practicable.
The main differences between the NPRM and the final rule involve a change in the definition of “event data recorder,” selection of data elements (i.e., which elements are required), changes to the range/accuracy/resolution requirements, modification of the test requirements related to EDR survivability, and extension of lead time for implementing the regulation. A number of minor technical modifications are also incorporated in the final rule in response to public comments on the NPRM. All of these changes and their rationale are discussed fully in the balance of this document. However, the following points briefly describe the main differences between the NPRM and this final rule.
• In the NPRM, the term “event data recorder” was defined as “a device or function in a vehicle that records any vehicle or occupant-based data just prior to or during a crash, such that the data can be retrieved after the crash. For purposes of this definition, vehicle or occupant-based data include any of the data elements listed in Table I of this part.” However, several commenters stated that under this definition, virtually all vehicles would be considered to have an EDR, because most vehicles capture freeze-frame data required for internal processing; therefore, commenters argued that the proposed definition is overly broad (i.e., covering vehicles not equipped with a true EDR) and would create a
• In the final rule, we have decided to make certain modifications to the proposed tables of EDR data elements. Table I,
Table II,
Furthermore, Table II has been amended by adding six data elements (i.e., Table II includes four new elements: (1) Lateral delta-V; (2) lateral cumulative maximum delta-V; (3) time to cumulative maximum lateral delta-V, and (4) time to cumulative maximum resultant delta-V. In addition, as indicated above, two items have been moved from Table I to Table II: (1) Longitudinal acceleration; and (2) engine RPM.).
• In the NPRM, we proposed a definition for “trigger threshold,” the point at which a recordable event is recognized by the EDR, as a “change in vehicle velocity * * * that equals or exceeds 0.8 km/h within a 20 ms interval.” That definition encompassed movement in either a longitudinal or lateral direction.
In the final rule, we decided to change the definition of “trigger threshold” for the longitudinal direction to “a change in vehicle velocity * * * that equals or exceeds 8 km/h within a 150 ms interval.” For vehicles whose EDRs measure lateral delta-V or lateral acceleration, we are using the same trigger threshold. In the final rule, we have changed the definition of “time zero” to account for different EDR crash detection strategies (i.e., using a “wake-up” time for EDRs that wake up just as a crash starts, or a change in velocity over a short period for EDRs that are continuously running). We have also added a new definition for “end of event time.” “Time zero” and “end of event time” are defined in a manner consistent with SAE J1698.
• In the final rule, we have changed our approach in terms of the type of data that an EDR may capture to assess crash severity. Specifically, the NPRM proposed to require EDRs to measure vehicle acceleration, but the final rule requires the EDR to record delta-V. However, if the EDR records acceleration data in non-volatile memory, that information must also be captured and recorded under the final rule.
• As part of the final rule, the agency has decided to reduce the number of events that must be recorded in a multi-event crash from three (as proposed in the NPRM) to two.
• For each of the proposed data elements (when applicable), the NPRM specified a recording interval and sampling rate in order to standardize EDR data across the spectrum of new light vehicles. We have decreased the pre-crash recording interval from 8 seconds prior to the crash, as proposed in the NPRM, to 5 seconds prior to the crash, and we have reduced the amount of time allocated for collecting crash data from 0.5 second, as proposed in the NPRM, to 0.25 second in this final rule.
• The final rule has modified the NPRM s data format requirements, which proposed to require covered data elements to be recorded in accordance with the range, accuracy, precision, and filter class specified in Table III,
• After requesting comments on alternate approaches in the NPRM, the agency has adopted a different approach for ensuring that manufacturers make sufficient information available to permit EDR data to be downloaded by potential users. The NPRM proposed to require vehicle manufacturers make publicly available sufficient information to permit third parties to build a retrieval tool for EDR data by submitting such materials to the NHTSA Docket (and keeping such information updated). However, in the final rule, we have decided, consistent with manufacturers' comments, to require manufacturers to ensure by licensing agreement or other means that retrieval tools for EDR data are commercially available.
• In the NPRM, we proposed to require manufacturers to send detailed information on an ongoing basis to the agency about retrieval tools for EDR data. However, in the final rule, we have decided to require vehicle manufacturers to ensure that EDR retrieval tools are commercially available, something which manufacturers may accomplish either by producing the tools themselves or working directly with their suppliers through licensing agreements. Accordingly, the need for reports to the agency, as contemplated in the NPRM, no longer exists.
• The final rule clarifies that EDR survivability testing will be conducted without the engine running, in order to prevent a potentially hazardous situation for testing personnel and facilities. The final rule specifies that the “engine throttle,” “service brake, on/off,” and (3) “engine RPM” data elements are not required to be recorded as part of survivability testing. While we are retaining the general approach for survivability testing, we are decreasing the number of tests required to demonstrate survivability. Under the NPRM, we proposed using FMVSS Nos. 208 (frontal), 214 (side), and 301 (rear) tests, but in the final rule, we have decided to delete the requirement for the Standard No. 301 test.
• We have decided as part of the final rule to extend the lead time for compliance by covered vehicles by two years, until September 1, 2010. In addition, the final rule sets the compliance date for final-stage manufacturers and alterers at one year beyond the compliance deadline for other manufacturers (i.e., September 1, 2011).
It is difficult for the agency to quantify the benefits expected to result from this final rule for standardization of EDR data. That is because the EDR devices themselves are not designed to be systems for crash avoidance or crashworthiness, but instead they offer an important tool to enable better EMS response and to better understand crashes and crash-related events. However, it is possible to describe the benefits of EDRs in qualitative terms.
To the extent that EDR data are compatible with developing ACN and e-911 systems, emergency medical personnel are likely to arrive at a crash site better informed and thus better prepared to deal with the injuries they encounter. Because expedient and appropriate post-crash medical care is often critical to achieving the best possible outcome for the injured person, we believe that EDR data have the potential to make a positive contribution in this area.
We also believe that EDRs can provide important benefits by giving researchers a relatively inexpensive way of obtaining higher quality data and thus a more accurate and detailed understanding of the circumstances surrounding crashes, including how the vehicles and their safety systems performed. In many cases, such
In sum, we believe that having a uniform and standardized data set for EDRs will increase the compatibility, comparability, and overall usefulness of EDR data, which will benefit the public directly through the availability of ACN and e-911, and indirectly through improved crash information for research and regulatory efforts.
In terms of costs, we believe that the costs of this final rule should be minimal, averaging up to $0.17 per vehicle. Several factors contribute to this result. First, we estimate that about 64 percent of new light vehicles in 2005 are already equipped with EDRs, which have been provided by adding the EDR capability to the vehicles' air bag control systems. Thus, EDRs largely capture information that is already being processed by the vehicle, so EDRs are not responsible for the much higher costs of sensing much of the data in the first place. Therefore, the costs of this final rule reflect the incremental costs for vehicles voluntarily equipped with EDRs to comply with the requirements of the regulation.
Second, the agency has sought to limit the number of EDR data elements and associated requirements to the minimum necessary to achieve our stated purposes. We have determined that the industry's current state-of-the-art largely meets our purposes, so we have found it generally unnecessary to specify requirements for additional sensors or other hardware that would increase EDR costs appreciably. (The most significant technology cost may involve the need to upgrade EDR memory chips.) Furthermore, we expect that administrative costs and compliance costs will be negligible.
In sum, for the 64 percent of new light vehicles already equipped with an EDR, the estimated total cost to comply with the requirements of this final rule (i.e., Table I data elements) will range up to $1.7 million. If we were to assume that all 15.5 million new light vehicles were equipped with EDRs, the estimated total cost will range up to $10.9 million.
Event data recorders capture vehicle crash information.
The EDR captures crash data by monitoring several of the vehicle's systems, such as brakes, air bags, and seat belts. It continuously captures and overwrites (erases) information on these systems so that a record of the most recent period (up to a few seconds) is always available. If an “event” occurs (i.e., a crash meeting a pre-determined threshold of severity), then the EDR moves captured pre-crash information (up to a few seconds) into its long-term memory. EDRs also record (in long-term memory) data after the start of the crash (up to a few seconds), such as the timing and manner of the deployment of the air bags.
EDRs have been installed as standard equipment in most light motor vehicles in recent years, particularly vehicles with air bags. We estimate that 64 percent of model year (MY) 2005 passenger cars and other light vehicles have some recording capability, and that more than half record data elements such as crash pulse data. This is based on manufacturer reports regarding their 2005 vehicles and then weighted using 2003 corporate-level vehicle sales figures to determine a fleet average.
In 1991, NHTSA's Special Crash Investigations program first utilized EDR information in an agency crash investigation. General Motors, the vehicle's manufacturer, cooperated with the program. Throughout the 1990s, NHTSA's SCI team utilized EDRs as one of their investigative tools, and from 1991 through 1997, SCI worked with manufacturers to read approximately 40 EDRs. Starting around 2000, the collection of EDR data was automated, and to date, NHTSA's crash investigation programs have collected information on about 2,700 crashes with EDR files.
The National Transportation Safety Board has also played a role in agency efforts related to event data recorders. The NTSB has been active in data recorders for a long time, first concentrating on aircraft and later on railroads and ships. More recently, NTSB has been active in the area of EDRs for highway vehicles. In 1997, the Safety Board issued its first highway vehicle EDR-related Safety Recommendation, H-97-18,
In early 1998, NHTSA's Office of Vehicle Safety Research formed an EDR Working Group comprised of members from industry, academia, and other government organizations. The working group was formed in response to NHTSA's growing interest in EDRs, the NTSB's recommendation, and interest from vehicle manufacturers. The group's objective was to facilitate the collection and utilization of collision avoidance and crashworthiness data from on-board EDRs. The NHTSA-sponsored EDR Working Group published a final report on the results of its deliberations in August 2001.
In 1999, NTSB issued a second set of recommendations to NHTSA related to
In 2004, NTSB issued EDR recommendations to NHTSA for a third time. This set of recommendations was prompted by a crash that occurred at a farmers' market in Santa Monica, CA, which resulted in multiple deaths. In examining that crash, the Safety Board found that they could not determine exactly what occurred with respect to the driver controls and indicated that EDRs should be installed on all new vehicles. Recommendation H-04-26
For further information, NHTSA has developed a website about highway-based EDRs located at the following address:
In the late 1990s, the agency denied two petitions for rulemaking asking us to require the installation of EDRs in new motor vehicles (
The first petition, submitted by Mr. Price T. Bingham,
The second petition, submitted by Ms. Marie E. Birnbaum,
In responding to these petitions, NHTSA acknowledged that EDRs could provide valuable information useful for analyzing crashes and improving motor vehicle safety. However, the agency decided to deny the petitions because the motor vehicle industry was already voluntarily moving in the direction recommended by the petitioners, and because the agency believed “this area presents some issues that are, at least for the present time, best addressed in a non-regulatory context.”
In October 2001, the agency received a petition
In his petition for rulemaking, Dr. Martinez argued that understanding what happens in a crash is essential to preventing injuries and deaths, and that EDRs would improve crash reconstruction analysis. The petitioner also stated that current crash reconstruction analysis is costly, time consuming, laborious, and often inaccurate. According to Dr. Martinez, the increasing sophistication and decreasing costs of information technology have created the opportunity to now mandate the capture, storage, and retrieval of onboard crash data, and a NHTSA rulemaking could greatly accelerate the development of ACN.
The petition from Dr. Martinez was submitted shortly after the NHTSA EDR Working Group had published its final report. As discussed in more detail in the next section of this document, in October 2002, after the second working group had completed its work, we decided to request public comments on what future role the agency should take related to the continued development and installation of EDRs in motor vehicles. We decided to respond to Dr. Martinez's petition after considering those comments.
On October 11, 2002, NHTSA published a request for comments concerning EDRs in the
In response to this request, we received comments from light and heavy vehicle manufacturers, equipment manufacturers, vehicle users, the medical community, advocacy organizations, safety research organizations, crash investigators, insurance companies, academics, and government agencies. We also received comments from a number of private individuals.
To summarize, these comments raised issues concerning the safety benefits of EDRs (with most commenters suggesting EDRs will improve vehicle safety), technical issues surrounding a potential rulemaking on EDRs (such as the types of data elements to be collected, amount of data to be recorded, and crash survivability of EDR data), potential privacy issues associated with EDRs, NHTSA's role in the future of EDRs, and public perception of EDRs.
After considering the comments and other information NHTSA had gathered on EDRs, NHTSA decided to grant the Martinez petition in part and commenced rulemaking.
On June 14, 2004, NHTSA published a NPRM in the
NHTSA tentatively concluded that the proposed requirements would help ensure that EDRs record, in a readily usable manner, the data necessary for effective crash investigations, analysis of safety equipment performance, and automatic crash notification systems. NHTSA stated its belief that its proposal would help provide a better understanding of the circumstances under which crashes and injuries occur and would lead to derivative benefits, such as safer vehicle designs.
In the NPRM, NHTSA responded to the Martinez petition
However, NHTSA denied the petition to the extent that the agency did not propose to mandate EDRs. In the NPRM, the agency stated its belief that a mandatory EDR rule was not the best approach at this time, and we noted that the industry is continuing to move in the direction of installing EDRs in an increasing percentage of new vehicles. Further, the industry trend is toward designing EDRs to include greater amounts of crash data. Given this trend, we did not deem it necessary for us to propose to require the installation of EDRs, but remained open to considering this in the future.
The NPRM also discussed other key issues including data elements to be recorded, data standardization, data retrieval, crash survivability, privacy, and lead time. The NPRM provided detailed tables of the data elements to be recorded under the proposal and the relationship of the data elements to the stated purposes of the rulemaking. While the NPRM did propose specific technical requirements and specifications, NHTSA requested comments on the proposed data elements, including whether the list sufficiently covers technology that is likely to be in vehicles in the next five to ten years.
In terms of data standardization, the NPRM proposed a standardized format for each data element, specifying the corresponding recording intervals/times, units of measurement, sampling rates, data range/accuracy/precision requirements, and where appropriate, filter class. However, the NPRM noted that there was currently not an industry standard for EDR format.
The NPRM also solicited comments on EDR data retrieval. Specifically, NHTSA sought alternative approaches to the data retrieval requirements proposed in the NPRM, which would have required vehicle manufacturers to submit specifications for accessing and retrieving the stored EDR data and information in sufficient detail to permit companies that manufacture diagnostic tools to develop and build devices for accessing and retrieving the EDR's stored data.
Regarding the functioning of EDRs and crash survivability, the NPRM proposed requirements for the EDR trigger threshold, EDR recording in multi-event crashes, capture of EDR data, and the performance of EDRs in crash tests.
The NPRM discussed privacy issues related to EDRs, but it also noted that most privacy issues involve Federal and State laws separate from NHTSA's primary statutory authority.
Finally, the NPRM discussed lead time for the regulation's proposed compliance date. The NPRM proposed a compliance date of September 1, 2008, to permit manufacturers to make EDR-related design changes as a part of their regular production cycle in order to minimize costs.
NHTSA received over 100 comments on the NPRM from automobile manufacturers,
The following overview of the public comments reflects the key issues raised by the commenters, including whether the EDR rule should be mandatory, the number and type of data elements to be recorded, EDR data standardization requirements, EDR data retrieval and whether to require a standardized data retrieval tool/universal interface, and EDR crash survivability. Other commenters addressed the proposed owner's manual disclosure statement, potential privacy concerns, lead time, and costs. A more in-depth analysis of
In their comments, most automobile manufacturers supported the EDR standardization requirements for voluntarily-installed EDRs. However, GM, Ford, some industry associations, and most advocacy and special interest groups, urged NHTSA to require EDRs to be installed in all new vehicles. Commenters as diverse as GM and Public Citizen urged mandatory installation of EDRs. Arguments for why installation should be mandatory varied, but included concerns that manufacturers will opt out under a voluntary installation approach, that standardization requirements for voluntary-installed EDRs will discourage EDR installation, and that voluntary installation would take many years to build up sufficient information for useful study.
The NPRM separated EDR data elements into two categories. The first category consisted of a set of data elements that must be recorded if an automobile manufacturer currently uses an EDR for any one data element (i.e., “required” data elements). The second category consisted of data elements that must be recorded only if the vehicle is equipped with a specified system or sensing capability (i.e., “if equipped” data elements). The NPRM listed 18 required data elements and an additional 24 “if equipped” data elements.
Overall, automobile manufacturers, and other commenters connected to the automotive industry, stated their belief that the number of proposed required data elements is excessive in light of NHTSA's stated purposes. However, manufacturers differed in their assessment as to which of the data elements should be required to be recorded and their rationale why. The manufacturers agreed that the number of data elements should be reduced due to: (1) The estimated (excessive) cost of the EDR proposal; (2) limitations in memory and microprocessing capability of EDRs; (3) the potential to inhibit collection of more useful data; and (4) the desire to avoid complete electrical redesigns.
In contrast, highway safety advocacy groups, such as Public Citizen and Advocates, suggested that the number of required elements is insufficient. This group of commenters generally argued that more data elements should be recorded in order to: (1) Provide additional data contribution for a more definitive crash causation evaluation; (2) address equipment likely to be used in the future; and/or (3) encourage uniformity. Some commenters, including Injury Sciences and Public Citizen, suggested adding the Vehicle Identification Number (VIN) as a recorded data element. Still others commented that certain data elements in the “if equipped” category should be moved to the “required” category or vice versa.
The NPRM proposed specific technical specifications for each data element, including sampling rates and recording intervals, data standardization requirements, and data retrieval requirements. The commenters on this issue, mostly from the automobile industry, raised concerns about the proposed recording frequency and sampling rates, especially regarding the amount of microprocessing and memory required to process and store the proposed EDR data. According to the manufacturers, the increase in microprocessing and memory capabilities that would be required to comply with the proposed rule would be more costly than the agency anticipated. Therefore, manufacturers recommended alternative sampling rates and recording intervals that they believe would be less expensive. Automotive industry commenters also recommended other technical adjustments to the proposed recording requirements. They also generally disagreed with the proposed multiple-event recording requirement, with most stating that it is unnecessary and not current industry practice.
Automobile manufacturers generally commented that the range, accuracy, and precision specifications contained in the NPRM should not be included in the final rule because the proposed parameters are beyond what is currently utilized in the state-of-the-art EDRs and the provisions are not necessary to achieve the agency's goals. Other commenters agreed with the concept of standardization, but suggested that it be accomplished in another manner, such as leaving it to the discretion of the manufacturers for optimal restraint system performance or applying SAE J1698.
Highway safety advocates commented that sampling rates and recording intervals should be of sufficient duration to record the full crash event, especially for “rollover” crashes.
With regard to data retrieval requirements, most manufacturers objected to furnishing non-proprietary technical specifications to NHTSA and offered alternative approaches for retrieving EDR data, such as through licensing agreements or making retrieval tools available to the public at a reasonable price. Highway safety advocacy groups argued that NHTSA should require standardization of data retrieval methods, that first responders should have access to EDR data, and that NHTSA should require a uniform architecture for data retrieval with a standardized interface location.
The NPRM proposed that EDR data must exist upon completion of each crash test and be retrievable by a methodology specified by the vehicle manufacturer for not less than 30 days after the test and without external power. Several automobile manufacturers commented that the proposed crash test requirement is impracticable because they believe it would require tests to be performed with engines running and various vehicle systems activated, which would cause a danger to test personnel. As an alternative, commenters suggested a simulated laboratory test. Automobile manufacturers commented that the proposed rule would greatly increase testing costs. There were also comments on whether an alternative power source would be required to meet the 30-day provision in Sec. 563.10(d). Other commenters, including NTSB and Public Citizen commented that NHTSA should require that EDR data survive fire, fluid immersion, and severe crashes.
The NPRM proposed a compliance date of September 1, 2008, for the EDR regulation. Nearly all commenters, especially automobile manufacturers, believed that the agency underestimated the amount of time needed to meet the requirements of the proposed rule. Several manufacturers suggested that, as part of the final rule, the agency should provide a phase-in (e.g., a four-year phase-in beginning in 2008).
In order to educate the public about EDRs and to gain public acceptance for use in passenger vehicles, the NPRM proposed that vehicles equipped with an EDR must also include a specified statement in the owner's manual. This
Commenters, especially individuals, raised concerns about privacy. In the NPRM, we addressed privacy issues, stating our position that NHTSA's use of the data collected from EDRs would not raise privacy concerns. NHTSA obtains the owner's consent for collecting and using EDR data and carefully protects any information that could potentially be used to identify an individual. In the context of EDRs, the information in question that may be linked to an individual is the vehicle identification number (VIN), which is collected at the time EDR information is downloaded. The following discussion explains why it is necessary for the agency to collect VIN information in connection with EDRs, how such information is used by the agency, and the safeguards the agency takes related to the release of such information.
VIN information (e.g., relevant to the make/model in question) is necessary to download and process the EDR data, because the commercial EDR download tool requires the VIN to be inputted into the program in order to link the EDR file with data to ensure proper engineering output. Without VIN input, similar data may mean different things depending on the vehicle from which it comes.
This final rule does not require EDRs to record VIN information. However, the full VIN of a vehicle must be inputted into current EDR extraction tools as a key to ensure proper conversion of the electronic EDR data to a usable format. The full VIN is needed in order to account for running changes that may occur during a particular model year, thereby rendering it infeasible to use a shortened VIN. We note that such VIN information is normally available through other means during the course of crash reconstruction (i.e., through reading the VIN label on the vehicle itself). Further, other parties, such as law enforcement, could combine the EDR data with the type of personally identifying data routinely acquired during a crash investigation.
In terms of the use of EDR data, the agency takes the EDR-generated information that it collects and incorporates the information into large crash-related databases in order to gain a more comprehensive understanding of certain crash events; the information contained in these databases is not retrieved or retrievable by name or other individual identifier.
The agency's rationale for protection of the VIN information contained in EDRs is as follows. By way of background, the VIN data identify the vehicle itself and do not specifically provide name, address, or other personal identifier information on an individual. Furthermore, EDR data alone cannot confirm exactly who was driving the vehicle at any given time (e.g., vehicle owner or other individuals (either with or without permission)). However, even though VIN information is not a “record”
As a practical matter, information contained in these records that has the potential indirectly to identify individuals is not made public, except as specifically required by law. Furthermore, prior to the release of information from databases containing EDR data (usually aggregated reports), the agency strips out the last six characters of the VIN (i.e., the portion that would allow identification of a specific vehicle and, potentially by indirect means, the identity of the vehicle's current owner). In light of the above, we believe that the agency has taken adequate steps to ensure individual privacy vis-à-vis its use of EDR data.
However, we recognized that there may be privacy issues associated with EDRs related to the use of EDR data by entities other than NHTSA, such as law enforcement and EMS personnel, other government entities, and the automotive industry. Notwithstanding our extensive treatment of the privacy issue, we still received comments from individuals who believe that EDRs are an intrusion of their privacy because EDRs might record aspects of their driving behavior (e.g., whether they are speeding or not wearing a safety belt) that they do not want to be known. Automobile manufacturers and highway safety groups commented that the potential benefits of EDRs outweigh any privacy concerns.
In addition to lead time, privacy, and owner's manual disclosure statement issues, commenters raised additional substantive issues including cost, preemption, and inclusion of ACN as a goal of the EDR rule.
Many commenters, mostly automobile manufacturers, believed that NHTSA's cost estimates were significantly understated. According to these commenters, the proposed requirements outlined in the NPRM would contribute to higher costs because of the additional microprocessors and memory needed to handle larger amounts of saved data. These commenters also argued that the dynamic testing requirements would increase costs along with the requirements of accuracy, range, and precision, which they argued are in excess of current industry practice.
Commenters requested that NHTSA specifically preempt inconsistent State and local regulations related to EDRs. Automobile manufacturers were concerned about the possibility of having to comply with inconsistent State regulations, especially concerning owner's manual disclosure statements and technical specifications of EDRs.
With respect to ACN as a stated goal of the EDR rule, commenters associated with the automotive industry argued that this goal should be removed, since the proposed rule would not require ACN or specifically state that the rule will not limit the ability of manufacturers to offer ACN.
Other, more specific and technical issues were raised by commenters. These issues will be treated and addressed in section IV.B of this notice.
After careful consideration of the public comments on the NPRM, we are promulgating this final rule to establish a regulation for voluntarily-installed EDRs in order to standardize EDR data. The requirements of this regulation are tailored to advance the stated purposes of this rulemaking without imposing unnecessary burdens or unduly
Specifically, the regulation applies to passenger cars, multipurpose passenger vehicles, trucks, and buses with a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service, that are equipped with an event data recorder and to manufacturers of these vehicles.
The following points highlight the key provisions of the final rule:
• Term “event data recorder” is defined as “a device or function in a vehicle that captures the vehicle s dynamic, time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), such that the data can be retrieved after the crash event. For the purposes of this definition, the event data do not include audio and video data.”
• Each vehicle equipped with an EDR must record all of the data elements listed in Table I, during the interval/time and at the sample rate specified in that table. There are 15 required data elements (
• Each vehicle equipped with an EDR that records any of the data elements listed in Table II identified as “if recorded” (most elements in that table) must capture and record that information according to the interval/time and at the sample rate specified in that table. Data elements listed in Table II as “if equipped” (i.e., “frontal air bag deployment, time to nth stage, driver” and “frontal air bag deployment, time to nth stage, right front passenger”) must record the specified information, even if they are not presently doing so. (The “frontal air bag deployment, time to nth stage” data elements provide critical timing data for vehicles equipped with multi-stage air bags, which will help in assessing whether an air bag is deploying correctly during a crash (i.e., whether the sensors are functioning properly). In drafting this final rule, we had considered including these two elements as required elements under Table I, but we recognized that not all vehicles are equipped with multi-stage air bags. Thus, by including these elements in Table II and requiring recording of that information if the vehicle is so equipped, we are, in effect, requiring this data from all vehicles equipped with an EDR and multi-stage air bags.)
There are 30 data elements included in Table II (
• The data elements required to be collected by the EDR pursuant to Tables I and II, as applicable, must be recorded in accordance with the range, accuracy, and resolution requirements specified in Table III,
• For EDRs that record acceleration, the longitudinal, lateral, and normal acceleration time-history data must be filtered in accordance with the filter class specified in Table III (i.e., SAE J211-1, Class 60) (
• The EDR must collect and store data elements for events in accordance with the following conditions and circumstances as specified in paragraph 563.9:
(1) In an air bag deployment crash, the data recorded from any previous crash must be deleted; the data related to the deployment must be recorded, and the memory must be locked in order to prevent any future overwriting of these data.
(2) In an air bag non-deployment crash that meets the trigger threshold, all previously recorded data in the EDR's memory must be deleted from the EDR's memory, and the current data (up to two events) must be recorded.
• In order to ensure that survivability of EDR data in most crashes, the EDR is tested in conjunction with crash tests already required under FMVSS No. 208,
The EDR need not meet the above survivability requirements for the following data elements: (1) “Engine throttle, % full,” (2) “service brake, on/off,” and (3) “engine RPM.” These elements have been excluded from these requirements because vehicles are crash tested without the engine running for safety reasons, so the EDR would not be able to record the above data elements under those circumstances.
• For vehicles equipped with an EDR, vehicle manufacturers must include a specified statement in the owner's manual to make the operator aware of the presence, function, and capabilities of the EDR (
• In order to ensure the retrievability of EDR data, each vehicle manufacturer that installs EDRs must ensure by licensing agreement or other means that retrieval tool(s) are commercially available for downloading the required EDR data. The retrieval tool must be commercially available not later than 90 days after the first sale of the vehicle for purposes other than resale.
In order to minimize the costs associated with the standardization of EDR data, we have stated our intention to provide adequate lead time to manufacturers to enable them to incorporate necessary changes as part of their routine production cycles. In the NPRM, we had proposed a compliance date of September 1, 2008. However, in their comments on our proposal, some manufacturers had argued that a longer lead time is needed to make the necessary design and production changes. Others requested a phase-in of the EDR requirements, which was characterized as particularly important for manufacturers that already have a
In light of the fact that installation of EDRs remains voluntary on the part of vehicle manufacturers and our concomitant desire to minimize costs, we have decided to adopt the recommendations of commenters to provide vehicle manufacturers with additional lead time. Accordingly, subject to the exception below, we have decided to require covered vehicles manufactured on or after September 1, 2010 to comply with the requirements of this final rule. We believe that lead time in excess of four years, particularly given the revised technical requirements, should prove adequate for all vehicle manufacturers and all vehicle lines, without the need for a phase-in. Vehicle manufacturers may voluntarily comply with these requirements prior to this date.
Beyond the suggestions of the automobile manufacturers to increase the lead time associated with this rule, NHTSA conducted its own analysis of the technical changes needed to meet the standardization requirements and specifications of this final rule. As discussed below, we determined that the final rule will necessitate a number of design and technical changes to current EDRs.
For example, current EDR systems have been designed independently by the vehicle manufacturers, thereby resulting in differences in data definitions. Thus, in implementing this final rule, manufacturers will need to make technical changes to their systems to reflect standardization in the data elements.
Further, we have added new definitions related to EDR operation that will necessitate changes to EDRs. The “trigger threshold” required by this final rule is different than that which any vehicle manufacturer currently utilizes. Generally, vehicle manufacturers use wake-up levels to start collecting data, based upon vehicle deceleration. However, our final rule specifies that data collection be triggered by using change-in-velocity (delta-V) over a specified time period, which will require algorithm development and possibly additional non-volatile memory buffers to capture and analyze these vehicle data. The two-event capture and recording requirement in the final rule is also different from that which any vehicle manufacturer currently uses. While some current EDRs do capture and record two events, the data are not captured with standardized logic, as is specified in the final rule (e.g., standardization of the calculation of time between events). Another new requirement is that the EDR must lock the file if an air bag deploys during an event; this requirement is one that will need to be newly implemented by most of vehicle manufacturers.
Another requirement in the final rule that is likely to necessitate changes in EDRs is the requirement for the capture and recording of pre-crash data. With the exception of GM and Toyota, no other vehicle manufacturer captures and records pre-crash data that can be downloaded using a commercially available tool. Ford is developing a pre-crash data recording capability, but Ford is collecting those data in the engine control module. All other vehicle manufacturers will need to update their systems to achieve pre-crash data collection, which will necessitate algorithm development and possibly additional non-volatile memory to continuously capture and hold these data until an event occurs. Further, the sampling of the pre-crash data will need to be standardized to two samples per second, in order to meet the requirements of the final rule. To our knowledge, no vehicle manufacturer currently collects pre-crash data at this sample rate (e.g., most GM and Toyota vehicles capture data at one sample per second during the interval specified in the final rule). Again, updating these systems in this fashion will require additional algorithm development and possible additional non-volatile memory.
In addition, we anticipate that development of a turnkey operation for downloading EDR data will take significant time to accomplish. Vehicle manufacturers will need time to develop their licensed partner relationships for production of download tools.
Finally, we note that the latest version of GM's EDR (e.g., ones used in the 2004 Malibu) does not capture and record delta-V data within the accuracy requirement specified in the final rule. In two tests performed by IIHS, which shared results with NHTSA for use in a paper for presentation at an International Technical Conference on the Enhanced Safety of Vehicles (ESV), the delta-Vs recorded by the EDR were at or outside the accuracy specifications of the final rule.
Consistent with the policy set forth in NHTSA's February 14, 2005 final rule on certification requirements under Federal motor vehicle safety standards for vehicles built in two or more stages and altered vehicles (70 FR 7414), final-stage manufacturers and alterers of covered vehicles must comply with the requirements of this final rule for vehicles manufactured on or after September 1, 2011. However, final-stage manufacturers and alterers may voluntarily comply with the requirements of the regulation prior to this date.
We expressly stated in the NPRM that we were not proposing to require all light vehicles to be equipped with EDRs. Under the proposed rule, vehicle manufacturers retained discretion regarding the decision of whether to install EDRs. However, if a vehicle were equipped with an EDR, the vehicle would be required to comply with the requirements of the proposed Part 563. We stated that we did not believe it was necessary to mandate installation of EDRs at this time, noting that the industry has substantially progressed in the development and installation of EDRs without the agency's requiring them. We estimated that at least 64 percent of model year 2004 passenger cars and other light vehicles have some recording capability, and more than half record elements such as crash pulse data. We noted also that industry was expected to install EDRs in an increasing percentage of new vehicles.
The agency received several comments on the issue of whether we should require manufacturers to install EDRs in all new vehicles. GM commented that NHTSA should adopt a FMVSS that would mandate installation of EDRs on all passenger cars and light trucks with a GVWR up to 3,855 kg (8,500 pounds). GM stated that a mandatory EDR requirement would maximize safety benefits by ensuring that all covered vehicles capture and record key crash data. According to GM, an EDR mandate would also eliminate incentives for manufacturers to remove existing EDRs or to delay their introduction. In addition, GM argued that the standard should prohibit
Public Citizen, Advocates, NADA, and NTSB urged NHTSA to require the installation of EDRs. Public Citizen stated that NHTSA should require EDRs because these devices can provide valuable safety benefits, including: (1) Better understanding of crash causation and injury sources; (2) enhanced commercial vehicle safety; (3) better data on defect trends; (4) safer highway designs; and (5) improved emergency response to crashes. Advocates argued that unless the agency requires EDRs, data collection would take many years to gather sufficient information for useful study. Mr. Fink, a crash reconstructionist, stated that the rule should require EDRs in all vehicles sold in the U.S. Four individuals commented that they supported the NPRM, one of which indicated that EDRs should be mandatory.
Several commenters argued that NHTSA's proposal to apply the rule to only those vehicles equipped with EDRs would either act as an incentive for manufacturers to remove EDRs from product lines currently equipped with EDRs or would discourage manufacturers from installing EDRs in new product lines. Ford argued the agency would need to issue a rule that requires installation of EDRs to accomplish the objectives set forth in the agency's proposal. Ford stated that it has been unable to develop a workable definition of an EDR that would uniformly create a truly voluntary requirement for all vehicle manufacturers and that avoids incentives for removal of existing recording capability or the deferred introduction of such capabilities.
IIHS, Public Citizen, PCIAA, and Children's Hospital of Philadelphia joined Ford and GM in arguing that not requiring manufacturers to install EDRs would act as an incentive for vehicle manufacturers to remove EDRs from vehicles and/or would discourage installation of EDRs in new product lines. According to these commenters, the net result would be a reduction in the number of vehicles equipped with EDRs. While Ford expressed support for modifying language to create a truly voluntary requirement that would at the same time address these concerns, IIHS, Public Citizen, PCIAA, GM, and Children's Hospital argued for a mandatory rule (with PCIAA noting that the industry needs ample lead time to comply), which would eliminate the incentive to remove EDRs and/or the discretion not to install EDRs in new product lines.
SISC supported the proposal's position that EDRs should include minimum standards for capturing crash data. SISC stated that current EDRs are focused on capturing data to evaluate the performance of safety systems; however, they do not adequately address the needs of capturing data for crash investigations. SISC stated that without mandatory minimum standards for capturing crash data, EDRs would not provide the type of information needed for safety research.
On the other hand, DaimlerChrysler and Toyota supported a voluntary approach to EDR installation. DaimlerChrysler also commented that the definition of EDR should be modified to ensure that EDRs are voluntary. In explaining its request for modification, DaimlerChrysler stated that the NPRM's definition of EDR references the deployable restraint control module for the purpose of determining whether a vehicle is equipped with an EDR. DaimlerChrysler argued that all light vehicles are equipped with such control modules; therefore, the adoption of a definition making such a reference would effectively mandate EDRs for all applicable vehicles, contrary to the agency's stated intent.
Porsche also argued that the NPRM's definition of EDR would effectively require manufacturers to install EDRs. Porsche argued that a vehicle might be capable of recording and storing a few pieces of static freeze frame data in the air bag control unit (i.e., an isolated observation or snapshot of a set of data such as the seat belt status, frontal air bag warning lamp status, etc., triggered by an impact exceeding a defined trigger threshold). Although such systems fall outside the common understanding of EDRs, Porsche argued that this type of recorded data would fall within the proposed EDR definition. Porsche stated that storage of freeze frame data should not, by itself, be a sufficient basis for determining that a vehicle is equipped with an EDR, particularly since such data do not provide information on pre-crash events. Siemens VDO Automotive AG characterized the rule as “semi-compulsory.”
We have carefully considered the arguments presented by the commenters for requiring the installation of EDRs in all subject vehicles.
We are not yet persuaded that it is necessary or appropriate to mandate the installation of EDRs. We believe that the industry's voluntary development and installation of EDRs, combined with the standardization requirements in this rule, will be sufficient to meet the agency's and public's near term needs. Standardized EDR data from the growing population of vehicles with EDRs, collected and compositely analyzed, will enable the agency to investigate crashes more effectively and to analyze safety equipment performance, resulting in improved agency understanding of crash and injury causation. These data will also lay a foundation for advanced crash notification systems.
Further, insofar as achieving those near term goals is concerned, adopting a rule mandating EDR installation would result in an unnecessary cost for automobile manufacturers and consumers. To operate, EDRs need a databus.
As for the agency's longer terms goals related to EDRs, we expect the extent of installation in new vehicles to continue increasing and to reach approximately 85 percent by model year 2010. Based on currently available information, such as that obtained in connection with our NCAP program, the new vehicles lacking an EDR in that model year will be primarily those manufactured either in Germany or Korea. As Korea has expressed interest in the development of an EDR standard under the International Standards Organization, it appears that Korean built vehicles also might eventually be voluntarily equipped with EDRs.
Further, we believe that allowing the current voluntary, gradualist approach to increased installation of EDRs to continue is more appropriate for meeting those longer term goals than mandating an acceleration of further increases in the extent of installation. We are aware that some consumers are concerned about the ownership and use of EDR data. The voluntary approach provides additional time for implementing measures concerning those concerns.
We have considered the comments of Advocates and SISC, asking us to mandate EDRs so that it is possible to gather additional data for safety research. The agency seeks to gather EDR information in a readily usable manner to analyze crashes and the performance of safety equipment as composite information (i.e., to discover statistically significant trends). We
We will monitor future increases in the extent of installation of EDRs and revisit this issue if appropriate.
We do not agree with the comments that our decision to adopt data standardization requirements without also mandating the installation of EDRs will induce manufacturers to remove EDRs from the vehicles in which they are currently installed or to drop plans for installing them in additional vehicles. The fact that approximately two-thirds of new vehicles are already equipped with EDRs is strong evidence of a significant incentive to install these devices. Further, as noted below, the data standardization requirements we are adopting in this final rule are less extensive and thus less costly that the ones we proposed in the NPRM. More specifically, we lowered the number of events and elements to be recorded. Based on our cost estimates (discussed below), we do not believe that adoption of our revised data standardization requirements will increase costs sufficiently to create a countervailing incentive for manufacturers to remove EDRs. We also note that consumer products, such as OnStar®, incorporate EDRs into their services. The consumer appeal of these consumer products strengthens the existing incentive for manufacturers to install EDRs in their vehicles.
We have also considered GM's comment urging us to ban EDR “on/off switches” and the comments of other commenters asking that we require them. This final rule concerns the standardization of EDR data elements and ensuring that downloaded EDR data are available to intended users. We did not propose either requiring or precluding on/off switches in the NPRM. We note, however that on/off switches could limit the benefits provided by EDRs. As with the issue of mandating installation of EDRs, we think it premature to compel action on this issue, and will continue to monitor and assess whether action is warranted in the future.
The NPRM provided a list of required data elements (a minimum set of elements required to be recorded if a vehicle is equipped with an EDR, regardless of whether those elements are presently recorded by the vehicle's EDR) and a list of “if equipped” elements (elements that would be required to be recorded only if the vehicle is equipped with the relevant safety system or sensing capability).
NHTSA received several comments on the proposal's number of required data elements. Several manufacturers commented that the proposal's required number of data elements was excessive; however, manufacturers' comments differed as to which of the data elements should be deleted. Commenters representing highway safety advocacy groups suggested that the number of required elements is insufficient to meet NHTSA's stated goals of improving data compatibility, crash investigation, and safety. Some commenters suggested adding the VIN as a required data element.
GM, DaimlerChrysler, IIHS, and Mitsubishi argued that the NPRM proposed an excessive number of data elements. GM provided a critique of the each of the data elements and recommended a different list of required data elements. GM's position was that the NPRM's data elements go beyond the minimum set of data elements needed by safety researchers and crash reconstructionists. GM argued that the number of required elements in the NPRM could compromise the ability of the vehicle's control modules to perform their primary function of deploying restraint systems. The number of required elements could also inhibit manufacturers from collecting other, more potentially useful data, to the extent that the required elements consume available processing capacity.
Hyundai and Kia offered several comments regarding NHTSA's proposed data elements. First, they requested that, “data capture be limited to events that trigger air bag deployment.” Second, they commented that “engine RPM” and “engine throttle” data serve the same purpose and requested that only one of those data elements be required. Third, Hyundai and Kia commented that the data elements “Ignition cycle, crash” and “Ignition cycle, download” should not be required; Hyundai's and Kia's position is that these data elements do not provide data about the crash event, and that these elements would require additional programming and memory. According to these companies, requiring these data elements would increase costs and necessary lead time.
Delphi recommended that NHTSA limit “the content of event records to those data that are of significant value to crash investigation and safety system performance analysis' in order to reduce the amount of memory that will be required. Delphi stated that each required parameter would consume memory for six instances of that parameter because of the need to hold and compare up to three events in temporary and permanent memory.
Subaru and AIAM argued that the NPRM contained too many data elements, and each provided a recommendation for which data elements the final rule should require. Subaru recommended that NHTSA should re-select and prioritize data elements in order to increase the feasibility of compliance with a final regulation. Specifically, Subaru recommended that NHTSA “omit acceleration direction, tolerance range, and accuracy of G sensors from the requirement or allow significant additional lead time on a phase-in schedule.” AIAM commented that to reduce the number of systems that would require a complete redesign of vehicle electrical architecture, the minimum data set should include only the following data elements: (1) Driver and front passenger belt use; (2) throttle
In contrast to the commenters who suggested that the NPRM contains too many required data elements, Public Citizen and PCIAA encouraged NHTSA to require additional data elements. Public Citizen stated that to maximize the benefits of the EDR rule, NHTSA should standardize (i.e., require) a far more extensive list of EDR data elements. Public Citizen pointed to the Institute of Electrical and Electronics Engineers (IEEE) Project 1616 (“Motor Vehicle Event Data Recorders”), which includes 80 EDR data elements used by different groups. Public Citizen commented that NHTSA did not propose to require many of the “top ten” data elements listed by the NHTSA-sponsored EDR Working Group.
PCIAA commented that the proposed rule focuses too much on restraint systems and not enough on systems to help the driver avoid collisions. PCIAA suggested that NHTSA should require data elements that would track driver inputs and the performance of the steering, suspension, or braking systems. According to PCIAA, the rule should include other equipment such as vehicle lighting or “intelligent vehicle” systems and should address equipment that is likely to be in used in the future, such as stability control systems, radar, cameras, and similar technology to monitor the driving environment.
Nissan, Mr. Fink, Mr. Kast,
Bendix Commercial Vehicle Systems, L.L.C. commented that the following data elements should be included in the minimum requirements: (1) Transmission status (gear selection on automatic transmissions); (2) brake switch status; (3) accelerator (%); (4) engine speed (RPM); (5) date time; (6) engine hours; (7) odometer reading; (8) headlights on/off; (9) turn signal status; (10) cruise control (on/off); (11) ABS fault status; and (12) tire pressure (axle or each wheel or as regulated by NHTSA).
AAA commented that rear seat air bags are being installed with increasing frequency and stated that NHTSA should consider requiring the recording of data elements associated with rear seat air bags in vehicles so equipped (e.g., rear seat occupant presence, size, seating position, and restraint use).
SISC, Children's Hospital of Philadelphia, Delphi, and Public Citizen commented on the NPRM's categorization of data elements as “required for all vehicles equipped with an EDR” (Table I) or “required for vehicles under specified conditions” (Table II) and suggested that we change the categorization of certain data elements. SISC stated that NHTSA should mandate lateral acceleration as part of the required set of data elements. According to SISC, multi-axis accelerometers are becoming less expensive, and both longitudinal and lateral acceleration are essential to determining the true delta-V and the principal direction of force, which are critical elements of general crash investigation, biomechanics research, and the understanding of injury causation. Children's Hospital of Philadelphia made a similar comment, stating lateral acceleration should be a mandatory data element.
Delphi suggested that data elements not normally part of the restraint control system should be moved from the table of data elements required if the vehicle is equipped with an EDR to the table (NPRM's Table II) of elements required under specific conditions (e.g., vehicle indicated speed, engine RPM, engine throttle, service brake status). According to Delphi, this would lower the cost of implementation for many manufacturers.
On the other hand, Public Citizen argued for re-categorizing several data elements that the NPRM proposed to be recorded only under specified conditions (Table II) and instead require them (i.e., place them in Table I). Public Citizen believes that the final rule should require these data elements to be recorded (e.g., seat belt status for the front passenger). Public Citizen's rationale is that many of these elements only require additional sensing capabilities, which are fairly inexpensive in most cases.
NTSB expressed concern that Table I and Table II will result in different data being available from different EDRs. It stated that the rule should require the same information from all EDRs to encourage uniformity of data and standardization of EDR usage. NTSB encouraged NHTSA to develop a comprehensive standardized list of data elements that would apply to all highway vehicles, including heavy vehicles.
Several commenters, including Mr. Kast, Injury Sciences, Public Citizen, and EPIC, recommended requiring some type of date/time stamp and/or VIN information. Mr. Kast and Injury Sciences commented that a date/time stamp should be added to the required elements in order to correlate the recorded data with a crash event. Mr. Kast explained that the linkage is particularly important since low intensity accidents may be recorded. If this information is not required, Injury Sciences urged NHTSA to consider alternatives for linking data to a particular vehicle and accident. Public Citizen stated that a VIN data element would significantly increase the usefulness of EDR data by permitting crosschecks across various NHTSA databases. EPIC commented that the EDR should record the first eleven digits of the VIN, although “the unique serial number portion of the VIN—a personal identifier—should not be collected.” EPIC's rationale is that make, model, and manufacturing origin are important data for crash analysis.
GM and Delphi raised cost issues pertaining to the data elements. GM requested that the final rule expressly state that the specified list of data elements is not intended to limit manufacturers' ability to voluntarily collect and record additional data elements. Delphi suggested that the
Siemens VDO Automotive AG and Bendix commented on the state of technology and our EDR proposal. Siemens VDO Automotive AG commented that the NPRM definitions for data elements should be modified (i.e., made more stringent) to reflect the state of technology already available and in use. Siemens predicted that the changes would not result in significantly higher costs because the standardization and adoption by all manufacturers would lower the costs of production. Bendix suggested that solid state digital storage media and non-volatile storage devices could be used in conjunction with emerging technologies in the area of high-speed data links, which combine data, voice, and video data on a single communications link to record additional types of data.
Nissan and Honda requested clarification on specific technical aspects of our proposal. Nissan stated that instead of recording the engine throttle, we should require recording the accelerator pedal operation. Additionally, Nissan suggested that the rule should permit two alternatives for determining the beginning of an event, as provided in SAE J1698,
TRW Automotive commented that the status of the anti-lock braking system (ABS) is not adequately indicated by the “ABS Activity” data element. TRW suggested that “ABS Warning Lamp (On/Off)” would provide a better indication of the status of the ABS system at the time a crash occurred. TRW Automotive commented that the data attributes for stability control systems should be modified because they do not clearly indicate the status. According to TRW, “off” should indicate that the driver has turned off the system, and an attribute “Not Available” should be added to indicate that the system is in a “not available” state.
We indicated in the NPRM that it was not our intention to require manufacturers to install expensive technological hardware or software to meet our EDR standardization proposal. In the NPRM, we emphasized that vehicle manufactures have voluntarily made significant investments in EDRs and are already recording several data elements that suit our goals. The NPRM explained that our proposal sought to build upon the automotive industry's EDR accomplishments by standardizing the way data elements are captured and recorded. In other words, we considered our proposal to record the most important data elements relevant to crash reconstruction, the analysis of safety equipment performance, and ACN in light of the data already being processed by vehicles.
We envisioned and it was our intent that the proposed EDR standardization requirements could be implemented by vehicle manufacturers at a minimal cost, since vehicle manufacturers had made EDR capability an additional function of a vehicle's air bag control system. We did not intend to require vehicle manufacturers to install equipment, such as additional accelerometers, to comply with the rule. (We estimated, for example, that an additional accelerometer could cost $20 per vehicle.)
Our approach of standardizing the most important data elements at a minimal cost remains the same. However, after carefully considering the comments, we have re-evaluated the number and types of data elements that manufacturers should be required to standardize. We learned from the comments that the frequency, range, accuracy, and precision requirements (discussed subsequently) for many of the data elements we proposed would require an upgrade in sensors, microprocessors, and memory capability that would substantially add to the cost of complying with this rule. This was not our intention. We also learned that it is not current industry practice to record some of the data elements we proposed. In order to remain consistent with our approach of standardizing data at a minimal cost, we have revised the number of required data elements to reduce implementation cost and better reflect current industry practice.
In revising the number and types of data elements to be recorded if a vehicle is equipped with an EDR (i.e., Table I), we deleted five items that we had proposed in the NPRM: “longitudinal acceleration,” “engine RPM,” “frontal air bag deployment level, driver,” “frontal air bag deployment level, right front passenger,” and “time from event 2 to 3.” We added two items: “time, maximum delta-V” and “delta-V, longitudinal.”
We deleted the “engine RPM” from Table I but added it to Table II. “Engine RPM” is somewhat related to “accelerator pedal position.” Accelerator pedal position reflects the driver's input to the engine. Engine RPM indicates the engine's response to that input. We believe that the two data elements are closely related, although distinct. We have reviewed many of GM's EDR crash data sets, and see little value in requiring “engine RPM” at this time. Moving this data element to Table II will reduce memory costs and the amount of data manipulation during pre-crash.
After carefully considering the comments, we have also decided to remove “frontal air bag deployment level, driver” and “frontal air bag deployment level, right front passenger” from the list of required data elements (Table I). These elements would have indicated the deployment level of the driver's and right front seat passenger's air bag system. After further consideration, we believe that the same information we anticipated gathering from these deleted data elements can be ascertained using other data elements: “frontal air bag deployment, time to deploy, in the case of a single stage air bag, or time to first stage deployment, in the case of a multi-stage air bag, driver” (and the right front passenger equivalent) from Table I and “frontal air bag deployment time to n
In revising the number and types of data elements to be recorded under specified conditions (Table II), we added four items that did not appear in the NPRM: “delta-v, lateral,” “maximum delta-V, lateral,” “time to maximum delta-V, lateral,” and “time to maximum, delta-V, resultant.”
After considering the comments, we have decided to retain a number of the data elements that some manufacturers recommended that we delete, including “occupant size classification” and “frontal air bag suppression switch status.” Occupant size classification is important in determining whether the advanced restraint systems are working properly by drawing a comparison between the occupant and the safety system's classification. We believe that this is vital to that purpose of obtaining EDR data for the analysis of safety equipment performance. Frontal air bag on/off switch status is important in cases where the right front passenger air bag does not deploy. There is a possibility in some vehicles with no back seats that the air bag was turned-off at the time of the crash. It is critical that the EDR capture this evidence to enable an evaluation of whether advanced restraint systems functioned properly.
We have also decided to retain “ignition cycle, crash” and “ignition cycle, download.” These two data elements provide a method to identify whether the data stored in the EDR is related to a crash under investigation or to a previous crash.
As indicated above, several commenters recommended recording other data elements that we did not propose to record (e.g., roll rate, yaw rate, gear position, number of downloads after event, passenger air bag disable indicator status, status of lamps and signals, engine hours, odometer reading, cruise control, ABS fault status, “intelligent vehicle systems,” steering input, and tire pressure). We have carefully considered these recommendations. We emphasize this final rule standardizes and requires (Table I) the most important data elements that are essential to crash reconstruction, the analysis of safety equipment performance, and ACN. We have decided not to require the recording of these additional data elements. We believe that recording these additional data elements, which are currently of lesser value for our stated purposes, would not only result in significantly higher costs but would also risk overburdening the microprocessing and memory capabilities of EDRs and increase potential record times. This increases the risk of system failure. We may revisit the distribution of data elements between Table I and Table II as technology advances, costs decrease, and the ability to record these data elements become less risky. We may also consider expanding Table II in the future as manufacturers expand the capability of EDRs and add additional sensors to motor vehicles that could be beneficial to motor vehicle safety.
We have carefully considered comments from Mr. Kast, Injury Sciences, Public Citizen, and EPIC that we should include crash location, date/time stamp and VIN as data elements. We believe that the data elements related to crash location, date, time, and VIN are not essential to meet our goals of crash investigation and safety equipment performance. As we have stated earlier, we are currently standardizing only data elements that are important for composite analysis. We have a need to gather information about specific crashes only as it is related to general trends that we may discover with the information we gather. Therefore, we presently find it unnecessary to require manufacturers to collect or to standardize this type of data.
After considering Public Citizen's comments, we disagree with the argument that the final rule must include all elements listed in the IEEE 1616 MVEDR Standard report and the “top ten” items presented in the NHTSA-sponsored EDR working group report. The IEEE 1616 report, which lists 80 data elements, is a compilation of the data elements that are available/recordable at present, or expected to be in the future, for various vehicles. In other words, the data elements listed in the IEEE 1616 report are a compilation of all available data elements (i.e., a “data dictionary”), and not a recommended set of data elements. We do not believe it would be appropriate at this time to require automobile manufacturers to record all of the data elements contained in the IEEE 1616 report. Doing so would substantially extend the number of standardized data elements, resulting in redundancy and the standardization of many data elements that are presently unrelated to the purposes of this rulemaking.
Public Citizen also contends that we have not included many of the data elements listed in the “top ten” list found in the NHTSA-sponsored EDR working group report. As we stated above, this group was sponsored by NHTSA; however, we have never adopted its findings as our own. However, we note that the final rule does include standardization protocols for many of the same data elements that are listed in the “top ten” list, including longitudinal/lateral acceleration, seat belt status, pre-crash data (e.g., steering wheel angle, brake use, vehicle speed), vehicle roll angle, ABS, stability control, and air bag data.
We have considered Delphi's recommendation that data elements not pertinent to restraint control and/or crash reconstruction should be moved to Table II. Our NPRM was based on this premise; that is, Table I contains the data elements critical to crash reconstruction, advanced restraint operation, and enabling ACN. We continue to support our approach for Table I data elements. However, we have modified Table I slightly by: (1) Moving the “engine RPM” data element to Table II, because it can generally be inferred from accelerator pedal position; (2) substituting delta-V-related crash severity measurements for acceleration measurements to reduce complication and cost of EDRs, and (3) dropping those data elements related to a third event, because we believe two events will capture most crashes with multiple, non-trivial events.
NTSB expressed its desire for recording accelerator/brake pedal positions in certain special crashes. The revised Table I retains both of these data elements.
We have also considered Public Citizen's arguments that several data elements currently listed in Table II could be moved to Table I (required) for minimal to no cost (e.g., safety belt status, front passenger). The costs associated with placing particular data elements in Table I is not the sole factor in determining whether to include that data element in the core set listed in Table I. To minimize the risk of data loss, we must also consider the current capabilities of microprocessors to process the information and the availability of memory storage capacity. The longer or larger the data file, the more complicated it is to record it successfully during a crash. We believe our Table I required list and our Table II (standard formats for data elements recorded by manufacturers) provide a reasonable balance of these concerns and priorities. We may reevaluate the number and types of data elements in the future as EDRs, memory, and microprocessing continue to develop. In the meantime, we believe that it is appropriate to keep “safety belt status, right front passenger” and other similar
We note that the data elements in Table II must be standardized if recorded. Therefore, we believe that manufacturers that are currently recording these data elements will be able to standardize at a minimal cost.
We have considered NTSB's comment encouraging uniformity in the number and types of data elements recorded for all EDRs. As noted above, we believe this final rule standardizes a core set of data elements that will be useful for crash reconstruction, the analysis of safety equipment performance, and the development of ACN. Table I does standardize a core set of data elements among all vehicles equipped with an EDR. However, we recognize that vehicle manufacturers are in different stages of technological development with their EDRs. Some manufacturers have made greater strides in the development of EDRs and the number of recorded data elements while others have been slower to evolve. We developed Table II to standardize data elements that are currently recorded by some manufacturers, but not others.
NTSB commented that they were concerned that our approach of a minimum data set (Table I) combined with an optional data set (Table II) would result in different vehicles recording different data elements. This regulation establishes a minimum data set for vehicles that are equipped with an EDR. Manufacturers are permitted to record other additional data elements, as they believe fit the needs of their vehicles and equipment installed on their vehicles. We have taken an approach that will: (1) Ensure that all vehicles equipped with an EDR will have a minimum set of data, (2) provide standardization for additional priority data elements, and (3) allow manufacturers to obtain other additional data as they deem appropriate to meet their needs. As EDRs evolve, NHTSA may reevaluate this approach in future rulemakings.
We also want to provide manufacturers with the flexibility to improve their EDR designs and record a diverse group of data elements so that we may continue to study the usefulness of various data elements in terms of safety. We view EDRs as a new technology that has not seen much maturation outside of its initial inception as part of the air bag module. This rulemaking, we believe, is a positive step toward guiding the development of EDR technology for vehicle safety purposes by both requiring a standardized set of data elements that we believe will be useful while at the same time providing manufacturers with the ability to continue to evolve the EDR.
Likewise, we do not agree with IIHS that the number of data elements we have chosen to standardize will provide incentive for manufacturers to delay or eliminate safety features. Our cost estimates indicate that our standardization requirements, as revised in this final rule, will not result in significant costs to manufacturers. As stated above, we have narrowed the recording requirements for EDRs. Also, we believe that our decision to standardize a core set of data elements and requiring standardization of data elements “if recorded” will allow flexibility for manufacturers to research and develop EDRs.
We have considered Hyundai's and Kia's argument that we should limit the recording of data to events that trigger air bag deployment. We do not believe that limiting our data to events that trigger air bag deployment would be sufficient for our purposes. We want to know about events that should have deployed air bags, but did not do so, indicating the possible existence of a defect. Further, we seek to gather data not only to analyze the performance of air bags, but also to analyze the performance of other safety equipment, such as seat belts. We also seek to gather data helpful for crash reconstruction. We believe that this data can be standardized and recorded without significant cost. Further, we anticipate that development of e-911 and ACN systems may lead vehicle manufacturers to incorporate additional elements besides air bag deployment; such elements may provide information to EMS regarding other crash modes, such as side impact and rollover, as sensor technologies advance and their costs decline.
We do not agree with AIAM that our final rule will require a complete redesign of vehicle electrical architecture if we do not reduce the minimum data set to the eight elements it proposes. As discussed in the costs section, we anticipate negligible redesign to the electrical architecture of vehicles as a result of our final rule. Additionally, we note that our new Table II is similar to AIAM's recommendation. Our Table II includes ABS engaged/not engaged and right front passenger belt use.
Nissan requested clarification about the “complete file recorded” data element, asking whether the “yes” value indicates that the EDR functioned the whole time or whether the data set is complete. A complete record is a record that ends normally, regardless of the amount of data. An incomplete record is one that ends abnormally. For example, a complete value with “yes” indication would include a scenario where all data elements were captured successfully and recorded to memory or where some elements were not captured because of device failure but the full record was recorded to memory. Examples of when there is an incomplete record is where all data was captured successfully, but the record function interrupted and the file is incomplete, or in the case of a power or system failure, there is no data captured, so there is no value.
TRW commented that the data element “ABS Activity” does not adequately indicate the status of the ABS system. In the NPRM, we intended the word “status” to mean that the ABS was actively controlling the brake forces, not whether the system status was operational. We would expect “on” to mean that the vehicle's ABS was actively controlling the vehicle brakes. Conversely, we would expect “off” to be used at all other times. For example, if a person is stopping and presses the brakes moderately in normal driving conditions, then we would expect the service brake operation to indicate “on.” If driver uses hard braking, activating the ABS, then the ABS activity would indicate “on” for that time period. The “service brake” data element would continue to read “on” during periods of ABS activity.
TRW also commented that the data attributes for stability control systems should be modified because they do not clearly indicate the status. We proposed three states for stability control: “on,” “off,” and “engaged.” “On” and “off” are intended to be status of the vehicle's stability control on/off switch. We intend “engaged” to be used when the stability control is actively controlling the vehicle. Some vehicles do not have on/off switches for stability control, and the systems remains “on.” In such a case, the indicator would read, depending on the circumstances, either “yes” or “engaged.”
We also made a modification to the “condition or requirement” provision for most of the data elements in Table II. In the NPRM, we used the phrase “if equipped.” We proposed the phrase “if equipped” because we envisioned requiring manufacturers to record the data elements in Table II if the vehicle is equipped with the relevant safety
We also believe that the change effectuates our goal of providing standardization for the data elements listed in Table II without substantial cost or risking EDR malfunction. We agree with the commenters that recording these data elements, such as acceleration, at the frequency and intervals we proposed, would require additional memory—adding to the cost of implementation. Recording these data elements in non-volatile memory would have also increased the risk of not capturing a complete crash record. A more complete discussion of the risks associated with recording large crash records is discussed below.
In the NPRM, we proposed that Table I (the minimum data set) include the crash severity data elements “longitudinal acceleration” and “maximum delta-V.” We selected longitudinal acceleration to provide crash severity information. Longitudinal acceleration is a common data element collected in engineering studies and crash tests to determine crash severity and the shape of the crash pulse in frontal and rear crashes. It also provides information regarding the maximum acceleration level. Therefore, we believed that it was appropriate to standardize longitudinal acceleration.
We also proposed to include maximum delta-V in the minimum data set. We proposed to include maximum delta-V in the minimum data set because it quantifies the severity of the crash in the vehicle's memory. We had proposed that the absolute value of maximum delta-V be used, if the vehicle experienced a second crash, to determine whether the data in the EDR's memory should be replaced with the subsequent (or second) crash information. We proposed that only subsequent crashes with higher maximum delta-V must be recorded in the vehicle's memory.
GM, Daimler Chrysler, Ford, Honda, and Toyota specifically requested that we replace the longitudinal acceleration and lateral acceleration data elements, as proposed in the NPRM, with longitudinal/lateral delta-V elements. All suggested that delta-V is a better indicator of crash severity than acceleration. They stated that while longitudinal/lateral acceleration is currently recorded by some manufacturers, acceleration data is not currently used or needed for safety-related crash analysis and reconstruction purposes. The data is intended for internal use, specifically to understand deployment algorithms. DaimlerChrysler explained that because of this very specific use of acceleration data, the time duration recorded was never intended to capture a complete crash and is usually too volatile for use in crash investigation. GM made a similar comment, stating that delta-V is preferred over acceleration in analyzing crash reconstruction because acceleration data, even after filtering, is typically too sporadic.
Honda also recommended replacing the proposed elements for longitudinal, lateral, and normal accelerations with delta-V, coupled with the angle or direction of delta-V, to improve the overall understanding of a crash event.
Delta-V means, for vehicles with only longitudinal acceleration measurement capability, the change in velocity of the vehicle along the longitudinal axis, and for vehicles with longitudinal, lateral and/or normal acceleration measurement capability, the magnitude and direction of the change in velocity of the resultant of the longitudinal, lateral and/or normal vehicle velocity time-histories, within the time interval starting from the time zero and ending 500 ms after time zero.
Hyundai and Kia suggested that the “lateral acceleration” and “normal acceleration” data elements should not be required even if the vehicle is equipped with sensors. Hyundai and Kia stated that their tests have shown that the data acquired may be misleading due to external noise transmitted from body structure damage.
After reviewing the comments, we have decided to adopt modified requirements for the collection and standardization of data associated with the acceleration and delta-V data elements. In the final rule, the acceleration data elements (longitudinal, lateral, and normal) will appear in Table II. In other words, the final rule will standardize acceleration data elements if manufacturers are recording the acceleration data elements. In lieu of longitudinal acceleration, the final rule focuses on recording delta-V as the crash severity measure.
We have modified data elements relating to delta-V. In the final rule, Table I includes the data element “delta-V, longitudinal,” “maximum delta-V, longitudinal,” and “time, maximum delta-V.” Delta-V longitudinal will provide for the tracking of longitudinal delta-V time series data, replacing our proposal to record the longitudinal acceleration time series. We are also adding a new data element to track the time associated with the maximum longitudinal delta-V.
We believe that delta-V is sufficient for our objectives. NHTSA has used delta-V as a measure of crash severity for many years. Delta-V is considered an essential part of crash investigation. For several decades, NHTSA's crash investigation teams have gathered information to estimate delta-V using computer programs. The EDR data will assist these researchers because they will be able to obtain a direct measure of delta-V.
There are significant cost differences between delta-V and acceleration, notwithstanding that both of these time series measurements are typically based on accelerometer measurements. In current practice, acceleration time series data are collected every 2 milliseconds for some EDRs while delta-V time series data are collected every 10 milliseconds
In addition to cost, we have considered the comments that address the risk of data loss associated with recording a larger file (i.e., more data elements or data elements producing larger volumes of data, such as longitudinal acceleration). In explaining the risk of data loss, we first explain how the EDR records data. An EDR must continuously capture pre-crash data, and it must also capture crash data to determine if the trigger threshold has been met. If we required acceleration data, EDRs would be required to capture up to 150 milliseconds of data, which equates to 76 data points. However, if we required delta-V data, EDRs would only need to collect about 26 data points, which would correspondingly reduce the amount of data to capture this element. Once the threshold has been met or exceeded, the remainder of the data set must be captured and then recorded. The actual recording operation takes place after the crash event. Severe crashes often interrupt (or destroy) the normal operation of the vehicle's electrical system. Interruption of the vehicle's electrical system may compromise the ability of the EDR to complete capturing and then record data. In the state of current technology, there is a much better chance of capturing and recording a complete file that is smaller rather than larger. Accordingly, we believe it is desirable to keep the file size (i.e., data elements/volume of data) to a minimum. As the state of technology improves and the cost of microprocessing and memory declines, we foresee the risk of data loss to pose less of a concern.
In deciding to include delta-V in the minimum data set (Table I), we also considered the location of accelerometers. If the accelerometer is located in an area that has some small local movements (often called ringing) as a result of the crash, its acceleration profile will not match that of a rigidly attached accelerometer, producing different maximum deceleration measurements that would not be usable to make assessments for a vehicle's frontal crash stiffness—one of the measurements we were considering when we proposed acceleration as a required element. Our research indicates that, while acceleration profiles are not in good agreement between the EDR's accelerometer and a reference accelerometer, the delta-V measurements in such conditions are reliable.
We have considered the comments asking us to include all directions of acceleration (x, y, and z) in our minimum data set. We believe that such information would be informative; however, we must balance our need against the cost and increased complications with expanding the minimum data set, as discussed above.
The final rule does provide standardization protocols for the acceleration data elements if the manufacturer records them (Table II). Our decision to move longitudinal acceleration from Table I to Table II, as discussed above, rests on our belief that delta-V is sufficient for our present purposes, especially in light of the costs and risk of data loss that we face if we were to require the recording of longitudinal acceleration. We decided to retain lateral acceleration as a data element to be standardized if recorded in recognition that it is a data element that can provide useful information for crash reconstruction. We also expect lateral acceleration to become more useful as our proposed upgrade to FMVSS No. 214 evolves. Moreover, costs and the risk of data loss pose less of a concern on those manufacturers that have invested in their EDR programs to the point where they are recording longitudinal and lateral acceleration. We expect costs associated with merely standardizing the format of this data already recorded to be minimal.
In the NPRM, we proposed that the number of crash events be recorded as a data element, which is listed in Table 1 of the NPRM as “Multi-event, number of events (1, 2, 3).” The proposed data element records the number of crash events (up to three events), with a maximum of 5 seconds as the proposed gap between connected events of a crash. Industry commenters disagreed with the NPRM's requirement to record up to three events—mostly because they believe such a requirement is technologically complex.
According to GM, NHTSA's proposal did not provide a comprehensive and objective regulatory requirement with respect to multiple-events. GM stated that the final rule should not require EDRs to record data for multiple-impact crashes, but instead should only focus on single-impact events. GM also argued that a regulatory requirement that focuses on recording single events would achieve NHTSA's regulatory objectives because most crashes involve single events. GM stated its belief that the multiple-event recording requirement is excessive in part because of the amount of buffering and data processing required to meet a regulatory requirement to record multiple-events could compromise the primary purpose of the module to properly deploy restraint systems and prevent crash injuries. GM urged modification of the NPRM's definition of “event” to reflect this change.
Honda commented that the final rule should clarify an inconsistency in the NPRM related to recording of events in multi-event crashes where the air bag deploys. Honda stated that the NPRM provides that in a situation where the time after a “trigger threshold event” is less than 500 ms, subsequent “event” data would not be captured and recorded in a multi-event crash, even if there is air bag deployment (see definitions in Sec. 563.5). According to Honda, this conflicts with the intent of the data capture provisions in Sec. 563.9(d) of the NPRM. Therefore, Honda recommended that the final rule require, regardless of the time and/or recording status of any “trigger event” as defined in Sec. 563.5, that when air bags deploy, the “event” data should be recorded. Honda's rationale is that such a requirement will help ensure that EDR data will provide a better understanding of the circumstances of crashes that are severe enough to deploy an air bag.
Nissan commented that the three-event requirement is unnecessary and would be expensive and technologically complex to implement. Nissan suggested that the elements related to the three-event requirement be dropped. However, if that requirement is retained, Nissan stated that NHTSA would need to clarify what constitutes a separate event and what combinations of events need to be recorded.
AIAM commented that the recording of three events in a multi-event crash is not current industry practice. Instead that organization suggested that all recording stop after an event resulting in an air bag deployment. According to AIAM, recording three events, as specified in the NPRM, would be “a major task” and would require
Hyundai and Kia expressed concern that the accuracy of acceleration data captured after the first event is uncertain (if a multi-event crash involves two or more events in the same direction) because of the technical limitations of acceleration sensors currently available in the market for air bag systems. Based on this uncertainty, Hyundai and Kia recommended that we not require accurate acceleration data from an event that occurs after the air bag is deployed if this event occurs in the same direction as the previous event. Additionally, Hyundai and Kia suggested that “recording time of longitudinal acceleration * * * be reduced from ‘−0.1 to 0.5 seconds’ to ‘−0.1 to 0.3’ seconds,” arguing that this change would prevent recording overlap with other events and would reduce the implementation cost and time.
Advocates supported the NPRM's proposal to record multi-event crashes, capturing up to three events, because of the high percentage of multiple-event crashes. However, Advocates asked us to reconsider whether a five second interval from the first triggering event would be sufficient to capture all or most of multi-event crashes.
In light of the comments submitted on the multiple-event recording data element, we have decided to reduce the number of events to be recorded in a crash from three to two. We also decided to change the logic for capturing up to 2 events by limiting the capture to a single event in the event of a crash where an inflatable restraint is deployed. As a result, we have modified the data element to reflect up to 2 events in a crash, dropped the data element that recorded the time associated with event 3, and retained the data element that records the time between event 1 and event 2.
We believe that reducing the multiple-event recording requirement to two events is appropriate considering the number of crashes that occur with two events or less. We believe the revision will also alleviate the additional cost and complications associated with recording up to 3 events. The following discussion explains our approach and rationale in further detail.
Because we have, in effect, redefined an “event” as a change in delta-V that equals or exceeds 8 km/h (5 mph) in a 150 ms period, we needed to update our analysis in terms of what events are considered to be non-trivial, as would justify capture and recording by the EDR (i.e., events meeting the trigger threshold). In the NPRM, we proposed that EDRs must be capable of recording up to three events. In light of these changes, the agency re-examined the issue of multi-event recording in developing this final rule.
NHTSA conducted an analysis using 2002 and 2003 National Automotive Sampling System/Crashworthiness Data System (NASS/CDS) data to determine the distribution of vehicles in multi-event crashes. This analysis provides a weighted annual estimate of the number of vehicles in crashes involving multiple events. The data from these two years reveal that approximately 3.2 million light vehicles in the United States were towed each year. Of these vehicles, about 2.25 million are involved in single-event crashes, and 0.85 million are involved in multi-event crashes. (The remaining 0.1 million had no event, suffered damage resulting strictly from rollover, or experienced some other non-collision event.)
Our analysis revealed that delta-V data are missing for at least one event for many of the 0.85 million vehicles involved in multi-event crashes. To avoid underestimating the frequency of vehicles involved in multi-event crashes, the analysis accounted for unknown delta-V data by adjusting the raw weighted estimate by the ratio of the number of relevant crashes to the number of crashes without any missing delta-V data. We assumed that the vehicles in multi-event crashes with unknown delta-V event data have crash severities similar to those in known delta-V crash events. Of the 0.85 million vehicles in multi-event crashes annually, 175,000 vehicles have delta-V data for all events, while the remaining 684,000 vehicles have at least one event with missing delta-V data. The total annual estimate of vehicles in multi-event crashes where at least two of the events have non-trivial delta-Vs is 587,000. The other 2.61 million vehicles were involved in crashes that had no more than one non-trivial impact.
We have further estimated the distribution of vehicles experiencing exactly two non-trivial events, as compared to those experiencing three or more non-trivial events. (Again, this analysis uses the distributions established from the vehicles with known delta-V data to forecast the annual estimate.) Our analysis indicates that approximately 580,000 vehicles per year are involved in multi-event crashes with exactly two non-trivial events. The annual estimate of vehicles involved in crashes with three or more events is 6,000.
In the final rule, we have also made a change in the data capture and recording strategy, and further allowed an exception to the multiple-event requirement. For each crash that has an event that exceeds the trigger threshold, the EDR records data, replacing data from the previously recorded event(s), up to two events. Typically, up to two events will be recorded. In those crashes where an air bag is deployed during one of the two events of the crash, only the event associated with the air bag deployment must be recorded. This exception is intended to ensure that a vehicle's microprocessors do not become overburdened during the critical period when the vehicle is deciding whether to deploy the air bag. (We note that while not required to do so, an EDR may capture multi-event data during a crash that involves an air bag deployment.)
This exception in the capture/recording strategy may reduce the number of multi-event recordings (i.e., by the number associated with air bag deployments). Our analysis indicates that about 58 percent of the time when a vehicle is involved in exactly two non-trivial events, the air bags are not involved. (The ratio is about the same for vehicles experiencing one non-trivial event, and it is somewhat lower for vehicles experiencing three or more non-trivial events.) This estimate is based on frontal air bag deployment data. Factoring in these vehicles, the annual estimate of vehicles involved in crashes with two or more non-trivial events for which the EDR would need to capture and record data is reduced under the final rule, taking into account the air bag deployment crashes. We estimate that annually, about 340,000 vehicles would be involved in recordable non-air bag-deployment crashes with two or more non-trivial events.
For these reasons, NHTSA has decided to maintain the multi-event recording requirement in the final rule, but to reduce the number of events from three to two.
Our modification from recording three events to two events will significantly reduce the amount of memory required, thereby addressing commenters concerns about memory and the multiple-event recording requirement. With regard to Hyundai's and Kia's concerns about the accuracy of acceleration and recording time, we believe that this issue is no longer relevant since we are no longer including acceleration in the minimum set of required data elements.
In response to the comments asking us to clarify the multiple-event requirements, we will briefly discuss multiple-event recording. An event is defined as an impact or other physical
If the first event is the deployment of an inflatable restraint, these data are recorded to memory and the file is locked. No further analyses (
First, no subsequent event occurs. In this case, the first event ends at 300 ms after time zero.
Second, a subsequent event occurs without an air bag deployment. In this case, the first event ends at 300 ms and within 5 seconds of time zero (event 1) another event is detected. These data are then captured and recorded in a separate file, resulting in a two-event recording.
Third, a subsequent event occurs where the second trigger is detected during the first event, that is, during the 300 ms data collection period of the first event. It is possible that a second impact in a multi-impact crash could occur while the first event is still being captured and recorded. In this case, the time between events could be less than 300 ms. This could occur in cases where the first event triggered quickly, such that the delta-V threshold (5 mph) was exceeded in just a few milliseconds, but it is also possible that it could occur anytime a subsequent time zero is detected before the end of the first event. In these cases, the second event would start the detection of the second trigger. It is the agency's intent that, in these cases, the EDR capture separate events and not different portions of a single event. Therefore, a method is needed to establish the end of the first event, so the agency has turned to SAE J1698-1,
Fourth, a subsequent event occurs with air bag deployment in cases where there is a pre-event (meets trigger threshold of delta-V greater than 5 mph) without an air bag deployment. The file associated with the air bag must be recorded and locked. The pre-air bag event may be recorded, but it is not necessary. We do not want the pre-crash event to affect the decision-making of the microprocessor, which has the primary function of analyzing the crash and properly deploying the air bags.
The NPRM specified sampling rates and recording intervals for data elements in order to standardize EDR data across the entire spectrum of new makes and models of light vehicles. NHTSA received comments ranging from general concerns about the frequency of the rates and intervals to detailed comments concerning sampling rates and recording intervals.
GM, Ford, DaimlerChrysler, and Toyota commented that the sampling rates and durations proposed in the NPRM are excessive in that the large number of data elements and prolonged recording time at a very high frequency rate will require memory storage capacity 5-10 times greater than the current memory capacity provided by manufacturers that have installed EDRs. These manufacturers further commented that recording data in the manner specified in the NPRM will increase the workload for the processor, which would most likely require an upgrade for the microprocessor. These system upgrades would add to the cost of complying with the data requirements.
To address the memory storage capacity and microprocessor issues, GM, Ford, DaimlerChrysler, and Toyota recommended deleting several elements, as mentioned above, and provided alternative recording intervals/times and sample rates for specific data elements. In some instances, the alternative recording intervals/times and sample rates were suggested because their field experience shows no benefit to an accident reconstructionist for the additional recording time.
Other commenters suggested technical changes to the recording times/intervals and sample rates for other reasons. Hyundai and Kia requested that NHTSA perform a cost/benefit analysis for the data elements with recording intervals from 150 ms to 500 ms after an event. They see little degradation in the quality of data captured with the shorter time period while the costs of implementation would be considerably higher with the 500 ms requirement.
Delphi recommended that NHTSA change the recording period for all acceleration data from 500 ms after an event to only 200 ms after an event. Delphi recommended that NHTSA make the other related changes necessary to reflect this change in recording period (e.g., allowing the recorder to retrigger after 200 ms instead of after 500 ms).
Honda recommended changing the “vehicle roll angle” measurement time interval from “−1.0 to 6.0 sec” to “−1.0 to 0.5 sec.” Honda's rationale is that because the proposed 563.9(a) specified that the EDR must collect data for an event starting at time zero and ending 500 ms later, the interval for vehicle roll angle must be adjusted to the required measurement time of 0.5 sec of a multi-crash event. Honda also stated that the time of air bag deployment should be recorded during 0 to 500 ms to adjust to the acceleration measurement time. Honda commented that an air bag deployment event cannot be recorded separately while the acceleration after a trigger event is being recorded.
While many automakers advocated for reducing the period of post-crash recording, some advocacy groups, including Public Citizen, suggested the opposite. Public Citizen stated that NHTSA should require a longer period of post-crash recording once the trigger threshold is met. Public Citizen's rationale is that the NPRM's current time limit (0.5 second) would not record most data from rollover crashes (which typically last several seconds) or important post-crash information for non-rollover crashes. That organization also urged NHTSA to modify the “safety belt status” data element to record from one second prior to an event to one second after an event. Public Citizen reasoned that this timing would allow crash investigators to determine whether the belt failed during a crash or whether the occupant intentionally unbuckled it after a crash.
Advocates offered no specific technical comments for the EDR recording times and sampling rates. However, Advocates commented that the time durations must be sufficient to record the full event and provide adequate data, especially in rollover crashes. Advocates did acknowledge that there may be technological impediments or prohibitive costs to capturing data for the entire duration of full crash events. On the other hand,
After carefully considering the comments, we have modified the recording intervals for a number of data elements. We made three basic modifications: (1) for the delta-V and acceleration data elements, we have changed the recording time from −0.1 to 500 ms, as proposed, to 0 to 250 ms; (2) we changed the recording time from −8.0 to 0 sec, as proposed, to −5.0 to 0 sec for the following data elements: “speed, vehicle indicated,” “engine throttle, % full,” “service brake, on/off,” “engine, rpm,” “ABS activity,” “stability control,” and “steering input'; (3) we changed the recording time for “vehicle roll angle” from −1.0 to 6 sec, as proposed, to −1.0 to 0.5 sec. Data sample rates in the final rule are unchanged from our proposal.
Regarding the first modification, we changed the recording time for the delta-V and acceleration elements based on the comments. We agree with the commenters that recording these data elements for 500 ms challenges the microprocessing system, raising the risk of losing a complete crash record. We also believe that a lesser recording time would still be sufficient for our purposes. Further research conducted after our proposal indicates that the maximum delta-V will be reported 95% percent of the time with a recording time of 250 ms.
We also reduced the recording time for several data elements from −8.0 to 0 seconds to −5.0 to 0 seconds. We believe that this modification will further lessen the amount of data written to memory by the EDR and reduce the workload for the microprocessor. We do not believe that, for our purposes, the quality of data will significantly be reduced by changing the recording time.
We have considered the comments concerning the recording interval for “vehicle roll angle.” In the NPRM, we proposed a recording interval from −1.0 to 6.0 seconds to allow for sufficient time to monitor the vehicle's roll angle after the crash event. We reasoned that recording up to 6 seconds after the crash event could be necessary because in cases where a frontal crash occurs, the vehicle might continue along some path for a second or more before it veers off the road and possibly overturns. We also considered SAE J1698-1, which classifies vehicle roll angle to be a high frequency data type with a recording interval from −300 ms up to 750 ms, and IEEE P1616, which specifies that “roll rate” and “rollover” data elements should be collected between −8 to 5 seconds.
After carefully considering the comments concerning “vehicle roll angle,” we have modified the final rule by removing the specified recording interval for “vehicle roll angle.” We encourage vehicle manufacturers to use SAE J1698-1 and IEEE P1616 as a guideline for recording this data element. However, we have not included a specific recording interval in the final rule. We are providing flexibility to the automobile manufacturers that choose to record this data element. If we required a longer recording interval, it is possible that the costs would discourage automobile manufacturers from recording the data element. On the other hand, if we specified a shorter recording interval, we may not be provided with sufficient data for many crashes with subsequent overturns.
The NPRM included a proposed section 563.8, which would require that the data elements listed in Tables I and II of the NPRM, be recorded in “accordance with the range, accuracy, precision
GM believes that these parameters are beyond what is currently utilized in state-of-the-art EDRs to detect crashes, make deployment decisions, and record crash severity data, and GM argued that such provisions are not necessary to achieve the rule's safety benefits. DaimlerChrysler, Ford and Toyota provided different reasoning to reach the same conclusion as GM. They stated that NHTSA intended to use present design and performance capabilities of existing sensors, rather than to set new design and performance requirements. However, the current specification in paragraph 563.8 would run counter to that intent. Thus, DaimlerChrysler, Ford, and Toyota recommended that the range, accuracy, precision, and filter class be determined by the manufacturer for optimal restraint system performance, rather than EDR performance.
Nissan, Mitsubishi, and ATA suggested that the final rule use the SAE J1698 resolution attribute instead of requiring specific levels of accuracy and precision. Nissan submitted a comment similar to other automakers, stating that the accuracy and precision standards do not correspond with current industry practice. If these accuracy and precision standards are retained, Nissan suggested that NHTSA should revise these standards to reflect present sensor performance specifications of each system feeding the EDR. In addition to Nissan, Mitsubishi requested that NHTSA consider SAE J1698 for the common output format for event data. Mitsubishi stated that many automobile manufacturers participated in creation of this standard to specify optimal standard output formats. Similarly, the ATA commented that it supports the use of standards developed by the SAE. As for filtering, Nissan questioned the rationale for requiring data to be filtered in accordance with SAE J211-1 before recording, instead of permitting filtering after data retrieval.
Mr. Kast commented that, based on his studies of EDR data, some of the data elements are not recorded at the necessary resolution, accuracy, or duration to be of use (i.e., brake lights, acceleration, change of speed (computed delta-V), speed-vehicle indicated). He included a technical discussion of each element and the parameters necessary to acquire useful data.
The ATA commented that data reliability must be assured. Specifically, ATA is concerned that inaccurate or erroneous data could result in incorrect assessments of the causes of accidents and of liability. ATA indicated that NHTSA should validate the technological ability to meet the
Several automobile manufacturers stated that the NPRM's required range and precision for accelerometers exceeds industry standards and are not currently commercially available. GM stated that the NPRM's requirements would have the effect of doubling the range and that increasing the accuracy would add significant costs not comprehended in the agency's cost estimates. GM currently utilizes ±50 G accelerometers with an 8% accuracy. Ford, DaimlerChrysler, and Toyota also stated that accelerometers, as proposed, are not the industry norm, are not commercially available, and would increase the cost of compliance.
Honda stated that the accuracy of mass-produced accelerometers used in motor vehicles can be near ±10%. Honda requested that the final rule permit use of current G-sensors, which have ranges of 30 G to 50 G instead of 100 G. Honda argued that the NPRM had suggested these types of added costs were to be avoided. Honda also sought clarification as to whether ” * * * it is correct to say that the accuracy in Table III means only the
Delphi made similar comments, stating that the NPRM's range and precision parameters for the longitudinal and lateral acceleration data elements are “substantially different than [those] typically chosen for most crash sensing systems today.” It stated that it would require manufacturers to change existing systems, potentially resulting in “sub-optimized system performance,” to add separate sensors, resulting in increased costs, or require manufacturers to choose not to install an EDR. Delphi recommended that the normal acceleration element should not have fixed parameters for range, accuracy, precision, and sample rate. Instead, Delphi suggested that the value of those parameters should be reported as elements of the data record.
Delphi commented that the accuracy requirements for accelerometers should allow a margin for sources of error attributable to other factors other than the accelerometers (e.g., alignment tolerances between the axes of the accelerometer and the vehicle). Delphi recommended that the accuracy requirement for longitudinal and lateral acceleration should be no less than +/−6 percent. Delphi recommended minimum limits of +/−50 G and 1 G be placed on the range and precision parameters for the longitudinal and lateral acceleration data elements, respectively and that the available range and precision of the sensors be reported as data elements.
After carefully considering the comments, we have made a number of modifications to the range and accuracy requirements for the acceleration data elements. For these data elements, we proposed a range of “100 G to +100 G and an accuracy of +/−1 G. In the final rule, the range and accuracy for the acceleration data elements is “50 G to +50 G with an accuracy of +/−5 percent. Based on our research
We have considered the recommendation off Mitsubishi and ATA that the final rule should use the SAE J1698 resolution attribute instead of requiring specific levels of accuracy and precision. After evaluating SAE J1698, we have concluded that the values in our proposal are nearly identical to or are less stringent than those found in SAE J1698. Thus, if an original equipment manufacturer were to use the SAE J1698 data resolution guidelines, they would be in compliance with the requirements of Table III.
In the NPRM, we proposed requirements for EDR data retrieval (i.e., post-crash access to stored data). Under the NPRM's regulatory text (Sec. 563.12), the manufacturer of a motor vehicle equipped with an EDR would be required to furnish non-proprietary technical specifications at a level of detail sufficient to permit companies that manufacture diagnostic tools to develop and build a device capable of accessing, retrieving, interpreting, and converting the data stored in the EDR. The language would have required a manufacturer to submit the non-proprietary technical specifications to NHTSA. We also requested comments on alternative approaches.
Some commenters asked NHTSA to require standardization of data retrieval methods, arguing that a standardized data retrieval protocol will assist first responders and/or reduce cost. Other commenters suggested that we consider another approach, other than furnishing non-proprietary technical specifications to NHTSA, to achieve the goal of making EDR retrieval tools available to crash investigators.
SISC, ATA, SEMA, Advocates, and AAA recommended standardized retrieval methods so that emergency and first responder personnel can have quick and easy access to EDR data. SISC requested a standardized interface. SISC also believes that that retrieval of crash data in rural areas would be facilitated by the lower costs and easier access resulting from a single interface. For example, SISC suggested the U.S. Environmental Protection Agency (EPA) standards for onboard diagnostics of emission system performance. SEMA argued for a standardized retrieval method but indicated that the data should not be vehicle-specific.
AAA encouraged first responder access to data, but through ACN. AAA commented that transferal of accurate location coordinates, speed estimates, air bag deployment and other medically relevant information to EMTs should be encouraged through ACN. To that end, AAA commented that it supports NHTSA's proposal requiring manufacturers “to provide sufficient technical detail to companies that manufacture commercial crash data retrieval systems.”
Commenters offered other arguments for standardizing EDR data retrieval, including minimizing the “tool-up” costs and the inconvenience of having different types of data retrieval methods for each automaker. Three commenters referenced the On-Board Diagnostics (OBD) systems, requesting or opposing similar protocols for the EDR rule.
PCIAA stated that the regulatory objective should be to avoid making EDR information access/retrieval more expensive and inconvenient than necessary. PCIAA commented that the failure to require standardization of the data retrieval method may preclude or diminish the opportunity for broader applications of the technology by the public and private sector. PCIAA further commented that NHTSA should adopt a standard in its final rule that minimizes new tool-up and licensing costs for the service and repair sectors. Because dealership service centers and independent automotive repair businesses have made significant
NADA and SEMA made similar comments, asking NHTSA to consider setting standards for data retrieval communications protocols, connectors, and tools, similar to those of OBD systems. Additionally, SEMA argued that data access must include all data stored in the EDR, not just NHTSA-mandated data. That organization argued that the vehicle owner should be able to access all data stored in the EDR.
On the other hand, Injury Sciences is opposed to relying on OBD protocols. Injury Sciences is opposed to relying on the connector as a means of retrieval because it asserts that data collection via the OBD works only if the electrical systems are intact. It argues that NHTSA should articulate retrieval requirements in the numerous instances when electrical systems are compromised and the extraction of data can only be accomplished from connecting directly to the device storing the information.
Simplifying retrieval methods and minimizing costs were two common reasons suggested by commenters for standardizing EDR data retrieval, with some commenters providing technical suggestions for EDR data standardization. Public Citizen stated that NHTSA should standardize extraction protocols, technology, and interface location to ensure that data can be easily and quickly retrieved. Public Citizen believes that these steps would reduce overall costs. Advocates commented that the rule should require a uniform architecture for data retrieval. Advocates supported standardizing the retrieval method, citing higher costs for those retrieving data.
Garthe Associates commented that the rule should require a uniform, non-contact retrieval method to rapidly and reliably download data. Garthe Associates suggested the use of radio frequency identification (RFID) or infrared (IR) for data retrieval. Garthe Associates also suggested specifications for the retrieval technology. Garthe Associates indicated numerous benefits of these technologies, including rapid access to crash data by EMS personnel. According to Garthe Associates, the estimated cost would be about $1/car.
Mr. Fink stated that the rule should require standard software for downloading EDR data. He also commented that the same software and hardware should be able to access data from vehicle EDRs and commercial vehicle engine control modules. EPIC commented that the rule should address real-time data collection, which will become widely prevalent well before the proposed effective date for the rule.
GM asked NHTSA to alter its proposal for data retrieval. In the NPRM, NHTSA proposed that each vehicle manufacturer must furnish non-proprietary technical specifications at a level of detail sufficient to permit companies that manufacture diagnostic tools to develop and build a device capable of accessing, retrieving, interpreting, and converting the data stored in the EDR. GM recommended that we instead allow manufacturers to enter into a licensing agreement or provide other means for the tool(s) required for retrieving the EDR data. GM argued that aspects of EDR designs are often refined up to, and sometimes after, the start of vehicle production. GM argues that the provision would (1) potentially facilitate tampering with EDR data, (2) be impractical to accomplish at 90 days before the start of production, (3) result in a significant paperwork burden, (4) be unnecessary to satisfy a limited market for EDR download devices, and (5) require manufacturers to disclose proprietary information.
Comments provided by DaimlerChrysler, Ford and Toyota were nearly identical to those of GM, except that they recommended that each manufacturer be required to certify to NHTSA that it has licensed the development of a download tool for each applicable vehicle. This is in contrast to GM, which was also open to other means of ensuring that a retrieval tool is available.
SEMA commented that NHTSA should require manufacturers to provide information necessary for third parties to design and develop data access tools and should require the manufacturer to make the tools available to the public for a reasonable price and in a timely fashion.
Ford stated that NHTSA should promulgate requirements that effectively prohibit tampering with EDRs and EDR data, because the value of EDRs is predicated upon the integrity of the data they contain.
Honda commented that the NPRM's proposal to require the submission of data retrieval information no later than 90 days prior to the start of production of EDR-equipped vehicles is problematic. Honda argues that the modification or addition of information may become necessary near the start of production due to the detection of an inaccuracy or technical issue. Honda argued that under NHTSA's current proposal, a manufacturer would have to provide NHTSA with updated information and wait 90 days before it could start production with the modified EDR. Honda would like to be able to change the EDR specifications as soon as possible, and to produce vehicles equipped with the modified EDR as soon as possible. Therefore, Honda recommended that the final rule permit the submission of updated retrieval information as soon as it can be provided and for production of vehicles with the modified EDR to occur as soon as possible thereafter.
ATA commented that specifications for the EDR interface should be provided to NHTSA but should not be part of the public domain. The ATA commented that a mandated, standard interface would threaten privacy rights. However, retrieval of data should be brief and should not impede the continued utilization, maintenance or repair of the subject vehicle.
More than one commenter recommended changing the phrase in the “scope” section of the regulatory text from “it [the NPRM] also specifies requirements for vehicle manufacturers
We have carefully considered the comments and recommended alternatives on this issue, and determined that an alternative approach will better meet the goal of ensuring that crash investigators are able to retrieve data from EDRs. We believe that requiring manufacturers to ensure by licensing agreement or other means that retrieval tools are commercially available will be sufficient for the purposes of this final rule. We believe that this revised approach will resolve concerns about the release of proprietary information. It will also result in less paperwork costs for the manufacturers.
Under our revised approach, we are no longer following the NPRM's proposed requirement for vehicle manufacturers to submit information to the public docket to allow third parties to manufacture a retrieval tool for EDR data. Instead, the final rule requires
We are requiring the tool(s) to be commercially available not later than 90 days after the first sale of the motor vehicle for purposes other than resale. This addresses the timing concerns raised by commenters. Given that the retrieval tools will be commercially available, we do not believe it will be difficult to obtain information about how to obtain them.
We have considered the comments asking us to require a standardized retrieval tool (or standardized retrieval software and hardware). In consideration of this issue, we assessed the comments concerning whether we should require a retrieval system similar to or utilizing the EPA/OBD protocols (68 FR 38427, June 27, 2003). However, such a requirement is beyond the scope of this rulemaking, since we did not propose to require a uniform retrieval tool in the NPRM. We do not believe that a uniform retrieval tool is necessary to achieve the purposes of this rulemaking. We believe that intended users will be able to access EDR data by our requiring manufacturers to ensure that retrieval tools are commercially available.
We recognize, however, that there are potential benefits to standardizing the means of downloading EDR data. This could facilitate the future use of EDRs by first responders and possibly result in lower costs. This is an area that could potentially be addressed by voluntary organizations such as SAE and IEEE.
We have considered NADA's and SEMA's comments that we should require access to all data stored in the EDR. However, we believe that it would not be appropriate to mandate the processing and storage for data that we currently have determined are not necessary for our goals of analyzing the performance of safety equipment, improving crash reconstruction, and enabling ACN.
Additionally, we did not propose to require that vehicle owners have the ability of directly accessing EDR data. However, the requirement that vehicle manufacturers ensure that retrieval tools are commercially available should make it easier for vehicle owners to indirectly access stored EDR data.
We considered the comments by Garthe and Siemens regarding a standardized, non-contact retrieval method. However, we did not propose the implementation of such technology in the NPRM, and will not include it in this final rule. Requiring automobile manufacturers to install a non-contact retrieval method is not necessary to achieve our stated purposes for this rulemaking.
We have considered ATA's comments regarding access to EDR data, and we address this issue in our section on “Privacy Issues.” With regard to ATA's comments on mandating for brief retrieval we presently have not gathered sufficient information to mandate the brevity with which EDR data can be retrieved.
We have considered the comments recommending that we address potential tampering with EDRs. We currently do not have information that leads us to believe that tampering with EDRs is a problem that necessitates us to develop requirements in this area. We may revisit this issue if we find that EDR tampering becomes a problem. However, we do believe one aspect of EDR design will discourage tampering. We are requiring that the captured file be locked for crashes that involve air bags. The locked file will be preserved and the file cannot be overwritten.
In the NPRM, we stated that if EDRs are to provide useful information, they must function properly during a crash, and that data must survive the crash. Accordingly, we proposed to require that EDRs meet specified requirements during and after the crash tests in FMVSS Nos. 208, 214, and 301. We also proposed that the data must be retrievable for not less than 30 days after the test and without external power. We chose not to propose more extensive survivability requirements, such as requiring EDRs to survive extreme crashes, fire, or fluid immersion.
GM, DaimlerChrysler, Ford, Toyota, Nissan, and AIAM argued that in order to test for EDR survivability, as proposed in the NPRM, vehicles would have to be tested with engines running and various vehicle systems activated, presenting a danger to test personnel. Such tests also risk damaging test facilities, instrumentation, and photographic equipment resulting from fuel, oil, and/or battery fluid spillage.
To solve this perceived problem, GM, DaimlerChrysler, Ford, and Toyota proposed an alternative approach to EDR crash survivability (i.e., a simulated laboratory test to verify EDR recording function and certification by engineering analysis to ensure sufficient energy reserve).
The data elements required by sec. 563.7 must be recorded so that they can be downloaded in the format specified by sec. 563.8; exist at the completion of the simulated test, and be retrievable by the methodology specified by the vehicle manufacturer under sec. 563.12 for not less than 30 days after the simulated test, and the “complete data recorded” element must read “yes” after the test. A simulated test for the purposes of this subsection consists of laboratory methods to provide data bus input representative of FMVSS [Nos.] 208 and 214 crash tests to the vehicle data bus, so that the EDR recording function can be verified. For those data elements not specified by FMVSS [Nos.] 208 and 214 (i.e., throttle angle, braking input, etc.), manufacturers will furnish simulated signals. In addition, manufacturers must certify through engineering analysis or other means that sufficient energy reserve exists in the subject module to ensure that all design-intended functions, including the deployment of restraint system components and the complete recording of EDR data elements as specified by this regulation, are fully supported in the event of power loss to the module from the vehicle's battery supply at any point following time zero, as defined by this regulation.
Nissan stated that the NPRM's proposed regulatory text needs to be amended to reflect that engine RPM and throttle information will not be available in crash tests, which are performed without fuel. AIAM recommended clarifying the rule to indicate that EDR performance does not require the engine to be running and that, as a result, some data elements may not be recorded.
GM, DaimlerChrysler, Ford, Toyota commented that storing crashed vehicles for 30 days following a test to ensure retrievability of data is impractical and unnecessary. These commenters stated that it is unreasonable to require data to be retrievable without external battery supply for 30 days, because current EDRs use external battery supplies to retrieve post-crash data. According to the commenters, the NPRM's requirements would necessitate adding a battery to the module, which would add significant cost and risk damage to the module circuitry due to electrolyte leakage. They also argued that this requirement for 30-day retrievability is unnecessary to meet the safety purposes of furnishing additional data to aid in crash investigations.
AIAM commented that the proposed regulatory text is not clear as to whether data must be retrievable without external power for up to 30 days. AIAM suggested that the final rule should be clarified to require the EDR to store data without external power for up to 30 days but to permit an external power source for data retrieval.
Nissan sought clarification for two issues related to survivability: (1) Whether an alternate power source would be required to ensure that the EDR is able to record up to 11 seconds of post-crash data; and (2) whether sensors would be expected to survive crashes to ensure delivery of data to the EDR. Mitsubishi stated that the final rule should not require data survivability in cases where there is a cut-off in the power supply or destruction of the electronic control unit. Mitsubishi argued that it is not technically feasible to require data recording if power is no longer directly supplied to the ECU.
EPIC and the ATA made general comments regarding the survivability of EDRs. EPIC commented that EDR reliability is essential, ensuring that proper functioning of EDR systems becomes more critical as third parties (e.g., insurance companies and prosecutors) are provided access to EDR data. EPIC expressed concern that the level of survivability called for in the NPRM may not be sufficient to ensure reliable data. EPIC suggested text for the owner's manual encouraging owners to have the EDR inspected after a crash. ATA commented that EDRs must function properly during and after the specified crash tests.
Several commenters gave specific suggestions for crash survivability. NADA commented that the rule should take into account EDR reparability and restoration. Advocates commented that the rule should require the EDR to be located in the passenger compartment in order to increase survivability. Hyundai and Kia commented that the rule should not require repositioning air bag control units to achieve crash survivability unless the repositioning would not adversely affect performance of the systems.
Public Citizen and NTSB commented that the NPRM does not include requirements to ensure that the EDR will survive fire, fluid immersion, and severe crashes. To remedy this perceived deficiency, Public Citizen suggested that EDRs should be subjected to a rollover crash test or that they should meet survivability tests similar to those for airliner and locomotive “black boxes.” Public Citizen stated it is important that EDR data from severe crashes not be lost since such crashes may result in fatalities.
We have carefully considered the comments regarding our testing requirements, and the commenters' position that requiring dynamic testing, as proposed, would be impracticable. After reviewing the comments from the manufacturers, we disagree that it is impracticable to require basic EDR crash survivability. However, we agree that certain proposed data elements cannot be recorded unless the crash tests are conducted with the engine running and vehicle systems activated. Those data elements are: “Engine RPM” and “Engine Throttle % Full.” At present, FMVSS Nos. 208 and 214 tests are not conducted with the engine running; compliance crash tests are only conducted with battery connected and vehicle systems activated. It was not our intention to propose any testing requirements beyond FMVSS Nos. 208, 214, and 301. Testing with the engine running could create hazardous conditions for the test engineers. Therefore, we agree that “Engine RPM” and “Engine Throttle % Full” cannot be recorded in current crash tests. We have modified the final rule to account for these concerns.
As a result of our analysis of this issue, we have also realized that the braking input data element “service brake on/off” is not specified in FMVSS crash tests. Accordingly, there is no practical way to require manufacturers to test the survivability of this data element in the FMVSS Nos. 208 and 214 tests. Because there is no current way to test for these there elements, we have modified the final rule accordingly.
After reviewing the comments, we believe that our proposal to require that data elements be retrievable for not less than 30 days after the test and without external power confused some commenters. We intended the proposed requirement that data be retrievable within 30 days without external power to simply mean that the EDR data must be stored and saved in the system for at least 30 days without external power. This was not intended to mean that 30 days after the date of the crash, a crash investigator must be able to download the stored data with a download tool without an external power supply. We have modified the rule to clarify our original intentions.
The final rule also modifies the number of days we will require EDR data to be retrievable after the crash test. Manufacturers have indicated that it usually takes three to seven days to complete the task of crash test data analysis and validation. Based upon this information, we believe that requiring that EDR data be retrievable up to 10 days better reflects the manufacturer's time frame of crash testing. We agree with manufacturers, based on this information, that a 30-day requirement would require additional vehicle storage. Accordingly, we have modified the final rule.
We have also considered the comments regarding EDR survivability in severe crashes or crashes involving fire or fluid immersion; however, we have not changed our position on requiring EDR survivability in these extreme cases. In the NPRM, we stated that EDR data from such crashes would be useful, but we do not have sufficient information to propose survivability requirements that would address such crashes. We also stated that countermeasures that would ensure the survivability of EDR data in fires might be costly. We have not engaged in research to promulgate survivability requirements for EDR data in these extreme cases. Moreover, we reiterate that the most important benefits of EDR data comes from enabling ACN and composite analysis, and we believe that this final rule will allow researchers to gather sufficient EDR data of statistical significance. We believe that we can meet the objectives of this rulemaking without requiring EDR survivability in extreme crashes.
The comments of Ford, GM, Daimler Chrysler, and Toyota on EDR survivability also recommended deleting subsections (a)-(c) of the proposed regulatory text in Sec. 563.10. These commenters proposed an alternative testing protocol, as discussed above. The manufacturers recommended that a simulated test for data bus input of FMVSS Nos. 208 and 214 be performed at room temperature and that the EDR data be stored at room temperature for 30 days after the tests.
We have, however, modified our crash test requirements in light of the comments we have received and in consideration of further information we have obtained. We have deleted the test associated with FMVSS No. 301. We believe that since most EDRs and other vehicle electrical systems are located in the front part of the vehicle, there is little chance that crash forces to the rear of the vehicle will affect EDR operation. Also, in the FMVSS No. 301 test, no air bags are deployed, so elements related to air bag deployment, that make up the vast majority the data collected by the EDR, are not collected.
Also, we have decided not to require EDRs to meet requirements during crash tests listed under S13 of § 571.208, as we proposed in the NPRM. The tests specified in S13 of § 571.208 are currently subject to be gradually phased-out. After further consideration, we believe that the tests in FMVSS Nos. 208 and 214 will be sufficient to determine EDR survivability.
The agency notes that in some FMVSS No. 214 tests (i.e., for vehicles equipped with only longitudinal delta-V sensors), the longitudinal trigger threshold may not be met because there may not be sufficient delta-V in that direction. For tests conducted pursuant to FMVSS No. 214, we would not expect the vehicle's EDR to record data unless the manufacturer records delta-V, lateral or any air bag (frontal, side, other) deploys.
Our final rule represents tests that we believe will be sufficient to ensure basic EDR survivability. Furthermore, we would like to emphasize that this rule is not requiring any additional crash tests than what is currently required by existing FMVSSs. Tests for EDR crash survivability simply piggyback on test requirements for existing FMVSSs.
In the NPRM, we proposed an effective date of September 1, 2008 for the EDR regulation. We proposed this date with the intention of providing manufacturers adequate lead time to make design changes to their EDRs as part of their regular production cycle, minimizing costs. Almost all of the commenters on this issue believed that the proposed lead time was insufficient and/or would result in unnecessarily high costs, with most suggesting a phase-in beginning in 2008.
GM, Ford, DaimlerChrysler, and Toyota stated if NHTSA issued a final rule for EDRs by September 1, 2005, that is consistent with their recommendations, they could support a four year phase-in beginning September 1, 2008 (10% of vehicle production at year 1, 25% at year 2, 60% at year 3, and 100% at year 4). GM added that if the rule is appreciably different from its recommendations, it might need additional lead time to achieve compliance. GM reasoned that its recommended four-year phase-in would be an “aggressive” schedule because manufacturers would need to redesign, revalidate, and retool virtually every restraint control module, add greater power capability to those modules, and, in many cases, redesign the entire electrical architecture of the vehicle. Ford, DaimlerChrysler, and Toyota commented that their vehicle electrical/electronic architecture designs, which influence EDR feasibility, are presently being committed and cannot be readily changed for vehicles in model years before 2008. Hyundai and Kia commented that a four year phase-in period after the September 1, 2008 start date will be necessary to implement the design changes needed to meet the rule as proposed.
Honda and Mitsubishi recommended that the effective date of the regulation should be no sooner than September 1st of the third year after publication of a final rule, with a phase-in period starting on that date. Honda's rationale is that it would be very difficult for all manufacturers to simultaneously develop and install compliant EDRs on all models by September 1, 2008.
Subaru commented that the NPRM underestimates the time necessary for implementation. Because Subaru would have to acquire new memory devices, develop backup power sources, and possibly redesign its air bag system, Subaru requested additional lead time and a phase-in schedule for recording certain data elements. Subaru commented that its most state-of-the-art EDR technology is still not mature enough to meet all the proposed requirements. For example, its current air bag sensors do not meet the range and accuracy requirements. Subaru stated that it would probably remove all data recording rather than risk noncompliance if the rule were implemented as proposed.
NADA commented that the rule should adopt a phased-in approach with multiple effective dates requiring that certain data recording capabilities be implemented in the near term, with additional data collection capabilities considered for the longer term. AIAM also commented that additional lead time would be necessary to meet the accuracy and precision requirements as proposed in the NPRM, due to the complexity of the required changes. AIAM suggested that the regulation should take effect with a pared down data set no sooner than the September 1st, three years after publication of the final rule and that the regulation should allow for a substantial phase-in period. If the final rule includes the complete set of proposed data elements, a longer lead time would be necessary. SISC commented we should provide sufficient lead time so that manufacturers can transition to multi-axis accelerometers (to ensure collection of lateral acceleration).
We have considered the comments regarding our proposed effective date. Based upon the comments, we have decided to require covered vehicles manufactured on our after September 1, 2010 to comply with the requirements of this final rule. We believe that a lead time in excess of four years, particularly given the revised technical requirements, should prove adequate for all vehicle manufacturers and all vehicle lines, without the need for a phase-in. Vehicle manufacturers may voluntarily comply with the final rule prior to this date.
The NPRM acknowledged that the recording of information by EDRs raises a number of potential privacy issues. These include the question of who owns the information that has been recorded, the circumstances under which other persons may obtain that information, and the purposes for which those other persons may use that information.
In the NPRM, we stated that our rulemaking would not create any privacy problems. We explained that NHTSA would first obtain permission from the vehicle's owner before using the data. Furthermore, we believe that our objectives can be met by using a very brief snapshot of EDR data surrounding a crash. A broader use of
Many issues raised by commenters concerning privacy arise from the misconception that EDRs record data for prolonged intervals and personal information to study driver behavior. We noted in the NPRM that we were not proposing to require personal or location identification information. We also explained that we were proposing to standardize EDR data recording for an extremely short duration (i.e., a few seconds immediately before and after a crash). We did not propose to require data for prolonged recording intervals (i.e., several minutes) or audio/visual data that the public may associate with event data recorders in other modes of transportation, such as flight data recorders or locomotive event recorders. However, we note that another DOT agency, the Federal Motor Carrier Safety Administration (FMCSA), is currently engaged in rulemaking that would facilitate the use a different type of device, known as electronic on-board recorders (EOBRs), for documenting the hours of service of commercial drivers.
In the NPRM, we expressed our sensitivity to privacy concerns, especially in relation to how we handle EDR data. We explained that NHTSA would first obtain a verbal release from the vehicle owner before using the data and fully comply with federal privacy law in its use of the information. Access to EDR data would not be affected by this rulemaking and would continue to be provided in limited situations. Furthermore, the design would most likely preclude public access to the EDR data because the interfaces will likely be located in the vehicle's passenger compartment.
Some commenters argued that public safety outweighs any potential privacy issue or argued that privacy concerns were adequately addressed in the NPRM. Several individuals commented that the government and others will use EDRs to invade privacy. Still others identified privacy issues, but took differing positions on how to and who should address privacy concerns.
GM, Ford, DaimlerChrysler, and Toyota commented that a FMVSS requiring EDR installation would permit the life-saving benefits of EDRs to be properly balanced, at the national level, with societal interests involving privacy and disclosure. These four commenters argued that unless there is Federal leadership, individual States will continue to regulate in the area of EDR privacy (e.g., through disclosure requirements). According to these automakers, unless this issue is dealt with comprehensively at the Federal level, the result could be a patchwork of State laws that would leave manufacturers in the untenable position of providing unique EDR systems and complying with disclosure language provisions on a State-by-State basis.
EPIC commented that the NPRM inadequately protects the privacy of vehicle owners. According to EPIC, NHTSA has the responsibility to provide basic privacy protections and to clearly communicate to the public how EDR technology will be used. EPIC predicted that failure to do this would expose the rule to legal and political challenges. EPIC suggested that the rule should explicitly recognize the vehicle owner as the owner of EDR data. Moreover, EPIC expressed concern that many EDR systems currently record the complete VIN, including the serial number portion that can be used as a personal identifier.
Several individuals commented on privacy and EDRs. Mr. Crutchfield, whose comments were representative of such commenters, expressed concern regarding the collection and use of EDR data. He argued that EDRs have no safety purpose and will be used to increase government revenues from fines, to increase rates or deny coverage by insurance companies, to justify seizure of private property, and to discriminate against individuals based on race, gender, age, regional origin, and socio-economic status.
Mr. Leggett, an individual, commented on the collection and use of EDR data. He suggested that EDRs should be designed so that vehicle owners can remove them and that there should be no legal penalty for doing so. He also requested that the rule prohibit the use of EDR data in criminal and civil actions or by insurance companies. Mr. Leggett stated that the rule should specifically state that insurance companies may not require the use of EDRs, to ensure that the use of EDRs remains voluntary.
Mr. King, an individual, commented that the rule should either provide protections for the vehicle owner (the presumptive data owner) or should be delayed until the passage of legislation addressing the issue. Mr. Lashway, along with fifty-two other individuals, commented that EDRs will be used to intrude into the privacy of individuals.
Several commenters indicated that the ability to turn off or disable recording would resolve their concerns. Several also indicated that requiring written consent to acquire the data would be an acceptable solution. Some individuals commented that the EDR data are not reliable enough, thereby creating a danger to individuals confronted with countering the data in court. Commenters also suggested that vehicle purchasers should be provided with adequate notice about EDRs and EDR data at the time of first sale.
SEMA commented that NHTSA should recognize that EDR data is the sole property of the vehicle owner. According to SEMA, a court order or consent of the vehicle owner should be required before EDR data may be released to insurance companies or before vehicle-specific data could be released to law enforcement. SEMA stated that an owner's consent could be provided prospectively via a form at the time of purchase (similar to current contracts for OnStar® subscriptions).
Gelco commented that EDR data may contain personal information and may be easily accessible in the passenger compartment. Therefore, Gelco requested that the final rule explicitly or implicitly limit the access of the owner, lessor, or lessee to the data.
The ATA commented that NHTSA should address privacy issues or coordinate with other appropriate Federal agencies to ensure that such issues are addressed. The ATA stated that it supports the practice of obtaining consent from the vehicle owner and commented that the data should be exempt from the Freedom of Information Act (FOIA). The ATA also expressed concern that a standard interface would make access to EDR data too easily accessible.
Canada Safety Council commented that ownership of EDR data is unclear and that the issue needs to be resolved by legislators in the near future. The Council also commented that under the NPRM, emergency medical service personnel would not have easy access to crash severity data.
Wyle Laboratories commented that NHTSA should consider certification of independent laboratories for EDR data management. Wyle's rationale is that such certification would facilitate data retrieval, validation, and distribution and would help protect the rights of each party with an interest in the data (e.g., manufacturer, owner, insurance carrier, regulator, and law enforcement agency).
The ATA commented that, in contrast to what the NPRM states, much of the data is proprietary to the motor carrier or commercial vehicle operator. The ATA predicted that the volume of data that will be produced would: (1) Increase the likelihood that unskilled or untrained personnel would be involved in data analysis; (2) result in a misunderstanding or incorrect interpretation of data; (3) result in a use of erroneous data; and (4) lead to
AAA commented that law enforcement should have access to the data where a crash results in serious injury or fatality. AAA also commented that rules or laws need to be adopted to prohibit access to EDR data without a court order or permission from the owner. However, AAA did comment that EDR data that cannot be tied to a specific vehicle should be generally available for research purposes.
National Motorists Association commented that it is inappropriate for EDR data to be used for criminal prosecutions and by insurance companies. The Association also expressed concern that EDR data is unreliable, which exacerbates the danger of its use for those purposes.
Advocates commented that resolution of privacy issues should be left to the courts.
Injury Sciences and Public Citizen did not view privacy concerns as an impediment to the EDR rule. Injury Sciences stated that it believes the NPRM provides adequate consideration and protection for the privacy of the individual. While acknowledging the importance of ensuring privacy, Public Citizen also did not see the EDR rule as raising a significant privacy concern. Public Citizen's comments suggested that “public health” data provided by EDRs outweighs these privacy concerns. Public Citizen's rationale is that NHTSA already collects and uses EDR data, so the rule does not raise new privacy issues. Furthermore, Public Citizen stated that the NPRM addresses some existing privacy concerns by requiring a statement in the owner's manual to inform consumers as to the presence and role of the EDR in their vehicle.
We have reviewed all of the comments regarding privacy and EDRs. As to comments concerning our planned use of EDR data, we hope that our continued efforts to educate and inform the public will help to correct any public misconceptions about the type of data that EDRs record and how that information is used.
We stated in the NPRM that we are careful to protect privacy in our own use of EDR data. We obtain consent from the vehicle owner to gain access to EDR data. Furthermore, we assure the owner that all personally identifiable information will be held confidential. In handling this information, the agency does not make public any information contained in these records which has the potential to either directly or indirectly identify individuals, except as specifically required by law. Furthermore, prior to the release of information from databases containing EDR data (usually aggregated reports), the agency strips out the last six characters of the VIN (i.e., the portion that would allow identification of a specific vehicle and, potentially by indirect means, the identity of the vehicle's current owner). Therefore, we believe that the agency has taken adequate steps to ensure individual privacy vis-a-vis its use of EDR data.
We understand that EDRs can generate concerns related to how EDR data are currently used or will be used by entities other than NHTSA. As we stated in the NPRM, our role in protecting privacy is a limited one. While we remain sensitive to the public debate about EDRs and the use of EDR data, we do not have statutory authority to address many privacy issues, which are generally matters of State and Federal law that we do not administer. These privacy issues were not created by this rulemaking (e.g., whether the vehicle owner owns the EDR data, how EDR data can be used/discovered in criminal/civil litigation, whether EDR data may be obtained by the police). EDRs have existed since the 1970s, and our rulemaking on EDRs standardizes technology that has existed, in some cases, for decades.
Other issues beyond the scope of this rulemaking include access to EDR data (including by law enforcement) and training of individuals to handle EDR data. As to Wylie Lab's comments, we did not propose certifying independent labs to handle downloaded EDR data for NHTSA, and we do not have a present need for such analysis.
As noted earlier, we are not requiring or prohibiting on/off switches. Given that we are not requiring EDRs, we do not believe it would be appropriate to prohibit on/off switches. However, such switches could reduce the benefits from EDRs. Therefore, we believe it would be inappropriate to require such switches.
We considered Mr. Leggett's comment concerning the reliability of EDRs in trials and other adjudicatory proceedings; however, we note that disputes about these issues are most appropriately resolved in individualized adjudications as needed.
EDR technology continues to evolve, and public discussion about EDRs will continue. We hope to help address these concerns and foster continued acceptance of EDRs by requiring manufacturers of vehicles equipped with EDRs to include a standardized statement in the owner's manual, as discussed below. We also hope to establish an internet public education program to correct perceived public misunderstanding related to EDRs.
In the NPRM, we proposed to require the following disclosure statement to be included in the owner's manual of vehicles that have an EDR:
This vehicle is equipped with an event data recorder. In the event of a crash, this device records data related to vehicle dynamics and safety systems for a short period of time, typically 30 seconds or less. These data can help provide a better understanding of the circumstances in which crashes and injuries occur and lead to the designing of safer vehicles. This device does not collect or store personal information.
All commenters on this issue generally supported our proposal to require an EDR disclosure statement for consumers. We received several suggestions regarding the text and placement of that disclosure statement. Some thought that the language in the NPRM needed augmentation (or a complete rewrite) to address issues such as privacy, preemption, and ownership of and access to EDR data. We also received comments with proposed text to address telematic features, such as ACN, and specifically OnStar®.
GM expressed support for requiring a standardized EDR disclosure statement in the owner's manual. However, GM recommended expanding the statement to more fully inform consumers (e.g., by
This vehicle is equipped with an event data recorder (EDR). The main purpose of an EDR is to record, in certain crash or near crash-like situations, such as an air bag deployment or hard braking, data that will assist in understanding how a vehicle's systems performed. The EDR is designed to record data related to vehicle dynamics and safety systems for a short period of time, typically 30 seconds or less. The EDR in this vehicle is designed to record such data as:
• How various systems in your vehicle were operating;
• Whether or not the driver and passenger safety belts where buckled/fastened;
• How far (if at all) the driver was depressing the accelerator and/or brake pedal; and,
• How fast the vehicle was traveling.
These data can help provide a better understanding of the circumstances in which crashes and injuries occur. NOTE: EDR data are recorded by your vehicle only if a crash or near crash situation occurs; no data are recorded by the EDR under normal driving conditions.
To read data recorded by an EDR, special equipment is required and access to the vehicle or the EDR is required. In addition to the vehicle manufacturer, other parties, such as law enforcement, that have the special equipment, can read the information if they have access to the vehicle or the EDR.
[If the vehicle is equipped with telematic system(s), the following statement must also be included in the owner's manual.]
Your vehicle may be equipped with onboard telematics that provide safety and convenience services such as GPS-based navigation or cellular wireless connectivity, and your vehicle may collect personal or vehicle information to provide such services. Please check the service's subscription agreement or manual for information about its data collection.
According to GM, the NPRM's owner's manual language may not be sufficient to obviate or to preempt current or future State disclosure requirements. GM's recommended disclosure statement also omits reference to “personal information,” as we proposed in the NPRM, because GM believes that phrase is potentially ambiguous.
Comments from DaimlerChrysler, Ford, and Toyota were similar to GM's comments, although they differed in two areas. Each recommended that the EDR rule permit vehicle manufacturers to supplement the required language with additional information that the manufacturers deem appropriate for their respective vehicle designs. Each also omitted the language GM included related to telematic systems.
SEMA, Advocates, and Mr. Bruce Funderberg commented that customers should be notified if a vehicle is equipped with an EDR prior to purchasing the vehicle. SEMA stated that vehicle dealers should be required to notify consumers about EDRs, consistent with State and local laws and that subscription services (e.g., OnStar®) should be required to notify purchasers of the types of EDR information that may be transmitted and to whom the data would be provided.
This recorded data may not be retrieved or downloaded by anyone other than the owner of the vehicle except in certain specific circumstances: (1) With the consent of the owner; (2) by court order; (3) by an authorized person for purposes related to improving vehicle safety provided the identity of the registered owner or driver is not disclosed and the information is of a non-vehicle specific nature; or (4) the data is retrieved for the purpose of determining the need or facilitation of emergency medical response.
In cases where vehicles are equipped with a recording device as part of a subscription service, the fact that information may be recorded or transmitted must be disclosed in the subscription service agreement.
EPIC commented that the notice to owners should be more specific about the ownership of and access to EDR data. EPIC also commented that ACN systems present unique privacy issues, stating “for EDRs that use communications systems—such as OnStar®, which uses wireless phone networks—the EDR should not initiate communication unless an accident is detected or if the driver uses a manual feature to initiate communications for purposes of transmitting driving data.”
The event data recorder is connected to a communication system capable of automatically contacting emergency services when it detects an accident. The event data recorder will only initiate communication in the event of an accident or if the driver uses the manual feature to initiate communication with either emergency services or the communications provider (
Consent of the vehicle owner should be required for the disclosure of EDR driving data to the NHTSA or any other government or commercial organization, including automotive insurance companies. Such consent should be fully consensual, meaning for example that automotive insurance contracts should not be conditioned upon access to EDR data.
Your consent is required for the data to be disclosed to the National Highway Traffic Safety Administration—a federal agency that gathers information about traffic accidents to improve vehicle and road safety—or any other government or private organization, including automotive insurance companies.
EPIC also commented that if a partial VIN is included in EDR, the following text should be added to the owner's manual:
Only the part of your vehicle identification number (VIN) that includes information about the make and model of your vehicle will be collected by the event data recorder. The unique serial number portion of the VIN will not be collected.
In addition, EPIC commented that the vehicle owner should be instructed to have the EDR inspected if the vehicle has been involved in an accident, flooding, or fire.
If your vehicle has been involved in a serious accident or has been subject to flooding or fire, your event data recorder may have been damaged. If it was involved in one of these situations, please have your event data recorder inspected by an authorized dealer.
The National Motorists Association, Advocates, AAA, and ATA all made comments that the proposed disclosure statement is inadequate to address an array of consumer concerns, and some suggested alternative language. PCIAA commented that the required, specific disclosure statement proposed in the NPRM is inadequate because the statement could become obsolete quickly and because vehicle owners rarely refer to or use their owner's manual. Advocates commented that the required statement in the owner's manual is necessary but not sufficient to educate the public about EDRs and address privacy concerns. AAA commented that there is insufficient consumer notification about access to
After considering the public comments, we have decided to adopt a more detailed disclosure statement, along the lines recommended by GM, DaimlerChrysler, Ford, and Toyota. We believe that the more detailed statement will provide consumers with a fuller understanding of the EDR installed in their vehicles.
However, we are not adopting the recommended language in GM's comments related to telematic systems, because such systems are not directly the subject of this rulemaking. We note that the comments of DaimlerChrysler, Ford, and Toyota did not include language related to telematic systems, although the balance of their recommended disclosure statements were virtually identical to that of GM. The capabilities of telematic systems and the level of integration between such systems and the EDR may also vary depending upon the given technology. For these reasons, we have decided not to require language in the specified disclosure statement on telematic systems. However, vehicle manufacturers may include a discussion of applicable telematic systems in the vehicle owner's manual, if they choose to do so.
In addition, we note that we are permitting vehicle manufacturers to supplement the required owner's manual statement on EDRs with additional information, if they choose to do so. Vehicle manufacturers will have specific knowledge about their EDRs, and in some situations, vehicle owners may benefit from such additional information.
In response to SEMA's comment that vehicle dealers should also be required to notify consumers about EDRs and Advocates comment requesting an additional brochure, we believe that such requirements would be largely redundant of the information required in the owner's manual, and hence unnecessary.
In addition, we have decided not to adopt SEMA's recommendation for a requirement for subscription services, such as OnStar®, to disclose information about the types of data that may be transmitted and to whom they may be transmitted, for the following reasons. First, the regulation of such services is outside the scope of this rulemaking, and second, consumers are generally made aware of such services up-front, particularly where they must pay a fee for the continuation of service. To the extent that consumers are concerned about the data gathered or reported by these services, they are free to pose such questions to the provider.
Regarding Mr. Funderburg's comments that EDRs should be optional equipment that purchasers may decline, we note that making EDRs an option could add unnecessary production costs. Moreover, there are no benefits associated with not having an EDR. Furthermore, taking such a position would run counter to our safety goals of securing more and better EDR data and enabling ACN.
For the reasons discussed more fully under section IV.B.7 of this document, we do not believe that EDRs raise meritorious privacy concerns, because they do not collect individual identifier information. We believe that the disclosure statement we have adopted provides a clear picture of the types of data collected by EDRs and the intended uses of that data.
We have decided not to adopt EPIC's recommended language warning the consumer to have the EDR inspected after the vehicle is in a crash or is subject to fire or flooding. We do not believe that such language is necessary, because in such cases, the vehicle owner will normally have the vehicle examined by both an insurance adjuster and an automotive repair expert, professionals who will diagnose resulting problems with all vehicle systems, including the EDR.
In response to commenters who argued that our proposed owner's manual disclosure statement is inadequate because it is too limited, we note that under the final rule, we are requiring an expanded disclosure statement. We believe that our specified owner's manual disclosure statement provides adequate notice as to the presence and function of the EDR.
We have considered the comments arguing that our proposed owner's manual statement could become quickly obsolete. NHTSA intends to closely follow the development of EDR technology. If we determine that these devices have evolved in such a way as to render our disclosure statement inadequate, we would consider how to amend the required language. In addition, as stated above, we are permitting vehicle manufacturers to augment the required disclosure statement with additional information based upon the specifics of the EDRs installed on the vehicle. For these reasons, we believe that the EDR-related information provided to consumers will be sufficient for most consumers.
GM, DaimlerChrysler, Ford, Toyota, AIAM, and NADA recommend that the final rule for EDRs should explicitly state that it preempts inconsistent State and local regulations. GM is concerned that without a clear statement of the preemptive effect of the final rule, manufacturers could be faced with a patchwork of State and local requirements. AIAM expressed concern that the failure to preempt inconsistent State and local regulations could result in manufacturers being required to provide limited, circumscribed, or deactivated EDR systems and inconsistent disclosure/owner's manual language on a State-by-State basis. AIAM argued that the consistency across the nation would aid in the public acceptance of EDRs and would help keep costs down. NADA commented that the rule should expressly reference the degree to which inconsistent State or local regulations are preempted.
We have considered the comments concerning the preemption of conflicting State regulations and agree that a patchwork of State laws is not desirable. We expect that general principles of preemption law would operate so as to displace any conflicting State law or regulations.
It is our view that any State laws or regulations that would require or prohibit the types of EDRs addressed by our regulation, or that would affect their design or operation, would create a conflict and therefore be preempted. Specifically, this would include State EDR technical requirements, such as ones requiring EDRs in motor vehicles (except for State-owned vehicles), requiring that EDRs record specific data elements, and/or requiring EDRs to meet specific technical performance or survivability requirements.
Further, it is our view that any State laws or regulations that imposed, for the types of EDRs addressed by our regulation, additional disclosure requirements on vehicle manufacturers or dealers would likewise create a conflict and therefore be preempted. We have devised an appropriate statement for the owner's manual to make the operator aware of the presence, function, and capabilities of the EDR. Inconsistent or additional State disclosure requirements would frustrate the purposes of our regulation by potentially creating confusion or
It is our intent to provide one consistent set of requirements, including a specified statement in the owner's manual, for vehicle manufacturers that choose to install EDRs. We believe that this approach will enhance the quality of EDR data by standardizing the content, format, and accuracy of such data, thereby increasing its comparability and overall usefulness; we further believe that the standardized data will be of greater benefit for safety equipment analysis and crash reconstruction. We also believe that this minimum data set provides key elements in a standardized format that will foster the development of ACN and other telematic systems.
We believe that State laws inconsistent with this final rule would frustrate the final rule's purposes. For example, additional State requirements would increase the costs of EDRs and make it less likely that manufacturers would voluntarily provide them. Additional State requirements could also hamper the development of future EDRs by pushing their development in ways that are not optimal for safety. Among other things, given limitations in data processing capabilities, requirements for additional data elements could make EDRs less effective in real world crashes in recording the data elements NHTSA has determined to be most important. (As discussed in section IV.B.2 of this notice, we believe that recording of additional data elements, which are currently of lesser value for our stated purposes, would not only result in significantly higher costs but would also risk overburdening the microprocessing and memory capabilities of EDRs. This could increase data recording times, and it could also increase the risk of system failure, potentially resulting in the loss of all EDR data.)
In addressing the issue of preemption, we note that the effective date for our EDR regulation is 60 days after publication of this rule, and that the compliance date is September 1, 2010. It is our view that our regulation has preemptive effect between the effective date and September 1, 2010, as well as after that latter date. In
Specifically, we selected this compliance date to provide sufficient lead time to enable manufacturers to incorporate necessary changes as part of their routine production schedules. Thus, we expect that, in order to meet the requirements of our regulation, between now and September 1, 2010, vehicle manufacturers will be gradually redesigning their EDRs, modifying vehicle systems and components that feed into EDRs, and integrating EDRs into numerous models of vehicles. Furthermore, a vehicle manufacturer may begin complying with the EDR regulation once it becomes effective. Thus, any State laws or regulations that would require or prohibit the types of EDRs addressed by our regulation, or that would affect their design, or that would establish a compliance date earlier than September 1, 2010, would conflict with and frustrate the purposes of our regulation. Among other things, such laws or regulations would interfere with the process of manufacturers gradually redesigning their EDRs, modifying related vehicle systems and components, and integrating EDRs into vehicles in order to meet our requirements during that timeframe.
The agency is aware of ten States that have passed laws relating to EDRs in the fields preempted by this final rule.
We believe that the statements meeting our disclosure requirement in the final rule would satisfy even the broadest of the existing State disclosure requirements. Further, it does not appear that any of the existing State requirements regarding disclosure would conflict with the final rule.
This rule does not address certain other issues generally within the realm of State law, such as whether the vehicle owner owns the EDR data, how EDR data can be used/discovered in civil litigation, how EDR data may be used in criminal proceedings, whether EDR data may be obtained by the police without a warrant, whether EDR data may be developed into a driver-monitoring tool, and the nature and extent that private parties (including insurance companies, car rental companies, and automobile manufacturers) will have or may contract for access to EDR data. These issues are instead being addressed by State legislatures.
In the NPRM, we stated that our proposed EDR rule would apply to the same vehicles that are required by statute and by FMVSS No. 208 to be equipped with frontal air bags (i.e., passenger cars, multipurpose passenger vehicles, trucks, and buses with a GVWR of 3,855 kg or less and an unloaded vehicle weight of 2,495 kg or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service). This covers most light vehicles, including multi-stage vehicles. We believe applying this rule to all vehicles that are currently subject to FMVSS No. 208 is appropriate since most EDRs are closely associated with frontal air bags and all of these vehicles must meet the advanced air bag requirements of FMVSS No. 208, which will be completely phased in by manufacturers before compliance with this final rule is required.
Several commenters suggested changing our proposal to provide an exception for multi-stage vehicles and incomplete, intermediate, and final stage manufacturers. GM, DaimlerChrysler, Ford, and Toyota expressed support for either excluding incomplete, intermediate, and final
ATA asserted NHTSA has not involved final stage vehicle manufacturers or accessory installers in an appropriate dialog. ATA encouraged NHTSA to conclude that there is no possibility that EDR performance could be affected during any type of completion or conversion or accessory installation. On the issue of the effect of the EDR requirements on altered vehicles, NADA commented that NHTSA should “consider the complexities that may be involved for light-duty vehicles manufactured in two or more stages or which are altered prior to first sale.”
We have considered the comments that we provide an exception or otherwise delay the effective date of this rulemaking for incomplete, intermediate, and final stage manufacturers (i.e., multi-stage vehicles). Since the NPRM was published, NHTSA has issued a final rule pertaining to certification requirements for vehicles built in two or more stages and altered vehicles (
(b)
In light of the agency's policy on multi-stage manufacturer certification, as expressed in the February 14, 2005 final rule, we have decided to apply that principle to the compliance date for final-stage manufacturers and alterers. Thus, final-stage manufacturers and alterers must comply with this rule for vehicles manufactured on or after September 1, 2011. However, final-stage manufacturers and alterers may voluntarily certify compliance with the standard prior to this date.
In addition to multi-stage vehicles, Public Citizen and Advocates commented that NHTSA should extend the rule's applicability to include other vehicles, such as heavier trucks and 15-passenger vans. Public Citizen commented that all new vehicles, including large trucks, should be required to be equipped with EDRs, and the organization encouraged NHTSA to undertake a separate rulemaking to require EDRs in large trucks. Public Citizen stated that the benefit realized by EDRs is directly proportional to the number of vehicles equipped with these devices and that full fleet penetration is critical to the accuracy and utility of EDR data. Public Citizen further commented that an EDR requirement for large trucks could help improve industry practices and driver behavior. Similarly, Advocates commented that the rule should include 15 passenger vans and heavier light trucks because those vehicles have relatively high rollover rates, high risk of injury to multiple occupants, and are exempt from other safety regulations (e.g., side impact and roof crush resistance).
While EDR requirements for heavier vehicles are outside the scope of this rulemaking, we note that many 15-passenger vans are within the applicable weight range for this final rule, and thus, are required to comply with the EDR regulation. Further, we note that some original equipment manufacturers, such as GM, are installing EDRs in their medium trucks equipped with air bags.
As noted in the NPRM, we are not addressing in this document what future role the agency may take related to the continued development and installation of EDRs in heavy vehicles. We will consider that topic separately, after consultation with the Federal Motor Carrier Safety Administration. As noted previously, FMCSA is currently engaged in rulemaking that would facilitate the use of Electronic On-Board Recorders for recording and documenting the hours of service of commercial drivers.
We believe that deferring consideration of requirements for EDRs installed on heavy trucks is appropriate for the following reasons.
First, it would provide the agency with time to build experience in terms of standardization of EDR data in light vehicles. This experience could then be applied to our consideration of heavy trucks.
Second, because the relevant data to be gathered by EDRs installed in heavy trucks are not identical to that of light vehicles, we believe any such requirements should come in a separate regulation.
Third, because EDRs in light vehicles rely heavily upon sensors and diagnostic equipment associated with the vehicle's air bag system, the agency must carefully assess the costs, benefits, and lead time necessary for EDR requirements for heavy trucks, which may not have systems with all the necessary hardware. We understand that heavy truck manufacturers, suppliers, and others are engaged in EDR-related efforts with SAE, which will result in recommended practices for these devices. NHTSA is closely monitoring these efforts by the SAE working group. NHTSA is also closely following activities in other governmental agencies, including FMCSA and NTSB.
Finally, separate consideration of EDR requirements for heavy trucks will expedite promulgation of this final rule for EDRs in light vehicles, thereby encouraging further positive developments based upon standardized EDR data.
The NPRM stated that the purpose of this rulemaking is to help ensure that EDRs record, in a readily usable manner, data necessary for effective crash investigations, analysis of safety equipment performance, and automatic crash notification systems. It is NHTSA's position that this data will help provide a better understanding of the circumstances in which crashes and injuries occur and will lead to the designing of safer vehicles.
Including ACN as a stated purpose of the EDR rule drew comments. Commenters recommended additional clarifying language or deleting relevant portions of the proposed regulatory text so that the rule cannot be construed as a limitation on manufacturers' ability to offer telematics features, such as ACN. GM, Ford, and Toyota recommended that the final rule expressly state that it does not limit manufacturers' ability to
GM argued that because ACN is not being proposed in this rulemaking, the language referencing ACN should be dropped from the regulatory text. GM further argued that the proposed EDR rule makes no provision for the software, hardware, and infrastructure required to make use of ACN-related data. DaimlerChrysler made a similar comment, adding that ACN infrastructure was last estimated to cover only 25% of the United States, principally in urban areas. DaimlerChrysler stated that benefits of ACN, other than those related to better crash data, are speculative and out-of-scope.
We acknowledge that this final rule does not regulate or require ACN systems. Nonetheless, we are retaining ACN as a stated reason to require EDR data standardization because we believe that the final rule would have ancillary benefits, such as facilitating ACN development. However, our other stated purposes fully justify the rule. We emphasize that this final rule does not limit the ability of manufacturers to offer ACN or other telematics devices.
To reiterate our earlier reasoning, we note that the NPRM provides a detailed explanation of the relationship between EDRs and ACN systems. In addition, the ENHANCE 9-1-1 Act of 2004 requires the Department of Transportation to help coordinate and to speed the deployment of Wireless Enhanced 9-1-1. ACN has the potential for interfacing with nation-wide Wireless Enhanced 9-1-1 deployment by providing immediate and accurate crash location information to Public Safety Answering Points. This will expedite the dispatch of emergency services to the crash scene, help ensure that EMS personnel can locate the crash, and speed the provision of lifesaving emergency medical services to traffic crash victims. The prompt provision of emergency medical care to traffic crash victims will reduce morbidity and mortality.
We believe ACN systems have great potential for reducing deaths and injuries caused by motor vehicle accidents. This potential arises from the ability of the EDR and ACN, working in tandem, to determine (prior to responding to the accident scene) the likely nature and severity of the injuries, the proper allocation of resources to respond to those injuries, and the location of the crash. We fully expect ACN systems to evolve, and our rulemaking today, which standardizes EDR data, will play a role in realizing the safety benefits of ACN.
“Trigger threshold” indicates the point at which a recordable event is recognized by the EDR as suitable for further analysis. Our proposal defined “trigger threshold” as “a change in vehicle velocity, in the longitudinal direction for vehicles with only longitudinal acceleration measurements or in the horizontal plane for vehicles with both longitudinal and lateral measurements, that equals or exceeds 0.8 km/h within a 20 ms interval.” In proposing a value for the EDR trigger threshold, we turned to SAE J1698 for guidance.
GM commented that, as proposed, the trigger threshold for EDR recording was set too low and would result in an excessive number of recordings and re-recordings. GM argued that the defined threshold would create a risk of memory degradation in the electronic control module over the life of the vehicle. Accordingly, GM, along with DaimlerChrysler, Ford, and Toyota, recommended revising the definition of “trigger threshold” to read: “equals or exceeds 5 mph (8 km/h) within a 0.15 second interval.” GM stated that its recommended value is consistent with the FMVSS bumper standard threshold.
Similarly, Hyundai, Kia, and Delphi stated that the trigger threshold specified in the NPRM is set too low and would result in data being rewritten many times as a result of potholes and curb hits. According to the commenters, this frequent overwriting of the EDR data could result in computer memory failure, thereby leaving the EDR unavailable in the event of an actual crash. Delphi recommended that the trigger threshold “corresponds to an average acceleration in excess of 1.5 G with a total velocity change of at least 5 km/hr.”
As an alternative to the proposed language, TRW Automotive suggested that the trigger threshold should be determined by the air bag system, which would notify the other systems to begin recording. TRW argued that, currently, each individual system records its own data so minimal changes would be needed to implement the rule. TRW's rationale is that implementation of the rule would be less expensive and less complex if the rule permitted each system to record its own data.
TRW Automotive also commented that there should be “an acceptable tolerance of plus or minus “one data sample period” for the data points corresponding to “trigger threshold” detection, and a sampling rate tolerance of plus or minus three percent for data before and after the point of “trigger threshold” detection.”
Advocates stated that it had no opinion on the exact specification for the trigger threshold but expressed concern about setting the trigger at a level where recording would occur only in the event of a crash. Advocates suggested that NHTSA should consider the collection of near-miss data in a future EDR rulemaking. Advocates also questioned whether an electrical or engine fire would be a triggering event and suggested that NHTSA should revise the rule to require the EDR to be sensitive to fire-based events.
After considering these comments, we have decided to modify the trigger threshold value to 8 km/h within a 150 ms interval, as requested by the commenters, such that the final rule's definition of “trigger threshold” reads: “a change in velocity, in the longitudinal direction, that equals or exceeds 8 km/h within a 150 ms interval. For vehicles that record “delta-V, lateral,” trigger threshold means a change in vehicle velocity, in either the longitudinal or lateral direction that equals or exceeds 8 km/h within a 150 ms interval.” We believe that this change is appropriate for the following reasons.
While we agree that the threshold proposed in the NPRM routinely could be exceeded by strong bumper-to-bumper contact in a parking lot or minor impact with a road obstacle, we only required the data to be recorded if the cumulative delta-V of the current event/crash exceeded the delta-V of the previously-recorded data. We do not agree that the non-volatile memory would have been over-burdened, because the delta-V of the event in non-volatile memory would have rapidly reached a sufficient magnitude to disregard minor impacts, such as bumper-to-bumper events. We believe that the revised criterion effectively addresses the concerns raised by the commenters and reduces the complications of decisionmaking regarding EDR data recording, while maintaining the ability to obtain data from most significant crashes (i.e., those that are non-trivial).
We have decided not to adopt TRW's recommendation to tie the trigger threshold to air bag deployment. We are interested in collecting data on high delta-V crashes that do not deploy the air bag systems. While air bag systems may be operating properly in these
Regarding Advocates” comments recommending capture of near-miss data, we have decided that this rulemaking should target crash event data. While the agency believes valuable information for crash avoidance can be obtained from studying near-miss data, we do not believe that current EDRs are best suited for this function. Typically, near-miss data are not associated with a strong physical occurrence, hence increasing the difficulty of defining a trigger threshold to key recording. If the trigger threshold were set very low, it would cause the generation of a large volume of files that would need to be captured and recorded, or alternatively, it would force EDRs to continuously record information. Either of these data logging processes would make EDRs much more expensive. At this time, the agency believes these issues can be addressed best through our research programs, such as the recently completed 100-car study, in which naturalistic driving characteristics were captured.
As with near-miss data, NHTSA does not believe that a trigger related to fire would be a cost-effective or practicable approach. Non-crash fires are typically associated with fuel leaks, and as with the near-miss data, current event'driven EDRs would not capture much data, even if the EDR were triggered.
In addition to “trigger threshold,” the definition of “event” is important to understanding what constitutes a recordable event for an EDR. In the NPRM, we defined “event” as “a crash or other physical occurrence that causes the trigger threshold to be met or exceeded after the end of the 500 ms period for recording data regarding the immediately previous event.”
GM urged modification of the NPRM's definition of “event,” arguing that the proposed sampling rates and durations are excessive. In order to address these concerns, GM provided a revised definition of “event” and suggested a new definition of “crash event,” which also sought to clarify the distinction between an event that triggers data capture in volatile memory and an event that triggers the recording of data in non-volatile memory. DaimlerChrysler, Ford and Toyota offered nearly identical comments to those of GM, except that in their definition of “crash event,” the longitudinal or lateral trigger threshold was 5 mph delta-V in 150 ms, as opposed to 5 mph delta-V in 250 ms for GM.
Nissan suggested that the rule should permit two alternatives for determining the beginning of an event, as provided in SAE J1698. SAE J1698 and SAE J1698-1 include two methods of establishing time zero. One method calculates time zero as the occurrence of a delta-V of over 0.8 km/h (0.5 mph) in 20 ms. The other method of calculating delta-V is to define time zero as the point at which the EDR algorithm is activated, also known as “wake-up.” The first method was the basis for our proposal in this area. GM, Ford, DaimlerChrysler, and Toyota commented that we should first define an “event” and then define “time zero” as the beginning of the event, recommending a definition of “event” as a delta-V of over 8 km/h (5 mph) or more within 150 ms, instead delta-V of over 0.8 km/h (0.5 mph) in 20 ms.
After considering the comments we received on this definition, we have slightly modified the definition of “event” in the final rule to read as: “a crash or other physical occurrence that causes the trigger threshold to be met or exceeded.” We believe this change is consistent with vehicle manufacturers' comments. Under the new trigger threshold definition, an event is a physical occurrence that produces sufficient delta-V to exceed the trigger threshold. Those occurrences that do not meet the threshold are not classified as “events.”
As discussed below, we have modified the way in which the start of an event and end of an event are determined, consistent with SAE J1698.
The NPRM defined “event data recorder” as “a device or function in a vehicle that records any vehicle or occupant-based data just prior to or during a crash, such that the data can be retrieved after the crash. For purposes of this definition, vehicle or occupant-based data include any of the data elements listed in Table I of this part.”
GM, Ford and Toyota recommended revising the NPRM's definition of “event data recorder” in order to narrow the definition and make it more precise.
Event data recorder (EDR) means a device or function in a vehicle that captures the data elements identified in Table I of this standard for up to 5 seconds before time zero and up to 250 ms after time zero, and that records the data when it has been determined that a crash event has occurred so that it can be retrieved after the crash.
Injury Sciences suggested expanding the definition of EDR to include vehicles that record and store any form of speed or collision information, without regard to the storage location or purpose. According to Injury Sciences, this would prevent manufacturers from circumventing the rule by not storing or using the data in their air bag modules.
Gelco commented that the definition of “event data recorder” in the
Event data recorder (EDR) means a device or function installed in a vehicle as part of its original equipment that records any vehicle or occupant-based data just prior to or during a crash, such that the data can be retrieved after the crash. For purposes of this definition, vehicle or occupant-based data include any of the data elements listed
AAM stated that the definition of “event data recorder” is too broad in that it includes components that are not designed primarily for recording crash data. For example, some current recording systems only record restraint system deployment decisions and timing data. As a result, AAM argued that the rule acts as a mandate forcing manufacturers to record a great deal more data than their systems are currently designed to record. On the same issue, the Alliance offered to help NHTSA draft a specification that more clearly delineates the devices that they believe should fall within the ambit of the final rule.
After carefully consideration of the comments, we have decided to revise the definition of “event data recorder” in order to avoid possible misinterpretation. As proposed in the NPRM, the definition would have covered all devices that record static freeze-frame air bag data elements (e.g., “frontal air bag warning lamp-on/off”), which commenters argued would have inadvertently resulted in a mandatory rule. Therefore, we have revised the definition to exclude static freeze-frame data elements, and by doing so, we avoid a mandatory rule. However, our revised definition retains critical data elements necessary for restraint performance evaluation, crash reconstruction, and better delta-V estimation.
The final rule defines “event data recorder” as “a device or function in a vehicle that records the vehicle's dynamic, time-series data during the time period just prior to a crash event (e.g., vehicle speed vs. time) or during a crash event (e.g., delta-V vs. time), intended for retrieval after the crash event. For the purposes of this definition, the event data do not include audio and video data.”
Under Section 563.4, the NPRM proposed to incorporate by reference SAE Recommended Practice J211-1, March 1995, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation” (SAE J211-1). GM commented that the proposed section which would have incorporated SAE J211-1 should be deleted, arguing that high-speed acceleration data is not needed for accident reconstruction purposes (delta-V is sufficient) and that manufacturers should have the flexibility to work with their suppliers to match data acquisition hardware and software for their systems. On the other hand, IEEE-VTS commented that NHTSA should include in Section 563.4 several provisions of its consensus Motor Vehicle Electronic Data Recorder (MVEDR) standard on a broad range of topics.
We have considered GM's comment that Section 563.4 should be deleted, which is premised upon replacement of the proposed acceleration data element with a delta-V data element. As indicated above, manufacturers who prefer to record acceleration may continue to do so under this final rule. However, for those manufacturers that prefer to record acceleration data instead of delta-V, the acceleration data must be filtered and converted to delta-V either during the recording period or in the data downloading process. Accordingly, the incorporation by reference provision, as it appeared in the NPRM, remains relevant, and we see no reason to remove it. We note that the incorporated SAE standard is not relevant to manufacturers that decide to record delta-V instead of acceleration.
We have also considered IEEE-VTS's request to incorporate its IEEE 1616 standard. We note that although incorporation by reference is a common practice in our rulemaking, we only utilize it when we believe the standards are appropriate and the standards are too complex and onerous to be copied into the regulation. In the present case, we believe that the provisions of the IEEE standard that do not already appear in our proposed EDR rulemaking are not necessary for data standardization. For many of the other IEEE provisions that do appear in the EDR regulatory text, we do not believe that these standards are too complex and onerous to be copied into the regulation. We believe that many of the definitions that we have provided in the regulatory text are easy to understand and follow. In fact, we believe that it would be easier for the reader to understand if all the items were articulated in the regulation itself, rather than by incorporation. Accordingly, we have we have decided not to incorporate by reference the IEEE 1616 standard, as recommended by IEEE-VTS.
The NPRM estimated that the added cost to manufacturers for implementing the requirements of the EDR proposal would be $0.50 per vehicle. Several commenters (GM, DaimlerChrysler, Ford, Toyota, Nissan, Subaru, ATA, and AIAM) argued that the NPRM's cost estimate is understated. These commenters argued that implementation of the proposal would result in significantly higher costs related to microprocessing and memory upgrades, computer reprogramming, the proposed range, accuracy, and precision requirements, the dynamic testing requirements, and air bag sensor upgrades. Several commenters provided suggestions on ways to reduce costs, while others discussed the effect of costs on installation of EDRs.
GM commented that additional memory and processing capacity required to meet the requirements outlined in the NPRM would greatly increase the cost of complying with the proposed rule. According to GM, memory storage capacity would need to be expanded beyond that provided for current EDRs, and memory cannot be added incrementally, as implied in NHTSA's cost estimates (i.e., computer memory is normally available in blocks, so the next step up from 64K may be 128K). GM further stated that microprocessors available to handle larger amounts of memory are usually packaged with other system capabilities (e.g., increased input/output/pins) that would further increase system costs. According to GM, this is true for both volatile and non-volatile memory.
We infer from GM's comments that it believes that, if adopted, our proposal would entail unavoidable increases in processor costs. Specifically, unless the processor has sufficient memory capacity, the ability of the restraint system modules to perform their primary task (i.e., deploying the air bags in a timely and appropriate manner) could be compromised. GM stated that two microprocessors may be necessary to perform these two functions.
DaimlerChrysler, Ford, and Toyota provided nearly identical comments to those of GM on the cost issues associated with memory capacity and microprocessing. However, they
DaimlerChrysler, Ford, and Toyota commented that the Preliminary Regulatory Evaluation's projection of $10,000 per manufacturer for software algorithm reprogramming costs is an underestimate, although no alternative figure was provided. These manufacturers asserted that such efforts would require engineering-level specification development, algorithm development, and algorithm validation for each vehicle development program.
GM and AIAM commented that the proposed range, accuracy, and precision requirements in Table III of the NPRM underestimate certain hardware costs. For example, GM stated that it currently uses ± 50 G accelerometers with an 8% accuracy. According to GM, doubling the range to ± 100 G and increasing the accuracy of those accelerometers would add significant costs, which are not reflected in the NPRM's cost estimates. GM added that in some cases, the new requirements are beyond the state-of-the-art and may not be feasible. AIAM commented that the NPRM specifies range, accuracy and precision standards in excess of current industry practice. According to these commenters, significant increases in cost would be required to modify systems to meet these proposed requirements.
Another cost issue, raised by GM, Ford, and Toyota, related to the proposed dynamic testing requirements for EDRs, which the commenters asserted would greatly increase testing costs. For example, GM argued that the NPRM would require storage of crashed vehicles for 30 days following a test to ensure retrievability of data. GM commented that such a requirement is impractical and unnecessary. Ford and Toyota challenged the Preliminary Regulatory Evaluation's assumption that the NPRM's proposed functionality and survivability requirements would not add any costs because existing EDRs are already capable of meeting the proposed standard. Ford stated that NHTSA has not fully accounted for the crash test performance and survivability provisions, so additional costs would be expected.
As discussed earlier, GM, DaimlerChrysler, and Ford all argued that the proposal would significantly increase testing costs, because they perceived that the testing would need to be conducted with running vehicles and activated systems. According to GM, the NPRM does not account for a significant additional cost for reserve or backup batteries, which it argued would be necessary to comply with the proposed requirement that EDR data be retrievable without external power for up to 30 days.
To remedy the above cost issues, GM recommended reducing the number of data elements to only those necessary to obtain safety-related data suitable for crash reconstruction purposes, which would presumably allow current EDRs to handle these tasks with minimal modifications and cost increases.
Nissan argued that the broad definition of an “event data recorder,” as proposed, encompasses many current air bag systems that do not record the types of information included in Table I. According to Nissan's calculations, the NPRM underestimates the cost of implementation by a factor of 10. Nissan argued that its air bag systems would need major architectural changes to meet the proposed requirements. Subaru made a similar comment, arguing that the NPRM underestimates the costs of implementation because Subaru might be forced to develop an entirely new air bag electronic control unit. AIAM commented that some EDR systems that currently only record air bag information may need a complete redesign.
DaimlerChrysler, Ford and Toyota stated that sensors that could meet the requirements of the NPRM are currently considered “laboratory grade,” which raises issues related both to cost and availability.
Delphi and Mr. Funderburg expressed concern that the cost of implementation would deter manufacturers from installing EDRs or take away resources from NHTSA's other projects. Delphi commented that the cost of implementation might vary significantly depending on the existing system architecture and that because of potentially high costs, many manufacturers may choose to freeze their level of EDR fleet penetration or even remove EDRs from certain models. Commenters argued that manufacturers of vehicles with components that are not sufficiently interconnected either would remove (or not implement) EDRs or would be required to make significant changes to the existing electrical architecture. Mr. Funderburg expressed concern regarding the costs of data analysis and the potential for diverting NHTSA's resources away from more important projects.
AAA recommended adoption of a smaller data set to help reduce the costs of implementation. In contrast, Public Citizen asserted that requiring installation of EDRs with an appropriately large number of data elements would be more cost-effective for both manufacturers and consumers. Public Citizen stated that mandated safety features costs consumers as little as a quarter of the cost of such features in the absence of an agency requirement. However, Public Citizen did not provide any data to substantiate this point.
We have considered the comments on costs, and we have addressed the concerns of the commenters in the Final Regulatory Evaluation (FRE), which may be found under the same docket number as this final rule. However, the following summarizes the conclusions presented in the FEA.
The total cost for the estimated 9.8 million vehicles that already have an EDR function to comply with the regulation will range up to $1.7 million. If manufacturers were to provide EDRs in all 15.5 million light vehicles, the estimated total cost will range up to $10.9 million. These potential costs include technology costs, administrative costs, and compliance costs (although the latter two sets of costs are expected to be negligible).
The NPRM's regulatory text defined the purpose and scope of this rulemaking as specifying uniform, national requirements for vehicles equipped with EDRs. Proposed section 563.1 also required vehicle manufacturers to make sufficient information publicly available to enable crash investigators and researchers to retrieve data from EDRs.
Two vehicle manufacturers commented on the proposed scope provision. GM commented that the NPRM's statement of scope is overly broad and somewhat ambiguous. GM argued that the current text of Sec. 563.1 should be revised to clarify the intended scope of the regulation, and GM further argued that NHTSA should mandate installation of EDRs. Toyota also commented that the scope of the rule is overly broad and ambiguous and recommended language nearly identical to GM's, but without advocating a mandatory EDR requirement.
PCIAA commented that the proposed rule focuses too much on restraint systems and not enough on systems to help the driver avoid collisions.
We have carefully considered the comments pertaining to the scope
We also disagree with commenters' recommendations to change the scope of the final rule to adopt a mandatory EDR requirement. As noted above, we did not propose a mandatory requirement for vehicle manufacturers to install EDRs, and for the reasons previously discussed, we have decided not to adopt such an approach at this time. We will continue to monitor EDR installation, and may reconsider this issue in the future if circumstances warrant. We agree that it is desirable for EDRs to gain wider usage and acceptance.
We have considered PCIAA's comment that the rulemaking should acknowledge other uses of EDR data (other than those specified in the NPRM) so that data elements offer sufficient flexibility and the correct incentives to avoid discouraging innovations that go beyond the goals of research and vehicle safety. However, we do not believe that this rule will deter EDR innovations beyond NHTSA's stated purposes, nor inhibit the ability to use EDRs for other purposes. Furthermore, we do not believe it is appropriate to incorporate into this rule other uses of EDR data that we currently have no reason to standardize, and doing so would require the agency to significantly alter the scope and purpose of this rule.
We have, however, revised the regulatory text of the scope provision to make it consistent with the revisions made to the data retrieval section. As stated above, in the final rule we have revised the portion of our proposal that would have required manufacturers make publicly available through the NHTSA docket such non-proprietary information that would permit companies that manufacture diagnostic tools to develop and build a device capable of accessing, retrieving, interpreting, and converting data stored in the EDR. Consistent with our new approach arising out of public comments, the scope provision now indicates that manufacturers are required under this final rule to make such information commercially available.
DaimlerChrysler recommended adding a time element to the “purpose” section of the regulatory text, stating that EDR recording will include “five seconds of specified pre-crash data elements and 250 milliseconds of specified crash data elements * * *.” We have considered DaimlerChrysler's recommendation; however, we generally do not provide such specific language in the purpose section. Instead, we believe that such time element is sufficiently and clearly addressed in the regulatory text under the “data capture” section.
In response to recommendations provided in the comments, we have decided to modify several definitions in the regulatory text. These modifications to the regulatory text provide clarification and address technical or minor issues.
The NPRM defined “capture” as “the process of saving recorded data.” GM, DaimlerChrysler, and Ford commented that this definition should be clarified. According to GM, the industry defines “capture” as the process of buffering data in a temporary, volatile storage medium where it is continuously updated. GM stated that data captured in volatile memory is unstable, insofar as it is continuously overwritten with new data as long as power is supplied to the module and is lost the moment power is discontinued. We have revised the definition of “capture” in light of these comments. Accordingly, the final rule defines “capture” as “the process of buffering EDR data in a temporary, volatile storage medium where it is continuously updated at regular time intervals.” We believe that, as modified, the definition of “capture” better reflects the industry's understanding and uses of that term.
The NPRM defined “record” as “the process of storing data into volatile memory for later use.” GM, DaimlerChrysler, Ford, and Toyota recommended changing the definition of “record” to “the process of saving captured EDR data into a non-volatile memory storage device for subsequent retrieval.” GM stated that the industry generally uses the term “record” to mean saving captured data into a non-volatile memory storage device that is permanent and stable, even if power is lost to the storage module. We agree with these comments and have modified the definition of the term “record” accordingly. The definition of “record” now reads: “the process of saving captured EDR data into a non-volatile device for subsequent retrieval.”
The NPRM defined “engine throttle, percent full” as “for vehicles powered by internal combustion engines, the percent of the engine throttle opening compared to the full open position of the engine throttle opening, and for vehicles not powered by internal combustion engines, the percent of vehicle accelerator depression compared to the fully depressed position.” The NPRM defined “service brake, on, off” as “the vehicle's service brake is being applied or not being applied.”
GM, DaimlerChrysler, Ford, Toyota, and AIAM recommended revising the definition of “engine throttle, percent full” to clarify that it is the driver input that is recorded, rather than the electrical or mechanical output that resulted. The commenters recommended the same type of change for the definition of “service brake, on, off.” GM's rationale is that, while the input and output signals will generally correspond, the former is more relevant for safety-related crash analyses. AIAM commented that the “engine throttle, percent full” data element should be redefined to allow the recording of the throttle pedal input angle as an alternative means of capturing driver behavior.
After consideration of these comments, we have determined that both definitions should be clarified, as suggested, to reflect that it is the driver input that is to be recorded. As stated above in our discussion regarding the “engine RPM” data element, we believe that driver input is more useful for studying crash reconstruction. Therefore, the definition of “engine throttle, percent full” has been clarified and now reads: “the driver requested acceleration as measured by the throttle position sensor on the accelerator pedal compared to the fully depressed position.”
In the final rule, we have also applied this rationale to the definition of “service brake, on/off” as suggested by the public comments, clarifying that it is the driver input that is recorded. The new definition reads, “the status of the device that is installed in, or connected to, the brake pedal system to detect whether the pedal was pressed. The device can include the brake pedal switch or other driver-operated service brake control.” We believe that this definition is more suitable for the stated purposes of this rulemaking.
The NPRM defined “frontal air bag” as “the primary inflatable occupant restraint device that is designed to deploy in a frontal crash to protect the front seat occupants.” GM, DaimlerChrysler, Ford, and Toyota recommended revising the NPRM's definition of “frontal air bag” to make it more closely align to the language of FMVSS No. 208.
Frontal air bag means any inflatable restraint system that requires no action by vehicle occupants and is used to meet the applicable frontal crash protection requirements of S5.1.2(b) of FMVSS No. 208.
In defining the terms “ignition cycle, crash” and “ignition cycle, download,” the NPRM used the phrase “ignition key applications.” GM, DaimlerChrysler, Ford, and Toyota recommended revising these definitions to reflect that in the future, technological changes may obviate the need for a conventional ignition key.
Based upon these comments, we have modified the relevant definitions in the final rule as follows: “ignition cycle, crash” means “the number of power cycles applied to the recording device up to and including the time when the crash event occurred since the first use of the EDR.” “Ignition cycle, download” means “the number of power cycles applied to the recording device at the time when the data was downloaded since the first use of the EDR.”
The NPRM defined “normal acceleration” as “the component of the vector acceleration of a point in the vehicle in the z-direction. The normal acceleration is positive in a downward direction.” Delphi recommended that NHTSA provide greater specificity in the definition of 0 G normal acceleration, because the term 0 G is used inconsistently within the industry (e.g., 0 G is sometimes normalized for the “1 G bias due to gravity). We agree with Delphi's comments and have revised the definition. Since the acceleration data are used to compute velocity and motion relative to the other vehicle/barrier in our laboratory tests, 0 G vertical is defined with the gravity term not removed, hence 0 G vertical would be observed when the vertical accelerometer is as rest.
The NPRM defined “pretensioner” as “a device that is activated by a vehicle's crash sensing system and removes slack from a vehicle belt system.” GM, DaimlerChrysler, Ford, and Toyota requested a minor change in the definition of the term “pretensioner” to clarify that vehicle belt system means vehicle
The NPRM defined “safety belt status” as “an occupant's safety belt is buckled or not buckled.” GM, DaimlerChrysler, Ford, and Toyota recommended modifying the term to read: “safety belt status means the feedback, as recorded by the EDR function, from the safety system that is used to determine that the safety belt is fastened.” The commenters' rationale is that some safety belt technologies provide safety belt status feedback without evaluation of the buckle status. We agree and have modified the definition in accordance with the recommendations. The definitions for both driver and right front passenger “safety belt status” now read: “the feedback from the safety system that is used to determine that an occupant's safety belt is fastened or not fastened.”
The NPRM defined “side air bag” as “any inflatable occupant restraint device that is mounted to the seat or side structure of the vehicle interior at or below the window sill, and that is designed to deploy and protect the occupants in a side impact crash.” The proposal defined “side curtain/tube air bag” as “any inflatable occupant restraint device that is mounted to the side structure of the vehicle interior above the window sill, and that is designed to deploy and protect the occupants in a side impact crash or rollover.”
GM and DaimlerChrysler recommended revising the NPRM's definitions of “side air bag” and “side curtain/tube air bag” to simplify the locational references in these definitions. GM's recommended definitions would also drop the phrase “and that is designed to deploy and protect the occupants in a side impact crash,” as it appears in the NPRM. GM's rationale is that the agency's current definitions do not fully comprehend evolving technology that may permit side curtains in a variety of locations. Ford provided a nearly identical comment. However, Ford recommended adding that these devices are “designed to help mitigate occupant injury and/or ejection.”
After considering the comments by GM, DaimlerChrysler, and Ford, we have modified our definitions of “side air bag” and “side curtain/tube air bag” to provide more flexibility for evolving technology. However, we do believe that consumers need to know the conditions under which side air bags will deploy. To that end, we have deleted the specific mounting location references (i.e., above the window sill) from the definitions and accepted Ford's recommendation, but retained the language that the devices will deploy “in a side impact” crash event.
In the final rule, the definition of “side air bag” now reads as “any inflatable occupant restraint device that is mounted to the seat or side structure of the vehicle interior, and that is designed to deploy in a side impact crash to help mitigate occupant injury and/or ejection.” The final rule defines “side curtain/tube air bag” as “any inflatable occupant restraint device that is mounted to the side structure of the vehicle interior, and that is designed to deploy in a side impact crash or rollover and to help mitigate occupant injury and/or ejection.”
In the NPRM, we proposed to define “speed, vehicle indicated” as “the speed indicated on the vehicle's speedometer.” GM, DaimlerChrysler, Ford, and Toyota recommended what they believe is a more technically correct definition of the “speed, vehicle indicated,” to read as follows: “the speed indicated by a manufacturer-designated subsystem designed to indicate the vehicle's ground travel speed during vehicle operation, as recorded by the EDR.” GM's rationale is that there are no data on the vehicle databus that indicate the speed actually being displayed to the driver via the speedometer. According to GM, vehicle speed should be reported as determined by the appropriate vehicle subsystem(s), which vary among manufacturers (e.g., wheel speed sensors, driveline shaft sensors, differential sensors, or transmission sensors). Nissan commented that manufacturers should have the option of recording the vehicle speed from a variety of systems (e.g., ABS) instead of the instrument panel speed. AIAM provided a similar comment.
We agree that the definition of “speed, vehicle indicated” in the final rule should be modified in a matter
GM, DaimlerChrysler, Ford, and Toyota recommended revising the NPRM's definitions for “time to deploy,” “time to first stage,” and “time to n
We agree with the commenters' suggestions for clarification of the time data elements for the air bag systems and other commanded systems, such as pretensioners. Accordingly, we have revised all relevant definitions, including “time to deploy, pretensioner,” to reflect that these elements are measured to the time of the deployment command signal that is generated within the control unit.
The NPRM defined “time zero” as the “beginning of the first 20 ms interval in which the trigger threshold is met during an event.” GM, DaimlerChrysler, Ford, and Toyota recommended revising the definition for “time zero” in order to better standardize a common reference point for all EDR data, thereby facilitating comparisons among data sets from different vehicles. GM proposed new language for that definition.
We have reviewed this definition of “time zero” in conjunction with our newly adopted definition of “trigger threshold,” and we have taken into account the different types of EDR system algorithms (e.g., ones with continuously running algorithms, as opposed to ones using an algorithm “wake-up” strategy). As discussed above, we have revised the definition of “trigger threshold” to mean “8 km/h within a 150 ms interval.” This defines the crash level that will be captured and recorded in the EDR. We acknowledge that OEMs use different operational strategies to sense a crash in their air bag control modules. For example, some manufacturers use a continuously operating system that is always on and sensing acceleration and analyzing the signal(s) to make an air bag command decision. In contrast, other manufacturers utilize systems that “wake up” when a crash occurs.
We agree that “time zero” needs to be defined so as to ensure that each of these strategies will result in similar crash data time reporting in the EDR record. To accomplish this, NHTSA has turned to SAE J1698 for additional guidance. SAE, working with members from companies that employ the two operating strategies, has worked out these issues, so we have adopted this approach, as discussed below.
For systems that wake up, “time zero” is defined as the time the control algorithm is activated. When a crash occurs, the system wakes up almost instantly, and it starts processing the crash data. Thus, “time zero” is established at or very close to the time the crash starts. “Wake up” is typically determined by the accelerometer exceeding a pre-defined threshold for a pre-defined time period, such as 2 G for 1 ms. The data are captured, and if the delta-V exceeds 8 km/h with in a 150 ms interval, the data are recorded.
For systems with continuously running algorithms, the “time zero” determination is more complicated. In such systems, the CPU (central processing unit) is continuously processing accelerometer data in order to make air bag command decisions. SAE decided, for these systems, that the start of an event should be defined by a change in velocity. Thus, we have adopted the same strategy. For systems that run continuously, we are defining “time zero” as the first time point where a longitudinal, cumulative delta-V of over 0.8 km/h (0.5 mph) is reached within a 20 ms time period. Since acceleration rises quickly in a major crash, we anticipate that this strategy should work well, resulting in time zeros in good agreement with the “wake up” systems. Thus, for continuously-running systems, the CPU monitors the vehicle's deceleration signal(s). If the total delta-V exceeds 8.0 km/h within a 150 ms period, an event is detected and the captured data are recorded.
In lateral crashes, the longitudinal trigger may not be triggered, and in those cases, there would be no data recorded in the EDR. For vehicles that choose to record “delta-V, lateral,” we are extending the trigger threshold and time zero definition so that in those vehicles, EDR data is recorded. We have turned to SAE J1698-1 for the time zero definition, selecting time zero as the first point in the interval where the cumulative, lateral delta-V equals or exceeds 0.8 km/h (0.5 mph) within a 5 ms interval.
To facilitate detection of a second event in a multi-event crash, we have added a new definition to automate the detection of the end of an event. After once again consulting SAE J1698-1, we have defined “end of event time” as the moment when the cumulative delta-V within a 20 ms time period becomes 0.8 km/h (0.5 mph) or less. This will allow manufacturers to develop methodologies to automatically detect the end of one event and start processing data to determine whether a second event occurs during the crash.
In reviewing our proposal and after making substantive modifications to other parts of the final rule based on the public comments, we have added a few terms to the “definitions” section of the final rule's regulatory text for clarification purposes. The new terms are: (1) “Air bag warning lamp status,” (2) “deployment time, frontal air bag,” (3) “volatile memory buffer,” (4) “non-volatile memory buffer,” (5) “occupant position classification,” and (6) “end of event time.” We also modified the definitions of “occupant size classification” and “seat position” to make them more flexible to account for developing technologies.
In the NPRM, we explained that once the trigger threshold has been met or exceeded, EDR data elements are captured in volatile memory. We further explained that the EDR continues to capture data for an additional 500 ms. The EDR makes a determination (by comparing the absolute values of the maximum delta-V captured with the data previously recorded) of whether to discard the EDR data captured in favor of a previously recorded data set. We proposed a specific hierarchy on how an EDR should capture and record data, including data in cases of multi-event crashes. This strategy was proposed so that the EDR would retain crash data associated with the higher maximum delta-V. We developed this method in the NPRM to ensure that the EDR does not overwrite an important file generated in a crash with a minor subsequent event, such as loading a crashed car on a wrecker.
GM, DaimlerChrysler, Ford, and Toyota recommended that NHSTA delete subparagraphs (a), (b), (c), (f) from our proposed regulatory text section on “data capture.” Those commenters also suggested that NHSTA replace subparagraphs (d) and (e), which discuss data capture requirements associated with air bag deployment, with the following language: “a non-deployment event will overwrite a non-deployment event of lesser magnitude; deployment events must always overwrite non-deployment events; deployment events must lock the record and may not be overwritten.”
In their comments, GM, DaimlerChrysler, Ford, and Toyota stated that the NPRM's proposed data capture requirements are complex and ambiguous and do not accurately recognize the system architecture in restraint control modules. These four commenters also stated that the requirements do not take into consideration the limitations of current technology. They argued that it is impractical to simultaneously buffer data, to write data to nonvolatile memory, to analyze the severity of the impact(s), and to appropriately deploy restraints.
To reduce the risk of data loss, Nissan stated that an air bag deployment event should be written to memory and locked, and that all further recording should cease. Advocates questioned whether a 5-second window is sufficient to capture an entire post-crash event.
We have carefully considered the comments and have developed a modified strategy for making the data recording decision, based on the comments submitted by the manufacturers. We have adopted these commenters' suggestions for a new definition of “trigger threshold,” and based upon this new definition, all crashes captured and recorded will be of significant magnitude to be of interest. Thus, the comparative process, as proposed, is no longer necessary.
We also have decided that collecting data associated with an air bag event is our priority. Accordingly, in the final rule, we have specified a new capture logic that accounts for the comments, simplifies the EDR design, reduces the risk of losing important air bag data, and will likely reduce costs.
The new methodology requires the EDR to make two analytical decisions: one is related to an air bag crash event, and the other is related to a non-air bag crash event. In those crash events where an air bag is commanded to deploy, the EDR must delete the data previously recorded, and the data from the air bag crash event must be captured, recorded, and locked to prevent overwriting. In those crashes where air bags are not commanded to deploy, our logic deletes all previously captured and recorded data, for up to two events. If the second event turns out to be air bag related, the logic calls for a revision to the first condition. In these cases, collection of the first non-air bag related event is not necessary but is acceptable. We believe that this logic provides relief in terms of the need for increased CPU power that might otherwise be necessary for an EDR to analyze and capture EDR data during a time when it might complicate safety-critical decisions.
SEMA urged NHTSA to refrain from adopting requirements that could ossify EDR technology, commenting that the EDR system needs to be adaptable to allow for future developments and to work with other vehicle systems. According to SEMA, the system should not preclude servicing, repair, or installation of aftermarket equipment. SEMA argued that manufacturers, distributors, dealers, and motor vehicle repair businesses must have sufficient information about the EDR system to be able to service the vehicle and to install new or replacement products without fear of taking vehicle equipment out of compliance with any applicable Federal motor vehicle safety standard. In response to SEMA's comments, we do not believe that these systems will be any more complicated than current air bag control systems. EDRs are not new to the marketplace, and no specific problem of this sort has been brought to NHTSA's attention.
NADA, EPIC, and Honda commented on the need for public education and awareness of EDRs. NADA stated that NHTSA should work to educate the public “that, in addition to the potential for improving vehicle and roadway safety design effectiveness, appropriately utilized EDR system information will help to reduce accident-related investigation, medical, legal, and insurance costs.” EPIC commented that currently, public awareness and understanding of EDRs is insufficient. EPIC urged NHTSA to create an EDR information website to educate the public about EDR technology and its uses, what types of users may gain access to EDR information and the circumstances under which it may be accessed, and privacy rights associated with EDR data.
NHTSA agrees with the value of a Web site dedicated to EDRs. About five years ago, NHTSA launched the first EDR Web site. The Web site contained historical information about EDR technology, research material regarding EDR uses, patent information and other resources. In late 2004, NHTSA commenced work on a full update to the Web site, which was completed in early 2005. It is accessible through NHTSA's Web site,
Concurrent with the publication of this final rule, we are posting a consumer-directed set of “questions and answers” on our Web site to provide educational materials and to raise awareness about the presence and functionality of EDRs. Topics include common privacy concerns and NHTSA's protocol for requesting EDR data during crash investigations. In developing these materials, we will consider NADA's recommendations to inform consumers that EDRs could lead to reductions in accident-related investigation, medical, legal, and insurance costs. Our plan is to keep these materials up to date, by adding new information as unique questions from the public are raised.
Honda suggested that NHTSA should conduct an EDR workshop so that all critical issues can be explored and discussed, thereby facilitating issuance of a final rule in an expedient fashion and minimizing the need for petitions for reconsideration. Although an EDR workshop, as recommended by Honda, would offer a means of gaining additional EDR-related input, we have decided that such a meeting is not necessary before proceeding to a final rule.
ATA stated that NHTSA should conduct additional human factors research to determine the effect of driver and employee awareness of EDRs on the number and severity of crashes. ATA's comment pertains to research, not to this final rule. We note, however, that we believe the issue of EDR awareness as related to the number and severity of crashes may be a valuable area for future research.
Public Citizen offered additional recommendations, including: (1) NHTSA should to fully integrate EDR data into all of its data collection systems and crash investigations; (2) police and municipal officials should be trained to enable them to collect accurate and complete EDR data for the Fatality Analyses Reporting System (FARS) database; and (3) NHTSA should create a new database solely for EDR data.
We agree with Public Citizen regarding the value of incorporating EDR data into our national databases. Starting in 2000, NHTSA began to routinely collect EDR data in our NASS/CDS, SCI, and Crash Injury Research and Engineering Network (CIREN) data systems. To date, we have colleted over 2,700 cases with EDR data. However, we are not collecting EDR data in FARS at this time. The agency is working with police officials to develop guidelines for training classes to ensure that EDR data are downloaded properly and that these officials are educated on the limitations of these devices.
The European Communities requested that the U.S. refrain from finalizing its EDR proposal until there has been an opportunity for further consultations both bilaterally and in international fora. The European Communities'
We have carefully considered the EC's comments. NHTSA has concluded that it needs to move forward at this time with a basic set of requirements, because EDR data can help the government and industry better understand crash events and safety system performance, thereby contributing to safer vehicle designs and more effective safety regulations. EDR data can also play a role in advancing developing networks for providing emergency medical services, such as ACN. The agency has sought to establish this foundation in a way that would encourage broad application of EDR technologies in motor vehicles and maximize the usefulness of EDR data for researchers, regulators, and the medical community, while avoiding the imposition of unnecessary burdens or hampering future improvements to EDRs.
NHTSA looks forward to continuing work on this issue with the European Communities, as well as with the international community under the auspices of the World Forum for the Harmonization of Vehicle Regulations administered by the United Nations. The action taken today in no way precludes achieving common understandings in the future.
Mr. Bretherton, an individual, commented that better coordination of Traffic Records Coordinating Committees (TRCCs) within States is needed to facilitate the use of crash data and that funding is needed to address technology needs, to make data uniform between States, and to ensure data collection by all States. He expressed concern that local governments may have increased liability as a result of crash data. He also stated that “Fast FARS” is not a good use of resources. Again, although these issues are worth considering at an appropriate time and in an appropriate forum, they are beyond the scope of the present rulemaking.
Under 49 U.S.C. 322(a), the Secretary of Transportation (the “Secretary”) has authority to prescribe regulations to carry out duties and power of the Secretary. One of the duties of the Secretary is to administer the National Traffic and Motor Vehicle Safety Act, as amended. The Secretary has delegated the responsibility for carrying out the National Traffic and Motor Vehicle Safety Act to NHTSA.
We note that in 1994, the National Traffic and Motor Vehicle Safety Act, as amended, was repealed and simultaneously codified into 49 U.S.C. Chapter 301,
Under 49 U.S.C. Chapter 301,
Similar to our approach in the area of vehicle identification numbers, we decided to develop a general regulation for EDRs rather than a Federal motor vehicle safety standard. We did not believe it was appropriate to issue an FMVSS that would trigger the statute's recall and remedy provisions, because the benefits of EDRs are expected to be derivative from better crash-related information, rather than having a direct impact on the safety of the individual vehicle equipped with an EDR. A failure to meet the EDR requirements would, however, be subject to an enforcement action. While we have not issued the regulation as an FMVSS, however, we have generally followed the statutory requirements that apply to FMVSSs.
First, this final rule was preceded by an initial request for comments and an NPRM, which facilitated the efforts of the agency to obtain and consider relevant motor vehicle safety information, as well as public comments. Further, in preparing this document, the agency carefully evaluated available research, testing results, and other information related to various EDR technologies. We have also updated our economic estimates and analyses to account for new cost information provided by public commenters. In sum, this document reflects our consideration of all relevant, available motor vehicle safety information.
Second, to ensure that the EDR requirements are practicable, the agency considered the cost, availability, and suitability of requiring various EDR data elements, consistent with our safety objectives. We note that EDRs are already installed on most light vehicles, and because the data elements in the final rule are to a large extent already incorporated in EDRs, we believe that it will be practicable to standardize these data elements in light vehicles voluntarily equipped with EDRs and that such incremental changes will be minor. In light of the steady advances made in EDR technologies over the past few years, we believe that vehicle manufacturers will have a number of technological choices available for meeting the requirements of the final rule for EDRs. In sum, we believe that this final rule is practicable and will provide several benefits, including provision of better pre-crash and crash-related data that may be valuable for designing safer vehicles and for use by medical first responders.
Third, the regulatory text following this preamble is stated in objective terms in order to specify precisely what performance is required and how performance will be tested to ensure compliance with the regulation. Specifically, the final rule sets forth performance requirements for operation of the EDRs, including the type of data that the EDR must capture and record, the data's range/accuracy/resolution, and the data's retrievability.
The final rule also includes test requirements for the survivability of EDR data through reference to existing crash test requirements in other FMVSSs (i.e., Standard Nos. 208 and 214). This approach helps ensure that EDR data survive most crashes without establishing news kinds of vehicle tests. The test procedures under FMVSS Nos. 208 and 214 already carefully delineate how testing is conducted. Thus, the agency believes that these test procedures are sufficiently objective and will not result in any uncertainty as to whether a given vehicle satisfies the requirements of the EDR regulation.
Fourth, we believe that this final rule will meet the need for motor vehicle safety because the EDR regulation will help researchers better understand pre-crash and crash events. Standardization of EDR data should improve the consistency and comparability of these data. This information will be useful to NHTSA, vehicle manufacturers, and other interested stakeholders for a variety of purposes, including developing safety vehicle designs and more effective regulations. In addition, standardized EDR data may be useful for ACN and other systems for providing emergency medical services.
Finally, we believe that this final rule is reasonable and appropriate for motor vehicles subject to the applicable requirements (i.e., light vehicles voluntarily equipped with EDRs). As discussed elsewhere in this notice, the agency has sought to limit the minimum data set in this final rule to those elements necessary to achieve the agency's stated purposes and to minimize the burdens associated with the regulation. We believe that because most EDRs already possess many of these capabilities, any required adjustments should be minor. Accordingly, we believe that this final rule is appropriate for covered vehicles that are or would become subject to these provisions of the EDR regulation because it furthers the agency's objective of preventing deaths and serious injuries through better understanding of crash-related events that may lead to safer vehicle designs and more effective regulations.
(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.
This final rule has been determined to be significant, and the agency has prepared a separate document, a Final Regulatory Evaluation, addressing the benefits and costs for the rule. (A copy is available in the docket for this rulemaking.) As a significant notice, it was reviewed under Executive Order 12866. The rule is also significant within the meaning of the Department of Transportation's Regulatory Policies and Procedures. While the potential cost impacts of the final rule are far below the level that would make this a significant rulemaking, the rulemaking addresses a topic of substantial public interest.
As discussed in that document and in the preceding sections of this final rule, the crash data that will be collected by EDRs under this rule will be valuable for the improvement of vehicle safety. We believe that the EDR data we collect will improve crash investigations, the evaluation of safety countermeasures, advanced restraint and safety countermeasure research and development, and advanced ACN. However, the improvement in vehicle safety will not occur directly from the collection of crash data by EDRs, but instead from the ways in which the data are used by researchers, vehicle manufacturers, ACN and EMS providers, government agencies, and other members of the safety community. Therefore, it is not presently practical to quantify the safety benefits.
We estimate that about 64 percent of new light vehicles are already equipped with EDRs. As discussed earlier, vehicle manufacturers have provided EDRs in their vehicles by adding EDR capability to their vehicles' air bag control systems. The costs of EDRs have been minimized, because they involve the capture into memory of data that is already being processed by the vehicle, and not the much higher costs of sensing much of that data in the first place.
The costs of the rule will be the incremental costs for vehicles equipped with EDRs to comply with the requirements. As discussed in the agency's separate document on benefits and costs, we estimate the total costs of the final rule will range up to $1.7 million. While the potential costs include technology costs, administrative costs, and compliance costs, the administrative and compliance costs are estimated to be negligible. The final rule will not require additional sensors to be installed in vehicles, and the primary technology cost will result from a need to upgrade EDR memory chips. The total cost for the estimated 9.8 million vehicles that already have an EDR function to comply with the regulation will range up to $1.7 million. If manufacturers were to provide EDRs in all 15.5 million light vehicles, the estimated total cost will range up to $10.9 million. A complete discussion of how NHTSA arrived at these costs may be found in the separate document on benefits and costs.
NHTSA has considered the impacts of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) I certify that the final rule will not have a significant economic impact on a substantial number of small entities.
The following is the agency's statement providing the factual basis for the certification (5 U.S.C. 605(b)). This rule directly affects motor vehicle manufacturers, second stage or final manufacturers, and alterers. Business entities are defined as “small businesses” using the North American Industry Classification System (NAICS) code, for the purposes of receiving Small Business Administration assistance. One of the criteria for determining size, as stated in 13 CFR 121.201, is the number of employees in the firm. Affected business categories include the following. To qualify as a small business in: (a) Automotive Manufacturing (NAICS 336111), the
Only four of the 18 motor vehicle manufacturers affected by this rule qualify as a small business. Most of the intermediate and final stage manufacturers of vehicles built in two or more stages and alterers have 1,000 or fewer employees. However, these small businesses adhere to original equipment manufacturers' instructions in manufacturing modified and altered vehicles. Based on our knowledge, original equipment manufacturers do not permit a final stage manufacturer or alterer to modify or alter sophisticated devices such as air bags or EDRs. Therefore, multistage manufacturers and alterers will be able to rely on the certification and information provided by the original equipment manufacturer. Accordingly, there will be no significant impact on small business, small organizations, or small governmental units by these amendments.
Executive Order 13132 sets forth principles of federalism and the related policies of the Federal government. As noted above, NHTSA expects that general principles of preemption law would operate so as to displace any conflicting State law or regulations (for further discussion of preemption, see section IV.B.9 above).
NHTSA sought comment from all stakeholders on the issue of preemption through publication of the proposed rule in the
Additionally, officials at NHTSA consulted with organizations representing the interests of state and local governments and officials about this rulemaking and the issue of preemption.
NHTSA has complied with Executive Order 13132 and has determined that this final rule is consistent with its provisions.
When promulgating a regulation,
NHTSA has reviewed this final rule according to the general requirements and the specific requirements for regulations set forth in
Because the EDR final rule is not an economically significant regulatory action under Executive Order 12866 and does not involve decisions based upon health and safety risks that disproportionately affect children, no further analysis under Executive Order 13045 is necessary.
GM DaimlerChrysler, Ford, and Toyota commented that the agency's NPRM underestimated the paperwork burden associated with section 563.12's requirement for filing technical instructions for manufacturing download devices for each vehicle model. The NPRM estimated those paperwork costs as 20 hours per year per manufacturer. GM's rationale is that the proposed requirement to file this information 90 days prior to the start of production for each vehicle model would require a continuous stream of data filings for the multiple vehicle launches that full-line manufacturers have throughout the calendar year. According to GM, each filing would involve a compilation of the technical data, as well as technical and legal review, tasks which would require more than 20 hours of work for each vehicle model.
These concerns have been addressed because we have decided not to adopt the proposed provision, so deleting those reporting requirements eliminates the paperwork costs that had been associated with this rulemaking. Thus, there are not any information collection requirements associated with this final rule.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272) directs the agency to evaluate and use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or is otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers. The NTTAA
There are several consensus standards related to EDRs, most notably those standards published by SAE and IEEE. NHTSA has carefully considered the consensus standards applicable to EDR data elements. Consensus standards for recording time/intervals, data sample rates, data retrieval, data reliability, data range, accuracy and precision, and EDR crash survivability were evaluated by NHTSA and adopted when practicable.
In this final rule, we have incorporated by reference SAE Recommended Practice J211-1, March 1995, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation.” For those manufacturers that prefer to record acceleration data instead of or in addition to delta-V, SAE J211-1 provides a standard for filtering the acceleration data that are then converted to delta-V either during the recording period or in the data downloading process.
Previously in this notice, NHTSA has explained why other voluntary consensus standards were not adopted for certain technical standards set forth in this rule. For further analysis of the incorporation of consensus standards, please refer to section IV.B.14 above.
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 in any one year (adjusted for inflation with base year of 1995). Section 205 of the UMRA generally requires that, before promulgating a rule for which a written statement is needed, NHTSA identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.
This rule does not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. The rule does not result in the expenditure by State, local, or tribal governments, or the private sector, in the aggregate, or more than $118 million annually (2004 dollars). Thus, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.
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
Incorporation by reference, Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements.
49 U.S.C. 322, 30101, 30111, 30115, 30117, 30166, 30168; delegation of authority at 49 CFR 1.50.
This part specifies uniform, national requirements for vehicles equipped with event data recorders (EDRs) concerning the collection, storage, and retrievability of onboard motor vehicle crash event data. It also specifies requirements for vehicle manufacturers to make tools and/or methods commercially available so that crash investigators and researchers are able to retrieve data from EDRs.
The purpose of this part is to help ensure that EDRs record, in a readily usable manner, data valuable for effective crash investigations and for analysis of safety equipment performance (e.g., advanced restraint systems). These data will help provide a better understanding of the circumstances in which crashes and injuries occur and will lead to safer vehicle designs.
This part applies to the following vehicles manufactured on or after September 1, 2010, if they are equipped with an event data recorder: passenger cars, multipurpose passenger vehicles, trucks, and buses with a GVWR of 3,855 kg (8,500 pounds) or less and an unloaded vehicle weight of 2,495 kg (5,500 pounds) or less, except for walk-in van-type trucks or vehicles designed to be sold exclusively to the U.S. Postal Service. This part also applies to manufacturers of those vehicles. However, vehicles manufactured before September 1, 2011 that are manufactured in two or more stages or that are altered (within the meaning of 49 CFR 567.7) after having been previously certified to the Federal motor vehicle safety standards in accordance with Part 567 of this chapter need not meet the requirements of this part.
The materials listed in this section are incorporated by reference in the corresponding sections as noted. These incorporations by reference were approved by the Director of the Federal Register in accordance with 5 U.S.C. 522(a) and 1 CFR part 51. Copies of these materials may be inspected at the National Highway Traffic Safety Administration, Technical Information
(a) The following materials are available for purchase from the Society of Automotive Engineers, Inc., 400 Commonwealth Drive, Warrendale, PA 15096-0001.
(1) Society of Automotive Engineers (SAE) Recommended Practice J211-1 rev. March 1995, “Instrumentation For Impact Test—Part 1—Electronic Instrumentation” SAE J211-1 (rev. March 1995) is incorporated by reference in Table 3 of § 563.8;
(2) [Reserved]
(b) [Reserved]
(a)
(b)
Each vehicle equipped with an EDR must meet the requirements specified in § 563.7 for data elements, § 563.8 for data format, § 563.9 for data capture, § 563.10 for crash test performance and survivability, and § 563.11 for information in owner's manual.
(a)
(b)
(a) The data elements listed in Tables I and II, as applicable, must be recorded in accordance with the range, accuracy, resolution, and filter class specified in Table III.
(b) Acceleration Time-History data and format: The longitudinal, lateral, and normal acceleration time-history data, as applicable, must be filtered in accordance with the filter class specified in Table III either during the recording phase or during the data downloading phase to include:
(1) The Time Step (TS) that is the inverse of the sampling frequency of the acceleration data and which has units of seconds;
(2) The number of the first point (NFP), which is an integer that when multiplied by the TS equals the time
(3) The number of the last point (NLP), which is an integer that when multiplied by the TS equals the time relative to time zero of the last acceleration data point; and
(4) NLP−NFP+1 acceleration values sequentially beginning with the acceleration at time NFP*TS and continue sampling the acceleration at TS increments in time until the time NLP*TS is reached.
The EDR must capture and record the data elements for events in accordance with the following conditions and circumstances:
(a) In an air bag deployment crash, the data recorded from any previous crash must be deleted (both events). The data related to the deployment must be captured and recorded. The memory must be locked to prevent any future overwriting of these data.
(b) In an air bag non-deployment crash that meets the trigger threshold, delete all previously recorded data in the EDR's memory. Capture and record the current data, up to two events. In the case of two events, detection of the second event starts after the End of Event Time for event 1.
(a) Each vehicle subject to the requirements of S5, S14.5, S15, or S17 of 49 CFR 571.208,
(b) Each vehicle subject to the requirements of 49 CFR 571.214,
(c) The data elements required by § 563.7, except for the “Engine throttle, percent full,” “engine RPM,” and “service brake, on/off,” must be recorded in the format specified by § 563.8, exist at the completion of the crash test, and be retrievable by the methodology specified by the vehicle manufacturer under § 563.12 for not less than 10 days after the test, and the complete data recorded element must read “yes” after the test.
(a) The owner's manual in each vehicle covered under this regulation must provide the following statement in English:
This vehicle is equipped with an event data recorder (EDR). The main purpose of an EDR is to record, in certain crash or near crash-like situations, such as an air bag deployment or hitting a road obstacle, data that will assist in understanding how a vehicle's systems performed. The EDR is designed to record data related to vehicle dynamics and safety systems for a short period of time, typically 30 seconds or less. The EDR in this vehicle is designed to record such data as:
• How various systems in your vehicle were operating;
• Whether or not the driver and passenger safety belts were buckled/fastened;
• How far (if at all) the driver was depressing the accelerator and/or brake pedal; and,
• How fast the vehicle was traveling.
These data can help provide a better understanding of the circumstances in which crashes and injuries occur. NOTE: EDR data are recorded by your vehicle only if a non-trivial crash situation occurs; no data are recorded by the EDR under normal driving conditions and no personal data (e.g., name, gender, age, and crash location) are recorded. However, other parties, such as law enforcement, could combine the EDR data with the type of personally identifying data routinely acquired during a crash investigation.
To read data recorded by an EDR, special equipment is required, and access to the vehicle or the EDR is needed. In addition to the vehicle manufacturer, other parties, such as law enforcement, that have the special equipment, can read the information if they have access to the vehicle or the EDR.
(b) The owner's manual may include additional information about the form, function, and capabilities of the EDR, in supplement to the required statement in § 563.11(a).
Each manufacturer of a motor vehicle equipped with an EDR shall ensure by licensing agreement or other means that a tool(s) is commercially available that is capable of accessing and retrieving the data stored in the EDR that are required by this part. The tool(s) shall be commercially available not later than 90 days after the first sale of the motor vehicle for purposes other than resale.
Centers for Medicare & Medicaid Services (CMS), HHS.
Interim final rule with comment period.
This interim final rule with comment period sets forth the State requirements to provide information to us for purposes of estimating improper payments in Medicaid and SCHIP. The Improper Payments Information Act of 2002 (IPIA) requires heads of Federal agencies to estimate and report to the Congress annually these estimates of improper payments for the programs they oversee, and submit a report on actions the agency is taking to reduce erroneous payments.
This interim final rule with comment responds to the public comments on the October 5, 2005 interim final rule and sets forth State requirements for submitting claims and policies to the Federal contractor for purposes of conducting FFS and managed care reviews. This interim final rule also sets forth and invites further comments on the State requirements for conducting eligibility reviews and estimating payment error rates due to errors in eligibility determinations.
In commenting, please refer to file code CMS-6026-IFC2. 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.
(Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.
For information on viewing public comments, see the beginning of the
Janet E. Reichert, (410) 786-4580. Elizabeth Pham, (410) 786-7703.
Comments received in a timely manner will be also 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.
The Improper Payments Information Act of 2002 (IPIA), Public Law 107-300, enacted on November 26, 2002, requires the heads of Federal agencies annually to review programs they oversee that are susceptible to significant erroneous payments, and to estimate the amount of improper payments, to report those estimates to the Congress, and to submit a report on actions the agency is taking to reduce erroneous expenditures. The IPIA directed the Office of Management and Budget (OMB) to provide guidance on implementation. OMB defines significant erroneous payments as annual erroneous payments in the program exceeding both 2.5 percent of program payments and $10 million (OMB M-03-13, May 21, 2003). For those programs with significant erroneous payments, Federal agencies must provide the estimated amount of improper payments and report on what actions the agency is taking to reduce them, including setting targets for future erroneous payment levels and a timeline by which the targets will be reached.
According to OMB directives, Federal agencies must include in the report to the Congress: (1) The estimate of the
The Medicaid and SCHIP programs were identified by OMB as programs at risk for significant erroneous payments. OMB directed the Department of Health and Human Services (DHHS) to report the estimated error rates for the Medicaid and SCHIP programs each year for inclusion in the Performance and Accountability Report (PAR).
Through the Payment Accuracy Measurement (PAM) and Payment Error Rate Measurement (PERM) pilot projects that CMS operated in Fiscal Years (FYs) 2002 through 2005, we developed a claims-based review methodology designed to estimate State-specific payment error rates for all adjudicated claims within 3 percent of the true population error rate with 95 percent confidence. An “adjudicated claim” is a claim for which either money was obligated to pay the claim (paid claims) or for which a decision was made to deny the claim (denied claims).
We published a proposed rule on August 27, 2004 (69 FR 52620) to comply with the requirements of the IPIA and the OMB guidance. Based on the methodology developed in the pilot projects, the proposed rule set forth provisions for all States annually to estimate improper payments in their Medicaid and SCHIP programs and to report the State-specific error rates for purposes of our computing the national improper payment estimates for these programs. The intended effects of the proposed rule were to have States measure improper payments based on fee-for-service (FFS), managed care, and eligibility reviews; to identify errors to target corrective actions; to reduce the rate of improper payments; and to produce a corresponding increase in program savings at both the State and Federal levels.
After extensive analysis of the issues related to having States measure improper payments in Medicaid and SCHIP, including public comments on the provisions in the proposed rule, we revised our approach. Our revised approach adopted the recommendation to engage Federal contractors to review State Medicaid and SCHIP FFS and managed care payments (we define the term “claims” to include both managed care capitation payments and FFS line items) and to calculate the State-specific and national error rates for Medicaid and SCHIP. (States will calculate the State-specific eligibility error rates. Based on these rates, the Federal contractor will calculate the national eligibility error rate for each program.) We also adopted the recommendation to sample a subset of States each year rather than to measure every State every year. We adopted these recommendations primarily in response to commenters' concerns with the cost and burden to implement the regulatory provisions that the proposed rule would have imposed on States.
Since our revised approach deviated significantly from the approach in the proposed rule, we published an interim final rule with comment period on October 5, 2005 (70 FR 58260). The October 5th interim final rule with comment period responded to the public comments on the proposed rule, and informed the public of our national contracting strategy and of our plan to measure improper payments in a subset of States. Our State selection will ensure that a State will be measured once, and only once, every 3 years in each program.
The October 5, 2005 interim final rule also set forth the types of information that States would submit to the Federal contractors for the purpose of estimating Medicaid and SCHIP FFS improper payments. The October 5, 2005 interim final rule invited further comments on methods for estimating eligibility and managed care improper payments. We received very few comments regarding managed care and a number of comments regarding eligibility. Based on the public comments, we developed an approach to measuring eligibility errors and, through this second interim final rule, invite further public comments on this eligibility methodology. Section 1102(a) of the Social Security Act (the Act) authorizes the Secretary to establish such rules and regulations as may be necessary for the efficient administration of the Medicaid and SCHIP programs. Medicaid statute at section 1902(a)(6) of the Act and SCHIP statute at section 2107(b)(1) of the Act require States to provide information that the Secretary finds necessary for the administration, evaluation, and verification of the State's program. Also, section 1902(a)(27) of the Act (and 42 CFR 457.950) requires providers to submit information regarding payments and claims as requested by the Secretary, State agency, or both.
Under the authority of these statutory provisions, this second interim final rule requires those States selected for review in any given year for the Medicaid or SCHIP improper payments measurement to provide the Federal contractors with information needed to conduct medical and data processing reviews on FFS claims and data processing reviews on managed care claims. (Managed care claims are not subject to medical review because managed care payments are based on capitated payments made per enrollee, not on the individual services provided.)
The States selected for PERM must provide:
(a) All adjudicated FFS and managed care claims information from the review year, on a quarterly basis, with FFS claims stratified by type of service;
(b) Upon request from the contractor, provider contact information that has been verified by the State as current;
(c) All medical and other related policies in effect and any quarterly policy updates;
(d) Current managed care contracts, rate information, and any quarterly updates to the contracts and rates for the review year for SCHIP and, as requested, for Medicaid;
(e) Data processing systems manuals;
(f) Repricing information for claims that are determined to have been improperly paid;
(g) Information on claims that were selected as part of the sample, but which changed in substance after selection, for example, successful provider appeals;
(h) Adjustments made within 60 days of the adjudication dates for the original claims or line items with sufficient information to indicate the nature of the adjustments and to match the adjustments to the original claims or line items;
(i) A corrective action report for purposes of reducing the payment error rate in the FFS, managed care and eligibility components of the program; and
(j) Other information that the Secretary determines is necessary for, among other purposes, estimating improper payments and determining error rates in Medicaid and SCHIP.
We expect to be compliant with IPIA requirements by 2008. We are measuring Medicaid FFS improper payments in FY 2006 and plan to have all components (FFS, managed care and eligibility) of Medicaid and SCHIP measured in FY 2007 and beyond. We delayed announcing a methodology for
In the October 5, 2005 interim final rule, we stated that it was still possible that States sampled for review would be required to conduct eligibility reviews as described in our approach to the proposed rule. We also announced in the October 5, 2005 interim final rule our intentions to establish an eligibility workgroup to make recommendations on the best approach for reviewing Medicaid and SCHIP eligibility within the confines of current statute, with minimal impact on States and additional discretionary funding. We convened an eligibility workgroup comprised of DHHS [including CMS and, in an advisory capacity, the Office of the Inspector General (OIG)], OMB, and representatives from two States. We determined that States should conduct the eligibility measurement based on the workgroup's consideration of public comments and the examination of various approaches proposed in such comments. We also developed a review methodology, which we have outlined in this interim final rule with comment period and invite further public comment on these eligibility error measurement provisions.
Thus, in FY 2007 and beyond, we expect to have Federal contractors measure improper payments in the FFS and managed care components of Medicaid and SCHIP, and have States selected for these reviews in any given year measure the error rate in their respective determinations of program eligibility. These measurements will produce State-specific error rates for the three components—FFS, managed care and eligibility—as well as composite program error rates for the State's Medicaid and SCHIP programs. From the State-specific error rates, we will calculate national error rates for each of the components and for the Medicaid and SCHIP program.
We expect State corrective actions to address the causes of error in each of the three program components. As a result, we expect States will reduce their error rates over the course of each measurement cycle which, in turn, should reduce the national error rates.
We published an interim final rule with comment period on October 5, 2005 that responded to comments on the August 27, 2004 proposed rule and informed the public that we will use a national contracting strategy to estimate improper payments in Medicaid and SCHIP FFS in a subset of States rather than every State every year. We adopted this approach based on public comments on the proposed rule.
Medicaid State Selection. We will use a rotational approach to review the States in Medicaid. For each fiscal year, we expect to measure 17 States. The result is that each State will be measured once, and only once, every 3 years. The rotation allows States to plan for the reviews because States know in advance in which year they will be measured.
In determining the Medicaid State selection, we grouped all States into three equal strata of small, medium, and large based on the States' most recently available FFS annual expenditure data. We randomly selected up to six States from each stratum each year, until we selected all States for review over the current and next 2 fiscal years (that is, FY 2006 through FY 2008). (The third stratum with the large States (based on annual expenditures) was substratified into two strata of 8 and 9 States. Two States were selected from one substratum and three States were selected from the other substratum. We selected 6 States each from the “small” and “medium” strata for a total of 17 States.)
The States selected for Medicaid FFS review in FY 2006, and Medicaid FFS, managed care, and eligibility reviews in FY 2007 and FY 2008 are listed below. At the end of the 3-year period, the rotation will repeat so that the Medicaid FY 2006 States will be reviewed in FY 2009; the Medicaid FY 2007 States will be reviewed in FY 2010; and the Medicaid FY 2008 States will be reviewed in 2011. We announced the Medicaid State selection rotation through a State Health Official Letter transmitted November 18, 2005.
SCHIP State Selection. Subsequent to the Medicaid State selection for PERM reviews, we completed the SCHIP State selection. We determined that SCHIP can be measured in the same States selected for Medicaid review each fiscal year with a high probability that the SCHIP error rate will meet OMB requirements for confidence and precision levels. Since SCHIP and Medicaid will be measured in the selected States at the same time, each State will be measured for SCHIP once and only once every three years. We will send a State Health Official Letter regarding the SCHIP State selection as we did on the Medicaid State selection.
We believe that paralleling the SCHIP and Medicaid mesaurements will minimize administrative complexities for both CMS and the States. Measuring
As with Medicaid, we expect to measure improper payments in all components (FFS, managed care, and eligibility) of SCHIP in FY 2007 and beyond. For States measured for Medicaid FFS in FY 2006, SCHIP will be measured in FY 2009.
Under the national contracting strategy, we will use Federal contractors to measure Medicaid and SCHIP FFS and managed care improper payments. For FY 2006, we have engaged three contractors: (1) A statistical contractor (SC); (2) a documentation/database contractor (DDC); and (3) a review contractor (RC). The use of three Federal contractors allows for the award of contracts in areas of specialization and expertise, minimizes potential problems if one contractor experiences operational difficulties, and provides CMS with optimum oversight.
The SC collects adjudicated claims data, determines the sample size, draws the sample, and calculates the State and national error rates. The DDC collects and stores State medical and other related policies, and requests the medical records from providers for the FFS medical reviews. The RC conducts the medical and data processing reviews.
The States selected for review will submit to the SC the following information for Medicaid and SCHIP:
• All adjudicated FFS and managed care claims information from the review year on a quarterly basis, with FFS claims stratified into seven strata by service type and one additional stratum for denied claims;
• Information on claims that were selected as part of the sample, but which changed in substance after selection (for example, successful provider appeals); and
• Adjustments made within 60 days from the adjudication dates for the original claims or line items, with sufficient information to indicate the nature of the adjustments and to match the adjustments to the original claims or line items.
States are requested to provide stratified FFS claims data because stratifying the claims by service type improves the efficiency of the sampling methodology by distributing the claims in the sample in proportion to the dollar share in the universe. Stratification allows services with a larger dollar share to compose a larger share of the sample and reduces the variance in the sample. Stratifying the claims also allows for smaller sample sizes and for the identification of errors in specific service types so that States can systematically target causes of errors.
The SC will work with States and will compare the data submitted to recent data to help establish that the data are complete. Based on the annual expenditure data, the SC will determine the State's sample size and, for FFS claims, the sample size for each of the eight total strata. These strata were established during the pilot projects based on the total share of dollars. In addition, States had already grouped their claims similarly in their Medicaid Management Information System (MMIS); therefore, we believe that the stratification of claims for submission should not be burdensome to States. Stratification of the claims also provides States with information regarding the service areas where the errors are concentrated so that States can better target corrective actions.
The strata are: (1) Hospital services; (2) long term care services; (3) other independent practitioners and clinics; (4) prescription drugs; (5) home and community based services; (6) other services and supplies (for example, durable medical equipment, clinical lab tests, and x-rays); (7) primary care case management; and (8) denied claims. We expect that the average sample size will be 1,000 FFS claims and 500 managed care claims per State program in order to achieve a 3 percent precision level at the 95 percent confidence level (based on a range estimated during the PAM/PERM pilots).
From the State's quarterly adjudicated claims data, the SC will randomly select a sample of FFS and managed care claims each quarter. The State will stratify the FFS claims before submitting the data to the SC. Each selected FFS claim will be subjected to a medical and data processing review. Managed care claims will not be stratified and will not be subject to medical reviews because the payments that are made to a managed care plan are based on a set fee from a predetermined capitation agreement, rather than for the specific service(s) provided.
States selected for review will provide the DDC the following information for Medicaid and SCHIP:
• All medical and other related policies in effect for the review year and any quarterly policy updates;
• Current managed care contracts, rate information, and any quarterly updates to contracts and rates for the review year for SCHIP and, as requested, for Medicaid; and
• Upon request from the contractor, provider contact information that has been verified by the State as current.
States selected for review will provide the RC the following information for Medicaid and SCHIP:
• Systems manuals for data processing reviews. (If a State's medical and data processing policies are intertwined, the State may send the policies to the DDC. The DDC will then identify the data processing policies so the RC can access them through the DDC.
• Repricing information, as requested by the RC, for claims that the RC determines to be improperly paid. The RC will request that States reprice claims that are found to be in error so that the RC is able to determine the amount of the improper payment.
The RC will use the information collected by the DDC to conduct the medical reviews. The RC will conduct the data processing reviews, most likely on-site, using the systems information provided by the State. The RC will, at a minimum, send monthly disposition reports to the States. The disposition reports will list the contractor's review findings for each sampled claim. States can review these findings and notify the RC if they identify errors they believe should be reversed. The RC will work with States to resolve differences in findings. If the State finding prevails, the RC will reverse the error finding. If the RC's finding is upheld, the error finding will stay in the calculation of the error rate.
When the reviews are completed, the SC will estimate the State-specific error rates for the FFS and managed care components of the Medicaid and SCHIP programs, as well as national program error rates and national component error rates. The States will review their error rates; determine root causes of error-prone areas and develop corrective actions to address the error causes for purposes of reducing the payment error rates.
States selected for review will provide us with the following information for Medicaid and SCHIP:
• A corrective action report for purposes of reducing the State's payment error rates in the FFS, managed care, and eligibility components of the program; and
• Other information that the Secretary determines necessary for, among other purposes, estimating improper payments and determining error rates in Medicaid and SCHIP.
We will notify selected States regarding any additional information that may be necessary for determining error rates in Medicaid and SCHIP. We do not expect to request additional information other than the information we have specified in this interim final rule with comment period. However, we would necessarily request information we find during the course of measuring each program that would improve the process, produce more accurate error rates, or reduce the cost and burden on either or both the State and Federal governments. Similarly, if we determined that we are collecting specific information that does not add value to the error rate measurement or is not productive to collect, we would discontinue that collection. Once the State-specific and national error rates are estimated, the States will develop and send to us corrective action reports describing corrective actions that the States will implement to reduce the incidence of improper payments.
The process for measuring improper payments, called the “production cycle,” under the national contracting strategy will take approximately 23 months per cycle. For example, the measurement for FY 2006 (which involves the reviews of adjudicated Medicaid FFS claims during October 2005 through September 2006) begins October 1, 2005 and will be completed by August 30, 2007. The results will be included in the FY 2007 PAR, which is published in November 2007. Using FY 2006 as an example, the following table provides an approximate overview of the PERM process. It is important to note that the process is fluid, so timeframes may fluctuate slightly depending on such factors as the complexities of the reviews.
In the October 5, 2005 interim final rule, we invited comments on methods for measuring improper payments in eligibility in Medicaid and SCHIP. We stated in the October 5, 2005 interim final rule that the States sampled for the Medicaid or SCHIP FFS and managed care reviews in any year may be required to conduct eligibility reviews as set out in the proposed rule. To develop the eligibility measurement, we convened a workgroup comprised of DHHS (including CMS and, in an advisory role, the OIG), OMB, and representatives from two States. The workgroup considered public comments and made recommendations on the best method to measure Medicaid and SCHIP eligibility improper payments within the confines of current law, and with minimal impact on States and on additional discretionary funding.
We also invited comments on managed care review. We received few comments on measuring this component. We developed a plan for measuring managed care improper payments in a manner similar to the managed care reviews conducted under the PERM pilot. We have addressed comments received on eligibility and managed care in this interim final rule.
CMS received a total of 30 comments: 27 from State agencies (including one territory) and 3 from consumer advocacy and other groups. These commenters reiterated many of the comments from the proposed rule to which we responded in the October 5, 2005 interim final rule. Although we are not required to respond to these comments again, we are summarizing the comments in this interim final rule and providing our responses for the convenience of the reader. However, it is important to note that we are bound by, and therefore cannot change, the requirements of the IPIA, the OMB guidance (such as inclusion of denied claims), and section 1903(d)(2) of the Act governing recoveries. Current regulations at 42 CFR part 433, subpart F and 42 CFR part 457, subparts B and F are not addressed by this rulemaking. Below are the comments on the October 5, 2005 interim final rule, grouped by topic, and our responses as follows:
Overall, comments on the October 5, 2005 interim final rule supported our efforts in assuring that Medicaid and SCHIP payments are correct. Many commenters indicated that although the
There is no national sampling framework for SCHIP claims, and the Medicaid Statistical Information Statistics (MSIS) data for Medicaid are too old to produce meaningful data on which States could base effective corrective actions. As such, we are not abandoning State rates for only a national rate. We will use the State rates as the basis for the national rates and States can use their individual results as the basis for corrective actions.
The States selected will also conduct the eligibility measurement. The States will be reimbursed for these activities at the applicable administrative Federal match under Medicaid and SCHIP. As part of the rulemaking process, we have evaluated and determined that the burden and cost of these responsibilities will not significantly impact the States.
• Will CMS set an arbitrary target level or use baseline empirical data, when available?
• Will each State be measured against its individual past performance or a national average?
• What are the incentives for having a lower error rate or disincentives for a higher estimate?
• What recourse will a State have if, due to understated CMS cost estimates coupled with the State's budgetary constraints, it is unable to satisfy its PERM process obligation?
We aim to work in partnership with States in this endeavor. Thus far, in collecting claims data and medical policies for the FY 2006 measurement, States have been very cooperative and helpful and have not experienced any insurmountable problems in submitting the information.
We believe our cost estimates are accurate and we have minimized the burden as much as possible through the use of Federal contractors and reviewing a subset of States rather than every State every year.
• The contractors will need to learn States' policies, including States' waivers, which would mean the States would have to educate each one of the contractors;
• The fact that three different contractors may have three different standards or procedures is problematic and may skew the error rates;
• The separate contractors may not share data and communicate effectively to complete the reviews; and
• The work should be consolidated for one main contractor or for one lead national contractor to coordinate the processes of the other subcontractors to give consistency to the requirements.
• Success would require the contractors to have extensive knowledge of State policies and procedures to be aware of what might constitute special handling of a particular claim, and to know where to find documentation or authority to approve the service or item for payment;
• The contractor may not be well situated to fully grasp the nuances of each individual State program without a very close working relationship with State staff; and
• The rule should require the national contractor to collaborate with each program being reviewed during each stage of the review process (medical records, processing, and eligibility).
• Since the States are required to share all of their claims processing procedures, policies and provider enrollment, and payment methodologies with the Federal contractor(s), there is a need for a clear process to enable States to know what steps are taken by the contractor(s) working on the PERM project and to re-review error findings.
• CMS should make arrangements for a public review of the PERM protocols and the contractor's performance, including input from State agencies, provider organizations and other public entities.
• The use of a Federal contractor increases the need for outside oversight and review because the procedures will be less transparent to States and other parties who are affected by the policies.
States will also be able to review the contractor's claim determinations and resolve any differences in findings through the difference resolution process, which provides States with a level of outside oversight and review.
Information regarding the procurement of Medicaid PERM contractors was posted on FedBizOpps.gov during the procurement process for public review. Information regarding the statistical contract was posted on August 4, 2005, the documentation/database contract on August 10, 2005, and the review contract on August 18, September 19, and October 14, 2005. We anticipate using the same standards set in the Medicaid procurement to engage the contractors (statistical, documentation/database, and review) for the SCHIP measurement. The performance and monitoring of the PERM contractors is a Federal responsibility, and we will oversee their work.
• CMS needs to adopt specific procedures for how fraudulent claims and providers under investigation will be handled.
• Such claims should be excluded from the PERM process to avoid interfering or compromising the investigation.
• The contractor should consult with the States before contacting providers so
• Including such claims under active investigation would result in a decrease in response rate and skew the error rate.
• The contractor could over-sample the strata on a quarterly basis to allow for the substitution of claims under investigation; and that CMS should allow for at least 5 percent of the claims sample to be dropped for claims that are under active investigation.
We intend for the PERM program to be an independent measurement; however, States can use the information from PERM in conjunction with information from their own payment integrity programs to efficiently and effectively target corrective actions and improve program performance.
• CMS has obligated States to provide whatever technical assistance is needed for the contractor to perform the reviews. Clear guidelines will enhance State and provider understanding. This in turn will improve cooperation, compliance, quality, and accuracy;
• States need to understand the processes, standards and requirements in order to develop and implement effective corrective action plans that will address the payment errors identified in the reviews; and
• The guidance already developed cooperatively with CMS and the States should be used along with nationally recognized review criteria.
• Explaining the difference between a medical necessity review and a comprehensive medical review, including defining the components of each type of review;
• Omitting the words, “if applicable” pertaining to prior authorizations;
• Providing more guidance on how a claim line versus a claim will be reviewed; and,
• Providing more detailed sections specific to personal care service providers.
The eligibility error rate and the medical and processing review error rates will be calculated independently for the two respective samples. They will be combined into a single, total error rate under the assumption that the types of errors (that is, eligibility, medical and processing reviews) are independent. “Independence” means that the probability of a processing or medical review error on a given claim or line item is not related to the probability of an eligibility error for the recipient of the services implied by the claim or line item. In making this assumption, we considered the results from the PAM Year 3 pilot study. In those States that subjected the same sampling unit to a full eligibility review and medical and processing reviews, the data suggested that the two types of errors were independent (though this finding is limited because the sample sizes were small).
As the methodology for combining both samples for “total” error rate is implemented, we plan to monitor the individual results. In particular, over time there will be some overlap between the beneficiaries reviewed for eligibility review and the claims of those beneficiaries reviewed for medical and processing reviews. This will allow us to test the independence assumption as this type of data accumulates. In practice, the independence assumption will overstate the error rate significantly only if eligibility and medical and processing review errors are highly correlated. There is no evidence at this time that there is a dependence or correlation of the samples.
• CMS should comply with requirements under the Sunshine Act;
• The workgroup has been formed without the opportunity for public participation and no information has been sent to States on it, nor was there an opportunity for interested States to participate in the workgroup;
• There should be an opportunity for States to submit their comments to the workgroup and a procedure for input before the promulgation process;
• States included in the workgroup (that is, New Jersey) have not participated in previous PERM pilots; and,
• The eligibility workgroup should include presentations from States with and without PAM or PERM pilot experience in Medicaid and SCHIP.
Nonetheless, States and the public were offered the opportunity, through the rulemaking process of both the proposed rule and the October 5, 2005 interim final rule, to submit comments and recommendations on the best measurement for eligibility errors and to express concerns. Public comments were considered by both the workgroup in making recommendations, and by CMS in crafting this interim final rule to incorporate the views of the public. Moreover, we are publishing this rule as an interim final rule with comment period rather than a final rule to provide the opportunity for further public comment on the PERM eligibility review requirements.
To solicit State participation in the workgroup, we contacted the American Public Human Services Association (APHSA) and we were notified of two States they selected for the workgroup. We believe that participation in the PAM or PERM pilots was not necessary to provide valuable input in the workgroup because the pilots demonstrated many problems with a claims-based sample and the States commented on these problems.
• The rule should allow States to formally review all errors using the documentation, including State reimbursement or billing policies used by the contractor to determine errors, before a final set of State-specific or national estimates are made;
• States will need a report with error codes to evaluate whether the error determination was appropriate;
• The Federal contractor should be required to hold an exit conference with the State before the findings are categorized as errors; and,
• CMS should revise the rule to clarify how and when the contractor would be able to validate the errors and resolve any discrepancies with the States.
At least monthly, the RC will provide the State with a disposition report. The disposition report includes the review determinations of the medical and data processing reviews for each sampled claim reviewed for the time period covered by the disposition report. The RC will make available information on which it based its findings so that the State can agree or disagree with the findings. A State can file a disagreement with a finding by sending a written request to the RC. If the RC agrees with the State, the RC will send the corrected findings to the SC. The SC will then delete the error and recalculate the error rate. If the State and the RC cannot resolve the difference in findings, the State may appeal to CMS for final resolution.
• The use of the language “that include but are not limited to” in conjunction with the language in 42 CFR 431.970(g) means that CMS could require States to report State-specific payment error rates for Medicaid and SCHIP. The commenter argued that § 431.970 should reflect CMS' intention
• Section 431.971, paragraph (g) would require States to provide “other information that the Secretary deems necessary for, among other purposes, estimating improper payments, and determining error rates.” The commenter believed that the rule was intended to govern only estimating improper payments and error rates and that CMS had other authority under Federal law to demand information necessary for the administration of the Medicaid program. The commenter argued that the phrase “among other purposes” is not within CMS' authority under the IPIA, is unnecessary, and should be deleted.
• Experience with the PERM pilot project indicates that this work will require more than 1,630 hours, with one commenter believing that it would require 4,000 to 5,000 hours of State effort.
• The estimation of 800 hours for the sole purpose of submitting the quarterly stratified claims data (200 FTE hours per quarter) leaves only 830 budgeted hours left for each State's program to perform all other functions, which seems inadequate.
• The estimates do not incorporate the appropriate sample sizes, or account for the expanded scope of PERM or other tasks.
• Become International Organization for Standardization (ISO) compliant and registered within one year of being awarded its contract;
• Perform a second level review on each sampling unit determined to have a payment error and on a 10 percent random sample of all other sampling units.
• CMS assumes that the contractor will operate with minimal State technical assistance. Because of the complexities of State programs, the commenters believed that it will be difficult for a Federal contractor to become proficient in evaluating how claims are processed and reviewed in all 50 States without constant guidance from the States.
• This will require a substantial commitment of the States' resources, from multiple program areas and from the States' contractors, to support initial contractor start-up and follow-up with contractors on State policies.
• It is difficult to gauge the technical assistance that States must provide because the contractor's capabilities are unknown.
• CMS should consider additional support to States during the start-up phase; the initial time would be most onerous since States are transferring a large body of information for medical reviews, systems, and provider information to PERM contractors; and
• Since CMS did not issue final plans for the PERM model until recently, States have not received budgetary approval to support this initiative. CMS should consider fully funding these costs until such time that they can be included in an approved State budget.
We understand that States may need to receive budgetary approval in advance and we have selected States for review in a manner that allows for States to plan for the reviews.
• Data analysis—an analysis of the findings to identify where and why errors are occurring.
• Program analysis—an analysis of the findings to determine the causes of errors in program operations.
• Corrective action planning—steps taken to determine cost-effective actions that can be implemented to correct error causes.
• Implementation—plans to operationalize the corrective actions, including milestones and a timeframe for achieving error reduction.
• Monitoring and evaluation—to assess whether the corrective actions are in place and are effective at reducing or eliminating error causes.
States will monitor implemented corrective actions to determine whether the actions are effective and whether milestones are being reached.
• Claims with only “technical errors” that do not affect payment should not be disallowed;
• The date of discovery of overpayments should be the date that the State agency confirms that an error had occurred;
• The Federal share of the overpayments should be offset by the amount of underpayments identified by the review, and overpayments should be returned to CMS within 60 days after the actual recovery of the overpayments and not 60 days after the overpayment is identified;
• CMS should not be permitted to offset any alleged overpayments until a State's appeal has been resolved;
• Any offset amount should be further reduced by an agreed-upon factor to represent the actual claims adjustments that were made but were not included in the payment error rate methodology that would inflate or exaggerate the amount of overpayments made;
• Identified overpayments should not be subject to the 60 day rule until such time that the State agreed that an overpayment had occurred or administrative remedies available to the State had been exhausted; and
• It is problematic that States would be required to return Federal funds even when recoupment on claims proved impossible (for example, when a provider was terminated or could not be located).
• CMS should not require States to repay the Federal share of erroneous payments identified via PERM reviews;
• It would pose significant problems to States' budgets and accounting systems if CMS applied States' error rates to the total expenditure of the States' Medicaid programs and sought recoupment at the universe level, rather than on specific claims found to have been paid inaccurately;
• The corrective action plan to reduce the error rate is the intended output of this study, not recoveries;
• If CMS pursues an alternative payment recovery from the States, States should be provided an opportunity to review, comment, and if necessary, appeal CMS findings in accordance with existing Federal regulations; and
• CMS could adopt an error threshold similar to existing standards for the Single Audit, which requires a dollar threshold of $10,000 for a reportable condition to be found.
We believe that we have reduced the burden on States from the proposed rule by engaging Federal contractors to conduct the medical and data processing components of PERM review and by reviewing these components in a State once every 3 years. Regarding the recoupment of funds from States, this regulation does not supersede current law and regulations governing the recovery of misspent funds.
• Many States that participated in the PERM pilot process strongly believed that the burden and cost estimates should be higher;
• CMS underestimated the time and cost required to obtain medical records from providers;
• The CMS rule associated with formulating cost estimates was based on incomplete data; CMS utilized these rules to exclude time and effort estimates for both eligibility and managed care claims reviews; and
• CMS' impact estimate on States ignored the resources that would be needed to develop, submit, monitor, and evaluate the required corrective action plans.
Also, such information should be readily available and the response should take minimal time and cost since the response requires gathering the documents and either copying and mailing them or sending them by facsimile. States are free to reimburse their providers for the cost of submitting this information. Thus, the request for medical documentation from providers is within the usual practice of a provider who accepts payment from an insurance provider, whether it is a private organization, Medicare, Medicaid or SCHIP, and should not have a significant impact on the provider's operations.
We published an interim final rule on October 5, 2005 because we significantly revised the approach we originally proposed to implement the IPIA. Based on recommendations received in response to the August 27, 2004 proposed rule, we adopted the recommendation to engage a Federal contractor to estimate improper payments in Medicaid and SCHIP for reviews of adjudicated FFS and managed care claims. We also adopted the recommendation to review a subset of States each year rather than measuring every State every year. However, we continued to propose that the States selected for review in any given year would measure improper payments based on eligibility reviews rather than delegating this responsibility to a Federal contractor. The national contracting strategy significantly deviated from the provision in the proposed rule so the October 5, 2005 interim final rule provided the opportunity for further public comment. We also specifically invited comments on methods for estimating improper payments for managed care and program eligibility.
In the preamble, we describe the national contracting strategy for review of FFS and managed care claims and list the States selected for Medicaid review in FY 2006 through FY 2008. We also describe the State eligibility review requirements. Additionally, this interim final rule with comment period—
• Retains the State requirements for information submission laid out in the October 5, 2005 interim final rule;
• Adds a new information collection from States in order to measure improper payments in managed care; and
• Adds a new section on the State requirements for measuring payment errors through eligibility reviews and providing this information to CMS.
Descriptions of the measurement process for managed care and eligibility improper payments are set forth below.
In commenting on the proposed rule, States objected to conducting the reviews, including managed care reviews. We invited further comments in the October 5, 2005 interim final rule on methods for measuring managed care claims in Medicaid and SCHIP. Commenters recommended that we measure: (1) Whether the individual was eligible when payment was made; and (2) whether the State's payment to the managed care organization was made according to State policy and in the proper amount. An additional consideration would be whether any applicable cost-shares were correctly assessed.
For this interim final rule, we determined that the Federal contractor will measure improper payments in Medicaid and SCHIP managed care by:
• Measuring managed care improper payments in the same States that are selected in any given year for FFS and eligibility reviews; and
• Using a claims-based sample to determine whether the beneficiary was enrolled in the Medicaid or SCHIP program and whether that State's capitation payment to the managed care organization was made correctly according to the State's policies.
We are limiting the review of managed care enrollment to program enrollment since other factors such as eligibility for the plan will be determined as part of the program eligibility reviews. We are not adopting the recommendation to review whether cost-shares were correctly assessed since these payments do not offset or otherwise affect the State's payment to the plan.
The Federal contractor will measure managed care in the same year that a State is selected for FFS reviews in Medicaid and SCHIP. Beginning in FY 2007 each State will be measured for managed care payment errors Medicaid and SCHIP, once and only once every 3 years. We will calculate a separate managed care error rate for each State under review and will merge the State's managed care and FFS error rates together with the State's eligibility error rate to produce State-specific error rates for Medicaid and SCHIP. The following is an overview of the managed care measurement process.
For each program, the universe will consist of all capitation payments made on behalf of beneficiaries in Medicaid or SCHIP. Capitation payments are payments made by the State to a managed care plan for a set fee that is based on a pre-determined agreement rather than on the actual cost of care and services delivered. Excluded from the universe are FFS payments to the managed care plan on behalf of managed care beneficiaries (for example, services such as childbirth); these payments instead will be subject to sampling in the FFS review.
For the managed care error rate measurement, we estimate an annual sample size of 500 claims per State per program will be reviewed. This estimate is based on the experience in the past PAM and PERM pilots. Since the variances for capitation payments are low, we believe that this estimated sample size will allow us to produce a State-level error rate that meets 3 percent precision level at a 95 percent confidence interval level.
The review of managed care payments will be similar to the managed care data processing reviews under the past PAM and PERM pilots. The review will determine whether the capitation payments are correctly paid based on the information available from the claims processing system or the system that processes vouchers for payment to a managed care organization. We anticipate the managed care data processing reviews will be conducted on-site, along with the FFS claims data processing reviews. Managed care claims are not subject to medical reviews.
The purpose of the managed care review is to verify that:
• The beneficiary was enrolled in the Medicaid or SCHIP program;
• The capitation payment was made in accordance with State policies; and
• The capitation payment was made in the correct dollar amount.
The review contractor will identify and report on errors found through these reviews and the statistical contractor will calculate and report to CMS State-specific error rates, which will be used to determine a national managed care error rate for Medicaid and SCHIP.
States objected to conducting eligibility reviews primarily because these reviews substantially duplicate the eligibility reviews required by the Medicaid Eligibility Quality Control (MEQC) program as well as the cost to operate a separate eligibility measurement program. We invited further comment in the October 5, 2005 interim final rule on methods for measuring eligibility in Medicaid and SCHIP. We stated in the October 5 interim final rule that it could be possible that States sampled for Medicaid and SCHIP FFS and managed care reviews may be required to conduct eligibility reviews in a manner similar to the provisions set forth in the proposed rule. We have responded to specific comments in this second interim final rule, and have set out the requirements for eligibility reviews in the regulation text following.
As we stated in the October 5, 2005 interim final rule, we assembled an eligibility workgroup comprised of CMS and OIG (which acted in an advisory capacity) within the DHHS, OMB, and two State representatives to review public comments and recommend a method for measuring program eligibility. The eligibility workgroup reviewed Federal Medicaid and SCHIP laws, regulations, and policies and public comments from the proposed rule and October 5, 2005 interim final rule. Considering the workgroup's recommendations and public comments, we have determined that:
• States will administer the Medicaid and SCHIP eligibility reviews.
• In response to comments regarding the relationship of the FFS and managed care reviews to eligibility, we have provided that States will measure eligibility improper payments in the same fiscal year that they are selected for FFS and managed care reviews in Medicaid and SCHIP;
• In response to comments regarding the barriers to reviewing eligibility at the time of service, States will sample individual beneficiaries, rather than claims or capitation payments.
• In response to comments regarding duplication of effort and costs, we have stated that we will consider recommendations.
• In response to comments regarding measuring progress in serving eligible people, the eligibility measurement will review two eligibility samples. One sample will include beneficiaries enrolled in Medicaid or SCHIP (that is, active cases) to ensure that the person was eligible. The other sample will include denied and terminated cases (that is, negative cases) to ensure that eligible persons are not erroneously denied or terminated from Medicaid or SCHIP.
• In response to comments regarding application of the administrative period to account for a time period in which States react to case changes, we have provided that States will review eligibility as of the latest action taken by the State to determine eligibility. States will review Medicaid and SCHIP eligibility in the month of (1) application, (2) redetermination, or (3) as of the last action taken by the State for all other cases (providing the last action was taken within 12 months of the month the case is sampled; otherwise States review eligibility as of the month the case is sampled). Since the review will focus on the month in which the State took an action on a case, application of the administrative period is not necessary.
• Based on public comments regarding dropping cases when eligibility cannot be determined, we have provided that States can designate these cases as “undetermined.” Though a payment error rate will not be associated with these cases, the State will report and CMS will track the percentage of “undetermined” cases.
• In response to comments regarding potential conflicts of interest, we have provided that the eligibility reviews must be conducted by a State agency independent of the State agency responsible for Medicaid and SCHIP
• The State must, at a minimum, produce an error rate within a 3 percent precision level at a 95 percent confidence interval level.
The procedures for eligibility review in this interim final rule differ from those in the August 2004 proposed rule in the following ways:
• Under proposed § 431.982(a) and § 431.986(a), the proposed rule would have required an eligibility review on all sampled claims. This interim final rule at § 431.980(a) and (b) revises the review process to sample individual beneficiary cases rather than claims or capitation payments made by the State.
• Section 431.982(a)(2)(i) and (ii) of the proposed rule would have required the reviewer to verify eligibility as of the day or month the claimed service was provided.
Under this interim final rule at § 431.980(d)(i) and (ii), States will review eligibility as of the State's most recent action to grant eligibility based on an eligibility determination at application or at redetermination, and, for all other cases, the most recent action providing that action is within 12 months of the month the case is sampled; otherwise States will review eligibility as of the sample month.
• Under § 431.982(a)(2)(iii), the proposed rule stated that the eligibility review would have followed the MEQC procedures established by sections § 431.812(e)(1) through (e)(4), except that the States would not apply the administrative period. This interim final rule changes the focus of the reviews to eliminate the need for the administrative period and does not otherwise rely on MEQC procedures.
• Section 431.982(a)(2)(iv) of the proposed rule had included reviews of Medicaid recipients who receive Supplemental Security Income (SSI) in certain States where the Social Security Administration (SSA) determines Medicaid eligibility. Based on comments to the proposed rule and the October 5, 2005 interim final rule, this interim final rule at § 431.978(d)(1)(i) excludes these cases from review in these States. In addition, we are excluding Title IV—E adoption assistance and foster care cases that receive Medicaid from review in all States.
• Under § 431.982(a)(2)(v), the proposed rule would have required States to take appropriate action on individual error cases that could affect eligibility. This interim final rule deletes this provision, since § 435.916(c)(1) of our rules already requires a prompt redetermination of eligibility when the agency learns of changes that may affect eligibility.
The Medicaid and SCHIP universes will consist of both active cases (individuals enrolled in the program) and negative cases (individuals denied or terminated from the program). For purposes of the PERM reviews, we define “case” as an individual; not as families or groups of more than one person. For Medicaid active cases, the universe will include all individuals enrolled in the program in the sample month. The universe will exclude SSI recipients in States with an agreement with the SSA whereby, under section 1634 of the Act, SSA determines Medicaid eligibility for SSI cases. The universe also will exclude, in all States, Title IV-E foster care and adoption assistance cases that receive Medicaid, due to the complexities of obtaining information for verifying eligibility, which is often subject to strict parameters of confidentiality (for example, sealed adoption records). Finally, States shall exclude Medicaid cases that are under active fraud investigation from the universe; if these cases cannot be identified before sampling, States can drop these cases from review.
For the Medicaid negative cases, the universe will include all individuals denied or terminated in the sample month. Individuals denied due to incomplete applications or terminated because they did not complete the eligibility redetermination process according to State policy will be excluded.
The SCHIP universe also will consist of both active and negative cases. For SCHIP active cases, the universe will consist of all individuals enrolled in the program for the sample month. States shall exclude SCHIP cases that are under active fraud investigation from the universe; if these cases cannot be identified before sampling, States can drop these cases from review. There are no other SCHIP cases excluded from the SCHIP active universe, because SCHIP eligibility is not determined by a Federal agency, such as Medicaid eligibility for SSI cases in certain States.
For SCHIP negative cases, the universe will consist of all individuals denied or terminated in the sample month and will exclude individuals denied due to incomplete applications or terminated because they did not complete the eligibility redetermination process according to State policy.
Medicaid and SCHIP cases in the active universe will be stratified into three strata:
• Stratum 1—Applications approved in the sample month;
• Stratum 2—Cases where eligibility was redetermined in the sample month; and
• Stratum 3—All other cases.
Each month, an equal number of cases will be selected from each stratum. Negative case action samples will not be stratified in either program.
For active case reviews, we estimate an annual sample size of 501 cases will be reviewed per State per program. We believe this estimated sample size will produce error rates within a 3 percent precision level at a 95 percent confidence interval level for the State. However, the annual sample size may vary and a State may have a sample that contains more than 501 active cases in order to meet this statistical requirement. The sample will be selected each month. We estimate that a State will select and review approximately 42 cases each month.
If not excluded from the universe, States shall drop a case from review when the case is currently under an active fraud investigation. “Active fraud investigation” means a beneficiary's name has been referred to the State Medicaid (or SCHIP) Fraud and Abuse Control Unit or similar investigation unit and the unit is currently and actively pursuing an investigation to determine whether fraud was committed by the beneficiary. States must drop these cases from the eligibility reviews because we believe that, in most cases, payments are not being made directly to the beneficiary.
The State will classify any case in which eligibility cannot be conclusively verified as “undetermined.” These cases will not be considered eligible or ineligible when calculating the error rate but the number and rate of undetermined cases will be noted in our reporting of the error rates.
For negative case reviews, we estimate the annual sample size will be 200 cases per program. As above, we believe this should produce an estimate that is within a 3 percent precision level at a 95 percent confidence interval level. However, the sample size may vary and a State may have a sample that contains more than 200 negative cases in order to meet this statistical requirement. The sample will be selected each month. We estimate that a State will select and review approximately 17 cases each month.
We determined that a State will review program eligibility in the year it is scheduled for review for FFS and managed care improper payments. Based on recommendations from public comments and the eligibility workgroup, we developed a review process that is less burdensome than the review requirements under the proposed rule and that follow State procedures. We have designed the review process to minimize the effect on States regarding cost and burden.
Finally, to provide objective review findings and error rate calculations, we adopted the recommendation that the eligibility reviews be conducted by a State agency which is independent of the State agency making the program eligibility determinations.
In preparation for the PERM measurement, we will provide the selected States with advance implementation guidelines attached to a State Health Official letter to all States being measured in FY 2007. Essentially, States will conduct eligibility reviews on a sample of active cases that are stratified as follows: (1) Current applications; (2) current redeterminations; and (3) other cases. States will measure eligibility as of the latest action taken by the State to determine eligibility for Medicaid and SCHIP (providing the action for all “other cases” is within 12 months of the sample month; otherwise, States will review eligibility as of the sample month). We expect eligibility can be established primarily through desk reviews of the case records, although there are instances when States would be required to verify information (for example, information missing from the file, outdated, or likely to change).
The review process will apply to both Medicaid and SCHIP cases. However, for all SCHIP cases, the reviewer will further verify that the case is not eligible for Medicaid by following the SCHIP requirements at 42 CFR 457.350 to screen SCHIP applicants for potential Medicaid eligibility.
The State will determine:
• State-specific case and payment error rates for active cases;
• State-specific case error rates for negative cases; and
• The number of undetermined cases in each sample (with associated paid claims for each case) and the total amount of payments for all undetermined cases in the active case sample.
These rates will be computed using the following general calculations:
Once the State reports the State-specific eligibility rates, the national contractor will combine the State specific eligibility error rates to produce national eligibility error rates for each program.
For purposes of eligibility information collection and reporting, States will submit to CMS and its contractors:
• A sampling plan for approval 60 days prior to the beginning of the fiscal year selected for review. States selected for the measurement for FY 2008 and beyond will submit a sampling plan by August 1. States selected for the FY 2007 measurement will submit the sampling plan by November 15, 2006;
• A monthly sample selection list that identifies the cases selected for review, to be submitted each month and before commencing the reviews;
• Summary eligibility findings on all case reviews to be submitted by July 1 following the fiscal year under review; and
• State-specific case and payment error rates for active cases, case error rates for negative cases, the number and amount of undetermined cases in the samples, and the total amount of payment from all undetermined cases in the active case sample to be submitted by July 1 after the end of the fiscal year under review.
We received many comments on the October 5, 2005 interim final rule regarding State opportunity to review the contractor's findings on FFS and managed care claims. In response to these comments, we developed a difference-resolution process to provide States with the opportunity to review the RC's reconsideration of its error determinations (on its medical and data processing reviews) and to resolve the differences in findings.
On at least a monthly basis, the RC will provide each State under review with a disposition report. This report includes the review findings of the medical and data processing reviews for each FFS claim, and the findings of the data processing reviews for each managed care claim completed that month. Towards the end of the review period, the RC will provide these disposition reports on a bi-weekly basis to the State. Information on which the RC based its findings will be made available to the State so that the State can determine whether it agrees with the findings.
A State can notify the RC in writing that it has a difference in finding on a claim in error. To support the State's position that the claim was properly paid, the State: (1) Must have a factual basis for filing the difference on any claim; and (2) must present valid evidence to support its position that the claim was correctly paid. If the RC agrees with the State, the error will be adjusted or backed out of the error rate calculation. The difference resolution process is the only means by which the State and the Federal contractor can consider differences in findings and reverse the RC's error findings.
For cases in which the State and the RC cannot resolve the differences in findings, the State may file a written appeal to CMS for final resolution. However, for CMS to review the claim, the difference in findings must be in the amount of $100 or greater. The State must provide CMS with the specific reasons and necessary documentation to support its determination that the claim was correctly paid as well as the review contractor's justification for upholding its initial error finding. CMS will make the final determination on the sampled claim.
Claims with “no documentation” errors or “insufficient documentation”
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.
This interim final rule with comment sets forth requirements for States to provide information for purposes of estimating improper payments through FFS, managed care and eligibility reviews in Medicaid and SCHIP. Therefore, we solicited public comment on each of the issues listed above for the following sections of the rule that contain information collection requirements.
It is important to note that subsequent to the information collection notices, which estimated cost and burden for 34 States, we have determined that SCHIP will be measured in the same year that States are measured for Medicaid. Thus, the estimate for “34 States” should be interpreted to mean “34 State programs” in 17 States.
Section 431.970(a)(1)-(11) sets forth requirements for States to provide information to the Secretary for purposes of estimating improper payments in FFS and managed care based on medical and data processing reviews in Medicaid and SCHIP. Those States selected for review in any given year will be required to provide, at a minimum, the following information for Medicaid and SCHIP:
(a)(1) All adjudicated fee-for-service (FFS) and managed care claims information, on a quarterly basis, from the review year with FFS claims stratified by type of service;
(a)(2) Upon request from CMS, provider contact information that has been verified by the State as current;
(a)(3) All medical and other related policies in effect and any quarterly policy updates;
(a)(4) Current managed care contracts, rate information, and any quarterly updates to both for the review year for SCHIP and, as requested, for Medicaid;
(a)(5) Data processing systems manuals;
(a)(6) Repricing information for claims that are determined to have been improperly paid;
(a)(7) Information on claims that were selected as part of the sample, but changed in substance after selection, for example, successful provider appeals;
(a)(8) Adjustments made within 60 days of the adjudication date for the original claim or line item with sufficient information to indicate the nature of the adjustments and to match the adjustments to the original claim or line items;
(a)(9) For the eligibility improper payment measurement, information as set forth in § 431.978 through § 431.988;
(a)(10) A corrective action plan for purposes of reducing erroneous payments in FFS, managed care, and eligibility; and
(a)(11) Other information that the Secretary determines is necessary for, among other purposes, estimating improper payments and determining error rates in Medicaid and SCHIP.
The burden described at § 431.970(a) represents the total State information collection burden for PERM. Based on our estimates of State participation burden for both Medicaid and SCHIP, for 34 States (17 States per Medicaid and 17 States for SCHIP), for the FFS reviews (55,420 hours), the managed care reviews (22,100 hours), and eligibility (448,120 hours), we calculated that the annual State burden for the PERM program is 525,640 hours (262,820 hours per program). The burden associated with these requirements is the time and effort necessary for States to collect this information and provide it to CMS or the Federal contractor. We estimated these costs through three information collection notices based on the information needed for the FFS, managed care, and eligibility review as follows:
Initially, in the information collection notice for the FFS reviews, we estimated that the annualized number of hours that would be required for up to 36 States (18 States for Medicaid and 18 States for SCHIP) to respond to the requests for information would be 58,680 hours (1,630 hours per State per program). Subsequent to the notice, we revised our estimates of the burden to reflect that 17 States would be selected for each program (rather than “up to 18 States” per program). The revised annualized number of hours that would be required for 34 States (17 States for Medicaid and 17 States for SCHIP) to respond to the requests for information for the FFS measurement is 55,420 hours (1,630 hours per State per program).
It is important to note that subsequent to the notice and initiation of the FY
Initially, in the information collection notice for the managed care reviews, we estimated that the annualized number of hours that would be required for up to 36 States (18 States for Medicaid and 18 States for SCHIP) to respond to the requests for information would be 23,400 hours (650 hours per State, per program). Subsequent to the notice, we revised our estimates of the burden to reflect the 17 States selected for each program (rather than “up to 18 States” per program). The revised annualized number of hours that would be required for 34 States to respond to the requests for information for the managed care reviews is 22,100 hours (650 hours per State per program).
In the information collection notice for the eligibility reviews, we estimated: (1) The annualized number of hours needed to respond to the information request for the purpose of Medicaid and SCHIP eligibility reviews; and (2) the number of respondents, 34 States (17 States for Medicaid and 17 States for SCHIP). Based on these estimates, we determined that the total annualized number of hours required for the eligibility reviews for 34 States would be 448,120 hours (13,180 hours per State per program).
For the specific information requests in § 431.978 (referenced at § 431.970(a)(9)) and § 431.992 (as referenced at § 431.970(a)(10)), the burden includes the following estimated annualized hours: (1) Up to 1,000 hours required for a State to develop and submit a sampling plan; (2) up to 1,200 hours for a State to submit 12 monthly sample lists detailing the cases selected for review; and (3) up to 1,000 hours for a State to develop a corrective action report for purposes of reducing the eligibility payment error rate.
For the requirements for eligibility reviews in § 431.980 and the reporting of findings in § 431.988, as referenced at § 431.970(a)(9), we estimated that each State would need to review an annual sample size of 501 active cases to achieve within 3 percent precision at a 95 percent confidence interval level in the State-specific error rates. We also estimated that States would need to review 200 negative cases to produce a case error rate that meet similar standards for statistical significance. We therefore estimate that the annualized number of hours required for 34 States to complete the eligibility case reviews and report the eligibility-based error rates to CMS will be 339,320 hours (9,980 hours per State per program).
Section 431.970(b) requires providers to submit medical record information to the Secretary for estimating improper payments in Medicaid and SCHIP. In the “Anticipated Effects” section of the impact statement in the August 27, 2004 proposed rule, we stated that providers could be required to supply medical records or other similar documentation that verified the provision of medical services to beneficiaries as part of reviewing paid and denied claims under PERM. We believed this action would not have a significant cost impact on providers. We continue, as stated in the regulatory impact section, to estimate this burden to be part of a provider's usual and customary business practices.
This section requires that the selected States submit a Medicaid and a SCHIP sampling plan (or revisions to the current plans) for both active and negative cases to CMS for approval at least 60 days before the beginning of the review year (for the FY 2008 measurement and beyond). (States will submit the sampling plans by November 15, 2006 for the FY 2007 review year.) The State must receive approval of the plans before implementation.
As stated above, the burden associated with this requirement will be the time and effort it will take for the States to prepare and submit a sampling plan to CMS for approval. We estimate that the annual burden associated with this requirement for 34 States (17 States for Medicaid and 17 States for SCHIP) will be 34,000 hours (1,000 hours per State per program).
Sections 431.988(a) and (b) require the selected States to submit reports of findings and error rates in accordance with paragraphs (b)(1) through (b)(2) beginning with the FY 2007 measurement.
As stated above, the burden associated with this requirement is the time and effort it would take for the States to produce the required material and submit a report to CMS. We estimate that the annual burden associated with this requirement for 34 States (17 States for Medicaid and 17 States for SCHIP) will be 339,320 hours (9,980 hours per State per program).
This section requires the selected States to submit to CMS a corrective action plan to reduce improper payments in Medicaid and SCHIP based on the major causes of the errors in the FFS, managed care, and eligibility components.
The burden associated with this requirement is the time and effort put forth by the selected States to develop and submit a corrective action plan to CMS. In the information collection notices, we estimated that it would take each selected State up to 500 hours for the FFS component, up to 500 hours for the managed care component, and up to 1,000 hours for the eligibility component of the corrective action plan for each program. Therefore, we estimate that the total annual burden associated with this requirement for 34 States (17 States for Medicaid and 17 States for SCHIP) will be 68,000 hours (2,000 hours per State per program).
Section 431.998(b)(2) provides the selected States the option to enter the difference resolution process. States wishing to do so must notify the Federal contractor and submit documentation to support its determination that the claim was incorrectly paid.
We have included this State option in this interim final rule in response to public comments on both the proposed rule and the October 5, 2005 interim final rule. The burden associated with
If you comment on these information collection and recordkeeping requirements, please mail copies directly to the following: Centers for Medicare & Medicaid Services, Office of Strategic Operations and Regulatory Affairs, Regulations Development Group, Attn: Melissa Musotto (Attn: CMS-6026-IFC2), Room C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850; and Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503, Attn: Katherine Astrich, CMS Desk Officer, CMS-6026-IFC2, or
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 (as amended by Executive Order 13258, which merely reassigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year).
We have estimated that it will cost approximately $23.3 million annually ($22,367,088 in Federal cost and $951,326 in State cost) to review FFS claims and estimate error rates in 34 States (17 States for Medicaid and 17 States for SCHIP). This estimate is based on the Federal cost of engaging the Federal contractors to conduct the reviews and calculate the error rates, and the State cost to submit requested information to support the reviews. We estimated these costs as follows:
Through the use of Federal contractors, we estimated that for the FFS measurement it would cost approximately $21,080,000 in Federal funds ($10,540,000 per program). This estimate is based on the cost per State of $383.80 per claim multiplied by an average of 1,000 claims; $66,147 for travel and administrative expenses; $133,488 for overhead and other expenses; and $36,565 for systems hardware and software. Based on $620,000 per State to estimate FFS error rates in Medicaid and $620,000 per State to estimate FFS error rates in SCHIP, the FFS error rate estimates for 34 States would cost approximately $21,080,000 in Federal funds for the Federal contracting cost.
Under the national contracting strategy, we anticipate State cost to be the cost associated with submitting information. As we indicated in the information collection section of this rule, we estimated the cost to respond to requests for information for the Medicaid and SCHIP FFS reviews is $2,238,414 ($1,287,088 in Federal cost and $951,326 in State cost). Therefore, the estimated total Federal cost is approximately $22,367,088 and total State cost is $951,300 for FFS measurement.
We have estimated that it will cost approximately $7.5 million annually ($7,153,256 in Federal cost and $379,363 in State cost) to estimate managed care error rates for 34 States (17 States for Medicaid and 17 States for SCHIP). This is based on the Federal cost of engaging the Federal contractors to conduct the reviews and calculate the error rates, and the State cost to submit requested information to support the reviews. We estimated these costs as follows:
We estimated that it will cost $6,640,000 in Federal funds annually for a Federal contractor to estimate the error rates for 34 States. This is based on FY 2006 FFS estimates that were used as baseline assumptions for the managed care reviews. We assumed that we will use the same statistical contractor and the same review contractor for managed care and FFS reviews in each program to gain cost efficiencies in administration, overhead and systems. Based an average of 500 claims reviewed plus travel and other administrative expenses, we estimate that it would cost $6,640,000 in Federal funds for the Federal contracting cost.
Under the national contracting strategy, we anticipate State cost to be the cost associated with submitting information, similar to the cost for FFS reviews. As we indicated in the information collection section of this rule, we estimated the cost to respond to requests for information for the managed care reviews would be $892,619 ($513,256 in Federal cost and $379,363 in State cost). Therefore, the estimated total Federal cost is approximately $7,153,256 and total State cost is $379,363 for managed care measurement.
Beginning in FY 2007, States will review eligibility in the same year they are selected for FFS and managed care reviews in Medicaid and SCHIP. We estimated that total cost for eligibility review for 34 States is approximately $18.1 million ($10,407,251 in Federal cost and $7,692,316 in State cost). This cost estimate is based on the cost for States to submit information to CMS and the cost for States to conduct eligibility reviews and report rates to CMS. These costs are estimated as follows:
We estimated in the information collection section, that the annualized number of hours required to respond to requests for information for the eligibility review (for example, sampling plan, monthly sample lists, the eligibility corrective action report) for 34 States will be 108,800 hours (3,200 hours per State per program). At the 2006 general schedule GS-12-01 rate of pay that includes fringe and overhead costs ($40.39/hour), we calculated a cost of $4,394,432 ($2,526,798 in Federal cost and $1,867,634 in State cost). This cost estimate includes the following estimated annualized hours: (1) Up to 1,000 hours required for States to develop and submit a sampling plan; (2) up to 1,200 hours for States to submit 12 monthly sample lists detailing the cases selected for review; and (3) up to 1,000 hours for States to submit a corrective action plan for purposes of reducing the eligibility payment error rate.
For the eligibility review and reporting of the findings, we estimated that each State would need to review an annual sample size of 501 active cases to achieve a 3 percent margin of error at a 95 percent confidence interval level in the State-specific error rates. We also estimated that States would need to review 200 negative cases to produce a case error rate that met similar standards for statistical significance. We
Therefore, the total annual estimate of the cost for 34 States to submit information and to conduct the eligibility reviews and report the error rate to CMS is approximately $18,099,567 ($10,407,251 in Federal cost and $7,692,316 in State cost).
Based on our estimates of the costs for the FFS, managed care and eligibility reviews for both the Medicaid and SCHIP programs at approximately $49 million ($39,927,595 in Federal cost and $9,023,005 in State cost), this rule does not exceed the $100 million or more in any 1 year criterion for a major rule, and a regulatory impact analysis is not required.
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.
We stated in the August 27, 2004 proposed rule that providers could be required to supply medical records or other similar documentation that verified the provision of Medicaid or SCHIP services to beneficiaries as part of the PERM reviews, but we anticipated this action would not have a significant cost impact on providers. Providers would only need to provide medical records for the FFS component of this program. A request for medical documentation to substantiate a claim for payment would not be a burden to providers nor would it be outside the customary and usual business practices of Medicaid or SCHIP providers. Not all States would be reviewed every year and medical records would only be requested for FFS claims, so it would be unlikely for a provider to be selected more than once per program to provide supporting documentation, particularly in States with a large Medicaid or SCHIP managed care population.
In addition, the information should be readily available and the response should take minimal time and cost since the response would merely require gathering the documents and either copying and mailing them or sending them by facsimile. Therefore, we have concluded in this interim final rule with comment that the provision of medical documentation by providers is within the customary and usual business practice of a provider who accepts payment from an insurance provider, whether it is a private organization, Medicare, Medicaid, or SCHIP and should not have a significant impact on the provider's operations. Individuals and States are not included in the definition of a small entity. Therefore, an impact analysis is not required under the RFA.
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.
These entities may incur costs due to collecting and submitting medical records to the contractor to support medical reviews; but, like any other Medicaid or SCHIP provider, we estimate these costs would not be outside the limit of usual and customary business practices. Also, since the sample is randomly selected and only FFS claims are subject to medical review, we do not anticipate that a great number of small rural hospitals would be asked for an unreasonable number of medical records. As stated before, a State will be reviewed only once, per program, every 3 years and it is highly unlikely for a provider to be selected more than once per program to provide supporting documentation. Therefore, we believe that an impact analysis is not required under section 1102(b) of the Social Security Act.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $120 million or more. This interim final rule does not impose costs on States to produce the error rates for FFS and managed care payments, but only requires States and providers to submit information already on hand to the contractor so that the error rates can be calculated. The costs associated with submitting information for copying and mailing the information or for sending the information by facsimile are minimal.
Based on our estimates of State participation burden for both Medicaid and SCHIP, for 34 States (17 States per Medicaid and 17 States for SCHIP), for the FFS reviews ($951,326), the managed care reviews ($379,363), and eligibility ($7,692,316), we calculated that the annual State burden for the PERM program is approximately $9,023,005 in State cost for both programs. Thus, we do not anticipate State costs to exceed $120 million.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirements on State and local governments, preempts State law, or otherwise has Federalism implications. The proposed rule, which would have imposed significantly more cost burden on States to measure improper payments, had estimated costs of $1 million to $2 million per State. This interim final rule significantly reduces these costs by requiring States only to submit information to support the medical and data processing reviews. The cost and burden associated with submitting this information is the time and cost to copy and mail the information or, at State option, submit the information electronically.
This interim final rule does require States selected for review to submit an eligibility sampling plan, monthly sample selection information, summary review findings, State error rate calculations, and other information in order for CMS to calculate the eligibility national error rate. We estimated that the burden to conduct the eligibility measurement for Medicaid and SCHIP for 34 States will be approximately $18,099,567 ($10,407,251 in Federal cost and $7,692,316 in State cost). As a result, we assert that this regulation will not have a substantial impact on State or local governments.
The interim final rule is intended to measure improper payments in Medicaid and SCHIP. States would implement corrective actions to reduce the error rate, thereby producing savings over time. These savings cannot be estimated until after the corrective actions have been monitored and determined to be effective, which can take several years.
We considered the alternatives recommended by the public commenting on the October 5, 2005 interim final rule with comment and
We considered the other alternatives, which were recommended in the proposed rule and reiterated in the October 5, 2005 interim final rule, and determined that these recommendations were not viable or were not the best approach to meet the requirements of the law. We received comments on the October 5, 2005 interim final rule regarding the national contracting strategy that recommended allowing States to have input on CMS operational issues and evaluation of the Federal contractors. We did not adopt these recommendations because we believe that these are operational issues that are outside the scope of the rulemaking process. Comments considered and not adopted include:
• States should administer the Medicaid and SCHIP FFS and managed care measurement at an enhanced match rate;
• CMS should abandon State-level error rates in favor of national sampling, pooling State data across years or accepting larger standard errors;
• States should receive 100 percent Federal match for any State technical assistance on this effort; and
• CMS should provide more transparency on its methodologies by promulgating rules for the Federal contractor and CMS’ procedures or by establishing an advisory committee.
We believe the national contracting strategy is superior to these proposals because it provides a standardized review methodology that is applied objectively and consistently to the States under review. Under the contracting strategy, each State is measured against its own standards, which we believe provides better information for States to reduce erroneous payments than using a national sample, pooling State data across years or accepting larger standard errors. We have the statutory authority to collect the claims data and policy information. The technical assistance that States provide to the contractors should be limited primarily to the claims processing reviews and will help ensure the accuracy of these reviews and the error rates. We do not believe 100 percent Federal match should be provided for technical assistance to the contractors since the PERM reviews are similar to other Federal audits for which States do not receive enhanced match. Finally, we believe the national contracting strategy provides transparencies such as our review methodologies, cost and burden estimates, when States will be reviewed, and State responsibilities as we have stated in the October 5, 2005 interim final rule and this interim final rule. We do not believe an advisory committee is needed since we have provided States ample opportunities to comment through the rulemaking process.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Grant programs—health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements.
Administrative practice and procedure, Grant programs—health, Health insurance, Reporting and recordkeeping requirements.
Sec. 1102 of the Social Security Act (42 U.S.C. 1302).
This subpart requires States and providers to submit information necessary to enable the Secretary to produce national improper payment estimates for Medicaid and the State Children's Health Insurance Program (SCHIP).
(a)
(b)
(2) All information must be furnished in accordance with section 1902(a)(7)(A) of the Act, regarding confidentiality.
(3) This subpart does not apply with respect to Puerto Rico, Guam, the Virgin Islands, the Northern Mariana Islands or American Samoa.
(a) States must submit information to the Secretary for, among other purposes, estimating improper payments in Medicaid and SCHIP, that include but are not limited to—
(1) All adjudicated fee-for-service (FFS) and managed care claims information, on a quarterly basis, from the review year with FFS claims stratified by service;
(2) Upon request from CMS, provider contact information that has been verified by the State as current;
(3) All medical and other related policies in effect and any quarterly policy updates;
(4) Current managed care contracts, rate information, and any quarterly updates applicable to the review year for SCHIP and, as requested, for Medicaid;
(5) Data processing systems manuals;
(6) Repricing information for claims that are determined during the review to have been improperly paid;
(7) Information on claims that were selected as part of the sample, but changed in substance after selection, for example, successful provider appeals;
(8) Adjustments made within 60 days of the adjudication dates for the original claims or line items with sufficient information to indicate the nature of the adjustments and to match the adjustments to the original claims or line items;
(9) For the eligibility improper payment measurement, information as set forth in § 431.978 through § 431.988;
(10) A corrective action plan for purposes of reducing erroneous payments in FFS, managed care, and eligibility; and
(11) Other information that the Secretary determines is necessary for, among other purposes, estimating improper payments and determining error rates in Medicaid and SCHIP.
(b) Providers must submit information to the Secretary for, among other purposes, estimating improper payments in Medicaid and SCHIP, which include but are not limited to, Medicaid and SCHIP beneficiary medical records.
(a)
(2) The agency and personnel responsible for the development, direction, implementation, and evaluation of the eligibility reviews and associated activities, including calculation of the error rates under this section, must be functionally and physically separate from the State agencies and personnel that are responsible for Medicaid and SCHIP policy and operations, including eligibility determinations.
(3) Any individual performing activities under this section must do so in a manner that is consistent with the provisions of § 435.901, concerning the rights of recipients.
(b)
(c)
(a)
(b)
(c)
(d)
(1)
(ii)
(2)
(3)
(i) Program applications completed by the beneficiaries in which the State took action in the sample month to approve such beneficiaries for Medicaid or SCHIP based on the eligibility determination.
(ii) Redeterminations of eligibility in which the State took action in the sample month to approve the beneficiaries for Medicaid or SCHIP based on information obtained through the completed redetermination.
(iii) All other cases.
(4)
(a)
(b)
(c)
(d)
(1)
(i) Review the cases specified at § 431.978(d)(3)(i) and § 431.978(d)(3)(ii) in accordance with the State's categorical and financial eligibility criteria as of the review month and identify with a specific beneficiary payments made on behalf of such beneficiary for services received in the first 30 days of eligibility or in the review month;
(ii) For cases specified in § 431.978(d)(3)(iii), if the last action was 12 months prior to the sample month, review in accordance with the State's categorical and financial eligibility criteria as of the last action and identify with a specific beneficiary payments made on behalf of such beneficiary for services received in the sample month. If the last action occurred more than 12 months prior to the sample month, review in accordance with the State's categorical and financial eligibility
(iii) Examine the evidence in the case file that supports categorical and financial eligibility for the category of coverage in which the case is assigned, and independently verify information that is missing, older than 12 months, likely to change, based on self declaration, or otherwise as needed, to verify eligibility; and
(iv) For managed care cases, also verify residency and eligibility for and actual enrollment in the managed care plan during the month under review.
(v) If the case is ineligible under paragraphs (d)(1)(i) through (d)(1)(iv) of this section, review the case to determine whether the case is eligible under any coverage category within the program.
(vi) As a result of paragraphs (d)(1)(i) through (d)(1)(v) of this section—
(A) Cite the case as eligible or ineligible based on the review findings and identify with the particular beneficiary the payments made on behalf of the particular beneficiary for services received in the first 30 days of eligibility, the review month or sample month, as appropriate; or
(B) Cite the case as undetermined if after due diligence an eligibility determination could not be made and identify with the particular beneficiary the payments made on behalf of the particular beneficiary for services received in the first 30 days of eligibility, the review month or sample month, as appropriate.
(2)
(i) Cite the case as eligible or ineligible based on the review findings and identify with the particular beneficiary the payments made on behalf of the particular beneficiary for services received in the review month or sample month, as appropriate; or
(ii) Cite the case as undetermined if after due diligence an eligibility determination could not be made and identify with the particular beneficiary the payments made on behalf of the particular beneficiary for services received in the review month or sample month, as appropriate.
(e)
(1) Identify the reason the State agency determined ineligibility;
(2) Examine the evidence in the case file to determine whether the State agency's denial or termination was correct or whether there is any reason the case should have been denied or terminated; and
(i) Record the State agency's finding as correct if the case record review substantiates that the individual was not eligible; or
(ii) Record the case as an error if there is no valid reason for the denial or termination.
(a) States must complete and report to CMS the findings, including the error causes if known, for all active case reviews listed on the monthly sample selection lists, including cases dropped from review due to active fraud investigations and cases for which eligibility could not be determined. States must submit a summary report of the active case eligibility and payment review findings to CMS by July 1 following the review year.
(b) The agency must report by July 1 following the review year, information as follows:
(1) Case and payment error rates for active cases.
(2) Case error rates for negative cases.
(3) The number and amounts of undetermined cases in the sample and the total amount of payments from all undetermined cases.
(4) The number of cases dropped from review due to active fraud investigations.
The State agency must submit to CMS a corrective action plan to reduce improper payments in its Medicaid and SCHIP programs based on its analysis of the error causes in the FFS, managed care, and eligibility components.
(a) The State may file, in writing, a request with the Federal contractor to resolve differences in the Federal contractor's findings based on medical or data processing reviews on FFS and managed care claims in Medicaid and SCHIP. The State must have a factual basis for filing the difference and must provide the Federal contractor with valid evidence directly related to the error finding to support the State's position that the claim was properly paid.
(b) For a claim in which the State and the Federal contractor cannot resolve the difference in findings, the State may appeal to CMS for final resolution.
(1) The difference in findings must be in the amount of $100 or greater; and
(2) The agency must provide CMS with the facts and valid documentation to support its determination that the claim was correctly paid, as well as the Federal contractor's justification for upholding its initial error finding.
(3) CMS will make the final decision on the claim. There will be no further judicial or administrative review of CMS' decision.
(c) All differences, including those pending in CMS for final decision that are not resolved in time to be included in the error rate calculation, will be considered as errors for meeting the reporting requirements of the IPIA. Upon State request, CMS will calculate a subsequent State-specific error rate that reflects any reversed disposition of the unresolved claims.
(a)
(b)
Section 1102 of the Social Security Act (42 U.S.C. 1302).
A State plan must include an assurance that the State collects data, maintains records, and furnishes reports to the Secretary, at the times and in the standardized format the Secretary may