Agricultural Marketing Service
Animal and Plant Health Inspection Service
Forest Service
Rural Housing Service
Rural Utilities Service
National Foundation on the Arts and the Humanities
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Fiscal Service
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Indian Affairs Bureau
Surface Mining Reclamation and Enforcement Office
Drug Enforcement Administration
Employment and Training Administration
Fiscal Service
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Maritime Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
Fiscal Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
Board of Governors of the Federal Reserve System.
Final rule; official staff interpretation.
The Board is amending Regulation E, which implements the Electronic Fund Transfer Act, and the official staff commentary to the regulation. Regulation E requires that financial institutions make a receipt available at the time a consumer initiates an electronic fund transfer (EFT) at an electronic terminal. The final rule creates an exception from this requirement for EFTs of $15 or less.
The final rule is effective August 6, 2007.
Vivian W. Wong, Attorney, or Ky Tran-Trong, Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, Washington, DC 20551, at (202) 452-2412 or (202) 452-3667. For users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.
The Electronic Fund Transfer Act (EFTA or Act) (15 U.S.C. 1693
The official staff commentary (12 CFR part 205 (Supp. I)) interprets the requirements of Regulation E to facilitate compliance and provides protection from liability under sections 915 and 916 of the EFTA for financial institutions and persons subject to the Act. 15 U.S.C. 1693m(d)(1). The commentary is updated periodically to address significant questions that arise.
Under the EFTA and Regulation E, financial institutions must make a receipt available at the time a consumer initiates an EFT at an electronic terminal.
According to industry representatives, the receipt requirement has been an obstacle to their ability to respond to recent shifts in consumer payment preferences from cash to debit cards, particularly in environments that exclusively handle small-dollar transactions. For vending machines, for example, the costs associated with installing and servicing additional printing equipment capable of providing terminal receipts have been an impediment to offering cashless payment options. For public mass transit systems, the time required to provide each consumer with a receipt for debit card transactions at the gate or on a vehicle would cause delays that render the use of debit cards impractical in such circumstances.
On December 1, 2006, the Board published a notice of proposed rulemaking to eliminate the requirement to provide a receipt to consumers at POS and other electronic terminals for transactions of $15 or less. 71 FR 69500. In support of the proposal, the Board cited the implementation costs and the growing consumer preference for using debit cards in all types of transactions, regardless of the dollar amount of the transaction.
The Board received 56 comment letters in response to the proposal. Commenters included banks, credit unions, card associations, financial and other industry trade associations, consumer groups, and individual consumers. A majority of the comment letters were submitted by industry while nearly 20 letters were submitted by individual consumers or consumer groups. In general, financial institutions and other industry commenters supported the Board's proposal to eliminate the receipt requirement for small-dollar transactions although many of these commenters urged the Board to increase the dollar threshold for the
Consumer group commenters believed that the $15 threshold was too high and stated that a $5 threshold would be sufficient to accommodate the retail environments that currently do not accept debit cards. Consumer groups also suggested some additional consumer protections be implemented along with the exception, including limiting the exception only to retail environments that do not conduct any transactions over the dollar threshold.
The Board received comments from 18 individual consumers. While six individual consumers supported the Board's proposal, the rest of the comments from individual consumers opposed the proposal, citing a need for receipts for various reasons, including account management, fraud detection, and reimbursement and income tax substantiation purposes.
The Board is amending Regulation E to eliminate the requirement for providing terminal receipts for EFTs of $15 or less. The revisions are being adopted largely as proposed without substantive change. Pursuant to its authority under section 904(c) of the EFTA, the Board is adopting this limited exception to effectuate the purpose of the Act and facilitate the use and acceptance of debit cards in transactions where that option does not currently exist due to the compliance burdens associated with the receipt requirement.
Most commenters agreed that an exception from the receipt requirement would be appropriate to facilitate consumers' use of debit cards in locations that do not currently offer that option. Many individual consumer commenters, however, opposed the Board's proposal, offering various reasons for needing receipts. A majority of these commenters stated that they use terminal receipts to accurately enter the transaction amounts in their financial records to track their finances or to independently verify transactions listed on their periodic statement. A few consumer commenters stated that the receipts can be used as proof of purchase to obtain reimbursements by employers or to substantiate tax deductions. Several of these individual consumer commenters also raised concerns that eliminating the receipt requirement for transactions of $15 or less might make it more difficult for consumers to dispute these transactions. These commenters asserted that without the receipt to serve as evidence to support a consumer's claim of error, consumers may be less likely to prevail in a dispute with the financial institution.
As noted in the proposal, the intended purpose of making a terminal receipt available to a consumer at the time the consumer initiates an EFT was to provide a record of the transaction equivalent to a cancelled check.
The Board believes that receipts are of minimal benefit to consumers in small-dollar transactions for several reasons. First, consumers are less likely to obtain a receipt or retain it for such transactions due to the limited risk of loss. Furthermore, even without a receipt for small-dollar transactions, consumers have other means to track their finances. For example, in addition to receiving a record of each transaction on periodic statements, consumers can in most cases access information on specific transactions before receiving their periodic statements from their financial institutions through the telephone and often through the Internet as well. For expense reimbursement and tax substantiation purposes, consumers can use their periodic statements for small-dollar transactions if documentary evidence is needed. Also, while a receipt may be helpful for a consumer in disputing a transaction with their account-holding financial institution for certain types of errors, the absence of a receipt does not affect the consumer's right to assert any error with their financial institution.
In light of the foregoing, the Board is exercising its authority under section 904(c) of the EFTA (15 U.S.C. 1693b) to create an exception to the receipt requirement that applies to EFTs of $15 or less.
The Board also notes that the types of retail environments making use of the exception will likely be limited to circumstances where providing a receipt is impractical. In retail environments that process both large- and small-dollar transactions, merchants still will be required to make receipts available for those higher-dollar transactions, and the Board believes they will be unlikely to change their practices based on the dollar amount of the transaction. Similarly, merchants that provide receipts for purposes other than to comply with Regulation E, for example to facilitate merchandise returns, likely still would make receipts available for all transactions.
A few commenters requested clarification regarding the applicability of the proposed exception to ATM transactions. In the proposal, the Board stated that the proposed exception would apply to deposits at ATMs of $15 or less.
A small number of commenters suggested that instead of excepting small-dollar transactions altogether from the requirement to provide receipts, receipts should be provided to consumers upon request. Currently, comment 9(a)-1 already states that receipts may be provided only upon a consumer's request. As discussed above, however, in some retail environments, such as vending machines, the burdens associated with installing and maintaining printing equipment would be an obstacle to merchant acceptance of debit cards, even if the receipts are only provided upon request.
The Board specifically requested comment on whether $15 is the appropriate threshold for the proposed exception. Several industry commenters suggested that the threshold should be set at $25 to be consistent with current card association rules that waive requirements for signature or PIN authorization for transactions under that amount for certain retailers. These commenters stated that having different dollar amount thresholds for receipts and authorization requirements would be confusing to consumers and would be difficult to implement in terms of training staff and reprogramming terminals. Industry commenters also asserted that a $25 threshold would better accommodate rising costs than the $15 threshold and provide greater flexibility for expansion of the use of debit cards in additional retail environments.
Consumer group commenters and some individual consumers, however, thought the proposed threshold was too high, and they suggested that the threshold be the minimum amount necessary to address the limited circumstances cited by the industry. Thus, consumer groups recommended a threshold of no more than $5, which they stated would be sufficient to accommodate the types of retail environments discussed in the proposal. One consumer commenter suggested that the amount be lowered to $10, which the commenter believed would still take into account future price increases.
The final rule provides an exception for transactions of $15 or less, as proposed. As discussed in the proposal, the Board believes that the $15 threshold strikes an appropriate balance between industry's need for flexibility to offer cashless payment options in a variety of retail environments and consumers' need for receipts in higher-dollar transactions. Commenters did not provide any data that suggests that a higher or lower threshold than the one proposed by the Board better or more appropriately balances the costs and benefits of the exception. The $5 threshold suggested by consumer groups may be sufficient today to enable consumers to use debit cards in a majority of retail environments where the option to use a debit card is currently unavailable.
Commenters also did not provide strong arguments for increasing the threshold. While a $25 threshold would make the rule consistent with the card association rules that waive signature and PIN authorization for certain transactions under that amount, the Board does not believe consumers would be confused by a different dollar threshold for receiving receipts because these two rules fulfill different goals and purposes. The Board will continue to monitor the market need for the exception and revisit this dollar threshold as necessary.
The Board solicited comment in the proposal on whether the Board should adopt any additional consumer protections in connection with the proposed exception. Most industry commenters thought that current consumer protections were sufficient and that additional protections were not necessary. A couple of industry commenters, however, suggested that a notice be posted at the terminal informing consumers that a receipt will not be provided for transactions of $15 or less. The Board believes that, on balance, the consumer benefit from receiving this notice is outweighed by the costs of imposing the burden on financial institutions of providing this notice. Many of the retail environments that would take advantage of the exception, such as vending machines, do not currently provide receipts for cash transactions. The Board believes that consumers will not expect a receipt when using a debit card in those environments. Thus, a notice informing them of the lack of a receipt is unnecessary.
Consumer group commenters proposed some additional consumer protections. First, consumer groups advocated that receipts should be required in transactions where additional fees are imposed because
Consumer group commenters also suggested that the exception should not be available in retail environments where transactions of both small- and large-dollar amounts are processed. As previously noted, however, the Board expects that for operational reasons, many businesses that process transactions of varying amounts will still make receipts available for all transactions, regardless of amount. Moreover, limiting the exception in the manner suggested would add additional complexity to the rule, and therefore, the Board believes the rule should be applied consistently for ease of compliance.
Comment 11(a)-6, as proposed, clarified that the fact that a financial institution does not make a terminal receipt available for a transaction of $15 or less is not a billing error for purposes of §§ 205.11(a)(1)(vi) or (vii).
The Regulatory Flexibility Act (5 U.S.C. 601
1.
The Board is revising Regulation E to provide financial institutions relief from the requirement to make available terminal receipts at the time of a transaction for EFTs of $15 or less. The Board believes that these revisions to Regulation E are within Congress's broad grant of authority to the Board to adopt provisions that carry out the purposes of the statute and to facilitate compliance with the EFTA. These revisions facilitate financial institutions' compliance with the EFTA in small-dollar transactions by eliminating obstacles to the use of electronic payment methods in such transactions where the value to the consumer of having a record of the transaction in the form of a terminal receipt is limited.
2.
3.
4.
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget (OMB). The final rule contains requirements subject to the PRA. The collection of information that is required by this final rule is found in 12 CFR part 205. The Board may not conduct or sponsor, and an organization is not required to respond to, this information collection unless the information collection displays a currently valid OMB control number. The OMB control number is 7100-0200. This collection of information is required to provide benefits for consumers and is mandatory (15 U.S.C. 1693
The final rule provides relief to financial institutions from the requirement to make available terminal receipts to consumers for all EFTs of $15 or less. The burden associated with use of this exception was previously estimated in the proposed rule and reported in documents filed with OMB. Under the Board's prior analysis, respondents that are currently providing receipts for EFTs of $15 or less would face a one-time burden of 8 hours (one business day) to reprogram and update their systems if they wish to make use of the exception. The Board did not receive any comments on the burden estimate provided in the proposal.
Although the current requirement to make receipts available for all transactions initiated at an electronic terminal applies to financial institutions, third parties, such as merchants, typically make receipts available on behalf of an account-holding financial institution. In retail environments that do not currently accept debit cards, the financial
The other federal financial agencies are responsible for estimating and reporting to OMB the total paperwork burden for the institutions for which they have administrative enforcement authority. They may, but are not required to, use the Board's burden estimates. The Board estimates that if 1,500 of the approximately 19,300 depository institutions program their ATMs to take advantage of the exception, the resulting increase in their total estimated annual burden for complying with Regulation E as a whole would be 12,000 hours.
Because the records would be maintained by the institutions and the notices are not provided to the Board, no issue of confidentiality arises under the Freedom of Information Act.
Comments are numbered to comply with
Consumer protection, Electronic fund transfers, Federal Reserve System, Reporting and recordkeeping requirements.
15 U.S.C. 1693b.
(a)
(e)
By order of the Board of Governors of the Federal Reserve System, June 27, 2007.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action revises Class E airspace at Red Dog, AK to provide adequate controlled airspace to contain aircraft executing Instrument Approach Procedures. Two Area Navigation (RNAV) Required Navigation Performance (RNP) Special Instrument Approach Procedures and an RNAV RNP Special Departure Procedure (DP) are being developed for the Red Dog Airport. This action revises existing Class E airspace upward from 1,200 feet (ft.) above the surface at Red Dog Airport, Red Dog, AK.
Gary Rolf, AAL-538G, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5898; fax: (907) 271-2850; e-mail:
On Monday, April 9, 2007, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) to revise Class E airspace upward from 1,200 ft. above the surface at Red Dog, AK (72 FR 17445). The action was proposed in order to create Class E airspace sufficient in size to contain aircraft while executing Special Instrument Approach Procedures for the Red Dog Airport. A recent rulemaking action revealed that a small area of additional controlled airspace is required for these procedures. Additionally, the coordinates listed for the Red Dog Airport and the Selawik VOR/DME have been updated to reflect the most current location surveys. Class E controlled airspace extending upward from 1,200 ft. above the surface, in the
Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. One comment in favor of the action was received. The rule is adopted as proposed.
The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9P,
This amendment to 14 CFR part 71 revises Class E airspace at the Red Dog Airport, Alaska. This Class E airspace is revised to accommodate aircraft executing Special Instrument Approach Procedures, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rules operations at the Red Dog Airport, Red Dog, Alaska.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Red Dog Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Red Dog Airport, AK; and that airspace extending upward from 1,200 ft. above the surface within a 14-mile radius of the Red Dog Airport, AK, and within 5 miles either side of a line from the Selawik VOR/DME, AK, to lat. 67°38′06″ N., long. 162°21′42″ W., to lat. 67°54′30″ N., long. 163°00′00″ W., and within 5 miles either side of a line from the Noatak NDB/DME, AK, to lat. 67°50′20″ N., long. 163°19′16″ W., and within 8 miles either side of the 219° bearing of the Red Dog NDB, AK, extending from the 14-mile radius from the Red Dog NDB, AK, to 30 miles southwest of the Red Dog Airport, AK.
Department of Commerce.
Final rule.
This rule amends the Department of Commerce's (Department) Freedom of Information Act (FOIA) regulations by changing the official authorized to deny requests for records under the Freedom of Information Act, and requests for correction or amendment under the Privacy Act (PA), for the Bureau of the Census.
Effective July 5, 2007.
Christa D. Jones, Chief of the Policy Office, Bureau of the Census, 301-763-7310.
Appendix B to 15 CFR Part 4 designates the officials authorized to deny requests for records under the FOIA, and requests for records and requests for correction or amendment under the PA. In order to change the designated official for the Bureau of the Census, we are amending the regulations.
It has been determined that this notice is not significant for purposes of E.O. 12866. It has been determined that this notice does not contain policies with Federalism implications as that term is defined in E.O. 13132.
Prior notice and an opportunity for public comment are not required by the Administrative Procedure Act for rules concerning agency organization, procedure, or practice (5 U.S.C. 553(b)(A)). The Department finds good cause to waive the 30-day delay in effectiveness because it is unnecessary. This rule merely changes the name of the official who is authorized to deny
Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.
Freedom of information, Privacy.
5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
Food and Drug Administration, HHS.
Final rule; technical amendment.
The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect a change of sponsor's name from Mylan Bertek Pharmaceuticals, Inc., to UDL Laboratories, Inc.
This rule is effective July 5, 2007.
David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail:
Mylan Bertek Pharmaceuticals, Inc., 12720 Dairy Ashford, Sugar Land, TX 77478, has informed FDA that it has changed its name to UDL Laboratories, Inc., and is using a new drug labeler code. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect these changes. A conforming change is being made in 21 CFR 524.2620 for this sponsor's sole product.
This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Final rule; approval of amendment.
We are approving an amendment to the Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Virginia is revising its remining regulations to make three of those provisions permanent by deleting a termination date of September 30, 2004, from the regulations. The amendment is intended to render the State regulations consistent with recent amendments to SMCRA.
July 5, 2007.
Mr. Tim Dieringer, Director, Knoxville Field Office; Telephone: (276) 523-4303. Internet:
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 Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Virginia program in the December 15, 1981,
By letter dated February 13, 2007 (Administrative Record Number VA-1058), the Virginia Department of Mines, Minerals and Energy (DMME) submitted an amendment to the Virginia program. In its letter, the DMME stated that the program amendment revises the Virginia Coal Surface Mining Reclamation Regulations to reflect the deletion from SMCRA, at section 510(e), of the termination date of section 510(e) of September 30, 2004.
Section 510 of SMCRA concerns permit approval or denial. Subsection 510(e) provides an exception to the prohibition of subsection (c), which prohibits the issuance of a permit where any surface coal mining operation owned or controlled by an applicant is currently in violation of SMCRA or such other laws referenced at subsection 510(c). Prior to being amended by the Tax Relief and Health Care Act of 2006, subsection 510(e) provided as follows:
(e) After the date of enactment of this subsection, the prohibition of subsection (c) shall not apply to a permit application due to any violation resulting from an unanticipated event or condition at a surface coal mining operation on lands eligible for remining under a permit held by the person making such application. As used in this subsection, the term “violation” has the same meaning as such term has under subsection (c). The authority of this subsection and section 515(b)(20)(B) shall terminate on September 30, 2004.
The effect of the deletion of the termination date in the SMCRA provision quoted above (the entire last sentence was deleted) is twofold: (1) It makes permanent the authority at subsection 510(e) of SMCRA to approve a permit application for surface coal mining operations on lands eligible for remining notwithstanding the existence of a violation resulting from an unanticipated event or condition at the site, and (2) it makes permanent the two-year revegetation responsibility period for lands eligible for remining at subsection 515(b)(20)(B) of SMCRA.
In its amendment, Virginia is deleting the termination date of September 30, 2004, from three of its program regulations concerning remining.
We announced receipt of the proposed amendment in the April 9, 2007,
1. 4 VAC 25-130-785.25. Lands eligible for remining.
This provision is amended by deleting subsection (c) in its entirety. Currently, 4 VAC 25-130-785.25 provides as follows:
(a) This section contains permitting requirements to implement 4 VAC 25-130-773.15(b)(4). Any person who submits a permit application to conduct a surface coal mining operation on lands eligible for remining must comply with this section.
(b) Any application for a permit under this section shall be made according to all requirements of this subchapter applicable to surface coal mining and reclamation operations. In addition, the application shall:
(1) To the extent not otherwise addressed in the permit application, identify potential environmental and safety problems related to prior mining activity at the site and that could be reasonably anticipated to occur. This identification shall be based on a due diligence investigation which shall include visual observations at the site, a record review of past mining at the site, and environmental sampling tailored to current site conditions.
(2) With regard to potential environmental and safety problems referred in subdivision (b)(1) of this section, describe the mitigative measures that will be taken to ensure that the applicable reclamation requirements of this chapter can be met.
(c) The requirements of this section shall not apply after September 30, 2004.
In its submittal letter, the DMME stated that the deletion of subsection (c) containing the termination date of September 30, 2004, is intended to reflect the deletion of that same termination date at subsection 510(e) of SMCRA.
We find that the deletion of the termination date of September 30, 2004, renders 4 VAC 25-130-785.25 consistent with and no less stringent than § 510(e) of SMCRA and can be approved.
2. 4 VAC 25-130-816.116(c)(2)(ii) and 817.116(c)(2)(ii). Revegetation; standards for success.
These provisions are amended by deleting the phrase “included in permits issued before September 30, 2004, or any renewals thereof” at the end of the first sentence in subparts (c)(2)(ii). Currently, 4 VAC 25-130-816.116(c) and 817.116(c) provide as follows:
(c) (1) The period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the division in accordance with subdivision (c)(3) of this section.
(2) The period of responsibility shall continue for a period of not less than:
(i) Five full years except as provided in subdivision (c)(2)(ii) of this section. The vegetation parameters identified in subsection (b) of this section for grazing land or pastureland and cropland shall equal or exceed the approved success standard during the growing seasons of any two years of the responsibility period, except the first year. Areas approved for the other uses identified in subsection (b) of this section shall equal or exceed the applicable success standard during the growing season of the last year of the responsibility period.
(ii) Two full years for lands eligible for remining included in permits issued before September 30, 2004, or any renewals thereof. To the extent that the success standards are established by subdivision (b)(5) of this section, the lands shall equal or exceed the standards during the growing season of the last year of the responsibility period.
(3) The division may approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, without extending the period of responsibility for revegetation success and bond liability, if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success. Approved practices shall be normal
In its submittal letter, the DMME stated that the deletion of the September 30, 2004, termination date at subparts (c)(2)(ii) is intended to reflect the deletion of that same termination date at subsection 510(e) of SMCRA.
We find that the deletion of the termination date of September 30, 2004, renders 4 VAC 25-130-816.116(c)(2)(ii) and 817.116(c)(2)(ii) consistent with and no less stringent than § 510(e) of SMCRA and can be approved.
We asked for public comments on the amendment (Administrative Record Number VA-1068) and no comments were received.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, on February 22, 2007, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Virginia program (Administrative Record Number VA-1060). The United States Department of the Interior, Bureau of Land Management responded and stated that they found no inconsistencies with the proposed changes and the Federal Laws, which govern mining. The United States Department of Labor, Mine Safety and Health Administration responded and stated that there did not seem to be any conflicts with the changes and deemed the changes appropriate. The United States Department of the Interior, Fish and Wildlife Service responded and stated that no impacts to Federally listed or proposed species or Federally designated critical habitat will occur and was in agreement with the changes made.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a 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)(II)(i), we requested comments on the amendment from the EPA (Administrative Record number VA-1060). No comments were received.
Based on the above findings, we are approving the amendment sent to us by Virginia on February 13, 2007. To implement this decision, we are amending the Federal regulations at 30 CFR part 946, which codify decisions concerning the 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 regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.
The provisions in the rule based on counterpart Federal regulations do not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. The revisions made at the initiative of the State that do not have Federal counterparts have also been reviewed and a determination made that they do not have takings implications. This determination is based on the fact that the provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.
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 Federal regulations 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 a portion of the provisions in this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that a portion of the State provisions are 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. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.
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 a portion of 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. For the portion of the State provisions that is not based upon counterpart Federal regulations, this determination is based upon the fact that the State provisions are administrative and procedural in nature and are not expected to have a substantive effect on the regulated industry.
Intergovernmental relations, Surface mining, Underground mining.
30 U.S.C. 1201
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce Special Local Regulations for the Port Huron to Mackinac Island Race. This action is necessary to safely control vessel movements in the vicinity of the race and provide for the safety of the general boating public and commercial shipping. During this period, no person or vessel may enter the regulated area without the permission of the Coast Guard Patrol Commander.
Effective July 21, 2007 at 11 a.m. to July 24, 2007 at 11:59 p.m.
Mr. Frank Jennings, Jr., Enforcement Branch, Ninth Coast Guard District, 1240 East 9th Street, Cleveland, OH at (216) 902-6095.
We are publishing this document to provide notice that under the provisions of 33 CFR 100.901, the Port Huron to Mackinac Race Special Local Regulations will be enforced from 11 a.m. on July 21, 2007 to 11:59 p.m. on July 24, 2007. The Special Local Regulations apply to the waters of the Black River, St. Clair River and lower Lake Huron from:
In order to ensure the safety of spectators and participating vessels, the Special Local Regulations will be enforced for the duration of the event. The Coast Guard will patrol the race area under the direction of a designated Coast Guard Patrol Commander. Vessels desiring to transit the regulated area may do so only with prior approval of the Patrol Commander and when so directed by that officer. The Patrol Commander may be contacted on Channel 16 (156.8 MHZ) by the call sign “Coast Guard Patrol Commander.” Vessels not participating in the race shall not make a wake nor endanger participants in the event or any other craft. Vessels participating in the race and patrol craft may create a wake but shall not endanger other vessels and are not required to check-in nor out with the Patrol Commander while participating in the race.
In the event these Special Local Regulations affect shipping, commercial vessels may request permission from the Patrol Commander to transit the area of the event by hailing call sign “Coast Guard Patrol Commander” on Channel 16 (156.8 MHZ).
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
This document corrects an error in the final rule pertaining to the Motor Vehicle Emissions Budgets (MVEBs) for Washington County (Parkersburg-Marietta, WV-OH), Jefferson County, (Steubenville-Weirton, WV-OH), Belmont County (Wheeling, WV-OH), Stark County (Canton, OH) and Allen County (Lima, OH). The Environmental Protection Agency (EPA) proposed MVEBs for 2009 and 2018 for each of these Ohio counties. In the final approvals for the redesignation of these areas to attainment of the 8-hour ozone standard, EPA provide the 2018 MVEBs for each county but inadvertently omitted the 2009 interim MVEBs that were discussed in the proposed rules. This technical correction to these final rules provides the 2009 MVEBs.
This final rule is effective on July 5, 2007.
Steve Marquardt, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-3214,
EPA published four notices of final rulemaking to redesignate Washington County (Parkersburg-Marietta, WV-OH), Jefferson County, (Steubenville-Weirton, WV-OH), Belmont County (Wheeling, WV-OH), Stark County (Canton, OH) and Allen County (Lima, OH) areas to attainment for the 8-hour ozone standard. For each of these counties EPA had proposed approval of the 2009 and 2018 MVEBs. In each of the final rulemaking notices, EPA omitted the 2009 MVEBs from the final rules. This is a correction to add these 2009 MVEBs.
For Allen County, and Stark County, Ohio, in the final rule published in the
For Belmont County, Ohio, in the final rule published in the
For Jefferson County, Ohio, in the final rule published in the
For Washington County, Ohio, in the final rule published in the
EPA is also making changes to 40 CFR 52.1885(ff) in order to include the 2009 MVEBs for the Ohio Counties.
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because we are merely correcting an omission in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedures Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601
This technical correction action does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act (5 U.S.C. 801
42 U.S.C. 7401
(ff) Approval—The 8-hour ozone maintenance plans for the following areas have been approved:
(1) Jefferson County, as submitted on July 31, 2006 and supplemented on October 3, 2006. The maintenance plan establishes 2009 motor vehicle emissions budgets (MVEBs) for Jefferson County of 2.63 tons per day (tpd) of volatile organic compounds (VOCs) and 4.10 tpd of oxides of nitrogen (NO
(2) Belmont County, as submitted on June 20, 2006, and supplemented on August 24, 2006, and December 4, 2006. The maintenance plan establishes 2009 MVEBs for Belmont County of 2.60 tpd of VOCs and 2.22 tpd of NO
(3) Allen County and Stark County, as submitted on June 20, 2006, and supplemented on August 24, 2006, and December 4, 2006. The maintenance plan establishes 2009 MVEBs for Allen County of 5.08 tpd of VOCs and 8.28 tpd of NO
(4) Washington County, as submitted on September 22, 2006, and supplemented on November 17, 2006. The maintenance plan establishes 2009 MVEBs for Washington County of 2.59 tpd of VOCs and 3.58 tpd of NO
Environmental Protection Agency (EPA).
Final rule.
EPA is approving a request, submitted on September 29, 2006, from the Commonwealth of Kentucky (Kentucky), through the Kentucky Division for Air Quality (KDAQ), to redesignate the Kentucky portion of the bi-State Louisville 8-hour ozone nonattainment area to attainment for the 8-hour National Ambient Air Quality Standard (NAAQS). The Kentucky portion of the bi-State Louisville 8-hour ozone nonattainment area (hereafter referred to as the “Kentucky State Louisville Area”) is comprised of three Kentucky Counties—Bullitt, Jefferson and Oldham. The Indiana portion of the bi-State Louisville 8-hour ozone nonattainment area is comprised of two Indiana Counties—Clark and Floyd. EPA's approval of Kentucky's redesignation request is based upon the determination that Kentucky has demonstrated that the Kentucky State Louisville Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA), including the determination that the entire (both the Kentucky and Indiana portions) bi-State Louisville 8-hour ozone nonattainment area has attained the 8-hour ozone standard. Additionally, EPA is approving the 8-hour ozone maintenance plan for the Kentucky State Louisville Area, including the regional motor vehicle emission budgets (MVEBs) for nitrogen oxides (NO
This rule will be effective August 6, 2007.
EPA has established a docket for this action under Docket Identification No. EPA-RO4-OAR-2006-0584. All documents in the docket are listed on the
Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. LeSane can be reached via telephone number at (404) 562-9074 or electronic mail at
On September 29, 2006, Kentucky, through the KDAQ, submitted a request to redesignate the Kentucky bi-State Louisville Area to attainment for the 8-hour ozone standard, and for EPA approval of the Kentucky State Implementation Plan (SIP) revision containing a maintenance plan for the Kentucky State Louisville Area. In an action published on April 27, 2007 (72 FR 20966), EPA proposed to approve the redesignation of the Kentucky State Louisville Area to attainment. EPA also proposed approval of Kentucky's plan for maintaining the 8-hour NAAQS as a SIP revision, and proposed to approve the regional MVEBs for the Kentucky bi-State Louisville Area that were contained in the maintenance plan. This rule is EPA's final action on the April 27, 2007, proposed rule.
During the comment period for EPA's proposal, one commenter submitted an adverse comment. EPA is addressing that comment in this action, and is taking final action as described in Section II and Section V of this rulemaking.
EPA is also providing information on the status of the Agency's transportation conformity adequacy determination for the new regional MVEBs for the years 2003 and 2020 that are contained in the maintenance plan for the Kentucky bi-State Louisville Area. These MVEBs are identical to those reflected in Indiana's maintenance plan for this bi-State area. The maintenance plans establish the following regional MVEBs for the Kentucky bi-State Louisville Area.
EPA's adequacy public comment period on these budgets (as contained in Kentucky's submittal) began on April 27, 2007, and closed on May 29, 2007.
Consequently, in a letter dated June 18, 2007, to John Lyons, Director of the Kentucky Department of Air Quality, and Art Williams, Director of Jefferson County Air Pollution Control District, EPA informed Kentucky of its intention to find the new 2003 and 2020 MVEBs for VOC and NO
Various aspects of EPA's Phase 1 8-hour ozone implementation rule were challenged in court and on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004.)
For the reasons set forth in the proposal action for the Kentucky bi-state Louisville Area, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests.
EPA is taking final action to approve Kentucky's redesignation request and to change the legal designation of the Kentucky bi-State Louisville Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA's response to the only comment received on the April 27, 2007, proposed rule, is described in Section III below. The entire bi-State Louisville 8-hour ozone nonattainment area is comprised of three Kentucky Counties—Bullitt, Jefferson, and Oldham, and two Indiana Counties—Clark and Floyd. This final action addresses only the Kentucky portion of the bi-state Louisville 8-hour ozone area. EPA will take action on the redesignation request and maintenance plan for the Indiana portion of this area in a separate action. EPA is also approving Kentucky's 8-hour ozone maintenance plan for Bullitt, Jefferson, and Oldham counties (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep the Kentucky state Louisville Area in attainment for the 8-hour ozone NAAQS through 2020. These approval actions are based on EPA's determination that Kentucky has demonstrated that the Kentucky state Louisville Area has met the criteria for redesignation to attainment specified in the CAA, including a demonstration that the entire bi-state Louisville area has attained the 8-hour ozone standard. EPA's analyses of Kentucky's 8-hour ozone redesignation request and maintenance plan are described in detail in the proposed rule published April 27, 2007 (72 FR 20966).
Consistent with the CAA, the maintenance plan that EPA is approving today also includes 2003 and 2020 regional MVEBs for NO
Additionally, in this action, EPA is responding to the one comment received on the April 27, 2007 (72 FR 20966), rulemaking proposing to approve the redesignation request and the maintenance plan SIP revision.
EPA has determined that the entire bi-state Louisville area has attained the 8-hour ozone standard and has also determined that Kentucky has demonstrated that all other criteria for the redesignation of the Kentucky State Louisville Area from nonattainment to attainment of the 8-hour ozone NAAQS have been met. See, section 107(d)(3)(E) of the CAA. EPA is also taking final action to approve the maintenance plan for the Kentucky State Louisville Area as meeting the requirements of sections 175A and 107(d) of the CAA. Furthermore, EPA is approving the 2003 and 2020 MVEBs contained in Kentucky's maintenance plan because these MVEBs are consistent with maintenance for the entire bi-state Louisville area. In the April 27, 2007, proposal to redesignate the Kentucky State Louisville Area, EPA described the applicable criteria for redesignation to attainment and its analysis of how those criteria have been met. The rationale for EPA's findings and actions is set forth in the proposed rulemaking and summarized in this rulemaking.
Approval of the redesignation request changes the official designation of
EPA received comments from one individual in response to the April 27, 2007, proposal to redesignate the Kentucky State Louisville Area. 72 FR 20966. The following is a summary of the adverse comment received and EPA's response to that comment.
After evaluating Kentucky's redesignation request and the comments received, EPA is taking final action to approve the redesignation and change the legal designation of the Kentucky state Louisville Area from nonattainment to attainment for the 8-hour ozone NAAQS. Through this action, EPA is also approving into the Kentucky SIP, the 8-hour ozone maintenance plan for Bullitt, Jefferson,
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely affects the status of a geographical area, does not impose any new requirements on sources or allow a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This 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 and because the Agency does not have reason to believe that the rule concerns an environmental health risk or safety risk that may disproportionately affect children.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 4, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)
Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
(e) * * *
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
The EPA is giving final approval to a State plan submitted by Ohio concerning criteria pollutant and toxic emissions from Hospital, Medical and Infectious Waste Incinerators (HMIWI) in the State. Ohio prepared a plan based on Clean Air Act (CAA) sections 111(d) and 129 for existing hospital, medical and infectious waste incinerators and asked that it be reviewed and approved as the State plan. The State's HMIWI plan sets out requirements for affected units at least as stringent as the EPA requirements entitled “Emission Guidelines (EG) and Compliance Times for Hospital/Medical/ Infectious Waste Incinerators” published in the
This final rule is effective on August 6, 2007.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0560. All documents in the docket are listed on the
John Paskevicz, Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6084,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
We are approving selected portions of the Ohio plan to control the air emissions from HMIWI units in the State. Our approval is based on EPA's review of the Ohio plan compared to the EPA Emission Guideline (EG) document dated September 15, 1997, 40 CFR part 60, subpart Ce (Emission Guidelines and Compliance Times for HMIWIs, see 62 FR 48348-48391). As noted in our proposed rule approval, (72 FR 1197, dated January 10, 2007) we are not taking action on the following portions of the Ohio Rule 3745-75-02(I)(1) (arsenic), -02(I)(2) (beryllium), -02(I)(4) (chromium), and -02(I)(7) (nickel) because these pollutants and the emission limits noted in the State rule for these pollutants are not part of the EPA emission guideline document. EPA
A HMIWI plan is a plan to control air pollutant emissions from existing incinerators which burn hospital waste or medical or infectious waste.
States were required under section 111(d) and 129 of the CAA to submit State plans to control emissions from existing HMIWI units. The requirement for a State plan was triggered when EPA published the EG for HMIWI under 40 CFR part 60, subpart Ce (62 FR 48348, September 15, 1997). The State plan is required to reduce several types of air pollutants associated with waste incineration.
The State plan includes control requirements which will reduce emissions of criteria pollutants including: particulate matter, sulfur dioxide, carbon monoxide, and nitrogen oxides. The approved plan will also control the emissions of toxic pollutants including: hydrogen chloride, lead, cadmium, mercury, and dioxin/furans. All of these pollutants cause adverse effects to public health and the environment. Dioxin, lead, and mercury bio-accumulate through the food chain. Serious developmental and adult effects in humans, primarily damage to the nervous system, have been associated with exposures to mercury. Exposure to dioxin and furans can cause skin disorders, cancer, and reproductive effects such as endometriosis. Dioxin and furans can also affect the immune system. Acid gases affect the respiratory tract, as well as contribute to the acid rain that damages lakes and harms agriculture and forests and man-made structures. Particulate matter has been linked with adverse health effects, including aggravation of existing respiratory and cardiovascular disease and increased risk of premature death. Nitrogen oxide emissions contribute to the formation of acid rain and ground level ozone, which is associated with a number of adverse health and environmental effects.
The Ohio Plan contains:
1. A demonstration of the State's legal authority to implement the section 111(d)/129 State Plan;
2. State rule, known as OAC 3745-75, as the enforceable mechanism;
3. An inventory of known active and exempt facilities, along with estimates of their potential air emissions;
4. Emission limits that are as protective as the EG;
5. A compliance date accomplished under the Federal Plan;
6. Testing, monitoring, reporting and recordkeeping requirements for the designated facilities;
7. Records from the public hearing on the State Plan; and,
8. Provisions for progress reports to EPA.
If your HMIWI as defined by Ohio is presently in operation and you rely on it to get rid of your hospital, medical and infectious waste and it was built on or before June 20, 1996, then it is subject to the State's regulation.
We compared the Ohio rules to the EPA's EG for HMIWI and found the Ohio rules matching very closely with the EPA EG with one exception. The exception is the Ohio rules also cover additional toxic pollutants including arsenic, beryllium, chromium, and nickel. These additional toxic pollutants are not part of the HMIWI EG and EPA is not including these pollutants in today's approved rule.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget.
Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, (Actions Concerning Regulations That Significantly “Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).
This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.
This 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 CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National
This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
Under Section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 4, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Administrative practice and procedure, Air pollution control, Waste treatment and disposal, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(a)
(b)
(c)
Environmental Protection Agency.
Direct final notice of partial deletion of the Uravan Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 8 is publishing a direct final notice of partial deletion of approximately 7 acres within the Uravan Superfund Site (Site), located in Montrose County, Colorado, from the National Priorities List (NPL). The acerage comprises a one mile section of Colorado State Highway 141 between mile posts 75 and 76.
The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substance Pollution Contingency Plan (NCP). This direct final partial deletion is being published by EPA with the concurrence of the State of Colorado, through the Colorado Department of Public Health and the Environment because EPA has determined that all appropriate response actions, under CERCLA, for the approximate 7 acres have been completed and, therefore, further remedial action pursuant to CERCLA is not appropriate.
This direct final deletion will be effective September 4, 2007. If adverse comments are received by August 6, 2007, EPA will publish a timely withdrawal of the direct final deletion in the
Comments may be mailed to: Rebecca Thomas, Project Manager, 8EPR-SR,
Comprehensive information about the Site is available for viewing and copying at the Site information repository located at U.S. EPA Region 8 Records Center, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6473, hours of operation M-F 8 a.m. to 4 p.m., or at the Colorado Department of Public Health and the Environment, Records Center, Building B, Second Floor, 4300 Cherry Creek Drive South, Denver, CO 80246-1530, hours of operation M-F 8 a.m. to 5 p.m.
Rebecca Thomas, Project Manager, 8EPR-SR,
EPA Region 8 is publishing this direct final notice of partial deletion of approximately 7 acres within the Uravan Superfund Site from the National Priorities List.
The EPA identifies sites that appear to present a significant risk to public health or the environment and maintains the NPL as the list of those sites. As described in § 300.425(e)(3) of
Because EPA considers this action to be non-controversial and routine, EPA is taking it without prior publication of a notice of intent to delete. This action will be effective September 4, 2007, unless EPA receives adverse comments by August 6, 2007, on this document. If adverse comments are received within the 30 day public comment period on this document, EPA will publish a timely withdrawal of this direct final partial deletion before the effective date of the deletion and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.
Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Uravan Superfund Site and demonstrates how a portion of the site meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.
Section 300.425(e) of the NCP provides that releases may be deleted from the NPL where no further response is appropriate. In making a determination to delete a Site from the NPL, EPA shall consider, in consultation with the State, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed (Hazardous Substance Superfund Response Trust Fund) response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Even if a site is deleted from the NPL, where hazardous substances, pollutants, or contaminants remain at the deleted site above levels that allow for unlimited use and unrestricted exposure, CERCLA section 121(c), 42 U.S.C. 9621(c) requires that a subsequent review of the site be conducted at least every five years after the initiation of the remedial action at the deleted site to ensure that the action remains protective of public health and the environment. If new information becomes available which indicates a need for further action, EPA may initiate remedial actions. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the Site:
1. The EPA consulted with Colorado on the deletion of the Site from the NPL prior to developing this direct final notice of partial deletion.
2. Colorado concurred with deletion of the Site from the NPL.
3. Concurrently with the publication of this direct final notice of partial deletion, a notice of the availability of the parallel notice of intent to partially delete published today in the “Proposed Rules” section of the
4. The EPA placed copies of documents supporting the deletion in the Site information repository identified above.
5. If adverse comments are received within the 30-day public comment period on this document, EPA will publish a timely notice of withdrawal of this direct final notice of partial deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received.
Deletion of a site from the NPL does not itself create, alter, or revoke any individual's right or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for partially deleting the Site from the NPL.
The Uravan site is located in western Colorado in the western portion of Montrose County on Highway 141 approximately 13 miles northwest of the Town of Nucla. The town of Uravan was demolished during remedial activities at the Site. The Site is located adjacent to the San Miguel River which drains into the Dolores River and hence to the Colorado River.
This partial deletion pertains to approximately 7 acres, a one mile section of Colorado State Highway 141, comprised of a right-of-way up to 60 feet in width between mile posts 75 and 76.
Colorado State Highway 141 traverses the Uravan Superfund site in western Colorado. The Uravan site is included on the National Priorities List (NPL) and is undergoing remedial work pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Colorado Department of Transportation (CDOT) has completed cleanup activities along the portion of Highway 141 impacted by radioactive mill tailings generated from the Manhattan Project in the 1940's.
A curve in State Highway 141 between mile posts 75 and 76 was identified as having significant safety issues related to its design. Highway 141 in this area was thought to be underlain by radioactive materials. Gamma data and 26 soil borings along the roadway confirmed that the roadway was underlain by radioactive materials.
Construction activities associated with the road realignment exposed approximately 1 mile of road bed containing radioactive materials and these waste materials were removed and relocated to a secure on-site repository on Club Mesa for long-term isolation. Institutional controls or future site inspections of the highway are not warranted because of the successful removal of contaminated materials.
Post-remedial action conditions at the Highway 141 site were evaluated using penetrating radiation surveys and laboratory analyses conducted on surface and subsurface soil samples collected in 2006. All of the pertinent details concerning site activities were taken from the September 2006
CDPHE conducted walking surveys of the highway right-of-way after excavation was complete. In addition, CDPHE obtained splits of selected samples and conducted soil sample analyses in their laboratory. Both of these activities confirmed that the measurements and analytical results obtained during Umetco's investigation were reasonable, repeatable and valid.
Cleanup criteria for soils in the Uravan area were established in Umetco's report titled
Evaluation of radioactive materials and contaminated soils along Highway 141 was initiated in 1996 with the development of a remedial investigation plan for the highway right-of-way and surrounding environs that Umetco reported in a March 1996
CDOT characterized the area utilizing 26 soil borings along the highway shoulders to obtain subsurface geological, environmental and geotechnical information. Boring depths ranged from 4 to 20 feet and all were logged with a gamma scintillometer. The borings were advanced until native soils were encountered, generally 10 to 20 feet, or until refusal. Umetco supplied trained radiological technicians and equipment to assist in logging the borings, and to maintain control of contaminated materials.
Direct surface and subsurface field measurements included the use of scintillation penetrating radiation measurements. Gamma radiation measurements were performed at the soil surface and subsurface at approximately 1 foot intervals along the vertical bore path. Gamma radiation measurements were collected in-situ to appraise penetrating radiation exposure rates and to estimate soil radionuclide concentrations.
A characterization investigation was conducted in accordance with established procedures that indicated radioactive materials were present in the area from mileposts 75 and 76 but that such materials were not present in the remaining Highway 141 right-of-way.
Following site cleanup, the average contaminant concentrations of radionuclides and heavy metals in soil in the CDOT Highway 141 project area have been reduced to levels below appropriate soil cleanup objectives. Remedial actions were successful in restoring the land to concentrations at or below background ranges and, thus, assuring that there is no incremental human risk from any of the eleven constituents of concern.
CDOT's contractor began the removal of contaminated materials in the southwest area of Highway 141 on January 16, 2006. The contractor removed contaminated debris and excavated contaminated soils from specified areas within the highway right-of-way. Radiologically elevated soils were removed to depths determined by real time scintillometer surveys. Approximately 51,000 cubic yards of contaminated materials were removed from the CDOT right-of-way and an additional 2,800 cubic yards were removed from Umetco's property adjacent to the right-of-way.
All material excavated from the roadway was dry and groundwater was not encountered while conducting the remedial activities. In addition, there was a sharp boundary between the tailings material and the underlying native, clayey soils. Contaminated materials did not migrate into the soils or into groundwater in the subject area.
The area was backfilled and regraded. On numerous occasions, CDPHE verified that cleanup activities were being conducted properly.
Contaminated materials were removed from the access to county road EE-22 and the bypass was backfilled. All disturbed areas were graded to blend with the surrounding topography and provide, as far as practicable, the original drainage features. The area was revegetated in May 2006.
Remedial activities were conducted in accordance with the Uravan Consent Decree and Remedial Action Plan that sets forth cleanup goals for the removal and disposal of radioactive materials. These cleanup goals were established using applicable, relevant and appropriate standards described in the Consent Decree. The Final Construction and Soil Confirmation Report describes the remedial actions performed along the roadway and assesses the effectiveness of the soil cleanup activities.
The remedial actions attained the goal of unrestricted use of the property. Future institutional controls or future site inspections are not warranted in the Highway 141 project area because all soil cleanup criteria for unrestricted use of the land have been attained at the site.
Public participation activities have been satisfied as required in CERCLA section 113(k), 42 U.S.C. 9613(k), and CERCLA section 117, 42 U.S.C. 9617. Documents in the deletion docket which EPA relied on for recommendation of the deletion from the NPL are available to the public in the information repository.
The EPA, with concurrence of the State of Colorado, has determined that all appropriate responses, for the approximate 7 acres within the Uravan Superfund Site, under CERCLA have been completed, and that no further response actions, under CERCLA, are necessary. Therefore EPA is partially deleting the Site from the NPL.
Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 4, 2007, unless EPA receives adverse comments by August 6, 2007. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion and it will
Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Health Resources and Services Administration (HRSA), HHS.
Final rule.
Subtitle 2 of Title XXI of the Public Health Service Act, as enacted by the National Childhood Vaccine Injury Act of 1986, as amended (the Act), governs the National Vaccine Injury Compensation Program (VICP). The VICP, administered by the Secretary of Health and Human Services (the Secretary), provides that a proceeding for compensation for a vaccine-related injury or death shall be initiated by service upon the Secretary, and the filing of a petition with the United States Court of Federal Claims (the Court). In some cases, the injured individual may receive compensation for future lost earnings, less appropriate taxes and the “average cost of a health insurance policy, as determined by the Secretary.” The final rule establishes the new method of calculating the average cost of a health insurance policy and determines the amount of the average cost of a health insurance policy to be deducted from the compensation award.
This regulation is effective August 6, 2007.
Tamara Overby, Chief, Policy Analysis Branch, Division of Vaccine Injury Compensation, Healthcare Systems Bureau, Health Resources and Services Administration (HRSA), Room 11C-26, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857; e-mail:
On June 9, 2006, the Secretary published in the
The Secretary received one written comment. The one commenter stated that the proposed rule raises both Federalism and Constitutional issues. The Secretary has considered this comment and notes that section 2115(a)(3)(B) of the Public Health Service Act gives explicit authority to the Secretary to determine the average cost of a health insurance policy.
Based on the new methodology, the amount of a health insurance policy to be deducted from a compensation award for the 12-month period, October 1, 2006—September 30, 2007 is $363.12 per month. In August 2006, Medical Expenditure Panel Survey-Insurance Component (MEPS-IC), available at
Because the KFF/HRET survey is published annually, the Department will periodically (generally on an annual basis) recalculate the average cost of a health insurance policy by obtaining a new baseline from the latest MEPS-IC data and updating this
Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety distributive and equity effects). In addition, under the Regulatory Flexibility Act of 1980 (RFA), if a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of a rule on small entities and analyze regulatory options that could lessen the impact of the rule.
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. Executive Order 12866 requires that all regulations reflect consideration of alternatives, of costs, of benefits, of incentives, of equity, and of available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations that are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues, require special analysis.
The Secretary has determined that minimal resources, if any, are required to implement the provisions included in this regulation. Therefore, in accordance with the RFA, and the Small Business Regulatory Enforcement Fairness Act of 1996, which amended the RFA, the Secretary certifies that this Final Rule will not affect any entities defined as small under this Act and will not have a significant impact on a substantial number of small entities.
This Final Rule does not meet the criteria for a major rule as defined by Executive Order 12866. The Secretary has determined that this Final Rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801. The Secretary conducted a cost analysis comparing the two methodologies using a single claim. This difference was multiplied by the annual average percent of claims compensated that include this calculation (20 percent) in which the award for lost wages is reduced by this more accurate amount, resulting in a slightly larger award. The new methodology is estimated to increase the annual total amount of awards by $50,000. Therefore, the additional cost to the Federal Government will be about $50,000 per year.
The table below compares the average cost of a health insurance policy using MEPS-IC only, KFF/HRET only and the new methodology.
The Secretary has determined that this Final Rule will not have effects on State, local, and tribal governments and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995.
The Secretary has also reviewed this Final Rule in accordance with Executive
This Final Rule will not adversely affect the following elements of family well-being: family safety, family stability, marital commitment; parental rights in the education, nurture and supervision of their children; family functioning, disposable income or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.
This Final Rule revises § 100.2 to incorporate a new methodology for calculating the average cost of a health insurance policy. This new methodology will result in a more accurate reflection of the actual average cost of a health insurance policy as compared to the old methodology which resulted in a number that was too high.
This Final Rule has no information collection requirements.
Biologics, Compensation, Health insurance, Immunizations.
This document was received at the Office of the Federal Register on June 29, 2007.
Secs. 312 and 313 of Pub. L. 99-660, 100 Stat. 3779-3782 (42 U.S.C. 300aa-1 note); sec. 2114(c) and (e) of the PHS Act (42 U.S.C. 300aa-14(c) and (e)); sec. 2115(a)(3)(B) of the PHS Act (42 U.S.C. 300aa-15(a)(3)(B)); sec. 904(b) of Pub. L. 105-34, 111 Stat. 873; sec. 1503 of Pub. L. 105-277, 112 Stat. 2681-741; and sec. 523(a) of Pub. L. 106-170, 113 Stat. 1927-1928.
For purposes of determining the amount of compensation under the VICP, section 2115(a)(3)(B) of the PHS Act, 42 U.S.C. 300aa-15(a)(3)(B), provides that certain individuals are entitled to receive an amount reflecting lost earnings, less certain deductions. One of the deductions is the average cost of a health insurance policy, as determined by the Secretary. The Secretary has determined that the average cost of a health insurance policy is $363.12 for 2006. This figure is calculated periodically (generally on an annual basis) using the most recent Medical Expenditure Panel Survey-Insurance Component (MEPS-IC) data available as the baseline for the average monthly cost of a health insurance policy. This baseline is adjusted by the annual percentage increase/decrease obtained from the most recent annual Kaiser Family Foundation and Health Research and Educational Trust (KFF/HRET) Employer Health Benefits survey or other authoritative source that may be more accurate or appropriate in the future. The revised amount will be effective upon its delivery by the Secretary to the United States Court of Federal Claims, and the amount will be published as a notice in the
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule; clarification.
This notice clarifies the availability of certain physician salary proxy data for purposes of the hospital direct and indirect graduate medical education policy adopted in the “Medicare Program; Prospective Payment System for Long-Term Care Hospitals RY 2008: Annual Payment Rate Updates, and Policy Changes; and Hospital Direct and Indirect Graduate Medical Education Policy Changes” final rule that appeared in the May 11, 2007
This notice is effective on July 1, 2007.
Tzvi Hefter, (410) 786-4487 (General information). Miechal Lefkowitz, (410) 786-5316 (Graduate Medical Education payments). Renate Rockwell, (410) 786-4645 (Graduate Medical Education payments).
In FR Doc. 07-2206 (72 FR 26870), there was an erroneous statement of fact relating to the GME policy adopted in the final rule. In light of the error, this notice serves to clarify the availability of certain salary proxy data that can be used for purposes of the hospital direct and indirect graduate medical education policy adopted in the final rule.
In the final rule that appeared in the May 11, 2007
Centers for Medicare & Medicaid Services (CMS), HHS.
Correction of final rule.
This document corrects technical errors in the “Medicare Program; Prospective Payment System for Long-Term Care Hospitals RY 2008: Annual Payment Rate Updates, and Policy Changes; and Hospital Direct and Indirect Graduate Medical Education Policy Changes; Final Rule” (hereinafter referred to as the RY 2008 LTCH PPS final rule) that appeared in the May 11, 2007
July 1, 2007.
Tzvi Hefter, (410) 786-4487 (General information). Elizabeth Truong, (410) 786-6005 (Federal rate update, budget neutrality, other adjustments, and calculation of the payment rates).
In FR Doc. 07-2206 (72 FR 26870), there were technical errors stemming from a typographical error in the computer programming of the payment simulation program that are identified and corrected in the Correction of Errors section below. The provisions in this correction notice are effective as if they had been included in the RY 2008 LTCH PPS final rule. Accordingly, the corrections are effective July 1, 2007.
In the RY 2008 LTCH PPS final rule, we incorrectly calculated the HCO fixed-loss amount. Specifically, we discovered that there was a typographical error in one of the numeric inputs used in the payment simulation program and this resulted in an understating of the nonlabor share of payments to LTCHs. Since the nonlabor related share is used in the calculation of the fixed-loss amount, this error caused the fixed-loss amount to be inaccurate. We corrected the typographical error in the payment simulation program and computed the payment using the same payment methodology that was discussed and used in the final rule. Consequently, the corrected final fixed-loss amount for RY 2008 is $20,738. This document replaces all incorrect HCO fixed-loss amounts references in the RY 2008 LTCH PPS final rule with the corrected fixed-loss amount of $20,738.
Furthermore, the payment simulation program was used in the analysis of payment changes for the impact section of the RY 2008 LTCH PPS final rule. Specifically, Tables 9 and 11 of the final rule address the projected impact of payment rate policy changes by comparing payments based on the policies that were in effect for RY 2007 to LTCH PPS payments based on policies to be in effect for RY 2008, including the RY 2008 HCO fixed-loss amount (72 FR 26870, 26977 through 26978, and 26985 through 26986). In this correction notice, we are providing the revised Tables 9 and 11 to reflect the changes resulting from correcting the typographical error in the payment simulation program. We note that it was necessary to revise only two columns in Table 11. Correcting the typographical error for the nonlabor share generally reduced the estimated impact on estimated payments per discharge from RY 2007 to RY 2008 due to finalized changes to the area wage adjustment (column 7). In addition, applying the revised fixed-loss amount, which is $2,216 lower than the incorrect fixed-loss amount applied in the RY 2008 LTCH PPS final rule, generally reduced the estimated impact on estimated payments per discharge from RY 2007 to RY 2008 (column 9). In addition, we are making conforming changes to the preamble of the final rule (as indicated in Section III. of this correction notice) that are necessary as a result of the correction of the fixed-loss amount and Tables 9 and 11.
In FR Doc. 07-2206 (72 FR 26870), make the following corrections:
1. On page 26898,
a. In the 2nd column, 1st full paragraph, lines 25 and 30, the figure “$22,954” is corrected to read “$20,738”.
b. In the 3rd column, 2nd full paragraph, lines 4 and 11, the figure “$22,954” is corrected to read “$20,738”.
2. On page 26899,
a. In the 1st column,
(1) In the 1st partial paragraph,
(a) Line 26, the figure “3.8” is corrected to read “1.2”.
(b) Line 42, the figure “1.0” is corrected to read “0.5”.
(c) Lines 46 through 48, the sentence “We also project an estimated 2.5 percent decrease in estimated payments per discharge from RY 2007 to RY 2008 due” is corrected to read, “We also project an estimated 0.4 percent decrease in estimated payments per discharge from RY 2007 to RY 2008 primarily due”.
(2) In the 1st full paragraph, line 2, the figure “$22,954” is corrected to read “$20,738”.
b. In the 2nd column,
(1) In the 1st partial paragraph, line 14, the figure “10” is corrected to read “8”.
(2) In the 1st partial paragraph, line 31, the figure “10” is corrected to read “8.5”.
3. On page 26900, in the 1st column, in the 3rd full paragraph, in the 2nd line from the bottom, the figure “$22,954” is corrected to read “$20,738”.
4. On page 26977, in the 3rd column, in the 1st partial paragraph, lines 27 and 28, the phrase “approximately $156 million (or about 3.8 percent).” is corrected to read, “approximately $50 million (or about 1.2 percent). In addition, applying the case-mix adjustment (2.49 percent) to account for the increase in payments in FY 2005, the result is estimated to be an impact of approximately $100 million.”
5. On pages 26977 through 26978, Table 9: Estimated Impact of the
6. On page 26978,
a. In the 1st column, 1st paragraph, lines 6 and 7, the phrase “We note the $156 million (or 3.8 percent)” is corrected to read, “We note the approximately $50 million (or 1.2 percent)”.
(b) In the 2nd column,
(1) In the 2nd full paragraph,
(a) Line 3, the figure “3.8” is corrected to read “1.2”.
(b) Line 4, the figure “$156 million” is corrected to read “approximately $50 million”.
(c) Line 9 the figure “3.8” is corrected to read “1.2”.
b. In the 3rd column, in the 1st partial paragraph, line 7, the figure “3.8” is corrected to read “1.2”.
7. On page 26979,
a. In the 1st column,
(1) In the 1st full paragraph,
(a) Line 2, the figure “2.5” is corrected to read “0.4”.
(b) Lines 4 and 5, the phrase “discharge from RY 2007 to RY 2008 due to the changes in” is corrected to read “discharge from RY 2007 to RY 2008 due primarily to the changes in”.
b. In the 2nd column,
(1) In the 1st partial paragraph,
(a) Line 14, the figure “9” is corrected to read “8.5”.
(b) Line 28, the figure “10.3” is corrected to read “9.6”.
(c) Line 42, the figure “22,954” is corrected to read “$20,738”.
(d) Lines 44 and 45, the phrase “estimated aggregate LTCH PPS payments of 2.5 percent, we believe that” is corrected to read “estimated aggregate LTCH PPS payments of 0.4 percent, we believe that”.
(2) In the 1st full paragraph, line 5, the figure “3.8” is corrected to read “1.2”.
c. In the 3rd column, in the 1st partial paragraph, lines 2 and 3, the phrase “finalizing a 3.8 percent decrease to the Federal rate” is corrected to read “finalizing an estimated 1.2 percent decrease in estimated LTCH PPS payments”.
8. On page 26980,
a. In the 1st column, 1st full paragraph, line 21, the figure “1.0” is corrected to read “0.5”.
b. In the 2nd column, 2nd full paragraph, line 5, the figure “3.8” is corrected to read “1.2”.
c. In the 3rd column, 2nd full paragraph,
(1) Line 4, the figure “3.8” is corrected to read “1.2”.
(2) Line 5, the figure “$156 million” is corrected to read “$50 million”.
9. On page 26981, in the 1st column, 1st partial paragraph, line 2, the figure “6.2” is corrected to read “3.1”.
10. On page 26982,
a. In the 1st column, 1st full paragraph,
(1) Line 2, the figure “2.8” is corrected to read “0.7”.
(2) Lines 4 and 5, the phrase “per discharge to rural LTCHs from RY 2007 to RY 2008 due to the changes in” is corrected to read “per discharge to rural LTCHs from RY 2007 to RY 2008 due primarily to the changes in”.
(3) Line 29, the figure “$22,954” is corrected to read “$20,738”.
(4) Lines 32 and 33, the phrase “payments to rural hospitals by 2.8 percent, we believe that this is” is corrected to read “payments to rural LTCHs, we believe that this is”.
b. In the 2nd column, in the 1st full paragraph, lines 26 and 39, the figure “6.2” is corrected to read “3.1”.
11. On page 26984, in the 2nd column, 1st partial paragraph, line 4, the figure “$22,954” is corrected to read “$20,738”.
12. On pages 26985 and 26986, Table 11: Projected Impact of Payment Rate and Payment Rate Policy Changes to LTCH PPS Payments for RY 2008 is corrected to read as follows:
13. On page 26986, in the 2nd column, in the 1st full paragraph, line 4, the figure, “3.8” is corrected to read “1.2”.
14. On page 26987, in the 3rd column,
(a) In the 1st partial paragraph, line 23, the figure “$22,954” is corrected to read “$20,738”.
b. In the 1st full paragraph,
(1) Line 13, the figure “6.2” is corrected to read “3.1”.
(2) Line 14, the figure “3.7” is corrected to read “1.2”.
c. In the 3rd full paragraph,
(1) Line 2, the figure “3.2” is corrected to read “0.7”.
(2) Line 7, the figure “4.7” is corrected to read “2”.
15. On page 26988,
a. In the 1st column,
(1) In the 1st full paragraph, lines 2 and 3, the phrase, “experience a lower than average decrease in estimated payments per” is corrected to read, “experience no change in estimated payments per”.
(2) In the 3rd full paragraph, line 12, the figure, “3.8” is corrected to read “1.1”.
(3) In the 4th full paragraph,
(a) Line 6, the figure, “ 3.4” is corrected to read, “1.0”.
(b) Line 18, the figure “0.8” is corrected to read “0.2”.
b. In the 2nd column,
(1) The 1st full paragraph is corrected in its entirety to read as follows:
“LTCHs that began participating before October 1983 are projected to experience a 0.2 percent increase in estimated payments per discharge from the 2007 LTCH PPS rate year compared to the 2008 LTCH PPS rate year (see Table 11). We are projecting that LTCHs that began participating in Medicare before October 1983 would experience an increase in estimated payments for RY 2008 as compared to RY 2007 primarily because we are projecting that LTCHs in this participation date category would experience a decrease in estimated payments in RY 2008 as compared to RY 2007 because several of these LTCHs are located in areas that have a wage index value of greater than 1.0, as explained above.
(2) In the 2nd full paragraph,
(a) Line 7, the figure “4.5” is corrected to read as “1.9”.
(b) Line 19, the figure “1.5” is corrected to read as “0.9”.
c. In the 3rd column,
(1) In the 1st partial paragraph, line 10, the figure “4.5” is corrected to read as “2.0”.
(2) In the 1st full paragraph, line 5, the figure “4” is corrected to read as “1.5”.
(3) In the 2nd full paragraph, line 6, the figure “3.7” is corrected to read as “1.1”.
16. On page 26989,
a. In the 1st column,
(1) In the 1st partial paragraph,
(a) Lines 1 through 3, the phrase “East South Central and West South Central regions (5.3 percent and 4.8 percent, respectively; see” is corrected to read “East South Central region (2.6 percent, see”.
(b) Lines 9 through 12, the phrase “adjustment (2.3 percent for the East South Central region, and 1.7 percent for the West South Central region, as shown in Table 11)” is corrected to read “adjustment (1.7 percent, as shown in Table 11)”.
(c) Line 15, the phrase “and the West South Central regions” is removed.
b. In the 3rd full paragraph,
(1) Line 10, the figure “4.7” is corrected to read “1.9”.
(2) Line 12, the figure “4.3” is corrected to read “1.6”.
c. In the 2nd column
(1) In the 1st partial paragraph, line 10, the figure “2.5” is corrected to read “0.1”.
(2) In the 1st full paragraph,
(a) Lines 12 and 13, the phrase “about $156 million” is corrected to read “approximately $50 million”.
(b) Line 13, the figure “3.8” is corrected to read “1.2”.
17. On page 26991, in the 1st column,
(a) In the 1st full paragraph, lines 5 and 6, the phrase “payments of $156 million (or about 3.8 percent)” is corrected to read “payments of approximately $50 million (or about 1.2 percent)”
(b) In Table 12, in the 2nd row, in the 2nd column, line 4, the figure “$156” is corrected to read “$50”.
We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the correction notice.
Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the
This correction notice corrects technical errors in the RY 2008 LTCH PPS final rule. It does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. We believe it is unnecessary to undergo notice and comment procedures and have a 30-day delay in effective date of these technical changes because they merely ensure that the RY 2008 LTCH PPS final rule accurately reflects the policies that were adopted in that final rule, final policies which were previously subjected to notice and comment procedures and that have had more than a 30 day-delayed effective date. We believe it impracticable to engage in notice and comment procedures and have a 30-day delayed effective date for these technical corrections as the correct payment rates must be effective July 1, 2007.
Therefore, we are waiving proposed rulemaking and the 30-day delay in effective date for the technical corrections in this correction notice.
Federal Communications Commission.
Final rule.
This document grants a petition for rulemaking filed by Akron Broadcasting Company (“Petitioner”), seeking to amend the FM Table of Allotments by allotting Channel 279C1 at Akron, Colorado, as the community's first local aural transmission service. Channel 279C1 is allotted at Akron, Colorado, at Petitioner's requested site 24.5 kilometers (15.2 miles) southeast of the community at coordinates 40-03-28 NL and 102-57-35 WL.
Effective July 23, 2007.
Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554.
Victoria McCauley, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
47 U.S.C. 154, 303, 334, 336.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to groundfish management measures; request for comments.
This final rule announces inseason changes to management measures in the commercial Pacific Coast groundfish fishery. These actions, which are authorized by the Pacific Coast Groundfish Fishery Management Plan (FMP), are intended to allow fisheries to access more abundant groundfish stocks while protecting overfished and depleted stocks.
Effective 0001 hours (local time) August 1, 2007. Comments on this final rule must be received no later than 5 p.m., local time on August 6, 2007.
You may submit comments, identified by RIN 0648-AV69 by any of the following methods:
• E-mail:
• Federal eRulemaking Portal:
• Fax: 206-526-6736, Attn: Gretchen Arentzen
• Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Gretchen Arentzen.
Gretchen Arentzen (Northwest Region, NMFS), phone: 206-526-6147, fax: 206-526-6736 and e-mail
This final rule is accessible via the Internet at the Office of the Federal Register's Website at
The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subpart G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS. A proposed rule to implement the 2007-2008 specifications and management measures for the Pacific Coast groundfish fishery and Amendment 16-4 of the FMP was published on September 29, 2006 (71 FR 57764). The final rule to implement the 2007-2008 specifications and management measures for the Pacific Coast Groundfish Fishery was published on December 29, 2006 (71 FR 78638). These specifications and management measures were codified in the CFR (50 CFR part 660, subpart G). The final rule was subsequently amended on: March 20, 2007 (71 FR 13043); and April 18, 2007 (72 FR 19390).
Changes to current groundfish management measures implemented by this action were recommended by the Council, in consultation with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California, at its June 11-15, 2007, meeting in Foster City, California. At that meeting, the Pacific Council recommended adjusting current groundfish management measures to respond to updated fishery information and other inseason management needs. The Pacific Council recommended: (1) moving the seaward boundary of the Limited Entry Trawl Rockfish Conservation Area (RCA) between Cascade Head (45°03.83′ N. lat.) and the Columbia River (46°16′ N. lat.) from a line approximating the 150-fm (274-m) depth contour to a line approximating the 200-fm (366-m) depth contour; (2) increasing the 2-month cumulative limit in the limited entry trawl fishery for longspine thornyheads using large and small footrope gear north of 40°10′ N. lat.; (3) increasing the 2-month cumulative limit in the limited entry trawl fishery south of 40°10′ N. lat. for Dover sole; (4) increasing the monthly cumulative limit in the limited entry trawl fishery for chilipepper rockfish using small footrope gear south of 40°10′ N. lat.; (5) increasing the 2-month cumulative limit in the limited entry fixed gear fishery for shortspine thornyheads south of 34°27′ N. lat.; (6) combining the 2-month cumulative limits for shelf rockfish, widow rockfish and bocaccio, in the limited entry fixed gear fishery, between 40°10′ N. lat. and 34°27′ N. lat. into a single 2-month cumulative limit starting September 1; (7) increasing the daily and weekly limits in the open access sablefish daily trip limit (DTL) fishery south of 36° N. lat.. Pacific Coast groundfish landings will be monitored throughout the year, and further adjustments to trip limits or management measures will be made as necessary to allow achievement of, or to avoid exceeding, optimum yields (OYs).
At its March 2007 meeting, the Council received a NMFS report indicating higher than anticipated canary rockfish bycatch rates by selective flatfish trawl gear vessels fishing shoreward of the trawl RCA in 2005. The Council responded to this new information by restricting access to some shoreward fishing areas north of 40°10' N. lat. and by liberalizing fishing opportunities seaward of the RCA to encourage a shift of effort to offshore waters in the 2007 limited entry non-whiting trawl fisheries (71 FR 19390, April 18, 2007). The Council expected these inseason adjustments to result in a decreased canary rockfish bycatch in the 2007 limited entry non-whiting trawl fisheries, but with a possible higher bycatch of darkblotched rockfish, a slope rockfish, with impacts for both species projected to stay within their respective OYs.
At its June 2007 meeting, the Council considered the most recently available information on groundfish landings and on updated projections of groundfish species total catches, and concluded that the April inseason adjustments effectively reduced canary rockfish impacts in the 2007 limited entry non-whiting trawl fishery. However, effort shifts by limited entry trawl vessels to areas seaward of the trawl RCA were greater than anticipated, resulting in a higher bycatch of darkblotched rockfish than projected in the area between Cascade Head (45°03.83′ N. lat.) and the Columbia River (46°16′ N. lat.). Under the previously adopted RCA schedule, the seaward boundary in this area was scheduled to shift from the line approximating the 150-fm (274-m) depth contour to the line approximating the 200-fm (366-m) depth contour beginning September 1; however, further reduction in the impacts of effort shifts to darkblotched rockfish is necessary. Therefore, the Council recommended and NMFS is
The Council also considered adjustments to trip limits in the limited entry non-whiting trawl fishery. Available catch limits of longspine thornyheads taken with large and small footrope trawl gear north of 40°10′ N. lat., Dover sole south of 40°10′ N. lat., and chilipepper rockfish taken with small footrope trawl gear south of 40°10′ N. lat. are being attained by participating vessels. The Council considered increases to trip limits for these species and the potential impacts on overall catch levels and overfished species. The most recently available information as of June 25, 2007, indicates that 19 percent (411 mt out of the 2,220 mt OY) of the longspine thornyhead OY north of 34°27′ N. lat. and 27 percent (4,555 mt out of the 16,500 mt OY) of the coastwide Dover sole OY have been taken through June 16, 2007. These projections are below the anticipated catch projections through June, and continuing the trawl fishery under these limits is projected to prevent the fishery from attaining the OYs for these species. Modest increases to longspine thornyhead and Dover sole cumulative limits are expected to increase overall catch levels, but those increases are predicted to be within the 2007 OYs for these species and are not expected to result in greater than projected overfished species impacts.
Therefore, the Council recommended and NMFS is implementing the following trip limit changes for the limited entry trawl fishery: (1) North of 40°10' N. lat., increase longspine thornyhead limits using large and small footrope gear from 22,000 lb (9,979 kg) per 2 months to 25,000 lb (11,340 kg) per 2 months beginning in period 4; and (2) south of 40°10' N. lat., increase Dover sole limits from 70,000 lb (31,751 kg) per 2 months to 80,000 lb (36,287 kg) per 2 months beginning in period 4.
Chilipepper rockfish are an abundant species taken in common with other rockfish in the southern shelf rockfish complex. Based on the most recently available West Coast Groundfish Observer Program (WCGOP) data, chilipepper rockfish are being regularly discarded under current trip limits for small footrope trawl gear south of 40°10' N. lat. OYs for chilipepper rockfish have not come close to being achieved in recent years. For example, in the 2005 limited entry trawl and fixed gear fishery, the chilipepper rockfish landings were 28 mt, less than 3 percent of the 1099 mt chilipepper rockfish OY. The Council considered increasing chilipepper rockfish limits to accommodate some of this discard while keeping limits low enough to prevent targeting. Targeting of chilipepper rockfish could increase impacts to bocaccio and widow rockfish, co-occurring overfished species. Current catch projections estimate that less than 80 percent of the 2007 OYs will be obtained for either bocaccio or widow rockfish by the end of the year; therefore, if unexpected targeting of chilipepper rockfish were to occur, and higher than expected bycatch of bocaccio and widow rockfish occurs, bocaccio and widow rockfish total catch could be expected to remain within 2007 OYs. Therefore, the Council recommended and NMFS is implementing the following trip limit changes for the limited entry trawl fishery: South of 40°10′ N. lat., increase chilipepper rockfish limits using small footrope trawl gear from 500 lb (227 kg) per month to 800 lb (363 kg) per month beginning August 1.
As of May 31, 2007, the total shortspine thornyhead landings south of 34°27′ N. lat. were estimated to be 60.6 mt out of a 421 mt OY. The Council considered increases to the shortspine thornyhead cumulative limits south of 34°27′ N. lat., and discussed concerns with possible effort shifts. Increases in effort in this area could result in higher sablefish catch and higher catches of other species. Estimates show that sablefish catches in this area are lower than they had been predicted to be at the beginning of the year. The Council recommended a short term increase in shortspine thornyhead cumulative limits to balance the potential impacts on sablefish from a possible effort shift and the large amount of shortspine thornyheads available for harvest. The Council will consider further adjustments to shortspine thornyhead cumulative limits upon receipt of additional fishery information later in the year. Shortspine thornyheads are a slope rockfish species and most of the overfished species south of 36° N. lat. are shelf species, so no increased impacts on overfished species are expected to occur as a result of increasing shortspine thornyhead trip limits.
The Council also considered industry concerns regarding high discard rates of minor shelf, bocaccio, and widow rockfish in the fixed gear fishery between 40°10′ N. lat. and 37° N. lat. and a request to combine bocaccio, chilipepper, and widow rockfish into a single combined limit with minor shelf rockfish between 40°10′ N. lat. and 37° N. lat. The Council had concerns with the impacts to overfished species by combining chilipepper rockfish cumulative limits into a single cumulative limit with minor shelf, bocaccio and widow rockfish, since the high abundance of chilipepper rockfish would result in a combined limit too high to be supported by less abundant species in the complex. Leaving cumulative limits for chilipepper rockfish separate, while combining minor shelf, bocaccio and widow rockfish into a single cumulative limit, will allow the industry increased flexibility in retention opportunities and is expected to reduce discard without affecting overfished species catch levels.
Therefore, the Council recommended, and NMFS is implementing the following changes for the limited entry fixed gear fishery: (1) South of 34°27′ N. lat., increase the shortspine thornyhead limits from 2,000 lb (907 kg) per 2 months to 3,000 lb (1,361 kg) per 2 months during period 4; (2) between 40°10′ N. lat. and 37° N. lat., combine the trip limit for bocaccio of 300 lb (136 kg) per 2 months and the trip limit for minor shelf rockfish, shortbelly rockfish, and widow rockfish of 300 lb (136 kg) per 2 months into a single cumulative trip limit of 500 lb (227 kg) per 2 months for: bocaccio, minor shelf rockfish, shortbelly, and widow rockfish beginning September 1.
The Council considered an industry request to increase limits in the open access sablefish DTL fishery south of 36° N. lat. to allow available sablefish OY in this area to be harvested by providing fishing opportunities that would be equivalent to opportunities in recent years. In October 2006, NMFS increased the daily limits south of 36° N. lat. from 350 lb (159 kg) per day to 500 lb (227 kg) per day (71 FR 58289, October 3, 2006), which resulted in a large shift in effort by vessels that had historically operated north of 36° N. lat., forcing reductions in the daily limit to 300 lb (136 kg) per day and an introduction of a 2 month cumulative limit of 3,000 lb (1,361 kg) per month in December 2006 in order to stay within the 2006 sablefish OY in this area (71 FR 69076, November 29, 2006). The large increase in effort south of 36° N. lat. in 2006 was due, in part, to a highly restricted salmon fishing season and to the sablefish DTL fishery closure north of 36° N. lat. As a precautionary
These actions are taken under the authority of 50 CFR 660.370(c) and are exempt from review under Executive Order 12866.
These actions are authorized by the Pacific Coast groundfish FMP and its implementing regulations, and are based on the most recent data available. The aggregate data, upon which these actions are based, are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (see
For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to the 2007 groundfish management measures under 5 U.S.C. 553(b)(3)(B) because notice and comment would be impracticable and contrary to the public interest. Also for the same reasons, NMFS finds good cause to waive part of the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) and 5 U.S.C. 553(d)(3).
The data upon which these recommendations were based was provided to the Council and the Council made its recommendations at its June 11-15, 2007, meeting in Foster City, CA. There was not sufficient time after that meeting to draft this notice and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this notice, affording the time necessary for prior notice and opportunity for public comment would be impractical and contrary to the public interest because it would prevent the Agency from managing fisheries using the best available science to approach without exceeding the OYs for federally managed species. The adjustments to management measures in this document affect commercial groundfish fisheries off Washington, Oregon, and California.
Changes to the limited entry trawl RCA must be implemented in a timely manner by August 1, 2007, to reduce the projected bycatch of darkblotched rockfish, a groundfish species that is currently subject to rebuilding requirements. Changes to the trawl RCA must be made to reduce the bycatch of darkblotched rockfish, so that the total catch of darkblotched rockfish stays within its 2007 OY, as defined in the rebuilding plan for this species. It would be contrary to the public interest to wait to implement this RCA revision until after public notice and comment, because failing to make this regulatory change by August 1 could result in higher than projected darkblotched rockfish catch, ultimately risking early closure of fisheries important to coastal communities.
Changes to the cumulative limits in the non-whiting commercial fisheries must be implemented in a timely manner to relieve a restriction by allowing fishermen increased opportunities to harvest available healthy stocks. Changes to cumulative limits for the following stocks must be implemented in a timely manner by August 1, 2007: (1) Longspine thornyhead, Dover sole, and chilipepper rockfish cumulative limits in the limited entry trawl fishery; (2) shortspine thornyheads in the limited entry fixed gear fishery; and (3) cumulative limits in the open access sablefish DTL fishery. These changes allow fishermen an opportunity to harvest higher trip limits for stocks with catch tracking behind their projected 2007 catch levels. In the limited entry fixed gear fishery, changes that combine the limits for minor shelf rockfish, widow rockfish and bocaccio must be implemented in a timely manner by September 1, 2007, to provide fishermen an opportunity to harvest available healthy stocks by allowing increased flexibility in retention opportunities. All of these cumulative limit changes are within projected mortality for overfished species. All of these actions provide increased trip limits or regulatory flexibility. Therefore, it would be contrary to the public interest to fail to relieve the current restrictions in a timely manner.
Delaying these changes would keep management measures in place that are not based on the best available data, which could risk fisheries exceeding their OY, or deny fishermen access to available harvest. Such delay would impair achievement of one of the Pacific Coast Groundfish FMP objectives of providing for year-round harvest opportunities or extending fishing opportunities as long as practicable during the fishing year.
Fisheries, and Fishing.
16 U.S.C. 1801
Animal and Plant Health Inspection Service, USDA.
Proposed rule.
We are proposing to amend the regulations for the treatment of plant pests by removing two treatment options that we now believe to be ineffective at neutralizing their target plant pests. A review of these treatments found these options to be ineffective. We are also proposing to remove two treatment schedules that are no longer authorized for use and to clarify the fruits and vegetables on which two methyl bromide treatments may be used. These changes would ensure that ineffective or unauthorized treatments are not used and clarify the regulations.
We will consider all comments that we receive on or before September 4, 2007.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0091, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0091.
Dr. Inder P. S. Gadh, Senior Risk Manager-Treatments, Phytosanitary Issues Management, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1236; (301) 734-8758.
The phytosanitary treatments regulations contained in 7 CFR part 305 (referred to below as the regulations) set out standards and schedules for treatments required in 7 CFR parts 301, 318, and 319 for fruits, vegetables, and articles to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States.
In this document, we are proposing to:
• Amend two treatments to remove options that we now believe to be ineffective at neutralizing their target plant pests;
• Remove two treatment schedules that are no longer authorized for use; and
• Clarify the fruits and vegetables on which two methyl bromide treatments may be used.
These changes are discussed in more detail directly below.
In the approved treatments regulations in § 305.2(h)(2), fumigation according to methyl bromide treatment schedule MB T101-j-2-1, in accordance with the methyl bromide treatment regulations in § 305.6, is approved as a treatment for
A recent discovery of a live larva of Mexican fruit fly in citrus that was being moved interstate from an area within the United States that had been quarantined for the Mexican fruit fly and had been treated with MB T101-j-2-1 prompted the Animal and Plant Health Inspection Service (APHIS) to reevaluate the research that had been used to formulate this treatment. The reevaluation revealed that, in order to effectively neutralize Mexican fruit fly, the treatment should be performed at a temperature of 80 °F or above. Accordingly, we are proposing to amend the entry for this treatment in § 305.6(a) to indicate that it may only be performed at a temperature of 80 °F or above. The commodities for which this treatment is an approved treatment would not change.
In the approved treatments regulations in § 305.2(h)(2)(i), the methyl bromide/cold treatment combination treatment MB&CT T108-b, performed in accordance with the combination treatment requirements in § 305.10, is approved as a treatment for
A review by APHIS has determined that there is not adequate scientific justification to conclude that the pests for which MB&CT T108-b is an approved treatment can be neutralized if the option of holding the fruit between 48 °F and 56 °F for 6 days is used. Accordingly, we are proposing to remove this option from the cold treatment schedule in MB&CT T108-b. The other options available for this MB&CT treatment and the commodities for which this treatment is an approved treatment would not change.
In the approved treatment regulations in § 305.2(g), two treatments are listed that are approved for use on aircraft to treat for fruit flies and soft-bodied insects: The aerosol treatments T409-c-1 and T409-c-3. As described in the aerosol spray for aircraft treatment schedules regulations in § 305.9(b), both of these treatments require the use of resmethrin, a pesticide.
The U.S. Environmental Protection Agency (EPA) issues labels for pesticides such as resmethrin that set out requirements for their use, including approved uses. Resmethrin's EPA label does not list aerosol application to aircraft as an approved use. APHIS may secure emergency approval to use pesticides in a manner that is not specified on the EPA label, but we have not done so for these two treatments. Thus, they cannot currently be legally administered. Accordingly, we are proposing to remove treatment schedules T409-c-1 and T409-c-3 from the aerosol spray for aircraft treatment schedules regulations. We would also remove the entry for fruit flies and soft-bodied insects in the table listing approved treatments for aircraft (among other equipment) in § 305.2(g).
If this change is finalized, no treatment would be approved in the regulations to neutralize fruit flies and other soft-bodied insects that are associated with aircraft. To our knowledge, neither of the treatments we are proposing to remove has been used in many years, and aircraft are not being treated for fruit flies and other soft-bodied insects. We are not proposing to add a substitute treatment for fruit flies and other soft-bodied insects, because presently a treatment is unnecessary. If we determine that such a treatment is necessary, we will add one to the regulations through subsequent rulemaking.
In the approved treatment regulations in § 305.2(h)(2)(i), fumigation according to methyl bromide treatment schedule MB T104-a-1, in accordance with the methyl bromide treatment regulations in § 305.6, is listed as an approved treatment for hitchhikers or surface pests, except mealybugs, for all imported fruits and vegetables. Similarly, fumigation according to methyl bromide treatment schedule MB T104-a-2 is listed as an approved treatment for mealybugs for all imported fruits and vegetables. However, only some fruits and vegetables are approved by EPA to be treated with methyl bromide under the Federal Insecticide, Fungicide, and Rodenticide Act. These fruits and vegetables are typically approved for treatment either on the EPA label for methyl bromide or through an exemption under Section 18 of the Act. (EPA makes lists of commodities that it has approved for treatment with methyl bromide available on its Web site at
Therefore, we are proposing to update the commodity entries in the table in § 305.2(h)(2)(i) for MB T104-a-1 and MB T104-a-2. Rather than indicating simply that the treatments are approved for all imported fruits and vegetables, these entries would instead indicate that the treatments are approved for those imported fruits and vegetables that are approved for treatment with methyl bromide under the Federal Insecticide, Fungicide, and Rodenticide Act. This proposed clarification reflects the requirements in § 305.5(c)(1), which states that all chemical applications must be administered in accordance with an EPA-approved pesticide label and the APHIS-approved treatment schedule prescribed in part 305, and that if EPA cancels approval for the use of a pesticide on a commodity, then the treatment schedule prescribed in part 305 is no longer authorized for that commodity.
This proposed rule has been reviewed under Executive Order 12866. For this action, the Office of Management and Budget has waived its review under Executive Order 12866.
We are proposing to amend the regulations for the treatment of plant pests by removing two treatment options that we now believe to be ineffective at neutralizing their target plant pests. A review of these treatments found these options to be ineffective. We are also proposing to remove two treatment schedules that are no longer authorized for use, to clarify the fruits and vegetables on which two methyl bromide treatments may be used, and to clearly prohibit the use of unauthorized chemical treatments. These changes would ensure that ineffective or unauthorized treatments are not used and clarify the regulations.
Removing treatment schedules T409-c-1 and T409-c-3 would not be expected to have any economic effects because, to our knowledge, these treatments have not been used for many years. Clarifying that treatment schedules MB T104-a-1 and MB T104-a-2 are approved for only those imported fruits and vegetables that are listed on the EPA label for methyl bromide or otherwise authorized for treatment by EPA would not be expected to have any economic effects because it simply clarifies the circumstances under which APHIS will perform the treatments. Therefore, this economic analysis concentrates on the potential economic effects of our proposal to amend two treatment options for fruits and vegetables.
We are proposing to amend methyl bromide treatment schedule MB T101-j-2-1 to indicate that it may only be performed at a temperature of 80 °F or above. The commodities for which this treatment is an approved treatment would not change. The treatment schedule is approved for
We are also proposing to amend combination cold treatment-methyl bromide treatment schedule MB&CT T108-b to remove the cold treatment option of holding the fruit between 48 °F and 56 °F for 6 days. The other options available for this MB&CT treatment and the commodities for which this treatment is an approved treatment would not change. The treatment schedule is approved for
Depending on the actual cost increases that occur because of the changes to the treatment schedules for MB T101-j-2-1 and MB&CT T108-b, foreign suppliers or domestic suppliers located in quarantined areas may experience a cost increase, and consequently the quantity of fruit or vegetables shipped could decrease. This decrease in the quantity shipped could result in a price increase, benefiting U.S. producers and suppliers located outside quarantined areas.
In reality, negative effects of the proposed changes in treatment requirements would be negligible; any changes in treatment costs associated with these amendments to the treatment schedules would represent a small fraction of the prices of the fruits and vegetables. Additionally, import quantities affected are small to nonexistent. Grapefruit, orange, and tangerine imports from Mexico represent less than one-half of 1 percent of domestic supply, and there are no records of apple, grape, or pear imports from Australia.
Domestically, this proposed rule would amend approved treatments for regulated articles moved interstate from areas quarantined due to Medfly. There are currently no areas in the United States quarantined due to the presence of Medfly. Because the proposal would not prohibit movement of regulated articles, if areas are quarantined in the future due to the presence of this pest, the effect on entities within those areas that move regulated articles interstate would be minimized by the continued availability of various treatment options that, in most cases, would allow these small entities to continue to move regulated articles interstate with very little change in cost.
If the proposed changes affect treatment costs or shipping expenses, U.S. entities that could be affected include producers of Medfly host crops, many of which are categorized within the following North American Industry Classification System subsectors: NAICS 111310, Orange Groves; NAICS 111320, Citrus (except Orange) Groves; NAICS 111331, Apple Orchards; NAICS 111332, Grape Vineyards; NAICS 111334, Berry (except Strawberry) Farming; NAICS 111335, Tree Nut Farming; NAICS 111336, Fruit and Tree Nut Combination Farming; and NAICS 111339, Other Noncitrus Fruit Farming. Other entities that could be affected are fruit and vegetables wholesalers (NAICS 422480), supermarkets and other grocery stores (NAICS 445110), warehouse clubs and superstores (NAICS 452910), and fruit and vegetable markets (NAICS 445230).
Other than warehouse clubs and superstores, the vast majority of the businesses that compose these industries are small entities. The Small Business Administration (SBA) classifies Medfly host crop operations as small entities if their annual receipts are not more than $750,000.
The majority of entities that could be affected by the rule are small entities. However, any effects would be minimal.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
This proposed rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Irradiation, Phytosanitary treatment, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements.
Accordingly, we are proposing to amend 7 CFR part 305 as follows:
1. The authority citation for 7 CFR part 305 would continue to read as follows:
7 U.S.C. 7701-7772 and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
2. Section 305.2 would be amended as follows:
a. In the table in paragraph (g), by removing, in the entry for Aircraft, the words “Fruit flies and soft-bodied insects” in the Pest column and “Aerosol T409-c-1 or Aerosol T409-c-3.” in the Treatment column.
b. In the table in paragraph (h)(2)(i), under All, by revising the entry for “All imported fruits and vegetables” and by adding a new entry for “All imported fruits and vegetables approved for treatment with methyl bromide under the Federal Insecticide, Fungicide, and Rodenticide Act” to read as set forth below.
(h) * * *
(2) * * *
(i) * * *
3. In § 305.6, in the table in paragraph (a), the entry for T101-j-2-1 would be revised to read as follows.
(a) * * *
4. Section 305.9 would be amended as follows:
a. The section heading would be revised to read as set forth below.
b. Paragraph (b), including the table, would be revised to read as set forth below.
(b)
5. In § 305.10, in the table in paragraph (a)(3), the entry for T-108b would be revised to read as follows:
(a) * * *
(3) * * *
Office of Surface Mining Reclamation and Enforcement (OSM), Interior.
Proposed rule; reopening of public comment period.
We are reopening the public comment period on a proposed amendment to the Virginia regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Since the close of the comment period, Virginia revised its revegetation standards for success for areas planted with a mixture of herbaceous and wood species by withdrawing one amendment and adding a new amendment. The amendments are intended to render the State's regulations consistent with SMCRA.
We will accept written comments on the proposal until 4 p.m. (local time) on July 20, 2007.
You may submit comments, identified by “VA-124-FOR”, by any of the following methods:
•
•
Mr. Tim Dieringer, Director, Knoxville Field Office, Office of Surface Mining Reclamation and Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone Gap, Virginia 24219, Telephone: (276) 523-4303. E-mail:
Mr. Gavin Bledsoe, Virginia Division of Mined Land Reclamation, P. O. Drawer 900, Big Stone Gap, Virginia 24219, Telephone: (276) 523-8100. E-mail:
Mr. Tim Dieringer, Director, Knoxville Field Office; Telephone: (276) 523-4303. 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 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 Virginia program on December 15, 1981. You can find background information on the Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Virginia program in the December 15, 1981,
By letter dated February 13, 2007 (Administrative Record Number VA-1059), the Virginia Department of Mines, Minerals and Energy (DMME) submitted an amendment to the Virginia program. In its letter, the DMME stated that the program amendment reflects revisions of the Virginia Coal Surface Mining Reclamation Regulations concerning the distribution of topsoil and subsoil materials, revegetation standards for success, and to allow approval of natural stream restoration channel design, as developed in consultation with the Army Corps of Engineers.
We announced receipt of the proposed amendment in the April 9, 2007,
By electronic mail dated April 18, 2007, (Administrative Record Number VA-1074), the DMME stated that it wished to withdraw the changes it previously made to 4 VAC 25-130-816.116(a)(2) and 816.117(a)(2) due to an error. The amendments are to occur at sections 4 VAC 25-130-816.116(b)(3)(v)(C) and 817.116(b)(3)(v)(C) by changing its success standard for areas planted with a mixture of herbaceous and woody species from 90% to 80%.
In its initial amendment to 4 VAC 25-130-816.116/817(b)(3)(v)(C), Virginia deleted its “90%” success standard for areas planted with a mixture of herbaceous and woody species and replaced it with a “70%” success standard for areas planted with a mixture of herbaceous and woody species.
With this new amendment, 4 VAC 25-130-816/817.116(b)(3)(v)(C) provides as follows:
Areas planted with a mixture of herbaceous and woody species shall sustain a herbaceous vegetative ground cover of 80% and an average of 400 woody plants per acre. At least 40 of the woody plants for each acre shall be wildlife food-producing shrubs located suitably for wildlife enhancement, which may be distributed or clustered on the area.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Virginia program.
Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We 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 E-mail or Word file avoiding the use of special characters and any form of encryption. Please also include Attn: SATS NO. “VA-124-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 Big Stone Gap Area office at (276) 523-4303.
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Intergovernmental relations, Surface mining, Underground mining.
Environmental Protection Agency (EPA).
Notice of intent to partially delete the Uravan Superfund Site from the National Priorities List.
The Environmental Protection Agency (EPA) Region 8 is issuing a notice of intent to partially delete approximately 7 acres within the Uravan Superfund Site, located in Montrose County, Colorado, from the National Priorities List (NPL) and requests public comments on this notice of intent. Specifically, EPA intends to delete a one mile section of Colorado State Highway 141, comprised of a right-of-way up to 60 feet in width between mile posts 75 and 76.
The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is found at Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of Colorado, through the Colorado Department of Public Health and Environment, have determined that all appropriate response actions under CERCLA, have been completed for the 7.27 acres. However, this deletion does not preclude future actions under Superfund.
Comments concerning the proposed partial deletion of this Site must be received by August 6, 2007.
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-1986-0005, by one of the following methods:
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U.S. EPA, Region 8 Records Center, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6473. Hours: M-F, 8 a.m. to 4 p.m.
Colorado Department of Public Health and the Environment, Records Center, Building B, Second Floor, 4300 Cherry Creek Drive South, Denver, Colorado 80246-1530. Hours: M-F, 8 a.m. to 5 p.m.
Rebecca Thomas, Project Manager, U.S. EPA (8EPR-SR), 1595 Wynkoop, Denver, Colorado 80202-1129; e-mail (
In the “Rules and Regulations” section of today's
For additional information, see the Direct Final Notice of Deletion which is located in the rules section of this
Environmental Protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; 3 CFR, 1987 Comp., p. 193.
Federal Communications Commission.
Proposed rule; dismissal.
In response to a
Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554.
R. Barthen Gorman, Media Bureau, (202) 418-2180.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
Fish and Wildlife Service, Interior.
Notice of a 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on a petition to list Casey's June beetle (
The finding announced in this document was made on July 5, 2007.
Supporting documents for this finding are available for inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92011. Please submit any new information, materials, comments, or questions concerning this finding to the above address.
Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office (see
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires that, for any petition to revise the List of Endangered and Threatened Wildlife or the List of Endangered and Threatened Plants that contains substantial scientific and commercial information that listing may be warranted, we make a finding within 12 months of the date of our receipt of the petition on whether the petitioned action is: (a) Not warranted, or (b) warranted, or (c) warranted but the immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether any species is threatened or endangered, and expeditious progress is being made to add or remove qualified species from the Lists of Endangered and Threatened Wildlife and Plants. Such 12-month findings are to be published promptly in the
On May 12, 2004, we received a petition, dated May 11, 2004, from David H. Wright, Ph.D.; the Center for Biological Diversity; and the Sierra Club requesting the emergency listing of Casey's June beetle (
Casey's June beetle belongs to the scarab family (Scarabidae). The genus
Recently, entomologists discovered two apparently new species or subspecies of
Based on surveys conducted to assess the species' presence, both male and female Casey's June beetles emerge from underground burrows sometime between late March and early June, with abundance peaks generally occurring in April and May (Duff 1990, p. 3; Barrows 1998, p. 1). Females are always observed on the ground and are considered flightless (Duff 1990, p. 4; Frank Hovore and Associates 1995, p. 7; Hovore 2003, p. 3). La Rue (2006, p.1) stated that “Female
The larval cycle for the species is likely 1 year, based on the absence of larvae (grubs) in burrows during the adult flight season (La Rue 2004, p. 1). The food source for Casey's June beetle larvae while underground is unknown, but other species of June beetle are known to eat “plant roots or plant detritus and associated decay organisms” (La Rue 2004, p.1). La Rue (2006, pp.1-2) stated, “[Casey's June beetle] exhibits no specific host preferences, and larvae likely consume any available organic resources—including [layered organic debris]—encountered within the alluvial habitat.” Specific host plant associations for Casey's June beetle are not known. Although visual surveys have detected a concentration of emergence burrows in the vicinity of a number of species of woody shrub in Palm Canyon Wash, this may be due to low soil disturbance by vehicles, foot traffic, and horses near woody vegetation (Hovore 2003, p. 3).
La Rue (2006, p.1) stated that all
Casey's June beetle is most commonly associated with Carsitas series soil (CdC), described by the United States Department of Agriculture (USDA) (USDA on-line GIS database, 2000) as gravelly sand on 0 to 9 percent slopes. This soil series is associated with alluvial fans, rather than areas of aeolian or windblown sand deposits. Hovore (2003, p. 2) described soils where Casey's June beetle occurs or occurred historically as, “* * * almost entirely carsitas series, of a CdC type, typically gravelly sand, single grain, slightly effervescent, moderately alkaline (pH 8.4), loose, non-sticky, non-plastic, deposited on 0 to 9 percent slopes. On alluvial terraces and where they occur within washes, these soils show light braiding and some organic deposition, but [most years] do not receive scouring surface flows.” Although Casey's June beetle has primarily been found on CdC soils, the beetle is also associated with Riverwash (RA), and possibly Carsitas cobbly sand (ChC), soils in the Palm Canyon Wash area (Anderson and Love 2007, p. 1). Its burrowing habit would suggest the Casey's June beetle needs soils that are not too rocky or compacted and difficult to burrow in.
Hovore (2003, p.11) and Cornett (2004, p. 14) hypothesized that upland habitats provide core refugia from which the species recolonizes wash habitat after intense flood scouring events (approximately every 10 years), and are required for long-term survival of the species. Most extant upland habitat in the range of Casey's June beetle has been developed as golf courses or suburban housing (Cornett 2004, p. 11). Although relatively high numbers of Casey's June beetles (70 individuals in the first 15 minutes, Powell 2003, p. 4; average 8.5 per night, Simonsen-Marchant and Marchant 2000, p. 5; 2001, p. 9) have been collected downstream from remaining upland habitat in Palm Canyon Wash, occupancy in this area is likely due to movement of sediment and larvae by water flow as hypothesized by Hovore (2003, p. 11). Occupied wash habitat downstream from all occupied upland habitats (from Smoke Tree Ranch to Gene Autry Trail, see distribution discussion below) is likely a long-term population “sink” for Casey's June beetle (only receiving female immigrants, not producing colonizers for upland habitat). Although wash habitat isolated from upland refugia may contribute relatively little to the
With regard to current habitat conditions, Cornett (2004, p. 14) offered a hypothesis based on higher number of specimens collected or observed during surveys within the more developed areas compared to undeveloped areas within the gated Smoke Tree Ranch residential community (Smoke Tree Ranch). Cornett (2004, p. 14) hypothesized that the unique landscape of Smoke Tree Ranch may increase habitat quality of Casey's June beetle in this drier upland area with widely spaced homes, abundant native vegetation on vacant lots, and some irrigation. This hypothesis, if supported by future research, may hold the key to effective management for Casey's June beetle in remaining, less suitable upland habitat where the species may have been extirpated. Alternate hypotheses, such as increased collection sizes due to attraction of males to residential lights, should also be investigated. Considering Cornett's (2004, p. 14) above hypothesis, and the potential for high species density (however temporary) in Palm Canyon Wash, all remaining habitat areas with CdC or RA type soils in southern Palm Springs are considered important for species' conservation.
Most locality information on Casey's June beetle specimens in collections specifies “Palm Springs,” or simply Riverside County (Duff 1990, p. 2; O'Brian 2007, p.1; Ratcliff 2007, p. 1; Wall 2007, p.1). Nineteen of 21 specimens in the Los Angeles County Natural History Museum (LACNHM; 1940 to 1989) were labeled as being from the city of Palm Springs. Other early collection records identify “Palm Desert” (“old record”; Duff 1990, p. 3), “Indian Wells” (2 specimens in the LACNHM from 1953), and “Palm Canyon” (“old record”; Duff 1990, p. 3), all in the western Coachella Valley. Duff (1990, p. 2) described two primary areas where the beetle was extant in Palm Springs, west of the city near Tahquitz Creek (“specific localities: Jct. Palm Canyon Drive and Tahquitz Way; Jct. Palm Canyon Drive and Sunny Dunes Road”) and south of the city near the intersection of Bogert Trail and South Palm Canyon Drive. Seven specimens in the LACNHM were labeled as having been collected near the intersection of Bogert Trail and South Palm Canyon Drive (1987, 1988, and 1989). The Bogert Trail/South Palm Canyon Drive collections were made within the Agua Caliente Tribe of Cahuilla Indians (Tribe) Reservation. Recently, numerous collections and observations have been made within Smoke Tree Ranch and other areas in, or adjacent to, Palm Canyon Wash south of Gene Autry Trail, in the City of Palm Springs. The Bogert Trail site and Smoke Tree Ranch have been commonly used as reference sites by surveyors (Duff 1990, p. 7; Hovore 1997a, p. 3; 1997b, p. 1; Barrows and Fisher 2000, p. 1; Cornett 2000, p. 9; Cornett 2003, p. 5; Hovore 2003, p. 4; Cornett 2004, p. 3). Hovore (Frank Hovore and Associates 1995, p. 3) stated that the Casey's June beetles collected by University of California-Long Beach (UCLB) students “within the past 20 years” were labeled “Dead Indian Canyon” (near the cities of Palm Desert and Indian Wells, south of Palm Springs); however, Hovore (2006b, p. 1) subsequently explained that this information is questionable due to incomplete specimen label information and contradictory information provided by the former UCLB curator. Because Palm Canyon (in Palm Springs) is joined by the smaller Murray, Andreas, and Wentworth Canyons, collectively referred to as the “Indian Canyons,” (for example, Barrows 1998, p. 1), we believe this may be the correct collection locality for the UCLB specimens.
The historical range of Casey's June beetle cannot be determined with any certainty, given the lack of specific locality information for many of the collection records. Frank Hovore and Associates (1995, p. 4) described the possible extent of the species' historical range as “somewhere around Chino Canyon floodplain (or at most northwest to the Snow Creek drainage), south to around Indian Wells.” Within this general geographic area from north to south of Palm Springs (Riverside County, California), the species is assumed to have occurred on alluvial fan bases flowing from the Santa Rosa Mountains, at or near the level contour line, where finer silts and sand are deposited. However, this purported range is “based on inference and fragmentary data” (Frank Hovore and Associates 1995, p. 4).
Given the lack of collection records, efforts have been made to determine the extant (remaining) distribution of Casey's June beetle in its purported historical range. Barrows and Fisher (2000, p.1) conducted trapping on two separate evenings in Dead Indian Canyon in Palm Desert, southeast of Palm Springs, but the species was not detected. The University of California-Riverside (UCR) conducted more than 10 years of year-round surveys for a variety of species, including Casey's June beetle, at the Boyd Deep Canyon Preserve in Palm Desert, California (also near Indian Wells, and including portions of Dead Indian Canyon). No Casey's June beetles were found during any of the UCR surveys (Anderson 2006a, p. 1). Although the May 11, 2004, petition references a “Snow Creek” collection site northwest of Palm Springs, we were not able to obtain any substantiating records for that location. A single-night survey conducted by Powell (2003, p. 1) near Snow Creek failed to find the species, although the beetle was confirmed to be active at Smoke Tree Ranch in Palm Springs at the time.
La Rue (2006, p. 1) has collected and worked extensively with
Many collectors, researchers, ecologists, and others * * * have surveyed for
Cornett (2004, p. 8) sampled more than 60 locations in Palm Springs to determine the current range of Casey's June beetle. Light traps were used to attract flying males and placed in relatively undisturbed flatlands likely to support Casey's June beetle. Traps were opened by 6:30 p.m. and remained open until at least 10 p.m. Eight traps were opened each evening, and each trapping station was used at least two times. To gauge trapping success, at least one trap was opened at Smoke Tree Ranch each
Despite recent attempts to document Casey's June beetle in areas throughout the purported historic range, all recent (1990s or later) Casey's June beetle collection locations are from sites near South Palm Canyon Drive, Bogert Trail, Smoke Tree Ranch, and portions of Palm Canyon Wash south of Gene Autry Trail in Palm Springs (Duff 1990, pp. 2-3; Simonsen-Marchant and Marchant 2000, p. 5 and 2001, p. 8; Hovore 2003, p. 7; Powell 2003, p. 1; Cornett 2000, p. 13 and 2004, p. 8; Yanega 2007, pp. 1-3). For example, one group of collectors associated with UCR who checked “as many sites as possible” for Casey's June beetle in Palm Springs, were apparently only able to collect specimens in the vicinity of Smoke Tree Ranch stables, adjacent to Palm Canyon Wash (Porcu 2003, p. 8). Localized distributions are typical for species of June beetles (superfamily Scarabaeoidea) with flightlessness in one or both sexes (Hovore 2006a, p. 1). We believe only one Casey's June beetle population remains, occupying the extant, contiguous habitat in southern Palm Springs.
Cornett (2004, p. 11) estimated the range of Casey's June beetle to cover approximately 800 acres (ac) (324 hectares (ha)). As discussed in our August 8, 2006, 90-day finding (71 FR 44960), based on our GIS mapping of Cornett's (2004, p. 13) distribution map, his estimated Casey's June beetle range was approximately 707 ac (286 ha) as opposed to approximately 800 ac (324 ha) (Cornett 2004, p. 11). To this we added another 51 ac (21 ha) of north Palm Canyon Wash between East Palm Canyon Drive and South Gene Autry Trail, resulting in an approximately 758-ac (307-ha) range for Casey's June beetle in the Palm Springs area (71 FR 44960). Subsequent analysis for this 12-month finding (see discussion below) indicates additional CdC and RA soils in Palm Canyon should also have been included in this range estimate. Because Cornett's (2004, p. 11) 800-ac (324-ha) range estimate included such large, peripheral, non-habitat features as the entire golf course between East Murray Canyon Drive and Bogert Trail, a more useful “range” description is the qualitative, habitat-based description given by Hovore (2003, p. 7): “* * * from the lot at Bogert Trail and South Palm Canyon Drive east into, and across, Palm Canyon wash onto the upland terrace adjacent to the wash, and then downstream [northeast] within the wash and on the upland terrace deposits (CdC soils) through [Smoke Tree] Ranch to Highway 111, and then just within the wash through Seven Lakes Country Club to at least Gene Autry [Trail] * * *.” For the remainder of this finding, our discussion of the species’ current distribution will not consider a greater “range,” and will be limited to the amount of remaining undeveloped habitat (occupancy distribution) that does not include residential areas where soils have been graded, developed, or landscaped. Such areas are not currently habitable by the species.
To define the current distribution of extant Casey's June beetle habitat within our revised range description above, we used GIS soil data from the USDA (USDA on-line GIS database, 2000; CdC and RA soil series; see Habitat section above), 2005 satellite imagery, field surveys (Anderson 2006b, pp. 1-35), and collection data from Cornett (2000, p. 9; 2004, p. 8), Powell (2003, p. 1), Simonsen-Marchant and Marchant (2000, p. 5; 2001, p. 6), Barrows (1998, p. 1), and Hovore (2003, p. 7; 1997a, p. 2; 1997b, p. 4). All undeveloped CdC and RA soils within the area described above were considered extant habitat. To account for potential occupancy in undeveloped lots within the otherwise developed suburban housing area at Smoke Tree Ranch (Cornett 2004, p. 14; see Habitat section above), we included half the total area of the Smoke Tree Ranch development block (65 ac (26 ha)) in our extant habitat area estimate. Smoke Tree Ranch is the only suburban area within the distribution of Casey's June beetle that contains scattered undeveloped lots throughout the development. Our final analysis resulted in an estimate of 576 ac (233 ha) of extant undeveloped habitat in 2006 (Anderson and Love 2007, pp. 1-2). Extant habitat is limited to Palm Canyon Wash, Smoke Tree Ranch, and CdC soils in Palm Canyon south of East Murray Canyon Drive. Based on 1995 or more recent collection data (Cornett 2000, p. 9 and 2004, p. 8; Powell 2003, p. 1; Simonsen-Marchant and Marchant 2000, p. 3 and 2001, p 6; Barrows 1998, p. 1; Hovore 2003, p. 7 and 1997a p. 2 and 1997b, p. 4), and CdC or RA soils that were contiguous as recently as 1995 with habitat where Casey's June beetle was collected (Anderson and Love 2007, pp. 1-2), we consider all extant habitat within the species' distribution to be occupied or likely occupied.
Although recent surveys have not recorded Casey's June beetles in extant habitat west of South Palm Canyon Drive or south of Acanto Drive in Palm Springs (Barrows 1998, p. 1; Simonsen-Marchant and Marchant 2000, p. 5 and 2001, p. 6; Cornett 2004, pp. 8 and 13), low-density populations may be hard to detect. Barrows (1998, p. 1) reported observing numerous Casey's June beetle emergence holes “* * * just beyond the entrance gate to the Indian Canyons, indicating with some probability their recent occurrence there.” Hovore (1997a, p. 2) also reported “a few” potential Casey's June beetle emergence holes “in a small CdC soil area along the toll road.” Hovore (Frank Hovore and Associates 1995 p. 5; Hovore 1997a, p. 3 and 1997b, p. 4) also documented occupancy in currently undeveloped habitat west of South Palm Canyon Drive. Hovore (Frank Hovore and Associates 1995, p. 5) specifically described Casey's June beetle occupancy distribution on the west side of South Palm Canyon Drive as, “* * * in a narrow strip along the west side of South Palm Canyon Drive from about the junction with Bogert Trail to [Acanto Drive], and extends only about 20-30 meters away from the roadway.”
We do not have population estimates for the beetle or information showing decline in numbers. Surveys conducted for this species have been site-specific or primarily conducted to demonstrate presence or absence. For this reason, we focused our analysis of the decrease in the amount of extant habitat and the documented habitat loss over specific time periods.
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations at 50 CFR 424 set forth procedures for adding species to the Federal List of Endangered and Threatened Wildlife. In making this finding, we summarize below information regarding the status and threats to this species in relation to the five factors in section 4(a)(1) of the Act. In making our 12-month finding, we considered all scientific and commercial information in our files, including information received during the comment period that ended October 10, 2006 (71 FR 44960).
We analyzed suburban development within southern Palm Springs from
We conducted an additional analysis (Anderson and Love 2007, pp. 1-2) using available aerial photographs (from 1991), satellite imagery (from 1996, 2003, and 2005), and 2006 field surveys (Anderson 2006b, pp. 1-36) to determine rates of habitat loss in southern Palm Springs over the past 16 years. From 1991 to 2006, Casey's June beetle experienced an approximate 25 percent reduction in contiguous, undeveloped habitat from 770 ac (312 ha) in 1991 to 576 ac (233 ha) in 2006. Habitat loss has been greatest in recent years: at a rate of 2 percent per year from 1991 to 1996, at a rate of 1 percent per year from 1996 to 2003, and at a rate of 5 percent per year from 2003 to 2006. At this recent rate, all habitat remaining for Casey's June beetle would disappear in about twenty years (the foreseeable future).
Since publication of the August 8, 2006, 90-day finding (71 FR 44960), we have become aware of another project that will destroy or impact extant Casey's June beetle habitat. The 80- to 100-ac (32- to 40-ha) Alturas residential sub-division development project (also referred to as Eagle Canyon) is currently planned on Tribal lands (Davis 2007, p. 1; Park 2007, p. 1) in the area containing CdC soils west of South Palm Canyon Drive, and near Bogert Trail and Acanto Drive. This project has completed the environmental review process (CEQA), and is in the process of obtaining a grading permit (tentative tract number 30047). Our analysis (Anderson and Love 2007, pp. 1-3) determined that this project would alter the drainage system maintaining soil moisture levels in approximately 54 ac likely to be occupied by Casey's June beetle, including extant habitat near the section of Bogert Trail and South Palm Canyon Drive where occupancy was documented by Hovore (Frank Hovore and Associates 1995, p. 5; Hovore 1997a, p. 2 and 1997b, p. 4). The Alturas project would also directly impact CdC soils likely to be occupied, and by disrupting the water source maintaining suitable soil moisture levels, potentially decrease the 576 ac (233 ha) of remaining extant, suitable habitat by 9 percent. Surveys are currently being conducted adjacent to the Alturas project, where occupancy was previously documented, to determine likelihood of current habitat occupancy (Osborne 2007, p. 1; Park 2007, p. 1).
All habitat loss calculations above included wash habitat where Casey's June beetle may not be able to maintain occupancy following severe flood events (Cornett 2004, p. 14; Hovore 2003, p.11). Of the total 576 ac (233 ha) estimated remaining habitat, only 328 ac (133 ha) is upland habitat (excluding habitat that will be impacted by the Alturas project). According to Coachella Valley General Plan data (Riverside County 1999), all remaining upland habitat within Smoke Tree Ranch and on Tribal land north of Acanto Drive was projected to be developed at a density of 2 homes per acre by the year 2020. Although the projected land use designation code (“58”) for undeveloped habitat south of Acanto Drive was not defined in the documents available to us (Riverside County 1999), they have the same code as adjacent, already developed land (that is, East Bogert Trail area). Land use projections (Riverside County 1999) indicate most of the 328 ac (133 ha) remaining upland Casey's June beetle habitat could be eliminated by development within 12 years.
The development threat is greatest in upland CdC soil habitat areas that are believed to be key refugia for Casey's June beetle (see Habitat section above); however, development threats are not limited to upland habitat. For example, entire sections of Palm Canyon Wash east of occupied habitat near Gene Autry Trail have been converted to golf course landscaping (Anderson and Love 2007, p. 3). La Rue (2006, p. 2) emphasized the magnitude of development threats to
Analysis of aerial photography in Palm Canyon Wash indicates numerous land-disturbance activities affecting occupied wash habitat managed by the Riverside County Flood Control and Water Conservation District. In the vicinity of the State Route 111 bridge and Araby Drive, there appears to be road maintenance and flood control activities, as well as unregulated off-road vehicle disturbance. Cornett (2003, p. 12) noted similar off-road vehicle impacts during Casey's June beetle surveys on a nearby site adjacent to Whitewater Wash and the Palm Springs Airport. Any activities that compact or disturb soils when adult beetles are active, or affect soils to a depth where immature stages or resting adults are found, may affect the species' persistence in such areas.
Casey's June beetle habitat in Palm Springs has been increasingly fragmented by development in recent years (see above development discussion). Fragmentation of habitat compromises the ability of the species to disperse and establish new, or augment declining, populations, because females are flightless and males alone cannot establish new populations (Frank Hovore and Associates 1995, p. 7). Hovore (2003, p. 3) indicated that population movement would be “slow and indirect,” and suggested the population structure for Casey's June beetle in any given area could be described as multiple mini-colonies or “clusters of individuals around areas of repeated female emergence.” This would, in Hovore's (2003, p. 4) assessment, make the species susceptible to extirpation resulting from land use changes that would remove or alter surface features. Although fragmentation of habitat within a population distribution still allows mixing of genes by male flight, it would preclude recolonization of a site should all flightless female individuals be eliminated.
Since 1991, urban development and construction have removed 25 percent of remaining habitat. From 2003 to 2006, habitat loss for the beetle has occurred at a rate of 5 percent per year. Because development trends are continuing (see above discussion of Alturas project approved by the City of Palm Springs, 9 percent loss in 2007), additional habitat for the beetle will be lost. The estimated amount of contiguous, undeveloped habitat currently available for the species is approximately 576 ac (233 ha) with some of these areas serving as biological “sinks” for the species. Based on development trends, the most important habitat for species persistence (alluvial uplands with CDC soil), is the habitat most likely to be lost to future development. Therefore, projected development of remaining upland habitat by the year 2020 would result in almost certain extinction of the species. Based on recent, current, and likely future habitat loss trends, the loss of historically occupied locations, reduced and limited distribution, habitat fragmentation, and land use changes associated with urbanization, we find that Casey's June beetle is threatened with extinction by destruction, modification, and curtailment of its habitat and range.
We are not aware of any information regarding overutilization of Casey's June beetle for commercial, recreational, scientific, or educational purposes and do not consider this a threat at this time.
We are not aware of any information regarding threats of disease or predation to the Casey's June beetle and do not consider this a threat at this time.
Existing regulatory mechanisms that could provide some protection for Casey's June beetle include: (1) Federal laws and regulations, such as the National Environmental Policy Act; (2) State laws and regulations; and (3) local land use processes and ordinances. However, these regulatory mechanisms have not prevented continued habitat fragmentation and modification. There are no regulatory mechanisms that specifically or indirectly address the management or conservation of functional Casey's June beetle habitat. There are no regulatory protections for any other species that may provide incidental benefit to Casey's June beetle. We discuss existing regulatory mechanisms below.
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347), as amended, requires Federal agencies to describe the proposed action, consider alternatives, identify and disclose potential environmental impacts of each alternative, and involve the public in the decision-making process. The resulting documents are primarily disclosure documents, and NEPA does not require or guide mitigation for impacts. Projects that are covered by certain “categorical exclusions” are exempt from NEPA biological evaluation. However, Federal agencies are not required to select the alternative having the least significant environmental impacts. A Federal agency may select an action that will adversely affect sensitive species provided that these effects were known and identified in a NEPA document.
The California Environmental Quality Act (CEQA 1970, as amended) requires disclosure of potential environmental impacts of public or private projects carried out or authorized by all non-Federal agencies in California. CEQA guidelines require a finding of significance if the project has the potential to “reduce the number or restrict the range of an endangered, rare or threatened species” (CEQA Guideline 15065). The lead agency can either require mitigation for unavoidable significant effects, or decide that overriding considerations make mitigation infeasible (CEQA Guideline 21002), although such overrides are rare. CEQA can provide some protections for a species that, although not listed as threatened or endangered, meets one of several criteria for rarity (CEQA Guideline 15380). For example, the Monte Sereno project (see specific project description (1) under Factor A above) impacted approximately 39 ac (16 ha) of occupied habitat. Impacts to Casey's June beetle were expected to be mitigated by payment of $600 per acre (total of $24,780) to the City of Palm Springs or a habitat conservation entity designated by the city for 41.3 ac (16.7 ha) of “potential” Casey's June beetle habitat (Dudek and Associates 2001, p. 24). However, no specific use of the funds for mitigation was specified (Dudek and Associates 2001, p. 24), and to our knowledge, no appropriate habitat has been conserved for Casey's June beetle to offset the Monte Sereno project impacts.
Examples of the limitation of CEQA to protect Casey's June beetle can also be found with Smoke Tree Ranch properties. In 2006, the City of Palm Springs issued a mitigated negative CEQA declaration for Smoke Tree Ranch Cottages (see specific project description (3) under Factor A above) (City of Palm Springs 2006, p. 2), finding “no significant impact” to Casey's June beetle, even though at least 7 ac (3 ha) of habitat was to be developed that Cornett's study (2004, pp. 18-27) identified as occupied. Another example includes the Smoketree Commons shopping center (see specific project description (4) under Factor A above). The project's Environmental Impact Review (EIR; Pacific Municipal Consultants 2005, p. 9) stated that the City of Palm Springs was responsible for enforcing and monitoring Casey's June beetle mitigation measures prior to issuance of a grading permit, including recording a conservation easement and developing a management plan for Casey's June beetle on conserved habitat. An easement was established; however, no management plan was drafted prior to issuance of the grading permit, and no monitoring or management activities are assured (Ewing 2007, p. 1).
We were unable to obtain copies of the Alturas development project EIR for review (see Factor A above, and Tribal discussion below) from the City of Palm Springs Planning Department or the author (Terra Nova Consulting). The project has completed the environmental review, and the project proponent has a tentative tract number with the City of Palm Springs (tentative tract number 30047).
The California Endangered Species Act (CESA) provides protections for many species of plants, animals, and some invertebrate species. However, insect species, such as the Casey's June beetle, are afforded no protection under the CESA. This is a further example of an existing regulatory mechanism that does not provide for the protection of the Casey's June beetle or its habitat.
Reservation lands of the Agua Caliente Tribe encompass 257 ac (104 ha), approximately 45 percent of estimated extant Casey's June beetle habitat (RA and CdC soils; Anderson and Love 2007, pp. 1-3). All post-1996 development of occupied habitat, with the exception of the 17-ac (7-ha) Smoke Tree Commons project, has occurred on Tribal reservation land (see Factor A above). Because the remaining 163 ac (66 ha) of upland habitat (CdC soils) on Tribal reservation lands are relatively
While development on Tribal lands is sometimes subject to NEPA (42 U.S.C. 4321-4347), impacts to Casey's June beetle may not always be considered during the NEPA process. The inadequacy of NEPA to protect occupied Casey's June beetle habitat is demonstrated by the extent of development that has occurred over the past 5 years on Tribal lands in occupied habitat (see Factor A above).
In a letter to the Carlsbad Fish and Wildlife Office's Field Supervisor dated October 10, 2006, the Tribe stated that they had “ * * * enacted a Tribal Environmental Policy Act to, among other things, ensure protection of natural resources and the environment. See Tribal Ordinance No. 28 at I.B., (2000).” We have reviewed the referenced Tribal Environmental Policy Act (Tribal Act) (Tribe 2000) and found the Tribal Act to be general, stating that the Tribe is the lead agency for preparing environmental review documents, and that Tribal policy is to protect the natural environment, including “all living things.” According to the Tribal Act (Tribe 2000, p. 4), the Tribe will consult with any Federal, State, and local agency that has special expertise with respect to environmental impacts. Occupancy of the Bogert Trail site in the vicinity of South Palm Canyon Drive on Tribal land (Duff 1990, pp. 2-3, 4; Barrows and Fisher 2000, p. 1; Cornett 2004, p. 3; Hovore 1997b, p. 4; Hovore 2003, p. 4) has been greatly reduced, if not eliminated, by development since our receipt of the petition in 2004 (see Factor A above). The Alta and Monte Serano development projects eliminated most of the species' upland habitat outside of Smoke Tree Ranch estimated to be occupied in 2003. Frank Hovore (2003, p. 4) estimated that grading for the Alta project near South Palm Canyon Drive in May 2003 reduced the extant Casey's June beetle population size by “about one-third.”
The Service was not consulted regarding Casey's June beetle prior to the recent development of the Alta and Monte Serano projects in occupied Casey's June beetle habitat; therefore, the Tribal Act does not appear to effectively protect the species' habitat. The Chief Planning and Development Officer for the Tribe (Davis 2007, p. 1) affirmed that the Tribal Act does not apply to all Tribal reservation lands; for example, the currently planned Alturas development project (see Factor A above) is not covered, because it is “fee land.” Although environmental review documents (CEQA EIRs) were prepared by consultants and reviewed by the City of Palm Springs, the Tribe did not participate in the review or comment with regard to Casey's June beetle (Davis 2007, p. 1). The Service will continue to work with the Tribe to obtain any other information that illustrates how Tribal actions or policies would help conserve Casey's June beetle habitat and protect the species; however, we have not documented the protection of occupied Casey's June beetle habitat from development on Tribal reservation lands.
Some non-Federal lands within the purported historical range of Casey's June beetle are proposed for management under the Coachella Valley Association of Governments Habitat Conservation Plan (MSHCP). A supplemental Environmental Impact Statement (EIS)/EIR on the revised plan was made available to the public March 30, 2007 (72 FR 15148), and the public comment period closed May 29, 2007. Although Casey's June beetle was initially considered for coverage under the MSHCP, the March 2007 release of the final MSHCP, final EIR, and final implementing agreement did not include Casey's June beetle as a covered species. Because it is not a covered species, the MSHCP will not provide for protection or conservation of Casey's June beetle.
We continue to work with the Tribe on a HCP proposed to cover other imperiled species that may be impacted by development activities on Tribal land. At a meeting on March 7, 2007, the Tribe indicated a willingness to consider including Casey's June beetle in their plan; however, the current draft Tribal HCP does not include coverage of Casey's June beetle. Therefore, we currently do not anticipate conservation measures benefiting Casey's June beetle to result from this HCP. However, we have analyzed inclusion of Casey's June beetle as a covered species in the Tribal HCP as one of multiple alternatives in the draft EIS, which will be available for public review and comment during the summer of 2007. Because Casey's June beetle is not included as a covered species at this time, we do not consider the draft Tribal HCP will provide a conservation benefit to Casey's June beetle.
Given the non-inclusion of Casey's June beetle in the final Coachella Valley MSHCP and draft Agua Caliente Tribal HCP, the Service has been working with Smoke Tree Ranch to develop a Candidate Conservation Agreement with Assurances (CCAA) to address Casey's June beetle conservation. As indicated in comprehensive scientific survey report range estimates (Simonsen-Marchant and Marchant 2001, p. 6; Cornett 2004, p. 13), Smoke Tree Ranch supports a substantial portion of known occupied Casey's June beetle habitat, including a portion of the property currently identified in Smoke Tree Ranch codes, covenants, and restrictions as “open space.” The Service will continue to work cooperatively with Smoke Tree Ranch to complete and implement a CCAA for Casey's June beetle. The use of a CCAA can be an effective tool to conserve species in the absence of listing as threatened or endangered under the Act. For example, a CCAA can limit the use of bug-zappers or pesticides near occupied habitat or can mandate monitoring and adaptive management. However, until such time as a CCAA is completed, current regulatory mechanisms at Smoke Tree Ranch are inadequate to ensure conservation of the species. This CCAA will not be completed before the publication of this 12-month finding.
Removal of occupied habitat by projects in the Bogert Trail area after the 2004 submission of the petition to list Casey's June beetle as endangered, and other recent and proposed development in occupied habitat, demonstrates existing regulatory mechanisms are not adequate to protect remaining occupied and essential Casey's June beetle habitat. Therefore, we find that the inadequacy of existing regulatory mechanisms presents a threat to the survival of Casey's June beetle.
The one known remaining Casey's June beetle population in south Palm Springs also may be threatened by other natural or anthropogenically influenced factors, primarily increased intensity and frequency of scouring events in wash habitat. However, there is little species-specific scientific information describing the potential for these threats, and these issues should be the subject of future research.
Urban development adjacent to natural creek beds or washes
Casey's June beetle is sensitive to changes in climate factors such as wind, temperature (for example, drying of alluvial soils), precipitation, and catastrophic flood events (Noss
The one remaining Casey's June beetle population in southern Palm Springs is likely threatened with extirpation in part by increased intensity and frequency of catastrophic flood events. We, therefore, find that other natural or manmade factors affecting the continued existence of the species present a likely threat to the survival of Casey's June beetle.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats faced by this species. We reviewed the petition, available published and unpublished scientific and commercial information, and information submitted to us during the public comment period following the publication of our 90-day petition finding. This 12-month finding reflects and incorporates information we received during the public comment period, or obtained through consultation, literature research, and field visits, and responds to significant issues. We also consulted with recognized Casey's June beetle experts. On the basis of this review, we find that the listing of Casey's June beetle is warranted, due to threats associated with urban development, the inadequacy of existing regulatory mechanisms, and other natural and manmade factors. However, listing of Casey's June beetle is precluded at this time by pending proposals for other species with higher listing priorities based on taxonomic uniqueness (that is, the only species described for the genus).
In making this finding, we recognize that there have been declines in the distribution and abundance of Casey's June beetle, primarily attributed to suburban development and habitat alteration (Factor A). From 1991 to 2006, Casey's June beetle experienced an estimated 25 percent reduction in contiguous, undeveloped habitat from 770 ac (312 ha) in 1991 to 576 ac (233 ha) in 2006. Habitat loss has been greatest in recent years. From 1991 to 1996, habitat was lost at a rate of 2 percent per year; from 1996 to 2003, at a rate of 1 percent per year; and from 2003 to 2006, at a rate of 5 percent per year. An additional 9 percent of apparent key refugia habitat will be impacted by development in 2007. At this rate, we could expect all remaining habitat will be lost within 20 years. Recent trends and projected development information indicate that all Casey's June beetle habitat continues to be threatened with further loss, degradation, and fragmentation, resulting in a negative impact on species' distribution and abundance. Federal (NEPA) and State (CEQA) regulations have not been adequate to prevent or minimize the loss of occupied habitat, as evidenced by recent development projects in occupied habitat. Although protections for occupied habitat under a Smoke Tree Ranch CCAA and a Tribal HCP are under consideration, these agreements have not been finalized (Factor D). Increased intensity and frequency of scouring events in wash habitat are threats that have likely contributed to decline of the species (Factor E). Since this finding is warranted but precluded, we do not need to specifically determine whether it is appropriate to perform a “significant portion of the range” analysis for this species. However, due to the restricted nature of Casey's June beetle's range, we generally consider all of the remaining range to be significant for the conservation of this species. Because of a small and restricted population distribution, and because of threats described above, Casey's June beetle should be listed as threatened or endangered throughout its entire range. We will review whether to list as threatened or endangered during the proposed listing rule process.
Preclusion is a function of the listing priority of a species in relation to the resources that are available and competing demands for those resources. Thus, in any given fiscal year (FY), multiple factors dictate whether it will be possible to undertake work on a proposed listing regulation or whether promulgation of such a proposal is warranted but precluded by higher priority listing actions.
The resources available for listing actions are determined through the annual Congressional appropriations process. The appropriation for the Listing Program is available to support work involving the following listing actions: proposed and final listing rules; 90-day and 12-month findings on petitions to add species to the Lists or to change the status of a species from threatened to endangered; resubmitted petition findings; proposed and final rules designating critical habitat; and litigation-related, administrative, and program management functions (including preparing and allocating budgets, responding to Congressional and public inquiries, and conducting public outreach regarding listing and critical habitat). The work involved in preparing various listing documents can be extensive and may include, but is not limited to: gathering and assessing the best scientific and commercial data available and conducting analyses used as the basis for our decisions; writing and publishing documents; and obtaining, reviewing, and evaluating public comments and peer review comments on proposed rules and incorporating relevant information into final rules. The number of listing actions that we can undertake in a given
We cannot spend more than is appropriated for the Listing Program without violating the Anti-Deficiency Act (see 31 U.S.C. 1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since then, Congress has placed a statutory cap on funds which may be expended for the Listing Program, equal to the amount expressly appropriated for that purpose in that fiscal year. This cap was designed to prevent funds appropriated for other functions under the Act, or for other Service programs, from being used for Listing Program actions (see House Report 105-163, 105th Congress, 1st Session, July 1, 1997).
Recognizing that designation of critical habitat for species already listed would consume most of the overall Listing Program appropriation, Congress also put a critical habitat subcap in place in FY 2002 and has retained it each subsequent year to ensure that some funds are available for other work in the Listing Program: “The critical habitat designation subcap will ensure that some funding is available to address other listing activities” (House Report No. 107-103, 107th Congress, 1st Session, June 19, 2001). In FY 2002 and each year since then, the Service has had to use virtually the entire critical habitat subcap to address court-mandated designations of critical habitat, and consequently none of the critical habitat subcap funds have been available for other listing activities.
Thus, through the listing cap, the critical habitat subcap, and the amount of funds needed to address court-mandated critical habitat designations, Congress and the courts have in effect determined the amount of money available for other listing activities. Therefore, the funds in the listing cap, other than those needed to address court-mandated critical habitat for already listed species, set the limits on our determinations of preclusion and expeditious progress.
Congress also recognized that the availability of resources was the key element in deciding whether, when making a 12-month petition finding, we would prepare and issue a listing proposal or make a “warranted but precluded” finding for a given species. The Conference Report accompanying Public Law 97-304, which established the current statutory deadlines and the warranted-but-precluded finding, states (in a discussion on 90-day petition findings that by its own terms also covers 12-month findings) that the deadlines were “not intended to allow the Secretary to delay commencing the rulemaking process for any reason other than that the existence of pending or imminent proposals to list species subject to a greater degree of threat would make allocation of resources to such a petition [i.e., for a lower-ranking species] unwise.” Taking into account the information presented above, in FY 2007, the outer parameter within which “expeditious progress” must be measured is that amount of progress that could be achieved by spending $5,193,000, which is the amount available in the Listing Program appropriation that is not within the critical habitat subcap.
Our process is to make our determinations of preclusion on a nationwide basis to ensure that the species most in need of listing will be addressed first and also because we allocate our listing budget on a nationwide basis. However, through court orders and court-approved settlements, Federal district courts have mandated that we must complete certain listing activities with respect to specified species and have established the schedules by which we must complete those activities. The species involved in these court-mandated listing activities are not always those that we have identified as being most in need of listing. As described below, a large majority of the $5,193,000 appropriation available in FY 2007 for new listings of species is being consumed by court-mandated listing activities; by ordering or sanctioning these actions, the courts essentially determined that these were the highest priority actions to be undertaken with available funding. Copies of the court orders and settlement agreements referred to below are available from the Service and are part of our administrative record.
The FY 2007 appropriation of $5,193,000 for listing activities (that is, the portion of the Listing Program funding not related to critical habitat designations for species that already are listed) is fully allocated to fund work in the following categories of actions in the Listing Program: compliance with court orders and court-approved settlement agreements requiring that petition findings or listing determinations be completed by a specific date; section 4 (of the Act) listing actions with absolute statutory deadlines; essential litigation-related and administrative- and program-management functions; and a few high-priority listing actions. The allocations for each specific listing action are identified in the Service's FY 2007 Allocation Table. While more funds are available in FY 2007 than in previous years to work on listing actions that were not the subject of court-orders or court-approved settlement agreements, based on the available funds and their allocation for these purposes, only limited FY 2007 funds are available for work on proposed listing determinations for the following high-priority candidate species: two Oahu plants (
Our decision that a proposed rule to list Casey's June beetle is warranted but precluded includes consideration of its listing priority. In accordance with guidance we published on September 21, 1983, we assign a LPN to each candidate species (48 FR 43098). Such a priority ranking guidance system is required under section 4(h)(3) of the Act (16 U.S.C. 1533(h)(3)). Using this guidance, we assign each candidate a LPN of 1 to 12, depending on the magnitude of threats, imminence of threats, and taxonomic status; the lower the listing priority number, the higher the listing priority (that is, a species with an LPN of 1 would have the highest listing priority). The threats described above for Casey's June beetle occur across its entire range, resulting in a negative impact on the species' distribution and abundance. We assigned Casey's June beetle an LPN of 2, based on threats that were of a high magnitude and imminent, and on its taxonomic status as a species. We currently have more than 120 species with an LPN of 2 (see Table 1 of the September 12, 2006, Notice of Review; 71 FR 53756). As such, the 1983 listing priority number system is not adequate to differentiate sufficiently among species based on their degree of extinction risk. Therefore, we further ranked the candidate species with an LPN of 2 by using the following extinction-risk type criteria: IUCN Red list status/rank, Heritage rank (provided
As explained above, a determination that listing is warranted but precluded also must demonstrate that expeditious progress is being made to add and remove qualified species to the Lists. (We note that in this finding we do not discuss specific actions taken on progress towards removing species from the Lists because that work is conducted using appropriations for our Recovery program, a separately budgeted component of the Endangered Species Program. As explained above in our description of the statutory cap on Listing Program funds, the Recovery Program funds and actions supported by them cannot be considered in determining expeditious progress made in the Listing Program.) As with our “precluded” finding, expeditious progress in adding qualified species to the Lists is a function of the resources available and the competing demands for those funds. Our expeditious progress in FY 2007 in the Listing Program, up to the date of making this 12-month finding for Casey's June beetle, included preparing and publishing the following:
Our expeditious progress also includes work on listing actions for 29 species for which decisions have not been completed as of the date we made this 12-month finding for Casey's June beetle. These actions are listed below; we are conducting work on those actions in the top section of the table pursuant to a deadline set by a court and on all other actions pursuant to meeting statutory timelines, that is, timelines required under the Act:
We have endeavored to make our listing actions as efficient and timely as possible, given the requirements of the relevant laws and regulations, and constraints relating to workload and personnel. We are continually considering ways to streamline processes or achieve economies of scale, such as by batching related actions together. Given our limited budget for implementing section 4 of the Act, the actions described above collectively constitute expeditious progress.
We will add Casey's June beetle to the list of candidate species upon publication of this notice of 12-month finding. We request that interested parties submit any new information on status and threats for this species. Natural history and distribution information in particular will help us monitor and focus habitat conservation of this species. Should an emergency situation develop with this or any candidate species, we will act to provide immediate protection, if warranted.
We intend that any proposed listing action for Casey's June beetle will be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning this finding.
A complete list of all references cited is available on request from the Carlsbad Fish and Wildlife Office (see
The primary author of this document is Alison Anderson of the Carlsbad Fish and Wildlife Office (see
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper 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.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget, for an extension of, and revision to a currently approved information collection for the National Research, Promotion, and Consumer Information Programs.
Comments on this notice must be received by September 4, 2007.
These programs carry out projects relating to research, consumer information, advertising, sales promotion, producer information, market development, and product research to assist, improve, or promote the marketing, distribution, and utilization of their respective commodities. Approval of the programs is required through referendum of affected parties. The programs are administered by industry boards composed of producer, handler, processor, and in some cases, importer and public members appointed by the Secretary of Agriculture. Program funding is generated through assessments on designated industry segments.
The Secretary also approves the boards' budgets, plans, and projects. These responsibilities have been delegated to AMS. The applicable commodity program areas within AMS have direct oversight of the respective programs.
The information collection requirements in this request are essential to carry out the intents of the various Acts authorizing such programs, thereby providing a means of administering the programs. The objective in carrying out this responsibility includes assuring the following: (1) Funds are collected and properly accounted for; (2) expenditures of all funds are for the purposes authorized by the enabling legislation; and (3) the board's administration of the programs conforms to USDA policy. The forms covered under this collection require the minimum information necessary to effectively carry out the requirements of the respective orders, and their use is necessary to fulfill the intents of the Acts as expressed in the orders. The information collected is used only by authorized employees of the various boards and authorized employees of USDA.
The various boards utilize a variety of forms including; reports concerning status information such as handler and importer reports; transaction reports; exemption from assessment forms and reimbursement forms; forms and information concerning referenda including ballots; forms and information concerning board nominations and selection and acceptance statements; certification of industry organizations; and recordkeeping requirements. The forms and information covered under this information collection require the minimum information necessary to effectively carry out the requirements of the programs and their use is necessary to fulfill the intent of the applicable authorities.
AMS is committed to complying with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.
Copies of this information collection can be obtained from Angela C. Snyder, Research and Promotion; Standards, Promotion, & Technology Branch at (202) 720-0976.
Comments regarding, but not limited to: (1) 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) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received will be available for public inspection during regular business hours at the above address and may be viewed at
Animal and Plant Health Inspection Service, USDA.
Revision and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision and extension of approval of an information collection associated with regulations for the importation of live swine, pork, and pork products from eight Mexican States into the United States.
We will consider all comments that we receive on or before September 4, 2007.
You may submit comments by either of the following methods:
•
•
For information regarding regulations for the importation of live swine, pork, and pork products from Mexico, contact Dr. Masoud Malik, Senior Staff Veterinarian, Technical Trade Services, National Center for Import and Export, 4700 River Road, Unit 40, Riverdale, MD 20737; (301) 734-3277. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.
Part 94, § 94.25, allows the importation, subject to certain conditions, of live swine, pork, and pork products from certain regions, including the eight Mexican States of Baja California, Baja California Sur, Campeche, Chihuahua, Quintana Roo, Sinaloa, Sonora, and Yucatan, that are free of classical swine fever. Among the conditions is a requirement for a certificate that must be completed by Mexican veterinary authorities prior to export. The certificate must identify both the region of export and the region of origin as regions designated in §§ 94.9 and 94.10 as free of classical swine fever at the time the live swine, pork, or pork products were in the regions.
We are asking the Office of Management and Budget (OMB) to approve our use of this information collection activity for 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the information collection, 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 information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, e.g., permitting electronic submission of responses.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Action of meeting.
The Hood/Willamette Resource Advisory Committee (RAC) will meet on Thursday, September 27, 2007. The meeting is scheduled to begin at 9:30 a.m. and will conclude at approximately 12:30 p.m. The meeting will be held at the Salem Office of the Bureau of Land Management Office; 1717 Fabry Road, SE.; Salem, Oregon; (503) 375-5646. The tentative agenda includes: (1) Recommendations on 2008 Projects; and (2) Public Forum.
The Public Forum is tentatively scheduled to begin at 10 p.m. Time allotted for individual presentations will be limited to 3-4 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits for the Public Forum. Written comments may be submitted prior to the September 27th meeting by sending them to Designated Federal Official Donna Short at the address given below.
For more information regarding this meeting, contact Designated Federal Official Donna Short; Sweet Home Ranger District; 4431 Highway 20; Sweet Home, Oregon 97386; (541) 367-3540.
Forest Service, USDA.
Action of meeting.
The Hood/Willamette Resource Advisory Committee (RAC) will meet on Thursday, August 30, 2007. The meeting is scheduled to begin at 9:30 a.m. and will conclude at approximately 12:30 p.m. The meeting will be held at Salem Office of the Bureau of Land Management Office; 1717 Fabry Road SE., Salem, Oregon; (503) 375-5646. The tentative agenda includes: (1) Report on status of past projects; (2) Election of chairperson; (3) Decision on overhead rate for 2008 projects; (4) Presentation of 2008 Projects; and (5) Public Forum.
The Public Forum is tentatively scheduled to begin at 9:45 a.m. Time allotted for individual presentations will be limited to 3-4 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits for the Public Forum. Written comments may be
For more information regarding this meeting, contact Joanne West; Sweet Home Ranger District; 4431 Highway 20; Sweet Home, Oregon 97386; (541) 367-3546.
Rural Housing Service (RHS), USDA Rural Development.
Proposed collection; comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Housing Service's intention to request an extension for a currently approved information collection in support of the program for Technical and Supervisory Assistance (TSA) grants.
Comments on this notice must be received by September 4, 2007 to be assured of consideration.
Nica Mathes, Senior Loan Specialist, Single Family Housing Direct Loan Division, Rural Housing Service, U.S. Department of Agriculture, Mail STOP 0783, 1400 Independence Ave., SW., Washington, DC 20250-0783, Telephone 202-205-3656.
Recipient public or private nonprofit corporations, agencies, institutions, organizations, Indian tribes and other associations approved by the Secretary assist low-income individuals by providing homebuyer training, preparing applications for loan and other housing assistance, and counseling those with delinquent Rural Development housing loans. RHS refers to this program as Technical and Supervisory Assistance. RHS annually publishes a Notice of Funds Availability (NOFA) in the
Information is collected from applicants and grant recipients by Rural Development staff in its local, State and National offices. This information will be used to determine applicant eligibility for a grant, project feasibility, to select grants for funding, and to monitor performance of selected grantees. If an applicant's proposal is selected for funding, it will be notified of the selection and given the opportunity to submit a formal application.
Copies of this information collection can be obtained from Renita Bolden, Regulations and Paperwork Management Branch, at (202) 692-0035.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of RHS, including whether the information will have practical utility; (b) the accuracy of RHS' estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Renita Bolden, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Rural Utilities Service, USDA.
Notice of funds availability.
The Rural Utilities Service (RUS), an agency delivering the United States Department of Agriculture (USDA) Rural Development Utilities Program, hereinafter referred as Rural Development, announces its Community Connect Grant Program application window for funding during fiscal year (FY) 2007. In addition, RUS announces the minimum and maximum amounts for Community Connect grants applicable for the fiscal year. The Community Connect Grant Program regulations can be found at 7 CFR part 1739, subpart A.
You may submit completed applications for grants on paper or electronically according to the following deadlines:
• Paper copies must carry proof of shipping
Electronic copies must be received by August 20, 2007 to be eligible for FY 2007 grant funding. Late applications are not eligible for FY 2007 grant funding.
You may obtain application guides and materials for the Community Connect Grant Program via the Internet at the following Web site:
Submit completed paper applications for grants to the Rural Development Utilities Program, U.S. Department of Agriculture, 1400 Independence Ave., SW., Room 2870, STOP 1599, Washington, DC 20250-1599. Applications should be marked “Attention: Director, Broadband Division, Rural Development Utilities Program.”
Submit electronic grant applications at
Kenneth Kuchno, Director, Broadband Division, Rural Development Utilities Program, U.S. Department of Agriculture, telephone: (202) 690-4673, fax: (202) 690-4389.
You may submit completed applications for grants on paper or electronically according to the following deadlines:
• Paper copies must carry proof of shipping no later than August 20,2007, to be eligible for FY 2007 grant funding. Late applications are not eligible for FY 2007 grant funding.
• Electronic copies must be received by August 20, 2007, to be eligible for FY 2007 grant funding. Late applications are not eligible for FY 2007 grant funding.
I. Funding Opportunity: Brief introduction to the Community Connect Grant Program
II. Award Information: Available funds and minimum and maximum amounts
III. Eligibility Information: Who is eligible, what kinds of projects are eligible, what criteria determine basic eligibility
IV. Application and Submission Information: Where to get application materials, what constitutes a completed application, how and where to submit applications, deadlines, items that are eligible
V. Application Review Information: Considerations and preferences, scoring criteria, review standards, selection information
VI. Award Administration Information: Award notice information, award recipient reporting requirements
VII. Agency Contacts: Web, phone, fax, email, contact name
The provision of broadband transmission service is vital to the economic development, education, health, and safety of rural Americans. The purpose of the Community Connect Grant Program is to provide financial assistance in the form of grants to eligible applicants that will provide currently unserved areas, on a “community-oriented connectivity” basis, with broadband transmission service that fosters economic growth and delivers enhanced educational, health care, and public safety services. Rural Development will give priority to rural areas that it believes have the greatest need for broadband transmission services, based on the criteria contained herein.
Grant authority will be used for the deployment of broadband transmission service to extremely rural, lower-income communities on a “community-oriented connectivity” basis. The “community-oriented connectivity” concept will stimulate practical, everyday uses and applications of broadband facilities by cultivating the deployment of new broadband transmission services that improve economic development and provide enhanced educational and health care opportunities in rural areas. Such an approach will also give rural communities the opportunity to benefit from the advanced technologies that are necessary to achieve these goals. Please see 7 CFR part 1739, subpart A for specifics.
This notice has been formatted to conform to a policy directive issued by the Office of Federal Financial Management (OFFM) of the Office of Management and Budget (OMB), published in the
1.
2.
a. $8.91 million is available for grants. Under 7 CFR 1739.2, the Administrator has established a minimum grant amount of $50,000 and a maximum grant amount of $1,000,000 for FY 2007.
b. Assistance instrument: Rural Development will execute grant documents appropriate to the project prior to any advance of funds with successful applicants.
B. Community Connect grants cannot be renewed. Award documents specify the term of each award. Applications to extend existing projects are welcomed (grant applications must be submitted during the application window) and will be evaluated as new applications.
1. Only entities legally organized as one of the following are eligible for Community Connect Grant Program financial assistance:
a. An incorporated organization,
b. An Indian tribe or tribal organization, as defined in
c. A state or local unit of government,
d. A cooperative, private corporation or limited liability company organized on a for-profit or not-for-profit basis.
2. Individuals are not eligible for Community Connect Grant Program financial assistance directly.
3. Applicants must have the legal capacity and authority to own and operate the broadband facilities as proposed in its application, to enter into contracts and to otherwise comply with applicable federal statutes and regulations.
1. Required matching contributions. Please see 7 CFR 1739.14 for the requirement. Grant applicants must demonstrate a matching contribution, in cash or in kind (new, non-depreciated items), of at least fifteen (15) percent of the total amount of financial assistance requested. Matching contributions must be used for eligible purposes of Community Connect grant assistance (see 7 CFR 1739.12).
2. To be eligible for a grant, the Project must (see 7 CFR 1739.11):
a. Serve a Rural Area where Broadband Transmission Service does not currently exist, to be verified by Rural Development prior to the award of the grant;
b. Serve one and only one Community recognized in the latest U.S. Census; Contiguous areas outside the Community's boundaries that are not recognized in the U.S. Census as a separate Community, can be included in the applicant's proposed Service Area.
c. Deploy Basic Broadband Transmission Service, free of all charges for at least 2 years, to all Critical Community Facilities located within the proposed Service Area;
d. Offer Basic Broadband Transmission Service to residential and business customers within the proposed Service Area; and
e. Provide a Community Center with at least ten (10) Computer Access Points within the proposed Service Area, and make Broadband Transmission Service available therein, free of all charges to users for at least 2 years.
1. Rural Development clarifies that the definition of “Critical Community Facilities” includes the mandatory Community Center.
2. For all funding commitments, including all matching fund commitments and commitments made by the applicant, that are required to complete the Project in addition to the Rural Development grant, evidence must be submitted demonstrating that funding arrangements have been obtained. This evidence must:
a. Clearly state the name of the entity that is making the commitment;
b. The amount of the commitment; and
c. The purpose of the commitment.
3. Rural Development clarifies that in order to qualify as eligible costs for grant coverage or matching fund contributions, operating expenses incurred in providing Broadband Transmission Service to Critical Community Facilities for the first 2 years of operation and in providing training and instruction must be for the following purposes subject to the specified maximum amounts:
a. Salary for operations manager, not to exceed $30,000 per year.
b. Salary for technical support staff, not to exceed $30,000 per year.
c. Salary for community center staff, not to exceed $25,000 per year.
d. Bandwidth expenses, not to exceed $25,000 per year.
e. Training courses on the use of the Internet, not to exceed $15,000 per year.
The operating costs to be funded by the grant or used as matching contributions cannot exceed in the aggregate $250,000. No other operating expenses are eligible for grant funding or to be considered as matching funds.
The application guide, copies of necessary forms and samples, and the Community Connect Grant Program regulation are available from these sources:
1. The Internet:
2. The Rural Development Broadband Division, for paper copies of these materials: (202) 690-4673.
1. Detailed information on each item required can be found in the Community Connect Grant Program regulation and the Community Connect Grant Program application guide. Applicants are strongly encouraged to read and apply both the regulation and the application guide. This Notice does not change the requirements for a completed application for any form of Community Connect Grant Program financial assistance specified in the Community Connect Grant Program regulation. The Community Connect Grant Program regulation and the application guide provide specific guidance on each of the items listed and the Community Connect Grant Program application guide provides all necessary forms and sample worksheets.
2. Applications should be prepared in conformance with the provisions in 7 CFR part 1739, subpart A, and applicable USDA regulations including 7 CFR parts 3015, 3016, and 3019. Applicants must use the Rural Development Application Guide for this program containing instructions and all necessary forms, as well as other important information, in preparing their application. Completed applications must include the following:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
(i) 7 CFR part 15, subpart A—Nondiscrimination in Federally Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964.
(ii) 7 CFR part 3015—Uniform Federal Assistance Regulations.
(iii) 7 CFR part 3017—Governmentwide Debarment and Suspension (Non-procurement).
(iv) 7 CFR part 3018—New Restrictions on Lobbying.
(v) 7 CFR part 3021—Governmentwide Requirements for Drug-Free Workplace (Financial Assistance).
(vi) Certification regarding Architectural Barriers.
(vii) Certification regarding Flood Hazard Precautions.
(viii) An environmental report, in accordance with 7 CFR part 1794.
(ix) Certification that grant funds will not be used to duplicate lines, facilities, or systems providing Broadband Transmission Service.
(x) Federal Obligation Certification on Delinquent Debt.
3. DUNS Number. As required by the OMB, all applicants for grants must now supply a Dun and Bradstreet Data Universal Numbering System (DUNS) number when applying. The SF-424 contains a field for you to use when supplying your DUNS number. Obtaining a DUNS number costs nothing and requires a short telephone call to Dun and Bradstreet. Please see the Community Connect Web site or Grants.gov for more information on how to obtain a DUNS number or how to verify your organization's number.
1. Applications submitted on paper: Submit the original application and two (2) copies to Rural Development.
2. Electronically submitted applications: The additional paper copies are not necessary if you submit the application electronically through Grants.gov.
D.
1. Submitting applications on paper.
a. Address paper applications for grants to the Rural Development Utilities Program, U.S. Department of Agriculture, 1400 Independence Ave., SW., Room 2870, STOP 1599, Washington, DC 20250-1599. Applications should be marked “Attention: Director, Broadband Division, Rural Development Utilities Program.”
b. Paper applications must show proof of mailing or shipping consisting of one of the following:
(i) A legibly dated U.S. Postal Service (USPS) postmark;
(ii) A legible mail receipt with the date of mailing stamped by the USPS; or
(iii) A dated shipping label, invoice, or receipt from a commercial carrier.
c. Due to screening procedures at the Department of Agriculture, packages arriving via the USPS are irradiated, which can damage the contents. Rural Development encourages applicants to consider the impact of this procedure in selecting their application delivery method.
2. Electronically submitted applications.
a. Applications will not be accepted via facsimile machine transmission or electronic mail.
b. Electronic applications for grants will be accepted if submitted through the Federal government's Grants.gov initiative at
c. How to use Grants.gov:
(i) Navigate your Web browser to
(ii) Follow the instructions on that Web site to find grant information.
(iii) Download a copy of the application package.
(iv) Complete the package off-line.
(v) Upload and submit the application via the Grants.gov Web site.
d. Grants.gov contains full instructions on all required passwords, credentialing and software.
e. Rural Development encourages applicants who wish to apply through Grants.gov to submit their applications in advance of the deadline.
f. If a system problem occurs or you have technical difficulties with an electronic application, please use the customer support resources available at the Grants.gov Web site.
1. Paper applications must be postmarked and mailed, shipped, or sent overnight no later than August 20, 2007 to be eligible for FY 2007 grant funding. Late applications are not eligible for FY 2007 grant funding.
2. Electronic grant applications must be received by August 20, 2007 to be eligible for FY 2007 funding. Late applications are not eligible for FY 2007 grant funding.
1.
a. The construction, acquisition, or leasing of facilities, including spectrum, to deploy Broadband Transmission Service to all participating Critical Community Facilities and all required facilities needed to offer such service to residential and business customers located within the proposed Service Area;
b. The improvement, expansion, construction, or acquisition of a Community Center that furnishes free access to broadband Internet service, provided that the Community Center is open and accessible to area residents before, during, and after normal working hours and on Saturday or Sunday. Grant funds provided for such costs shall not exceed the greater of five percent (5%) of the grant amount requested or $100,000;
c. End-User Equipment needed to carry out the Project;
d. Operating expenses incurred in providing Broadband Transmission Service to Critical Community Facilities for the first 2 years of operation and in providing training and instruction; and
e. The purchase of land, buildings, or building construction needed to carry out the Project.
2.
a. Grant funds may not be used to finance the duplication of any existing Broadband Transmission Service provided by another entity.
b. Facilities financed with grant funds cannot be utilized, in any way, to provide local exchange telecommunications service to any person or entity already receiving such service.
3. Please see 7 CFR 1739.3 for definitions, 7 CFR 1739.12 for eligible grant purposes, and 7 CFR 1739.13 for ineligible grant purposes
1. Grant applications are scored competitively and subject to the criteria listed below.
2. Grant application scoring criteria (total possible points: 100) See 7 CFR 1739.17 for the items that will be reviewed during scoring and for scoring criteria.
a. The rurality of the Project (up to 40 points);
b. The economic need of the Project's Service Area (up to 30 points); and
c. The “community-oriented connectivity” benefits derived from the proposed service (up to 30 points).
1. All applications for grants must be delivered to Rural Development at the address and by the date specified in this notice (see also 7 CFR 1739.2) to be eligible for funding. Rural Development will review each application for conformance with the provisions of this part. Rural Development may contact the applicant for additional information or clarification.
2. Incomplete applications as of the deadline for submission will not be considered. If an application is determined to be incomplete, the applicant will be notified in writing and the application will be returned with no further action.
3. Applications conforming with this part will then be evaluated competitively by a panel of Rural Development employees selected by the Administrator of Rural Development Utilities Program, and will be awarded points as described in the scoring criteria in 7 CFR 1739.17. Applications will be ranked and grants awarded in rank order until all grant funds are expended.
4. Regardless of the score an application receives, if Rural Development determines that the Project is technically or financially infeasible, Rural Development will notify the applicant, in writing, and the application will be returned with no further action.
Grant applications are ranked by final score. Rural Development selects applications based on those rankings, subject to the availability of funds.
Rural Development recognizes that each funded project is unique, and therefore may attach conditions to different projects' award documents. Rural Development generally notifies applicants whose projects are selected for awards by faxing an award letter. Rural Development follows the award letter with a grant agreement that contains all the terms and conditions for the grant. An applicant must execute and return the grant agreement, accompanied by any additional items required by the grant agreement.
The items listed in paragraph IV.B.2.k of this notice, and the Community Connect Grant Program regulation, application guide and accompanying materials implement the appropriate administrative and national policy requirements.
1.
2.
A. Web site:
B. Phone: 202-690-4673.
C. Fax: 202-690-4389.
D. Main point of contact: Kenneth Kuchno, Director, Broadband Division, Rural Development Utilities Program, U.S. Department of Agriculture.
Rural Utilities Service, USDA.
Withdrawal of Notice of Funds Availability.
The Rural Utilities Service, an agency delivering the United States Department of Agriculture (USDA) Rural Development Utilities Program, hereinafter referred to as Rural Development, announces the withdrawal of a previously published Notice of Funds Availability (NOFA) for the Community Connect Grant Program due to an inadvertent error. A corrected NOFA appears elsewhere in this issue of the
Kenneth Kuchno, Director, Broadband Division, Rural Development Utilities Program, U.S. Department of Agriculture, telephone: (202) 690-4673, fax (202) 690-4389.
On June 29, 2007, at 72 FR 35685, Rural Development published a NOFA for the Community Connect Grant Program, which contained inadvertent errors. As a result of these errors, Rural Development is withdrawing the previously published NOFA and publishing a corrected version elsewhere in the Notices section of this issue of the
Applicants who may have already applied under the previous NOFA announcement must re-apply under today's NOFA in order to be eligible for consideration.
United States Commission on Civil Rights.
Notice of meeting.
Friday, July 13, 2007; 9:30 a.m.
U.S. Commission on Civil Rights, 624 Ninth Street, NW., Rm. 540, Washington, DC 20425.
Manuel Alba, Press and Communications (202) 376-8582.
Bureau of Industry and Security, Commerce.
Notice.
On June 14, 2002, the Bureau of Industry and Security (“BIS”) published a notice in the
This notice is effective July 5, 2007.
Deniz Muslu, Office of Enforcement Analysis, Bureau of Industry and Security, Telephone: (202) 482-4255.
In administering export controls under the Export Administration Regulations (15 CFR parts 730 to 774) (“EAR”), BIS carries out a number of preventive enforcement activities with respect to individual export transactions. Such activities are intended to assess diversion risks, identify potential violations, verify end-uses, and determine the suitability of end-users to receive U.S. commodities, software or technology. In carrying out these activities, BIS officials, or officials of other federal agencies acting on BIS's behalf, selectively conduct pre-license checks (“PLCs”) to verify the bona fides of the transaction and the suitability of the end-user or ultimate consignee. In addition, such officials sometimes carry out post-shipment verifications (“PSVs”) to ensure that U.S. exports have actually been delivered to the authorized end-user, are being used in a manner consistent with the terms of a license or license exception, and otherwise consistent with the EAR.
In certain instances BIS officials, or other federal officials acting on BIS's behalf, have been unable to perform a PLC or PSV with respect to certain export control transactions for reasons outside the control of the U.S. Government (including a lack of cooperation by the host government authority, the end-user, or the ultimate consignee). BIS listed a number of foreign end-users and consignees involved in such transactions in the Unverified List that was included in BIS's
The June 14, 2002 and July 16, 2004 notices advised exporters that the involvement of a listed person in a transaction constituted a “red flag” under the “Know Your Customer” guidance set forth in Supplement No. 3 to 15 CFR part 732 of the EAR. Under that guidance, whenever there is a “red flag,” exporters have an affirmative duty to inquire, verify, or otherwise substantiate the proposed transaction to satisfy themselves that the transaction does not involve a proliferation activity prohibited in 15 CFR part 744, and does not violate other provisions of the EAR. The
This notice advises exporters that BIS is adding Al Minzal Medical Equipment & Instruments in the United Arab Emirates, JSC Chop Vityaz-S in Russia, and Sistem Dizayners Co. in Azerbaijan to the Unverified List. BIS has determined that it is appropriate to add these entities to the Unverified List because BIS was unable to conduct a PLC, a PSV, and/or was unable to verify the existence or authenticity of an end user, intermediate consignee, ultimate consignee, or other party to an export transaction. A “red flag” now exists for transactions involving these entities due to their inclusion on the Unverified List. As a result, exporters have an affirmative duty to inquire, verify, or otherwise substantiate the proposed transaction to satisfy themselves that the transaction does not involve a proliferation activity prohibited in 15 CFR part 744, and does not violate other provisions of the EAR.
The Unverified List, as modified by this notice, is set forth below.
The Unverified List includes names, countries, and last known addresses of foreign persons involved in export transactions with respect to which: The Bureau of Industry and Security (“BIS”) could not conduct a pre license check (“PLC”) or a post shipment verification (“PSV”) for reasons outside of the U.S. Government's control; BIS was not able to verify the existence or authenticity of the end user, intermediate consignee, ultimate consignee or other party to an export transaction; and/or the person is affiliated with a person on the Unverified List by virtue of ownership, control, position of responsibility, or other affiliation or connection in the conduct of trade or business. Any transaction to which a listed person is a party will be deemed to raise a “red flag” with respect to such transaction within the meaning of the guidance set forth in Supplement No. 3 to 15 CFR part 732. The red flag applies to the person on the Unverified List regardless of where the person is located in the country included on the list.
Import Administration, International Trade Administration, Department of Commerce.
In response to a request from a domestic producer, Nucor Corporation, and a Romanian producer/exporter, Mittal Steel Galati, S.A. (“MS Galati”), the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on certain cut-to-length carbon steel plate (“CTL plate”) from Romania. The period of review is August 1, 2005, through December 15, 2005. With regard to the two Romanian companies that are subject to this administrative review, producer MS Galati and exporter Metalexportimport S.A. (“MEI”), we preliminarily determine that sales of subject merchandise produced by MS Galati have been made at less than normal value (“NV”). Since MEI was not involved with any of the U.S. sales during the period of review, we are assigning a preliminary dumping margin to MS Galati only and intend to rescind the review with respect to MEI. For a full discussion of the intent to rescind with respect to MEI,
July 5, 2007.
Dena Crossland or John Drury, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-3362 or (202) 482-0195, respectively.
On August 1, 2006, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on CTL plate from Romania for the period August 1, 2005, through July 31, 2006.
On September 29, 2006, the Department initiated an administrative review of the antidumping duty order on CTL plate from Romania, for the period covering August 1, 2005, through July 31, 2006, to determine whether merchandise imported into the United States from MS Galati and MEI is being sold at less than NV.
On November 17, 2006, the Department received the section A questionnaire response from MS Galati. On December 11, 2006, MS Galati filed its section B and C questionnaire responses. On February 14, 2007, the Department issued a supplemental questionnaire regarding MS Galati's sections A through C questionnaire responses. On March 8, 2007, MS Galati submitted its response to the supplemental questionnaire. On April 2, 2007, the Department issued a second supplemental questionnaire with regard to section C, and received MS Galati's response on April 16, 2007. On June 12, 2007, the Department received MS Galati's quantity and value reconciliation, as required under section A of the Department's antidumping questionnaire. Because there was no sales-below-cost allegation and the Department did not initiate a review of MS Galati's costs, MS Galati was not required to file a section D questionnaire response.
On December 14, 2006, the International Trade Commission determined that revocation of the antidumping duty orders on CTL plate from certain countries, including Romania, would not likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The period of review (“POR”) is August 1, 2005, through December 15, 2005.
Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an administrative review, in whole or only with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the
The products covered by this antidumping duty review include hot-rolled carbon steel universal mill plates (
We made currency conversions pursuant to 19 CFR 351.415 based on the exchange rates in effect on the dates of the U.S. sales, as certified by Dow Jones Reuters Business Interactive LLC (trading as Factiva).
The Department's regulations state that it will normally use the date of invoice, as recorded in the exporter's or producer's records kept in the ordinary course of business, as the date of sale.
In reviewing all information on the record, we preliminarily find that the terms of sale for some of MS Galati's U.S. sales changed from the order acknowledgment to the invoice. Specifically, there were various sales with changes outside of the allowable tolerance for quantity that took place after the order acknowledgment date. Additionally, there were numerous price changes that took place after the order acknowledgment date.
Regarding its home market sales, MS Galati stated that the invoice date is the date of sale.
Therefore, for these preliminary results, the Department will use the invoice date as the date of sale for MS Galati's U.S. sales, and either the invoice date or shipment date, depending on which one takes place earlier, as the date of sale for MS Galati's home market sales.
In accordance with section 773(a)(1)(B)(I) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the constructed export price (“CEP”) transaction.
To determine whether NV sales are at a different LOT than CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT than CEP sales, and the difference affects price comparability, as manifested in a pattern of consistent price differences between sales on which NV is based and comparison market sales at the LOT of the export transaction, where possible, we make a LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales for which we are unable to quantify a LOT adjustment, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (“the CEP offset provision”).
In analyzing the differences in selling functions, we determine whether the LOTs identified by the respondent are meaningful. See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27371 (May 19, 1997). If the claimed LOTs are the same, we expect that the functions and activities of the seller should be similar. Conversely, if a party claims that LOTs are different for different groups of sales, the functions and activities of the seller should be dissimilar.
To determine whether the comparison market sales were at different stages in the marketing process than the U.S. sales, we reviewed the channels of distribution in each market,
We examined the selling activities reported for each channel of distribution in the HM and we organized the reported selling activities into the following four selling functions: sales process and marketing support, freight and delivery, inventory maintenance and warehousing, and warranty and technical services. We found that MS Galati's level of selling functions to its HM customers for each of the four selling functions did not vary significantly by channel of distribution.
In the U.S. market, MS Galati made sales of subject merchandise to MSNA,
We then compared the selling functions performed by MS Galati on its CEP sales (after deductions made pursuant to section 772(d) of the Act) to the selling functions provided in the HM. We found that MS Galati provides significant selling functions in the HM related to the sales process and marketing support, as well as warranty and technical service, which it does not for MSNA in the U.S. market. In addition, the differences in selling functions performed for HM and CEP transactions indicate that MS Galati's HM sales involved a more advanced stage of distribution than CEP sales. In the HM, MS Galati provides marketing further down the chain of distribution by promoting certain downstream selling functions that are normally performed by the affiliated reseller in the U.S. market. On this basis, we determined that the HM LOT is at a more advanced stage of distribution when compared to CEP sales because MS Galati provides more selling functions in the HM at higher levels of service as compared to selling functions performed for its CEP sales. Thus, we find that MS Galati's HM sales are at a more advanced LOT than its CEP sales.
Based upon our analysis, we preliminarily determine that the CEP and the starting price of HM sales represent different stages in the marketing process, and are thus at different LOTs. Therefore, when we compared CEP sales to the comparison market sales, we examined whether an LOT adjustment may be appropriate. In this case, because MS Galati sold at one
Because the data available do not provide an appropriate basis for making a LOT adjustment and the LOT of MS Galati's HM sales is at a more advanced stage than the LOT of MS Galati's CEP sales, a CEP offset is appropriate in accordance with section 773(a)(7)(B) of the Act, as claimed by MS Galati. We based the amount of the CEP offset on HM indirect selling expenses, and limited the deduction for HM indirect selling expense to the amount of the indirect selling expenses deducted from CEP in accordance with section 772(d)(1)(D) of the Act. We applied the CEP offset to the NV-CEP comparisons.
To determine whether MS Galati's sales of the subject merchandise from Romania to the United States were made at prices below NV, we compared the CEP to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice. Therefore, pursuant to section 777A(d)(2) of the Act, we compared the CEPs of individual U.S. transactions to the monthly weighted-average normal value of the foreign like product where there were sales made in the ordinary course of trade.
In accordance with section 771(16) of the Act, we considered all products covered by the “Scope of the Antidumping Duty Review” section above, which were produced and sold by MS Galati in the HM during the POR, to be the foreign like product for the purpose of determining appropriate product comparisons to U.S. sales of subject merchandise. We relied on eight characteristics to match U.S. sales of subject merchandise to comparison sales of the foreign like product (listed in order of importance): 1) painting; 2) quality; 3) specification and/or grade; 4) heat treatment; 5) standard thickness; 6) standard width; 7) whether or not checkered (floor plate); and 8) descaling. Where there were no sales of identical merchandise in the HM to compare to U.S. sales, we compared U.S. sales to the most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.
In accordance with section 772(b) of the Act, CEP is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under sections 772(c) and (d) of the Act. For purposes of this administrative review, MS Galati has classified its sales as CEP. MS Galati identified one channel of distribution for U.S. sales: MS Galati through MEI to MSNA and then to unaffiliated U.S. customers, who are distributors.
After reviewing the evidence on the record of this review, we have preliminarily determined that MS Galati's transactions are classified properly as CEP sales because these sales occurred in the United States and were made through its U.S. affiliate to an unaffiliated buyer. Such a determination is consistent with section 772(b) of the Act and the U.S. Court of Appeals for the Federal Circuit's decision in
For this distribution channel, MS Galati has reported these sales as CEP sales because the first sale to an unaffiliated party occurred in the United States. Therefore, we based CEP on the packed duty paid prices to unaffiliated purchasers in the United States, in accordance with subsections 772(b), (c), and (d) of the Act. Where applicable, we made a deduction to gross unit price for billing adjustments. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act. These deductions included, where appropriate, foreign inland freight from the plant to the port of export, foreign brokerage and handling, international freight, marine insurance, U.S. brokerage and handling, other U.S. transportation expenses (
We compared the aggregate volume of HM sales of the foreign like product and U.S. sales of the subject merchandise to determine whether the volume of the foreign like product sold in Romania was sufficient, pursuant to section 773(a)(1)(C) of the Act, to form a basis for NV. Because the volume of HM sales of the foreign like product was greater than five percent of the U.S. sales of subject merchandise, in accordance with section 773(a)(1)(B)(i) of the Act, we determine that sales in the HM provide a viable basis for calculating NV. Thus, we used as NV the prices at which the foreign like product was first sold for consumption in Romania, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same LOT as the CEP sales, as appropriate. After testing
MS Galati reported that it made sales in the HM to affiliated and unaffiliated customers. The Department did not require MS Galati to report its affiliated party's downstream sales because these sales represented less than five percent of total HM sales.
Sales to these affiliated customers in the HM not made at arm's length were excluded from our analysis.
We based NV on the HM sales to unaffiliated purchasers and sales to affiliated customers that passed the arm's-length test. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. We made adjustments, where applicable, for movement expenses (
We preliminarily determine that the following weighted-average margin exists for the following manufacturer/exporter during the POR:
Upon completion of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.
The Department clarified its “automatic assessment” regulation on May 6, 2003.
The Department notified CBP to discontinue suspension of liquidation and collection of cash deposits on entries of the subject merchandise entered or withdrawn from warehouse on or after December 15, 2005, the effective date of revocation of the antidumping duty order.
The Department will disclose calculations performed for these preliminary results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Unless otherwise specified, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, or the first business day thereafter. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Failure to comply with this requirement could result in the
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.
July 5, 2007.
Maisha Cryor or Mark Manning, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-5831 or (202) 482-5253, respectively.
On June 7, 2007, the Department of Commerce (Department) received a petition on imports of circular welded carbon quality steel pipe (CWP) from the People's Republic of China (PRC) filed in proper form by Allied Tube & Conduit, Sharon Tube Company, IPSCO Tubulars, Inc., Western Tube & Conduit Corporation, Northwest Pipe Company, Wheatland Tube Co.,
In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners alleged that imports of CWP from the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring and threaten to injure an industry in the United States. The Department issued supplemental questions to Petitioners on June 11, 2007, and June 19, 2007, and Petitioners filed their responses on June 15, 2007, June 22, 2007, and June 25, 2007, respectively. In addition, Petitioners filed an amendment to the petition on June 15, 2007.
The scope of this investigation covers certain welded carbon quality steel pipes and tubes, of circular cross-section, and with an outside diameter of 0.372 inches (9.45 mm) or more, but not more than 16 inches (406.4 mm), whether or not stenciled, regardless of wall thickness, surface finish (
Specifically, the term “carbon quality” includes products in which: (a) iron predominates, by weight, over each of the other contained elements; (b) the carbon content is 2 percent or less, by weight; and (c) none of the elements listed below exceeds the quantity, by weight, as indicated:
All pipe meeting the physical description set forth above that is used in, or intended for use in, standard and structural pipe applications is covered by the scope of this investigation. Standard pipe applications include the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing, and as an intermediate product for protection of electrical wiring, such as conduit shells. Structural pipe is used in construction applications.
Standard pipe is made primarily to American Society for Testing and Materials (ASTM) specifications, but can be made to other specifications. Standard pipe is made primarily to ASTM specifications A-53, A-135, and A-795. Structural pipe is made primarily to ASTM specifications A-252 and A-500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications. This is often the case, for example, with fence tubing. Pipe multiple-stenciled to an ASTM specification and to any other specification, such as the American Petroleum Institute (API) API-5L or 5L X-42 specifications, is covered by the scope of this investigation when used in, or intended for use in, one of the standard applications listed above, regardless of the Harmonized Tariff Schedule of the United States (HTSUS) category under which it is entered. Pipe used for the production of scaffolding (but not finished scaffolding) and conduit shells (but not finished electrical conduit) are included within the scope of this investigation.
The scope does not include: (a) pipe suitable for use in boilers, superheaters, heat exchangers, condensers, refining furnaces and feedwater heaters, whether or not cold drawn; (b) mechanical tubing, whether or not cold-drawn; (c) finished electrical conduit; (d) tube and pipe hollows for redrawing; (e) oil country tubular goods produced to API specifications; and (f) line pipe produced to API specifications for oil and gas applications.
The pipe products that are the subject of this investigation are currently classifiable in HTSUS statistical reporting numbers 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. However, the product description, and not the HTSUS classification, is dispositive of whether merchandise imported into the United States falls within the scope of the investigation.
During our review of the petition, we discussed the scope with Petitioners to ensure that it accurately reflects the product for which the domestic industry is seeking relief. During this review, we noted that, while the Department typically prefers to rely upon physical characteristics to determine the scope of product coverage, the scope description proposed by Petitioners relied upon, in part, end-use applications as a method for determining scope coverage. On June 20, 2007, we met with Petitioners to discuss the scope and its reliance upon end-use applications as a method for determining scope coverage.
Section 732(b)(1) of the Act requires that a petition be filed by an interested party described in subparagraph (C), (D), (E), (F) or (G) of section 771(9) of the Act, or on behalf of the domestic industry. In order to determine whether a petition has been filed by or on behalf of the industry, the Department, pursuant to section 732(c)(4)(A) of the Act, determines whether a minimum percentage of the relevant industry supports the petition. A petition meets this requirement if the domestic producers or workers who support the petition account for: (i) at least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,” (
With regard to the domestic like product, Petitioners do not offer a definition of domestic like product distinct from the scope of the investigation. Based on our analysis of the information submitted on the record, we have determined that CWP constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product. For a discussion of the domestic like product analysis in this case,
In determining whether Petitioners have standing (
Our review of the data provided in the petition, supplemental submissions, and other information readily available to the Department indicates that Petitioners have established industry support. First, the petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (
The Department finds that Petitioners filed the petition on behalf of the domestic industry because they are an interested party as defined in sections 771(9)(C) and (D) of the Act and they have demonstrated sufficient industry support with respect to the antidumping investigation that they are requesting the Department initiate. See Initiation Checklist at Attachment I (Analysis of Industry Support).
The following is a description of the allegations of sales at less than fair value upon which the Department based its decision to initiate this investigation on imports of CWP from the PRC. The source of data for the deductions and adjustments relating to the U.S. price as well as normal value (NV) for the PRC are also discussed in the Initiation Checklist. Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we will reexamine the information and revise the margin calculations, if appropriate.
Petitioners relied on five U.S. prices for CWP manufactured in the PRC and offered by U.S. distributors for sale in the United States. The prices quoted were for specific grades and quality of CWP falling within the scope of this petition, for delivery to the U.S. customer within the POI. Petitioners deducted from the prices the costs associated with exporting and delivering the product, including ocean freight and insurance charges, and foreign brokerage and handling. Petitioners did not deduct foreign inland freight charges from the export price (EP) because they were unable to establish the distances between the Chinese mills and the ports nearest to those mills.
Petitioners stated that the PRC is a non-market economy (NME) and no determination to the contrary has yet been made by the Department. In previous investigations, the Department has determined that the PRC is a NME.
Petitioners selected India as the surrogate country.
Petitioners provided dumping margin calculations using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. Petitioners calculated NV based on consumption rates for inputs used to produce CWP experienced by U.S. producers. In accordance with section 773(c)(4) of the Act, Petitioners valued factors of production, where possible, on reasonably available, public surrogate country data. To value certain factors of production, Petitioners used official Indian government import statistics, excluding shipments from countries previously determined by the Department to be NME countries and excluding shipments into India from Indonesia, the Republic of Korea, and Thailand because the Department has previously excluded prices from these countries because they maintain broadly-available, non-industry specific export subsidies.
For inputs valued in Indian rupees and not contemporaneous with the POI, Petitioners used information from the wholesale price indices (WPI) in India as published in the
The Department calculates and publishes the surrogate values for labor to be used in NME cases on its website. Therefore, to value labor, Petitioners used a labor rate of $0.83 per hour, published on the Department website, in accordance with the Department's regulations.
Petitioners valued electricity in the production of CWP based on the Indian electricity rate as reported in the
For the NV calculations, Petitioners derived the figures for factory overhead, selling, general and administrative expenses, and profit from the financial ratios of two Indian producers of CWP: Zenith Birla (India) Limited and Surya Roshni Limited.
Based on the data provided by Petitioners, there is reason to believe that imports of CWP from the PRC are being, or are likely to be, sold in the United States at less than fair value. Based upon comparisons of EP to the NV, calculated in accordance with section 773(c) of the Act, the estimated calculated dumping margins for CWP from the PRC range from 51.34 percent to 85.55 percent.
Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than NV. Petitioners contend that the industry's injured condition is illustrated by reduced market share, lost sales, reduced production, capacity and capacity utilization rate, reduced shipments and increased inventories, underselling and price depression or suppression, lost revenue, reduced employment, decline in financial performance and increase in import penetration. We have assessed the allegations and supporting evidence regarding material injury and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
The Department modified the process by which exporters and foreign producers may obtain separate-rate status in NME investigations.
For NME investigations, it is the Department's practice to request quantity and value information from all known exporters identified in the petition. Although many NME exporters respond to the quantity and value information request, at times some exporters may not have received the quantity and value questionnaire or may not have received it in time to respond by the specified deadline. Therefore, the Department typically requests the assistance of the NME government in transmitting the Department's quantity and value questionnaire to all companies who manufacture and export subject merchandise to the United States, as well as to manufacturers who produce the subject merchandise for companies who were engaged in exporting subject merchandise to the United States during the POI. The quantity and value data received from NME exporters is used as the basis to select the mandatory respondents.
The Department requires that the respondents submit a response to both the quantity and value questionnaire and the separate-rates application by the respective deadlines in order to receive consideration for separate-rate status. Appendix I of this notice contains the quantity and value questionnaire that must be submitted by all NME exporters no later than July 18, 2007. In addition, the Department will post the quantity and value questionnaire along with the filing instructions on the Department's website at
The Department will calculate combination rates for certain respondents that are eligible for a separate rate in this investigation. The Separate-Rates and Combination Rates Bulletin states the following:
{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific
Based upon our examination of the petition on CWP from the PRC, we find that the petition meets the requirements of section 732 of the Act. Therefore, we are initiating an antidumping duty investigation to determine whether imports of CWP from the PRC are being, or are likely to be, sold in the United States at less than fair value. Unless postponed, we will make our preliminary determination no later than 140 calendar days after the date of publication of this initiation notice.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of the petition has been provided to the government of the PRC.
We have notified the ITC of our initiation, as required by section 732(d) of the Act.
The ITC will preliminarily determine, within 25 days after the date on which it receives notice of this initiation, whether there is a reasonable indication that imports of CWP from the PRC are causing material injury, or threatening to cause material injury, to a U.S. industry.
This notice is issued and published pursuant to section 777(i) of the Act.
• Please report quantity on a metric ton basis. If any conversions were used, please provide the conversion formula and source.
• Please report all sales on the same terms, such as “free on board” at port of export.
• All sales values should be reported in U.S. dollars. Please provide any exchange rates used and their respective dates and sources.
• Generally, a U.S. sale is classified as an export price sale when the first sale to an unaffiliated customer occurs before importation into the United States.
• Please include any sales exported by your company directly to the United States.
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please
• Generally, a U.S. sale is classified as a constructed export price sale when the first sale to an unaffiliated customer occurs after importation. However, if the first sale to the unaffiliated customer is made by a person in the United States affiliated with the foreign exporter, constructed export price applies even if the sale occurs prior to importation.
• Please include any sales exported by your company directly to the United States.
• Please include any sales exported by your company to a third-country market economy reseller where you had knowledge that the merchandise was destined to be resold to the United States.
• If you are a producer of subject merchandise, please include any sales manufactured by your company that were subsequently exported by an affiliated exporter to the United States.
• Please
• Further manufacture or assembly (including re-packing) sales (“further manufactured sales”) refers to merchandise that
• Further manufacture or assembly costs include amounts incurred for direct materials, labor and overhead, plus amounts for general and administrative expense, interest expense, and additional packing expense incurred in the country of further manufacture, as well as all costs involved in moving the product from the U.S. port of entry to the further manufacturer.
Import Administration, International Trade Administration, Department of Commerce.
July 5, 2007.
Scott Holland or Brandon Farlander, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone (202) 482-1279 or (202) 482-0182, respectively.
On June 26, 2007, the Department of Commerce (“the Department”) published an extension of the time limit to complete the final results of the administrative review of the antidumping duty order on stainless steel bar from India covering the period February 1, 2005, through January 31, 2006.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of an antidumping duty order for which a review is requested and issue the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within the time period, section 751(a)(3)(A) of the Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days, respectively.
In accordance with 782(i)(3) of the Act, the Department conducted on-site verification of responses submitted by two respondents in this review in May and June 2007. Accordingly, the Department must still issue the verification findings. Therefore, we find that it is not practicable to complete this review within the originally anticipated time limit (
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
July 5, 2007.
Damian Felton, Yasmin Nair or Nancy Decker, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0133, (202) 482-3813 and (202) 482-0196, respectively.
On June 7, 2007, the Department of Commerce (“the Department”) received a petition filed in proper form by the Ad Hoc Coalition for Fair Pipe Imports from China and its individual members (Allied Tube & Conduit; IPSCO Tubulars, Inc.; Northwest Pipe Company; Sharon Tube Company; Western Tube & Conduit Corporation; Wheatland Tube Company; and the United Steelworkers) (collectively, “petitioners”). The Department received timely information from petitioners supplementing the petition on June 15, June 20 and June 25, 2007.
In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (“the Act”), petitioners allege that manufacturers, producers, or exporters of circular welded carbon quality steel pipe (“CWP”) in the People's Republic of China ( the “PRC”), receive countervailable subsidies within the meaning of section 701 of the Act and that such imports are materially injuring, or threatening material injury to, an industry in the United States.
The Department finds that petitioners filed the petition on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C) and (D) of the Act and petitioners have demonstrated sufficient industry support with respect to the countervailing duty investigation (
The scope of this investigation covers certain welded carbon quality steel pipes and tubes, of circular cross-section, and with an outside diameter of 0.372 inches (9.45 mm) or more, but not more than 16 inches (406.4 mm), whether or not stenciled, regardless of wall thickness, surface finish (
Specifically, the term “carbon quality” includes products in which: (a) iron predominates, by weight, over each of the other contained elements; (b) the carbon content is 2 percent or less, by weight; and (c) none of the elements listed below exceeds the quantity, by weight, as indicated:
All pipe meeting the physical description set forth above that is used in, or intended for use in, standard and structural pipe applications is covered by the scope of this investigation. Standard pipe applications include the low-pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing, and as an intermediate product for protection of electrical wiring, such as conduit shells. Structural pipe is used in construction applications.
Standard pipe is made primarily to American Society for Testing and Materials (ASTM) specifications, but can be made to other specifications. Standard pipe is made primarily to ASTM specifications A-53, A-135, and A-795. Structural pipe is made primarily to ASTM specifications A-252 and A-500. Standard and structural pipe may also be produced to proprietary specifications rather than to industry specifications. This is often the case, for example, with fence tubing. Pipe multiple-stenciled to an ASTM specification and to any other specification, such as the American Petroleum Institute (API) API-5L or 5L X-42 specifications, is covered by the scope of this investigation when used in, or intended for use in, one of the standard applications listed above, regardless of the Harmonized Tariff Schedule of the United States (HTSUS) category under which it is entered. Pipe used for the production of scaffolding (but not finished scaffolding) and conduit shells (but not finished electrical conduit) are included within the scope of this investigation.
The scope does not include: (a) pipe suitable for use in boilers, superheaters, heat exchangers, condensers, refining furnaces and feedwater heaters, whether or not cold drawn; (b) mechanical tubing, whether or not cold-drawn; (c) finished electrical conduit; (d) tube and pipe hollows for redrawing; (e) oil country tubular goods produced to API specifications; and (f) line pipe produced to API specifications for oil and gas applications.
The pipe products that are the subject of these investigations are currently classifiable in HTSUS statistical reporting numbers 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. However, the product description, and not the HTSUS classification, is dispositive of whether merchandise imported into the United States falls within the scope of the investigation.
During our review of the petition, we discussed the scope with Petitioners to ensure that it accurately reflects the product for which the domestic industry is seeking relief. During this review, we noted that, while the Department typically prefers to rely upon physical characteristics to determine the scope of product coverage, the scope description proposed by Petitioners relied upon, in part, end-use applications as a method for determining scope coverage. On June 20, 2007, we met with Petitioners to discuss the scope and its reliance upon end-use applications as a method for determining scope coverage.
Pursuant to section 702(b)(4)(A)(ii) of the Act, the Department invited representatives of the Government of the PRC for consultations with respect to the countervailing duty petition. The Department held these consultations in Beijing, China with representatives of the Government of the PRC on June 24, 2007.
Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for (1) at least 25 percent of the total production of the domestic like product and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (“ITC”) is responsible for determining whether “the domestic industry” has been injured and must also determine what constitutes a domestic like product in order to define the industry. While the Department and the ITC must apply the same statutory definition regarding the domestic like product, they do so for different purposes and pursuant to separate and distinct authority.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this subtitle.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
With regard to domestic like product, petitioners do not offer a definition of domestic like product distinct from the scope of the investigation. Based on our analysis of the information presented by petitioners, we have determined that there is a single domestic like product, CWP, which is defined in the “Scope of Investigation” section above, and we have analyzed industry support in terms of the domestic like product.
Our review of the data provided in the petition, the supplemental submission and other information readily available to the Department indicates that petitioners have established industry support. First, the petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (
Because the PRC is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from the PRC materially injure, or threaten material injury to, a U.S. industry.
Petitioners allege that imports of CWP from the PRC are benefitting from countervailable subsidies and that such imports are causing or threatening to cause, material injury to the domestic industry producing CWP. In addition, petitioners allege that subsidized imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.
Petitioners contend that the prices on imports from the PRC do not reflect recent increases in raw material costs, and that large margins of underselling exist, which are causing domestic producers to suffer. Petitioners assert that the industry's injury is evidenced by a decline in production, U.S. shipments, capacity utilization, market share, employment and profitability. The allegations of injury and causation are supported by relevant evidence including U.S. Customs and Border Protection import data, lost sales, employment and pricing information. We have assessed the allegations and supporting evidence regarding material injury and causation and have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.
Section 702(b) of the Act requires the Department to initiate a countervailing duty proceeding whenever an interested party files a petition on behalf of an industry that (1) alleges the elements necessary for an imposition of a duty under section 701(a) of the Act and (2) is accompanied by information reasonably available to the petitioners supporting the allegations. The Department has examined the countervailing duty petition on CWP from the PRC and found that it complies with the requirements of section 702(b) of the Act. Therefore, in accordance with section 702(b) of the Act, we are initiating a countervailing duty investigation to determine whether manufacturers, producers, or exporters of CWP in the PRC receive countervailable subsidies. For a discussion of evidence supporting our initiation determination,
We are including in our investigation the following programs alleged in the petition to have provided countervailable subsidies to producers and exporters of the subject merchandise in the PRC:
1. Government Policy Lending Program
2. Loans and interest subsidies provided pursuant to the Northeast Revitalization Program
3. “Two Free, Three Half” income tax program
4. Income tax exemption for export-oriented foreign investment enterprises (“FIEs”)
5. Corporate income tax refund program for reinvestment of FIE profits in export-oriented enterprises
6. Local income tax exemption and reduction program for “productive” FIEs
7. Reduced income tax rates for FIEs based on location
8. Reduced income tax rate for knowledge or technology intensive FIEs
9. Reduced income tax rate for high or new technology FIEs
10. Preferential tax policies for research and development at FIEs
11. Income tax credits on purchases of domestically produced equipment by domestically-owned companies
12. Income tax credits on purchases of domestically produced equipment by FIEs
13. Program to rebate antidumping legal fees in Shenzen and Zhejiang provinces
14. Funds for “outward expansion” of industries in Guangdong province
15. Export interest subsidy funds for enterprises located in Shenzhen and Zhejiang province
16. Loans pursuant to the Liaoning Province's five-year framework
17. Export payments characterized as VAT rebates
18. VAT and tariff exemptions on imported equipment
19. VAT rebates on domestically produced equipment
20. Exemption from payment of staff and worker benefits for export-oriented enterprises
21. State Key Technology Renovation Program Fund
22. Grants to loss-making state owned enterprises
23. Hot-rolled steel
24. Electricity and natural gas
25. Water
26. Land
27. Zinc
28. Hot-rolled steel
We are postponing our investigation of the following program until such time as we select our respondents because the allegation is company-specific:
1. Loans to uncreditworthy companies
We are not including in our investigation the following programs alleged to benefit producers and exporters of the subject merchandise in the PRC:
1.
Petitioners allege that the GOC's policy of maintaining an undervalued RMB is an export subsidy that provides either a direct transfer of funds or the provision of a good or service at less than adequate remuneration. Petitioners have not sufficiently alleged the elements necessary for the imposition of a countervailing duty and did not support the allegation with reasonably available information. Therefore, we do not plan to investigate the currency manipulation program.
2.
Petitioners allege that “enterprises making little profit” are a
3.
Petitioners allege that “domestic” companies (
4.
Petitioners allege that CWP producers have been exempted from the export taxes that were imposed on 142 steel products effective June 1, 2007. Petitioners have not sufficiently alleged, on the basis of reasonably available information, that CWP producers have been relieved from paying export taxes that would otherwise have been due. Consequently, we do not plan to investigation the exemption of CWP producers from export taxes.
5.
Petitioners allege that because the GOC did not provide the criteria for awarding funds under this program when they notified it to the Word Trade Organization, funds are awarded on a discretionary basis and, hence, specific. Petitioners have not adequately explained how this program is specific pursuant to section 771(5A)(D)(i) of the Act. Therefore, we do not plan to investigate funds for technology and research.
6.
Petitioners allege that the GOC's policy of combining steel companies results in the provision of productive assets to the combined companies at less than adequate remuneration. Petitioners have not sufficiently alleged the elements necessary for the imposition of a countervailing duty and did not support the allegation with reasonably available information. Consequently, we do not plan to investigate this program.
7.
As part of their Government Policy Lending allegation, petitioners include loan guarantees. To support this allegation, they point to a provincial guarantee program. However, the supporting evidence indicates that this program is for small and medium size enterprises, a non-specific group under our regulations.
8.
Petitioners identify a loan to the Huludao Economic Development Zone and suggest that some portion of the loan would likely have gone to a CWP producer in the zone. However, the supporting information indicates that the money was used to support infrastructure development within the zone. Therefore, we do not plan to investigate the loan to Huludao Economic Development Zone program.
For further information explaining why the Department is not initiating an investigation of these programs,
Petitioners contend that there is no statutory bar to applying countervailing duties to imports from the PRC or any other non-market economy country. Citing
The Department has treated the PRC as an NME country in all past antidumping duty investigations and administrative reviews. In accordance with section 771(18)(C)(i) of the Act, any determination that a country is an NME country shall remain in effect until revoked by the administering authority.
In accordance with section 702(b)(4)(A)(i) of the Act, a copy of the public version of the petition has been provided to the Government of the PRC. As soon as and to the extent practicable, we will attempt to provide a copy of the public version of the petition to each exporter named in the petition, consistent with 19 CFR 351.203(c)(2).
We have notified the ITC of our initiation, as required by section 702(d) of the Act.
The ITC will preliminarily determine, within 25 days after the date on which it receives notice of the initiation, whether there is a reasonable indication that imports of subsidized CWP from the PRC are causing material injury, or threatening to cause material injury, to a U.S. industry.
This notice is issued and published pursuant to section 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
Notice is hereby given that on June 12, 2007, NMFS issued Permit 1613 for incidental take of threatened and endangered species, to the Green Diamond Resource Company, of northern California, pursuant to the Endangered Species Act of 1973, as amended. Copies of Incidental Take Permit 1613 and associated decision documents are available upon request.
If you would like copies of any of the above documents, please contact the Protected Resources Division of NOAA's National Marine Fisheries Service, Southwest Region, 1655 Heindon Road, Arcata, CA 95521 (ph: 707-825-5163, fax: 707-825B-840).
John P. Clancy at the above Arcata, California, address, telephone number (707-825-5175), or e-mail,
Section 9 of the Endangered Species Act (Act) and Federal regulations prohibit take of fish and wildlife species listed as endangered or threatened. Under the Act, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS has further defined “harm” as an act which actually kills or injures fish or wildlife, and emphasizes that such acts may include “significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.” NMFS may, under limited circumstances, issue permits to authorize take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing permits for the incidental taking of threatened and endangered species are found in 50 CFR 222.307.
On June 12, 2007, NMFS issued Permit 1613 to the Green Diamond Resource Company for the incidental take of threatened and endangered species, pursuant to section 10(a)(1)(B) of the Act. Permit 1613 was issued after the following determinations were made: the permit application was submitted in good faith; all permit issuance criteria were met, including the requirement that granting the permit will not jeopardize the continued existence of the species; and the permit was consistent with the Act and applicable regulations, including a thorough review of the environmental effects of the action and alternatives, pursuant to the National Environmental Policy Act of 1969. Permit 1613 authorizes incidental take of fish in two Evolutionarily Significant Units (ESUs) and one Distinct Population Segment (DPS) listed under the Act: California Coastal Chinook salmon (
Copies of Permit 1613 and associated documents are available upon request. Decision documents for Permit 1613 include Findings and Recommendations; a Biological Opinion; and a Record of Decision.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that Permit No. 881-1890 for conduct of research on Steller sea lions (Eumetopias jubatus) in Alaska, held by The Alaska SeaLife Center (ASLC), Seward, AK, has been amended.
The permit amendment 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;
Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7221; fax (907)586-7249.
Tammy Adams or Amy Sloan (301)713-2289.
On February 15, 2007, notice was published in the
The permit issued to ASLC authorized activities to conduct population monitoring and studies on health, nutrition, and foraging behavior of free ranging Steller sea lions in the Gulf of Alaska and the Aleutian Islands (west of 144o West), and on temporarily captive female Steller sea lions at the ASLC. The permit has been amended to allow population monitoring and studies on health, nutrition, and foraging behavior of free ranging Steller sea lions east of 144o West, and on temporarily captive male Steller sea lions at the ASLC.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Issuance of the permit, as required by the ESA, was based on a finding that such permit: (1) was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of Statistical Committee (SSC) meeting via conference call.
The Gulf of Mexico Fishery Management Council (Council) will convene its SSC via conference call to discuss planning of an amendment.
The conference call will be held on July 26, 2007.
The meeting will be held via conference call and listening stations will be available. For specific locations, see
Mr. Wayne Swingle, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The Council is preparing an amendment which will require reductions in the harvest of some grouper based on a recent assessment of gag grouper (SEDAR 10 Assessment and supplemental reviews). The SSC and the Special SSC will review certain aspects of that assessment and provide recommendations to the Council on the appropriate benchmark assessment to use to develop the regulations.
The Council is preparing an amendment which will require persons to obtain a permit from NMFS to participate in aquaculture by constructing an aquaculture facility in the exclusive economic zone (EEZ) of the Gulf of Mexico. Each application for a permit must comply with many permit conditions related to record keeping and operation of the facility. These permit conditions will assure the facility has a minimal affect on the environment and on other fishery resources. Compliance with the conditions will be evaluated annually for the duration of the permit as the basis for renewal of the permit for the next year.
The conference call will begin at 10 a.m. EDT and conclude no later than 12:30 p.m. EDT.
Listening stations are available at the following locations:
The Gulf Council office (see
4700 Avenue U, Galveston, TX 77551, Contact: Rhonda O'Toole, (409) 766-3500;
263 13th Avenue South, St. Petersburg, FL 33701, Contact: Joyce Mochrie, (727) 824-5301; and
75 Virginia Beach Dr., Miami, FL 33149, Contact: Alex Chester, (305) 361-4259.
Copies of any related meeting materials can be obtained by calling the Council office at (813) 348-1630.
These meetings are physically accessible to people with disabilities. Requests for sign language
National Oceanic and Atmospheric Administration, Commerce.
Notice of public meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Sea Grant Review Panel. The meeting will have two main purposes. Panel members will discuss and provide advice on the National Sea Grant College Program in the areas of program evaluation, strategic planning, education and extension, science and technology programs, and other matters as described below:
The announced meeting is scheduled for: Monday, July 16, 2007.
Conference Call. Public access is available at SSMC Bldg 3, Room # 5836, 1315 East-West Highway, Silver Spring, MD.
Mr. Joseph Brown, National Sea Grant College Program, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 11717, Silver Spring, Maryland 20910, (301) 734-1088.
The Panel, which consists of a balanced representation from academia, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Pub. L. 94-461, 33 U.S.C. 1128). The Panel advises the Secretary of Commerce and the Director of the National Sea Grant College Program with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice. The agenda for the meeting is as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council will hold a meeting of its Limited Access Privilege (LAP) Program Exploratory Workgroup in Charleston, SC.
The meeting will take place August 1-2, 2007. See
The meeting will be held at the Hilton Garden Inn, Charleston Airport, 5265 International Boulevard, North Charleston, SC 29418; telephone: (877) 782-9444 or (843) 308-9330; fax: (843) 308-9331.
Kim Iverson, Public Information Officer,; telephone: (843) 571-4366 or toll free (866) SAFMC-10; fax: (843) 769-4520; email:
Members of the LAP Program Exploratory Workgroup will meet from 1 p.m. to 5 p.m. on August 1, 2007, and from 8:30 a.m. to 3 p.m. on August 2, 2007. The meeting is being convened to address issues relevant to the Council's consideration of implementing a Limited Access Privilege Program for the commercial snapper grouper fishery in the South Atlantic region.
Items for discussion by the Workgroup include: (1) Presentations and discussion with fishermen from the Gulf of Mexico regarding the implementation of Limited Access Privilege Programs in the Gulf region, and (2) discussion of design characteristics of LAP Programs for the South Atlantic. These characteristics include options for caps on ownership, species to include in a LAP Program, and underage and overage allowances.
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.
This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
Note: The times and sequence specified in this agenda are subject to change.
Consumer Product Safety Commission.
Notice of Systems of Records.
The Consumer Product Safety Commission (CPSC or Commission) is publishing notice of two new systems of records, CPSC-25, FOIA Express System of Records (FOIAXpress) and CPSC-26, Learning Management System. Comments must be received on or before September 4, 2007.
Written comments should be e-mailed to the Office of the Secretary at
Linda L. Glatz, Division of Policy and Planning, Office of Information Technology and Technology Services, Consumer Product Safety Commission,
CPSC-25, FOIAXpress will be used to maintain records of correspondence and email requests submitted to the Commission under the Freedom of Information Act, 5 U.S.C. 552, or Privacy Act, 5 U.S.C. 552a, so that requests can be tracked and responded to accurately and in a timely manner. CPSC-26, Learning Management System, will be used to submit employee training reports as required by the Office of Personnel Management under 5 CFR 410.701.
These systems of records will become effective September 4, 2007 unless comments are received which justify a contrary determination. The Congress and the Office of Management and Budget have been notified of these systems.
CPSC-25, FOIAXpress.
Division of Information Management, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
Individuals who request information from the Consumer Product Safety Commission pursuant to the Freedom of Information Act or Privacy Act.
Correspondence and e-mail requests for information submitted to the Commission which may contain personal information about individuals, e.g., name, address, city, state, telephone number, fax and e-mail address and other pertinent information related to processing and responding to their FOIA and/or Privacy Act request.
5 U.S.C. 552 and 5 U.S.C. 552a.
These records are used by Commission staff responding to the request for information so that requests can be tracked and responded to accurately and in a timely manner.
1. These records are used to record the requesting individual's address so a response can be forwarded.
2. These records are used to record the specific information that the individual is seeking so that the information we provide is responsive to the request.
3. Staff will search the records to determine which requests have been filled and which are still pending.
4. CPSC will use these records to prepare an annual report of FOIA activities at the end of each fiscal year and submit the report to the Attorney General, through the Department of Justice, Office of Information and Privacy.
Records will be entered into a database tracking system and given a request number. All information will be stored electronically and paper requests will eventually be destroyed.
Records will mainly be retrieved using the FOIA request number, however, records may also be retrieved by searching on a requester's last name, a company name or entry date and closed date.
Computer records are protected by passwords available only to staff with a need to know.
Records will be stored electronically for 2 to 6 years, contingent upon the National Archives Records Administration (NARA's General Records Schedule 14).
Todd A. Stevenson, Director, Division of Information Management, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
Freedom of Information/Privacy Act Officer, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
Same as notification.
Same as notification.
Personal information in these records is obtained from the individual requesting the information under FOIA or Privacy Act.
CPSC-26, Learning Management System.
Division of Information Management, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
CPSC employees.
Information concerning training courses that an employee takes during the year. The employee enters a training request by entering their social security number, date of birth, course title, vendor name, course location and other OPM specific data fields that pertain to the collection of training records.
5 U.S.C. Chapter 41—Training; 5 CFR part 410.
These records are used by Commission to respond to Office of Personnel Management's requirements that all federal agencies submit training reports on a monthly basis. The reports must include employee social security number and date of birth.
1. These records are used by CPSC to record training information for all employees.
2. CPSC will use these records to submit monthly training reports to OPM.
Records will be entered into a database tracking system and stored electronically.
Records will mainly be retrieved using the employee's last name.
Computer records are protected by passwords available only to staff with a need to know.
Training records will be stored electronically for five years.
Donna Simpson, Director, Office of Human Resources, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
Freedom of Information/Privacy Act Officer, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814.
Same as notification.
Same as notification.
Personal information in these records is obtained from the individual requesting training.
Consumer Product Safety Commission.
Request for comments.
The staff of the Consumer Product Safety Commission (Commission or CPSC) is requesting interested parties to comment about the CPSC's agenda and priorities for Commission attention during fiscal year 2009, which begins October 1, 2008, and about revisions to its current strategic plan, the revised version of which will be submitted to Congress in the fall of 2007 pursuant to the Government Performance and Results Act (GPRA). Written comments concerning the Commission's agenda and priorities for fiscal year 2009 and revisions to the strategic plan become part of the public record.
Written comments from members of the public must be received by the Office of the Secretary not later than July 20, 2007.
Written comments should be captioned “Agenda, Priorities and Strategic Plan” and e-mailed to
For a copy of the current strategic plan, e-mail, call or write Todd A. Stevenson, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; e-mail
Section 306(d) of the Government Performance and Results Act (GPRA) (5 U.S.C. 306(d)) requires the Commission to seek comments from interested parties as part of the process of revising the current CPSC strategic plan. The strategic plan is a GPRA requirement. The revised plan will provide an overall guide to the formulation of future agency actions and budget requests.
The Office of Management and Budget requires all Federal agencies to submit their budget requests 13 months before the beginning of each fiscal year. The draft CPSC budget request for fiscal year 2009, which begins on October 1, 2008, is being formulated now by staff. The final budget request must reflect the contents of the agency's strategic plan developed under GPRA.
The Commission staff desires to obtain the views of a wide range of interested persons including consumers; manufacturers, importers, distributors, and retailers of consumer products; members of the academic community; consumer advocates; and health and safety officers of state and local governments on both the fiscal year 2009 budget and potential revisions to the strategic plan.
Written comments on the Commission's current strategic plan, and agenda and priorities for fiscal year 2009, should be received in the Office of the Secretary not later than July 20, 2007. Persons who desire a hard copy of the current strategic plan may contact the Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, e-mail
The CPSC's FY 2008 budget request that is currently pending before Congress is available at
Office of Special Education and Rehabilitative Services, Department of Education.
Notice of final priority and definitions.
The Assistant Secretary for Special Education and Rehabilitative Services (OSERS) announces a final priority and definitions under the Special Demonstration Programs administered by the Rehabilitation Services Administration (RSA). The Assistant Secretary may use the priority and definitions for competitions in fiscal year (FY) 2007 and later years. We intend for the priority to support projects that demonstrate the use of promising practices in collaborative transition planning and service delivery to improve the postsecondary education and employment outcomes of youth with disabilities.
Edwin Powell, U.S. Department of Education, 400 Maryland Avenue, SW., room 5038, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7505 or via Internet:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under
The purpose of the Special Demonstration Programs is to provide financial assistance to projects that expand and improve the provision of vocational rehabilitation (VR) and other services for individuals with disabilities authorized under the Rehabilitation Act of 1973, as amended (Rehabilitation Act).
We published a notice of proposed priority and definitions (NPP) for this program in the
More specifically, the background section of the NPP described the challenges that youth with disabilities face as they transition to adult life and how too many of these youth experience difficulties in achieving successful post-school outcomes. We explained the importance of the State VR programs in assisting youth with disabilities to prepare for education, training, and employment opportunities beyond high school. The NPP also included a discussion of the need for programs that build on collaborative State and local efforts and use promising practices to improve the postsecondary education and employment outcomes of youth with disabilities.
This notice of final priority and definitions (NFP) contains several changes from the NPP. These changes are explained in the following section,
In response to our invitation in the NPP, 75 parties submitted comments on the proposed priority and definitions. An analysis of the comments and changes in the priority and definitions since publication of the NPP follows.
Generally, we do not address technical and other minor changes and suggested changes the law does not authorize us to make under the applicable statutory authority.
The IDEA regulations require transition services to be included in the first individualized education program (IEP) to be in effect when the child turns 16, or younger if determined appropriate by the IEP Team (34 CFR 300.320(b)). We recognize that some States may have regulations that require transition services to be provided to youth under the age of 16. We also recognize that States have the option of providing transition services to youth with disabilities over the age of 22, if permitted by State regulations. Despite these considerations, we believe that it is important to designate a specific age range to ensure that all of these projects serve a comparable population, thus providing for consistency among the projects that will allow for valid comparisons among project results for evaluation purposes. Furthermore, we have not incorporated language from the definition of
This notice does
This priority supports projects that demonstrate the use of promising practices of collaborative transition planning and service delivery in improving the postsecondary education and employment outcomes of youth with disabilities.
In order to meet this priority, an applicant must—
(1) Provide an assurance that the State has an interagency transition taskforce that provides input in the development of the application and that the interagency transition taskforce will—
(a) Play an advisory role in the operation of the project;
(b) Assist in the development of project goals;
(c) Review project findings; and
(d) Assist in the dissemination of project findings;
(2) Demonstrate that the project for which it seeks funding will—
(a) Implement a model transition program that is designed to improve post-school outcomes of students with disabilities through the use of local interagency transition teams and the implementation of a coordinated set of promising practices and strategies. The activities must be implemented at a minimum of two sites to be carried out in coordination with the applicable LEA or LEAs;
(b) Provide transition services to youth with disabilities, including—
(i) Individualized VR services to youth with disabilities who are eligible for such services consistent with 34 CFR 361.42 and designed to achieve an employment outcome as defined in 34 CFR 361.5(b)(16); and
(ii) Services to groups of youth with disabilities, through methods such as workshops and seminars, to support the transition of such youth to post-school and employment outcomes;
(c) Provide training and technical assistance to LEAs and State VR personnel responsible for planning and providing transition services to youth with disabilities;
(d) Conduct outreach activities that assist in the identification of youth with disabilities who are in need of VR services;
(e) Analyze and use the secondary education and post-school outcome data of youth with disabilities collected by the SEA and other relevant data to assist the project to improve transition services and post-school outcomes;
(f) Conduct an evaluation of the project's performance, including an evaluation of the effectiveness of the practices and strategies implemented by the project in achieving project goals, particularly post-school outcomes;
(3) Provide evidence that the LEAs responsible for providing transition services to children with disabilities under the IDEA in the local sites proposed by the applicant will participate in carrying out project activities (e.g., letter of support); and
(4) Provide a description of—
(a) The State interagency transition taskforce members, including their roles and responsibilities with respect to transition planning and the provision of services;
(b) The local interagency team members, including their roles and
(c) The coordinated set of promising practices that it proposes to provide, which, at a minimum, must include student-focused planning, career preparatory and pre-employment experiences, youth development activities, and practices to enhance family involvement;
(d) The evaluation plan, including project goals, measurable objectives, and operational definitions and the data to be collected and how it will be analyzed. At a minimum these data must include: the disability or disabilities of the youth, reported consistent with the disability coding system used by State VR agencies; high school exit data (academic achievement and functional performance data, high school graduation outcomes, including type of diploma received); student's post-school goals; services provided; postsecondary education outcomes; employment outcomes (type of employment, wages and earnings, hours worked, weeks of employment); and public benefits received such as Supplemental Security Income and Social Security Disability Insurance; and
(e) A plan for the systematic dissemination of project findings and knowledge gained that will assist State and local agencies in adapting or replicating the transition model carried out by the project.
(1)
(2)
(a) The group must, at a minimum, include one or more representatives of the State VR agency (including, where applicable, the State VR agency for the Blind), SEA, State Labor and Employment/Workforce agency, Social Security Administration, State developmental disabilities agency, and the State mental health agency. The group also must include individuals to represent the perspectives of business and industry and transitioning youth with disabilities.
(b) The group also may include representatives from other relevant entities such as the State Rehabilitation Council (if applicable in the State), State Independent Living Council, State Developmental Disabilities and Mental Health Planning Councils, postsecondary educational institutions, and transition service providers, youth with disabilities, parents of transitioning youth with a disability, and other stakeholders.
(3)
(4)
(5)
(6)
This NFP has been reviewed in accordance with Executive Order 12866. Under the terms of the Executive order, we have assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the NFP are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.
In assessing the potential costs and benefits—both quantitative and qualitative—of this NFP we have determined that the benefits of the priority and related definitions justify the costs.
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
You may view this document, as well as all other Department of Education
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
This priority is:
The Department is not bound by any estimates in this notice.
1.
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application package from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.235U.
Individuals with disabilities can obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the person or team listed under
2.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a.
Applications for grants under the Special Demonstration Programs—Model Demonstration Projects to Improve the Postsecondary and Employment Outcomes of Youth with Disabilities, CFDA Number 84.235U, must be submitted electronically using the Government-wide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for Special Demonstration Programs—Model Demonstration Projects to Improve the Postsecondary and Employment Outcomes of Youth with Disabilities at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• You must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Edwin Powell, U.S. Department of Education, 400 Maryland Avenue, SW., room 5038, PCP, Washington, DC 20202-2800. Fax: (202) 245-7505.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application on or before the application deadline date, to the Department at the applicable following address:
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.235U), 550 12th Street, SW., Room 7041, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
Edwin Powell, U.S. Department of Education, 400 Maryland Avenue, SW., room 5038, PCP, Washington, DC 20202-2800. Telephone: (202) 245-7505 or by e-mail:
If you use a TDD, call the FRS, toll free, at 1-800-877-8339.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
(b) Any community-based organization may apply individually or as a part of a consortium with one or more eligible community-based organizations. (34 CFR 75.127)
An applicant must include documentation, including proof of its non-profit status in accordance with 34 CFR 75.51, in its application showing that it and, if applicable, consortium members are eligible according to the requirements in paragraphs (a) and (b) of the
The Department is not bound by any estimates in this notice.
For the convenience of applicants, we describe in this notice the major statutory changes made to the Carl D. Perkins Vocational and Technical Education Act of 1998 (Perkins III), which was amended by the Act, that affect NHCTEP.
(a)
(b)
(c)
(d)
Refer to the
(a)
Under this competition the Secretary awards grants to carry out projects that—
(1) Provide organized educational activities offering a sequence of courses that—
(i) Provide individuals with coherent and rigorous content aligned with challenging academic standards and relevant technical knowledge and skills needed to prepare for further education and careers in current or emerging professions;
(ii) Provide technical skill proficiency, an industry-recognized credential, a certificate, or an associate degree; and
(iii) Include competency-based applied learning that contributes to the academic knowledge, higher-order reasoning and problem-solving skills, work attitudes, general employability skills, technical skills, and occupation-specific skills, and knowledge of all aspects of an industry, including entrepreneurship, of an individual.
Projects may include prerequisite courses (other than remedial courses) that meet the definitional requirements of section 3(5)(A) of the Act. (20 U.S.C. 2302(5)(A)) In addition, at the secondary level, coherent and rigorous academic curriculum must be aligned with challenging academic content standards and student achievement standards in reading/language arts and mathematics that the State in which the applicant is located has established under the ESEA. Contacts for State NCLB programs may be found on the Internet at:
(2) Develop new programs, services, or activities or improve or expand existing programs, services, or activities that are consistent with the purposes of the Act. In other words, the Department will support “expansions” or “improvements” that include, but are not necessarily limited to, the expansion of effective programs or practices; upgrading of activities, equipment, or materials; increasing staff capacity; adoption of new technology; modification of curriculum; or implementation of new policies to improve program effectiveness and outcomes; and
(3) Funds a career and technical education program, service, or activity that—
(i) Is a new program, service, or activity that was not provided by the applicant during the instructional term (a defined period, such as a semester, trimester, or quarter, within the academic year) that preceded the request for funding under NHCTEP;
(ii) Will improve or expand an existing career and technical education program; or
(iii) Inherently improves career and technical education.
A program, service, or activity “inherently improves career and technical education” if it—
(a) Develops new career and technical education programs of study that will be approved by the appropriate accreditation agency;
(b) Strengthens the rigor of the academic and career and technical components of funded programs;
(c) Uses curriculum that is aligned with industry-recognized standards and will result in students attaining industry-recognized credentials, certificates, or degrees;
(d) Integrates academics (other than remedial courses) with career and technical education programs through a coherent sequence of courses to ensure learning in the core academic and career and technical subjects;
(e) Links career and technical education at the secondary level with career and technical education at the postsecondary level and facilitates students' pursuit of a baccalaureate degree;
(f) Expands the scope, depth, and relevance of curriculum, especially content that provides students with a comprehensive understanding of all aspects of an industry and a variety of hands-on, job-specific experiences; and
(g) Offers—
(1) Work-related experience, internships, cooperative education, school-based enterprises, entrepreneurship, community service learning, and job shadowing that are related to career and technical education programs;
(2) Coaching/mentoring, support services, extra help for students after school, on the
(3) Career guidance and academic counseling for students participating in career and technical education programs under NHCTEP;
(4) Placement services for students who have successfully completed career and technical education programs and attained a technical skill proficiency that is aligned with industry-recognized standards;
(5) Professional development programs for teachers, counselors, and administrators;
(6) Strong partnerships among grantees and local educational agencies, postsecondary institutions, community leaders, adult education providers, and, as appropriate, other entities, such as employers, labor organizations, parents, and local partnerships, to enable students to achieve State academic standards and career and technical skills;
(7) The use of student assessment and evaluation data to improve continually instruction and staff development; or
(8) Research, development, demonstration, dissemination, evaluation and assessment, capacity-building, and technical assistance related to career and technical education programs.
(b)
(1) A portion of an award under this program may be used to provide stipends to help students meet the costs of participation in a NHCTEP project.
(2) To be eligible for a stipend a student must—
(i) Be enrolled in a career and technical education project funded under this program;
(ii) Be in regular attendance in a NHCTEP project and meet the training institution's attendance requirement;
(iii) Maintain satisfactory progress in his or her program of study according to the training institution's published standards for satisfactory progress; and
(iv) Have an acute economic need that—
(A) Prevents participation in a project funded under this program without a stipend; and
(B) Cannot be met through a work-study program.
(3) The amount of a stipend is the greater of either the minimum hourly wage prescribed by State or local law, or the minimum hourly wage established under the Fair Labor Standards Act.
(4) A grantee may award a stipend only if the stipend combined with other resources the student receives does not exceed the student's financial need. A student's financial need is the difference between the student's cost of attendance and the financial aid or other resources available to defray the student's cost of attending a NHCTEP project.
(5) To calculate the amount of a student's stipend, a grantee would multiply the number of hours a student actually attends career and technical education instruction by the amount of the minimum hourly wage that is prescribed by State or local law or by the minimum hourly wage that is established under the Fair Labor Standards Act.
If a grantee uses the Fair Labor Standards Act minimum hourly wage of $5.15 and a student attends classes for 20 hours a week, the student's stipend would be $103 for the week during which the student attends classes ($5.15 × 20 = $103).
Grantees must maintain records that fully support their decisions to award stipends to students, as well as the amounts that are paid, such as proof of a student's enrollment in the NHCTEP project, stipend applications, timesheets showing the number of hours of attendance that are confirmed in writing by an instructor, student financial status information, and evidence that a student could not participate in the NHCTEP project without a stipend. (20 U.S.C. 1232f; 34 CFR 75.700-75.702; 75.730; and 75.731)
(6) An eligible student may earn a stipend when taking a course for the first time, although a stipend may not be provided to a student who has already taken, completed, and had the opportunity to benefit from a course and is merely repeating the course.
(7) An applicant must include, in its application, the procedure it intends to use to determine student eligibility for stipends and stipend amounts, and its oversight procedures for the awarding and payment of stipends.
(c)
(1) The recipient of the direct assistance is an individual who is a member of a special population and who is participating in a NHCTEP project.
(2) The direct assistance is needed to address barriers to the individual's successful participation in a NHCTEP project.
(3) The direct assistance is part of a broader, more generally focused program or activity to address the needs of an individual who is a member of a special population.
Direct assistance to individuals who are members of special populations is not, by itself, a “program or activity for special populations.”
(4) The grant funds used for direct assistance must be expended to supplement, and not supplant, assistance that is otherwise available from non-Federal sources. For example, generally, a community-based organization could not use NHCTEP funds to provide child care for single parents if non-Federal funds previously were made available for this purpose, or if non-Federal funds are used to provide child care services for single parents participating in non-career and technical education programs and these services otherwise would have been available to career and technical education students in the absence of NHCTEP funds.
(5) In determining how much of the NHCTEP grant funds it will use for direct assistance to an eligible student, a grantee considers whether the specific services to be provided are a reasonable and necessary cost of providing career and technical education programs for special populations. However, the Secretary does not envision a circumstance in which it would be a reasonable and necessary expenditure of NHCTEP project funds for a grantee to utilize a majority of a project's budget to pay direct assistance to students, in lieu of providing the students served by the project with career and technical education.
(a)
(b)
(c)
The Secretary cautions applicants not to plan to use funds under NHCTEP to replace otherwise available non-Federal funding for “direct assistance to students,” (as defined elsewhere in this notice) and family assistance programs. For example, NHCTEP funds must not be used to supplant non-Federal funds to pay the costs of students' tuition, dependent care, transportation, books, supplies, and other costs associated with participation in a career and technical education program.
Further, funds under NHCTEP may not be used to replace Federal student financial aid. The Secretary wishes to highlight that the Act does not authorize the Secretary to fund projects that serve primarily as entities through which students may apply for and receive tuition and other financial assistance.
To ensure the high quality of NHCTEP projects and the achievement of the goals and purposes of section 116(h) of the Act, each grantee must budget for and conduct an ongoing evaluation of the effectiveness of its program. An independent evaluator must conduct the evaluation. The evaluation must—
(a) Be appropriate for the project and be both formative and summative in nature; and
(b) Include—
(1) Collection and reporting of the performance measures for NHCTEP that are identified in the Performance Measures section of this notice; and
(2) Qualitative and quantifiable data with respect to—
(i) Academic and career and technical competencies demonstrated by the participants and the number and kinds of academic and work credentials acquired by individuals, including participation in programs providing skill proficiency assessments, industry certifications, or training at the associate degree level that is articulated with an advanced degree option;
(ii) Enrollment, completion, and placement of participants by gender, for each occupation for which training was provided;
(iii) Job or work skill attainment or enhancement, including participation in apprenticeship and work-based learning programs, and student progress in achieving technical skill proficiencies necessary to obtain employment in the field for which the student has been prepared, including attainment or enhancement of technical skills in the industry the student is preparing to enter;
(iv) Activities during the formative stages of the project, to help guide and improve the project, as well as a summative evaluation that includes recommendations for disseminating information on project activities and results;
(v) The number and percentage of students who obtained industry-recognized credentials, certificates, or degrees;
(vi) The outcomes of students' technical assessments, by type and scores, if available;
(vii) The rates of attainment of a proficiency credential or certificate, in conjunction with a secondary school diploma;
(viii) The effectiveness of the project, including a comparison between the intended and observed results and a demonstration of a clear link between the observed results and the specific treatment given to project participants;
(ix) The extent to which information about or resulting from the project was disseminated at other sites, such as through the grantee's development and use of guides or manuals that provide step-by-step directions for practitioners to follow when initiating similar efforts; and
(x) The impact of the project, e.g., follow-up data on students' employment, sustained employment, promotions, further and continuing education or training, or the impact the project had on Native Hawaiian economic development or career and technical education activities.
(a) Offer a sequence of courses that—
(1) Provides individuals with coherent and rigorous content aligned with challenging academic standards and relevant technical knowledge and skills needed to prepare for further education and careers in current or emerging professions;
(2) Provides technical skills proficiency, an industry-recognized credential, a certificate, or an associate degree; and
(3) May include prerequisite courses (other than remedial courses) that meet the requirements of this definition; and
(b) Include competency-based applied learning that contributes to the academic knowledge, higher-order reasoning and problem-solving skills, work attitudes, general employability skills, technical skills, and occupation-specific skills, and knowledge of all aspects of an industry, including entrepreneurship, of an individual. (20 U.S.C. 2302(5))
(a) Whose native language is a language other than English; or
(b) Who lives in a family or community environment in which a language other than English is the dominant language. (20 U.S.C. 2302(16))
(a) Individuals with disabilities;
(b) Individuals from economically disadvantaged families, including foster children;
(c) Individuals preparing for non-traditional fields;
(d) Single parents, including single pregnant women;
(e) Displaced homemakers; and
(f) Individuals with limited English proficiency. (20 U.S.C. 2302(29))
The Department is not bound by any estimates in this notice.
1.
(b) Any community-based organization may apply individually or as a part of a consortium with one or more eligible community-based organizations. (34 CFR 75.127)
An applicant must include documentation, including proof of its non-profit status in accordance with 34 CFR 75.51, in its application showing that it and, if applicable, consortium members are eligible according to the requirements in paragraphs (a) and (b) of the
2.
1.
You may also obtain an application package via the Internet from the following address:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain a copy of the application package in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
The page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the résumés, the bibliography, the letters of support, or documentation of the applicant's eligibility. However, you must include all of the application narrative in Part III.
Our reviewers will not read any pages of your application that—
• Exceed the page limit if you apply these standards; or
• Exceed the equivalent of the page limit if you apply other standards.
3.
Applications for grants under this program may be submitted electronically using the Grants.gov Apply site (Grants.gov), or in paper format by mail or hand delivery. For information (including dates and times) about how to submit your application electronically, or by mail or hand delivery, please refer to section IV. 6.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
Applications for grants under this competition may be submitted electronically or in paper format by mail or hand delivery.
a.
To comply with the President's Management Agenda, we are participating as a partner in the Governmentwide Grants.gov Apply site. NHCTEP, CFDA Number 84.259A, is included in this project. We request your participation in Grants.gov.
If you choose to submit your application electronically, you must use the Governmentwide Grants.gov Apply site at
You may access the electronic grant application for NHCTEP at
Please note the following:
• Your participation in Grants.gov is voluntary.
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not consider your application if it is date and time stamped by the Grants.gov system later than 4:30 p.m., Washington, DC time, on the application deadline date. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov at
• To submit your application via Grants.gov, you must complete all steps in the Grants.gov registration process (see
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you submit your application in paper format.
• If you submit your application electronically, you must submit all documents electronically, including all information you typically provide on the following forms: Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications. Please note that two of these forms—the SF 424 and the Department of Education Supplemental Information for SF 424—have replaced the ED 424 (Application for Federal Education Assistance).
• If you submit your application electronically, you must attach any narrative sections of your application as files in a .DOC (document), .RTF (rich text), or .PDF (Portable Document) format. If you upload a file type other than the three file types specified in this paragraph or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by e-mail. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30 p.m., Washington, DC time, on the application deadline date, please contact the person listed elsewhere in this notice under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
b.
If you submit your application in paper format by mail (through the U.S. Postal Service or a commercial carrier), you must mail the original and two
Regardless of which address you use, you must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you submit your application in paper format by hand delivery, you (or a courier service) must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center,
The Application Control Center accepts hand deliveries daily between 8 a.m. and 4:30 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
(1)
(a)
(1) The extent to which the design of the proposed project is appropriate to and will successfully address the needs of the target population or other identified needs (as evidenced by data such as local labor market demand, occupational trends, and surveys). (5 points)
(2) The extent to which goals, objectives, and outcomes are clearly specified and measurable (for example, we look for clear descriptions of proposed student career and technical education activities; recruitment and retention strategies; expected enrollments, completions, and student placements in jobs, military specialties, and continuing education/training opportunities; the number of teachers, counselors, and administrators to be trained; and identification of requirements for each program of study to be provided under the project, including related training areas and a description of performance outcomes). (10 points)
(3) The extent to which the proposed project will establish linkages with other appropriate agencies (e.g. community, State, and other Federal resources) and organizations providing services to the target population in order to improve services to students and strengthen the proposed project. (5 points)
(4) The extent to which the services to be provided by the proposed project will create and offer activities that focus on improving the skills necessary to gain employment in high-skill, high-wage, and high-demand occupations, in emerging fields, or in a specific career field. (5 points)
(5) The extent to which the services proposed in the project will create opportunities for students to acquire skills identified by the State at the secondary level or by industry-recognized career and technical education programs for licensure, degree, certification, or as required by a career or profession. (5 points)
(6) The extent to which the project will provide opportunities for high-quality training or professional development services that— (5 points)
(i) Are of sufficient quality, intensity, and duration to lead to improvements in practice among instructional personnel;
(ii) Will improve and increase instructional personnel's knowledge and skills to help students meet challenging and rigorous academic and career and technical skill proficiencies;
(iii) Will advance instructional personnel's understanding of effective instructional strategies that are supported by scientifically-based research; and
(iv) Include professional development plans that clearly address ways in which learning gaps will be addressed and how continuous review of performance will be conducted to identify training needs. (5 points)
(b)
(1) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and the milestones and performance standards for accomplishing project tasks. (5 points)
(2) The extent to which the time commitments of the project director and other key project personnel, including instructors, are appropriate and adequate to meet the objectives of the proposed project. (5 points)
(3) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (5 points)
(c)
(1) The extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. (5 points)
(2) The qualifications, including relevant training, expertise, and experience, of the project director. (5 points)
(3) The qualifications, including relevant training, expertise, and
(4) The qualifications, including training, expertise, and experience, of project consultants. (5 points)
(d)
(1) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization(s) and the entities to be served, including the relevance and demonstrated commitment (e.g., articulation agreements, memoranda of understanding, letters of support, or commitments to employ project participants) of the applicant, local employers, or entities to be served by the project. (5 points)
(2) The extent to which the budget is adequate and costs are reasonable in relation to the objectives and design of the proposed project. (5 points)
(3) The potential for continued support of the project after Federal funding ends. (5 points)
(e)
(1) The extent to which the methods of evaluation proposed by the grantee are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project. (5 points)
(2) The extent to which the methods of evaluation include the use of objective performance measures that are clearly related to the intended outcomes of the project and the performance measures discussed elsewhere in this notice and will produce quantitative and qualitative data, to the extent possible. (5 points)
(3) The extent to which the methods of evaluation will provide performance feedback and continuous improvement toward achieving intended outcomes. (5 points)
(4) The quality of the proposed evaluation to be conducted by an external evaluator with the necessary background and technical expertise to carry out the evaluation. (5 points)
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
We strongly encourage grantees to submit their reports through e-Reports, the Department's electronic performance reporting initiative.
4.
(a)
(1) Apply industry-recognized skill standards so students can earn skill certificates in those projects; and
(2) Offer skill competencies, related assessments, and industry-recognized skill certificates in secondary and postsecondary institutions.
(b)
(1) Meet or exceed proficiency standards in reading/language arts and mathematics;
(2) Attain a secondary school diploma or its State-recognized equivalent, or a proficiency credential in conjunction with a secondary school diploma; and
(3) Attain career and technical education skill proficiencies aligned with industry-recognized standards; and
(4) Are placed in postsecondary education, advanced training, military service, or employment in high-skill, high-wage, and high-demand occupations or in current or emerging occupations.
(c)
(1) Receive postsecondary degrees, certificates, or credentials;
(2) Attain career and technical education skill proficiencies aligned with industry-recognized standards;
(3) Receive industry-recognized credentials, certificates, or degrees;
(4) Are retained in postsecondary education or transfer to a baccalaureate degree program; and
(5) Are placed in military service or apprenticeship programs, or are placed in employment, receive an employment promotion, or retain employment.
(d)
(1) Enroll in a postsecondary education or training program;
(2) Attain career and technical education skill proficiencies aligned with industry-recognized standards;
(3) Receive industry-recognized credentials or certificates, or degrees; and
(4) Are placed in employment, receive an employment promotion, or retain employment.
All grantees will be expected to submit an annual performance report addressing these performance measures, to the extent feasible and to the extent that they apply to each grantee's NHCTEP project.
Nancy Essey, U.S. Department of Education, 400 Maryland Avenue, SW., room 11070, Potomac Center Plaza, Washington, DC 20202-7241. Telephone: (202) 245 -7789, or by e-mail:
If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this notice in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact persons listed in this section.
To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
The official version of this document is the document published in the
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Savannah River Site. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Monday, July 23, 2007, 1 p.m.-5 p.m.; Tuesday, July 24, 2007, 8:30 a.m.-4 p.m.
Newberry Hall, 117 Newberry Street SW., Aiken, SC 29801.
Gerri Flemming, Office of External Affairs, Department of Energy Savannah River Operations Office, P.O. Box A, Aiken, SC 29802; Phone: (803) 952-7886.
1 p.m.—Combined Committee Session.
5 p.m.—Adjourn.
8:30 a.m.—Approval of Minutes, Agency Updates.
9:45 a.m.—Public Comment Session.
10 a.m.—Chair and Facilitator Update.
10:45 a.m.—Administrative Committee Report.
11:45 a.m.—Public Comment Session.
12 p.m.—Lunch Break.
1 p.m.—Nuclear Materials Committee Report.
1:45 p.m.—Strategic and Legacy Management Committee Report.
2:15 p.m.—Waste Management Committee Report.
3:15 p.m.—Public Comment Session.
3:30 p.m.—Facility Disposition and Site Remediation Committee Report.
4 p.m.—Adjourn.
If needed, time will be allotted after public comments for items added to the agenda and administrative details. A final agenda will be available at the meeting Monday, July 23, 2007.
Take notice that on June 22, 2007, pursuant to § 292.205(c) of the regulations of the Federal Energy Regulatory Commission implementing the Public Utility Regulatory Policies Act of 1978, 18 CFR 292.205(c) (2006), Carson Cogeneration Company filed a request for limited waiver of the operating and efficiency standards for a natural gas-fired, combined cycle, cogeneration facility located in Carson, California.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on June 22, 2007, Crossroads Pipeline Company (Crossroads) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, Sixth Revised Sheet No. 6, with an effective date of June 1, 2007.
Crossroads states that it is making this filing in compliance with the Commission's Order in this docket issued May 31, 2007.
Any person desiring to protest this filing must file in accordance with Rule 211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Protests to this filing will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Such protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing a protest must serve a copy of that document on all the parties to the proceeding.
The Commission encourages electronic submission of protests in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission will convene a technical conference in the above referenced proceeding on Tuesday, July 31, 2007, at 10 a.m. (EDT), in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE, Washington DC 20426.
The Commission's May 31, 2007, order
The parties and the Commission Staff will have the opportunity to discuss all of the issues raised by the filing including, but not limited to, providing additional technical, engineering and operations support for its proposed transportation retainage percentage.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an e-mail to
All interested persons are permitted to attend. For further information please contact Lisa T. Long by phone at (202) 502-8691 or via e-mail at
Take notice that on June 26, 2007, Dauphin Island Gathering Partners (Dauphin Island) tendered for filing its report of net revenue received from cash outs. Dauphin Island states that it has made the refund to its customers based upon its calculation method as set out in its report.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the date as indicated below. Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 25, 2007, MidAmerican Energy Company tendered for filing, pursuant to section 205 of the Federal Power Act, 16 U.S.C. 824d (2007), in compliance with Order No. 890, an amendment to its Order No. 890 Implementation Section 205 filing made on April 16, 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 26, 2007, Viking Gas Transmission Company (Viking) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, to become effective August 1, 2007:
Viking states that the purpose of this filing is to: (i) Correct an incorrect reference in the pro forma Firm Transportation Agreement to one of its Exhibits; (ii) add a new Exhibit to the pro forma Firm Transportation Agreement to standardize documentation of discounted rate agreements; and (iii) modify the pro forma Firm Transportation Agreement Exhibits.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 21, 2007, the Western Area Power Administration filed an amendment to its non-jurisdictional open access transmission tariff, pursuant to the Federal Energy Regulatory Commission's May 21, 2007 Order,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 22, 2007, DC Energy, LLC (DC Energy) pursuant to Rule 215 of the Rules of Practice and Procedure of the Commission's Regulations, 18 CFR 385.215, filed an amendment to its June 12, 2007, Complaint. DC Energy states that it has discovered new facts which are directly relevant to the issues raised in its original Complaint.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St. NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
An environmental assessment (EA) is available for public review. The EA was prepared for an application filed by Alaska Power and Telephone Company (licensee) on January 26, 2007, and supplemented on March 6 and April 5, 2007, requesting Commission approval for an Amendment of License to Modify Project Design at the Kasidaya Hydroelectric Project. The project is located on Kasidaya Creek at Taiya Inlet, 3 miles south of the City of Skagway, Alaska. The project occupies lands within the Tongass National Forest, administered by the U.S. Forest Service.
The licensee has requested that in lieu of passing the penstock through a tunnel to cross Kasidaya Creek and gain access to the diversion structure, they would like to have the penstock cross over Kasidaya Creek with a modular steel bridge. The penstock would be buried adjacent to the access road, except for crossing the creek, on a small bridge adjacent to the aluminum block culvert. In addition to being significantly less expensive than the tunnel, the bridge arrangement would also provide more convenient access to the diversion site for construction and operation of the project.
The Environmental Assessment (EA), which is attached to the order approving order amending license and revising annual charges, evaluates the environmental effects of the relocation and redesign of project facilities. While these changes to project facilities will impact areas not specifically evaluated in previous EA's, the environmental effects are expected to be similar.
A copy of the EA is attached to a Commission order titled “Approving Order Amending License and Revising Annual Charges,” issued June 27, 2007 and is available for review at the Commission or may be viewed on the Commission's web site at
On May 25, 2007, Landowners for Economic and Environmental Protection (Landowners) submitted Intervenors' Comments to the Draft Environmental Impact Statement for the Proposed Elba III Project in the above referenced dockets.
After receipt of the filing, the staff of the Federal Energy Regulatory Commission (FERC or Commission) has determined that the text of Comments, together with Exhibits A and B, comply with the Commission's filing requirements and are acceptable submittals which will be considered in the Final Environmental Impact Statement. However, Exhibit C (five DVDs containing digital data) is hereby rejected for numerous failures to comply with the Commission's Submission Guidelines for CDs, DVDs, and Other Electronic Media (Guidelines),
• The submission does not include a cover letter containing information specified by the Guidelines;
• The data files on the DVDs include files that exceed the 50 MB limit per file, with many files in the range of 145-456 MB;
• The folder mapping on the DVDs does not follow the Files and Folders Guidelines correlating the electronic data to the logical organization of the document, and there is no documentation outlining how the data was split over the five DVDs and the content on each;
There appears to be duplication of Exhibit A in three places and duplicate copies of other electronic files on the DVDs;
• Many file names are not descriptive, and the cover letter is not in the root directory;
• There are at least 10 unacceptable file types submitted which prohibit both FERC staff and the public from viewing them;
• Specialized software was used to compile the data and distribute the contents over five DVDs, which does not allow FERC staff or the public access to the electronic media without administrative rights;
• The filing does not include a detailed description of the content of the filing and instructions for the public on how to obtain the resources to view it;
• The external labels on the DVDs do not identify the filer, docket number, or security classification of the data;
• The consultant responsible for the compilation of the DVDs did not comply with FERC staff's request to provide a paper copy of the map document (.mxd file) for FERC staff use.
Accordingly, Exhibit C of Landowners' May 25, 2007 submission to the Commission is hereby rejected without prejudice to Landowners' resubmitting this portion of its filing in accordance with the Guidelines.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person in the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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Comments, protests and interventions may be filed electronically via the Internet in lieu of paper; See 18 CFR 385.2001 (a)(1)(iii) and the instructions on the Commission's Web site under “e-filing” link. The Commission strongly encourages electronic filing.
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The Commission's May 31, 2007 Order in the above-captioned proceeding,
Take notice that a technical conference will be held on Tuesday, July 24, 2007 at 9 a.m., in a room to be designated at the offices of the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
FERC conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations please send an email to
All interested parties and staff are permitted to attend. For further information please contact David Faerberg at (202) 502-8275 or e-mail
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before August 6, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2006-0770, to (1) EPA online using www.regulations.gov (our preferred method), or by e-mail to
John DuPree, Compliance Assessment and Media Programs Division, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: 202-564-5950; fax number: 202-564-0050; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On October 5, 2006, (71
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2006-0724, which is available for public viewing online at
Use EPA's electronic docket and comment system at http://www.regulations.gov, to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in
Two features of this rulemaking are unique to the New Source Performance Standard (NSPS) program. First, these standards were negotiated by representatives of groups affected by the NSPS, including those groups which are burdened by the information collection activities. None of these activities were judged to be unreasonable by these representatives. Some of these provisions were recommended by the affected groups as a means of promoting an efficient and smooth running certification and enforcement program. Second, these regulations established a certification program instead of the usual NSPS requirement that each affected facility demonstrates compliance through new source review and testing. Under this certification program, a single wood heater is tested to demonstrate compliance for an entire model line, which could consist of thousands of stoves. The certification approach significantly reduces the compliance burden, including information collection, for the manufacturers of wood heaters. Because of the potential risks to the environment from the intentional or accidental misuse of the certification approach, there were, however, several safeguards included, some of which entail reporting and recordkeeping.
Under this regulation, wood heater manufacturers, testing laboratories, and retailers are required to submit reports to EPA and/or to maintain records for demonstrating compliance with the NSPS.
The information supplied by the manufacturer to the Agency is used: (1) To ensure that Best Demonstrated Technology is being applied to reduce emissions from wood heaters; (2) to ensure that the wood heater tested for certification purposes is in compliance with the applicable emission standards; (3) to provide assurance that untested production model heaters have emission performance characteristics similar to tested models; and (4) to provide an indicator of continued compliance.
Information supplied to the Agency by testing laboratories is used to grant or to deny laboratory accreditation, and to assist in enforcement and compliance activities. Information requested by the Agency from manufacturers is used to determine compliance with requirements that are based upon volume of production.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB Control Number. The OMB Control Numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15, and are identified on the form and/or instrument, if applicable.
Since there are no changes in the regulatory requirements and there is no significant industry growth, the labor hours and cost figures in the previous ICR are used in this ICR and there is no change in burden to industry.
Environmental Protection Agency (EPA).
Notice.
EPA is notifying the public that delegation of the authority to implement and enforce the National Emission Standards for Hazardous Air Pollutants (NESHAP) standards for Shipbuilding and Ship Repair Surface Coating (Subpart II), Steel Pickling—Hydrochloric Acid Process Facilities and Regeneration Plants (Subpart CCC), Surface Coating of Miscellaneous Metal Parts and Products (Subpart MMMM), Surface Coating of Plastic Parts and Products (Subpart PPPP), and Industrial, Commercial, and Institutional Boilers and Process Heaters (DDDDD) was approved in a letter from EPA to the Indiana Department of Environmental Management (IDEM) dated May 30, 2007.
Ethan Chatfield, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-5112,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
We are notifying the public that pursuant to section 112(1) of the Clean Air Act (CAA) and 40 CFR 63.92, EPA has approved the IDEM request to delegate the authority to implement and enforce 40 CFR part 63, subparts II, CCC, MMMM, PPPP, and DDDDD. IDEM has incorporated these NESHAPs by reference, unchanged from the federal standards, through Indiana rules 326 IAC 20-26, 326 IAC 20-29, 326 IAC 20-80, 326 IAC 20-81, and 326 IAC 20-95, respectively. EPA has also approved the delegation of the Category I authorities for these NESHAP standards as set forth at 40 CFR 63.91(g).
Pursuant to section 112(1) of the CAA, a state may develop and submit to EPA for approval a program for the partial or complete delegation of section 112 rules. EPA may approve state rules or programs which either: (1) Implement and enforce section 112 rules as promulgated by EPA (“straight delegation”); (2) implement and enforce state rules which adjust section 112 rules; or, (3) implement and enforce state rules which substitute for section 112 rules. The Federal regulations governing EPA's approval of state rules or programs under section 112(1) are located at 40 CFR part 63, subpart E.
Currently, IDEM has an EPA-approved program for the straight delegation of NESHAP standards. EPA approved IDEM's program for part 70 and non-part 70 sources on November 14, 1995, (60 FR 57118) and July 8, 1997 (62 FR 36460), respectively. Pursuant to the approved delegation program, EPA has approved the straight delegation of numerous NESHAP standards in Indiana (see 62 FR 36460 (7/8/1997), 65 FR 17264 (3/31/2000), 69 FR 22508 (4/26/2004), and 71 FR 2225 (1/13/2006)). EPA has also approved rule adjusted NESHAP delegations for subparts X, VVVV, WWWW (see 71 FR 48923 (8/22/2006) and 71 FR 56971 (9/28/2006)).
By letter dated February 8, 2007, IDEM requested approval of five additional ‘straight delegations’ of authority for 40 CFR part 63, subparts II, CCC, MMMM, PPPP, and DDDDD.
On May 30, 2007, EPA approved IDEM's request to delegate the authority to implement and enforce 40 CFR part 63, subparts II, CCC, MMMM, PPPP, and DDDDD, through 326 IAC 20-26, 326 IAC 20-29, 326 IAC 20-80, 326 IAC 20-81, and 326 IAC 20-95. EPA also approved the delegation of the applicable Category I authorities as set forth at 40 CFR section 63.91(g).
All notifications, reports and other correspondence required under these NESHAPs, should be sent to the State of Indiana, rather than to the EPA, Region 5, in Chicago. Affected sources should send this information to: Indiana Department of Environmental Management, Office of Air Quality, 100 North Senate Avenue, Indianapolis, Indiana 46204-2251.
Pursuant to Section 112(1)(7) of the CAA, nothing in this delegation prohibits EPA from enforcing any applicable emission standard or requirement.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency, Office of Research and Development (ORD), gives notice of a meeting of the Board of Scientific Counselors (BOSC) National Center for Environmental Research (NCER) Standing Subcommittee.
The meeting will be held on Tuesday, July 24, 2007 from 9 a.m. to 5 p.m., and will continue on Wednesday, July 25, 2007 from 9 a.m. to 12 noon. All times noted are eastern time. The meeting may adjourn early if all business is finished. Requests for the draft agenda or for making oral presentations at the conference call will be accepted up to 1 business day before the meeting.
The meeting will be held at the Park Hyatt Washington, 24th & M Streets, NW., Washington, DC 20037. Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2007-0484, by one of the following methods:
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This is not a mailing address. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
The Designated Federal Officer via mail at: Susan Peterson, Mail Code 8104-R, Office of Science Policy, Office of Research and Development, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; via phone/voice mail at: (202) 564-1077; via fax at: (202) 565-2911; or via e-mail at:
Any member of the public interested in receiving a draft BOSC agenda or making a presentation at the meeting may contact Susan Peterson, the Designated Federal Officer, via any of the contact methods listed in the
Proposed agenda items for the meeting include, but are not limited to: The role of NCER and its research programs within ORD, NCER's Air Program, NCER's Human Health Program, and discussion of the charge to the NCER Standing Subcommittee. The meeting is open to the public.
Environmental Protection Agency (EPA).
Notice of Draft NpPDES General Permits, MAG250000 and NHG250000.
The Director of the Office of Ecosystem Protection, EPA-New England, is issuing notice of availability of the draft National Pollutant Discharge Elimination System (NPDES) general permits for noncontact cooling water (NCCW) discharges to certain waters of the Commonwealth of Massachusetts and the State of New Hampshire. These General Permits replace the NCCW General Permits which expired on April 25, 2005.
These draft General Permits establish Notice of Intent (NOI) requirements, effluent limitations, standards, prohibitions, and management practices for facilities discharging NCCW. Owners and/or operators of facilities discharging NCCW, including those currently authorized to discharge under the expired General Permits, will be required to submit an NOI to be covered by the General Permit to both EPA-New England and the appropriate state agency. After EPA and the State have reviewed the NOI, the facility will receive a written notification from EPA of permit coverage and authorization to discharge under the General Permit. The eligibility requirements for coverage under this General Permit are discussed in detail under Part 3 of the General Permit. The reader is strongly urged to
The draft General Permits are based on an administrative record available for public review at EPA-Region 1, Office of Ecosystem Protection, 1 Congress Street, Suite 1100, Boston, Massachusetts 02114-2023, Monday-Friday from 9 am-5 pm. For further information contact Ms. Frawley at 617-918-1065, between the hours of 9 a.m. and 5 p.m., Monday through Friday, excluding holidays.
The draft General Permits and a Fact Sheet may be viewed over the Internet via the EPA-Region 1 Web site. The Fact Sheet and General Permit for dischargers in Massachusetts are at
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to (PRA) of 1995 (PRA), Pub. L. No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Subject to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before September 4, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Cathy Williams at (202) 418-2918 or send an e-mail to
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act (PRA) of 1995, Pub. L.No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written Paperwork Reduction Act (PRA) comments should be submitted on or before September 4, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit your all Paperwork Reduction Act (PRA) comments by e-mail or U.S. postal mail. To submit your comments by e-mail send them to P
For additional information about the information collection(s) send an e-mail to
47 CFR 74.784 requires licensees of low power television and TV translator stations to notify the FCC when rebroadcasting programs or signals of another station occurs. They are also required to certify that written consent has been obtained from originating station. FCC staff uses the data to ensure compliance with Section 325(a) of the Communications Act, as amended.
47 CFR 74.1284 requires that the licensee of a FM translator station obtain prior consent to rebroadcast programs of any FM broadcast station or other FM translator. The licensee must notify the Commission of the call letters of each station rebroadcast and must certify that written consent has been received from the licensee of that station.
The Commission is revising this information collection to consolidate rule Section 47 CFR 73.1207 into OMB control number 3060-0250. The rule section is currently approved under OMB control number 3060-0173.
Federal Communications Commission.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to (PRA) of 1995 (PRA), Pub. L. No. 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. Subject to the PRA, no person shall be subject to any penalty for failing to comply with a collection of information that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written PRA comments should be submitted on or before September 4, 2007. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
You may submit all PRA comments by e-mail or U.S. post mail. To submit your comments by e-mail, send them to
For additional information about the information collection(s), contact Cathy Williams at (202) 418-2918 or send an e-mail to
Federal Communications Commission.
Federal Communications Commission.
Notice; solicitation of comments.
In this document, the Wireline Competition Bureau (Bureau) seeks additional comment on issues raised in the above docket related to what constitutes a “near reservation” area for federal Lifeline and Link-Up support purposes.
Comments are due on or before August 6, 2007. Reply comments are due on or before August 20, 2007.
All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC. Comments may be submitted, identified by CC Docket No. 96-45, by any of the following methods:
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Gina Spade, Wireline Competition Bureau, Telecommunications Access Policy Division, (202) 418-7400, or Dana Walton-Bradford, Wireline Competition Bureau, Telecommunications Access Policy Division, (202) 418-7400.
This is a summary of the Commission's Public Notice in CC Docket No. 96-45, released March 12, 2007 (DA 07-1239). The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at:
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3. In the Further Notice accompanying the
4. On May 21, 2003, in the
5. Pursuant to 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments are due on or before August 6, 2007 and reply comments are due on or before August 20, 2007. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the
6. Paper filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). Parties are strongly encouraged to file comments electronically using the Commission's ECFS.
7. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
8. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Dana Walton-Bradford, Telecommunications Access Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A321, 445 12th Street, SW., Washington, DC 20554, or by e-mail to
9. Documents in CC Docket No. 96-45 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail:
10. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to
11. This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
Notice is hereby given that the following Ocean Transportation Intermediary licenses have been reissued by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
Notice is hereby given that the Order revoking the following license is being rescinded by the Federal Maritime Commission pursuant to section 19 of the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the Commission pertaining to the licensing of Ocean Transportation Intermediaries, 46 CFR part 515.
Notice is hereby given that the following applicants have filed with the Federal Maritime Commission an application for license as a Non-Vessel Operating Common Carrier and Ocean Freight Forwarder—Ocean Transportation Intermediary pursuant to section 19 of the Shipping Act of 1984 as amended (46 U.S.C. Chapter 409 and 46 CFR part 515).
Persons knowing of any reason why the following applicants should not receive a license are requested to contact the Office of Transportation Intermediaries, Federal Maritime Commission, Washington, DC 20573.
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
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 July 25, 2007.
Board of Governors of the Federal Reserve System, June 29, 2007.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention announces the following meeting of the aforementioned committee and Subcommittee:
9:30 a.m.-11:30 a.m., July 17, 2007.
1 p.m.-4:30 p.m., July 17, 2007.
9:45 a.m.-5 p.m., July 18, 2007.
8:30 a.m.-4:30 p.m., July 19, 2007.
5 p.m.-6 p.m., July 17, 2007.
7:30 p.m.-8:30 p.m., July 18, 2007.
In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, and will expire on August 3, 2007.
The agenda is subject to change as priorities dictate.
In the event an individual cannot attend, written comments may be submitted. Any written comments received will be provided at the meeting and should be submitted to the contact person below well in advance of the meeting.
Dr. Lewis V. Wade, Executive Secretary, NIOSH, CDC, 4676 Columbia Parkway, Cincinnati, Ohio 45226, Telephone 513-533-6825, Fax 513-533-6826.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice is to inform rural inpatient hospitals of an opportunity to
Applications will be considered timely if we receive them on or before 5 p.m., eastern standard time, on September 4, 2007.
Mail or deliver applications to the following address:
Centers for Medicare & Medicaid Services, Attention: Lisa Waters (CMS-5042-N2), Mail Stop: C4-17-27, 7500 Security Boulevard, Baltimore, Maryland 21244.
Because of staff and resource limitations, we cannot accept applications by facsimile (FAX) transmission or by e-mail.
Lisa Waters at (410) 786-6615 or
Paper copies can be obtained by writing to Lisa Waters at the address listed in the
For the purpose of this demonstration, section 5007(g)(4) of the DRA provides that hospitals may provide gainsharing payments to physicians (as defined in section 1861(r)(1) or (r)(3) of the Act) and practitioners (as “described in section 1842(e)(18)(C) of the Act”). The latter reference to “section 1842(e)(18)(C)” of the Act, however, clearly is a typographical error, as there is no such section, and it is clear from the context and legislative history that the reference was intended to be to section 1842(b)(18)(C) of the Act. Section 5007(g) of DRA explicitly provides that the reference to physicians who are permitted to participate in the demonstration is deemed to include certain “practitioners.” Conference Report language also specifically refers to the inclusion of practitioners as part of the gainsharing arrangement. Since section 1842(e)(18)(C) of the Act does not exist, and since section 1842(b)(18)(C) of the Act is, with the exception of substituting (b) for (e), identical to that section, and specifically defines practitioners, we believe that section 1842(b)(18)(C) of the Act is the intended reference. We do not believe this typographical error impedes any authority to otherwise implement this demonstration. Furthermore, a comprehensive list of all eligibility requirements can be found in the “Eligible Organizations” section of the solicitation.
Section 5007 of the Deficit Reduction Act of 2005 (DRA) requires the establishment of a qualified gainsharing demonstration program that will test and evaluate methodologies and arrangements between hospitals and physicians designed to govern the utilization of inpatient hospital resources and physician work to improve the quality and efficiency of care provided to beneficiaries and to develop improved operational and financial hospital performance with the sharing of remuneration as specified in the project. It will have a short-term focus given the limited size of the demonstration.
This notice solicits applications to participate in the DRA section 5007 Medicare Hospital Gainsharing Demonstration that will assist in determining if gainsharing can align incentives between hospitals and physicians to improve the quality and efficiency of care provided to beneficiaries, which will promote improved operational and financial performance of hospitals. The focus of each demonstration will be to link physician incentive payments to improvements in quality and efficiency. Each demonstration will provide measures to ensure that the quality and efficiency of care provided to beneficiaries is monitored and improved.
Overall, we seek demonstration models that result in savings to Medicare. We will assure the demonstration is budget neutral.
This information collection requirement is subject to the Paperwork Reduction Act of 1995; however, the collection is currently approved under OMB control number 0938-0880 entitled “Medicare Demonstration Waiver Application.”
Section 5007 of the Deficit Reduction Act of 2005, Pub. L. 109-171.
This document was received at the Office of the Federal Register on June 29, 2007.
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
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 public in accordance with the provisions set forth in section 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.
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the 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.
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.
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.
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the 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(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. the statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted the stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
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 worldwide to Endothelix, Inc., having a place of business in Houston TX, to practice the invention embodied in HHS Ref. Nos. E-037-2003 and E-125-2003, both entitled “Method for the Diagnosis and Treatment of Vascular Disease”, corresponding to U.S. Patent Application No. 60/426,545 filed November 15, 2002, U.S. Patent Application No. 60/445,417 filed February 5, 2003, PCT Patent Application PCT/US03/36317 filed November 12, 2003, and U.S. Patent Application No.10/534,626 filed May 11, 2005. The contemplated exclusive license may be limited to the following field of use: an FDA-approvable vascular endothelial function diagnostic test. The patent rights in this invention 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 September 4, 2007 will be considered.
Requests for a copy of the patent, inquiries, comments, and other materials relating to the contemplated license should be directed to: Tara L. Kirby, PhD, Technology Licensing Specialist, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: 301-435-4426; Facsimile: 301-402-0220; E-mail:
Cardiovascular disease is a major health risk throughout the industrialized world. Atherosclerosis, the most prevalent of cardiovascular diseases, is the primary cause of heart attack, stroke, and gangrene of the extremities. It is also the principal cause of death in the United States.
The inventors have developed a technique for evaluating vascular function by counting endothelial progenitor cells (EPCs) in a blood sample. They found that decreased numbers of EPCs correlate significantly with decreased vascular function. A diagnostic test developed utilizing this discovery would have the advantages of being minimally invasive and low cost compared to other currently available diagnostics.
The invention describes methods for diagnosing decreased vascular function, detecting increased cardiovascular risk, and diagnosing atherosclerosis. Also included are methods for assaying the number of endothelial progenitor cells and methods for treating a subject with decreased vascular function by administering a therapeutically effective amount of endothelial progenitor cells.
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, the 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.
Properly filed competing applications for a license filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
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 part 404.7(a)(1)(i), that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive
The prospective exclusive license territory may be worldwide, and the field of use may be limited to:
A method for the treatment of cancer involving protease activated cancer toxins, wherein the cancer toxins comprise Anthrax lethal toxin (LeTx) modified at the furin-recognized cleavage site to contain a matrix metalloproteinase cleavage site, as defined by the Licensed Patent Rights, and wherein the cancers include, but are not limited to, melanoma, colon, thyroid, prostate, pancreatic and ovarian cancer. This exclusive licensed field of use shall explicitly exclude vaccines and immunotherapeutics for the prevention or treatment of human diseases.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before September 4, 2007 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: David A. Lambertson, PhD, Technology Licensing Specialist, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852-3804; Telephone: (301) 435-4632; Facsimile: (301) 402-0220; E-mail:
Anthrax lethal toxin (LeTx) has been shown to have significant toxicity to cancer cells, particularly those associated with melanoma. However, LeTx also shows significant toxicity towards normal cells, preventing widespread use of the molecule as a cancer therapy. NIH inventors have now engineered LeTx to have increased specificity for cancer cells, with little to no effect on normal cells, enhancing the effectiveness of LeTx for cancer treatment.
Modifying the LeTx to be activated by a matrix metalloprotease (MMP) increases the specificity of LeTx for cancer cells because those cells are more likely to activate the toxin, resulting in more efficient therapy. Mouse data shows that the modified LeTx (called PrAg-L1/LF) is less cytotoxic to “normal” cells in vivo when compared to wild-type LeTx, while maintaining high toxicity towards implanted human tumors. Modification of the LeTx to contain various protease recognition and cleavage sites can potentially extend application of the technology beyond melanomas to the treatment of lung and colon carcinomas, and various other cancers.
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 sixty (60) days from the date of this published notice, the 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.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Bureau of Indian Affairs, Interior.
Notice of approved amended Tribal-State compacts.
This notice publishes approval of the Tribal-State Class III Gaming Compact between the State of New Mexico and the Pueblo of Isleta, Pueblo of Nambe, Pueblo of Picuris, Pueblo of San Felipe, Pueblo of Sandia, Pueblo of Santa Ana, Pueblo of Tesuque, Pueblo of Taos, Pueblo of Santa Clara and Ohkay Owingeh.
George T. Skibine, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219-4066.
Under Section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA), Public Law 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the
United States International Trade Commission.
In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Commission has submitted a request for emergency processing for review and clearance of questionnaires to the Office of Management and Budget (OMB).
July 5, 2007.
(1) Number of forms submitted: One (1).
(2) Title of form: Questionnaire for Producers of Apparel in Haiti.
(3) Type of request: New.
(4) Frequency of use: Single data gathering, scheduled for Aug-Sept 2007.
(5) Description of respondents: Firms in Haiti that produce apparel.
(6) Estimated number of respondents: Est. 20 (Apparel assembly operators in Haiti).
(7) Estimated total number of hours for all respondents combined to complete the forms: 300 hours.
(8) Information obtained from the form that qualifies as confidential business information will be so treated by the Commission and not disclosed in a manner that would reveal the individual operations of a firm.
Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Secretary at 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting our TTD terminal (telephone no. 202-205-1810). General information concerning the Commission may also be obtained by accessing its Internet server (
By order of the Commission.
U.S. International Trade Commission.
Institution of investigation pursuant to 19 U.S.C. 1337.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on May 31, 2007, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Sidel Participations of France, Sidel Canada Inc. of Canada, and Sidel Inc. of Norcross, Georgia. A supplement to the complaint was filed on June 18, 2007. The complaint, as supplemented, alleges violations of section 337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain buffer systems and components thereof used in container processing lines by reason of infringement of U.S. Patent No. 6,168,005. The complaint, as supplemented, further alleges that a domestic industry exists in the United States as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue a permanent general exclusion order and permanent cease and desist orders.
The complaint and supplement, except for any confidential information contained therein, are available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436, telephone 202-205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Juan S. Cockburn, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2572.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2006).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain buffer systems and components thereof used in container processing lines by reason of infringement of one or more of claims 1, 3, 4, 6-8, and 17 of U.S. Patent No. 6,168,005, and whether an industry exists in the United States as required by subsection (a)(2) of section 337;
(2) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are—Sidel Participations, Avenue de la Patrouille de France, BP 204 Octeville-sur-Mer, 76053 Le Havre Cedex, France; Sidel Canada Inc., 1045 Autoroute Chomedey, Laval, Quebec H7W 4V3, Canada; Sidel Inc., 5600 Sun Court, Norcross, Georgia 30092.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint, as supplemented, is to be served: Krones AG, Böhmerwaldstra e 5, 93073 Neutraubling, Germany; Krones Inc., 9600 South 58th Street, Franklin, Wisconsin 53132-6241; KHS AG, Juchostrasse 20, 44143 Dortmund, Germany; KHS USA, Inc., 880 Bahcall Court, Waukesha, Wisconsin 53186.
(c) The Commission investigative attorney, party to this investigation, is Juan S. Cockburn, Esq., Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street, SW., Room 401, Washington, DC 20436; and
(3) For the investigation so instituted, the Honorable Paul J. Luckern is designated as the presiding administrative law judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or cease and desist order or both directed against the respondent.
By order of the Commission.
United States International Trade Commission.
Scheduling of the final phase of countervailing duty and antidumping investigations.
The Commission hereby gives notice of the scheduling of the final phase of countervailing duty investigation Nos. 701-TA-444-446 (Final) under section 705(b) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)) (the Act) and the final phase of antidumping investigation Nos. 731-TA-1107-1109 (Final) under section 735(b) of the Act (19 U.S.C. 1673d(b)) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of subsidized and less-than-fair-value imports from China, Indonesia, and Korea of coated free sheet paper, provided for in subheadings 4810.13.19, 4810.13.20, 4810.13.50, 4810.13.70, 4810.14.19, 4810.14.20, 4810.14.50, 4810.14.70, 4810.19.19, and 4810.19.20 of the Harmonized Tariff Schedule of the United States.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Debra Baker (202-205-3180), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Institution of antidumping and countervailing duty investigations and scheduling of preliminary phase investigations.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping and countervailing duty investigation Nos. 701-TA-450 and 731-TA-1122 (Preliminary) under section 703(a) (19 U.S.C. 1671b(a)) and section 733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from China of laminated woven sacks, provided for in subheading 6305.33.0020 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value and subsidized by the Government of China. Unless the Department of Commerce extends the time for initiation pursuant to section 702(c)(1)(B) or 732(c)(1)(B) of the Act (19 U.S.C. 1671a(c)(1)(B) or 1673a(c)(1)(B)), the Commission must reach a preliminary determination in antidumping and countervailing duty investigations in 45 days, or in this case by August 13, 2007. The Commission's views are due at Commerce within five business days thereafter, or by August 20, 2007.
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
Christopher J. Cassise (202-708-5408), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
60-Day notice of information collection under review: Registration statement (foreign agents).
The Department of Justice (DOJ), National Security Division (NSD), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 4, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please write to U.S. Department of Justice, 10th & Constitution Avenue, NW., National Security Division, Counterespionage Section/Registration Unit, Bond Building—Room 9300, Washington, DC 20530. If you need a copy of the collection instrument with instructions, or have additional information, please contact the Registration Unit at 202-514-1216.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day Notice of Information Collection Under Review: Supplemental Statement (Foreign Agents).
The Department of Justice (DOJ), National Security Division (NSD), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 4, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please write to U.S. Department of Justice, 10th & Constitution Avenue, NW., National Security Division, Counterespionage Section/Registration Unit, Bond Building—Room 9300, Washington, DC 20530. If you need a copy of the collection instrument with instructions, or have additional information, please contact the Registration Unit at 202-514-1216.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day Notice of Information Collection Under Review: Amendment to Registration Statement (Foreign Agents).
The Department of Justice (DOJ), National Security Division (NSD), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 4, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please write to U.S. Department of Justice, 10th & Constitution Avenue, NW., National Security Division, Counterespionage Section/Registration Unit, Bond Building—Room 9300, Washington, DC 20530. If you need a copy of the collection instrument with instructions, or have additional information, please contact the Registration Unit at (202) 514-1216.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day Notice of Information Collection Under Review: Exhibit B to Registration Statement (Foreign Agents).
The Department of Justice (DOJ), National Security Division (NSD), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 4, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, suggestions, or additional information, especially regarding the estimated public burden or associated response time, please write to U.S. Department of Justice, 10th & Constitution Avenue, NW., National Security Division, Counterespionage Section/Registration Unit, Bond Building—Room 9300, Washington, DC 20530. If you need a copy of the proposed information collection instrument with instructions, or have additional information, please contact the Registration Unit at (202) 514-1216.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
(1)
(2)
(3)
(4)
(5)
(6)
60-Day Notice of Information Collection Under Review: Short-Form Registration Statement (Foreign Agents).
The Department of Justice (DOJ), National Security Division (NSD), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until September 4, 2007. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments, suggestions, or additional information, especially regarding the estimated public burden or associated response time, please write to U.S. Department of Justice, 10th & Constitution Avenue, NW., National Security Division, Counterespionage Section/Registration Unit, Bond Building—Room 9300, Washington, DC 20530. If you need a copy of the collection instrument with instructions, or have additional information, please contact the Registration Unit at 202-514-1216.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Lynn Bryant, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, Patrick Henry Building, Suite 1600, 601 D Street NW., Washington, DC 20530.
30-Day notice of information collection under review: Certification of identity.
The Department of Justice (DOJ), Justice Management Division, Facilities and Administrative Services Staff (JMD/FASS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until August 6, 2007. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to The Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503. Additionally, comments may be submitted to OMB via facsimile to (202)-395-5806.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
The Department of Justice proposes to modify the Office of the Inspector General Investigative Records System, JUSTICE/OIG-001, first published in the
The Privacy Act at 5 U.S.C. 552a(e)(4) and (11) provides that the public be given 30 days in which to comment on these proposed changes. The Office of Management and Budget (OMB), which has oversight responsibility under the Act, has 40 days in which to conclude its review of the system. Therefore please submit any comments in writing to Mary Cahill, Management Analyst, Management and Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530 by August 14, 2007.
As required by 5 U.S.C. 552a(r) and OMB implementing regulations, the Department of Justice has provided a report on the proposed changes to OMB and the Congress.
A modified system description is set forth below.
Office of the Inspector General Investigative Records.
The vast majority of the information in the system is Sensitive but Unclassified. However, there is some classified information as well.
U.S. Department of Justice, Office of the Inspector General (OIG), 950 Pennsylvania Ave., NW., Washington, DC 20530-0001 and 1425 New York Ave., NW., Suites 7100 and 13100, Washington, DC 20530. During the course of an investigation, records are also kept in the investigations field and area offices, the addresses of which are listed on the OIG's Web site at
In connection with its investigative duties, the OIG maintains records on the following categories of individuals:
a. Individuals or entities who are or have been the subject of investigations conducted by the OIG, including current and former employees of the Department of Justice; current and former consultants, contractors, and subcontractors with whom the Department has contracted and their employees; grantees to whom the Department has awarded grants and their employees; and such other individuals or entities whose association with the Department relates to alleged violation(s) of the Department's rules of conduct, the Civil Service merit system, and/or criminal or civil law, which may affect the integrity or physical facilities of the Department.
b. Individuals who are or have been witnesses, complainants, or informants in investigations conducted by the OIG.
c. Individuals or entities who have been identified as potential subjects of or parties to an OIG investigation.
Information relating to investigations including:
a. Letters, memoranda, and other documents describing complaints or alleged criminal, civil, or administrative misconduct.
b. Investigative files which include: Reports of investigations and related exhibits, statements, affidavits, and records obtained during the investigation.
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
The OIG maintains this system of records in order to carry out its responsibilities pursuant to the Inspector General Act of 1978, as amended. The OIG is statutorily directed to conduct and supervise investigations relating to programs and operations of the Department of Justice, to promote economy, efficiency, and effectiveness in the administration of such programs and operations, and to prevent and detect fraud, waste, and abuse in such programs and operations. Accordingly, the records in this system are used in the course of investigating individuals and entities suspected of having committed illegal or unethical acts and in conducting related criminal prosecutions, civil proceedings, and administrative actions.
Records in this system may be disclosed as follows:
(a) To any criminal, civil, or regulatory law enforcement authority (whether federal, state, local, territorial, tribal, or foreign) where the information is relevant to the recipient entity's law enforcement responsibilities.
(b) To any individual or entity when necessary to elicit information that will assist an OIG investigation, inspection, or audit.
(c) To any individual or entity when necessary to elicit information relevant to an OIG decision concerning the hiring, appointment, or retention of an individual; the issuance, renewal, suspension, or revocation of a security clearance; or the letting of a contract.
(d) To appropriate officials and employees of a federal agency or entity which requires information relevant to a decision concerning the hiring, appointment, or retention of an individual; the issuance, renewal, suspension, or revocation of a security clearance; the execution of a security or suitability investigation; the letting of a contract; or the issuance or revocation of a grant or other benefit.
(e) To appropriate officers and employees of state, local territorial, or tribal law enforcement or detention agencies in connection with the hiring or continued employment of an employee or contractor, where the employee or contractor would occupy or occupies a position of public trust as a law enforcement officer or detention officer having direct contact with the public or with prisoners or detainees, to the extent that the information is relevant and necessary to the recipient agency's decision.
(f) To federal, state, local, tribal, foreign, or international licensing agencies or associations which require information concerning the suitability or eligibility of an individual for a license or permit.
(g) To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
(h) In an appropriate proceeding before a court, grand jury, or an administrative or adjudicative body, when the OIG determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
(i) To an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or in informal discovery proceedings.
(j) To the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
(k) To the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
(l) To complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
(m) To the Office of the Inspector General for the Department of Homeland Security when necessitated by the transfer of Department of Justice functions and employees to the Department of Homeland Security.
(n) To other federal Offices of Inspector General and/or to the President's Council on Integrity and Efficiency for purposes of conducting the external review process required by the Homeland Security Act.
(o) To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government, who have a need to know such information in order to accomplish an agency function.
(p) To a former employee of the Department of Justice for purposes of: Responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
(q) To appropriate agencies, entities, and persons when (1) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(r) To such recipients and under such circumstances and procedures as are mandated by federal statute or treaty.
(s) To a governmental entity lawfully engaged in collecting law enforcement, law enforcement intelligence, or national security intelligence information for such purposes.
Not Applicable.
Information in this system is stored manually in file jackets and electronically in office automation equipment.
Each OIG investigation is assigned a case number and all records relating to a particular investigation are filed and retrieved by that case number. Records may also be retrievable by the surnames of subjects, witnesses, and/or complainants.
Information is stored in safes, locked filing cabinets, and office automation equipment in secured rooms or in guarded buildings, and is used only by authorized, screened personnel. Manual records are in locked cabinets or in safes and can be accessed by key or combination formula only. Passwords are required to access the automated data.
Records in this system are retained and disposed of in accordance with the schedule approved by the Archivist of the United States, Job Number NI-60-97-4.
Office of the General Counsel, Office of the Inspector General, Department of Justice, 950 Pennsylvania Avenue, NW., Room 4726, Washington, DC 20530.
Address inquiries to the System Manager listed above.
The major part of this system is exempt from this requirement pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). To the extent that this system is not subject to exemption, it is subject to access. A determination as to exemption shall be made at the time a request for access is received. A request for access to records contained in this system shall
The major part of this system is exempted from this requirement pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2). To the extent that this system of records is not subject to exemption, it is subject to contest. A determination as to exemption shall be made at the time a request for contest is received. Requesters shall direct their request to the System Manager listed above, stating clearly and concisely what information is being contested, the reason for contesting it, and the proposed amendment to the information.
The subjects of investigations; individuals with whom the subjects of investigations are associated; current and former Department of Justice officers and employees; Federal, State, local and foreign law enforcement and non-law enforcement agencies; private citizens; witnesses; informants; and public source materials.
The Attorney General has exempted this system from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5) and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In addition, the system has been exempted from subsections (c)(3), (d), and (e)(1), pursuant to subsections (k)(1) and (k)(2). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553(b), (c) and (e), and have been published in the
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on April 24, 2007, Abbott Laboratories, DBA Knoll Pharmaceutical Co., 30 North Jefferson Road, Whippany, New Jersey 07981, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture bulk product and dosage units for distribution to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 5, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 18, 2007, Aldrich Chemical Company, Inc., DBA Isotec, 3858 Benner Road, Miamisburg, Ohio 45342-4304, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic class of controlled substance listed in schedule I and II:
The company plans to manufacture small quantities of the listed controlled substances to produce isotope labeled standards for drug testing and analysis.
Any other such applicant and any person who is presently registered with
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, D.C. 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on March 2, 2007, Amri Rensselaer, Inc., 33 Riverside Avenue, Rensselaer, New York 12144, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Lisdexamfetamine (1205), a basic class of controlled substance listed in schedule II.
The company plans to manufacture the listed controlled substance in bulk for sales to its customer.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 8, 2007, Austin Pharma LLC, 811 Paloma Drive, Suite A, Round Rock, Texas 78664, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
In reference to drug code 7360 (Marihuana), the company plans to bulk manufacture cannabidiol as a synthetic intermediate. This controlled substance will be further synthesized to bulk manufacture a synthetic THC (7370). No other activity for this drug code is authorized for this registration.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 8, 2007, Boehringer Ingelheim Chemicals, Inc., 2820 N. Normandy Drive, Petersburg, Virginia 23805, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Lisdexamfetamine (1205), a basic class of controlled substance listed in schedule II.
The company plans to qualify as a bulk manufacturer of the above listed controlled substance.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a), Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 10, 2007, Cambrex Charles City, Inc., 1205 11th Street, Charles City, Iowa 50616, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Morphine (9300), a basic class of controlled substance listed in schedules II.
The company plans to manufacture the listed controlled substance for sale as an intermediate to generic drug customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson-Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
By Notice dated April 18, 2006, and published in the Federal Register on April 25, 2006, (71 FR 23948), Cody Laboratories, Inc., 601 Yellowstone Avenue, Cody, Wyoming 82414, made application by letter to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule II:
The company plans to manufacture in bulk, for distribution to its customers.
An objection and a request for a hearing were received by the DEA. In accordance with 21 1301.33 bulk manufacturers applying for or registered in the same basic class of narcotic or non-narcotic controlled substances may submit to the DEA any comments on or objections to the issuance of a proposed application. This regulation does not provide bulk manufacturers the right to request a hearing on the proposed application. No hearing was scheduled to be heard on this matter. DEA has reviewed the objection made against this pending application and has determined that the registration of Cody Laboratories, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Cody Laboratories, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on May 1, 2007, Dade Behring Inc., Regulatory Affairs, Quality Systems, 20400 Mariani Avenue, Cupertino, California 95014, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to produce the listed controlled substances in bulk to be used in the manufacturer of reagents and drug calibrator/controls for DEA exempt products.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on March 28, 2007, Lin Zhi International Inc., 687 North Pastoria Avenue, Sunnyvale, California 94085, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture the listed controlled substances as bulk reagents for use in drug abuse testing.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on February 14, 2007, Rhodes Technologies, 498 Washington Street, Coventry, Rhode Island 02816, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture the listed controlled substances in bulk for conversion and sale to dosage form manufacturers.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on April 9, 2007, Siegfried (USA), Inc., Industrial Park Road, Pennsville, New Jersey 08070, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on March 29, 2007, Sigma Aldrich Research Biochemicals, Inc., 1-3 Strathmore Road, Natick, Massachusetts 01760, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of the basic classes of controlled substances listed in schedule I and II:
The company plans to manufacture reference standards.
Any other such applicant and any person who is presently registered with DEA to manufacture such a substance may file comments or objections to the issuance of the proposed registration pursuant to 21 CFR 1301.33(a).
Any such written comments or objections being sent via regular mail should be addressed, in quintuplicate, to the Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), Washington, DC 20537, or any being sent via express mail should be sent to Drug Enforcement Administration, Office of Diversion Control, Federal Register Representative (ODL), 2401 Jefferson Davis Highway, Alexandria, Virginia 22301; and must be filed no later than September 4, 2007.
Notice; correction.
The Department of Labor, Employment and Training Administration published a document in the
In the
Since the total number of separated workers was one during the relevant period, workers of American Manufacturing International, Inc., Patterson, New Jersey do not meet the group eligibility requirements for trade adjustment assistance.
Notice; correction.
The Department of Labor, Employment and Training Administration published a document in the
In the
All workers of Armstrong Wood Products, Inc., Armstrong Hardwood Flooring Company, Parquet Flooring Department, Oneida, Tennessee [TA-W-60,876], who became totally or partially separated from employment on or after March 17, 2007 through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
All workers of Armstrong Wood Products, Inc., Armstrong Hardwood Flooring Company, Pattern Plus Flooring Department, Oneida, Tennessee [TA-W-60,876B], who became totally or partially separated from employment on or after January 31, 2006 through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are also eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
By application dated June 12, 2007, the United Automobile, Aerospace & Agricultural Implement Workers of America, Local 1112 requested administrative reconsideration of the Department of Labor's Notice of Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, applicable to workers and former workers of the subject firm. The determination was signed on May 9, 2007 and published in the
The initial investigation resulted in a negative determination based on the finding that imports of machine parts, such as shafts and sheaves for CVT
The Department reviewed the request for reconsideration and has determined that the petitioner has provided additional information. Therefore, the Department will conduct further investigation to determine if the workers meet the eligibility requirements of the Trade Act of 1974.
After careful review of the application, I conclude that the claim is of sufficient weight to justify reconsideration of the Department of Labor's prior decision. The application is, therefore, granted.
On June 11, 2007, the Department of Labor (Department) issued an Affirmative Determination Regarding Application for Reconsideration for the workers and former workers of Golden Ratio Woodworks, Emigrant, Montana (the subject firm). The Department's Notice of affirmative determination was published in the
The negative determination was issued on May 1, 2007. The Department's Notice of determination was published in the
The negative determination was based on the Department's findings that production at the subject firm ceased to operate in January 2007, that the subject firm did not shift production abroad, and that the subject firm's major declining customers' imports did not contribute importantly to workers' separations.
In the request for reconsideration, the workers alleged that increased subject firm imports and increased foreign competition contributed to workers' separations.
On reconsideration, the Department received information that confirmed that the subject firm licensed the patents to another company to produce articles previously produced at the subject facility.
During the reconsideration investigation, the Department received new information from the company official regarding the status of the subject firm and the relationship between the subject firm and the company licensed to produce the subject firm's products (hereafter referred to as “the partner”). The subject firm did not cease to exist, but has entered into an agreement with the partner. In this relationship, the subject firm sells its products and the partner produces them under the “Golden Ratio” brand at its manufacturing facilities.
During the reconsideration investigation, the Department also received information that the subject firm separated all production workers, that production ceased absolutely, and that a significant majority of the production at the subject firm was replaced with articles produced in China.
In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department herein presents the results of its investigation regarding certification of eligibility to apply for ATAA. The Department has determined in this case that the group eligibility requirements of Section 246 have been met.
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the information obtained in the reconsideration investigation, I determine that workers of Golden Ratio Woodworks, Emigrant, Montana, qualify as adversely affected workers under Section 222 of the Trade Act of 1974, as amended.
In accordance with the provisions of the Act, I make the following certification:
All workers of Golden Ratio Woodworks, Emigrant, Montana, who became totally or partially separated from employment on or after January 23, 2006, through two years from the date of this certification, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under Section 246 of the Trade Act of 1974.
TA-W-60,835, Kimberly Clark Corporation, Kimberly Clark World-Wide, Neenah, Wisconsin.
TA-W-60,835A, Kimberly Clark Global Sales, Roswell, Georgia.
TA-W-60,835B, Kimberly Clark World-Wide, Roswell, Georgia.
TA-W-60,835C, Kimberly Clark Global Sales, Knoxville, Tennessee.
TA-W-60,835D, Kimberly Clark World-Wide, Knoxville, Tennessee.
TA-W-60,835E, Kimberly Clark Global Sales, Irving, Texas.
On May 29, 2007, the Department of Labor (Department) issued an Affirmative Determination Regarding Application for Reconsideration for workers and former workers of several Kimberly Clark Corporation (the subject firm) locations: Kimberly Clark World-Wide, Neenah, Wisconsin [TA-W-60,835]; Kimberly Clark Global Sales, Roswell, Georgia [TA-W-60,835A]; Kimberly Clark World-Wide, Roswell, Georgia [TA-W-60,835B]; Kimberly Clark Global Sales, Knoxville, Tennessee [TA-W-60,835C]; Kimberly Clark World-Wide, Knoxville, Tennessee [TA-W-60,835D]; and Kimberly Clark Global Sales, Irving, Texas [TA-W-60,835E].
The Department's Notice of Affirmative Determination was published in the
The negative determination regarding the subject workers' eligibility to apply for Trade Adjustment Assistance (TAA) and Alternative Trade Adjustment Assistance (ATAA) stated that the worker separations are not caused by imports but by the subject firm's decision to outsource administrative support positions, and that the separations cannot be directly attributed to imports or a shift in production of an article. The determination also states that workers at Kimberly Clark Corporation, Kimberly-Clark Global Sales, Neenah, Wisconsin are eligible to
In the request for reconsideration, counsel for the subject firm alleged that the petitioning worker groups either had a direct link to or directly supported production at affiliated certified production facilities. The request also states that the separated workers are members of several groups within Kimberly Clark—Consumer Sales, Corporate Innovation, Finance and Accounting, and Sourcing and Supply Management.
Subject firm counsel asserts that workers in the Consumer Sales group are directly linked to TAA-certified production facilities because they are engaged in the sale of the articles produced at those facilities.
Subject firm counsel also asserts that workers in the Corporate Innovations group directly support production at TAA-certified subject firm facilities by responding to consumer complaints and providing feedback to other groups who use the feedback to improve the articles, and by engaging in the research and development of articles produced at TAA-certified subject firm facilities. Subject firm counsel notes in the request for reconsideration that several workers in the Corporate Innovations group are eligible to apply for TAA and ATAA under TA-W-60,017.
The request for reconsideration asserts that workers in the Finance and Accounting group directly support production at the subject firm's facilities because they are engaged in accounting and financing activities that ensure the continuous operation of subject firm production facilities.
The request for reconsideration also asserts that workers in the Sourcing and Supply Management group directly support production at the subject firm's facilities because they procure materials, equipment, and services required for production at these facilities, and because they are engaged in commodity management related to articles produced by the subject firm.
The workers separated from the subject firm are categorized as follows:
The one worker separated at this site is a member of the Corporate Innovations group.
One worker separated at this site is a member of the Consumer Sales group and five workers separated at this site are members of the Corporate Innovations group.
The five workers separated at this site are members of the Corporate Innovations group.
One worker separated at this site is a member the Consumer Sales group, forty-three workers separated at this site are members of the Finance and Accounting group, and four workers separated at this site are members of the Sourcing and Supply Management group.
The one worker separated at this site is a member of the Corporate Innovations group.
The five workers separated at this site are members of the Consumer Sales group.
The request for reconsideration also stated that, contrary to the Department's initial findings, the separated workers' positions were not outsourced but were eliminated as a result of decreased subject firm production.
Although the Department contacted the subject firm during the reconsideration investigation to request additional information, no new information was provided.
The Department has carefully reviewed the available material, and has determined that there is no evidence that the Department failed to consider any relevant fact or that the Department erred in its interpretation of the facts. As such, the Department affirms the negative determination applicable to subject firms workers at Kimberly Clark World-Wide, Neenah, Wisconsin [TA-W-60,835]; Kimberly Clark Global Sales, Roswell, Georgia [TA-W-60,835A]; Kimberly Clark World-Wide, Roswell, Georgia [TA-W-60,835B]; Kimberly Clark Global Sales, Knoxville, Tennessee [TA-W-60,835C]; Kimberly Clark World-Wide, Knoxville, Tennessee [TA-W-60,835D]; and Kimberly Clark Global Sales, Irving, Texas [TA-W-60,835E].
In order for the Department to issue a certification of eligibility to apply for ATAA, the subject worker group must be certified eligible to apply for TAA. Since the subject workers are denied eligibility to apply for TAA, the workers cannot be certified eligible for ATAA.
After careful reconsideration, I affirm the original notice of negative determination of eligibility to apply for worker adjustment assistance for workers and former workers of Kimberly Clark Corporation located at Kimberly Clark World-Wide, Neenah, Wisconsin [TA-W-60,835]; Kimberly Clark Global Sales, Roswell, Georgia [TA-W-60,835A]; Kimberly Clark World-Wide, Roswell, Georgia [TA-W-60,835B]; Kimberly Clark Global Sales, Knoxville, Tennessee [TA-W-60,835C]; Kimberly Clark World-Wide, Knoxville, Tennessee [TA-W-60,835D]; and Kimberly Clark Global Sales, Irving, Texas [TA-W-60,835E].
Pursuant to section 221 of the Trade Act of 1974, as amended, an investigation was initiated on June 5, 2007 in response to a petition filed by a company official on behalf of workers at MAHLE Inc., Holland, Michigan.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Signed at Washington, DC, this 22nd day of June, 2007.
By letter dated June 11, 2007 the United Steelworkers of America, District 10 requested administrative reconsideration regarding the
Workers of the subject firm were certified eligible to apply for trade adjustment assistance under petition number TA-W-56,570, which expired on April 28, 2007. The initial investigation resulted in a negative determination signed on May 2, 2007 was based on the finding that the subject company did not separate or threaten to separate a significant number of workers since the expiration of the previous certification. The denial notice was published in the
To support the request for reconsideration, the petitioner supplied additional information regarding employment at the subject.
Upon further contact with the subject firm's company official, it was revealed that the subject firm separated a significant number of workers during June 2007 and there is a threat of future separations. The investigation also revealed that the subject firm is in the process of shifting production of molding equipment for glass containers to Colombia, a beneficiary country under the Andean Trade Preference Act during the relevant period. The shift contributed importantly to the layoffs at the subject firm.
In accordance with section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor herein presents the results of its investigation regarding certification of eligibility to apply for alternative trade adjustment assistance (ATAA) for older workers.
In order for the Department to issue a certification of eligibility to apply for ATAA, the group eligibility requirements of section 246 of the Trade Act must be met. The Department has determined in this case that the requirements of section 246 have been met.
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the facts obtained in the investigation, I determine that there was a shift in production from the workers' firm or subdivision to Colombia of articles that are like or directly competitive with those produced by the subject firm or subdivision. In accordance with the provisions of the Act, I make the following certification:
“All workers of Penn Mould Industries, Inc., Washington, Pennsylvania who became totally or partially separated from employment on or after April 29, 2007 through two years from the date of this certification, are eligible to apply for adjustment assistance under section 223 of the Trade Act of 1974, and are eligible to apply for alternative trade adjustment assistance under section 246 of the Trade Act of 1974.”
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 July 16, 2007.
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 July 16, 2007.
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 (19 U.S.C. 2273) the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and a Negative Determination Regarding Eligibility to Apply for Alternative Trade Adjustment Assistance on June 8, 2007, applicable to workers of American & Efird, Inc., d/b/a Robison Anton Textile Company, Bloomsburg Division, Bloomsburg, Pennsylvania. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers were engaged in the production of embroidery thread and yarn.
In a request for an amendment, the company provided sufficient information confirming that the skills of the workers at the subject firm are not easily transferable in the local commuting area.
Information also obtained from the company states that a significant number of workers of the subject firm are age 50 or over, workers have skills that are not easily transferable, and conditions in the industry are adverse. Review of this information shows that all eligibility criteria under Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended have been met. Accordingly, the Department is amending the certification to reflect its finding.
The amended notice applicable to TA-W-61,415 is hereby issued as follows:
All workers of American & Efird, Inc., d/b/a Robison Anton Textile Company, Bloomsburg Division, Bloomsburg, Pennsylvania, who became totally or partially separated from employment on or after April 23, 2006 through June 8, 2009, are eligible to apply for adjustment assistance under Section 223 of the Trade Act of 1974 and are also eligible to apply for Alternative Trade Adjustment Assistance under Section 246 of the Trade Act of 1974.
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on May 24, 2007 in response to a worker petition filed on behalf of workers of Sunspring America Inc., formerly Gamco Products Company, Henderson, Kentucky.
The petitioning group of workers is covered by an active certification (TA-W-58,640) which expires on February 24, 2008. Consequently, further investigation in this case would serve no purpose, and the investigation has been terminated.
Quarterly Meeting “Teleconference Call”.
July 11, 2007, 1 p.m.-3 p.m.
National Council on Disability. 1331 F St., NW., Washington, DC 20004.
July 11, 2007, 1 p.m.-3 p.m.—Open.
Opening Remarks, Discussion of Strategic Planning in Preparation for Upcoming Quarterly Meeting by NCD Board Members, Closing Remarks.
Mark S. Quigley, Director of Communications, NCD, 1331 F Street, NW., Suite 850, Washington, DC 20004; 202-272-2004 (voice), 202-272-2074 (TTY), 202-272-2022 (fax).
NCD is an independent federal agency and is composed of 15 members appointed by the President, by and with the advice and consent of the Senate. NCD provides advice to the President, Congress, and executive branch agencies promoting policies, programs, practices, and procedures that (A) guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and (B) empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.
Those needing reasonable accommodations should notify NCD immediately.
In accordance with E.O. 13166, Improving Access to Services for Persons with Limited English proficiency, those people with disabilities who are limited English proficient and seek translation services for these meetings should notify NCD immediately.
Notice.
The National Endowment for the Arts (NEA), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data is provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents is properly assessed. Currently, the NEA is soliciting comments concerning the proposed information collection of: Blanket Justification for NEA Funding Application Guidelines and Reporting Requirements. A copy of the current information collection request can be obtained by contacting the office listed below in the address section of this notice.
Written comments must be submitted to the office listed in the address section below within 60 days from the date of this publication in the
• 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;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Can help the agency minimize the burden of the collection of information on those who are to respond, including through the use of electronic submission of responses through Grants.gov.
Send comments to Jillian Miller, Director, Office of Guidelines and Panel Operations, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 710, Washington, DC 20506-0001; telephone (202) 682-5504 (this is not a toll-free number), fax (202) 682-5049.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92-463), as amended, notice is hereby given that a meeting of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference from the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC, 20506 as follows (ending time is approximate):
National Initiatives (application review): July 6, 2007. This meeting, from 2 p.m. to 2:30 p.m. DST, will be closed. This meeting has been scheduled on an emergency basis, to address time sensitive issues.
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 21, 2007, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC, 20506, or call 202/682-5691.
The NSF management officials having responsibility for the advisory committees listed below have determined that renewing these groups for another two years is necessary and in the public interest in connection with the performance of duties imposed upon the Director, National Science Foundation (NSF), by 42 U.S.C. 1861
Effective date for renewal is July 2, 2007. For more information, please contact Susanne Bolton, NSF, at (703) 292-7488.
Nuclear Regulatory Commission.
Regulatory Guide: Withdrawal.
John N. Ridgely, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone: (301) 415-6555 or e-mail
The Nuclear Regulatory Commission (NRC) is withdrawing Regulatory Guide (RG) 1.49, “Power Levels of Nuclear Power Plants,” which was issued in response to a NRC Commission policy statement dated March 5, 1973. Revision 1 of the RG was issued in December 1973. The RG established the normal operating core thermal power level of 3800 megawatts as the limit for any nuclear power plant until January 1, 1979. This limit was set to encourage greater standardization of nuclear power plants and to stabilize the maximum size of nuclear plants until sufficient experience was gained with the design, construction, and operation of large plants. Since 1979, substantial experience has been gained with large power plants and standardization of plant designs has proceeded by use of the design certification process. The staff has approved plant designs with the core thermal operating power levels in excess of 3800 megawatts and has approved increased core thermal operating power levels for existing operating plants on a case-by-case basis. The staff has determined that RG 1.49 is no longer necessary. Furthermore, it is not referenced by any other documents in association with nuclear plant licensing actions.
Withdrawal of RG 1.49 does not, in and of itself, alter any prior or existing licensing commitments based on its use. The guidance provided in this RG is no longer applicable. Regulatory guides may be withdrawn when methods and techniques no longer define an acceptable approach to comply with NRC regulations or otherwise do not provide useful information.
Regulatory guides are available for inspection or downloading through the NRC's public Web site in the Regulatory Guides document collection of the NRC's Electronic Reading Room at
Regulatory guides are not copyrighted, and NRC approval is not required to reproduce them. (5 U.S.C. 552(a))
For the Nuclear Regulatory Commission.
OPIC's Sunshine Act notice of its Public Hearing in Conjunction with each Board meeting was published in the
Information on the hearing cancellation may be obtained from Connie M. Downs at (202) 336-8438, via facsimile at (202) 218-0136, or via e-mail at
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget (“OMB”) for extension and approval.
Rule 17a-8 (17 CFR 270.17a-8) under the Investment Company Act of 1940 (the “Act”) (15 U.S.C. 80a) is entitled
The average annual burden of meeting the requirements of rule 17a-8 is estimated to be 7 hours for each fund. The Commission staff estimates that each year approximately 920 funds rely on the rule. The estimated total average annual burden for all respondents therefore is 6,440 hours.
This estimate represents an increase of 2,240 hours from the prior estimate of 4,200 hours. The increase results from an increase in the estimated number of mergers of affiliated funds and fund portfolios.
The average cost burden of preparing a report by an independent evaluator in a merger with an unregistered entity is estimated to be $15,000. The average net cost burden of obtaining approval of a merger transaction by a majority of a fund's outstanding voting securities is estimated to be $75,000. The Commission staff estimates that each year approximately 15 mergers with unregistered entities occur and approximately 22 funds hold shareholder votes that would not otherwise have held a shareholder vote to comply with state law. The total annual cost burden of meeting these requirements is estimated to be $1,875,000.
The estimates of average burden hours and average cost burdens are made solely for the purposes of the Paperwork Reduction Act, and are not derived from a comprehensive or even a representative survey or study. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are requested on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to R. Corey Booth, Director/Chief Information Officer, Securities and Exchange Commission, C/O Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an email to:
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of June 2007. A copy of each application may be obtained for a fee at the SEC's Public Reference Branch (tel. 202-551-5850). An order granting each application will be issued unless the SEC orders a hearing. Interested persons may request a hearing on any application by writing to the SEC's Secretary at the address below and serving the relevant applicant with a copy of the request, personally or by mail. Hearing requests should be received by the SEC by 5:30 p.m. on July 23, 2007, and should be accompanied by proof of service on the applicant, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Secretary, U.S. Securities and Exchange Commission, 100 F Street, NE.,Washington, DC 20549-1090.
Diane L. Titus at (202) 551-6810, SEC, Division of Investment Management, Office of Investment Company Regulation, 100 F Street, NE., Washington, DC 20549-4041.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of application under section 3(b)(2) of the Investment Company Act of 1940 (the “Act”).
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303. Applicant, 2601 Elliott Avenue, Suite 1000, Seattle, Washington 98121.
Jaea F. Hahn, Senior Counsel, at (202) 551-6870, or Nadya B. Roytblat, Assistant Director, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Desk, 100 F Street, NE., Washington, DC 20549-0102 (tel. 202-551-5850).
1. RealNetworks, a Washington corporation, is in the business of creating digital media services and software. Consumers use RealNetworks' services and software to discover, play, purchase and manage digital content, including music, games and video. Broadcasters, cable and wireless communications companies, media companies and enterprises use RealNetworks' products and services to create, secure and deliver digital media to personal computers, MP3 players, mobile phones and other consumer electronic devices and to provide entertainment services to their subscribers.
2. RealNetworks states that the market for software and services for media delivery over the Internet is relatively new, constantly changing and intensely competitive. RealNetworks states that it requires substantial liquid capital to fund operations, fund research and development, license content and technology for its subscription service and software products, and fund acquisitions. Because of the pace of technological change in the industry sectors in which RealNetworks competes, RealNetworks needs to use cash to develop new products and fund capital expenditures, enhance its existing products and technology, and make strategic acquisitions. In addition, from time to time, RealNetworks also makes non-controlling investments in entities that complement or enhance RealNetworks' media delivery and digital distribution business (“Strategic Investments”). RealNetworks seeks to preserve its capital and maintain liquidity, pending the use of such capital for its current and future operations, by investing in short-term investment grade and liquid fixed income and money market investments that earn competitive market returns and provide a low level of credit risk (“Capital Preservation Investments”). RealNetworks' board of directors (“Board”) has approved a corporate investment policy establishing limits and guidelines governing its cash management investments, consistent with the goal of capital preservation (“Policy”). RealNetworks states that it does not invest in securities for short-term speculative purposes.
1. RealNetworks seeks an order under section 3(b)(2) of the Act declaring that it is primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities, and therefore not an investment company as defined in the Act.
2. Under section 3(a)(1)(C) of the Act, an issuer is an investment company if it is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value in excess of 40 percent of the value of the issuer's total assets (exclusive of Government securities and cash items) on an unconsolidated basis. Section 3(a)(2) of the Act defines “investment securities” to include all securities except Government securities, securities issued by employees' securities companies, and securities issued by majority-owned subsidiaries of the owner which (a) are not investment companies, and (b) are not relying on the exclusions from the definition of investment company in section 3(c)(1) or 3(c)(7) of the Act. RealNetworks states that as of December 31, 2006, approximately 18% of its total assets (exclusive of Government securities and cash items), on an unconsolidated basis, consisted of investment securities as defined in section 3(a)(2) of the Act.
3. Rule 3a-1 provides an exemption from the definition of investment company if no more than 45% of a company's total assets consist of, and not more than 45% of its net income over the last four quarters is derived from, securities other than Government securities, securities of majority-owned subsidiaries and primarily controlled companies. RealNetworks states that it cannot rely upon rule 3a-1 under the Act because the percentage of its total assets invested in securities fluctuates and may, from time to time, exceed 45% of its total assets.
4. Rule 3a-8 under the Act provides an exemption from the definition of investment company if, among other factors, a company's research and development expenses are a substantial percentage of its total expenses for the last four fiscal quarters combined. While Real Networks believes it could satisfy the other factors in the rule, RealNetworks' research and development expenses, as a percentage of its total expenses, fluctuate and may not account for a substantial percentage of its total expenses. For the last four fiscal quarters ended on December 31, 2006, RealNetworks' research and development expenses represented approximately 18% of its total expenses, including cost of goods sold. RealNetworks also states that as its revenues increase its research and development expenses as a percentage of its total expenses are expected to decline even if research and development expenses increase on an absolute basis because sales and marketing expense and cost of goods sold, which are closely related to revenues, are likely to increase faster than research and development expenses.
5. Section 3(b)(2) of the Act provides that, notwithstanding section 3(a)(1)(C) of the Act, the Commission may issue an order declaring an issuer to be primarily engaged in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities either directly or through majority-owned subsidiaries or through controlled companies conducting similar types of businesses. RealNetworks requests an order under section 3(b)(2) of the Act declaring that it is primarily engaged in a business other than that of investing, reinvesting, owning, holding or trading in securities, and therefore not an investment company as defined in the Act.
6. In determining whether a company is primarily engaged in a non-investment company business under section 3(b)(2), the Commission considers: (a) The issuer's historical development; (b) its public representations of policy; (c) the activities of its officers and directors; (d) the nature of its present assets; and (e) the sources of its present income.
a.
b.
c.
d.
e.
7. RealNetworks thus asserts that it satisfies the standards for an order under section 3(b)(2) of the Act.
RealNetworks agrees that any order granted pursuant to the application will be subject to the following conditions:
1. RealNetworks will continue to allocate and utilize its accumulated cash and investment securities for bona fide business purposes.
2. RealNetworks will refrain from investing or trading in securities for short-term speculative purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
The Gramm-Leach-Bliley Act (“GLBA”) repealed the blanket exception of banks from the definitions of “broker” and “dealer” under the Securities Exchange Act of 1934 (“Exchange Act”)
The GLBA provided that the amended definitions of “broker” and “dealer” were to become effective May 12, 2001. Starting on May 11, 2001, in connection with various rulemaking proposals,
On October 13, 2006, President Bush signed into law the Financial Services Regulatory Relief Act of 2006 (“Regulatory Relief Act”).
Consistent with the Regulatory Relief Act, on December 18, 2006, the Commission and the Board jointly proposed implementing rules, which were designated as Regulation R.
To date, the Commission and the Board have received over 70 comments on proposed Regulation R. The Commission and the Board are carefully considering the comments, in consultation with the other Federal banking agencies, and expect to take final action on proposed Regulation R shortly.
In light of the need to carefully consider, together with the Board and the other Federal banking agencies, the comments on proposed Regulation R, the Commission finds that extending the temporary exemption for banks from the definition of “broker” until September 28, 2007 is necessary and appropriate in the public interest, and is consistent with the protection of investors. The extension of this temporary exemption will prevent banks from incurring interim business disruption, as well as interim implementation and compliance costs before the Commission and the Board jointly adopt final implementing rules. It will also provide the Commission and the Board time fully to consider the comments, consult with and seek the concurrence of the other Federal banking regulators, and take final action on the proposal.
Accordingly, pursuant to Section 36 of the Exchange Act,
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Rule 154-AEMI(k) to prohibit specialists in exchange-traded funds (“ETFs”) from charging commissions on transactions in their specialty securities. The text of the proposed rule change is available on Amex's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 154-AEMI(k)
The Exchange now proposes to amend subparagraph (k) to Rule 154-AEMI to prohibit specialists from charging commissions on any ETF orders. The Exchange believes that this prohibition on specialist commissions will offset the increases in transaction charges that may be experienced by customers as the result of the revisions to or elimination of the various caps and discounts currently available.
The Exchange is proposing the prohibition on ETF specialist commissions to provide consistency and clarity to all members and the public that orders sent to Amex will not be subject to excessive or arbitrary costs, and to preserve the cost competitiveness of the Exchange. The Exchange believes that its comprehensive program of providing incentives to ETF specialists and registered traders to provide more liquid and competitive markets, in combination with the prohibition on the charging of specialist commissions on transactions in ETFs, will result in making the Exchange's pricing structure more competitive, more equitable, more transparent, and easier to understand. The Exchange consequently believes that the proposed rule would benefit investors if implemented and would strengthen the Exchange's competitive position.
The Exchange believes that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange and, in particular, the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed rule change does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change has become effective immediately pursuant to Section 19(b)(3)(A)(ii) of the Act
The Exchange requests that the Commission waive the 30-day operative delay specified in Rule 19b-4(f)(6)(iii)
The Commission has determined to waive the 30-day delay and allow the proposed rule change to become operative on July 1, 2007.
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-Amex-2007-67. 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 Commissions 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 (the “Act”),
CBOE proposes to amend its open outcry allocation rules for classes trading on the Hybrid Trading System (“Hybrid”). The text of the proposed rule change is available at CBOE, the Commission's Public Reference Room, and (
In its filing with the Commission, the CBOE included statements concerning the purpose of, and basis for, the proposed rule change and discussed any
The Exchange is proposing to modify its open outcry allocation rules for Hybrid classes, which are contained in paragraph (b) of Rules 6.45A,
The Exchange is proposing to revise the priority levels so that, at the same execution price: (i) Public customer orders in the electronic book would continue to have first priority, with multiple public customer orders prioritized based on time priority; (ii) in-crowd market participants would have second priority, with multiple bids or offers prioritized based on the allocation algorithm provided in Rule 6.45(A) or (B);
In addition, in order to transact proprietary orders
The Exchange believes the proposed rule change is consistent with section 6(b) of the Act
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.
The Exchange neither solicited nor received comments on the proposal.
Because the foregoing proposed 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 thirty days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, it has become effective pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in the furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-CBOE-2007-66. 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 (
All submissions should refer to File Number SR-CBOE-2007-66 and should be submitted on or before July 26, 2007.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Federal Aviation Administration (FAA), DOT.
Notice.
The FAA invites public comments about our intention to request the Office of Management and Budget's (OMB) revision of a current information collection. The Federal Register Notice with a 60-day comment period soliciting comments on the following collection of information was published on March 26, 2007, vol. 72, no. 57, page 14162. This collection establishes requirements for the certification, operation, and maintenance of light-sport aircraft.
Please submit comments by August 6, 2007.
Carla Mauney at
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to Nathan Lesser, Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Federal Aviation Administration (FAA), DOT.
Notice of RTCA Special Committee 186 Automatic Dependent Surveillance-Broadcast (ADS-B) meeting.
The FAA is issuing this notice to advise the public of a meeting of RTCA Special Committee 186 Automatic Dependent Surveillance-Broadcast (ADS-B).
The meeting will be held July 31-August 3, 2007, at 9 a.m. (Unless Otherwise noted).
The meeting will be held at RTCA, Inc., 1828 L Street, NW., Suite 805, Washington, DC 20036.
(1) RTCA Secretariat (Hal Moses), 1828 L Street, NW., Suite 805, Washington, DC 20036, (202) 833-9339; fax (202) 833-9434; Web site
Pursuant to section 10(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 186 meeting. The agenda will include:
• July 31:
• All Day, ASSAP Subgroup, MacIntosh-NBAA & Hilton-ATA Rooms
• All Day, CDTI Subgroup, Colson Board Room
• August 1:
• All Day-Working Group I—Operations and Implementation, Surface Alerting Activity, Colson Board Room
• All Day, ASSAP Subgroup, MacIntosh-NBAA Room
• All Day, CDTI Subgroup, Hilton-ATA Room
• August 2:
• All Day-Working Group I—Operations and Implementation, Surface Alerting Discussion, Colson Board Room
• All Day, ASSAP Subgroup, MacIntosh-NBAA Room
• All Day, CDTI Subgroup, Hilton-ATA Room
• August 3:
• Working Groups May Meet After the Plenary Adjourns
• Opening Plenary Session (Welcome and Introductory Remarks, review of meeting agenda)
• Review/Approval of the Fortieth Meeting Summary, RTCA Paper No. 159-07/SC186-250.
• Date, Place, and Time of Next Meeting.
• Review proposed TORs for SC186 and WGI
• Working Group Reports
• WG-1—Operations and Implementation
• WG-2—TIS-B MASPS
• WG-3—1090 MHz MOPS
• WG-4—Applications Technical Requirements
• WG-5—UAT MOPS
• Final Review/Approval—Proposed Final Draft—revised DO-286A—
• Closing Plenary Session (New/Other Business, Review Actions Items/Work Program, Adjourn)
• Note:
• AD—Application Development
• ASAS—Aircraft Surveillance Applications System
• ASSAP—Airborne Surveillance & Separation Assurance Processing
• CDTI—Cockpit Display of Traffic Information
• MASPS—Minimum Aviation System Performance Standards
• MOPS—Minimum Operational Performance Standards
• NRA—Non-Radar Airspace
• RFG—Requirements Focus Group
• STP—Surveillance Transmit Processing
Attendance is open to the interested public but limited to space availability. 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), U.S. DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA and other Federal agencies.
This notice announces actions taken by the FHWA and other Federal agencies that are final within the meaning of 23 U.S.C. 139(1)(1). These actions relate to a proposed Highway project on State Route 50 between Post Mile L0.9 to 12.8 in Sacramento County, State of California. These actions grant approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(1)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before January 2, 2008. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.
Cesar Perez, Senior Project Development Engineer, Federal Highway Administration, 650 Capitol Mall, #4-100, Sacramento, CA 95814, weekdays between 7 a.m. and 4 p.m., telephone 916-498-5065,
Notice is hereby given that the FHWA and other Federal agencies have taken final agency actions by issuing approvals for the following highway project in the State of California. This project would improve safety and provide congestion relief on State Route 50, between post mile 0.9 to 12.8, in Sacramento County, California. This would be accomplished by adding bus/carpool lanes in the existing median of U.S. 50 between the above post miles. The purpose of the project is to increase mobility, provide an option for reliable peak period travel time, improve traffic operations, use the highway facilities as efficiently as possible, and provide incentives for commuters.
Actions by the Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment for the project. The Finding of No Significant Impact (FONSI) was approved on June 25, 2007. The Final Environmental Assessment and other documents in the FHWA administrative record file are available by contacting the FHWA or the California Department of Transportation at the addresses provided above. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(1)(1).
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that it has received from the National Agricultural Aviation Association (NAAA) an application for an exemption from the commercial driver's license (CDL) requirements. NAAA requests that commercial motor vehicle drivers working with agricultural aircraft operators be exempt from the required knowledge and skills tests and be eligible to receive a restricted CDL. NAAA also requests an exemption to allow these restricted CDL holders to transport fuels used to power agricultural aircraft engines if transported in quantities of 1,000 gallons or less. NAAA believes that relief from the CDL regulations will relieve a current economic hardship and will provide parity in the CDL regulations compared to other, nearly identical farm-related services. NAAA believes that the evidence provided in the exemption request demonstrates that the level of safety achieved under the exemption would be equal to or greater than the level of safety that prevails without the exemption. FMCSA requests public comment on the NAAA application for exemption.
Comments must be received on or before August 6, 2007.
You may submit comments identified by DOT DMS Docket Number FMCSA-2007-28480 using any of the following methods:
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Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, MC-PSD, Federal Motor Carrier Safety Administration, telephone 202-366-4009, E-mail:
Section 4007 of the Transportation Equity Act for the 21st Century (Pub. L. 105-178, 112 Stat. 107, June 9, 1998) amended 49 U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from motor carrier safety regulations. On December 8, 1998, the Federal Highway Administration's Office of Motor Carriers, the predecessor to FMCSA, published an interim final rule implementing sec. 4007 (63 FR 67600). On August 20, 2004, FMCSA published a final rule (69 FR 51589) on this subject. Under this rule, FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The NAAA is a trade association that represents over 1,300 members in 46 states. It requests that commercial motor vehicle (CMV) drivers supporting agricultural aircraft operations be exempted from the required knowledge and skills tests required for a CDL and that these individuals be eligible to receive restricted CDLs as described in 49 CFR 383.3(f). In addition, NAAA further requests an exemption from 49 CFR 383.3(f)(3)(v) that would allow these restricted CDL holders to transport fuels used to power agricultural aircraft engines, if transported in quantities of 1,000 gallons or less.
NAAA member operators/pilots are licensed as commercial applicators who use aircraft to enhance food and fiber production, protect forestry, and control health-threatening pests. According to the NAAA, as a part of this operation, a CMV will be driven to a satellite strip where the plane is normally located. The driver will serve as a “mixer-loader” of the crop protection products that go into the agricultural aircraft, and will also refuel the aircraft at the satellite strip. These activities are normally conducted at a location where the aerial application operators have permanent fuel tanks and mixing and loading facilities for crop-protection products. However, at times they work so far from their permanent facility that it is cost-effective to use a satellite landing strip and an on-site fuel truck. The fuel is pumped from the fixed base tanks into the fuel truck and then the fuel truck transports it to the satellite strip for the agricultural aircraft. More trips are made to transport fuel to the satellite strip as needed and the CMV returns to the fixed-base location at the end of the day. Some of the vehicles may also be equipped with crop protection products such as fertilizers, insecticides, fungicides, or herbicides. Due to the nature of this work, the truck drivers normally are traveling on rural, less-trafficked roads.
NAAA requests that these drivers be permitted to receive restricted CDLs without knowledge and skills testing primarily to expand the labor pool of available drivers. A shortage of available drivers may prevent use of a satellite airstrip closer to the application site. This results in an aircraft having to travel back to its home base for each load instead of using a closer landing area. In this case more fuel is burned to travel to the application site and more time elapses, resulting in fewer application jobs performed during the day. One operator surveyed responded that he loses $2,500 to $5,000 per day as a result of not having an available CDL driver. The granting of the exemption would save on fuel costs, which, according to the NAAA, have increased 142% for aerial application operations in the last three years.
In a recent survey, NAAA asked its members if they had experienced difficulties finding CDL drivers to transport chemicals and fuel to satellite application strips, and over 95% answered “yes.” In addition, over 90% of the respondents answered that they had found themselves without a CDL driver for such vehicles during the aerial application season. One explanation offered for this situation is that qualified CDL drivers would be more interested in all-year driving work, rather than the seasonal work that driving for an aerial application operation offers. This factor, coupled with the fact that most aerial application operations are located in rural areas, makes for a smaller pool of available, qualified drivers.
NAAA also states finding Department of Motor Vehicle (DMV) locations and scheduling testing times to take the knowledge and skill tests required for a CDL can be difficult. Its survey indicates that only a select number of DMV locations offer the knowledge and skill tests required to obtain a CDL. Over 76% of the respondents indicated that only a limited number of these DMV locations are readily available. This is an additional handicap, as these operators must take the time and resources to travel significant distances for a potential employee to be tested.
NAAA also requests an exemption from 49 CFR 383.3(f)(3)(v) provisions that limit restricted CDL holders to transporting diesel fuel in quantities of 3,785 liters, or 1,000 gallons or less. There are two fuels used in agricultural aircraft operations. One is Jet A, which is used to fuel turbine engines. The second is Avgas, which is used to fuel piston-engine aircraft. Diesel and Jet A fuel are very similar in terms of chemical characteristics. The flash point for the two chemicals is nearly identical at 100 degrees, and Avgas has a lower flashpoint than Jet A and diesel.
The time period in which the exemption would usually be needed is the 180 days from the beginning of April through the end of September. This parallels the main season for growing crops in the U.S.—the period aerial applicators are most active. However, because climatic conditions vary around the country, the season of an agricultural aircraft operation depends on where the business is located. If a restricted CDL exemption is granted, NAAA therefore requests that the operator be able to choose the six-month period that best matches the growing conditions in the area in which the business is located.
NAAA's justification for including agricultural aircraft operations among the types of employers that may use restricted CDL holders, as listed in section 383.3(f), is that these types of operations are extremely similar to agri-chemical businesses, farm retail outlets, etc. Agricultural aircraft operators transport the same types of materials, such as fertilizers, pesticides and fuel, and in the same quantities as the farm-related industries. Furthermore, agricultural aircraft drivers are transporting these materials on the same rural, lightly-trafficked roads on which farm-related industries are traveling.
NAAA's response to ensuring an equivalent level of safety for the
A recent NAAA survey found that 95.3% of aerial application businesses surveyed had never been involved in any type of accident while transporting fuel or chemicals. The results also show that 92.9% of those surveyed travel on roads in rural areas with minimal traffic and that a vehicle transporting fuel or chemicals travels an average of 57.81 miles per day. NAAA notes that several operators also mentioned that they do not travel this many miles every day. In many cases, driving is done only once or twice a week to a satellite facility.
To ensure that the current safety level is preserved, NAAA states that it is in a strong position to provide meaningful continuing education on highway safety to a large portion of the small business owners of agricultural aviation operations throughout the country through its education program known as the Professional Aerial Application Support System (PAASS). The focus of the PAASS program is to educate individuals in the aerial application industry on the latest techniques and technologies to mitigate agricultural aviation flying accidents and off-target application incidents, in addition to enhancing the security of aerial application operations. According to NAAA, in addition to educating its industry on security and pilot safety, PAASS can also be used to further educate its members on highway transportation safety issues.
A copy of the NAAA exemption application is available for review in the docket for this notice.
In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA requests public comment on NAAA's application for exemption from the 49 CFR part 383 CDL requirements. The Agency will consider all comments received by close of business on August 6, 2007. Comments will be available for examination in the docket at the location listed under the
Federal Railroad Administration, DOT.
Notice.
In accordance with the Paperwork Reduction Act of 1995 and its implementing regulations, the Federal Railroad Administration (FRA) hereby announces that it is seeking approval of the following information collection activities. Before submitting these information collection requirements for clearance by the Office of Management and Budget (OMB), FRA is soliciting public comment on specific aspects of the activities identified below. It should be noted that this notice supersedes and corrects the
Comments must be received no later than September 4, 2007.
Submit written comments on any or all of the following proposed activities by mail to either: Mr. Robert Brogan, Office of Safety, Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 25, Washington, DC 20590, or Ms. Gina Christodoulou, Office of Support Systems, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB control number 2130-New.” Alternatively, comments may be transmitted via facsimile to (202) 493-6230 or (202) 493-6170, or via e-mail to Mr. Brogan at
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 25, Washington, DC 20590 (telephone: (202) 493-6292) or Ms. Gina Christodoulou, Office of Support Systems, RAD-43, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail Stop 35, Washington, DC 20590 (telephone: (202) 493-6139). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Pub. L. No. 104-13, 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days notice to the public for comment on information collection activities before seeking approval by OMB. 44 U.S.C. 3506(c)(2)(A); 5 CFR 1320.8(d)(1), 1320.10(e)(1), 1320.12(a). Specifically, FRA invites interested respondents to comment on the following summary of proposed information collection activities regarding (i) Whether the information collection activities are necessary for FRA to properly execute its functions, including whether the activities will have practical utility; (ii) the accuracy of FRA's estimates of the burden of the information collection activities, including the validity of the methodology and assumptions used to determine the estimates; (iii) ways for FRA to enhance the quality, utility, and clarity of the information being collected; and (iv) ways for FRA to minimize the burden of information collection activities on the public by automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Below is a brief summary of proposed new information collection activities that FRA will submit for clearance by OMB as required under the PRA:
In recognition of the need for new approaches to improving safety, FRA has instituted the Confidential Close Call Reporting System (C
If C
Program evaluation is an inherently data driven activity. Its basic tenet is that as change is implemented, data can be collected to track the course and consequences of the change. Because of the setting in which C
The proposed study is a five-year demonstration project to improve rail safety, and is designed to identify safety issues and propose corrective action based on voluntary reports of close calls submitted to the Bureau of Transportation Statistics, U.S. Department of Transportation. Because of the innovative nature of this program, FRA is implementing an evaluation, which will be carried out by the Volpe National Transportation Systems Center (Volpe Center), U.S. Department of Transportation, to determine whether the program is succeeding, how it can be improved and, if successful, what is needed to spread the program throughout the railroad industry. Confidential interviews to evaluate the close call reporting system will be conducted with two groups: (1) Key stakeholders to the process (e.g., FRA officials, industry labor, and carrier management within participating railroads); and (2) Employees in participating railroads who are eligible to submit close call reports to the Confidential Close Call Reporting System. Different questions will be addressed to each of these two groups. Confidential interviews will be semi-structured, with follow-up questions asked as appropriate depending on the respondent's initial answer.
Pursuant to 44 U.S.C. 3507(a) and 5 CFR 1320.5(b), 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
By letter dated April 26, 2001, the Boone & Scenic Valley Railroad (BSV) petitioned FRA for a waiver of compliance from the requirements of 49 CFR 223.11,
On October 2, 2001, the Railroad Safety Board approved this requested waiver for a period of 5 years, with an option for renewal. On December 6, 2006, the Board extended the waiver for an additional 5 years. However, the BSV also operates a steam locomotive, Number JS8419, over approximately 12 miles of their line from Boone, IA, in conjunction with their tourist and excursion service. Since this locomotive was built after January 1, 1946, it is required to be equipped with glazing
By letter dated February 12, 2007, BSV requested that Number JS8419 be granted a waiver under the same conditions as their four diesel electric locomotives. They stated that retrofitting JS8419 with compliant glazing would be very costly, and a serious financial burden on the museum.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
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
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
The Carolina Coastal Railway, Inc. (CLNA) seeks a permanent waiver of compliance from
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (
FRA wishes to inform all potential commenters 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
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety standards. The individual petition is described below, including the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.
As a modification to the Maryland Transit Administration's (MTA) existing Shared Use/Temporal Separation waiver originally granted by FRA on January 19, 2001, MTA is requesting that FRA
In this regard, the Norfolk Southern Railway Company (NS), which operates a freight railroad sharing track temporally with the CLRL, is ceasing freight service on the CLRL from a point at Chain Marker 122 continuing northward to the end of the line. The sole exception to this is at Chain Marker 122, where NS continues to cross the CLRL via a diamond crossover to service the NS Flexi-Flo facility. In regard to this, NS has filed a Petition for Exemption for authority to abandon the freight service on the CLRL (see Surface Transportation Board (STB) Docket No. AB-290, Sub No. 237X, Norfolk Southern Ry. Co.—Abandonment Exemption—In Baltimore Co., MD), and is awaiting STB resolution at this time.
Due to the cessation of NS freight service on the CLRL from a point at Chain Marker 122 northward, MTA is requesting that FRA determine that there is no longer shared use on the CLRL and that waivers are no longer necessary because the statutes and regulations covered in the Shared Use Policy Statement no longer apply to the CLRL north of that point. Also, MTA agrees that the waivers that were approved in the January 19, 2001, decision letter that are relevant at the diamond crossing will remain in effect, and that Standard Operating Procedure LR.07.02.04, which replaces MTA Procedure No. 6.33, provides sufficient protection at the interlocked diamond crossover. Lastly, MTA requests that, to the extent FRA regulations apply in any manner, FRA waive the requirements of 49 CFR Part 219, Control of Alcohol and Drug Abuse, for MTA employees who control the operation of the NS trains across the diamond because it is adopting the Federal Transit Administration's drug and alcohol policy, which provides an equivalent level of oversight.
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2000-7054/7286) and must be submitted to the Docket Clerk, DOT Docket Management Facility, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.—5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
Anyone is able to search the electronic form of 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
Pursuant to Title 49 Code of Federal Regulations (CFR) Part 235 and 49 U.S.C. 20502(a), the following railroad has petitioned the Federal Railroad Administration (FRA) seeking approval for the discontinuance or modification of the signal system or relief from the requirements of 49 CFR Part 236 as detailed below.
Rock and Rail, LLC, and Cañon City and Royal Gorge Railroad, LLC, collectively (RGX) and the Union Pacific Railroad Company (UP) jointly seek approval of the proposed conversion of the existing traffic control system to an automatic block signal system on the single main track and sidings between Cañon City, Colorado, Milepost 159.2, and East Parkdale, Colorado, Milepost 169.9, on the former UP Denver Area, Tennessee Pass Subdivision, a distance of approximately 10.7 miles. The proposed changes include the removal of the power-operated switch machines from the control points at East and West Cañon City and East and West Parkdale, and their replacement with manual switch operating devices. In addition, the proposed changes include the removal of the electric switch locks from switches at Mileposts 159.2, 159.5, 159.9, and 160.1.
The reason given for the proposed changes is due to the Applicants' operational plan, which features a significant reduction in the size and number of trains, and reduction in hours of operation compared to the time when UP operated the trackage as a mainline through route. The UP closed the trackage as a through route in August 1997, and in 1998 sold the portion of trackage from Cañon City to Parkdale to RGX. The line was severed and RGX acquired a stub-ended branch line, accessible only from the Cañon City end of the line, with no potential for through traffic.
Any interested party desiring to protest the granting of an application shall set forth specifically the grounds upon which the protest is made, and include a concise statement of the interest of the party in the proceeding. Additionally, one copy of the protest shall be furnished to the applicant at the address listed above.
FRA expects to be able to determine these matters without an oral hearing. However, if a specific request for an oral hearing is accompanied by a showing that the party is unable to adequately present his or her position by written statements, an application may be set for public hearing.
All communications concerning this proceeding should be identified by Docket Number FRA-2007-28293 and may be submitted by one of the following methods:
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Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site at
FRA wishes to inform all potential commenters 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
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection abstracted below has been forwarded to the Office of Management and Budget (OMB) for review and approval. The nature of the information collection is described as well as its expected burden. The Federal Register Notice with a 60-day comment period soliciting comments on the following collection of information was published on April 23, 2007. No comments were received.
Comments must be submitted on or before August 6, 2007.
Linden Houston, Program Manager, Maritime Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone: (202) 366-4839, or e-mail:
Maritime Administration (MARAD).
Pipeline and Hazardous Materials Safety Administration (PHMSA) DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on an information collection under Office of Management and Budget (OMB) Control No. 2137-0586, pertaining to Hazardous Materials Public Sector Training and Planning Grants. PHMSA will request approval from OMB for a revision to the current information collection. The revision implements a statutory provision authorizing PHMSA to
Interested persons are invited to submit comments on or before September 4, 2007.
You may submit comments identified by the docket number (PHMSA-2007-27181) by any of the following methods:
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Requests for a copy of the information collection should be directed to Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation, Office of Hazardous Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation, Office of Hazardous Materials Standards (PHH-11), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, Telephone (202) 366-8553.
Section 1320.8 (d), Title 5, Code of Federal Regulations requires PHMSA provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies an information collection PHMSA is submitting to OMB for revision under OMB Control Number 2137-0586. This collection is contained in 49 CFR Part 110, Hazardous Materials Public Sector Training and Planning Grants. We are proposing to revise the information collection to implement a statutory provision authorizing PHMSA to request information from states concerning fees related to the transportation of hazardous materials. In addition, we are proposing to revise the current information collection to include more detailed information from grantees to enable us to more accurately evaluate the effectiveness of the grant program in meeting emergency response planning and training needs.
Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101
Section 5125(f) of the Federal hazmat law permits a State, political subdivision of a state, or Indian tribe to impose a fee related to the transportation of hazardous materials only if the fee is fair and used for a purpose related to transporting hazardous materials, including enforcement and planning, developing, and maintaining a capability for emergency response. In accordance with § 5125, the Department of Transportation may require a state, political subdivision of a State, or Indian tribe to report on the fees it collects, including: (1) The basis on which the fee is levied; (2) the purposes for which the revenues from the fee are used; and (3) the total amount of annual revenues collected from the fee. Until now, we have not proposed asking States, political subdivisions, or Indian tribes to report this information.
In response to our February 26, 2007 notice [72 FR 8421] concerning the renewal of the OMB approval of the information collection required of applicants for HMEP grants, we received one comment from the Interested Parties for Hazardous Materials Transportation urging us to require grant applicants to report on the hazardous materials fees they collect in accordance with § 5125(f) of the Federal hazmat law. The commenter states that such information is important for both the agency and the regulated community to determine if States are in compliance with applicable provisions of the Federal hazmat law.
We agree that we should ask States and Indian tribes to provide more detailed information about hazardous materials fees they collect. This information will help us to evaluate more fully the emergency response funding needs of States and Indian tribes, thereby promoting more effective use of HMEP grant funds. In addition, information about fees will assist us in targeting our safety assistance team activities to specific regions. Comprehensive information on the assessment, collection, and use of State and tribal fees related to the transportation of hazardous materials is not available from other sources. Only the State or Indian tribe assessing the fee can be expected to accurately report on the purposes for which the fees are assessed and the total amount of fee revenue collected each year.
Therefore, we are revising the instructions for submitting an HMEP grant application to request that applicants expand on the currently required statement explaining whether the State or Indian tribe assesses and collects fees on the transportation of hazardous materials and whether such fees are used solely for purposes related to the transportation of hazardous materials. Beginning with the application for FY 2008 funds, applicants will be asked to respond to the following additional questions:
1. Does your State or tribe assess a fee or fees in connection with the transportation of hazardous materials?
2. If the answer to question 1 is “yes,”
a. What State agency administers the fee?
b. What is the amount of the fee and the basis on which the fee is assessed? Examples of the bases on which fees may be assessed include: (1) An annual fee for each company which transports hazardous materials within your state or tribal territory; (2) a fee for each truck or vehicle used to transport hazardous materials within your State or tribal
c. Is company size considered when assessing the fee? For instance, do companies meeting the Small Business Administration's (SBA) definition of a small business pay the same or lesser fee amount than companies that do not meet the SBA definition?
d. For what purpose(s) is the revenue from the fee used? For example, is the revenue used to support hazardous materials transportation enforcement programs? Is the fee used to support planning, developing, and maintaining an emergency response capability?
e. What is the total annual amount of the revenue collected for the last fiscal year or 12-month accounting period?
We do not anticipate that responding to these questions will significantly add to the total time required to complete the HMEP grant application. First, it is our understanding that many States and Indian tribes do not collect fees in connection with the transportation of hazardous materials. For those entities, there will be no additional time required to complete the application. For States and Indian tribes that do collect such fees, we estimate that responding to the question will add approximately two hours to the total time required to complete the HMEP application. Last year, 12 States and Indian tribes reported through their grant applications that they collect fees related to the transportation of hazardous materials. Therefore, for purposes of this information collection approval request, we estimate that 12 States and Indian tribes collect fees for which the additional information will be required.
HMEP grant recipients are required to monitor the performance of the activities supported by the grant funds to ensure compliance with Federal requirements and achievement of performance goals. Recipients must submit performance reports covering the activities funded by the HMEP grants. The performance reports are to include a comparison of actual accomplishments to the goals and objectives established for the performance period and the reasons for not achieving those goals and objectives, if applicable.
For planning grants, activities eligible for funding include:
(1) Development, implementation, and improvement of emergency plans and exercises that test the plan;
(2) Assessments to determine hazardous materials flow patterns;
(3) Assessments of emergency response capabilities;
(4) Emergency response drills and exercises associated with emergency preparedness plans; and
(5) Technical staff to support the planning effort.
For training grants, eligible activities include:
(1) Assessments of the number of public sector employees who need training;
(2) Development and delivery of comprehensive training to public sector employees, including activities necessary to monitor this activity, such as examinations, critiques, and instructor evaluations;
(3) Management of the training program to achieve increased benefits, proficiency, and rapid deployment of emergency responders.
Grant recipients generally provide performance reports detailing how HMEP grants were expended and the state or Indian tribe's achievements related to its planning and training efforts. These performance reports are used to evaluate the effectiveness of the HMEP grant program in improving hazardous materials transportation emergency response programs nationwide. We note in this regard that the National Transportation Safety Board (NTSB) recently completed its investigation of a July 10, 2005 railroad accident involving a head-on collision of two freight trains in Anding, Mississippi. As a result of its investigation, the NTSB issued several recommendations concerning emergency response communication and coordination. The NTSB specifically recommended that PHMSA require and verify that states and their communities receiving funds through the HMEP grant program conduct training exercises and drills with the joint participation of railroads and other transporters of hazardous materials as a means to evaluate state, regional, and local emergency response plans. We are considering how to address the NTSB recommendation; in the meantime, we strongly encourage HMEP grant recipients to conduct such exercises and drills.
To increase the transparency of the programs funded by HMEP grants and to enable us to more accurately evaluate the effectiveness of the HMEP program in meeting emergency response planning and training needs, beginning in 2008, we are proposing to ask HMEP grant recipients to report the following information in their performance reports:
1. Did you complete or update assessments of commodity flow patterns in your jurisdiction? If so, how many and what were the results of those assessments? What was the amount of planning dollars devoted to this effort? What percentage of total planning dollars does this represent?
2. Did you complete or update assessments of the emergency response capabilities in your jurisdiction? What factors did you consider to complete such assessments? How many assessments were completed and what were the results of those assessments? What was the amount of HMEP planning grant funds devoted to this effort? What percentage of total HMEP planning grant funds does this represent?
3. Did you develop or improve emergency plans for your jurisdiction? If so, how many plans were either developed or updated? Briefly describe the outcome of this effort. What was the amount of HMEP planning grant funds devoted to this effort? What percentage of total HMEP planning grant funds does this represent?
4. Did you conduct emergency response drills or exercises in support of your emergency plan? How many exercises or drills did you conduct? Briefly describe the drill or exercise (tabletop, computer simulation, real-world simulation, or other drill or exercise), the number and types of participants, including shipper or carrier participants, and lessons learned. What was the amount of HMEP planning grant funds devoted to this effort? What percentage of total HMEP planning grant funds does this represent?
5. Did you use HMEP planning grant funds to provide technical staff in support of your emergency response planning program? If so, what was the amount of HMEP planning grant funds devoted to this effort? What percentage of total HMEP planning grant funds does this represent?
6. How many Local Emergency Planning Committees (LEPCs) are located in your jurisdiction? How many LEPCs were assisted using HMEP funds? What was the amount of HMEP planning grant funds devoted to such assistance? What percentage of total HMEP planning grant funds does this represent?
1. Did you complete an assessment of the training needs of the emergency response personnel in your jurisdiction? What factors did you consider to complete the assessment? What was the result of that assessment? What was the amount of HMEP training grant funds devoted to this effort? What percentage of total HMEP training grants funds does this represent?
2. Provide details concerning the number of individuals trained in whole or in part using HMEP training grant funds. You should include separate indications for the numbers of fire, police, emergency medical services (EMS) or other personnel who were trained and the type of training provided based on the categories listed in standards published by the Occupational Safety and Health Administration at 29 CFR 1910.120 pertaining to emergency response training. (Note that “other” personnel include public works employees, accident clean-up crews, and liaison and support officers. Note also that if HMEP training grant funds were used in any way to support the training, such as for books or equipment, you should show that the training was partially funded by HMEP training grant funds.) What was the amount of training dollars devoted to this effort? What percentage of total training dollars does this represent?
3. Did you incur expenses associated with training and activities necessary to monitor such training, including, for example, examinations, critiques, and instructor evaluations? What was the amount of HMEP training grant funds devoted to this activity? What percentage of total HMEP training grant funds does this represent?
4. Did you provide incident command systems training? If so, provide separate indications for the numbers of fire, policy, EMS, or other personnel who were trained. What was the amount of HMEP training grant funds devoted to this effort? What percentage of total HMEP training grant funds does this represent?
5. Did you develop new training using HMEP training grant funds in whole or in part, such as training in handling specific types of incidents or specific types of materials? If so, briefly describe the new programs. Was the program qualified using the HMEP Curriculum Guidelines process? What was the amount of HMEP training grant funds devoted to this effort? What percentage of total HMEP training grant funds does this represent?
6. Did you use HMEP training grant funds to provide staff to manage your training program to increase benefits, proficiency, and rapid deployment of emergency responders? If so, what was the amount of HMEP training grant funds devoted to this effort? What percentage of total HMEP training grant funds does this represent?
7. Do you have a system in place for measuring the effectiveness of emergency response to hazardous materials incidents in your jurisdiction? Briefly describe the criteria you use (total response time, total time at an accident scene, communication among different agencies or jurisdictions, or other criteria). How many State and local response teams are located in your jurisdiction? What is the estimated coverage of these teams (
1. Using a scale of 1-5 (with 5 being excellent and 1 being poor), how well has the HMEP grants program met your need for preparing hazmat emergency responders?
2. Using a scale of 1-5 (with 5 being excellent and 1 being poor), how well do you think the HMEP grants program will meet your future needs?
3. What areas of the HMEP grants program would you recommend for enhancement?
We do not anticipate that responding to these questions will add significantly to the total time required to complete performance reports. HMEP grant recipients are required to submit performance reports, most of which should include some or all of the information we are requesting. We estimate that providing the specific information requested will add approximately three hours to the total time required for each grant recipient to complete its performance reports.
The questions listed above are intended to ensure that performance reports focus on results and include quantitative data on the planning and training programs funded by the HMEP grants. This data will enable us to more accurately assess the planning and training activities conducted by grant recipients and, thus, to evaluate the overall effectiveness of the HMEP program in improving overall hazardous materials transportation emergency preparedness and response. The data and information requested is only available from the states and Indian tribes participating in the HMEP grants program.
The total revised information collection budget for the HMEP grants program follows:
Progressive Rail Inc. (PRI), a Class III rail carrier,
The transaction is scheduled to be consummated on or about July 19, 2007.
PRI represents that: (1) The involved railroads do not connect with each other or with other railroads in their corporate families; (2) the transaction is not part of a series of anticipated transactions that would connect the railroads with each other or any railroad in their corporate families; and (3) the transaction does not involve a Class I rail carrier.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under section 11324 and 11325 that involve only Class III rail carriers. Accordingly, the Board may not impose labor protective conditions here, because all of the carriers involved are Class III carriers.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35051, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Michael J. Barron, Jr., Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 920, Chicago, IL 60606-2832.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Financial Management Service, Fiscal Service, Department of the Treasury
Notice.
This is Supplement No. 17 to the Treasury Department Circular 570, 2006 Revision, published June 30, 2006, at 71 FR 37694.
Surety Bond Branch at (202) 874-6850.
Notice is hereby given that the Certificates of Authority issued by the Treasury to the above-named companies under 31 U.S.C. 9305 to qualify as acceptable sureties on Federal bonds were terminated effective August 17, 2006. Federal bond-approving officials should annotate their reference copies of the Treasury Department Circular 570 (“Circular”), 2006 Revision to reflect this change.
With respect to any bonds currently in force with these companies, bond-approving officers may let such bonds run to expiration and need not secure new bonds. However, no new bonds should be accepted from these companies, and bonds that are continuous in nature should not be renewed.
The Circular may be viewed and downloaded through the Internet at
Questions concerning this notice may be directed to the U.S. Department of the Treasury, Financial Management Service, Financial Accounting and Services Division, Surety Bond Branch, 3700 East-West Highway, Room 6F01, Hyattsville, MD 20782.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
The Federal Motor Carrier Safety Administration (FMCSA) adopts as final certain regulations required by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). These regulations govern State compliance plans under the Motor Carrier Safety Assistance Program; withholding of Federal-aid highway funds based on State noncompliance with the Commercial Driver's License Program; intrastate operations of interstate motor carriers; civil penalties and disqualifications for violations of out-of-service orders; civil penalties for denial of access to records and property and for violations of statutes and regulations governing hazardous materials transportation; exemption from the Federal hours-of-service regulations for operators of commercial motor vehicles engaged in certain defined operations; exemption of drivers of propane service or pipeline emergency vehicles during emergency conditions requiring immediate response; and interstate transportation of household goods. The SAFETEA-LU provisions requiring these rules became effective on August 10, 2005. Adoption of the rules is a nondiscretionary ministerial action that can be taken without issuing a notice of proposed rulemaking and receiving public comment, in accordance with an exception available to Federal agencies under the Administrative Procedure Act.
September 4, 2007.
Mr. Frederic L. Wood, Office of Chief Counsel, Regulatory Affairs Division (MC-CCR), Federal Motor Carrier Safety Administration, Room W61-307, 1200 New Jersey Avenue, SE., Washington, DC 20590; by telephone at (202) 366-0834, or by electronic mail at
This final rule is based on the authority of the Federal Motor Carrier Safety Administration (FMCSA) to implement statutory directives enacted by several provisions of the Safe Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005) (SAFETEA-LU). SAFETEA-LU enacted a wide range of provisions modifying various regulatory programs administered by FMCSA affecting motor carriers and related entities. A number of statutory provisions made changes that were mandatory, and their implementation does not require the exercise of discretion by FMCSA.
These statutory changes went into effect upon enactment of SAFETEA-LU on August 10, 2005. However, it is necessary to make conforming changes in the regulations administered by FMCSA to ensure these rules are consistent with the applicable statutes and can be applied and enforced. The provisions enacted by SAFETEA-LU and implemented in this final rule are as follows:
Each of the statutory provisions listed above may be incorporated in regulations adopted by FMCSA under authority granted by one or more of the following provisions: 49 U.S.C. 502, 13301, 31102, 31136, or 31317. FMCSA is authorized to implement these statutory provisions by delegation from the Secretary of Transportation in 49 CFR 1.73.
As noted previously, Congress gave the Agency no discretion with respect to implementation of these SAFETEA-LU provisions, and the action taken in this final rule is necessary to conform the Agency's regulations to the statutory directives. Therefore, the Agency may adopt this rule without issuing a notice of proposed rulemaking and receiving public comment, in accordance with an exception available to Federal agencies under the Administrative Procedure Act. The
The final rule adopts these nondiscretionary ministerial regulations under title 49 of the Code of Federal Regulations. The specific changes necessary to conform the regulations to the statutory provisions are described in the next section.
The Federal Motor Carrier Safety Regulations (FMCSRs) amended by this final rule encompass diverse subject areas. These subject areas include State compliance plans under the Motor Carrier Safety Assistance Program; withholding of Federal-aid highway funds based on State noncompliance with the Commercial Driver's License Program; intrastate operations of interstate motor carriers; civil penalties and disqualifications for violations of out-of-service (OOS) orders; civil penalty assessments applicable to motor carriers, brokers, and freight forwarders for denial of access to records and property; civil penalties for violations of statutes and regulations governing hazardous materials transportation; exemption from the Federal hours-of-service regulations for operators of commercial motor vehicles (CMVs) engaged in certain defined operations; exemption of drivers of propane service or pipeline emergency vehicles during emergency conditions requiring immediate response; and interstate
Sec. 4106 of SAFETEA-LU (119 Stat. 1717) amends 49 U.S.C. 31102(b)(1) to modify and augment the conditions a State must meet to qualify for basic program funds under the MCSAP. The statute requires a State to document in the State Commercial Vehicle Safety Plan (CVSP) its commitment to meet the following seven additional conditions:
• Deploy technology to enhance the efficiency and effectiveness of CMV safety programs;
• Establish a program to ensure that accurate, complete, and timely motor carrier safety data are collected and reported to the Secretary of Transportation (Secretary);
• Participate in a national motor carrier safety data correction system prescribed by the Secretary;
• Include, in both the training manual for the licensing examination to drive a non-CMV and the training manual for the licensing examination to drive a CMV, information on best practices for driving safely in the vicinity of noncommercial and commercial motor vehicles;
• Enforce the registration (operating authority) requirements of 49 U.S.C. 13902 by prohibiting the operation of any vehicle discovered to be operated by a motor carrier without the required operating authority or beyond the scope of the motor carrier's operating authority;
• Conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors; and
• Except in the case of an imminent or obvious safety hazard, ensure that an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a station, terminal, border crossing, maintenance facility, destination, or other location where a motor carrier may make a planned stop.
Sec. 4106 also modifies the benchmark by which the State ensures the continuity of annual State expenditures for CMV safety programs documented in the CVSP. Prior to enactment of SAFETEA-LU, section 31102(b)(1)(E) required that the State's total annual expenditures for CMV safety programs “be maintained at a level at least equal to the average level of such expenditures for fiscal years 1997, 1998, and 1999.” Sec. 4106 updates and standardizes this benchmark by replacing the words “for fiscal years 1997, 1998, and 1999” with the words “3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year.” This new benchmark ensures aggregate annual expenditures for CMV safety programs reflect the States' previous levels of effort.
Additionally, sec. 4106 amends section 31102(c) to provide that a State may use a portion of MCSAP grant funds to conduct documented enforcement of State traffic laws—both laws and regulations designed to promote the safe operation of CMVs and laws and regulations relating to non-CMVs, when necessary to promote the safe operation of CMVs—provided the State maintains a level of motor carrier safety activities at least equal to its average level of such activities for fiscal years 2003, 2004, and 2005. However, the statute limits the portion of MCSAP basic program funds a State may use for noncommercial motor vehicle-related enforcement activities to no more than 5 percent, unless the Secretary determines a higher percentage will result in significant increases in CMV safety.
Sec. 4107(a) of SAFETEA-LU amends 49 U.S.C. 31104 to add a provision specifying the safety performance criteria for distribution of High Priority Activity funds as part of the MCSAP grants, as well as the set-aside amounts and eligible grant recipients. Under the newly enacted and currently effective provisions of section 31104(k)(2), the Secretary may set aside up to $15,000,000 for each fiscal year through 2009 for States, local governments, and organizations representing government agencies or officials that use and train qualified officers and employees in coordination with State motor vehicle safety agencies. Sec. 31104(k)(4) provides that at least 90 percent of the amounts set aside shall be awarded in grants to State and local government agencies.
Sec. 4107(b) amends section 31144 to add a similar provision concerning New Entrant Funds. Under the newly enacted and currently effective provisions of section 31144(f), the Secretary shall set aside up to $29,000,000 from MCSAP grant funds per fiscal year and may make grants from this amount to State and local governments for new entrant motor carrier audits, without requiring a matching contribution from such governments. In addition, if the Secretary determines that a State or local government is not able to use government employees to conduct new entrant motor carrier audits, the Secretary may use the funds set aside to conduct such audits for the State or local government.
Sec. 4124(c) of SAFETEA-LU (119 Stat. 1730) amends 49 U.S.C. 31314(a) and (b) by providing that the Secretary shall withhold from a State, based on noncompliance with the Commercial Driver's License (CDL) Program, “up to” a specified percentage (5 percent and 10 percent for the first and subsequent years, respectively) of Federal-aid highway funds apportioned to the State under 23 U.S.C. 104(b)(1), (3), and (4). As the Federal-aid withholding amounts previously were fixed at the above-noted percentages, this provision allows FMCSA a certain amount of discretion in determining the amount of Federal-aid highway funds to be withheld from a given State.
Sec. 4114 of SAFETEA-LU (119 Stat. 1725) amends 49 U.S.C. 31144 by enhancing FMCSA's regulatory authority over the intrastate operations of interstate motor carriers and by directing the Agency to consider, as part of determining the safety ratings of interstate carriers that also operate in Canada and Mexico, the carriers' safety records in those countries. Specifically, Sec. 4114(a) amends section 31144(a) to affirm the Agency's authority, for the purposes of determining safety fitness ratings, to consider “among other things the accident record” (i.e., record of crashes) and safety inspection records of “an owner or operator operating in interstate commerce” and also “the accident record and safety inspection record of such owner or operator * * * in operations that affect interstate commerce.” Motor carriers already are required by 49 CFR 390.15 to record intrastate accidents on their accident registers. See
Sec. 4114(b) provides that if FMCSA determines a motor carrier is unfit and prohibits the carrier from operating in interstate commerce, the Agency also must place out of service the carrier's operations affecting interstate commerce.
Finally, section 4114(c) provides that, if a State receiving MCSAP funds and using FMCSA's safety rating methodology prohibits the intrastate operations of a carrier whose principal place of business is in that State, FMCSA must take reciprocal action by prohibiting the motor carrier from operating in interstate commerce.
It should be noted that section 4114(a) allows FMCSA to utilize, for purposes of evaluating the safety fitness of motor carriers that operate in the United States, data on “the accident record and safety inspection record * * * in operations in Canada and Mexico” whether the owner or operator is domiciled in Canada, Mexico, or the United States. This amendment expands the scope of 49 U.S.C. 31144(a)(1), but it is not an exercise of extraterritorial jurisdiction, because any fitness determinations resulting from utilization of this additional data would be effective only in the United States. Procedures for conducting compliance reviews on Mexico-domiciled carriers are set forth in part 385, subpart B; and FMCSA selectively conducts compliance reviews on Canada-domiciled motor carriers as appropriate. Discussions on harmonizing procedures for safety fitness determinations and expanding data sharing efforts are currently in progress with Mexico and Canada. Implementation of such agreements and procedures will be necessary to make more Canadian and Mexican data available for this purpose.
Sec. 4102(b)(2)-(4) of SAFETEA-LU (119 Stat. 1715) amends 49 U.S.C. 31310(i)(2) by increasing minimum CDL disqualification periods and civil penalty amounts applicable to drivers convicted of violating a driver or vehicle OOS order. It also increases the maximum civil penalty assessment applicable to employer violations of OOS orders.
SAFETEA-LU does not affect the maximum disqualification periods prescribed in the FMCSRs for violating an OOS order. The minimum and maximum disqualification periods in the FMCSRs for OOS violations while transporting hazardous materials are also unchanged.
Sec. 7112 of SAFETEA-LU (119 Stat. 1899) amends 49 U.S.C. 5113 and 31144 to provide that an interstate motor carrier owning or operating CMVs designed or used to transport hazardous materials for which placarding of a motor vehicle is required under chapter 51 of 49 U.S.C., that operates in interstate commerce after being placed out of service because of a final “unsatisfactory” safety rating, is subject to the civil and criminal penalties set forth in 49 U.S.C. 5123 and 5124. Those are penalties for violations of the Hazardous Materials Regulations (HMRs) that are higher than those found in the general civil and criminal penalty provisions under 49 U.S.C. 521 for violations of the FMCSRs. The maximum penalties available are increased to $100,000 per offense in cases where a violation results in death, serious illness, or severe injury to any person or substantial destruction of property.
Sec. 7120 of SAFETEA-LU (119 Stat. 1905) amends 49 U.S.C. 5123 and 5124 to revise the maximum and minimum civil penalties pertaining to violations of the HMRs, including violations related to hazardous materials training. The maximum penalties that may be applied are increased to $100,000 per offense in cases where a violation results in death, serious illness, or severe injury to any person or substantial destruction of property. The amendments to the FMCSRs allow FMCSA, in the exercise of its concurrent authority to enforce the HMRs, to apply the penalties prescribed in the hazardous materials law.
Sec. 4103 of SAFETEA-LU (119 Stat. 1716) amends 49 U.S.C. 521 by adding section 521(b)(2)(E), “Copying of records and access to equipment, lands, and building.” This section establishes a civil penalty applicable to a person subject to 49 U.S.C. chapter 51, or to a motor carrier, broker, freight forwarder, or CMV owner or operator subject to part B of subtitle VI, who does not allow, upon demand, the Secretary (or an employee designated by the Secretary) to inspect and copy any record or inspect and examine equipment, lands, buildings, and other
The primary goal of sec. 4103 is to compel uncooperative parties subject to the FMCSRs and/or the HMRs to promptly produce relevant records and allow access to property upon demand by credentialed FMCSA employees. As provided in the last sentence of section 521(b)(2)(E), additional remedies under 49 U.S.C. 502(d) and 507(c) are available to FMCSA to address situations not covered by the civil penalties added by sec. 4103.
The statutory history of these provisions is complex. First, Sec. 4115 of SAFETEA-LU (119 Stat. 1726) amends title II of the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159, 113 Stat. 1748-1773) (MCSIA) to add a new sec. 229, set out as a note to 49 U.S.C. 31136.
Section 4147 of SAFETEA-LU (119 Stat. 1749) added a new subsection (f) to sec. 229 of MCSIA to provide an exception from regulations prescribed under the authority of 49 U.S.C. 31136 or 49 U.S.C. 31502 for drivers of CMVs used primarily in the transportation of propane winter heating fuel or used to respond to a pipeline emergency, if such a regulation would prevent the driver from responding to an emergency condition requiring immediate response. This exception applies to the driver, not to the CMV. Therefore, the regulations from which these drivers will be exempted while such emergency conditions prevail are limited to those in 49 CFR parts 390-399 that apply to the driver. The driver will not be exempted from the controlled substances and alcohol use and testing regulations and the commercial driver's license regulations in parts 382 and 383, respectively, because those regulations are prescribed under 49 U.S.C. chapter 313 rather than under sections 31136 or 31502 specified in section 4147.
The exception applies only when an otherwise applicable regulation in parts 390-399 would prevent the driver from responding to an emergency condition requiring immediate response. The driver's exemption from applicable regulations is not automatic or carte blanche. Rather, the determination whether the exemption is applicable must be made on a case-by-case basis after consideration of all facts and circumstances related to the emergency condition. Further, the circumstances that may constitute emergency conditions requiring immediate response are not limited to those identified in the statute. Any claim by the motor carrier or the driver that circumstances not specified in the statute constitute such an emergency condition must be evaluated by motor carrier enforcement personnel on a case-by-case basis.
This final rule amends certain FMCSRs governing elements of the interstate transportation of household goods, as follows:
Sec. 4202(b) of SAFETEA-LU (119 Stat. 1751) amends 49 U.S.C. 13102 by adding the statutory definitions for “household goods motor carrier” and “individual shipper.” The new statutory definition for individual shipper modifies the existing definition in 49 CFR 375.103. This final rule adds to § 375.103 the statutory definition of a household goods motor carrier. Under the definition, a motor carrier that transports household goods is considered a household goods motor carrier if it offers some or all of four additional services: (1) Providing binding and nonbinding estimates; (2) inventorying; (3) protective packing and unpacking of individual items at personal residences; and (4) loading and unloading at personal residences. As required by the statute, the definition excludes a motor carrier transporting household goods in containers or trailers that are entirely loaded and unloaded by an individual who is not employed by or acting as an agent of the carrier. Only carriers that are considered household goods motor carriers are subject to the provisions of 49 CFR part 375.
Sec. 4202(c) of SAFETEA-LU provides that the statutes (and, by extension, the implementing regulations) governing the transportation of household goods apply only to household goods motor carriers, as now defined in 49 U.S.C. 13102. Household goods motor carriers are subject in addition to provisions of statutes and regulations applicable to all motor carriers of property, unless specifically excluded.
Sec. 4203 of SAFETEA-LU amends 49 U.S.C. 13707(b) to limit the transportation charges individual shippers must pay to household goods motor carriers to obtain delivery of a shipment of household goods and to regulate procedures concerning additional charges.
Sec. 4205 of SAFETEA-LU (119 Stat. 1753) amends 49 U.S.C. 14104(b) by requiring the household goods motor carrier to conduct a physical survey of the household goods to be transported on behalf of the individual shipper. The carrier must then provide the shipper with a written estimate, based on the physical survey, of charges for the transportation and all related services. The statute permits two exceptions to the requirement for a physical survey.
First, the motor carrier need not conduct a physical survey if the household goods are located beyond a 50-mile radius of the location of the carrier's household goods agent preparing the written estimate provided to the individual shipper.
Second, the individual shipper may elect to waive a physical survey of the household goods. Such a waiver agreement is subject to several requirements. The waiver must be in writing; it must be signed by the individual shipper before the household goods shipment is loaded; and the motor carrier must retain a copy of the waiver as an addendum to the bill of lading. The copy of the waiver agreement is subject to the same record retention requirements that apply to the bill of lading, as provided in § 375.505(d).
Section 4205 also codified or added certain requirements for household goods motor carriers to provide two informational publications to individual shippers—“Ready to Move?” and “Your Rights and Responsibilities When You Move” or any successor publications.
Sec. 4207 of SAFETEA-LU (119 Stat. 1757) amends the liability provisions in 49 U.S.C. 14706(f) to impose on the household goods motor carrier a “full value protection obligation” with respect to the individual shipper. The motor carrier is liable for the full value of household goods that are lost, damaged, destroyed or otherwise not delivered to the final destination unless the individual shipper waives such liability in writing. The carrier's liability is equal to the replacement value of the household goods, subject to a maximum amount equal to the declared value of the shipment and to rules issued by the Surface Transportation Board (STB) and applicable tariffs. If the household goods motor carrier receives from the individual shipper a written waiver of liability for full value protection, the released rates established by the STB shall apply.
Sec. 4208 of SAFETEA-LU (119 Stat. 1757) amends the provisions governing procedures for arbitration of disputes in 49 U.S.C. 14708 as follows—
Sec. 14708(b), as amended by section 4208(b), increases from $5,000 to $10,000 the threshold amount at which the carrier must agree to submit certain disputes to binding arbitration at the individual shipper's request. If the dispute involves a claim of $10,000 or less and the shipper requests arbitration, the arbitration shall be binding on the parties. If a shipper requests arbitration involving a claim of more than $10,000, the decision of the arbitrator shall be binding on the parties only if the carrier agrees to the arbitration. Sec. 14708(b) is further amended by section 4208(c) to provide that the arbitrator may, among other appropriate remedies listed in the statute, order the shipper to pay additional carrier charges.
Sec. 4210 of SAFETEA-LU (119 Stat. 1758) amends chapter 149 of title 49 U.S.C. to add section 14915, which makes household goods motor carriers subject to civil and criminal penalties, as well as to suspension of registration, for failure to give up possession of the household goods upon tender of appropriate payment by the individual shipper. The civil penalty shall be not less than $10,000 for each violation, and each day the household goods are held hostage constitutes a separate violation. A violation may additionally result in the suspension of the household goods
In part 350, we revise §§ 350.111, 350.201, 350.211, and 350.309 to implement the amended requirements in sec. 4106(c)(2) of SAFETEA-LU concerning MCSAP-eligible funding for documented enforcement of State and local traffic laws and regulations designed to promote the safe operation of CMVs and non-CMVs. We further amend § 350.201, and amend § 350.301, to align the qualifying conditions for MCSAP Basic Program Funds and expenditure levels with those in sec. 4106(a)(1)(A), (a)(2)(E), (a)(3)(Q), (A)(3)(U), (A)(3)(V), and (A)(3)(X). These expanded requirements are captured as well in amended § 350.211, which provides the required format of the certification necessary for receipt of MCSAP Basic Program funding. The revisions to § 350.111 include minor editorial clarifications.
Changes to part 350 also are required by sec. 4107 of SAFETEA-LU, which amends the provisions regarding High Priority Activity funds and adds provisions for New Entrant Funds. In § 350.105, we amend the definition for High Priority Activity Funds and add a definition for New Entrant Funds to implement sec. 4107(a) and (b), respectively. As required by sec. 4107(a), High Priority funds are now to be allocated only to “State agencies, local governments, and organizations representing government agencies or officials that use and train qualified officers and employees in coordination with State motor vehicle safety agencies,” and used for “carrying out high priority activities and projects that improve commercial motor vehicle safety * * *.” Additionally, projects eligible for high priority funds include demonstration of new technologies and public awareness and education.
We implement this heightened specificity regarding High Priority grant recipients not only in the amended definition under § 350.105 but also in § 350.313(c). The set-asides for High Priority and New Entrant grants provided in sec. 4107(a) and (b), respectively, are implemented in § 350.313(a). The High Priority annual set-aside (which is up to $15,000,000 for fiscal years 2006 through 2009) is implemented as well in § 350.319(d).
Similarly, § 350.321(d) provides that in each fiscal year the Administrator shall set aside for New Entrant activities an amount of MCSAP funding up to the maximum allowed by law. For each year, the maximum allowable amount is $29,000,000. To allow for future adjustments of the set-aside amounts by Congress, the regulatory text does not specify the amounts and applicable fiscal years. Section 350.321 (whose heading is revised to read, “What are permissible uses of New Entrant Funds?”) provides in addition that FMCSA will allocate New Entrant funds to State and local governments without requiring a matching contribution.
We further implement sec. 4107 in § 350.329, whose heading is revised to read “How may a State or local agency qualify for High Priority or New Entrant Funds?”
Finally, we remove § 350.217. This section concerns MCSAP grant funds authorized under sec. 103(b)(1) of MCSIA, which is no longer in effect.
We amend § 375.103 to revise the definition of “individual shipper”, to add a definition for “household goods motor carrier”, as required by sec. 4202(b) of SAFETEA-LU, and to revise the related definitions of “you” and “your” to reflect the new definition. As sec. 4202(c) limits the applicability of the regulations governing interstate transportation of household goods to household goods motor carriers as defined in sec. 4202(b), we amend § 375.101, entitled “Who must follow these regulations?”, to replace the words “for-hire motor carrier” with the words “household goods motor carrier,” consistent with the definition in § 375.103.
To implement the sec. 4207 requirement that the motor carrier provide the individual shipper with full value protection against loss of, or damage to, household goods, unless the shipper waives the carrier's full value liability in writing, we amend §§ 375.201(b) and (c), 375.501(a)(10), 375.505(b)(12), and the sections “What Is My Mover's Normal Liability for Loss or Damage When My Mover Accepts Goods From Me?” and “What Actions by Me Limit or Reduce My Mover's Normal Liability?” in subpart B of appendix A to part 375.
We amend § 375.211 to implement the sec. 4208 requirements governing arbitration of disputes between the carrier and shipper regarding loss of or damage to the household goods. The introductory text to amended § 375.211(a) implements the provision in section 4208(c) requiring arbitration on the issue of whether the individual shipper must pay additional carrier charges not collected at delivery. Sections 375.211(a)(7) and (8) implement the increased claim-amount thresholds at which arbitration requested by the individual shipper shall be binding, as provided in section 4208(b). Both provisions also are described in subpart B of appendix A to part 375, under “Must My Mover Have an Arbitration Program?”. The section 4208(c) provision concerning payment of additional carrier charges not collected at delivery is described as well in the section “Do I Have a Right To File a Claim To Recover Money for Property My Mover Lost or Damaged?” under subpart H of this appendix.
We amend § 375.213 by revising paragraph (a) to implement the sec. 4205 requirement that the carrier provide the shipper a copy of the Department of Transportation publication FMCSA-ESA-03-005 entitled “Ready to Move?” (or its successor publication)
The requirement in 49 U.S.C. 14104(b)(2) for the household goods motor carrier to provide the shipper with a copy of the publication “Your Rights and Responsibilities When You Move” is already contained in § 375.213. The contents of this publication are specified in Appendix A to part 375. The publication was reissued in 2006 (71 FR 17945, Apr. 7, 2006) to reflect most, but not all, of the statutory changes implemented by regulations now adopted in this final rule.
We amend §§ 375.401(a), 375.403(a), and 375.405(b)(1) to implement the sec. 4205 requirement that the motor carrier's written estimate (whether binding or non-binding) be based on a physical survey of the household goods. The two exceptions to this requirement—the physical survey is not required if the household goods are located beyond a 50-mile radius of the carrier's agent preparing the estimate or if the shipper waives the requirement in writing—are found in amended §§ 375.401(a)(1) and (2). Amended §§ 375.403(a) and 375.405(b) include minor editorial revisions. Corresponding information is provided to the individual shipper in the section “Must My Mover Estimate the Transportation and Accessorial Charges for My Move?” under subpart D of Appendix A to part 375.
We further amend §§ 375.401, 375.403, 375.405, and 375.407 to implement certain provisions of 49 U.S.C. 13707(b), as amended by sec. 4203 of SAFETEA-LU. Under amended section 13707(b)(3)(C), the motor carrier may charge the shipper at delivery for post-contract services requested by the shipper. Post-contract services means services requested by the individual shipper after the bill of lading, which contains the terms and conditions of the contract between the carrier and the individual shipper, has been issued as provided in 49 CFR 375.505(a). Under amended section 13707(b)(3)(D), the carrier may require the shipper to pay charges at delivery for impracticable operations, provided these charges do not exceed 15 percent of all other charges due at delivery, and allow the shipper only a 30-day credit period for the remaining charges. These rules are implemented in §§ 375.401(e), 375.403(a)(9) and (10); 375.405(b); 375.407(a), (b), and (d); 375.703, 375.707(a)(2) and (3); 375.807(c)(1); and appendix A to part 375. A minor, clarifying editorial revision is included in § 375.407(b).
The Appendix A revisions noted above are found in subparts D, G, and H. See “Must My Mover Estimate the Transportation and Accessorial Charges for My Move?”; “How Must My Mover Estimate Charges Under the Regulations?”; and “What Payment Arrangements Must My Mover Have in Place To Secure Delivery of My Household Goods Shipment?” in subpart D; “What Is the Maximum Collect-on-Delivery Amount My Mover May Demand I Pay at the Time of Delivery?” in subpart G; and “How Must My Mover Present Its Freight or Expense Bill to Me?”; “If I Forced My Mover To Relinquish a Collect-on-Delivery Shipment Before the Payment of ALL Charges, How Must My Mover Collect the Balance?”; and “What Actions May My Mover Take To Collect From Me the Charges Upon Its Freight Bill?” in subpart H.
We implement in § 375.707 the sec. 4203 prohibition (as codified in amended 49 U.S.C. 13707(b)(3)(B)) against a motor carrier's demanding full payment of freight charges at delivery after making only partial delivery of a shipment. Corresponding information is provided to individual shippers in the amended section “If My Shipment Is Partially Lost or Destroyed, What Charges May My Mover Collect at Delivery?” under subpart G of appendix A to part 375.
In part 383, we implement the increased civil penalty assessments against drivers and employers for violations of OOS orders (provided in sec. 4102(b)(2)-(4) of SAFETEA-LU) by amending § 383.53(b)(1) and (2), respectively. The increased minimum disqualification periods for drivers convicted of such violations are implemented in amended table 4 to § 383.51 (§ 383.51(e)).
We implement the sec. 4124(c) provision concerning Federal-aid highway fund withholding amounts based on State noncompliance with the CDL Program in amended § 384.401(a) and (b), respectively (as renumbered as a result of the change described in the next paragraph), by replacing, in the phrase “equal to 5 percent” and the phrase “equal to 10 percent,” the words “equal to” with “up to.” We also add § 384.301(c), which allows States up to 3 years from the effective date of the final rule to come into compliance with the newly adopted requirements of subpart B to part 384. This provides sufficient time for the States to revise State legislation and establish procedures to incorporate the new requirements into existing systems.
In addition, this final rule makes a technical correction by removing §§ 384.401(a)(2) and (b)(2) and renumbers the preceding paragraphs accordingly. Like the previously discussed § 350.217, also being removed in this rule, §§ 384.401(a)(2) and (b)(2) refer to certain MCSAP grant funds authorized under sec. 103(b)(1) of MCSIA, which is no longer in effect.
Sec. 4114 of SAFETEA-LU enhances FMCSA's regulatory authority over the intrastate operations of interstate motor carriers (
“Motor carrier operations in commerce” are defined as including both CMV transportation operations in interstate commerce and operations affecting interstate commerce in conformity with the statutory grant of authority. We use the term “motor carrier operations in commerce” throughout amended part 385—specifically §§ 385.7, 385.13, 385.17(g), and appendix B to part 385 (in new paragraph (f) and amended § II(B)). Minor editorial revisions are included in amended § 385.17(g) and § II(B) of appendix B to part 385.
To implement sec. 4114(a), which allows FMCSA to utilize among other things, for the purposes of safety ratings, the accident record and safety inspection record of an owner or operator operating in interstate commerce and the accident record and safety inspection record of an owner or operator in operations that affect interstate commerce, both within the United States and (as such data becomes available) in operations in Canada and Mexico if the owner or operator also operates within the United States, we amend §§ 385.7(c), (d), (f), and (g).
We amend § 385.13(d)(1) to implement sec. 4114(b), which provides that if FMCSA determines that a motor carrier is unfit and then prohibits the carrier from operating in interstate commerce, the Agency also must place out of service any operations by the carrier that affect interstate commerce. Operations that affect interstate commerce are essentially any intrastate operation. We implement in § 385.13(d)(2) and (3) the complementary provision under sec. 4114(c) which requires that if a State receiving MCSAP funds and using FMCSA's safety rating methodology prohibits the intrastate operations of a carrier whose principal place of business is in that State, FMCSA must
In Appendix B to part 386, as required by sec. 7112 of SAFETEA-LU, we implement the increased maximum civil penalties to which motor carriers transporting hazardous materials in interstate commerce in quantities requiring placarding (in accordance with 49 U.S.C. chapter 51) are subject following receipt of a final “unsatisfactory” safety rating by revising paragraph (e)(1), revising and redesignating paragraph (e)(3), and adding paragraphs (e)(4) and (f)(2). The increased civil penalties in sec. 7120(a)(3) for violations of training-related HMRs are implemented in amended paragraph (e)(2) and new paragraph (f)(2) of this appendix B. New paragraphs (e)(5) and (f)(2) implement the higher civil penalties in sec. 7120(a)(2) for violations of statutes and regulations governing hazardous materials transportation where the violation results in death, serious illness, or severe injury to any person or in substantial destruction of property.
New paragraph (g)(21) of this appendix B implements the civil penalty established in sec. 4210 of SAFETEA-LU for failure by a household goods motor carrier to relinquish a shipment for which the individual shipper has tendered payment in accordance with part 375. Lastly, we add paragraph (h) to this appendix B to implement the civil penalty established in sec. 4103 for a motor carrier, broker, or freight forwarder, or any person subject to 49 U.S.C. chapter 51, who denies FMCSA the right to access the company's records and facilities.
In part 390, we implement sec. 4147 of SAFETEA-LU by adding to the existing exceptions in § 390.3(f) the exception for drivers responding to emergency conditions, and by adding in § 390.5 a definition for “emergency condition requiring immediate response.” As provided in §§ 382.103(c) and 383.3(b), the exceptions in § 390.3(f) are not applicable to part 382, Controlled Substances and Alcohol Use and Testing, and part 383, Commercial Driver's License Standards; Requirements and Penalties.
Sec. 4130, 4132, 4133, and 4146 of SAFETEA-LU provide specific exceptions from the hours-of-service regulations for operators of vehicles transporting agricultural commodities and farm supplies, operators of utility service vehicles, transportation of property or passengers to or from motion picture production sites, and operators of CMVs transporting grapes west of Interstate 81 in the State of New York during a harvesting period, respectively. We implement sec. 4130 and 4132 by amending §§ 395.1(k)(2) and (n), respectively. Sec. 4133 is implemented by adding § 395.1(p), while the sec. 4146 exemption concerning the transportation of grapes during the harvest period in New York is implemented by adding § 395.1(q).
Generally agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the Administrative Procedure Act (APA), as provided in 5 U.S.C. 553(b) and (c). The APA, in 5 U.S.C. 553(b)(3)(B), provides a good cause exception from these requirements when notice and an opportunity to comment would be unnecessary. FMCSA finds that notice-and-comment is unnecessary prior to adoption of each provision in this final rule because the changes to regulations are statutorily mandated by Congress and the Agency is performing a nondiscretionary ministerial act. Therefore, notice-and-comment procedures under 5 U.S.C. 553 are not required by the APA and are not otherwise required by law.
FMCSA determined that this action does not meet the criteria for a “significant regulatory action” either as specified in Executive Order 12866 or within the meaning of Department of Transportation regulatory policies and procedures (44 FR 11034, Feb. 26, 1979). Therefore, this rule has not been reviewed by the Office of Management and Budget (OMB). We anticipate the economic impact of this rulemaking will be so minimal that a full regulatory evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.
Although a full regulatory evaluation is unnecessary because of the low economic impact of this rulemaking, FMCSA prepared a cost-benefit analysis of the impact of the various SAFETEA-LU provisions implemented by this final rule. This economic analysis examined each provision to determine whether it is economically significant,
Generally, the provisions of this final rule entail minor changes to operating procedures in specific segments of the industry that will have little if any impact on industry costs. Our analysis shows that the sec. 4114 provisions governing the intrastate operations of interstate carriers placed out of service as a result of an “unsatisfactory” safety rating, and the accident and safety records of interstate carriers while operating in Canada and/or Mexico, will negatively impact a small number of carriers. In addition, some motor carriers who transport household goods will bear added costs due to this rule. These provisions will not impose costs of $100 million or more in any one year. Moreover, given the poor safety ratings of the small number of motor carriers affected by the intrastate operations provision, placing their intrastate operations out of service would likely produce modest safety benefits. FMCSA believes, therefore, that the collective impacts of provisions in this final rule will not be economically significant.
Prior to prescribing any regulations under chapter 311 of title 49 U.S.C., FMCSA must consider their costs and benefits “to the extent practicable and consistent with the purposes of” that chapter. 49 U.S.C. 31136(c)(2)(A). The changes in 49 U.S.C. 31144 made by sec. 4114 of SAFETEA-LU are subject to this requirement. As indicated in the Regulatory Evaluation, these changes will result in a modest net safety benefit each year.
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1532) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. The regulations adopted in this final rule, taken together, will not impose an unfunded Federal mandate resulting in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $128.1 million or more (as adjusted for inflation) in any one year. Therefore, FMCSA is not required either to consult with elected State officials or to comply with other requirements of this statute.
This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999 (64 FR 43255, Aug. 10, 1999). The requirements being promulgated in this final rule are required by statute. Although the regulation implementing sec. 4114 of SAFETEA-LU may appear, from a technical standpoint, to preempt State law, the Agency promulgates this rule exercising no discretion, since the statutory provisions are self-executing. Based on the preemptive effect of sec. 4114, FMCSA has consulted with elected State officials regarding the effects of this final rule. However, since this rule is not significant as defined by Executive Order 12866, no Federalism Summary Impact statement is required.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to the programs covered by this final rule.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. FMCSA analyzed each provision of this final rule and determined that certain provisions require changes to existing information collections (ICs). The IC revisions will require approval by OMB before taking effect. The affected ICs are titled “Motor Carrier Safety Assistance Program” (2126-0010), and “Transportation of Household Goods; Consumer Protection” (2126-0025).
In November 2006, the Agency published a
These two ICs affected by this final rule, and the total annual burden hours estimated by FMCSA, are as follows:
The Agency received one comment in response to the November notice, which contained no substantive remarks pertaining to any of the information collections, and consequently was not incorporated into the supporting statement. Subsequently in April 2007, FMCSA published in the
The Agency analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
FMCSA conducted an Environmental Assessment (EA) to analyze the impacts of these two provisions. The Agency's EA finds that the provisions collectively will have no significant environmental impacts. It includes a chart indicating whether or not the provisions are categorically excluded from environmental analysis and the CE for each, where applicable.
Based upon the EA findings, no Environmental Impact Statement is required for this rule. The Agency prepared a Finding of No Significant Impact (FONSI) in accordance with the procedures in FMCSA Order 5610.1 and NEPA requirements and guidance.
We also analyzed this action under section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401
FMCSA 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 as a procedural action it is not economically significant and will not have a significant adverse effect on the supply, distribution, or use of energy.
FMCSA evaluated the environmental effects of this final rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. None of the alternatives analyzed in the Agency's EA, discussed under
FMCSA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not create an environmental risk to health or safety that would disproportionately affect children. Therefore, we have determined the rule is not a “covered regulatory action” as defined under Executive Order 13045.
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.
This rule will not effect a taking of private property or otherwise have takings implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Advertising, Arbitration, Consumer protection, Freight, Highways and roads, Insurance, Motor carriers, Moving of household goods, Reporting and recordkeeping requirements.
Administrative practice and procedure, Commercial driver's license, Commercial motor vehicles, Highway safety, Motor carriers.
Administrative practice and procedure, Commercial driver's license, Commercial motor vehicles, Highway safety, Motor carriers.
Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Brokers, Freight forwarders, Hazardous materials transportation, Highway safety, Motor carriers, Motor vehicle safety, Penalties.
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Highway safety, Motor carriers, Reporting and recordkeeping requirements.
49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-31141, 31144, 31161, 31310-31311, 31502; and 49 CFR 1.73.
Traffic enforcement means enforcement activities of State or local officials, including the stopping of vehicles operating on highways, streets, or roads for moving violations of State or local motor vehicle or traffic laws (e.g., speeding, following too closely, reckless driving, improper lane changes).
(b) Implement performance-based activities, including deployment of technology to enhance the efficiency and effectiveness of CMV safety programs.
(f) Maintain the aggregate expenditure of funds by the State and its political subdivisions, exclusive of Federal funds, for CMV safety programs eligible for funding under this part, at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year.
(s) Establish a program to ensure that accurate, complete, and timely motor carrier safety data are collected and reported, and ensure the State's participation in a national motor carrier
(t)(1) Enforce registration (i.e., operating authority) requirements under 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a by prohibiting the operation of (i.e., placing out of service) any vehicle discovered to be operating without the required operating authority or beyond the scope of the motor carrier's operating authority.
(w) Include in the training manual for the licensing examination to drive a CMV and the training manual for the licensing examination to drive a non-CMV information on best practices for driving safely in the vicinity of non-CMVs and CMVs.
(x) Conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.
(y) Except in the case of an imminent or obvious safety hazard, ensure that an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a station, terminal, border maintenance facility, destination, or other location where a motor carrier may make a planned stop.
8. The State must maintain the average aggregate expenditure of the State and its political subdivisions, exclusive of Federal assistance and State matching funds, for CMV safety programs eligible for funding under the Basic program at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year. These expenditures must cover at least the following four program areas, as applicable:
a. Motor carrier safety programs in accordance with 49 CFR 350.109.
b. Size and weight enforcement programs in accordance with 49 CFR 350.309(c)(1).
c. Drug interdiction enforcement programs in accordance with 49 CFR 350.309(c)(2).
d. Traffic safety programs in accordance with 49 CFR 350.309(d).
11. The State will establish a program to provide FMCSA with accurate, complete, and timely reporting of motor carrier safety information that includes documenting the effects of the State's CMV safety programs; participate in a national motor carrier safety data correction program (DataQs); participate in SAFETYNET; and ensure information is exchanged in a timely manner with other States.
13. The State has undertaken efforts to emphasize and improve enforcement of State and local traffic laws as they pertain to CMV safety.
14. The State will ensure that MCSAP agencies have departmental policies stipulating that roadside inspections will be conducted at locations that are adequate to protect the safety of drivers and enforcement personnel.
15. The State will ensure that requirements relating to the licensing of CMV drivers are enforced, including checking the status of CDLs.
16. The State will ensure that MCSAP-funded personnel, including sub-grantees, meet the minimum Federal standards set forth in 49 CFR part 385, subpart C for training and experience of employees performing safety audits, compliance reviews, or driver/vehicle roadside inspection.
17. The State will enforce operating authority requirements under 49 CFR 392.9a by prohibiting the operation of any vehicle discovered to be operating without the required operating authority or beyond the scope of the motor carrier's operating authority.
18. The State will enforce the financial responsibility requirements under 49 CFR part 387 as applicable to CMVs subject to the provisions of 49 CFR 392.9a.
19. The State will include, in the training manual for the licensing examination to drive a non-CMV and the training manual for the licensing examination to drive a CMV, information on best practices for safe driving in the vicinity of noncommercial and commercial motor vehicles.
20. The State will conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.
21. The State will ensure that, except in the case of an imminent or obvious safety hazard, an inspection of a vehicle transporting passengers for a motor carrier of passengers is conducted at a station, terminal, border crossing, maintenance facility, destination, or other location where motor carriers may make planned stops.
(a) The State must maintain the average aggregate expenditure of the State and its political subdivisions, exclusive of Federal funds and State matching funds, for CMV safety programs eligible for funding under this part at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year.
(c) The following two activities, when accompanied by an appropriate North American Standard Inspection and inspection report:
(1) Enforcement of CMV size and weight limitations at locations other than fixed weight facilities; at specific locations such as steep grades or mountainous terrains where the weight of a CMV can significantly affect the safe operation of the vehicle; or at ports where intermodal shipping containers enter and leave the United States.
(2) Detection of the unlawful presence of a controlled substance in a CMV or on the person of any occupant (including the operator) of the vehicle.
(d) Documented enforcement of State traffic laws and regulations designed to promote the safe operation of CMVs, including documented enforcement of such laws and regulations relating to non-CMVs when necessary to promote the safe operation of CMVs, if the number of motor carrier safety activities (including roadside safety inspections) conducted in the State is maintained at a level at least equal to the average level of such activities conducted in the State in fiscal years 2003, 2004, and 2005. The State may not use more than 5 percent of its MCSAP Basic Program funds for enforcement activities relating to non-CMVs unless the Administrator determines that a higher percentage will result in significant increases in CMV safety.
(a) * * *
(1) An amount of the MCSAP funds appropriated for each fiscal year up to the maximum allowed by law may be distributed for High Priority Activities and Projects at the discretion of the Administrator.
(2) An amount of the MCSAP funds appropriated for each fiscal year up to the maximum allowed by law may be distributed for safety audits of New Entrant motor carriers under the New Entrant Safety Assurance Program at the discretion of the Administrator.
(c) The funding provided under paragraph (a)(1) of this section may be made available to State agencies, local governments, and organizations representing government agencies or officials that use and train qualified officers and employees in coordination with State motor vehicle safety agencies. At least 90 percent of the amount set aside in a fiscal year shall be awarded in grants to State agencies and local government agencies.
(d) The funding provided under paragraph (a)(2) of this section may be made available to State and local governments. If the Administrator determines that a State or local government is not able to use government employees to conduct New Entrant motor carrier audits, the Administrator may use the funds under paragraph (a)(2) to conduct audits for such State or local governments.
(d) The Administrator may set aside an amount of MCSAP funding up to the maximum allowed by law for these projects and activities in each fiscal year.
(e) FMCSA will reimburse up to 80 percent of the eligible costs in the administration of an approved project plan, except that approved public information and education activities may be reimbursed up to 100 percent of the eligible costs.
(a) These funds may be used to conduct safety audits on New Entrant motor carriers under the New Entrant Safety Assurance Program.
(b) New Entrant funds will be allocated, at the discretion of FMCSA, to State and local governments.
(c) FMCSA will notify States when such funds are available.
(d) The Administrator may designate up to the maximum amount allowed by law of MCSAP funding for these projects in each fiscal year. FMCSA will reimburse up to 100 percent of the eligible costs in the administration of an approved project plan.
(a) States must meet the requirements of § 350.201, as applicable.
(b) Local agencies must meet the following nine conditions:
(1) Prepare a proposal in accordance with § 350.213, as applicable.
(2) Coordinate the proposal with the State lead MCSAP agency to ensure the proposal is consistent with State and national CMV safety program priorities.
(3) Certify that your local jurisdiction has the legal authority, resources, and trained and qualified personnel necessary to perform the functions specified in the proposal.
(4) Designate a person who will be responsible for implementation, reporting, and administering the approved proposal and will be the primary contact for the project.
(5) Agree to fund up to 20 percent of the proposed request.
(6) Agree to prepare and submit all reports required in connection with the proposal or other conditions of the grant.
(7) Agree to use the forms and reporting criteria required by the State lead MCSAP agency and/or the FMCSA to record work activities to be performed under the proposal.
(8) Certify that the local agency will impose sanctions for violations of CMV and driver laws and regulations that are consistent with those of the State.
(9) Certify participation in national data bases appropriate to the project.
5 U.S.C. 553; 49 U.S.C. 13102, 13301, 13704, 13707, 14104, 14706, 14708; and 49 CFR 1.73.
You, a household goods motor carrier engaged in the interstate transportation of household goods, must follow the regulations in this part when offering your services to individual shippers. You are subject to this part only when you transport household goods for individual shippers by motor vehicle in interstate commerce. Interstate commerce is defined in § 390.5 of this subchapter.
(1) In general, a motor carrier that, in the ordinary course of its business of providing transportation of household goods, offers some or all of the following additional services:
(i) Binding and nonbinding estimates;
(ii) Inventorying;
(iii) Protective packing and unpacking of individual items at personal residences;
(iv) Loading and unloading at personal residences.
(2) The term includes any person considered to be a household goods motor carrier under regulations, determinations, and decisions of the Federal Motor Carrier Safety Administration in effect on the date of enactment of the Household Goods Mover Oversight Enforcement and Reform Act of 2005 (August 10, 2005).
(3) The term does not include any motor carrier providing transportation of household goods in containers or trailers that are entirely loaded and unloaded by an individual other than an employee or agent of the motor carrier.
(1) Is the shipper, consignor, or consignee of a household goods shipment;
(2) Is identified as the shipper, consignor, or consignee on the face of the bill of lading;
(3) Owns the goods being transported; and
(4) Pays his or her own tariff transportation charges.
(b) Full Value Protection Obligation—In general, your liability is for the household goods that are lost, damaged, destroyed, or otherwise not delivered to
(c) If the shipper waives, in writing, your liability for the full value of the household goods, then you are liable for loss of, or damage to, any household goods to the extent provided in the STB released rates order. Contact the STB for a current copy of the Released Rates of Motor Carrier Shipments of Household Goods. The rate may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.
(d) As required by § 375.303(g), you may have additional liability if you sell liability insurance and fail to issue a copy of the insurance policy or other appropriate evidence of insurance.
(e) You must, in a clear and concise manner, disclose to the individual shipper the limits of your liability.
(a) You must have an arbitration program for individual shippers to resolve disputes about property loss and damage and disputes about whether carrier charges in addition to those collected at delivery must be paid. You must establish and maintain an arbitration program with the following 11 minimum elements:
(7) Arbitration must be binding for claims of $10,000 or less, if the individual shipper requests arbitration.
(8) Arbitration must be binding for claims of more than $10,000, if the individual shipper requests arbitration and the carrier agrees to it.
(a) When you provide the written estimate to a prospective individual shipper, you must also provide the individual shipper with a copy of Department of Transportation publication FMCSA-ESA-03-005 (or its successor publication) entitled “Ready to Move?”.
(b) Before you execute an order for service for a shipment of household goods, you must furnish to your prospective individual shipper all five of the following documents:
(1) The contents of appendix A of this part, entitled “Your Rights and Responsibilities When You Move” (Department of Transportation publication FMCSA-ESA-03-006, or its successor publication).
(2) A concise, easy-to-read, accurate estimate of your charges.
(3) A notice of the availability of the applicable sections of your tariff for the estimate of charges, including an explanation that individual shippers may examine these tariff sections or have copies sent to them upon request.
(4) A concise, easy-to-read, accurate summary of your arbitration program.
(5) A concise, easy-to-read, accurate summary of your customer complaint and inquiry handling procedures. Included in this description must be both of the following two items:
(i) The main telephone number the individual shipper may use to communicate with you.
(ii) A clear and concise statement concerning who must pay for telephone calls.
(c) To comply with paragraph (b)(1) of this section, you must ensure that the text and general order of the document you produce and distribute to prospective individual shippers are consistent with the text and general order of appendix A to this part. The following three items also apply:
(1) If we, the Federal Motor Carrier Safety Administration, choose to modify the text or general order of appendix A, we will provide the public appropriate notice in the
(2) If you publish the document, you may choose the dimensions of the publication as long as the type font size is 10 points or larger and the size of the booklet is at least as large as 36 square inches (232 square centimeters).
(3) If you publish the document, you may choose the color and design of the front and back covers of the publication. The following words must appear prominently on the front cover in 12-point or larger bold or full-faced type: “Your Rights and Responsibilities When You Move. Furnished by Your Mover, as Required by Federal Law.” You may substitute your name or trade name in place of “Your Mover” if you wish (for example,
(d) Paragraphs (c)(2) and (c)(3) of this section do not apply to exact copies of appendix A published in the
(a) You must conduct a physical survey of the household goods to be transported and provide the prospective individual shipper with a written estimate, based on the physical survey, of the charges for the transportation and all related services. There are
(1) If the household goods are located beyond a 50-mile radius of the location of the household goods motor carrier's agent preparing the estimate, the requirement to base the estimate on a physical survey does not apply.
(2) An individual shipper may elect to waive the physical survey. The waiver agreement is subject to the following requirements:
(i) It must be in writing;
(ii) It must be signed by the shipper before the shipment is loaded; and
(iii) The household goods motor carrier must retain a copy of the waiver agreement as an addendum to the bill of lading with the understanding that the waiver agreement will be subject to the same record retention requirements that apply to bills of lading, as provided in § 375.505(d).
(b) Before you execute an order for service for a shipment of household goods for an individual shipper, you must provide a written estimate of the total charges and
(1)
(2)
(e) You must determine charges for any accessorial services such as elevators, long carries, etc., before preparing the order for service and the bill of lading for binding or non-binding estimates. If you fail to ask the shipper about such charges and fail to determine such charges before preparing the order for service and the bill of lading, you must deliver the goods and bill the shipper after 30 days for the additional charges, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.
(a) You may provide a guaranteed binding estimate of the total shipment charges to the individual shipper, so long as it is provided for in your tariff. The individual shipper must pay the amount for the services included in your estimate. You must comply with the following 11 requirements:
(1) You must base the binding estimate on the physical survey unless one of the exceptions provided in § 375.401(a)(1) and (2) applies.
(2) You must provide the binding estimate in writing to the individual shipper or other person responsible for payment of the freight charges.
(3) You must retain a copy of each binding estimate as an attachment to be made an integral part of the bill of lading contract.
(4) You must clearly indicate upon each binding estimate's face that the estimate is binding upon you and the individual shipper. Each binding estimate must also clearly indicate on its face that the charges shown apply only to those services specifically identified in the estimate.
(5) You must clearly describe binding-estimate shipments and all services you are providing.
(6) If it appears an individual shipper has tendered additional household goods or requires additional services not identified in the binding estimate, you are not required to honor the estimate. If an agreement cannot be reached as to the price or service requirements for the additional goods or services, you are not required to service the shipment. However, if you do service the shipment, before loading the shipment you must do one of the following three things:
(i) Reaffirm your binding estimate.
(ii) Negotiate a revised written binding estimate listing the additional household goods or services.
(iii) Agree with the individual shipper, in writing, that both of you will consider the original binding estimate as a non-binding estimate subject to § 375.405.
(7) Once you load a shipment, failure to execute a new binding estimate or a non-binding estimate signifies you have reaffirmed the original binding estimate. You may not collect more than the amount of the original binding estimate, except as provided in paragraphs (a)(8) and (9) of this section.
(8) If you believe additional services are necessary to properly service a shipment after the bill of lading has been issued, you must inform the individual shipper what the additional services are before performing those services. You must allow the shipper at least one hour to determine whether he or she wants the additional services performed. If the individual shipper agrees to pay for the additional services, you must execute a written attachment to be made an integral part of the bill of lading contract and have the individual shipper sign the written attachment. This may be done through fax transmissions; e-mail; overnight courier; or certified mail, return receipt requested. You must bill the individual shipper for the additional services after 30 days from delivery. If the individual shipper does not agree to pay the additional services, the carrier should perform only those additional services as are required to complete the delivery, and bill the individual shipper for the additional services after 30 days from delivery, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.
(9) If the individual shipper requests additional services after the bill of lading has been issued, you must inform the individual shipper of the additional charges involved. You may require full payment at destination for these additional services and for 100 percent of the original binding estimate. If applicable, you also may require payment at delivery of charges for impracticable operations (as defined in your carrier tariff) not to exceed 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper any applicable charges not collected at delivery in accordance with subpart H of this part.
(10) Failure to relinquish possession of a shipment upon the individual shipper's offer to pay the binding estimate amount (or, in the case of a partial delivery, a prorated percentage of the binding estimate as set forth in paragraph (a)(11) of this section) plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for impracticable operations (subject to a maximum amount as set forth in paragraph 9 of this section), constitutes a failure to transport a shipment with “reasonable dispatch” and subjects you to cargo delay claims pursuant to part 370 of this chapter.
(11) If you make only a partial delivery of the shipment, you may not demand upon delivery full payment of the binding estimate. You may demand only a prorated percentage of the binding estimate. The prorated percentage must be the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand payment at destination for only 50 percent of the binding estimate.
(b) In accordance with § 375.401(a), you may impose a charge for providing a written binding estimate. If you do not provide a binding estimate to an individual shipper, you must provide a non-binding estimate in accordance with § 375.405.
(b) * * *
(1) You must provide reasonably accurate non-binding estimates based upon both the estimated weight or volume of the shipment and services required and the physical survey of the household goods, if required. If you provide a shipper with an estimate based on volume that will later be converted to a weight-based rate, you must provide the shipper an explanation in writing of the formula used to calculate the conversion to weight.
(2) You must explain to the individual shipper that final charges calculated for shipments moved on non-binding estimates will be those appearing in your tariffs applicable to the transportation. You must explain that these final charges may exceed the approximate costs appearing in your estimate.
(5) You must clearly indicate on the face of a non-binding estimate that the
(8) Once you load a shipment, failure to execute a new non-binding estimate signifies you have reaffirmed the original non-binding estimate. You may not collect more than 110 percent of the amount of the original non-binding estimate at destination, except as provided in paragraphs (b)(9) and (10) of this section.
(9) If you believe additional services are necessary to properly service a shipment after the bill of lading has been issued, you must inform the individual shipper what the additional services are before performing those services. You must allow the shipper at least one hour to determine whether he or she wants the additional services performed. If the individual shipper agrees to pay for the additional services, you must execute a written attachment to be made an integral part of the bill of lading contract and have the individual shipper sign the written attachment. This may be done through fax transmissions; e-mail; overnight courier; or certified mail, return receipt requested. You must bill the individual shipper for the additional services after 30 days from delivery. If the individual shipper does not agree to pay the additional services, the carrier should perform only those additional services as are required to complete the delivery, and bill the individual shipper for the additional services after 30 days from delivery, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.
(10) If the individual shipper requests additional services after the bill of lading has been issued, you must inform the individual shipper of the additional charges involved. You may require full payment at destination for these additional services and (unless you make only a partial delivery, in which case you must collect a prorated percentage of the original non-binding estimate as set forth in § 375.407(c) of this part) for up to 110 percent of the original non-binding estimate. If applicable, you also may require payment at delivery of charges for impracticable operations (as defined in your carrier tariff) not to exceed 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper any applicable charges not collected at delivery in accordance with subpart H of this part.
(a) If an individual shipper pays you up to 110 percent of the non-binding estimate on a collect-on-delivery shipment (or, in the case of a partial delivery, a prorated percentage of the non-binding estimate as set forth in paragraph (c) of this section), you must relinquish possession of the shipment at the time of delivery. If there are either charges for any additional services requested by the shipper after the bill of lading has been issued and/or charges, if applicable, for impracticable operations (subject to a maximum amount as set forth in paragraph (d) of this section), and the shipper also pays you for such charges, you must relinquish possession of the shipment at the time of delivery. You must accept the form of payment agreed to at the time of estimate, unless the shipper agrees in writing to a change in the form of payment.
(b) Failure to relinquish possession of a shipment after the individual shipper offers to pay you up to 110 percent of the approximate costs of a non-binding estimate plus any additional charges described in paragraph (a) of this section constitutes a failure to transport a shipment with “reasonable dispatch” and subjects you to cargo delay claims pursuant to part 370 of this chapter.
(c) If you make only a partial delivery of the shipment, you may not demand full payment of the non-binding estimate. You may demand at delivery only a prorated percentage of the non-binding estimate (or a prorated percentage of an amount up to 110 percent of the non-binding estimate). The prorated percentage must be the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand payment of 50 percent of not more than 110 percent of the non-binding estimate.
(d) You may not demand payment of charges for impracticable operations, as defined in your tariff, of more than 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper charges for impracticable operations not collected at delivery in accordance with subpart H of this part.
(a) * * *
(10) A statement of the declared value of the shipment, which is the maximum amount of your liability to the individual shipper under your Full Value Protection for the replacement value of any household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination. If the individual shipper waives, in writing, your Full Value Protection liability, you must include a copy of the waiver; the Surface Transportation Board's required released rates valuation statement; and the charges, if any, for optional valuation coverage (other than Full Value Protection). The released rates may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.
(b) * * *
(12) A statement of the declared value of the shipment, which is the maximum amount of your liability to the individual shipper under your Full Value Protection for the replacement value of any household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination. If the individual shipper waives, in writing, your Full Value Protection liability for the declared value of the household goods, you must include a copy of the waiver; the Surface Transportation Board's required released rates valuation statement; and the charges, if any, for optional valuation coverage (other than Full Value Protection). The released rates may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.
(a) On a binding estimate, the maximum amount is the exact estimate of the charges, plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for
(b) On a non-binding estimate, the maximum amount is 110 percent of the non-binding estimate of the charges, plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for impracticable operations as defined in your carrier tariff. The maximum amount of charges for impracticable operations you may collect on delivery is an amount equal to 15 percent of all other charges due at delivery.
(a) (1) If a shipment is partially lost or destroyed, you may collect at delivery:
(i) A prorated percentage of the binding estimate or a prorated percentage of up to 110 percent of the non-binding estimate. The prorated percentage is equal to the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand at destination, as applicable, only 50 percent of a binding estimate or 50 percent of not more than 110 percent of a non-binding estimate;
(ii) Charges for any additional services requested by the shipper after the bill of lading has been issued; and
(iii) Charges for impracticable operations, if applicable, except that such charges must not exceed 15 percent of all other charges due at delivery.
(iv) Any specific valuation charge due.
(2) You must bill and collect from the individual shipper any remaining charges not collected at delivery in accordance with subpart H of this part.
(b) You must determine, at your own expense, the proportion of the shipment, based on actual or constructive weight, not lost or destroyed in transit.
(c) You may disregard paragraph (a)(1) of this section if loss or destruction was due to an act or omission of the individual shipper.
(d) The individual shipper's rights are in addition to, and not in lieu of, any other rights the individual shipper may have with respect to a shipment of household goods you or your agent(s) partially lost or destroyed in transit. This applies whether or not the individual shipper exercises any rights to obtain a refund of the portion of your published freight charges corresponding to the portion of the lost or destroyed shipment (including any charges for accessorial or terminal services) at the time you dispose of claims for loss, damage, or injury to articles in the shipment under part 370 of this chapter.
(c) * * *
(1) You must automatically extend the credit period to a total of 30 calendar days for any shipper who has not paid your freight bill within the 7-day period. However, for charges for impracticable operations that are not collected at delivery, you may not extend the credit period beyond 30 days after you present your freight bill.
49 U.S.C. 13301, 13704, 13707, and 14104; 49 CFR 1.73.
The Federal Motor Carrier Safety Administration's (FMCSA) regulations protect consumers on interstate moves and define the rights and responsibilities of consumers and household goods carriers.
The household goods carrier (mover) gave you this booklet to provide information about your rights and responsibilities as an individual shipper of household goods. Your primary responsibility is to select a reputable household goods carrier, ensure that you understand the terms and conditions of the contract, and understand and pursue the remedies that are available to you in case problems arise. You should talk to your mover if you have further questions. The mover will also furnish you with additional written information describing its procedure for handling your questions and complaints. The additional written information will include a telephone number you can call to obtain additional information about your move.
1. Movers must give written estimates.
2. Movers may give binding estimates.
3. Non-binding estimates are not always accurate; actual charges may exceed the estimate.
4. If your mover provides you (or someone representing you) with any partially complete document for your signature, you should verify the document is as complete as possible before signing it. Make sure the document contains all relevant shipping information, except the actual shipment weight and any other information necessary to determine the final charges for all services performed.
5. You may request from your mover the availability of guaranteed pickup and delivery dates.
6. Be sure you understand the mover's responsibility for loss or damage, and request an explanation of the difference between valuation and actual insurance.
7. You have the right to be present each time your shipment is weighed.
8. You may request a reweigh of your shipment.
9. If you agree to move under a non-binding estimate, you should confirm with your mover—in writing—the method of payment at delivery as cash, certified check, cashier's check, money order, or credit card.
10. Movers must offer a dispute settlement program as an alternative means of settling loss or damage claims. Ask your mover for details.
11. You should ask the person you speak to whether he or she works for the actual mover or a household goods broker. A household goods broker must not represent itself as a mover. The broker is responsible only for arranging the transportation. It does not own the trucks used to transport the shipment and is required to find an authorized mover to provide the transportation. You should know that a household goods broker generally has no authority to provide you with an estimate for the move, unless the broker has a written agreement with the household goods carrier. If a household goods broker provides you with an estimate without a written agreement with the carrier, the estimate may not be binding and you may instead be required to pay the actual charges assessed by the mover. A household goods broker is not responsible for loss or damage.
12. You may request complaint information about movers from the Federal Motor Carrier Safety Administration under the Freedom of Information Act. You may be assessed a fee to obtain this information. See 49 CFR part 7 for the schedule of fees.
13. You should seek estimates from at least three different movers. You should not disclose any information to the different movers about their competitors, as it may affect the accuracy of their estimates.
If this pamphlet does not answer all of your questions about your move, do not hesitate to ask for additional information from your mover's representative who handled the arrangements for your move, the driver who transports your shipment, or the mover's main office.
The primary responsibility for your protection lies with you in selecting a reputable household goods carrier, ensuring you understand the terms and conditions of your contract with your mover, and understanding and pursuing the remedies that are available to you in case problems arise.
The regulations inform motor carriers engaged in the interstate transportation of household goods (household goods motor carriers or movers) what standards they must follow when offering services to you. You, an individual shipper, are not directly subject to the regulations. However, your mover may be required by the regulations to demand that you pay on time. The regulations apply only to a mover that both transports your household goods by motor vehicle in interstate commerce—that is, when you are moving from one State to another—and provides certain types of additional services. The regulations do not apply when your interstate move takes place within a single commercial zone. A commercial zone is roughly equivalent to the local metropolitan area of a city or town. For example, a move between Brooklyn, NY, and Hackensack, NJ, would be considered within the New York City commercial zone and would not be subject to these regulations. Commercial zones are defined in 49 CFR part 372.
1. Is the shipper, consignor, or consignee of a household goods shipment;
2. Is identified as the shipper, consignor, or consignee on the face of the bill of lading;
3. Owns the goods being transported; and
4. Pays his or her own tariff transportation charges.
In general, your mover is legally liable for loss or damage that occurs during performance of any transportation of household goods and of all related services identified on your mover's lawful bill of lading.
Your mover is liable for loss of, or damage to, any household goods to the extent provided in the current Surface Transportation Board's Released Rates Order. You may obtain a copy of the current Released Rates Order by contacting the Surface Transportation Board at the address provided under the definition of the Surface Transportation Board. The rate may be increased annually by your mover based on the U.S. Department of Commerce's Cost of Living Adjustment. Your mover may have additional liability if your mover sells liability insurance to you.
All moving companies are required to assume liability for the value of the goods transported. However, there are different levels of liability, and you should be aware of the amount of protection provided and the charges for each option.
Basically, most movers offer two different levels of liability under the terms of their tariffs and the Surface Transportation Board's Released Rates Orders. These orders govern the moving industry. The levels of liability are as follows:
The cost for FVP is based on the value that you place on your shipment. For example, the valuation charge for a shipment valued at $25,000 would be about $250.00. However, the exact cost for full-value protection may vary by mover and may be further subject to various deductible levels of liability that could reduce your cost. Ask your mover for the details and cost of its specific plan.
Under the FVP level of liability, movers are permitted to limit their liability for loss of, or damage to, articles of extraordinary value, unless you specifically list on the shipping documents such articles for which you want liability coverage. An article of extraordinary value is any item whose value exceeds $100 per pound (for example, jewelry, silverware, china, furs, antiques, oriental rugs and computer software). Ask your mover for a complete explanation of this limitation before your move. It is your responsibility to study this provision carefully and to make the necessary declaration.
These two levels of liability are not insurance agreements governed by State insurance laws but instead are contractual tariff levels of liability authorized under Released Rates Orders of the Surface Transportation Board of the U.S. Department of Transportation.
In addition to these options, some movers may also offer to sell, or procure for you, separate liability insurance from a third-party insurance company when you release your shipment for transportation at the minimum released value (60 cents per pound [$1.32 per kilogram] per article). This is not valuation coverage governed by Federal law but optional insurance regulated under State law. If you purchase this separate coverage and your mover is responsible for loss or damage, the mover is liable only for an amount not exceeding 60 cents per pound ($1.32 per kilogram) per article, and the balance of the loss is recoverable from the insurance company up to the amount of insurance purchased. The mover's representative can advise you of the availability of such liability insurance, and the cost.
If you purchase liability insurance from or through your mover, the mover is required to issue a policy or other written record of the purchase and to provide you with a copy of the policy or other document at the time of purchase. If the mover fails to comply with this requirement, the mover becomes fully liable for any claim for loss or damage attributed to its negligence.
Your actions may limit or reduce your mover's normal liability under the following three circumstances:
(1) You include perishable, dangerous, or hazardous materials in your household goods without your mover's knowledge.
(2) You choose the alternative level of liability (60 cents per pound per article) but ship household goods valued at more than 60 cents per pound ($1.32 per kilogram) per article.
(3) You fail to notify your mover in writing of articles valued at more than $100 per pound ($220 per kilogram). (If you
Federal law forbids you to ship hazardous materials in your household goods boxes or luggage without informing your mover. A violation can result in 5 years' imprisonment and penalties of $250,000 or more (49 U.S.C. 5124). You could also lose or damage your household goods by fire, explosion, or contamination.
If you offer hazardous materials to your mover, you are considered a hazardous materials shipper and must comply with the hazardous materials requirements in 49 CFR parts 171, 172, and 173, including but not limited to package labeling and marking, shipping papers, and emergency response information. Your mover must comply with 49 CFR parts 171, 172, 173, and 177 as a hazardous materials carrier.
Hazardous materials include explosives, compressed gases, flammable liquids and solids, oxidizers, poisons, corrosives, and radioactive materials. Examples: Nail polish remover, paints, paint thinners, lighter fluid, gasoline, fireworks, oxygen bottles, propane cylinders, automotive repair and maintenance chemicals, and radio-pharmaceuticals.
There are special exceptions for small quantities (up to 70 ounces total) of medicinal and toilet articles carried in your household goods and certain smoking materials carried on your person. For further information, contact your mover.
Yes, your mover may have agents. If your mover has agents, your mover must have written agreements with its prime agents. Your mover and its retained prime agent must sign their agreements. Copies of your mover's prime agent agreements must be in your mover's files for a period of at least 24 months following the date of termination of each agreement.
Your mover must publish and use only truthful, straightforward, and honest advertisements. Your mover must include certain information in all advertisements for all services (including any accessorial services incidental to or part of interstate transportation). Your mover must require each of its agents to include the same information in its advertisements. The information must include the following two pieces of information about your mover:
(1) Name or trade name of the mover under whose U.S. DOT number the advertised service will originate.
(2) U.S. DOT number assigned by FMCSA authorizing your mover to operate. Your mover must display the information as: U.S. DOT No. (assigned number).
You should compare the name or trade name of the mover and its U.S. DOT number to the name and U.S. DOT number on the sides of the truck(s) that arrive at your residence. The names and numbers should be identical. If the names and numbers are not identical, you should ask your mover immediately why they are not. You should not allow the mover to load your household goods on its truck(s) until you obtain a satisfactory response from the mover's local agent. The discrepancies may warn of problems you will have later in your business dealings with this mover.
All movers are expected to respond promptly to complaints or inquiries from you, the customer. Should you have a complaint or question about your move, you should first attempt to obtain a satisfactory response from the mover's local agent, the sales representative who handled the arrangements for your move, or the driver assigned to your shipment.
If for any reason you are unable to obtain a satisfactory response from one of these persons, you should then contact the mover's principal office. When you make such a call, be sure to have available your copies of all documents relating to your move.
Interstate movers are also required to offer neutral arbitration as a means of resolving consumer disputes involving loss of or damage to your household goods shipment and disputes regarding charges that your mover billed in addition to those collected at delivery. Your mover is required to provide you with information regarding its arbitration program. You have the right to pursue court action under 49 U.S.C. 14706 to seek judicial redress directly rather than participate in your mover's arbitration program.
All interstate moving companies are required to maintain a complaint and inquiry procedure to assist their customers. At the time you make the arrangements for your move, you should ask the mover's representative for a description of the mover's procedure, the telephone number to be used to contact the mover, and whether the mover will pay for such telephone calls. Your mover's procedure must include the following four things:
(1) A communications system allowing you to communicate with your mover's principal place of business by telephone.
(2) A telephone number.
(3) A clear and concise statement about who must pay for complaint and inquiry telephone calls.
(4) A written or electronic record system for recording all inquiries and complaints received from you by any means of communication.
Your mover must give you a clear and concise written description of its procedure. You may want to be certain that the system is in place.
Federal law requires your mover to advise you of your right to inspect your mover's tariffs (its schedules of rates or charges) governing your shipment. Movers' tariffs are made a part of the contract of carriage (bill of lading) between you and the mover. You may inspect the tariff at the mover's facility, or, upon request, the mover will furnish you a free copy of any tariff provision containing the mover's rates, rules, or charges governing your shipment.
Tariffs may include provisions limiting the mover's liability. This is generally described in a section on declaring value on the bill of lading. A second tariff provision may set the periods for filing claims. This is generally described in Section 6 on the reverse side of a bill of lading. A third tariff provision may reserve your mover's right to assess additional charges for additional services performed. For non-binding estimates, another tariff provision may base charges upon the exact weight of the goods transported. Your mover's tariff may contain other provisions that apply to your move. Ask your mover what they might be, and request a copy.
Your mover must have an arbitration program for your use in resolving disputes concerning loss of or damage to your household goods and disputes regarding charges that were billed to you in addition to those collected at delivery of your shipment. You have the right not to participate in the arbitration program. You may pursue court action under 49 U.S.C. 14706 to seek judicial remedies directly. Your mover must establish and maintain an arbitration program with the following 11 minimum elements:
(1) The arbitration program offered to you must prevent your mover from having any special advantage because you live or work in a place distant from the mover's principal or other place of business.
(2) Before your household goods are tendered for transport, your mover must provide notice to you of the availability of neutral arbitration, including the following three things:
(a) A summary of the arbitration procedure.
(b) Any applicable costs.
(c) A disclosure of the legal effects of electing to use arbitration.
(3) Upon your request, your mover must provide information and forms it considers necessary for initiating an action to resolve a dispute under arbitration.
(4) Each person authorized to arbitrate must be independent of the parties to the dispute and capable of resolving such disputes fairly and expeditiously. Your mover must ensure the arbitrator is authorized and able to obtain from you or your mover any material or relevant information to carry out a fair and expeditious decision-making process.
(5) You must not be required to pay more than one-half of the arbitration's cost. The arbitrator may determine the percentage of payment of the costs for each party in the arbitration decision, but must not make you pay more than half.
(6) Your mover must not require you to agree to use arbitration before a dispute arises.
(7) You and your mover will be bound by arbitration for claims of $10,000 or less if you request arbitration.
(8) You and your mover will be bound by arbitration for claims of more than $10,000 only if you request arbitration and your mover agrees to it.
(9) If you and your mover both agree, the arbitrator may provide for an oral presentation of a dispute by a party or representative of a party.
(10) The arbitrator must render a decision within 60 days of receipt of written notification of the dispute, and a decision by an arbitrator may include any remedies appropriate under the circumstances.
(11) The 60-day period may be extended for a reasonable period if either you or your mover fails to provide information in a timely manner. Your mover must produce and distribute a concise, easy-to-read, accurate summary of its arbitration program.
Yes, your mover must inform you about your rights and responsibilities under Federal law. Your mover must produce and distribute this document. It should follow the general order and contain the text of appendix A to 49 CFR part 375.
At the time your mover provides a written estimate, it must provide you with a copy of the U.S. Department of Transportation publication FMCSA-ESA-03-005 entitled “Ready to Move?” (or its successor publication). Before your mover executes an order for service for a shipment of household goods, your mover must furnish you with the following four documents:
1. The contents of Appendix A, ”Your Rights and Responsibilities When You Move”—this booklet.
2. A concise, easy-to-read, and accurate summary of your mover's arbitration program.
3. A notice of availability of the applicable sections of your mover's tariff for the estimate of charges, including an explanation that you may examine the tariff sections or have copies sent to you upon request.
4. A concise, easy-to-read, accurate summary of your mover's customer complaint and inquiry handling procedures. Included in this summary must be the following two items:
(a) The main telephone number you may use to communicate with your mover.
(b) A clear and concise statement concerning who must pay for telephone calls.
Your mover may, at its discretion, provide additional information to you.
Your mover must issue you an honest, truthful freight or expense bill for each shipment transported. Your mover's freight or expense bill must contain the following 17 items:
(1) Name of the consignor.
(2) Name of the consignees.
(3) Date of the shipment.
(4) Origin point.
(5) Destination points.
(6) Number of packages.
(7) Description of the freight.
(8) Weight of the freight (if your shipment is moved under a non-binding estimate).
(9) Exact rate(s) assessed.
(10) Disclosure of the actual rates, charges, and allowances for the transportation service, when your mover electronically presents or transmits freight or expense bills to you. These rates must be in accordance with the mover's applicable tariff.
(11) An indication of whether adjustments may apply to the bill.
(12) Total charges due and acceptable methods of payment.
(13) The nature and amount of any special service charges.
(14) The points where special services were rendered.
(15) Route of movement and name of each mover participating in the transportation.
(16) Transfer points where shipments moved.
(17) Address where you must pay or address of bill issuer's principal place of business.
Your mover must present its freight or expense bill to you within 15 days of the date
Yes. Your mover must specify the form of payment acceptable at delivery when the mover prepares an estimate and order for service. The mover and its agents must honor the form of payment at delivery, except when you mutually agree to a change in writing. The mover must also specify the same form of payment when it prepares your bill of lading, unless you agree to a change. See also “May my mover accept charge or credit cards for my payments?”
You must be prepared to pay 10 percent more than the estimated amount, if your goods are moving under a non-binding estimate. Every collect-on-delivery shipper must have available 110 percent of the estimate at the time of delivery. In addition, your mover may also collect at the time of delivery the charges for any additional services you requested after the contract with your mover was executed (charges therefore not included in the estimate) and any charges for impracticable operations needed to accomplish delivery, as defined by the carrier's tariff. Charges collected at the time of delivery for impracticable operations must not exceed 15 percent of all other charges due at the time of delivery. You must pay all remaining charges for impracticable operations within 30 days after you receive the mover's freight bill.
Extending credit to you is not the same as accepting your charge or credit card(s) as payment. Your mover may extend credit to you in the amount of the tariff charges. If your mover extends credit to you, your mover becomes like a bank offering you a line of credit, whose size and interest rate are determined by your ability to pay its tariff charges within the credit period. Your mover must ensure you will pay its tariff charges within the credit period. Your mover may relinquish possession of freight before you pay its tariff charges, at its discretion.
The credit period must begin on the day following presentation of your mover's freight bill to you. Under Federal regulation, the standard credit period is 7 days, excluding Saturdays, Sundays, and Federal holidays. Your mover must also extend the credit period to a total of 30 calendar days if the freight bill is not paid within the 7-day period. A service charge equal to one percent of the amount of the freight bill, subject to a $20 minimum, will be assessed for this extension and for each additional 30-day period the charges go unpaid.
Your failure to pay within the credit period will require your mover to determine whether you will comply with the Federal household goods transportation credit regulations in good faith in the future before extending credit again.
Your mover may allow you to use a charge or credit card for payment of the freight charges. Your mover may accept charge or credit cards whenever you ship with it under an agreement and tariff requiring payment by cash or cash equivalents. Cash equivalents are a certified check, money order, or cashier's check (a check that a financial institution—bank, credit union, savings and loan—draws upon itself and that is signed by an officer of the financial institution).
If your mover allows you to pay for a freight or expense bill by charge or credit card, your mover deems such a payment to be equivalent to payment by cash, certified check, or cashier's check. It must note in writing on the order for service and the bill of lading whether you may pay for the transportation and related services using a charge or credit card. You should ask your mover at the time the estimate is written whether it will accept charge or credit cards at delivery.
The mover must specify what charge or credit cards it will accept, such as American Express
Your mover may provide any service options it chooses. It is customary for movers to offer several price and service options.
The total cost of your move may increase if you want additional or special services. Before you agree to have your shipment moved under a bill of lading providing special service, you should have a clear understanding with your mover of what the additional cost will be. You should always consider whether other movers might provide the services you need without requiring you to pay the additional charges.
One service option is a
A second option is
A third customary service option is exclusive use of a vehicle. If for any reason you desire or require that your shipment be moved by itself on the mover's truck or trailer, most movers will provide such service.
Another service option is
Before requesting or agreeing to any of these price and service options, be sure to ask the mover's representatives about the final costs you will pay.
Although all movers try to move each shipment on one truck, it becomes necessary, at times, to divide a shipment among two or more trucks. This may occur if your mover has underestimated the cubic feet (meters) of space required for your shipment and it will not all fit on the first truck. Your mover will pick up the remainder, or “leave behind,” on a second truck at a later time, and this part of your shipment may arrive at the destination later than the first truck. When this occurs, your transportation charges will be determined as if the entire shipment had moved on one truck.
If it is important for you to avoid this inconvenience of a “leave behind,” be sure your estimate includes an accurate calculation of the cubic feet (meters) required for your shipment. Ask your estimator to use a “Table of Measurements” form in making this calculation. Consider asking for a binding estimate. A binding estimate is more likely to be conservative with regard to cubic feet (meters) than a non-binding estimate. If the mover offers space reservation service, consider purchasing this service for the necessary amount of space plus some margin for error. In any case, you would be prudent to “prioritize” your goods in advance of the move so the driver will load the more essential items on the first truck if some are left behind.
If your mover provides the service of selling additional liability insurance, your mover must follow certain regulations.
Your mover, its employees, or its agents may sell, offer to sell, or procure additional liability insurance coverage for you for loss of or damage to your shipment if you release the shipment for transportation at a value not exceeding 60 cents per pound ($1.32 per kilogram) per article.
Your mover may offer, sell, or procure any type of insurance policy covering loss or damage in excess of its specified liability.
Your mover must issue you a policy or other appropriate evidence of the insurance you purchased. Your mover must provide a copy of the policy or other appropriate evidence to you at the time your mover sells or procures the insurance. Your mover must issue policies written in plain English.
Your mover must clearly specify the nature and extent of coverage under the policy. Your mover's failure to issue you a policy, or other appropriate evidence of insurance you
Your mover's tariff must provide for liability insurance coverage. The tariff must also provide for the base transportation charge, including its assumption of full liability for the value of the shipment. This would offer you a degree of protection in the event your mover fails to issue you a policy or other appropriate evidence of insurance at the time of purchase.
We require your mover to prepare a written estimate on every shipment transported for you. You are entitled to a copy of the written estimate when your mover prepares it. Your mover must provide you a written estimate of all charges, including transportation, accessorial, and advance charges. Your mover's “rate quote” is not an estimate. You and your mover must sign the estimate of charges. Your mover must provide you with a dated copy of the estimate of charges at the time you sign the estimate.
If the location you are moving from is within a 50-mile radius of your mover's (or its agent's) place of business, the estimate that your mover provides you must be based on a physical survey of your goods. You have the right to waive the requirement for a physical survey if you choose, but your waiver must be in the form of a written agreement signed by you before your shipment is loaded.
You should be aware that if you receive an estimate from a household goods broker, the mover may not be required to accept the estimate. Be sure to obtain a written estimate from a mover who tells you orally that it will accept the broker's estimate.
Your mover must specify the form of payment the mover and its delivering agent will honor at delivery. Payment forms may include but are not limited to cash, certified check, money order, cashier's check, a specific charge card such as American Express
Before loading your household goods, and upon mutual agreement between you and your mover, your mover may amend an estimate of charges. Your mover may not amend the estimate after loading the shipment.
A
You must also be prepared to pay at delivery the charges for any additional services you requested after the contract was executed (charges therefore not included in the estimate) and any charges for impracticable operations. Impracticable operations are defined in your mover's tariff. You should ask to see the mover's tariff to determine what services constitute impracticable operations. Charges for impracticable operations due at delivery must not exceed 15 percent of all other charges due at delivery.
Your mover may charge you for providing a binding estimate. The binding estimate must clearly describe the shipment and all services provided.
When you receive a binding estimate, you cannot be required to pay any more than the estimated amount at delivery. If you have requested the mover provide more services than those included in the estimate, your mover will collect the charges for those services when your shipment is delivered. However, charges for impracticable operations due at delivery must not exceed 15 percent of all other charges due at delivery.
A binding estimate must be in writing, and a copy must be made available to you before you move.
If you agree to a binding estimate, you are responsible for paying the charges due by cash, certified check, money order, or cashier's check. The charges are due your mover at the time of delivery unless your mover agrees, before you move, to extend credit or to accept payment by a specific charge card such as American Express
Other requirements of binding estimates include the following eight elements:
(1) Your mover must retain a copy of each binding estimate as an attachment to the bill of lading.
(2) Your mover must clearly indicate upon each binding estimate's face that the estimate is binding upon you and your mover. Each binding estimate must also clearly indicate on its face that the charges shown are the charges to be assessed for only those services specifically identified in the estimate.
(3) Your mover must clearly describe binding estimate shipments and all services to be provided.
(4) If, before loading your shipment, your mover believes you are tendering additional household goods or are requiring additional services not identified in the binding estimate, and you and your mover cannot reach an agreement, your mover may refuse to service the shipment. If your mover agrees to service the shipment, your mover must do one of the following three things:
(a) Reaffirm the binding estimate.
(b) Negotiate a revised written binding estimate listing the additional household goods or services.
(c) Add an attachment to the contract, in writing, stating you both will consider the original binding estimate as a non-binding estimate. Before you agree to this option, read the information about non-binding estimates in the next section of this pamphlet. Accepting a non-binding estimate may seriously affect how much you may pay for the entire move.
(5) Once your mover loads your shipment, your mover's failure to execute a new binding estimate or to agree with you to treat the original estimate as a non-binding estimate signifies it has reaffirmed the original binding estimate. Your mover may not collect more than the amount of the original binding estimate, except as provided in the next two paragraphs.
(6) If you request additional services after the bill of lading is executed, your mover will collect the charges for these additional services when your shipment is delivered.
(7) If your mover must perform impracticable operations, as defined in its tariff, to accomplish the delivery of your shipment, your mover will collect the charges for these services when your shipment is delivered. However, charges for impracticable operations collected at delivery must not exceed 15 percent of all other charges due at delivery. Any remaining impracticable operations charges must be paid within 30 days after you receive the mover's freight bill.
(8) Failure of your mover to relinquish possession of a shipment upon your offer to pay the binding estimate amount plus the cost of any additional services you requested after the bill of lading was executed and any charges for impracticable operations (not to exceed 15 percent of all other charges due at delivery) constitutes your mover's failure to transport a shipment with “reasonable dispatch” and subjects your mover to cargo delay claims pursuant to 49 CFR part 370.
Your mover is not permitted to charge you for giving a non-binding estimate.
A non-binding estimate is not a bid or contract. Your mover provides it to you to give you a general idea of the cost of the move, but it does not bind your mover to the estimated cost. You should expect the final cost to be more than the estimate. The actual cost will be in accordance with your mover's tariffs. Federal law requires your mover to collect the charges shown in its tariffs, regardless of what your mover writes in its non-binding estimates. That is why it is important to ask for copies of the applicable portions of the mover's tariffs before deciding on a mover. The charges contained in movers' tariffs are essentially the same for shipments of equal weight moving equal distances. Even if you obtain different non-binding estimates from different movers, you must pay only the amount specified in your mover's tariff. Therefore, a non-binding estimate may differ substantially from the amount that you ultimately will pay.
You must be prepared to pay 10 percent more than the estimated amount at the time
Non-binding estimates must be in writing and clearly describe the shipment and all services provided. Any time a mover provides such an estimate, the amount of the charges estimated must be on the order for service and bill of lading related to your shipment. When you are given a non-binding estimate, do not sign or accept the order for service or bill of lading unless the mover enters the amount estimated on each form it prepares.
Other requirements of non-binding estimates include the following 10 elements:
(1) Your mover must provide reasonably accurate non-binding estimates based upon the estimated weight of the shipment and services required.
(2) Your mover must explain to you that all charges on shipments moved under non-binding estimates will be those appearing in your mover's tariffs applicable to the transportation. If your mover provides a non-binding estimate of approximate costs, your mover is not bound by such an estimate.
(3) Your mover must furnish non-binding estimates without charge and in writing to you.
(4) Your mover must retain a copy of each non-binding estimate as an attachment to the bill of lading.
(5) Your mover must clearly indicate on the face of a non-binding estimate that the estimate is not binding upon your mover and the charges shown are the approximate charges to be assessed for the services identified in the estimate.
(6) Your mover must clearly describe on the face of a non-binding estimate the entire shipment and all services to be provided.
(7) If, before loading your shipment, your mover believes you are tendering additional household goods or requiring additional services not identified in the non-binding estimate, and you and your mover cannot reach an agreement, your mover may refuse to service the shipment. If your mover agrees to service the shipment, your mover must do one of the following two things:
(a) Reaffirm the non-binding estimate.
(b) Negotiate a revised written non-binding estimate listing the additional household goods or services.
(8) Once your mover loads your shipment, your mover's failure to execute a new estimate signifies it has reaffirmed the original non-binding estimate. Your mover may not collect more than 110 percent of the amount of this estimate at destination for the services and quantities shown on the estimate.
(9) If you request additional services after the bill of lading is executed, your mover will collect the charges for these additional services when your shipment is delivered.
(10) If your mover must perform impracticable operations, as defined in its tariff, to accomplish the delivery of your shipment, your mover will collect the charges for these services when your shipment is delivered. However, charges for impracticable operations collected at delivery must not exceed 15 percent of all other charges due at delivery. Any remaining impracticable operations charges must be paid within 30 days after you receive the mover's freight bill.
If your mover furnishes a non-binding estimate, your mover must enter the estimated charges upon the order for service and the bill of lading. Your mover must retain a record of all estimates of charges for each move performed for at least one year from the date your mover made the estimate.
If your total bill is 110 percent or less of the non-binding estimate, the mover can require payment in full upon delivery. If the bill exceeds 110 percent of the non-binding estimate, your mover must relinquish possession of the shipment at the time of delivery upon payment of 110 percent of the estimated amount, and defer billing for the remaining charges for at least 30 days.
There are two exceptions to this requirement. Your mover may demand at the time of delivery payment of the charges for any additional services you requested after the bill of lading was executed (charges therefore not included in the estimate). Your mover may also require you to pay charges for impracticable operations at the time of delivery, provided these do not exceed 15 percent of all other charges due at delivery. Impracticable operations charges that exceed 15 percent of all other charges due at delivery are due within 30 days after you receive the mover's freight bill. Your mover should have specified its acceptable form of payment on the estimate, order for service, and bill of lading.
Your mover's failure to relinquish possession of a shipment after you offer to pay 110 percent of the estimated charges, plus the charges for any additional services you requested after the bill of lading was executed (charges therefore not included in the estimate) and any charges for impracticable operations (not to exceed 15 percent of all other charges due at delivery), constitutes its failure to transport the shipment with “reasonable dispatch” and subjects your mover to your cargo delay claims under 49 CFR part 370.
We require your mover to prepare an order for service on every shipment transported for you. You are entitled to a copy of the order for service when your mover prepares it.
The order for service is not a contract. Should you cancel or delay your move or decide not to use the mover, you should promptly cancel the order.
If you or your mover change any agreed-upon dates for pickup or delivery of your shipment, or agree to any change in the non-binding estimate, your mover may prepare a written change to the order for service. The written change must be attached to the order for service.
The order for service must contain the following 15 elements:
(1) Your mover's name and address and the U.S. DOT number assigned to your mover.
(2) Your name, address and, if available, telephone number(s).
(3) The name, address, and telephone number of the delivering mover's office or agent at or nearest to the destination of your shipment.
(4) A telephone number where you may contact your mover or its designated agent.
(5) One of the following three dates and times:
(i) The agreed-upon pickup date and agreed delivery date of your move.
(ii) The agreed-upon period(s) of the entire move.
(iii) If your mover is transporting the shipment on a guaranteed service basis, the guaranteed dates or periods of time for pickup, transportation, and delivery. Your mover must enter any penalty or per diem requirements upon the agreement under this item.
(6) The names and addresses of any other motor carriers, when known, that will participate in interline transportation of the shipment.
(7) The form of payment your mover will honor at delivery. The payment information must be the same as was entered on the estimate.
(8) The terms and conditions for payment of the total charges, including notice of any minimum charges.
(9) The maximum amount your mover will demand, based on the mover's estimate, for you to obtain possession of the shipment at the time of delivery, when the household goods are transported on a collect-on-delivery basis.
(10) If not provided in the Bill of Lading, the Surface Transportation Board's required released rates valuation statement, and the charges, if any, for optional valuation coverage. The STB's required released rates may be increased annually by your mover based on the U.S. Department of Commerce's Cost of Living Adjustment.
(11) A complete description of any special or accessorial services ordered and minimum weight or volume charges applicable to the shipment.
(12) Any identification or registration number your mover assigns to the shipment.
(13) For non-binding estimated charges, your mover's reasonably accurate estimate of the amount of the charges, the method of payment of total charges, and the maximum amount (110 percent of the non-binding estimate) your mover will demand at the time of delivery for you to obtain possession of the shipment.
(14) For binding estimated charges, the amount of charges your mover will demand based upon the binding estimate and the terms of payment under the estimate.
(15) An indication of whether you request notification of the charges before delivery. You must provide your mover with the telephone number(s) or address(es) where your mover will transmit such communications.
You and your mover must sign the order for service. Your mover must provide a dated copy of the order for service to you at the time your mover signs the order. Your mover must provide you the opportunity to rescind the order for service without any penalty for a 3-day period after you sign the order for service, if you scheduled the shipment to be loaded more than 3 days after you sign the order.
Your mover should provide you with documents that are as complete as possible, and with all charges clearly identified. However, as a practical matter, your mover usually cannot give you a complete bill of lading before transporting your goods. This is both because the shipment cannot be weighed until it is in transit and because other charges for service, such as unpacking, storage-in-transit, and various destination charges, cannot be determined until the shipment reaches its destination.
Therefore, your mover can require you to sign a partially complete bill of lading if it contains all relevant information except the actual shipment weight and any other information necessary to determine the final charges for all services provided. Signing the bill of lading allows you to choose the valuation option, request special services, and/or acknowledge the terms and conditions of released valuation.
Your mover also may provide you, strictly for informational purposes, with blank or incomplete documents pertaining to the move. Before loading your shipment, and upon mutual agreement between you and your mover, your mover may amend an order for service. Your mover must retain records of an order for service it transported for at least one year from the date your mover wrote the order.
Your mover must inform you, before or at the time of loading, if the mover reasonably expects a special or accessorial service is necessary to transport a shipment safely. Your mover must refuse to accept the shipment when your mover reasonably expects a special or accessorial service is necessary to transport a shipment safely but you refuse to purchase the special or accessorial service. Your mover must make a written note if you refuse any special or accessorial services that your mover reasonably expects to be necessary.
Yes. Your mover must prepare an inventory of your shipment before or at the time of loading. If your mover's driver fails to prepare an inventory, you should write a detailed inventory of your shipment listing any damage or unusual wear to any items. The purpose is to make a record of the existence and condition of each item.
After completing the inventory, you should sign each page and ask the mover's driver to sign each page. Before you sign it, it is important you make sure that the inventory lists every item in the shipment and that the entries regarding the condition of each item are correct. You have the right to note any disagreement. If an item is missing or damaged when your mover delivers the shipment, your subsequent ability to dispute the items lost or damaged may depend upon your notations.
You should retain a copy of the inventory. Your mover may keep the original if the driver prepared it. If your mover's driver completed an inventory, the mover must attach the complete inventory to the bill of lading as an integral part of the bill of lading.
The bill of lading is the
The bill of lading requires the mover to provide the service you have requested. You must pay the charges set forth in the bill of lading.
A bill of lading must include the following 14 elements:
(1) Your mover's name and address, or the name and address of the motor carrier issuing the bill of lading.
(2) The names and addresses of any other motor carriers, when known, who will participate in the transportation of the shipment.
(3) The name, address, and telephone number of the office of the motor carrier you must contact in relation to the transportation of the shipment.
(4) The form of payment your mover will honor at delivery. The payment information must be the same that was entered on the estimate and order for service.
(5) When your mover transports your shipment under a collect-on-delivery basis, your name, address, and telephone number where the mover will notify you about the charges.
(6)
(7) For
(8) The actual date of pickup.
(9) The identification number(s) of the vehicle(s) in which your mover loads your shipment.
(10) The terms and conditions for payment of the total charges including notice of any minimum charges.
(11) The maximum amount your mover, based on the estimate, will demand from you at the time of delivery for you to obtain possession of your shipment, when your mover transports under a collect-on-delivery basis.
(12) If not provided for in the Order for Service, the Surface Transportation Board's required released rates valuation statement, and the charges, if any, for optional valuation coverage. The Board's required released rates may be increased annually by your mover based on the U.S. Department of Commerce's Cost of Living Adjustment.
(13) Evidence of any insurance coverage sold to or procured for you from an independent insurer, including the amount of the premium for such insurance.
(14) Each attachment to the bill of lading. Each attachment is an integral part of the bill of lading contract. If not provided to you elsewhere by the mover, the following three items must be added as attachments:
(i) The binding or non-binding estimate.
(ii) The order for service.
(iii) The inventory.
A copy of the bill of lading must accompany your shipment at all times while it is in the possession of your mover or its agent(s). When your mover loads the shipment on a vehicle for transportation, the bill of lading must be in the possession of the driver responsible for the shipment. Your mover must retain bills of lading for shipments it transported for at least one year from the date your mover created the bill of lading.
You and your mover should reach an agreement for pickup and delivery times. It is your responsibility to determine on what date, or between what dates, you need to have the shipment picked up and on what date, or between what dates, you require delivery. It is your mover's responsibility to tell you if it can provide service on or between those dates, or, if not, on what other dates it can provide the service.
In the process of reaching an agreement with your mover, you may find it necessary to alter your moving and travel plans if no mover can provide service on the specific dates you desire.
Do not agree to have your shipment picked up or delivered ”as soon as possible.” The dates or periods you and your mover agree upon should be definite.
Once an agreement is reached, your mover must enter those dates upon the order for service and the bill of lading.
Once your goods are loaded, your mover is contractually bound to provide the service described in the bill of lading. Your mover's only defense for not providing the service on the dates called for is the defense of force majeure. This is a legal term. It means that when circumstances change, were not foreseen, and are beyond the control of your mover, preventing your mover from performing the service agreed to in the bill of lading, your mover is not responsible for damages resulting from its nonperformance.
This may occur when you do not inform your mover of the exact delivery
Generally, yes. If your mover transports your household goods on a non-binding estimate, your mover must determine the actual weight of the shipment in order to calculate its lawful tariff charge. If your mover provided a binding estimate and has loaded your shipment without claiming you have added additional items or services, the weight of the shipment will not affect the charges you will pay.
Your mover must determine the weight of your shipment before requesting you to pay for any charges dependent upon your shipment's weight.
Most movers have a minimum weight charge for transporting a shipment. Generally, the minimum is the charge for transporting a shipment of at least 3,000 pounds (1,362 kilograms).
If your shipment appears to weigh less than the mover's minimum weight, your mover must advise you on the order for service of the minimum cost before transporting your shipment. Should your mover fail to advise you of the minimum charges and your shipment is less than the minimum weight, your mover must base your final charges upon the actual weight, not upon the minimum weight.
Your mover must weigh your shipment upon a certified scale.
The weight of your shipment must be obtained by using one of two methods:
After loading, the driver will weigh the truck again to obtain the loaded weight, called the
Gross Weight less the Tare Weight Before Loading = Net Weight.
Destination weighing is done in reverse of origin weighing. After arriving in the city or area where you are moving, the driver will weigh the truck. Your shipment will still be on the truck. Your mover will determine the
Gross Weight less the Tare Weight After Delivery = Net Weight.
At the time of both weighings, your mover's truck must have installed or loaded all pads, dollies, hand trucks, ramps, and other equipment required in the transportation of your shipment. The driver and other persons must be off the vehicle at the time of both weighings. The fuel tanks on the vehicle must be full at the time of each weighing; or, if the fuel tanks are not full, your mover must not add fuel between the two weighings when the tare weighing is the first weighing performed.
Your mover may detach the trailer of a tractor-trailer vehicle combination from the tractor and have the trailer weighed separately at each weighing, provided the length of the scale platform is adequate to accommodate and support the entire trailer.
Your mover may use an alternative method to weigh your shipment if it weighs 3,000 pounds (1,362 kilograms) or less. The only alternative method allowed is weighing the shipment upon a platform or warehouse certified scale before loading your shipment for transportation or after unloading.
Your mover must use the net weight of shipments transported in large containers, such as ocean or railroad containers. Your mover will calculate the difference between the tare weight of the container (including all pads, blocking and bracing used in the transportation of your shipment) and the gross weight of the container with your shipment loaded in the container.
You have the right, and your mover must inform you of your right, to observe all weighings of your shipment. Your mover must tell you where and when each weighing will occur. Your mover must give you a reasonable opportunity to be present to observe the weighings.
You may waive your right to observe any weighing or reweighing. This does not affect any of your other rights under Federal law.
Your mover may request that you waive your right to have a shipment weighed upon a certified scale. Your mover may want to weigh the shipment upon a trailer's on-board, non-certified scale. You should demand your right to have a certified scale used. The use of a non-certified scale may cause you to pay a higher final bill for your move, if the non-certified scale does not accurately weigh your shipment. Remember that certified scales are inspected and approved for accuracy by a government inspection or licensing agency. Non-certified scales are not inspected and approved for accuracy by a government inspection or licensing agency.
Your mover must obtain a separate weight ticket for each weighing. The weigh master must sign each weight ticket. Each weight ticket must contain the following six items:
(1) The complete name and location of the scale.
(2) The date of each weighing.
(3) Identification of the weight entries as being the tare, gross, or net weights.
(4) The company or mover identification of the vehicle.
(5) Your last name as it appears on the Bill of Lading.
(6) Your mover's shipment registration or Bill of Lading number.
Your mover must retain the original weight ticket or tickets relating to the determination of the weight of your shipment as part of its file on your shipment. When both weighings are performed on the same scale, one weight ticket may be used to record both weighings.
Your mover must present all freight bills with true copies of all weight tickets. If your mover does not present its freight bill with all weight tickets, your mover is in violation of Federal law.
Before the driver actually begins unloading your shipment weighed at origin and after your mover informs you of the billing weight and total charges, you have the right to demand a reweigh of your shipment. If you believe the weight is not accurate, you have the right to request your mover reweigh your shipment before unloading.
You have the right, and your mover must inform you of your right, to observe all reweighings of your shipment. Your mover must tell you where and when each reweighing will occur. Your mover must give you a reasonable opportunity to be present to observe the reweighing. You may waive your right to observe any reweighing; however, you must waive that right in writing. You may send the written waiver via fax or e-mail, as well as by overnight courier or certified mail, return receipt requested. This does not affect any of your other rights under Federal law.
Your mover is prohibited from charging you for the reweighing. If the weight of your shipment at the time of the reweigh is different from the weight determined at origin, your mover must recompute the charges based upon the reweigh weight.
Before requesting a reweigh, you may find it to your advantage to estimate the weight of your shipment using the following three-step method:
1. Count the number of items in your shipment. Usually there will be either 30 or 40 items listed on each page of the inventory. For example, if there are 30 items per page and your inventory consists of four complete pages and a fifth page with 15 items listed, the total number of items will be 135.
2. Subtract the weight of any automobile included in your shipment from the total weight of the shipment. If the automobile was not weighed separately, its weight can be found on its title or license receipt.
3. Divide the number of items in your shipment into the weight. If the average weight resulting from this exercise ranges between 35 and 45 pounds (16 and 20 kilograms) per article, it is unlikely a reweigh will prove beneficial to you. In fact, it could result in your paying higher charges.
Experience has shown that the average shipment of household goods will weigh about 40 pounds (18 kilograms) per item. If a shipment contains a large number of heavy items, such as cartons of books, boxes of tools or heavier than average furniture, the average weight per item may be 45 pounds or more (20 kilograms or more).
If you request notification of the actual weight and charges of your shipment, your mover must comply with your request if it is moving your goods on a collect-on-delivery basis. This requirement is conditioned upon your supplying your mover with an address or telephone number where you will receive the communication. Your mover must make its notification by telephone; fax transmissions; e-mail; overnight courier; certified mail, return receipt requested; or in person.
You must receive the mover's notification at least one full 24-hour day before its scheduled delivery, excluding Saturdays, Sundays, and Federal holidays.
Your mover may disregard this 24-hour notification requirement on shipments subject to one of the following three things:
(1) Back weigh (when your mover weighs your shipment at its destination).
(2) Pickup and delivery encompassing two consecutive weekdays, if you agree.
(3) Maximum payment amounts at time of delivery of 110 percent of the estimated charges, if you agree.
Yes, your mover must transport your household goods in a timely manner. This is also known as ”reasonable dispatch service.” Your mover must provide reasonable dispatch service to you, except for transportation on the basis of guaranteed delivery dates.
When your mover is unable to perform either the pickup or delivery of your shipment on the dates or during the periods of time specified in the order for service, your mover must notify you of the delay, at the mover's expense. As soon as the delay becomes apparent to your mover, it must give you notification it will be unable to provide the service specified in the terms of the order for service. Your mover may notify you of the delay in any of the following ways: By telephone; fax transmissions; e-mail; overnight courier; certified mail, return receipt requested; or in person.
When your mover notifies you of a delay, it also must advise you of the dates or periods of time it may be able to pick up and/or deliver the shipment. Your mover must consider your needs in its advisement. Your mover must prepare a written record of the date, time, and manner of its notification.
Your mover must prepare a written record of its amended date or period for delivery. Your mover must retain these records as a part of its file on your shipment. The retention period is one year from the date of notification. Your mover must furnish a copy of the notification to you either by first class mail or in person, if you request a copy of the notice.
Your mover must tender your shipment for delivery on the agreed-upon delivery date or within the period specified on the bill of lading. Upon your request or concurrence, your mover may deliver your shipment on another day.
The establishment of a delayed pickup or delivery date does not relieve your mover from liability for damages resulting from your mover's failure to provide service as agreed. However, when your mover notifies you of alternate delivery dates, it is your responsibility to be available to accept delivery on the dates specified. If you are not available and are not willing to accept delivery, your mover has the right to place your shipment in storage at your expense or hold the shipment on its truck and assess additional charges.
If after the pickup of your shipment,
If your mover fails to pick up and deliver your shipment on the date entered on the bill of lading and you have expenses you otherwise would not have had, you may be able to recover those expenses from your mover. This is what is called an inconvenience or delay claim. Should your mover refuse to honor such a claim and you continue to believe you are entitled to be paid damages, you may take your mover to court under 49 U.S.C. 14706.
While we hope your mover delivers your shipment in a timely manner, you should consider the possibility your shipment may be delayed, and find out what payment you can expect if a mover delays service through its own fault, before you agree with the mover to transport your shipment.
At your mover's discretion, it may place your shipment in storage. This will be under its own account and at its own expense in a warehouse located in proximity to the destination of your shipment. Your mover may do this if you fail to request or concur with an early delivery date, and your mover is able to deliver your shipment more than 24 hours before your specified date or the first day of your specified period.
If your mover exercises this option, your mover must immediately notify you of the name and address of the warehouse where your mover places your shipment. Your mover must make and keep a record of its notification as a part of its shipment records. Your mover has full responsibility for the shipment under the terms and conditions of the bill of lading. Your mover is responsible for the charges for redelivery, handling, and storage until it makes final delivery. Your mover may limit its responsibility to the agreed-upon delivery date or the first day of the period of delivery as specified in the bill of lading.
If you request your mover to hold your household goods in storage-in-transit and the storage period is about to expire, your mover must notify you, in writing, about the four following items:
(1) The date when storage-in-transit will convert to permanent storage.
(2) The existence of a 9-month period after the date of conversion to permanent storage, during which you may file claims against your mover for loss or damage occurring to your goods while in transit or during the storage-in-transit period.
(3) The date your mover's liability will end.
(4) Your property will be subject to the rules, regulations, and charges of the warehouseman.
Your mover must make this notification at least 10 days before the expiration date of one of the following two periods of time:
(1) The specified period of time when your mover is to hold your goods in storage.
(2) The maximum period of time provided in its tariff for storage-in-transit.
Your mover must notify you by facsimile transmission; overnight courier; e-mail; or certified mail, return receipt requested.
If your mover holds your household goods in storage-in-transit for less than 10 days, your mover must notify you, one day before the storage-in-transit period expires, of the same information specified above.
Your mover must maintain a record of all notifications to you as part of the records of your shipment. Under the applicable tariff provisions regarding storage-in-transit, your mover's failure or refusal to notify you will automatically extend your mover's liability until the end of the day following the date when your mover actually gives you notice.
At the time of delivery, your mover will expect you to sign a receipt for your shipment. Normally, you will sign each page of your mover's copy of the inventory.
Your mover's delivery receipt or shipping document must not contain any language purporting to release or discharge it or its agents from liability.
Your mover may include a statement about your receipt of your property in apparent good condition, except as noted on the shipping documents.
On a binding estimate, the maximum amount is the exact estimate of the charges, plus the charges for any additional services you requested after the bill of lading was executed (charges therefore not included in the estimate) and any charges for impracticable operations (not to exceed 15 percent of all other charges due at delivery). Your mover must specify on the estimate, order for service, and bill of lading the form of payment acceptable to it (for example, a certified check).
On a non-binding estimate, the maximum amount is 110 percent of the approximate costs, plus the charges for any additional services you requested after the bill of lading was executed (charges therefore not included in the estimate) and any charges for impracticable operations (not to exceed 15 percent of all other charges due at delivery). Your mover must specify on the estimate, order for service, and bill of lading the form of payment acceptable to it (for example, cash).
Although all movers try to move each shipment on one truck, it becomes necessary at times to divide a shipment among two or more trucks. This frequently occurs when an automobile is included in the shipment and transported on a specially designed vehicle. When this occurs, your transportation charges are the same as if the entire shipment moved on one truck.
If your shipment is divided for transportation on two or more trucks, the mover may require payment for each portion as it is delivered.
Your mover may delay the collection of all the charges until the entire shipment is delivered, at its discretion, not yours. When you order your move, you should ask the mover about its policies in this regard.
Movers customarily make every effort to avoid losing, damaging, or destroying any of your items while your shipment is in their possession for transportation. However, despite the precautions taken, articles are sometimes lost or destroyed during the move.
In addition to any money you may recover from your mover to compensate for lost or destroyed articles, you also may recover the transportation charges represented by the portion of the shipment lost or destroyed. Your mover may apply this paragraph only to the transportation of household goods. Your mover may disregard this paragraph if loss or destruction was due to an act or omission by you. Your mover must require you to pay any specific valuation charge due.
For example, if you pack a hazardous material (i.e., gasoline, aerosol cans, motor oil, etc.) and your shipment is partially lost or destroyed by fire in storage or in the mover's trailer, your mover may require you to pay for the full cost of transportation.
If your shipment is partially lost or destroyed, your mover is permitted to collect at delivery only a prorated percentage based on the freight charges for the goods actually delivered, plus the charges for any additional services you requested after the bill of lading was executed and any charges for impracticable operations. Charges for impracticable operations collected at delivery must not exceed 15 percent of the total charges your mover collects at delivery.
Your mover is forbidden from collecting, or requiring you to pay, any freight charges (including any charges for accessorial or terminal services) when your household goods shipment is
Your mover must multiply the percentage equal to the weight of the portion of the shipment delivered to the total weight of the shipment times the total charges applicable to the shipment tendered by you to obtain the total charges it must collect from you.
If your mover's computed charges exceed the charges otherwise applicable to the shipment as delivered, the lesser of those charges must apply. This will apply only to the transportation of your household goods.
Your mover must require you to pay any specific valuation charge due.
Your mover may not refund the freight charges if the loss or destruction was due to an act or omission by you. For example, you fail to disclose to your mover that your shipment contains perishable live plants. Your mover may disregard its loss or destruction of your plants because you failed to inform your mover you were transporting live plants.
Your mover must determine, at its own expense, the proportion of the shipment, based on actual or constructive weight, not lost or destroyed in transit.
Your rights are in addition to, and not in lieu of, any other rights you may have with respect to your shipment of household goods your mover lost or destroyed, or partially lost or destroyed, in transit. This applies whether or not you have exercised your rights provided above.
It applies to all shipments of household goods that involve a balance due freight or expense bill or are shipped on credit.
At the time of payment of transportation charges, your mover must give you a freight bill identifying the service provided and the charge for each service. It is customary for most movers to use a copy of the bill of lading as a freight bill; however, some movers use an entirely separate document for this purpose.
Except in those instances where a shipment is moving on a binding estimate, the freight bill must specifically identify each service performed, the rate or charge per service performed, and the total charges for each service.
Movers' tariffs customarily specify that freight charges must be paid in cash, by certified check, or by cashier's check. When this requirement exists, the mover will not accept personal checks. At the time you order your move, you should ask your mover about the form of payment your mover requires.
Some movers permit payment of freight charges by use of a charge or credit card. However, do not assume your nationally recognized charge, credit, or debit card will be acceptable for payment. Ask your mover at the time you request an estimate. Your mover must specify the form of payment it will accept at delivery.
If you do not pay the transportation charges at the time of delivery, your mover has the right, under the bill of lading, to refuse to deliver your goods. The mover may place them in storage, at your expense, until the charges are paid. However, the mover must deliver your goods upon payment of 100 percent of a binding estimate, plus the charges for any additional services you requested after the bill of lading was executed (charges therefore not included in the estimate) and any charges for impracticable operations (not to exceed 15 percent of all other charges due at delivery).
If, before payment of the transportation charges, you discover an error in the charges, you should attempt to correct the error with the driver or the mover's local agent, or by contacting the mover's main office. If an error is discovered after payment, you should write the mover (the address will be on the freight bill) explaining the error, and request a refund.
Movers customarily check all shipment files and freight bills after a move has been completed to make sure the charges were accurate. If an overcharge is found, you should be notified and a refund should be made. If an undercharge occurred, you may be billed for the additional charges due.
On “to be prepaid” shipments, your mover must present its freight bill for all transportation charges within 15 days of the date your mover received the shipment. This period excludes Saturdays, Sundays, and Federal holidays.
On “collect” shipments, your mover must present its freight bill for all transportation charges on the date of delivery, or, at its discretion, within 15 days, calculated from the date the shipment was delivered at your destination. This period excludes Saturdays, Sundays, and Federal holidays. (Bills for additional charges based on the weight of the shipment will be presented 30 days after delivery; charges for impracticable operations not paid at delivery are due within 30 days of the invoice.) Your mover's freight bills and accompanying written notices must state the following five items:
(1) Penalties for late payment.
(2) Credit time limits.
(3) Service or finance charges.
(4) Collection expense charges.
(5) Discount terms.
If your mover extends credit to you, freight bills or a separate written notice accompanying a freight bill or a group of freight bills presented at one time must state, “You may be subject to tariff penalties for failure to timely pay freight charges,” or a similar statement. Your mover must state on its freight bills or other notices when it expects payment and any applicable service charges, collection expense charges, and discount terms.
When your mover lacks sufficient information to compute its tariff charges at the time of billing, your mover must present its freight bill for payment within 15 days following the day when sufficient information becomes available. This period excludes Saturdays, Sundays, and Federal holidays.
Your mover must not extend additional credit to you if you fail to furnish sufficient information to your mover. Your mover must have sufficient information to render a freight bill within a reasonable time after shipment.
When your mover presents freight bills by mail, it must deem the time of mailing to be the time of presentation of the bills. The term “freight bills,” as used in this paragraph, includes both paper documents and billing by use of electronic media such as computer tapes, disks, or the Internet (e-mail).
When you mail acceptable checks or drafts in payment of freight charges, your mover must deem the act of mailing the payment within the credit period to be the proper collection of the tariff charges within the credit period for the purposes of Federal law. In case of a dispute as to the date of mailing, your mover must accept the postmark as the date of mailing.
On “collect-on-delivery” shipments, your mover must present its freight bill for transportation charges within 15 days, calculated from the date the shipment was delivered at your destination. This period excludes Saturdays, Sundays, and Federal holidays. (Bills for additional charges based on the weight of the shipment will be presented 30 days after delivery; charges for impracticable operations not paid at delivery are due within 30 days of the invoice.)
Your mover must present a freight bill within 15 days (excluding Saturdays, Sundays, and Federal holidays) of the date of delivery of a shipment at your destination. (Bills for additional charges based on the weight of the shipment will be presented 30 days after delivery; charges for impracticable operations not paid at delivery are due within 30 days of the invoice.)
Your mover must provide in its tariffs the following three things:
(1) A provision indicating its credit period is a total of 30 calendar days.
(2) A provision indicating you will be assessed a service charge by your mover equal to one percent of the amount of the freight bill, subject to a $20 minimum charge, for the extension of the credit period. The mover will assess the service charge for each 30-day extension that the charges go unpaid.
(3) A provision that your mover must deny credit to you if you fail to pay a duly presented freight bill within the 30-day period. Your mover may grant credit to you, at its discretion, when you satisfy your mover's condition that you will pay all future freight bills duly presented. Your mover must ensure all your payments of freight bills are strictly in accordance with Federal rules and regulations for the settlement of its rates and charges.
Should your move result in the loss of or damage to any of your property, you have the right to file a claim with your mover to recover money for such loss or damage.
You should file a claim as soon as possible. If you fail to file a claim within 9 months, your mover may not be required to accept your claim. If you institute a court action and win, you may be entitled to attorney's fees if you submitted your claim to the carrier within 120 days after delivery or the scheduled date of delivery (whichever is later), and (1) the mover did not advise you during the claim settlement process of the availability of arbitration as a means for resolving the dispute; (2) a decision was not rendered through arbitration within the time required by law; or (3) you are instituting a court action to enforce an arbitration decision with which the mover has not complied.
While the Federal Government maintains regulations governing the processing of loss and damage claims (49 CFR part 370), it cannot resolve those claims. If you cannot settle a claim with the mover, you may file a civil action to recover your claim in court under 49 U.S.C. 14706. You may obtain the name and address of the mover's agent for service of legal process in your State by contacting the Federal Motor Carrier Safety Administration. You may also obtain the name of a process agent via the Internet. Go to
In addition, your mover must participate in an arbitration program. As described earlier in this pamphlet, an arbitration program gives you the opportunity to settle, through a neutral arbitrator, certain types of unresolved loss or damage claims and disputes regarding charges that were billed to you by your mover after your shipment was delivered. You may find submitting your claim to arbitration under such a program to be a less expensive and more convenient way to seek recovery of your claim. Your mover is required to provide you with information about its arbitration program before you move. If your mover fails to do so, ask the mover for details of its program.
Generally, you must resolve your own loss and damage disputes with your mover. You enter a contractual arrangement with your mover. You are bound by each of the following three things:
(1) The terms and conditions you negotiated before your move.
(2) The terms and conditions you accepted when you signed the bill of lading.
(3) The terms and conditions you accepted when you signed for delivery of your goods.
You have the right to take your mover to court. We require your mover to offer you arbitration to settle your disputes with it.
49 U.S.C. 521, 31136, 31301
(e) * * *
(b)
(2)
49 U.S.C. 31136, 31301 et seq., 31502; Sec. 103 of Pub. L. 106-159, 113 Stat. 1753, 1767; Sec. 4140 of Pub. L. 109-59, 119 Stat. 1144; and 49 CFR 1.73.
(c) A State must come into substantial compliance with the requirements of subpart B of this part in effect as of September 4, 2007 as soon as practical but, unless otherwise specifically provided in this part, not later than September 4, 2010.
(a)
(b)
49 U.S.C 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 31136, 31144, 31148, 31502; Sec. 350 of Pub. L. 107-87; and 49 CFR 1.73.
(1) In interstate commerce, or
(2) Affecting interstate commerce.
(c) Frequency and severity of driver/vehicle regulatory violations identified during roadside inspections of motor carrier operations in commerce and, if the motor carrier operates in the United States, of operations in Canada and Mexico.
(d) Number and frequency of out-of-service driver/vehicle violations of motor carrier operations in commerce and, if the motor carrier operates in the United States, of operations in Canada and Mexico.
(f) For motor carrier operations in commerce and (if the motor carrier operates in the United States) in Canada and Mexico: Frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time.
(g) Number and severity of violations of CMV and motor carrier safety rules, regulations, standards, and orders that are both issued by a State, Canada, or Mexico and compatible with Federal rules, regulations, standards, and orders.
(a) * * *
(1) Motor carriers transporting hazardous materials in quantities requiring placarding, and motor carriers transporting passengers in a CMV, are prohibited from operating a CMV in motor carrier operations in commerce beginning on the 46th day after the date
(2) All other motor carriers rated as a result of reviews completed on or after November 20, 2000, are prohibited from operating a CMV in motor carrier operations in commerce beginning on the 61st day after the date of the FMCSA notice of proposed “unsatisfactory” rating. If FMCSA determines that the motor carrier is making a good-faith effort to improve its safety fitness, FMCSA may allow the motor carrier to operate for up to 60 additional days.
(d)
(2) If a motor carrier's intrastate operations are declared out of service by a State, FMCSA must issue an order placing out of service the carrier's operations in interstate commerce, provided the following two conditions apply:
(i) The State that issued the intrastate out-of-service order participates in the Motor Carrier Safety Assistance Program
(ii) The motor carrier has its principal place of business in the State that issued the out-of-service order.
(3) FMCSA shall prohibit the owner or operator from operating such vehicle in interstate commerce until the State determines that the owner or operator is fit.
(4) Any motor carrier that operates CMVs in violation of this section is subject to the penalty provisions of 49 U.S.C. 521(b) and appendix B to part 386 of this chapter.
(g) FMCSA may allow a motor carrier (except a motor carrier transporting passengers or a motor carrier transporting hazardous materials in quantities requiring placarding) with a proposed rating of “unsatisfactory” to continue its motor carrier operations in commerce for up to 60 days beyond the 60 days specified in the proposed rating, if FMCSA determines that the motor carrier is making a good faith effort to improve its safety status. This additional period would begin on the 61st day after the date of the notice of proposed “unsatisfactory” rating.
(f) The safety rating will be determined by applying the SFRM equally to all of a company's motor carrier operations in commerce, including if applicable its operations in Canada and/or Mexico.
B.
(a) In addition to the five regulatory rating factors, a sixth factor is included in the process to address the accident history of the motor carrier. This factor is the recordable accident rate for the past 12 months. A recordable accident, consistent with the definition for “accident” in 49 CFR 390.5, means an occurrence involving a commercial motor vehicle on a highway in motor carrier operations in commerce or within Canada or Mexico (if the motor carrier also operates in the United States) that results in a fatality; in bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or in one or more motor vehicles incurring disabling damage that requires the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
49 U.S.C. 521, 5123, 13301, 13902, 14915, 31132-31133, 31136, 31144, 31502, 31504; Sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
(e) * * *
(1) All knowing violations of 49 U.S.C. chapter 51 or orders or regulations issued under the authority of that chapter applicable to the transportation or shipment of hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not less than $250 and not more than $50,000 for each violation. Each day of a continuing violation constitutes a separate offense.
(2) All knowing violations of 49 U.S.C. chapter 51 or orders or regulations issued under the authority of that chapter applicable to training related to the transportation or shipment of hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not less than $450 and not more than $50,000 for each violation.
(3) All knowing violations of 49 U.S.C. chapter 51 or orders, regulations, or exemptions issued under the authority of that chapter applicable to the manufacture, fabrication, marking, maintenance, reconditioning, repair, or testing of a packaging or container that is represented, marked, certified, or sold as being qualified for use in the transportation or shipment of hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not less than $250 and not more than $50,000 for each violation.
(4) Whenever regulations issued under the authority of 49 U.S.C. chapter 51 require compliance with the FMCSRs while transporting hazardous materials, any violations of the FMCSRs will be considered a violation of the HMRs and subject to a civil penalty of not less than $250 and not more than $50,000.
(5) If any violation subject to the civil penalties set out in paragraphs (e)(1) through (4) of this appendix results in death, serious illness, or severe injury to any person or in substantial destruction of property, the civil penalty may be increased to not more than $100,000 for each offense.
(f)
(2) A motor carrier operating a commercial motor vehicle designed or used to transport hazardous materials for which placarding of a motor vehicle is required under regulations prescribed under 49 U.S.C. chapter 51 is subject, after being placed out of service because of receiving a final “unsatisfactory” safety rating, to a civil penalty of not less than $250 and not more than $50,000 for each offense. If the violation results in death, serious illness, or severe injury to any person or in substantial destruction of property, the civil penalty may be increased to not more than $100,000 for each offense. Each day the transportation continues in violation of a final “unsatisfactory” safety rating constitutes a separate offense.
(g) * * *
(21) A person—
(i) Who knowingly and willfully fails, in violation of a contract, to deliver to, or unload at, the destination of a shipment of household goods in interstate commerce for which charges have been estimated by the motor carrier transporting such goods, and for which the shipper has tendered a payment in accordance with part 375, subpart G of this chapter, is liable for a civil penalty of not less than $10,000 for each violation. Each day of a continuing violation constitutes a separate offense.
(ii) Who is a carrier or broker and is found to be subject to the civil penalties in paragraph (i) of this appendix may also have his or her carrier and/or broker registration suspended for not less than 12 months and not more than 36 months under 49 U.S.C. chapter 139. Such suspension of a carrier or broker shall extend to and include any carrier or broker having the same ownership or operational control as the suspended carrier or broker.
(h)
49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 31504; 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, 229, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73.
(f) * * *
(7) Either a driver of a commercial motor vehicle used primarily in the transportation of propane winter heating fuel or a driver of a motor vehicle used to respond to a pipeline emergency, if such regulations would prevent the driver from responding to an emergency condition requiring immediate response as defined in § 390.5.
49 U.S.C. 504, 14122, 31133, 31136, 31502; Sec. 229, Pub. L. 106-159, 113 Stat. 1748; Sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; and 49 CFR 1.73.
(a)
(2) The exceptions from Federal requirements contained in paragraphs (l) and (m) of this section do not preempt State laws and regulations governing the safe operation of commercial motor vehicles.
(k) * * *
(2) Is conducted (except in the case of livestock feed transporters) during the planting and harvesting seasons within such State, as determined by the State.
(n)
(p)
(1) More than 10 hours following 8 consecutive hours off duty;
(2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.
(3) If a driver of a commercial motor vehicle providing transportation of property or passengers to or from a theatrical or television motion picture production site operates beyond a 100 air-mile radius of the normal work-reporting location, the driver is subject to § 395.3(a), and paragraphs (p)(1) and (2) of this section do not apply.
(q)
(1) Is within the State of New York;
(2) Is west of Interstate 81;
(3) Is within a 150 air-mile radius of where the grapes were picked or distributed; and
(4) Is during the harvest period as defined by the State of New York. This provision expires September 30, 2009.
General Services Administration (GSA), Civilian Board of Contract Appeals.
Interim rule.
This document contains the rules of procedure of the Civilian Board of Contract Appeals (Board), which will govern all proceedings before the Board. The Board was established within GSA by section 847 of the National Defense Authorization Act for Fiscal Year 2006 to hear and decide contract disputes between Government contractors and Executive agencies (other than the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Rate Commission, and the Tennessee Valley Authority) under the provisions of the Contract Disputes Act of 1978 and regulations and rules issued thereunder. Effective January 6, 2007, boards of contract appeals that existed at the General Services Administration and the Departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs were terminated, and their cases were transferred to the new Civilian Board of Contract Appeals. The Board has jurisdiction as provided by section 8(d) of the Contract Disputes Act of 1978, 41 U.S.C. 607(d). In addition, the Board will conduct proceedings as required or permitted under other statutes or regulations. The Board intends to issue final, revised rules after considering all comments on the interim rule.
Effective Date: This interim rule is effective July 5, 2007.
Submit comments identified by CBCA Amendment 2006-01, BCA case 2006-61-1, by any of the following methods:
• Federal eRulemaking Portal:
• Fax: 202-606-0019.
• Mail: General Services Administration, Civilian Board of Contract Appeals, ATTN: Margaret Pfunder, 1800 F Street, NW, Washington, DC 20405.
Margaret S. Pfunder, Chief Counsel, Civilian Board of Contract Appeals, telephone (202) 606-8800, internet address
The Civilian Board of Contract Appeals was established within the General Services Administration (GSA) by section 847 of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 109-163. Effective January 6, 2007, the boards of contract appeals that existed at the General Services Administration and the Departments of Agriculture, Energy, Housing and Urban Development, Interior, Labor, Transportation, and Veterans Affairs were terminated, and their cases were transferred to the new Civilian Board of Contract Appeals. The Civilian Board was established to hear and decide contract disputes between Government contractors and Executive agencies (other than the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Rate Commission, and the Tennessee Valley Authority) under the provisions of the Contract Disputes Act of 1978 and regulations and rules issued thereunder. The Board will also conduct other proceedings as required or permitted under statutes or regulations.
Such other proceedings include the resolution of disputes involving grants and contracts under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. 450,
Such other proceedings also include the resolution of disputes between insurance companies and the Department of Agriculture's Risk Management Agency (RMA) involving actions of the Federal Crop Insurance Corporation (FCIC) pursuant to the Federal Crop Insurance Act, 7 U.S.C. 1501,
In addition, other proceedings that the Civilian Board will conduct include several types of cases heard by the General Services Board of Contract Appeals by delegation from the Administrator of General Services. Effective January 6, 2007, the Administrator of General Services redelegated those cases to the Civilian Board of Contract Appeals. Those cases include the following:
• Pursuant to 31 U.S.C. 3726(i)(1), requests by carriers or freight forwarders to review actions taken by the Audit Division of the General Services Administration's Office of Transportation and Property Management;
• Pursuant to 31 U.S.C. 3702, claims by Federal civilian employees against the United States for reimbursement of (1) expenses incurred while on official temporary duty travel and (2) expenses incurred in connection with relocation to a new duty station; and
• Pursuant to section 204 of the General Accounting Office Act of 1996, Pub. L. 104-316, requests of agency disbursing or certifying officials, or agency heads, on questions involving payment of travel or relocation expenses that were formerly considered by the Comptroller General under 31 U.S.C. 3529.
These rules of procedure are based on and do not differ in any substantial way from the rules of procedure which existed at the predecessor civilian agency boards. The rules of the predecessor civilian agency boards all had the same general intent and coverage. There were differences among the rules in terms of both structure and wording, and no two civilian agency boards had identical sets of rules. In drafting rules of procedure for the Civilian Board, we studied the rules of procedure of all of the civilian agency boards and developed an interim final rule which blends those rules. The interim final rule maintains most of the rules all of the former boards had in place.
Questions have been raised about the scope of the Board's subpoena authority over federal agencies. The Department of Justice has recently provided advice concluding that the statute that granted subpoena authority to the separate agency boards of contract appeals, and that provides such authority to the consolidated Board, does not provide the necessary legal authority for a board to enforce a subpoena against a federal agency. Therefore, the agency does not interpret the term “person” where it is used in 6101.16 to include the United States or component federal agencies.
The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
OMB reviewed this rule under Executive Order 12866 (entitled, “Regulatory Planning and Review”). OMB determined that this rule is a “significant regulatory action” as defined in section 3(f) of the Order (although not an economically significant regulatory action under the Order).
The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements, or otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C. 3501,
Pursuant to 5 U.S.C. § 553(b)(B), we have determined that it would be impracticable, unnecessary, and contrary to the public interest to publish this as a Notice of Proposed Rulemaking because to do so would result in the Board being operational but unable to perform its essential functions. Accordingly, we find that good cause exists to publish as an interim rule. For the same reasons, we have determined that this interim rule should be issued without a delayed effective date. However, we are interested in comments regarding this interim rule.
Administrative practice and procedure, Agriculture, Freight forwarders, Government procurement, Travel and relocation expenses.
41 U.S.C. 601-613.
(a)
(b)
(2)
(3)
(4)
(5)
(ii) Facsimile transmissions to the Board and the parties are permitted. The filing of a document by facsimile transmission occurs upon receipt by the Board of the entire printed submission. Parties are specifically cautioned that a deadline for filing will not be extended merely because the Board's facsimile machine is busy or otherwise unavailable when a filing is due. Parties are expected to submit their facsimile machine numbers with their filings.
(6)
(7)
(8)
(9)
(10)
(c)
(d)
(e)
(f)
(a)
(1)
(ii) A written notice in any form, including the one specified in the Appendix to the rules in this chapter, is sufficient to initiate an appeal. The notice of appeal should include the following information:
(A) The number and date of the contract;
(B) The name of the government agency and the component thereof against which the claim has been asserted;
(C) The name, address, and telephone number of the contracting officer whose decision is appealed and the date of the decision;
(D) If the appeal is from the failure of the contracting officer to decide a claim, the name, address, and telephone number of the contracting officer who received the claim;
(E) A brief account of the circumstances giving rise to the appeal; and
(F) An estimate of the amount of money in controversy, if any and if known.
(iii) The appellant must send a copy of the notice of appeal to the contracting officer whose decision is appealed or, if there has been no decision, to the contracting officer before whom the appellant's claim is pending.
(2)
(ii) The petition should include the following information:
(A) The number and date of the contract;
(B) The name of the government agency and the component thereof against which the claim has been asserted; and
(C) The name, address, and telephone number of the contracting officer whose decision is sought.
(3)
(b)
(ii) An appeal may be filed with the Board if the contracting officer fails or refuses to issue a timely decision on a claim submitted in writing, properly certified if required.
(2)
(c)
(d)
(1) Order the cases consolidated; or
(2) Make such other orders concerning the proceedings as are needed to avoid unnecessary costs or delay.
(a)
(b)
(c)
(a)
(1) The contracting officer's decision, if any, from which the appeal is taken;
(2) The contract, if any, including amendments, specifications, plans, and drawings;
(3) All correspondence between the parties that are relevant to the appeal, including the written claim or claims that are the subject of the appeal, and evidence of their certification, if any;
(4) Affidavits or statements of any witnesses concerning the matter in dispute and transcripts of any testimony taken before the filing of the notice of appeal;
(5) All documents and other tangible things on which the contracting officer relied in making the decision, and any related correspondence;
(6) The abstract of bids, if relevant; and
(7) Any additional existing evidence or information necessary to determine the merits of the appeal, such as internal memoranda and notes to the file.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(2)
(3)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(a)
(b)
(c)
(1) Motions to dismiss for lack of jurisdiction or for failure to state a claim upon which relief can be granted;
(2) Motions to dismiss for failure to prosecute;
(3) Motions for summary relief (analogous to summary judgment); and
(4) Any other motion to dismiss.
(d)
(e)
(f)
(g)
(2) With each motion for summary relief, there shall be served and filed a separate document titled Statement of Uncontested Facts, which shall contain in separately numbered paragraphs all of the material facts upon which the moving party bases its motion and as to which it contends there is no genuine issue. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the 6101.4 (Rule 4) appeal file exhibits relied upon to support such statement.
(3) An opposing party shall file with its opposition (or cross-motion) a separate document titled Statement of Genuine Issues. This document shall identify, by reference to specific paragraph numbers in the moving party's Statement of Uncontested Facts, those facts as to which the opposing party claims there is a genuine issue necessary to be litigated. An opposing party shall state the precise nature of its disagreement and give its version of the facts. This statement shall include references to the supporting affidavits or declarations and documents, if any, and to the 6101.4 (Rule 4) appeal file exhibits that demonstrate the existence of a genuine dispute. An opposing party may also file a Statement of Uncontested Facts as to any relevant matters not covered by the moving party's statement.
(4) When a motion for summary relief is made and supported as provided in 6101.8 (Rule 8), an opposing party may not rest upon the mere allegations or denials of its pleadings. The opposing party's response, by affidavits or as otherwise provided by 6101.8 (Rule 8), must set forth specific facts showing that there is a genuine issue of material fact. If the opposing party does not so respond, summary relief, if appropriate, shall be entered against that party. For good cause shown, if an opposing party cannot present facts essential to justify its opposition, the Board may defer ruling on the motion to permit affidavits to be obtained or depositions to be taken or other discovery to be conducted, or may make such other order as is just.
(h)
(a)
(1) The notice of appeal, petition, or application;
(2) Appeal file exhibits other than those as to which an objection has been sustained;
(3) Hearing exhibits other than those as to which an objection has been sustained;
(4) Pleadings;
(5) Motions and responses thereto;
(6) Memoranda, orders, rulings, and directions to the parties issued by the Board;
(7) Documents and other tangible things admitted in evidence by the Board;
(8) Written transcripts or electronic recordings of proceedings;
(9) Stipulations and admissions by the parties;
(10) Depositions, or parts thereof, received in evidence;
(11) Written interrogatories and responses received in evidence;
(12) Briefs and memoranda of law; and
(13) Anything else that the Board may designate. All other papers and documents are part of the administrative record of the proceedings and are not included in the record upon which the Board's decision will be rendered.
(b)
(c)
(2) A party may also ask, or the Board may direct, that testimony be received under protective order or
(d)
(a)
(b)
(a)
(1) Simplifying, clarifying, or severing the issues;
(2) Stipulations, admissions, agreements, and rulings to govern the admissibility of evidence, understandings on matters already of record, or other similar means of avoiding unnecessary proof;
(3) Plans, schedules, and rulings to facilitate discovery;
(4) Limiting the number of witnesses and other means of avoiding cumulative evidence;
(5) Stipulations or agreements disposing of matters in dispute; or
(6) Ways to expedite disposition of the case or to facilitate settlement of the dispute, including, if the parties and the Board agree, the use of alternative dispute resolution techniques, as provided in 6101.51 and 6101.54 (Rules 51 and 54).
(b)
(a)
(b)
(c)
(d)
(e)
(a)
(1) Depositions upon oral examination or written questions;
(2) Written interrogatories;
(3) Requests for production of documents, electronic records, or other tangible or intangible things; and
(4) Requests for admission.
(b)
(c)
(1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity by discovery in the case to obtain the information sought; or
(3) The discovery is unduly burdensome and expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake.
(d)
(e)
(f)
(i) That the discovery not be had;
(ii) That the discovery be had only on specified terms and conditions, including a designation of the time and place, or that the scope of discovery be limited to certain matters;
(iii) That the discovery be conducted with no one present except persons designated by the Board; and
(iv) That confidential information not be disclosed or that it be disclosed only in a designated way.
(2) Unless otherwise ordered by the Board, any objection to a discovery request must be filed within 15 calendar days after receipt. A party shall fully respond to any discovery request to which it does not file a timely objection. The parties are required to make a good faith effort to resolve objections to discovery requests informally.
(3) A party receiving an objection to a discovery request, or a party which believes that another party's response to a discovery request is incomplete or entirely absent, may file a motion to compel a response, but such a motion must include a representation that the moving party has tried in good faith, prior to filing the motion, to resolve the matter informally. The motion to compel shall include a copy of each discovery request at issue and the response, if any.
(g)
(h)
Upon order from the Board permitting such discovery, a party may serve on another party written interrogatories, requests for admission, and requests for production.
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(1) Any deposition may be used by a party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated to testify on behalf of a corporation, partnership, association, or government agency which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by a party for any purpose in its own behalf if the Board finds that:
(i) The witness is dead;
(ii) The attendance of the witness at the place of hearing cannot be reasonably obtained, unless it appears that the absence of the witness was procured by the party offering the deposition;
(iii) The witness is unable to attend or testify because of illness, infirmity, age, or imprisonment;
(iv) The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(v) Upon request and notice, exceptional circumstances exist which make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which in fairness ought to be considered with the part introduced.
(d)
(1) The names and addresses of the persons to be examined and the substance of the testimony which the moving party expects to elicit from each; and
(2) The reasons for perpetuating the testimony of the persons named. If the Board finds that the perpetuation of testimony is proper to avoid a failure or a delay of justice, it may order the depositions to be taken and may make orders of the character provided for in 6101.13 (Rule 13) and in 6101.15 (Rule 15). Thereupon, the depositions may be taken and used as prescribed in the rules of this chapter for depositions taken in actions pending before the Board. Upon request and for good cause shown, a judge may issue or obtain a subpoena, in accordance with 6101.16 (Rule 16), for the purpose of perpetuating testimony by deposition during the pendency of an appeal from a Board decision.
(a)
(1) Cooperate by making available witnesses and evidence under its control, when requested by another party, without issuance of a subpoena; and
(2) Secure the cooperation of third-party witnesses and production of evidence by third parties, when practicable, without issuance of a subpoena.
(b)
(1) Attend and give testimony at a deposition in a city or county where that person resides or is employed or transacts business in person, or at another location convenient to that person that is specifically determined by the Board;
(2) Attend and give testimony at a hearing; and
(3) Produce the books, papers, documents, electronic records, and other tangible and intangible things designated in the subpoena.
(c)
(d)
(2) If the person subpoenaed is located in a foreign country, a letter rogatory or a subpoena may be issued and served under the circumstances and in the manner provided in 28 U.S.C. 1781-1784.
(e)
(2) A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place. A subpoena may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by personal
(f)
(g)
(h)
(a)
(2) If a party elects to proceed on the record without a hearing pursuant to 6101.19 (Rule 19), documentary evidence submitted by that party will be numbered consecutively as appeal file exhibits.
(b)
(c)
(d)
Each party shall inform the Board, in writing, whether it elects a hearing or submission of its case on the record pursuant to 6101.19 (Rule 19). Such an election may be filed at any time unless a time for filing is prescribed by the Board. In most cases, the Board will require the parties to make an election soon after discovery closes. A party electing to submit its case on the record pursuant to 6101.19 (Rule 19) may also elect to appear at a hearing solely to cross-examine any witness presented by the opposing party, provided that the Board is informed of that party's intention within 10 working days of its receipt of notice of the election of hearing by the other party. If a hearing is elected, the election should state where and when the electing party desires the hearing to be held and should explain the reasons for its choices. A hearing will be held if either party elects one. If a party's decision whether to elect a hearing is dependent upon the intentions of the other party, it shall consult with the other party before filing its election. If there is to be a hearing, it will be held at a time and place prescribed by the Board after consultation with the party or parties electing the hearing. The record submissions from a party that has elected to submit its case on the record shall be due as provided in 6101.19 (Rule 19).
(a)
(1) Any relevant documents or other tangible things it wishes the Board to admit into evidence;
(2) Affidavits, depositions, and other discovery materials that set forth relevant evidence; and
(3) A brief or memorandum of law. The Board may require the submission of additional evidence or briefs and may order oral argument in a case submitted on the record.
(b)
(2) If one party has elected a hearing and the other party has elected to submit its case on the record, the party submitting on the record shall make its initial submission no later than the commencement of the hearing or at an earlier date if the Board so orders, and a further submission in the form of a brief at the time for submission of posthearing briefs.
(c)
(a)
(b)
(c)
(a)
(2) When cases involving common questions of law or fact are pending, the Board may order a joint hearing of any or all of the matters, claims, or issues in the cases.
(3) The Board may order a separate hearing of any matters, claims, or issues pending in any case. The Board may enter appropriate orders or decisions with respect to any matters, claims, or issues that are heard separately.
(4) Upon the agreement of the parties or upon its own initiative, the Board may notify the parties before a hearing begins that it will limit the hearing to those issues of law and fact relating to the right of a party to recover, reserving the determination of the amount of recovery, if any, for other proceedings.
(5) Before the hearing begins, the Board may prescribe a time within which the presentation of evidence must be concluded, and may establish time limits on the direct and cross-examination of witnesses.
(6) Upon the request of either party or if the Board deems it advisable, the Board will order witnesses to be excluded from the hearing room so they cannot hear the testimony of other witnesses. The Board will not exclude a party who is an individual, the designated representative of a party which is an entity, a person whose presence is essential to the presentation of a party's case, or someone authorized by statute to be present.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(b)
(a)
(1) The facts of the case with citations to those places in the record where supporting evidence can be found; and
(2) Argument with citations to supporting legal authorities.
(b)
(a)
(b)
(a)
(2) In its decision, the Board may reserve determination of the amount of recovery for other proceedings, regardless of whether there is evidence in the record concerning the amount of recovery, provided the Board notified the parties before the hearing began that its decision would not address the amount of any recovery. In any instance in which the Board has reserved its determination of the amount of recovery for other proceedings, as provided in 6101.21(a)(4) (Rule 21(a)(4)), its decision on the question of the right to recover shall be final so far as proceedings at the Board are concerned, subject to the provisions of 6101.26 through 6101.28 (Rules 26 through 28).
(b)
(a)
(b)
(1) The reason or reasons why the Board should consider the motion; and
(2) The relief sought and the grounds therefor. If the Board concludes that the reasons asserted for its consideration of the motion are insufficient, it may deny the motion without considering the relief sought and the grounds asserted therefor. If the Board grants the motion, it will issue an appropriate order which may include directions to the parties for further proceedings.
(c)
(d)
(a)
(1) Newly discovered evidence which could not have been earlier discovered, even through due diligence;
(2) Justifiable or excusable mistake, inadvertence, surprise, or neglect;
(3) Fraud, misrepresentation, or other misconduct of an adverse party;
(4) The decision has been satisfied, released, or discharged, or a prior decision upon which it is based has been reversed or otherwise vacated, and it is no longer equitable that the decision should have prospective application;
(5) The decision is void, whether for lack of jurisdiction or otherwise; or
(6) Any other ground justifying relief from the operation of the decision or order.
(b)
(c)
(d)
(a)
(2) A request for full Board consideration may be made by either party on any date which is both after the panel to which the case is assigned has issued its decision on a motion for reconsideration or relief from decision and within 10 working days after the date on which that party receives that decision. Any party making a request for full Board consideration shall state concisely in the motion the precise grounds on which the request is based.
(3) Promptly after such a request is made, a ballot will be taken among the judges; if a majority of them favors the request, the request will be granted. The result of the vote will promptly be reported by the Board through an order. The concurring or dissenting view of any judge who wishes to express such a view may issue at the time of such order or at any time thereafter.
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(c)
(1) Identify the applicant and the appeal for which fees and other expenses are sought, and the amount being sought;
(2) Establish that all applicable prerequisites for an award have been satisfied, including a succinct statement of why the applicant is eligible for an award of fees and other expenses;
(3) Be accompanied by an exhibit fully documenting any fees or expenses being sought, including the cost of any study, analysis, engineering report, test, project, or similar matter. The date and a description of all services rendered or costs incurred shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the particular services performed by specific date, the rate at which each fee has been computed, any expenses for which reimbursement is sought, and the total amount paid or payable by the applicant. Except in exceptional circumstances, all exhibits supporting applications for fees or expenses sought shall be publicly available. The Board may require the applicant to provide vouchers, receipts, or other substantiation for any fees and other expenses claimed and/or to submit to an audit by the Government of the claimed fees and other expenses;
(4) Be signed by the applicant or an authorized officer, employee, or attorney of the applicant;
(5) Contain or be accompanied by a written verification under oath or affirmation, or declaration under penalty of perjury, that the information provided in the application is true and correct;
(6) If the applicant asserts that it is a qualifying small business concern, contain evidence thereof; and
(7) If the application requests reimbursement of attorney fees that exceed the statutory rate, explain why an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies such fees.
(d)
(2) Further proceedings shall be held only by order of the Board and only
(e)
(a)
(b)
(1) Both parties must, by execution of a Certificate of Finality, waive their rights to relief under 6101.26 and 6101.27 (Rules 26 and 27) and also their rights to appeal the decision of the Board; or
(2) The time for filing an appeal must expire.
(c)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(1) Taking the facts pertaining to the matter in dispute to be established for the purpose of the case in accordance with the contention of the party submitting the discovery request;
(2) Forbidding challenge of the accuracy of any evidence;
(3) Refusing to allow the disobedient party to support or oppose designated claims or defenses;
(4) Prohibiting the disobedient party from introducing in evidence designated documents or items of testimony;
(5) Striking pleadings or parts thereof, or staying further proceedings until the order is obeyed;
(6) Dismissing the case or any part thereof;
(7) Enforcing the protective order and disciplining individuals subject to such order for violation thereof, including disqualifying a party's representative, attorney, or expert/consultant from further participation in the case; or
(8) Imposing such other sanctions as the Board deems appropriate.
(d)
(e)
(2) The Board in its discretion may suspend an individual from appearing before the Board as a party representative, attorney, or expert/consultant if, after affording such
The Seal of the Board shall be a circular boss, the outer margin of which shall bear the legend “Civilian Board of Contract Appeals.” The Seal shall be the means of authentication of all records, notices, orders, dismissals, opinions, subpoenas, and certificates issued by the Board.
The ultimate purpose of any Board proceeding is to resolve fairly and expeditiously any dispute properly before the Board. When, during the normal course of a Board proceeding, the parties agree that a change in established procedure will promote this purpose, the Board will make that change if it is deemed to be feasible and in the best interest of the parties, the Board, and the resolution of the issue(s) in controversy. Individuals and small business may find variations from standard proceedings to be especially useful. The following are examples of these changes:
(a) Establishing an expedited schedule of proceedings, such as by limiting the times provided in 6101.1 through 6101.34 (Rules 1 through 34) for various filings, to facilitate a prompt resolution of the case;
(b) Developing a record and rendering a decision on the issue of entitlement prior to reviewing the issue of quantum in a party's claim;
(c) Developing a record and rendering a decision on any legal or factual issue in advance of others when that issue is deemed critical to resolving the case or effecting a settlement of any items in dispute; and
(d) Developing a record regarding relevant facts through an on-the-record round-table discussion with sworn witnesses, counsel, and the panel chair rather than through formal direct and cross-examination of each of these same witnesses. This discussion shall be controlled by the panel chair. It may be conducted, for example, through the presentation of narrative statements of witnesses or on an issue by issue basis. The panel chair may also request that the parties' counsel or representatives present opening and/or closing statements in lieu of written briefs.
(a)
(i) There is a monetary amount in dispute and that amount is $50,000 or less, or
(ii)(A) There is a monetary amount in dispute and that amount is $150,000 or less, and
(B) The appellant is a small business concern (as that term is defined in the Small Business Act and regulations promulgated under that Act).
(2) At the request of the Government, or on its own initiative, the Board may determine whether the amount in dispute and/or the appellant's status makes the election inappropriate. The Government shall raise any objection to the election no later than 10 working days after receipt of a notice of election.
(b)
(c)
(d)
(a)
(2) At the request of the Government, or on its own initiative, the Board may determine whether the amount in dispute is greater than $100,000, such that the election is inappropriate. The Government shall raise any objection to the election no later than 10 working days after receipt of a notice of election.
(b)
(c)
(d)
(a)
(1)
(2)
(b)
(2)
(3)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
7 U.S.C. 1501
These procedures govern the Board's resolution of disputes between insurance companies and the Department of Agriculture's Risk Management Agency (RMA) involving actions of the Federal Crop Insurance Corporation (FCIC). Prior to the creation of this Board, the Department of Agriculture Board of Contract Appeals resolved this variety of dispute pursuant to statute, 7 U.S.C. 1501
The rules of procedure for these cases are the same as the rules of procedure for Contract Disputes Act appeals, with these exceptions:
(a)
(2) In 6101.1(b)(5)(i) (Rule 1(b)(5)(i)), a notice of appeal is filed upon its receipt by the Office of the Clerk of the Board, not when it is mailed.
(3) Section 6101.1(b)(7) (Rule 1(b)(7)) does not apply to FCIC cases.
(b)
(2) In 6101.2(a)(1)(ii) and (iii) (Rule 2(a)(1)(ii) and (iii)), the references to “contracting officer” are references to “Deputy Administrator.”
(3) Section 6101.2(a)(2) (Rule 2(a)(2)) does not apply to FCIC cases.
(4) In 6101.2(b)(1)(i) (Rule 2(b)(1)(i)), an appeal from a determination of a Deputy Administrator shall be filed no later than 90 calendar days after the date the appellant receives that determination. The Board is authorized to resolve only those appeals that are timely filed.
(5) In 6101.2(b)(1)(ii) (Rule 2(b)(1)(ii)), an appeal may be filed with the Board if the Deputy Administrator fails or refuses to issue a determination within 90 days after the appellant submits a request for a determination.
(c)
(2) In 6101.4(a), paragraphs (1) through (7) (Rule 4(a), paragraphs (1) through (7)), describing materials included in the appeal file, are replaced by the following:
(i) The determination of the Deputy Administrator that is the subject of the dispute;
(ii) The reinsurance agreement (with amendments or modifications) at issue in the dispute;
(iii) Pertinent correspondence between the parties that is relevant to the dispute, including prior administrative determinations and related submissions;
(iv) Documents and other tangible materials on which the Deputy Administrator relied in making the underlying determination; and
(v) Any additional material pertinent to the authority of the Board or the resolution of the dispute.
(3) The following subsection is added to 6101.4 (Rule 4): Media on which appeal file is to be submitted. All appeal file submissions, including the index, shall be submitted in two forms: paper and in a text or .pdf format submitted on a compact disk. Each compact disk shall be labeled with the name and docket number of the case. The judge may delay the submission of the compact disk copy of the appeal file until the close of the evidentiary record.
(d)
(e)
(f)
(g)
(h)
(i)
(2) In 6101.21(g) (Rule 21(g)), the final sentence does not apply to FCIC cases.
(j)
(k)
(1)
(2)
(l)
(m)
31 U.S.C. 3726(i)(1); 41 U.S.C. 601-613; Sec. 201(o), Pub. L. 104-316, 110 Stat. 3826.
(a)
(b)
(a)
(1) The name, address, telephone number, and facsimile machine number, if available, of the claimant;
(2) The Government bill of lading or Government transportation request number;
(3) The claimant's bill number;
(4) The Government voucher number and date of payment;
(5) The Audit Division claim number;
(6) The agency for which the services were provided; and
(7) Any other identifying information.
(b)
(c)
(d)
(a)
(1) A simple, concise, and direct statement of its response to the claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information deemed necessary to the Board's review of the claim.
(b)
A claimant may file with the Board and serve on the Audit Division and the agency a reply to the Audit Division and agency responses within 30 calendar days after receiving the responses (or within 60 calendar days after receiving the responses, if the claimant is located outside the 50 states and the District of Columbia). To expedite proceedings, if the claimant does not wish to respond, the claimant should so notify the Board, the Audit Division, and the agency.
(a)
(b)
(c)
The judge will issue a written decision based upon the record, which includes submissions by the claimant, the Audit Division, and the agency, and information provided during conferences. The claimant, the Audit Division, and the agency will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is:
A request for reconsideration may be made by the claimant, the Audit Division, or the agency. Such requests must be received by the Board within 30 calendar days after the date the decision was issued (or within 60 calendar days after the date the decision was issued, if the claimant or agency office making the request is located outside the 50 states and the District of Columbia). The request for reconsideration should state the reasons why the Board should consider the request. Mere disagreement with a decision or re-argument of points already made is not a sufficient ground for seeking reconsideration.
The agency for which the services were provided shall pay amounts the Board determines are due the claimant.
Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L. 104-53, 109 Stat. 535; 31 U.S.C. 3702; 41 U.S.C. 601-613.
(a)
(b)
(1) Claims for reimbursement of expenses incurred while on official temporary duty travel; and
(2) Claims for reimbursement of expenses incurred in connection with relocation to a new duty station.
(c)
(a)
(1)
(i) The name, address, telephone number, and facsimile machine number, if available, of the claimant;
(ii) The name, address, telephone number, and facsimile machine number, if available, of the agency employee who denied the claim;
(iii) A copy of the denial of the claim; and
(iv) Any other information which the claimant believes the Board should consider.
(2)
(3)
(b)
(c)
(a)
(1) A simple, concise, and direct statement of its response to the claim;
(2) Citations to applicable statutes, regulations, and cases; and
(3) Any additional information the agency considers necessary to the Board's review of the claim.
(b)
A claimant may file a reply to the agency response within 30 calendar days after receiving the response (or within 60 calendar days after receiving the response, if the claimant is located outside the 50 states and the District of Columbia). If the claim has been forwarded by the agency, the claimant shall have 30 calendar days from the time the claim is docketed by the Board (or 60 calendar days after docketing, if the claimant is located outside the 50 states and the District of Columbia) to reply. To expedite proceedings, if the claimant does not wish to reply, the claimant should so notify the Board and the agency.
(a)
(b)
(c)
The judge will issue a written decision based upon the record, which includes submissions by the claimant and the agency, and information provided during conferences. The claimant and the agency will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is:
A request for reconsideration may be made by the claimant or the agency. Such requests must be received by the Board within 30 calendar days after the date the decision was issued (or within
The agency shall pay amounts the Board determines are due the claimant.
31 U.S.C. 3529; 31 U.S.C. 3702; 41 U.S.C. 601-613; Secs. 202(n), 204, Pub. L. 104-316, 110 Stat. 3826; Sec. 211, Pub. L. 104-53, 109 Stat. 535.
These procedures govern the Board's issuance of decisions, upon the request of an agency disbursing or certifying official, or agency head, on questions involving payment of travel or relocation expenses that were formerly issued by the Comptroller General under 31 U.S.C. 3529. Section 204 of the General Accounting Office Act of 1996, Pub. L. 104-316, transfers the authority to issue these decisions to the Director of the Office of Management and Budget, and authorizes the Director to delegate the authority to perform that function to another agency or agencies. The Director has delegated the authority to issue these decisions to the Administrator of General Services, who has redelegated that function to the Civilian Board of Contract Appeals.
(a)
(i) A claim for reimbursement of expenses incurred while on official temporary duty travel; and
(ii) A claim for reimbursement of expenses incurred in connection with relocation to a new duty station.
(2) A request for a Section 3529 decision shall be in writing; no particular form is required. The request must refer to a specific payment or voucher; it may not seek general legal advice. The request should—
(i) Explain why the official is seeking a Section 3529 decision, rather than taking action on his or her own regarding the matter;
(ii) State the question presented and include citations to applicable statutes, regulations, and cases;
(iii) Include—
(A) The name, address, telephone number, and facsimile machine number (if available) of the official making the request;
(B) The name, address, telephone number, and facsimile number (if available) of the employee affected by the specific payment or voucher; and
(C) Any other information which the official believes the Board should consider; and
(iv) Be delivered to the Office of the Clerk of the Board. The Board's mailing address is: 1800 F Street, NW, Washington, DC 20405. The Board is located at: 1800 M Street, NW, 6th Floor, Washington, DC 20036. The Clerk's telephone number is: (202) 606-8800. The Clerk's facsimile machine number is: (202) 606-0019. The Board's working hours are 8:00 a.m. to 4:30 p.m., Eastern Time, on each day other than a Saturday, Sunday, or federal holiday.
(b)
(c)
If the affected employee wishes to submit any additional information to the Board, he or she must submit such information within 30 calendar days after receiving the copy of the request for decision and supporting material (or within 60 calendar days after receiving the copy, if the affected employee is located outside the 50 states and the District of Columbia). To expedite proceedings, if the employee does not wish to make an additional submission, the employee should so notify the Board and the agency.
(a)
(b)
(c)
The judge will issue a written decision based upon the record, which includes submissions by the agency and the affected employee, and information provided during conferences. The agency and the affected employee will each be furnished a copy of the decision by the Office of the Clerk of the Board. In addition, all Board decisions are posted weekly on the Internet. The Board's Internet address is:
A request for reconsideration may be made by the agency or the affected employee. Such requests must be received by the Board within 30 calendar days after the date the decision was issued (or within 60 calendar days after the date the decision was issued, if the agency or the affected employee making the request is located outside the 50 states and the District of Columbia). The request for reconsideration should state the reasons why the Board should consider the request. Mere disagreement with a decision or re-argument of points already made is not a sufficient ground for seeking reconsideration.
Securities and Exchange Commission.
Proposed rule.
Rule 144 under the Securities Act of 1933 creates a safe harbor for the sale of securities under the exemption set forth in Section 4(1) of the Securities Act. We are proposing a six-month holding period requirement under Rule 144 for “restricted securities” of companies that are subject to the reporting requirements of the Securities Exchange Act of 1934. The proposed six-month holding period for restricted securities of reporting companies would be extended, for up to an additional six months, by the amount of time during which the security holder has engaged in hedging transactions. Restricted securities of companies that are not subject to the Exchange Act reporting requirements would continue to be subject to a one-year holding period prior to any public resale. We also propose to substantially reduce the restrictions on the resale of securities by non-affiliates. In addition, we propose to simplify the Preliminary Note to Rule 144, eliminate the manner of sale restrictions with respect to debt securities, increase the Form 144 filing thresholds, and codify several staff interpretive positions that relate to Rule 144. We also solicit comment on how best to coordinate Form 144 and Form 4 filing requirements. Finally, we propose amendments to Securities Act Rule 145, which establishes resale limitations on certain persons who acquire securities in business combination transactions, to eliminate the presumptive underwriter position in Rule 145(c), except for transactions involving a shell company, and to revise the resale requirements in Rule 145(d). We believe that the proposed changes will increase the liquidity of privately sold securities and decrease the cost of capital for all companies without compromising investor protection.
Comments should be received on or before September 4, 2007.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an E-mail to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number S7-11-07. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Web site (
Katherine Hsu, Special Counsel, and Ray Be, Special Counsel, Office of Rulemaking, Division of Corporation Finance, at (202) 551-3430, 100 F Street, NE., Washington, DC 20549.
The Commission is proposing amendments to Rule 144,
The Securities Act requires registration of all offers and sales of securities in interstate commerce or by use of the U.S. mail, unless an exemption from the registration requirement is available.
The definition of the term “underwriter” is key to the operation of the Section 4(1) exemption. Section 2(a)(11) of the Securities Act defines an underwriter as “any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking.”
Since its adoption, we have reviewed and revised Rule 144 several times. We last made major changes in 1997.
At the time we adopted those changes, we proposed and solicited comment on several possible additional changes to Rule 144, Rule 145 and Form 144, including reducing the holding period further.
Rule 144 regulates the resale of two categories of securities—restricted securities and control securities. Restricted securities are securities acquired pursuant to one of the transactions listed in Rule 144(a)(3).
Rule 144 states that a selling security holder shall be deemed not to be engaged in a distribution of securities and therefore not an underwriter with respect to such securities, thus making available the Section 4(1) exemption from registration, if the resale meets particular criteria. If the security holder is an affiliate of the issuer, or a non-affiliate that has held the restricted securities for less than two years,
• There must be available adequate current public information about the issuer;
• If the securities being sold are restricted securities, the seller must have held the security for a specified holding period;
• The resale must be within specified sales volume limitations;
• The resale must comply with the manner of sale conditions;
• The selling security holder may be required to file a Form 144.
Under the current rule, a non-affiliate may publicly resell restricted securities without being subject to the above limitations if he or she has held the securities for two years and if he or she is not, and for the prior three months has not been, an “affiliate” of the issuer.
We now are proposing amendments that would:
• Simplify the Preliminary Note to Rule 144 and text of Rule 144, using plain English principles;
• Amend the Rule 144 holding period requirement for restricted securities of companies that are required to file reports under the Securities Exchange Act of 1934
• Require that security holders toll, or suspend, the holding period during the time they enter into certain hedging transactions, although under no circumstance would the holding period extend beyond one year;
• Substantially reduce the requirements for non-affiliates so that they can resell securities freely after the holding period (except that non-affiliates of reporting companies would be subject to the current public information requirement until one year after the acquisition of the securities);
• Eliminate the “manner of sale” limitations with respect to debt securities;
• Increase the thresholds that would trigger a Form 144 filing requirement;
• Codify the staff's positions, as they relate to Rule 144, concerning the following issues:
○ Inclusion of securities acquired under Section 4(6) of the Securities Act in the definition of “restricted securities,”
○ The effect that creation of a holding company structure has on a security holder's holding period,
○ Holding periods for conversions and exchanges of securities,
○ Holding periods for the cashless exercise of options and warrants,
○ Aggregation of a pledgee's resales with resales by other pledgees of the same security,
○ The extent to which securities issued by “reporting and non-reporting shell companies” are eligible for resale under Rule 144,
○ Representations required from security holders relying on Rule 10b5-1(c);
• Eliminate the presumptive underwriter provision in Securities Act Rule 145, except for transactions involving a shell company, and harmonize the resale requirements in Rule 145 with the resale provisions for the securities of shell companies in Rule 144.
We also solicit comment on delaying the Form 144 filing deadline to coincide with the deadline for filing a Form 4
The following table briefly compares some of the most significant proposed amendments to the current regulatory scheme:
As in the 1997 proposing release, we again are proposing amendments to simplify and clarify the Preliminary Note to Rule 144 and to incorporate plain English principles.
Consistent with this statement, we propose to add a statement to the Preliminary Note that the Rule 144 safe harbor is not available with respect to any transaction or series of transactions
In addition, we are proposing changes throughout the rule to attempt to make the rule less complex and easier to read.
• Should we adopt the simplified Preliminary Note? Should we keep more detail in the Preliminary Note than proposed? Does the Preliminary Note need further revision? If so, how should we revise it?
• Does the proposed language of the Preliminary Note delete or omit any information that should be addressed? Does the proposed language change the meaning of any information in the existing Preliminary Note?
• Should we not make any changes to the Preliminary Note? Does the existing Preliminary Note provide useful background information on Rule 144, the Section 2(a)(11) definition of an underwriter, or the Section 4(1) exemption? Is the Preliminary Note necessary or helpful? Should we eliminate it entirely?
• We also have streamlined and proposed plain English changes to various portions of the rule other than the Preliminary Note. Would any of the proposed language inadvertently change the substantive requirements of the rule? Do any of the changes create ambiguity with respect to settled issues?
As stated above, in 1997, we reduced the Rule 144 holding periods for restricted securities for both affiliates and non-affiliates.
In the 1997 proposing release, we solicited comment on whether these holding periods should be reduced even further, with a focus on six months for the Rule 144(d) holding period. We received numerous comments on this issue. Twelve commenters recommended that we further reduce the holding period to six months.
We now propose amendments to provide for a reduced holding period under Rule 144(d) for restricted securities of Exchange Act reporting companies held by affiliates and non-affiliates. Under the proposed revisions to Rule 144(d), affiliates and non-affiliates would both be permitted to resell restricted securities of Exchange Act reporting companies
The fundamental purpose of Rule 144 is to provide objective criteria for determining whether an investor is an underwriter or has acquired securities for distribution. At the same time, we do not want the holding period to be longer than necessary or impose any unnecessary costs or restrictions on capital formation. Assumption of the economic risk of investment is a critical factor in determining whether a security holder purchased the securities for distribution.
Because we are concerned that the market does not have sufficient information and safeguards with respect to non-reporting companies, we propose that the holding period for restricted securities in non-reporting companies
In 1990, we eliminated a Rule 144 provision that tolled the holding period of a security holder maintaining a short position in, or any put or other option to dispose of, securities equivalent to the restricted securities owned by the security holder.
Despite the prior elimination of the tolling provision, we are concerned about the effect of hedging activities designed to shift the economic risk of investment away from the security holder with respect to restricted securities to be resold under Rule 144.
For example, prior to the expiration of the required holding period, a security holder may enter into an equity swap agreement with a third party, under which the security holder exchanges the dividends received on the restricted securities for the dividends on, for example, a securities index. In addition, that shareholder may agree to exchange, at a set date, any price change in the security since the date of the agreement for any price change in the securities index. The effect of such a transaction would be the economic equivalent of selling the restricted securities before the holding period has expired and purchasing the securities index.
The concern regarding hedging transactions is particularly acute if we provide for a six-month holding period requirement, as proposed. At the time of the 1990 amendments, Rule 144 provided for a two-year holding period before a security holder could sell limited amounts of restricted securities, and a three-year period before a non-affiliate security holder could sell an unlimited amount of the securities. The proposed six-month holding period requirement could make the entry into such hedging arrangements significantly easier and less costly because they would cover a much shorter period.
The 1997 proposing release proposed several alternatives for addressing these concerns.
We also propose to expand the scope of the earlier tolling provision, which covered only short sales and options. Since 1990, many new risk-hedging products such as equity swaps and single stock futures have been introduced into the market that also have the effect of limiting or eliminating risk. We are proposing to exclude from the holding period any period in which the security holder had a short position, or had entered into a “put equivalent position,” as defined by Exchange Act Rule 16a-1(h),
Given that the proposed tolling provision would work in conjunction with the Rule 144 provisions that permit tacking of holding periods,
Also, we believe that the proposed tolling provision should not result in a
In concert with the proposed tolling provision, we also propose other related changes to Rule 144. First, we propose to require that information be provided in Form 144 regarding any short or put equivalent position held with respect to the securities prior to the resale of the securities. A similar requirement was part of Form 144 before the tolling provision was eliminated in 1990.
The second related change concerns the manner of sale requirements in Rule 144(f), which we propose to retain for equity securities of affiliates. One option to meet the manner of sale requirements is to sell the securities through “brokers' transactions” within the meaning of Section 4(4) of the Securities Act.
Non-affiliates currently are required to hold their restricted securities for one year under Rule 144(d). During this one-year period, non-affiliates are not permitted to resell any securities under the rule. When selling restricted securities that have been held for between one and two years, non-affiliates, like affiliates, are subject to all other applicable conditions of Rule 144, including the requirement that current information be publicly available about the issuer of the securities, limitations on the amount of securities that can be sold in any three-month period, manner of sale limitations and Form 144 filing requirements.
Because Rule 144 is relied upon by many individuals to resell their restricted securities, we believe that it would be particularly helpful to streamline and reduce the complexity of the rule as much as possible while retaining its integrity. We therefore propose to reduce the restrictions for a person who is not an affiliate of the issuer at the time of the sale of the securities and has not been an affiliate during the three months prior to the sale of the securities. These non-affiliates with restricted securities of reporting companies would be permitted to resell their securities after their holding period, subject only to the requirement in Rule 144(c) that current information regarding the issuer of the securities be publicly available.
The proposed requirements for the resale of restricted securities held by affiliates and non-affiliates under Rule 144 can be summarized as follows:
• Should the holding period requirement for restricted securities of reporting companies be shortened to six months? Is six months sufficient time to indicate that the affiliate has not acquired the securities for distribution? Are there any concerns that six months would lead to an increase in abuse with regard to the resale of restricted securities? Should a six-month holding period requirement apply to restricted securities of reporting companies held by non-affiliates as well as affiliates? If you suggest that either affiliates or non-affiliates should be required to comply with a holding period that is shorter than six months, what objective criteria demonstrate that such holding period is sufficient to indicate that the security holder has not acquired the securities for distribution?
• Should the one-year holding period requirement continue to apply to restricted securities of non-reporting companies held by non-affiliates as well as affiliates? Should the holding period for restricted securities of non-reporting companies also be shortened to six months? Should affiliates and non-affiliates of non-reporting companies be subject to the same holding period, or should they be required to comply with a longer or shorter holding period?
• For the purposes of the holding period, is it appropriate that a reporting company is an issuer that is, and has been for at least 90 days immediately before the sale, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act? Is there a more appropriate formulation?
• Should we amend Regulation S to conform the one-year distribution compliance period in Rule 903(b)(3)(iii)
• Is it appropriate to retain the current public information requirement for non-affiliates with restricted securities in reporting companies during the period between the end of the six-month holding period (which may be longer depending on hedging activities) and one year after the securities were acquired? Should non-affiliates be subject to the current public information condition for a longer period of time? If so, how long?
• Should non-affiliates with restricted securities of non-reporting companies remain subject after the holding period to all conditions of Rule 144 for an additional year, as under the current rule? Are there any specific conditions to which non-affiliates with restricted securities of reporting companies should still be subject after the holding period, other than the current public information requirement? Are there any specific conditions to which non-affiliates with restricted securities of non-reporting companies should still be subject after the holding period? For example, should non-affiliates continue to be subject to volume limitations during a specified period of time after the holding period? What should that specified time be (
• Is the proposed language requiring that the security holder toll the holding period if the holder had “a short position, or had entered into a ‘put equivalent position’ as defined by Exchange Act Rule 16a-1(h)” appropriate? Does the proposed tolling provision sufficiently cover the hedging transactions that would result in the circumvention of the purposes of Rule 144? Does it cover too few or too many hedging transactions? If too many, what specific forms of hedging transactions should be excluded and why? If too few,
• Given that the proposed tolling provision is not applicable if the security holder has held the securities for one year, would a security holder be able to determine whether and how long previous owners entered into hedging transactions in order to properly calculate the holding period? Would the proposed tolling provision make it too difficult to determine whether a security holder has complied with the holding period requirement? By what other methods could we ensure that persons do not attempt to skirt the purposes of Rule 144 by engaging in hedging transactions?
• Should security holders be held to a “reasonable belief” standard with regard to the previous owner's hedging activities, or is a “bona fide belief” or some other standard more appropriate? Should we specify what statements or documentation could security holders rely upon in order to formulate a reasonable belief that the previous owner has not engaged in hedging activities in the securities? If so, what documentation should they be permitted to rely upon?
• Is it unnecessarily restrictive to require tolling if the security holder has engaged in hedging transactions with respect to any of his or her securities of the same class (or, in the case of nonconvertible debt, with respect to any nonconvertible debt securities of the same issuer)? Are there any circumstances in which the proposed tolling provision would not be appropriate? If so, describe the circumstances and explain why the proposed tolling provision would not be appropriate.
• Should we address hedging in a different manner? For example, should we preclude security holders who hedge securities during the holding period from relying on Rule 144? Should we treat such hedging transactions as “sales” of the securities?
• Should the tolling provision apply only during the first year after the date of the acquisition of the securities from the issuer or affiliate? Is one year the appropriate time period, or should the period be longer than one year?
• Is there any reason why we should not amend Note (ii) to Rule 144(g)(3) to add that if the securities have been held for less than one year, the broker's reasonable inquiry should also include an inquiry into the existence and character of any short position or put equivalent position with regard to the securities held by the person for whose account the securities are to be sold and whether that person has made inquiries into the existence and character of any short position held by a previous owner with regard to the securities? Is the proposed amendment sufficiently clear? Does the proposed amendment place an undue burden on the broker or the holder of the securities? What level of inquiry should the brokers be required to conduct into the security holder's hedging transactions or the previous owner's hedging transactions? What statements or documentation, if any, regarding hedging transactions should security holders be required to provide to brokers?
• What level of due diligence did brokers conduct to determine compliance with the holding period requirement before we eliminated the Rule 144 tolling provision in 1990? Were there any problems with tracking hedging positions when the tolling provision was in place, especially in relation to the limited provisions that permitted tacking that existed prior to 1990?
• Is there any reason we should not amend Form 144 to require disclosure of hedging transactions? Is the proposed disclosure appropriate and should it be changed in any way?
Rule 144(f) currently requires that securities be sold in “brokers” transactions,”
The limitations on manner of sale were intended to assure that special selling efforts and compensation arrangements usually associated with a distribution are not present in a Rule 144 sale.
We agree that, as financial intermediaries, brokers serve an important function as gatekeepers for promoting compliance with Rule 144,
In addition, we believe that non-participating preferred stock, which has debt-like characteristics, and asset-backed securities, where the predominant purchasers are institutional investors, including financial institutions, pension funds, insurance companies, mutual funds and money managers,
• Would eliminating the manner of sale requirement be appropriate for debt securities, as proposed? Is there a need for brokers to serve as an intermediary for such a secondary market? Would transfer agents be able to adequately confirm compliance with Rule 144?
• Should we eliminate the manner of sale requirement for equity securities as well? If so, why? What problems or abuses may arise if the proposal were extended to equity securities? Would removal of the manner of sale requirements for equity securities diminish security transaction transparency by encouraging more privately negotiated transactions? If so, would the markets be adversely affected, particularly for stocks of smaller companies and more thinly traded securities?
• Are there other purposes served by the manner of sale requirements that justify retaining those requirements? How would the removal of the manner of sale requirements affect participants, such as transfer agents, brokers and market makers, in Rule 144 transactions? Would transfer agents assume a greater role in determining compliance with the resale provisions? How would removing the manner of sale limitations affect brokers' obligations with respect to their ability to qualify for the “brokers' transactions” exemption under Section 4(4) of the Securities Act?
• Is it appropriate to include asset-backed securities and non-participating preferred stock as debt securities for the purposes of this rule? Are there any other types of securities to which the limitations on manner of sale should not apply? If so, why?
• Are there any other conditions in Rule 144 to which debt securities should not be subject? For example, should we raise the volume limitations in Rule 144(e) for debt securities, or eliminate the volume limitations for debt securities altogether?
Rule 144(h) requires a selling security holder to file Form 144 if the security holder's intended sale exceeds either 500 shares or $10,000 within a three-month period.
As discussed above, under the proposed rules, only affiliates of the issuer would be required to file a notice of proposed sale on Form 144 when relying on Rule 144. We now are proposing to increase the Form 144 filing thresholds to trades of 1,000 shares or $50,000 within a three-month period for affiliates.
• Should the dollar threshold be higher or lower than proposed (
• Should the threshold be based solely on the number of shares sold, or solely on the dollar amount of the transaction? Should it be based on a formula using both variables? Should we allow for adjustments to the dollar amount threshold every five years that would reflect changes due to inflation?
• Should thresholds be based on a different number such as a percentage of the company's public float, or a different self-adjusting index?
• If you believe the thresholds should be different, please explain why your suggested threshold would be appropriate, including information and data to support your beliefs.
The following are proposed codifications of staff positions issued by the Division of Corporation Finance. These codifications should simplify the rule by making these staff positions more transparent and readily available to the public. The first three proposals were included in the 1997 proposing release. The last four proposals are new proposed codifications of existing staff positions.
The 1997 proposing release proposed to codify the Division of Corporation Finance's interpretive position that securities acquired from the issuer pursuant to an exemption from registration under Section 4(6) of the Securities Act
Section 4(6) provides for an exemption from registration for an offering that does not exceed $5,000,000 that is made only to accredited investors, that does not involve any advertising or public solicitation by the issuer or anyone acting on the issuer's behalf and for which a Form D has been filed.
The 1997 proposing release also proposed codifying the Division of Corporation Finance's interpretive position that holders may tack the Rule 144 holding period in connection with transactions made solely to form a holding company.
We are proposing again to codify that interpretive position.
• The newly formed holding company's securities are issued solely in exchange for the securities of the predecessor company as part of a reorganization of the predecessor company into a holding company structure;
• Security holders receive securities of the same class evidencing the same proportional interest in the holding company as they held in the predecessor company, and the rights and interests of the holders of such securities are substantially the same as those they possessed as holders of the predecessor company's securities; and
• Immediately following the transaction, the holding company has no significant assets other than securities of the predecessor and its existing subsidiaries and has substantially the same assets and liabilities on a consolidated basis as the predecessor had before the transaction.
In such transactions, tacking would be appropriate because the securities being exchanged are substantially equivalent, and there is no significant change in the economic risk of the investment in the restricted securities. We believe that the codification of this interpretation and as well as the codification of the following two interpretations below would assist security holders in determining whether they have met the Rule 144(d) holding period requirement.
The 1997 proposing release proposed codifying the Division of Corporation Finance's position that if the securities sold were acquired from the issuer solely in exchange for other securities of the same issuer, the newly acquired securities shall be deemed to have been acquired at the same time as the securities surrendered for conversion or exchange, even if the securities surrendered were not convertible or exchangeable by their terms.
We are proposing again these amendments to Rule 144(d)(3)(ii).
• The original securities do not permit cashless conversion or exchange by their terms;
• The parties amend the original securities to allow for cashless conversion or exchange; and
• The security holder provides consideration, other than solely securities of the issuer, for that amendment,
Several commenters responding to the 1997 release suggested that we codify the Division of Corporation Finance's position that, upon a cashless exercise of options or warrants, the newly acquired underlying securities are deemed to have been acquired when the corresponding options or warrants were acquired, even if the options or warrants originally did not provide for cashless exercise by their terms.
In addition, we are proposing to add two notes to this new paragraph. The first note would codify the Division's position that if:
• The original options or warrants do not permit cashless exercise by their terms; and
• The holder provides consideration, other than solely securities of the issuer, to amend the options or warrants to allow for cashless exercise,
The second note would codify the Division's position that the grant of certain options or warrants that are not purchased for cash or property does not create any investment risk in the holder in a manner that would justify identification of the holding period of the securities received upon exercise of the options or warrants with that of the options or warrants.
In response to suggestions from commenters, we are proposing to add a note to Rule 144(e)(2)(ii)
• Upon default, Bank X does not have to aggregate its sales of Company A securities with Bank Y's sales of Company A securities unless Bank X and Bank Y are acting in concert, but
• Bank X individually still must aggregate its sales with the pledgor's sales, and
• Bank Y individually still must aggregate its sales with the pledgor's sales.
Provided that the loans and pledges are bona fide transactions and there is no concerted action among pledgees and no other aggregation provisions under Rule 144(e) apply, we do not believe that extra burdens on pledgees to track and coordinate resales by other pledgees are warranted.
A blank check company is a company that:
• Is in the development stage;
• Has no specific business plan or purpose, or has indicated that its business plan is to merge with or acquire an unidentified third party; and
• Issues penny stock.
Such companies historically have provided opportunity for abuse of the federal securities laws, particularly by serving as vehicles to avoid the registration requirements of the securities laws.
In 2005, we amended Securities Act Rule 405 to define a “shell company” to mean a registrant, other than an asset-backed issuer, that has:
(1) no or nominal operations; and
(2) either:
• no or nominal assets;
• assets consisting solely of cash and cash equivalents; or
• assets consisting of any amount of cash and cash equivalents and nominal other assets.
On January 21, 2000, the Division of Corporation Finance concluded in a letter to NASD Regulation, Inc. that Rule 144 is not available for the resale of securities issued by companies that are, or previously were, blank check companies.
Second, because the reasons for prohibiting reliance on Rule 144 do not appear to be present after a reporting company has ceased to be a shell company and there is adequate disclosure in the market that would serve to protect against further abuse,
• the issuer of the securities that was formally a reporting or non-reporting shell company has ceased to be a shell company;
• the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act;
• the issuer of the securities has filed all reports and material required to be filed during the preceding 12 months (or for such shorter period that the registrant was required to file such reports and materials); and
• at least 90 days have elapsed from the time the issuer files current “Form 10 information” with the Commission reflecting its status as an entity that is not a shell company.
Form 10 information is equivalent to information that a company would be required to file if it were registering a class of securities on Form 10, Form 10-SB, or Form 20-F under the Exchange Act,
Under the proposed amendments, an affiliate security holder selling control securities would have to wait at least 90 days before being permitted to resell the securities, and a security holder selling restricted securities would be required to wait the duration of the holding period before being permitted to resell the securities.
Rule 10b5-1
• before becoming aware of the material nonpublic information, he or she had entered into a binding contract to purchase or sell the securities, provided instructions to another person to execute the trade for the instructing person's account, or adopted a written plan for trading the securities;
• the contract, instructions or written trading plan satisfy the conditions of Rule 10b5-1(c); and
• the purchase or sale that occurred was pursuant to the contract instruction or plan.
Currently, Form 144 requires a selling security holder to represent, as of the date that the form is signed, that he or she “does not know any material adverse information in regard to the current and prospective operations of the issuer of the securities to be sold which has not been publicly disclosed.” The Division of Corporation Finance has indicated that a selling security holder who satisfies Rule 10b5-1(c) may modify the Form 144 representation to indicate that he or she had no knowledge of material adverse information about the issuer as of the date on which the holder adopted the written trading plan or gave the trading instructions, specifying that date and indicating that the representation speaks as of that date.
In order to reconcile the Form 144 representation with Rule 10b5-1, we are proposing to codify this interpretive position. Under the proposed amendments, Form 144 filers would be able to make the required representation as of the date that they adopted written trading plans or gave trading instructions that satisfy Rule 10b5-1(c).
• Should we codify all of the above staff positions? Is the codification of the staff position on securities acquired under Section 4(6) appropriate and consistent with the purposes of Rule 144? Would codification of the staff positions on the Rule 144 holding period help to resolve any confusion regarding how to calculate the holding period? Would codification of the position on the aggregation of pledgees securities assist security holders in determining their volume limitations? If you believe we should not codify any of these positions, which one or ones should we not codify? If so, why?
• Should we revise any of the staff's existing positions on these matters? If so, which position and why? Does the wording of any of the proposed language suggest a change, or create ambiguity, in the staff's position?
• Would codification of the staff position on the treatment of securities issued by blank check companies protect against abuse relating to the resale of such securities? Should we expand the staff position to preclude reporting and non-reporting shell companies from relying on Rule 144?
• Should we permit reliance on Rule 144 for the resale of securities of former shell companies if the company is a reporting company, the company is no longer a shell company, the company has filed Form 10 information reflecting its status as an entity that is not a shell company, and either 90 days have elapsed since the filing of the Form 10 information or the holding period has been met? Is 90 days an appropriate amount of time? Should the delay be longer (
Securities Act Rule 145 provides that exchanges of securities in connection with reclassifications of securities, mergers or consolidations or transfers of assets that are subject to shareholder vote constitute sales of those securities. Rule 145(c) deems persons who were parties to such a transaction, other than the issuer, or affiliates of such parties to be underwriters. Rule 145(d) sets forth the restrictions on the resale of securities received in such transactions by persons deemed underwriters. In the 1997 proposal, we proposed to eliminate the presumed underwriter and resale provisions in Rule 145(c) and (d). Many commenters supported the 1997 proposal.
After reviewing comments on the proposal, we believe it is appropriate to eliminate the presumptive underwriter provision in Rule 145, as it is no longer necessary in most circumstances. However, based on our experience with business combinations involving shell companies that have resulted in abusive sales of securities, we believe that there continues to be a need to apply the presumptive underwriter provision to shell companies and their affiliates and promoters. Accordingly, we propose amendments to Rule 145(c) and (d) that would:
• Eliminate the presumed underwriter status provision in Rule 145(c) except with regard to Rule 145(a) transactions that involve a shell company (other than a business related shell company);
• Harmonize the requirements in Rule 145(d) with the proposed
Under the proposed rule, parties to the transaction in Rule 145(a), other than the issuer, and their affiliates, where a party to the transaction is a shell company, other than a business combination related shell company, could resell securities acquired in connection with the transaction only in accordance with Rule 145(d).
Under proposed Rule 145(d), the persons and parties that are deemed presumed underwriters would be permitted to resell their securities to the same extent that affiliates of a shell company would be permitted to resell their securities under Rule 144, as proposed. The securities could be only sold after any company that was a shell company and a party to the transaction has ceased to be a shell company and at least 90 days have elapsed since the securities were acquired in the transaction, subject to Rule 144 conditions.
In addition, similar to the proposal for the Preliminary Note in Rule 144, we propose to add a note that Rule 145(c) and (d) are not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a plan or scheme to evade the registration requirements of the Act.
• Should we limit the Rule 145 presumptive underwriter provision only to transactions involving shell companies? Are there any other transactions for which the presumptive underwriter provision should continue to apply? Should we eliminate this provision with respect to transactions involving shell companies?
• Are the proposed amendments to Rule 145(d) appropriate? Should we retain the requirement that the issuer of the securities must meet the current public information requirements of Rule 144(c) for a prescribed period of time before the party is permitted to resell freely its securities in the issuer?
• Are the time periods that the parties and their affiliates must wait before being permitted to resell the securities in proposed Rule 145(d) appropriate? Is it appropriate to require those deemed underwriters to wait at least 90 days before being permitted to resell their securities? Should the requirement be shorter or longer (
• Should we add the note that Rule 145(c) and (d) are not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a plan or scheme to evade the registration requirements of the Act?
The proposals we make today necessitate consideration of proposed changes to other rules that refer to Rule 144. In particular, we are proposing changes to the asset-backed rules. We adopted Securities Act Rule 190 to clarify when registration of the sale of underlying securities in asset-backed securities transactions is required.
One of the requirements of Rule 190 is that the depositor would be free to publicly resell the securities without registration under the Securities Act.
Our proposed revisions to Rule 144 with no concurrent revision to Rule 190 would allow privately placed debt or other ABS to be publicly resecuritized in as little as six months after their original issuance without registration of the underlying securities.
A particular issuance of asset-backed securities often involves one or more publicly offered classes (
Due to the particular circumstances of asset-backed securities and the established experience with a two-year period under both the ABS rules and the prior staff positions that were codified by those rules, we are not persuaded at this time that we should shorten the current two-year holding period for restricted securities that are to be sold into publicly-registered securitizations. As a result, we are proposing to amend Rule 190 to provide that if the underlying securities are Rule 144 restricted securities, Rule 144 must be available for the sale of the securities in the resecuritization, except that at least two years must have elapsed since the later of the date the securities were acquired from the issuer of the underlying securities or from an affiliate of the issuer of the underlying securities. Of course, the underlying securities could still be resecuritized if they do not meet this requirement; their sale would just need to be concurrently registered with the offering of the asset-backed securities on a form for which the offering of the class of underlying securities would be eligible. In addition, nothing in Rule 190 as we propose to amend it would lengthen the holding period of the underlying securities for resales other than in connection with publicly registered resecuritizations.
Securities Act Rule 701(g)(3)
• Is the revision to Rule 190 appropriate? Are we correct in understanding that privately placed securities that are resecuritized pursuant to Rule 190 typically were acquired from the issuer two or more years ago? Should we shorten the two-year period for resecuritizations, but to not as short as the six months we propose for certain other resales under Rule 144? What interim length would be appropriate (
• Should we limit our revision to just underlying securities that are asset-backed securities and allow non-asset-backed securities such as corporate debt to be securitized without registration in the revised Rule 144 periods?
• Are there other instances where our rules reference Rule 144 or Rule 145 that would warrant change as a result of our proposed revisions to those rules?
• Is the proposed change to Rule 701 appropriate?
Rule 144 requires a seller to transmit a Form 144 for filing concurrently with either the placing with a broker of an order to execute a sale of securities in reliance upon Rule 144 or the execution directly with a market maker of such a sale, if the sale has exceeded certain filing thresholds.
Many affiliates of an issuer under Rule 144 are also insiders of the issuer under Section 16 of the Exchange Act.
In order to reduce duplicative requirements on individuals who are subject to both the Form 144 filing requirements and the Section 16 filing requirements, we solicit comment on how best to coordinate the Form 144 filing requirement with the filing requirements under Section 16 of the Exchange Act for an affiliate who wishes to rely on Rule 144 and is subject to the Section 16 filing requirements.
• Revising the filing deadline for Form 144 to coincide with the filing deadline for Form 4 (before the end of the second business day following the day on which the subject transaction was executed);
• Permitting affiliates subject to Section 16 filing requirements to, at their option, satisfy their Form 144 filing requirements by timely filing a Form 4 to report the sale of their securities; and
• Revising Item 701 of Regulations S-B and S-K
While Form 144 and Form 4 both provide information regarding the title of the class of securities sold, the number of shares subject to sale, the aggregate market value of those shares, and the date of sale, there are, however, some differences in the disclosure required by Form 144 and Form 4 with respect to sales of securities. For example, Form 4 does not request some information that is required to be provided in Form 144, including:
• The date that the securities were acquired;
• The nature of the acquisition transaction;
• The name of the person from whom the securities were acquired;
• The amount of securities acquired;
• The date of payment for the securities; and
• The nature of payment.
In addition, while Form 144 requires disclosure regarding securities sold in the three months prior to the sale, if a person has not been subject to the Section 16 reporting obligations for three months, that person's Section 16
We preliminarily believe that if we permit a security holder to satisfy a Form 144 filing requirement by filing a Form 4, Form 4 should be amended to require the security holder that wishes to satisfy a Form 144 filing requirement to provide the following information regarding Rule 144 compliance in Form 4:
• The date that the securities were acquired (for purposes of the holding period calculation under Rule 144(d));
• The name of the person from whom the securities were acquired;
• The date of payment for the securities; and
• The nature of the payment.
Regarding the items in Form 144 relating to the nature of the acquisition transaction and the amount of securities acquired, we believe that such information or similar information could be available in a previously filed Form 4 reporting the purchase of the securities, unless the security holder was not subject to Section 16 requirements at the time the securities were acquired. We solicit comment on which Form 144 disclosure items we should preserve and transfer from Form 144 to Form 4, if we were to permit security holders to satisfy their Form 144 obligations with a Form 4.
We also solicit comment on whether Form 4 should be expanded to include these additional disclosure items. We have concerns, however, that simply combining the required disclosures on the two forms into Form 4 may be confusing to filing persons as well as other market participants. For example, because some of the information required on Form 144 is not relevant to all persons filing Form 4, a person filing a Form 4 who is not required to file a Form 144 should not be required to provide that information. Similarly, the two forms also can report different events. Form 4 reports both purchases and sales, while Form 144 reports only sales. In short, much of the information in each form may not be relevant to filers of the other form and may cause confusion among filers of the forms and investors.
Because Form 4 is an electronic filing on the Commission's Electronic Data Gathering, Analysis, and Retrieval System (EDGAR), one alternative may be to implement programming changes to EDGAR to modify the user interface for Form 4 in such a way as to provide access to the portion of that form that would request Rule 144 information only if the filer affirmatively asserts that he or she wishes to satisfy his or her Rule 144 notice obligations on Form 4. Programming changes also could be made to enable a filer to enter all relevant information on one user interface which would automatically create two separate filings, one on Form 4 and the other on Form 144. To the extent possible, we seek to reduce filing requirements without losing important disclosure or causing confusion to filers and users of Form 4 and Form 144.
Such coordination also would require a revision to the statement in Rule 144(g) that the broker would deemed to be aware of any facts or statements contained in the notice required by Rule 144(h).
Because some information on Form 144 would no longer be provided if we were to adopt these amendments, we believe that additional disclosure in registration statements or periodic reports filed by the issuer of the securities may help to inform the market about the number of restricted securities available for resale. We solicit comment on a possible amendment to Item 701 of Regulations S-K and S-B that would require disclosure regarding: (1) Whether the securities issued in unregistered transactions were restricted securities, as defined in Rule 144(a)(3); (2) if the securities were not restricted securities, the resale status of such securities under Rule 144; and (3) if the securities were restricted securities, the first date when such securities could be deemed to meet the holding period requirement in Rule 144(d).
• Should we permit persons who are subject to Section 16 reporting obligations to provide the disclosure required by Form 144 on Form 4 instead? Is there any particular information currently disclosed on Form 144 that would otherwise not be disclosed on Form 4 which industry participants or security holders want or find material? If so, what is that information?
• Could relevant information be reported elsewhere? Should we revise Item 701 of Regulations S-K and S-B to require added disclosure in a company's registration statement or periodic reports about the resale status of securities issued in unregistered transactions at the time when the company first sells the securities? What other types of disclosure regarding restricted securities (other than the resale status of the securities) would be useful to the market? Would disclosure regarding the securities at the time they were first issued be beneficial, or would such disclosure be premature and speculative?
• If we permit persons subject to Section 16 reporting obligations to file a Form 4 in lieu of a Form 144, is it appropriate to delay the filing deadline of Form 144 to two business days after the transaction is completed?
• If we expand Form 4 by adding requirements from Form 144, would Form 144 information contained in Form 4 be more difficult to find? Should we provide a means to allow persons searching on EDGAR to determine whether a Form 4 is being used to disclose Form 144 information (
• Should we mandate that Form 144 be filed electronically on EDGAR when the form relates to the securities of a reporting company?
• Should we expand Form 4 to add disclosure requirements from Form 144 for these purposes? If so, which disclosures from Form 144 should we retain? Should we modify Form 4 to incorporate them or should this
• Should we require only persons that seek to satisfy both their Rule 144 and Form 4 requirements with one form to fill out all of the questions on a combined Form 4/Form 144? If so, what mechanisms can we use to prevent confusion and assist filers in providing only the information that they are required to provide? For example, should we implement programming changes to EDGAR that would electronically filter out any filers not seeking to report information pursuant to Rule 144 on their Form 4 by withholding questions relevant to Rule 144 unless the filer indicates that he or she intends to provide such information on Form 4?
• Would combining the forms and delaying the Rule 144 filing date make it more difficult for brokers to perform the inquiries required in order to qualify the transaction as a “brokers' transaction”? Do brokers and transfer agents need to see Form 144 information prior to executing the transaction? Is there a better way for these parties to obtain this information prior to executing the transaction other than a separate filing? Should brokers be deemed to be aware of facts contained in Form 4 to the extent that the form is filed for Rule 144 purposes?
• Should we implement programming changes to EDGAR that would enable security holders to create two separate filings, one Form 4 and one Form 144, at the same time by completing only one submission to EDGAR? Would this lessen the probability of confusion that would result if items on Form 144 were transferred to Form 4?
We request and encourage any interested person to submit comments regarding:
• The proposed rule changes that are the subject of this release;
• Additional or different changes; or
• Other matters that may have an effect on the proposals contained in this release.
We request comment from the point of view of registrants, investors and other users of information about the resale of restricted securities and securities owned by affiliates of the issuer.
Our proposals contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
The proposed amendments would eliminate the need for non-affiliates of the issuer to file Form 144. In addition, the proposal would raise the filing threshold for Form 144 to 1,000 shares or $50,000 worth of securities during a three-month period. Currently, the Form 144 filing threshold is 500 shares and $10,000. Form 144 may be filed in paper or electronically using the EDGAR filing system. The proposed amendments also include two limited changes to Form 144.
Currently, an estimated 60,500 notices on Form 144 are filed annually for a total burden of 121,000 hours.
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comments to (1) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; (2) evaluate the accuracy of our estimate of the burden of the proposed collection of information; (3) determine whether there are ways to enhance the quality, utility and clarity of the information to be collected; and (4) evaluate whether there are ways to minimize the burden of the collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.
Persons submitting comments on the collection of information requirements should direct the comments to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should send a copy to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-9303, with reference to File No. S7-11-07. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-11-07, and be submitted to the Securities and Exchange Commission, Records Management, Office of Filings and Information Services, 100 F Street, NE., Washington, DC 20549. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this release. Consequently, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.
Rule 144 under the Securities Act of 1933 creates a safe harbor for the sale of securities under the exemption set forth in Section 4(1) of the Securities Act. Specifically, a selling shareholder is deemed not an underwriter under Section 2(a)(11), and therefore may take advantage of the Section 4(1) exemption and need not register its sale of securities, if the sale complies with the provisions of the rule. Rule 145 requires Securities Act registration of certain types of business combination transactions. Rule 145 contains a safe harbor provision similar to Rule 144 for presumed underwriters who receive securities in such a business combination transaction. Form 144 is required to be filed by persons intending to sell securities in reliance on Rule 144 if the amount of securities to be sold in any three-month period exceeds 500 shares or other units or the aggregate sales price exceeds $10,000. The primary purpose of the form is to publicly disclose the proposed sale of securities by persons not deemed to be engaged in the distribution of the securities.
We are proposing amendments to Rule 144, Rule 145, and Form 144 that would accomplish the following:
• Simplify the Preliminary Note to Rule 144 and text of Rule 144, using plain English principles;
• Reduce the Rule 144(d) holding period for restricted securities of reporting companies to six months for both affiliates and non-affiliates;
• Significantly reduce requirements applicable to non-affiliates of reporting and non-reporting companies so that:
○ Non-affiliates of reporting companies would be subject only to the current public information requirement after meeting the six-month (or more depending on hedging activities) holding period and up until one year since the date they acquired their securities; and
○ Non-affiliates of non-reporting companies would be able to resell freely after the one-year holding period;
• Require that security holders toll the holding period during the time they enter into certain hedging transactions, but in no event would the holding period extend beyond one year;
• Eliminate the “manner of sale” limitations with respect to debt securities;
• Increase the thresholds that would trigger a Form 144 filing requirement;
• Codify the staff's positions, as they relate to Rule 144, concerning the following issues:
○ Inclusion of securities acquired in a transaction under Section 4(6) of the Securities Act in the definition of “restricted securities,”
○ The effect that creation of a holding company structure has on a security holder's holding period,
○ Holding periods for conversions and exchanges of securities,
○ Holding periods for cashless exercise of options and warrants,
○ Aggregation of a pledgee's resales with resales by other pledgees of the same security for the purpose of determining the amount of securities sold,
○ The extent to which securities issued by reporting and non-reporting shell companies are eligible for resale under Rule 144, and
○ Representations required from security holders relying on Rule 10b5-1(c); and
• Eliminate the presumptive underwriter status in Securities Act Rule 145, except for transactions involving a shell company, and harmonize the resale requirements in that rule with the proposed resale requirements for securities of shell companies in Rule 144.
We also solicit comment on how best to coordinate the Form 144 filing deadline with the Form 4 filing deadline and permit persons who are subject to Section 16 to meet their Form 144 filing requirement by filing a Form 4.
If adopted, the proposed amendments should reduce the cost of complying with Rules 144 and 145. We have examined the Forms 144 that have been filed with the Commission since 1997.
One item on Form 144 requires security holders to provide information on the nature of the acquisition transaction. Some Form 144 filers acquire their securities from the company as a private investment, while others receive the securities as part of their employee awards, or as a form of payment for services to the company. Reducing the burden associated with selling these securities not only can reduce the cost of raising capital, but also may increase the value of these securities in non-cash transactions and reduce the cost of services and employment.
For the most part, transactions that were filed on Form 144 have been small. In 2006, about 90% of the transactions had a market value of less than $2 million and 99% of these transactions had a market value of less than $20 million. More than half of the investors report total annual transactions of a market value of less than $240,000 with any specific company. Thus, reducing the costs associated with filing Form 144 and raising the thresholds that trigger a Form 144 filing requirement are likely to affect many small investors.
We expect that the increase in the value of these securities would come from several sources under the proposed rule. The first is the increase in the liquidity of the securities. Investors, suppliers, or employees who are restricted from selling securities and who cannot hedge their positions are generally exposed to more risk than those who are not subject to such limitations, and generally require higher compensation (or a larger discount) for this risk.
Also, resale transactional costs for non-affiliate selling security holders should decrease as a result of the removal of all conditions other than the holding period and the current public information condition applicable to non-affiliates. Reducing restrictions on resales by non-affiliates would streamline the rule and reduce the complexity of the rule. This and other simplifications of the rule and Preliminary Note to Rule 144 should make it easier to understand and follow, reducing the time that investors must spend analyzing whether or not they can rely on the rule as a safe harbor from the requirement to register the resale of their securities. However, because we are proposing to shorten the holding period only with respect to securities of reporting companies, the proposals would add some additional complexity that would diminish the effect of simplifying the other aspects of the rule.
If the proposals are adopted, non-affiliates would no longer have to file a Form 144. Therefore, they would save the cost of preparing and filing this form, as well as the transactional costs related to Rule 144's manner of sale requirements and volume of sale limitations. The increase in the Form 144 filing thresholds should further reduce the number of transactions for which a Form 144 needs to be filed for affiliates of the issuer. This would eliminate the cost of filing the form for transactions that fall below the thresholds.
The elimination of the manner of sale limitations would reduce costs for debt security holders. It is difficult to estimate the amount of reduction. Among the Forms 144 filed in 2005, we found at least 200 filings covering a sale of debt securities, although we believe the actual number of debt securities resales relying on Rule 144 may be higher than this.
The codification of existing staff positions should create no added cost to companies or investors because, substantively, there is no expected change in practice. However, these codifications should provide substantial benefit to the investing community by clarifying and better publicizing the staff's positions. Greater clarity and transparency of our rules should reduce security holders’ transactional costs by eliminating uncertainty and reducing the need for legal analysis.
The proposed amendments to Rule 145 remove what we preliminarily believe are unnecessary restraints on the resale of securities by parties or their affiliates to a merger, recapitalization, or other transaction listed in Rule 145(a). The proposed amendments to Rule 145 would reduce costs incurred by companies, parties to the transaction, and their affiliates to comply with the resale and other restrictions of the rule. Retaining the presumptive underwriter provision for transactions involving shell companies is intended to afford investors with additional protection against manipulative practices or abusive sales by parties to the transaction and their affiliates after the completion of the Rule 145 transaction.
The primary benefit of permitting an affiliate to satisfy a Form 144 filing requirement by timely filing a Form 4 reporting the sale of securities would be to reduce duplicative paperwork costs incurred by these individuals. We solicit comment on a number of alternatives to address this point, including which items on Form 144 could be transferred to Form 4 in order to ascertain which items on Form 144 are more important to the market and should therefore be preserved. While the market would receive the information later if the Form 144 filing deadline were to be revised to coincide with the Form 4 filing deadline, the information that would have been contained on Form 144 may be more easily accessible to users of the information, if transferred to Form 4, which is filed electronically.
The proposal to reintroduce a provision that tolls the holding period if the shareholder had entered into a transaction that hedges the economic risk of ownership of the securities may increase the cost of a private offering. The proposal provides that regardless of the presence of such hedging, the holding period would not extend beyond one year, which is the current holding period before security holders may begin to sell their restricted securities. After one year, affiliates would be able to trade subject to the conditions to which they are subject under the current rules. However, the tolling provision may add a layer of complexity to calculating whether the holding period requirement has been met between the six-month and one-year marks because subsequent purchasers must determine whether previous owners of the securities have entered into such hedging transactions. We seek to minimize the burden on security holders of making this determination by providing, under the proposed rules, that the holding period need not be suspended if the security holder reasonably believes that the previous owner has not engaged in hedging transactions. We also believe that the ceiling on the proposed tolling provision minimizes burdens. For example, a security holder who wishes to rely on proposed Rule 144 but is unable to determine the previous owner's hedging activities would be able to omit the period in which the previous owner held the securities in the calculation of the holding period or be subject to a maximum one-year holding period, as under the current rule, and a non-affiliate security holder would be permitted to resell the securities after one-year, regardless of any hedging activities in connection with the securities. Also, as provided under the proposed revision to Note (ii) of Rule 144(g)(3), brokers would also be required to inquire into security holders’ hedging transaction which may increase some costs for them, although we preliminarily believe such costs would not be significant.
Under the proposed amendments, after one year, non-affiliates would be permitted to sell their restricted securities freely without being subject to any other condition. One concern is whether, in cases of the securities of a non-reporting company, relieving non-affiliates from compliance with Rule 144's existing conditions, including the current public information condition requiring that there be adequate available current information with respect to the issuer of the securities, would lead to abuse.
Reducing the requirements under Rule 144 might also cause a substitution effect, where companies might choose to rely more on private transactions than on public transactions to raise capital. There is also the risk that the market would not be informed about the nature of these transactions, given that these transactions would not need to be registered and given the changes to the
While these are potential costs, we believe that they are justified by the potential benefits of the proposal and may not be significant in the aggregate. First, there is some evidence that, on average, the announcement of resales under Rule 144 by security holders has no adverse effect on stock prices, suggesting that the market does not attribute an information advantage to these security holders at the time of selling.
As noted above, the proposed amendments to Rule 145 would reduce costs incurred by companies, parties to the transaction, and their affiliates to comply with the resale and other restrictions of the presumed underwriter provision. The magnitude of such reduction may vary.
We seek comments and empirical data on all aspects of this Cost-Benefit Analysis. Specifically, we ask the following:
• What would be the effect on the liquidity discount for privately issued securities of reducing the holding period for securities of reporting companies to six months? Would this effect significantly increase a company's ability to raise capital in private securities transactions? Would the reduced holding period have an impact, in particular, on the ability of smaller businesses to raise capital?
• Would shortening the holding period to six months for reporting companies increase the frequency of abusive transactions where the security holder has not taken a sufficient economic risk of investment? What if the holding period for non-reporting companies is shortened to six months as well?
• What is the impact of eliminating the conditions to which non-affiliates are currently subject for a period of time prior to free public resale (i.e., the current public information requirement, the volume limitations, the manner of sale limitations, and the notice requirement)? Do any of the current conditions to which non-affiliates are subject provide a measurable benefit to the market? For example, would buyers of restricted securities of non-reporting companies be disadvantaged because sellers relying on Rule 144 are no longer subject to the condition requiring that current information of the issuer be publicly available?
• Who uses the information filed on Form 144? Would the proposed elimination of the requirement to file a Form 144 by non-affiliates and the proposed filing thresholds result in a loss of important information for these individuals?
• What would be the effect of reintroducing the tolling concept to Rule 144? How would it affect a company's ability to raise capital? Would the tolling provision impose undue costs on brokers and security holders due to the additional duties relating to tracking the security holders’ or previous owners’ hedging transactions? Would the tolling provision impose costs on transfer agents?
• What would be the impact of the proposed elimination of the limitations on the manner of sale for debt securities? How much would debt security holders save in fees that they would no longer incur under the proposed amendments? What impact would the elimination have on brokers? Would this proposal increase the burden on transfer agents?
• What are the benefits and costs of codifying the staff's existing interpretations under Rule 144?
• What is the effect of the elimination of the presumptive underwriter provision in Rule 145 for all transactions except those involving a shell company?
Securities Act Section 2(b)
The proposed amendments are intended to reduce regulatory requirements for the resale of securities and simplify the process of reselling such securities. Currently, a shareholder owning restricted securities must wait until at least one year after the securities are last sold by the issuer or an affiliate before that shareholder can rely on Rule 144 safe harbor to resell those securities. The amendments would reduce this holding period to as little as six months for restricted securities of Exchange Act reporting companies if the security holder did not engage in hedging transactions with respect to the securities. The holding period would extend past six months to the extent the security holder engaged in hedging transactions, but in no event would the holding period extend beyond one year. Restricted securities of non-reporting companies would continue to be subject to a one-year holding period. A shorter holding period for restricted securities of reporting companies may increase the liquidity of securities sold in private transactions. This could result in increased efficiency in securities offerings because companies will be able to sell securities in private offerings at prices closer to prices that they may obtain in public markets, without the need to register those securities, and otherwise obtain better terms in private offerings. We also believe that this would promote capital formation, particularly for smaller companies, because the proposals would increase the liquidity of securities sold in private transactions. The amendments should increase a company's ability to raise capital in private securities transactions, which may improve the competitiveness of those companies, particularly smaller businesses that do not have ready access to public markets.
We do not believe that the proposed tolling provision that suspends the holding period while a security holder
The other proposed amendments to Rule 144 generally should increase efficiency and assist in capital formation. We believe that the proposed elimination of most of the Rule 144 conditions applicable to non-affiliates may further increase the liquidity of privately sold securities. We anticipate that the proposed elimination of the manner of sale limitations for debt securities would provide security holders with greater flexibility in the resale of their securities, thereby increasing efficiency. Raising the Form 144 filing thresholds, as proposed, should also improve efficiency by reducing security holders’ paperwork burden.
Under the proposed amendment to Rule 145, individuals and small entities owning stock in companies that engage in transactions specified in Rule 145(a) would no longer be subject to the presumptive underwriter provision, except in the case of transactions involving a shell company. These proposed amendments should improve competitiveness of many small entities by permitting them to resell securities without the restrictions imposed by the current rule.
We request comment on whether the proposals, if adopted, would promote efficiency, competition, and capital formation. Commenters are requested to provide empirical data and other factual support for their views, if possible.
Section 23(a)(2) of the Exchange Act
We have prepared this Initial Regulatory Flexibility Analysis in accordance with Section 603 of the Regulatory Flexibility Act.
Rule 144 creates a safe harbor for the sale of securities under the exemption set forth in Section 4(1) of the Securities Act. If a selling security holder satisfies its conditions, that selling security holder may resell his or her securities publicly without registration and without being deemed an underwriter.
Rule 145 governs the offer and sale of certain securities received in connection with reclassifications, mergers, consolidations and asset transfers. It imposes restrictions similar to Rule 144 on a party to such transactions and to persons who are affiliates of that party at the time the transaction is submitted for vote or consent, with regard to securities acquired in that transaction. Rule 145 contains holding period requirements similar to those in Rule 144.
Form 144 is required to be filed by persons intending to sell securities in reliance on Rule 144 if the amount of securities to be sold in any three-month period exceeds 500 shares or other units or the aggregate sales price exceeds $10,000. The primary purpose of the form is to publicly disclose the proposed sale of securities by persons deemed not to be engaged in the distribution of the securities.
We are proposing amendments that would make Rule 144 easier to understand and apply. We propose to streamline both the Preliminary Note to Rule 144 and the rule. In addition to codifying several staff interpretive positions, the proposals would reduce the Rule 144 holding period and substantially reduce requirements for non-affiliates. The proposals would reintroduce a provision tolling the holding period but only up to one year after the acquisition of the securities from the issuer or an affiliate of the issuer, which is the holding period under the current rules.
The reduction of the Rule 144 holding periods for restricted securities of reporting companies for affiliates and non-affiliates should increase the liquidity of privately issued securities, enabling companies to raise private capital more efficiently. An increase in the Form 144 filing threshold would take into account the effects of inflation since the last amendment to that provision in 1972. Although the codification of several staff interpretive positions is not intended to substantively change the rules, they should simplify analyses under Rule 144 by compiling these interpretations in one readily accessible location. The objectives of the proposed amendments are to simplify Rule 144, to reduce its burdens on investors where consistent with investor protection, and to facilitate capital formation.
The release solicits comment on how best to coordinate the Form 144 filing deadline with the Form 4 filing deadline and permit a person who is subject to Section 16 of the Exchange Act to meet a Form 144 filing requirement with a Form 4 filing, to the extent possible. Such amendments could simplify filing requirements for Section 16 persons even further by allowing them to file only one form to meet the requirements of both Rule 144 and Form 4.
The amendments are proposed pursuant to Sections 2(a)(11), 4(1), 4(4), 7, 10, 19(a) and 28 of the Securities Act, as amended.
The proposed rules would affect both small entities that issue securities and small entities that hold such securities. An issuer, other than an investment company, is considered a “small business” for purposes of the Regulatory Flexibility Act if that issuer:
• Has assets of $5 million or less on the last day of its most recent fiscal year, and
• Is engaged or proposing to engage in a small business financing.
We are aware of approximately 1,100 Exchange Act reporting companies that currently satisfy the definition of “small
We expect several of the proposed amendments to reduce the number of Form 144 filings made to the SEC by selling security holders. These proposed amendments are:
• Elimination of all Rule 144 requirements, other than the holding period and the current public information requirement for six months, for non-affiliates; and
• Increased share number and dollar amount thresholds for filing Form 144.
As a result of the elimination of all requirements for non-affiliate security holders, other than the holding period and the current public information requirement, non-affiliates no longer would have to file a Form 144, regardless of the amount of securities sold. We estimate that 45% of the Form 144 filings that we currently receive are from non-affiliates. Therefore, this particular amendment should result in a corresponding reduction in Form 144 filings.
The increase in the filing threshold for Form 144 should decrease the number of Form 144 filings filed by affiliates. Based on studies by the Commission's Office of Economic Analysis, we expect the number of Form 144 filings to decrease by approximately 5%, or 3,025 filings, if the thresholds are increased to 1,000 shares or $50,000 in sales price.
Clerical skills are necessary to complete Form 144.
Also, because the proposed amendments would significantly reduce the conditions in Rule 144 to which non-affiliates are subject, non-affiliates would also no longer be required to keep track of compliance with those conditions. Non-affiliates with securities of both reporting companies and non-reporting companies would no longer be required to comply with the manner of sale limitations and volume limitations. Non-affiliates of non-reporting companies would no longer be required to comply with the requirement that there be current information regarding the issuer that is publicly available.
The reintroduction of the tolling provision would require the security holder and brokers to determine whether the security holder or a previous owner had engaged in hedging transactions with respect to the securities, which may require them to maintain some additional documentation. However, the holding period need not be suspended if the security holder reasonably believes that the previous owner had not engaged in hedging transactions in the securities. Also, a determination regarding hedging activities would only need to be made where the issuer of the securities is a reporting company and the securities are sold before a year has passed since the date the securities were acquired from the issuer or affiliate.
The proposal to eliminate the manner of sale limitation for debt securities would also obviate the need for security holders to determine whether such condition has been met in the resale of their debt securities. The amendments to Rule 145 eliminate the need for parties to a Rule 145(a) transaction or their affiliates to determine whether they have met the resale provisions of Rule 145, except when the transaction involves a shell company.
No current federal rules duplicate, overlap or conflict with the rules and forms that we are proposing, except that persons subject to the reporting requirements under Section 16 of the Securities Exchange Act of 1934 may need to file reports on Form 4 as well as Form 144 under certain circumstances. However, the class of Form 144 filers is different than that for Form 4 filers because affiliates of companies not subject to the Exchange Act reporting requirements must file Form 144, but not Form 4. Further, persons who may be deemed affiliates under Rule 144 may not necessarily be the same persons who also are subject to Section 16. Also, Form 144 is required to be filed earlier than Form 4 and Form 144 contains some information that is not required to be included on Form 4. As noted above, the release also solicits comment on whether Form 4 and Form 144 filing requirements should be coordinated to delay the Form 144 filing deadline to match the Form 4 filing deadline and so that persons subject to Section 16 could be exempt from filing a Form 144 regarding a particular transaction if they have already filed a Form 4 with respect to that transaction.
We considered different compliance standards for small entities that would be affected by the proposed amendments. In the 1997 proposing release, we solicited comment regarding the possibility of different standards for small entities. However, we believe that such differences would be inconsistent with the purposes of the rules. Commenters on this issue in the 1997 proposing release unanimously agreed that different standards would not be feasible and would only add to the complexity and difficulty of applying the rules.
We also considered the other types of alternatives set forth in the Regulatory Flexibility Act to minimize the economic impact of the amendments on small entities. These included the following:
• the clarification, consolidation, or simplification of compliance and reporting requirements for small entities;
• the use of performance rather than design standards; and
• an exemption from some or all of the proposed amendments for small entities.
Because the proposed amendments would benefit all companies and holders of restricted securities, differing compliance timetables or standards for small entities would not be appropriate. In addition, the proposed holding period would likely have a favorable
The proposed changes to Rule 145 would eliminate presumptive underwriter provision and resale restrictions on parties to a transaction specified in Rule 145(a) and their affiliates, including small entities and their affiliates, except when the transaction involves a shell company. We believe that retaining the presumptive underwriter provision when the transaction involves a shell company is necessary, given the potential for abuse relating to such transactions.
We encourage you to submit written comments with respect to any aspect of this Initial Regulatory Flexibility Analysis. In particular, we seek comment on: (a) The number of small entities that would be affected by the proposed rule; (b) the expected impact on small entities of the proposals as discussed above; and (c) a reliable means to quantify the number of small entities that would be affected by the proposed rules and the rules’ impact on small entities.
We ask commenters to describe the nature of any impact and provide empirical data supporting the extent of the impact. We will consider comments when we prepare the Final Regulatory Flexibility Analysis if the proposed revisions are adopted. Persons wishing to submit written comments should file them with: Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549. All comments received will be available for public inspection and copying at the SEC's Public Reference Room at the same address.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
• An annual effect on the economy of $100 million or more;
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment or innovation.
We request comment on whether our proposals would be a “major rule” for purposes of SBREFA. We solicit comment and empirical data on:
• The potential effect on the U.S. economy on an annual basis;
• Any potential increase in costs or prices for consumers or individual industries; and
• Any potential effect on competition, investment or innovation.
We are proposing to adopt the amendments pursuant to Sections 2(a)(11), 4(1), 4(4), 7, 10, 19(a) and 28 of the Securities Act, as amended.
Advertising, Reporting and recordkeeping requirements, Securities.
Reporting and recordkeeping requirements, Securities.
For the reasons set out above, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
1. Revise the authority citation for Part 230 to read, in part, as follows:
15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z-3, 77sss, 78c, 78d, 78j, 78
2. Amend § 230.144 by:
a. Revising the preliminary note;
b. Revising paragraphs (a)(3)(vi) and (a)(3)(vii), and adding paragraph (a)(3)(viii);
c. Revising paragraphs (b), (c), (d)(1), (d)(3)(i), (d)(3)(ii), and (d)(3)(viii);
d. Adding paragraphs (d)(3)(ix) through paragraphs (d)(3)(xii);
e. Revising the heading and the introductory text to paragraphs (e) and (e)(1);
f. Removing paragraph (e)(2);
g. Redesignating existing paragraph (e)(3) as paragraph (e)(2);
h. Revising newly redesignated paragraph (e)(2);
i. Revising paragraphs (f), the notes to paragraph (g)(3), paragraph (h) and paragraph (i); and
j. Removing paragraphs (j) and (k).
1. Any person who sells restricted securities will be deemed not to be engaged in a distribution and therefore not an underwriter for that transaction;
2. An affiliate or any person who sells restricted or other securities on behalf of an affiliate of the issuer will be deemed not to be engaged in a distribution and therefore not an underwriter for that transaction; and
3. The purchaser will receive securities that are not restricted securities.
This means that someone entitled to claim the safe harbor would be able to sell his or her securities under Section 4(1) of the Act.
Rule 144 is not an exclusive safe harbor. This means that a person who does not meet all the requirements of Rule 144 still may claim any other available exemption for resales under the Act. The Rule 144 safe harbor is not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a plan or scheme to evade the registration requirements of the Act.
(a) * * *
(3) * * *
(vi) Securities acquired in a transaction made under § 230.801 to the same extent and proportion that the securities held by the security holder of the class with respect to which the rights offering was made were, as of the record date for the rights offering, “restricted securities” within the meaning of this paragraph (a)(3);
(vii) Securities acquired in a transaction made under § 230.802 to the same extent and proportion that the securities that were tendered or exchanged in the exchange offer or business combination were “restricted securities” within the meaning of this paragraph (a)(3); and
(viii) Securities acquired from the issuer in a transaction subject to an exemption under section 4(6) (15 U.S.C. 77d(6)) of the Act.
(b)
(1)
(ii) If the issuer of the securities is not, or has not been for at least 90 days immediately before the sale, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, any person who is not an affiliate of the issuer, and has not been an affiliate during the preceding three months, who sells restricted securities of an issuer for his or her own account shall be deemed not to be an underwriter of those securities within the meaning of section 2(a)(11) of the Act if the condition of paragraph (d) of this section is met.
(2)
(3)
(c)
(1)
(2)
With respect to paragraph (c)(1), the person can rely upon:
1. A statement in whichever is the most recent report, quarterly or annual, required to be filed and filed by the issuer that such issuer has filed all reports required under section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the issuer was required to file such reports), other than Form 8-K reports (§ 249.308 of this chapter), and has been subject to such filing requirements for the past 90 days; or
2. A written statement from the issuer that it has complied with such reporting requirements.
3. Neither type of statement may be relied upon, however, if the person knows or has reason to believe that the issuer has not complied with such requirements.
(d) * * *
(1)
(ii) If the issuer of the securities is not, or has not been for at least 90 days immediately before the sale, subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, a minimum of one year must elapse between the later of the date of the acquisition of the securities from the issuer, or from an affiliate of the issuer, and any resale of such securities in reliance on this section for the account of either the acquiror or any subsequent holder of those securities.
(iii) If the acquiror takes the securities by purchase, the holding period shall not begin until the full purchase price or other consideration is paid or given by the person acquiring the securities from the issuer or from an affiliate of the issuer.
(3) * * *
(i)
(ii)
If the surrendered securities originally did not provide for cashless conversion or exchange by their terms and the holder provided consideration, other than solely securities of the same issuer, in connection with the amendment of the surrendered securities to permit cashless conversion or exchange, then the newly acquired securities shall be deemed to have been acquired at the same time as such amendment to the surrendered securities, so long as the conversion or exchange itself meets the conditions of this section.
(viii)
(ix)
(A) The newly formed holding company's securities were issued solely in exchange for the securities of the predecessor company as part of a reorganization of the predecessor company into a holding company structure;
(B) Holders received securities of the same class evidencing the same proportional interest in the holding company as they held in the predecessor, and the rights and interests of the holders of such securities are substantially the same as those they possessed as holders of the predecessor company's securities; and
(C) Immediately following the transaction, the holding company has no significant assets other than securities of the predecessor company and its existing subsidiaries and has substantially the same assets and liabilities on a consolidated basis as the predecessor had before the transaction.
(x)
If the options or warrants originally did not provide for cashless exercise by their terms and the holder provided consideration, other than solely securities of the same issuer, in connection with the amendment of the options or warrants to permit cashless exercise, then the newly acquired securities shall be deemed to have been acquired at the same time as such amendment to the options or warrants.
If the options or warrants are not purchased for cash or property and do not create any investment risk to the holder, as in the case of employee stock options, the newly acquired securities shall be deemed to have been acquired at the time the options or warrants are exercised, so long as the conditions of Rule 144(d)(1) and Rule 144(d)(2) are met at the time of exercise.
(xi)
(A) If the securities sold are equity securities, as defined in § 230.405, there shall be excluded any period during which the person for whose account they are sold had a short position, or had entered into a “put equivalent position” (as defined in § 240.16a-1(h) of this chapter), with respect to any equity securities of the same class or any securities convertible into securities of such class; and
(B) If the securities sold are nonconvertible debt securities, there shall be excluded any period during which the person for whose account they are sold had a short position, or had entered into a “put equivalent position” (as defined in § 240.16a-1(h) of this chapter), with respect to any nonconvertible debt securities of the same issuer.
(C) If the holding period is based on a period that a previous owner has held the securities, there shall be excluded any period during which the previous owner had a short position or had entered into a “put equivalent position” (as defined in § 240.16a-1(h) of this chapter), with respect to any equity securities of the same class or any securities convertible into securities of such class, if the securities sold are equity securities, or with respect to any nonconvertible debt securities of the same issuer, if the securities sold are nonconvertible debt securities, unless the person for whose account the securities are sold reasonably believes that no such position was held by a previous owner.
This paragraph shall not apply if the holding period computed under paragraph (d) of this rule (excluding this paragraph) has been twelve months or more.
(xii)
(e)
(1) If any securities are sold for the account of an affiliate of the issuer, regardless of whether those securities are restricted, the amount of securities sold, together with all sales of securities of the same class sold for the account of such person within the preceding three months, shall not exceed the greatest of:
(2)
(i) Where both convertible securities and securities of the class into which they are convertible are sold, the amount of convertible securities sold shall be deemed to be the amount of securities of the class into which they are convertible for the purpose of determining the aggregate amount of securities of both classes sold;
(ii) The amount of securities sold for the account of a pledgee of those securities, or for the account of a purchaser of the pledged securities, during any period of three months within six months after a default in the obligation secured by the pledge, and the amount of securities sold during the same three-month period for the account of the pledgor shall not exceed, in the aggregate, the amount specified in paragraph (e)(1) of this section;
Sales by a pledgee of securities pledged by a borrower will not be aggregated under paragraph (e)(2)(ii) with sales of the securities of the same issuer by other pledgees of such borrower in the absence of concerted action by such pledgees.
(iii) The amount of securities sold for the account of a donee of those securities during any three-month period within six months after the donation, and the amount of securities sold during the same three-month period for the account of the donor, shall not exceed, in the aggregate, the amount specified in paragraph (e)(1) of this section;
(iv) Where securities were acquired by a trust from the settlor of the trust, the amount of such securities sold for the account of the trust during any three-month period within six months after the acquisition of the securities by the trust, and the amount of securities sold during the same three-month period for the account of the settlor, shall not exceed, in the aggregate, the amount specified in paragraph (e)(1) of this section;
(v) The amount of securities sold for the account of the estate of a deceased person, or for the account of a beneficiary of such estate, during any three-month period and the amount of securities sold during the same three-month period for the account of the deceased person prior to his death shall not exceed, in the aggregate, the amount specified in paragraph (e)(1) of this section;
(vi) When two or more affiliates or other persons agree to act in concert for the purpose of selling securities of an issuer, all securities of the same class sold for the account of all such persons during any period of three months shall be aggregated for the purpose of determining the limitation on the amount of securities sold;
(vii) The following sales of securities need not be included in determining the
(A) Securities sold pursuant to an effective registration statement under the Act;
(B) Securities sold pursuant to an exemption provided by Regulation A (§ 230.251 through § 230.263) under the Act;
(C) Securities sold in a transaction exempt pursuant to section 4 of the Act (15 U.S.C. 77d) and not involving any public offering; and
(D) Securities sold offshore pursuant to Regulation S (§ 230.901 through § 230.905, and Preliminary Notes) under the Act.
(f)
(i) Solicit or arrange for the solicitation of orders to buy the securities in anticipation of or in connection with such transaction, or
(ii) Make any payment in connection with the offer or sale of the securities to any person other than the broker who executes the order to sell the securities.
(2) Paragraph (f)(1) shall not apply to:
(i) Securities sold for the account of the estate of a deceased person or for the account of a beneficiary of such estate provided the estate or estate beneficiary is not an affiliate of the issuer; or
(ii) Debt securities.
For the purposes of paragraph (f)(2), “debt securities” is defined to mean:
1. Any security other than an equity security as defined in § 230.405;
2. Non-participatory preferred stock, which is defined as non-convertible capital stock, the holders of which are entitled to a preference in payment of dividends and in distribution of assets on liquidation, dissolution, or winding up of the issuer, but are not entitled to participate in residual earnings or assets of the issuer; and
3. Asset-backed securities, as defined in § 229.1101 of this section.
(g) * * *
(3) * * *
The broker, for his own protection, should obtain and retain in his files a copy of the notice required by paragraph (h) of this section.
The reasonable inquiry required by paragraph (g)(3) of this section should include, but not necessarily be limited to, inquiry as to the following matters:
1. The length of time the securities have been held by the person for whose account they are to be sold. If practicable, the inquiry should include physical inspection of the securities;
2. If the securities have been held for less than one year, the existence and character of any short position or put equivalent position with regard to the securities held by the person for whose account they are to be sold and whether such person has made inquiries about the existence and character of any short position or put equivalent position with regard to the securities held by the previous owner of the securities and the results of such person's inquiries;
3. The nature of the transaction in which the securities were acquired by such person;
4. The amount of securities of the same class sold during the past 3 months by all persons whose sales are required to be taken into consideration pursuant to paragraph (e) of this section;
5. Whether such person intends to sell additional securities of the same class through any other means;
6. Whether such person has solicited or made any arrangement for the solicitation of buy orders in connection with the proposed sale of securities;
7. Whether such person has made any payment to any other person in connection with the proposed sale of the securities; and
8. The number of shares or other units of the class outstanding, or the relevant trading volume.
(h)
(2) The Form 144 shall be signed by the person for whose account the securities are to be sold and shall be transmitted for filing concurrently with either the placing with a broker of an order to execute a sale of securities in reliance upon this rule or the execution directly with a market maker of such a sale. Neither the filing of such notice nor the failure of the Commission to comment on such filing shall be deemed to preclude the Commission from taking any action that it deems necessary or appropriate with respect to the sale of the securities referred to in such notice. The person filing the notice required by this paragraph shall have a bona fide intention to sell the securities referred to therein within a reasonable time after the filing of such notice.
(i)
(i) An issuer, other than a business combination related shell company, as defined in § 230.405, or an asset-backed issuer, as defined in Item 1101(b) of Regulation AB (§ 229.1101(b) of this chapter), that has:
(A) No or nominal operations; and
(B) Either:
(
(
(
(ii) An issuer that has been at any time previously an issuer described in paragraph (i)(1)(i).
(2) Notwithstanding paragraph (i)(1), if the issuer of the securities previously had been an issuer described in paragraph (i)(1)(i) but has ceased to be an issuer described in paragraph (i)(1)(i); is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; has filed all reports and other materials required to be filed by such requirements during the preceding 12 months (or for such shorter period that the registrant was required to file such reports and materials); and has filed current “Form 10 information” with the Commission reflecting its status as an entity that is no longer an issuer described in paragraph (i)(1)(i), then a security holder may resell those securities subject to the requirements of this rule 90 days after the “Form 10 information” is filed.
(3) The term “Form 10 information” means the information that is required by Form 10, Form 10-SB, or Form 20-F (§ 249.210, § 249.210b, or § 249.220f of this chapter), as applicable to the issuer of the securities, to register under the Securities Exchange Act of 1934 each class of securities being sold under this rule. The issuer may provide the Form 10 information in any issuer filing with the Commission.
3. Amend § 230.145 by revising paragraphs (c), (d) and (e) and removing the authority citation at the end of the section to read as follows:
(c)
(d)
(1) Any shell company specified in paragraph (c) of this section is no longer a shell company; and
(2) One of the following three conditions is met:
(i) Such securities are sold by such person or party in accordance with the provisions of paragraphs (c), (e), (f), and (g) of § 230.144 and at least 90 days have elapsed since the date the securities were acquired from the issuer in such transaction; or
(ii) Such person or party is not, and has not been for at least three months, an affiliate of the issuer, and a period of at least six months, as determined in accordance with paragraph (d) of § 230.144, have elapsed since the date the securities were acquired from the issuer in such transaction, and the issuer meets the requirements of paragraph (c) of § 230.144; or
(iii) Such person or party is not, and has not been for at least three months, an affiliate of the issuer, and a period of at least one year, as determined in accordance with paragraph (d) of § 230.144, has elapsed since the date the securities were acquired from the issuer in such transaction.
Paragraphs (c) and (d) are not available with respect to any transaction or series of transactions that, although in technical compliance with the rule, is part of a plan or scheme to evade the registration requirements of the Act.
(e)
(2) The term
(3) The term
4. Amend § 230.190 by:
a. Revising paragraphs (a)(2) and (a)(3); and
b. Adding paragraph (a)(4).
The revisions and addition read as follows:
(a) * * *
(1) * * *
(2) Neither the issuer of the underlying securities nor any of its affiliates is an affiliate of the sponsor, depositor, issuing entity or underwriter of the asset-backed securities transaction;
(3) If the underlying securities are restricted securities, as defined in § 230.144(a)(3), § 230.144 must be available for the sale of the securities, provided however, that notwithstanding any other provision of § 230.144, § 230.144 shall only be so available if at least two years have elapsed since the later of the date the securities were acquired from the issuer of the underlying securities or from an affiliate of the issuer of the underlying securities; and
(4) The depositor would be free to publicly resell the underlying securities without registration under the Act. For example, the offering of the asset-backed security does not constitute part of a distribution of the underlying securities. An offering of asset-backed securities with an asset pool containing underlying securities that at the time of the purchase for the asset pool are part of a subscription or unsold allotment would be a distribution of the underlying securities. For purposes of this section, in an offering of asset-backed securities involving a sponsor, depositor or underwriter that was an underwriter or an affiliate of an underwriter in a registered offering of the underlying securities, the distribution of the asset-backed securities will not constitute part of a distribution of the underlying securities if the underlying securities were purchased at arm's length in the secondary market at least three months after the last sale of any unsold allotment or subscription by the affiliated underwriter that participated in the registered offering of the underlying securities.
5. Amend § 230.701, paragraph (g)(3), to revise the phrase “without compliance with paragraphs (c), (d), (e), and (h) of § 230.144” to read “without compliance with paragraphs (c) and (d) of § 230.144”.
6. The authority citation for part 239 continues to read in part as follows:
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79
7. Amend § 239.144 by revising paragraph (b) to read as follows:
(b) This form need not be filed if the amount of securities to be sold during any period of three months does not exceed 1,000 shares or other units and the aggregate sale price does not exceed $50,000.
8. Form 144 (referenced in § 239.144) is revised as set forth in the Appendix.
By the Commission.
This Appendix to the Preamble will not appear in the Code of Federal Regulations.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of interim rule.
This document summarizes the Federal Acquisition Regulation (FAR) rule agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2005-18. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the Internet at
For effective dates and comment dates, see separate documents which follow.
For clarification of content, contact the analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-18 FAR Case 2006-032. Interested parties may also visit our website at
A summary of the FAR rule follows. For the actual revisions and/or amendments to this FAR case, refer to FAR Case 2006-032. FAC 2005-18 amends the FAR as specified below:
This interim rule amends the FAR to implement the Small Business Administration's (SBA) final rule published on November 15, 2006 (71 FR 66434), entitled “Small Business Size Regulations; Size for Purposes of Governmentwide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations.” The purpose of the SBA rule and this FAR rule is to improve the accuracy of small business size status reporting, at the prime contract level, over the life of certain contracts (long-term contracts, contracts involving novations, acquisitions, and mergers). Contractors will be required to rerepresent their size status on contracts prior to the end of the fifth year of a contract that is more than five years in duration (long-term contract); prior to exercising any option thereafter; following execution of a novation agreement; or following a merger or acquisition of the contractor, regardless of whether there is a novation agreement. A change in the size status does not change the terms and conditions of the contract, but the agency may no longer include the value of options exercised or orders issued against the contract in its small business prime contracting goal achievements.
Federal Acquisition Circular (FAC) 2005-18 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-18 is effective June 30, 2007.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule with request for comments.
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement the Small Business Administration's (SBA) final rule published on November 15, 2006 (71 FR 66434), entitled “Small Business Size Regulations; Size for Purposes of Government-wide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations.” The purpose of the SBA rule is to improve the accuracy of small business size status reporting over the life of certain contracts.
Submit comments identified by FAC 2005-18, FAR case 2006-032, by any of the following methods:
• Federal eRulemaking Portal:
You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “Federal Acquisition Regulation”, and typing the FAR case number in the keyword field. Select the “Submit” button. Please include any personal and/or business information inside the document.
• Fax: 202-501-4067.
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.
Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-0044 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755. Please cite FAC 2005-18, FAR case 2006-032.
This interim rule implements the SBA final rule published on November 15, 2006 (71 FR 66434), entitled “Small Business Size Regulations; Size for Purposes of Government-wide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations.” The purpose of the SBA rule is to improve the accuracy of small business size status reporting, at the prime contract level, over the life of certain contracts. It is intended to address situations where a concern was small at time of award but, over the course of the contract, has become other than small. Under current regulations, in these situations, funds obligated under the contract continue to be reported as awarded to small business for the life of the contract, regardless of whether the size status of the concern has changed.
This interim rule requires a concern that represented it was a small business prior to award of a contract to represent its size status again for that existing contract (rerepresent) upon the occurrence of any of the following:
(1) Within 30 days after execution of a novation agreement, or within 30 days after modification of the contract to include the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, if the novation agreement was executed prior to inclusion of that clause in the contract.
(2) Within 30 days after a merger or acquisition that does not require a novation or within 30 days after modification of the contract to include the clause at 52.219-28, if the merger or acquisition occurred prior to inclusion of that clause in the contract.
(3) For long-term contracts—
(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and
(ii) Within 60 to 120 days prior to the exercise date specified in the contract for any option thereafter. If a concern represents that it is now other than small, the agency must ensure that updated size status is reflected in its reporting system, and, from that point forward, may no longer include the value of options exercised or orders issued against the contract in its small business prime contracting achievements.
This interim rule also implements the portions of the SBA rule that state that a change in size status does not change the terms and conditions of the contract, and a contracting officer is not required to terminate the contract when, as a result of a protest, the concern is found to be other than small.
Although not addressed in the SBA rule, this interim rule strengthens the requirement for a contracting officer to document in the contract file the date the contractor verified its representations in the Government's Online Representations and Certifications Application (ORCA), or include a paper copy of those representations in the contract file. The SBA requested this clarification to provide greater assurance that the contracting officer is documenting the ORCA certifications and representations of small business offerors.
This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The changes may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The purpose of the SBA's final rule, which this FAR interim rule implements, is to enable the Government to report more accurate small business prime contracting statistics. The rule provides for more accurate statistics through rerepresentations on contracts and using the size status in effect at the time of the rerepresentation. An Initial Regulatory Flexibility Analysis (IRFA) has been prepared. The analysis is summarized as follows:
Improving the accuracy of the statistics may benefit small businesses. If agencies can no longer take credit toward their small business goals for funds obligated to contracts where, over the course of the contract, the contractor has become other than small, agencies will need to make up the shortfall in meeting their goals by seeking new procurement opportunities with the present universe of small businesses.
In the preamble to its rule, SBA estimated that potentially 2,300 concerns could be initially impacted by the requirement to rerepresent on long-term contracts, and 250 concerns may be impacted annually, thereafter. In addition, it is estimated that 300 concerns may be affected annually by the requirement to rerepresent size status as a result of novations, acquisitions, or mergers.
This rule will not impose any additional recordkeeping requirements on small businesses because they are already required to review and update their size status data, at a minimum, on an annual basis.
The FAR Secretariat has submitted a copy of the Initial Regulatory Flexibility Analysis to the Chief Counsel for
The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because the interim rule contains information collection requirements. Accordingly, the FAR Secretariat will submit a request for approval of a new information collection requirement concerning 9000-XXXX, Small Business Size Rerepresentation (FAR Case 2006-032), to the Office of Management and Budget under 44 U.S.C. 3501,
Public reporting burden for this collection of information is estimated to average .5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
The annual reporting burden is estimated as follows:
Submit comments, including suggestions for reducing this burden, not later than September 4, 2007 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, FAR Secretariat (VIR), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Public comments are particularly invited on: whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Requester may obtain a copy of the justification from the General Services Administration, FAR Secretariat (VIR), Room 4035, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 9000-XXXX in all correspondence.
A determination has been made under the authority of the Secretary of Defense (DoD), the Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to publish an interim rule without prior opportunity for public comment. This action is necessary because this FAR interim rule implements an SBA final rule that becomes effective June 30, 2007.
However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will consider public comments received in response to this FAR interim rule in the formation of the final rule.
Government procurement.
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).
(f) When the contracting office receives written notification that a contractor has changed its size status in accordance with the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, the contracting officer must submit a modification contract action report to ensure that the updated size status is entered in FPDS-NG.
This subpart prescribes policies and procedures for requiring submission and maintenance of representations and certifications via the Online Representations and Certifications Application (ORCA) to—
(b)(1) * * *
(2) When the conditions in paragraph (b) of the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, apply, contractors that represented they were small businesses prior to award of a contract must update the representations and certifications in ORCA as directed by the clause. Contractors that represented they were other than small businesses prior to award of a contract may update the representations and certifications in ORCA as directed by the clause, if their size status has changed since contract award.
(c) Data in ORCA is archived and is electronically retrievable. Therefore, when a prospective contractor has completed representations and certifications electronically via ORCA, the contracting officer must reference the date of ORCA verification in the contract file, or include a paper copy of the electronically-submitted representations and certifications in the file. Either of these actions satisfies contract file documentation requirements of 4.803(a)(11). However, if an offeror identifies changes to ORCA data pursuant to the FAR provisions at 52.204-8(c) or 52.212-3(k), the contracting officer must include a copy of the changes in the contract file.
(e) The determination of other factors under paragraph (c)(3) of this section—
(1) Should take into account the Government's need for continuity of operations and potential costs of disrupting operations; and
(2) May consider the effect on small business.
(c) When the contract includes the clause at 52.219-28, Post Award Small Business Program Rerepresentation, and the conditions in paragraph (b) of the clause are met—
(1) Require a contractor that represented itself as a small business prior to award of the contract to rerepresent its size status; and
(2) Permit a contractor that represented itself as other than a small business prior to award to rerepresent its size status.
(a)
(b) A contractor that represented itself as a small business before contract award must rerepresent its size status for the North American Industry Classification System (NAICS) code in the contract upon the occurrence of any of the following:
(1) Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to include the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, if the novation agreement was executed prior to inclusion of this clause in the contract.
(2) Within 30 days after a merger or acquisition of the contractor that does not require novation or within 30 days after modification of the contract to include the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, if the merger or acquisition occurred prior to inclusion of this clause in the contract.
(3) For long-term contracts—
(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and
(ii) Within 60 to 120 days prior to the date specified in the contract for exercising any option thereafter.
(c) A contractor must rerepresent its size status in accordance with the size standard in effect at the time of its rerepresentation that corresponds to the NAICS code that was initially assigned to the contract.
(d) If the contractor rerepresents that it is other than small, from that point forward, the agency may no longer include the value of options exercised or orders issued against the contract in its small business prime contracting goal achievements.
(e) A change in size status does not change the terms and conditions of the contract.
A contractor that represented itself as other than small before contract award may, but is not required to, rerepresent its size status when—
(a) The conditions in 19.301-2(b) apply; and
(b) The contractor qualifies as a small business under the applicable size standard in effect at the time of its rerepresentation.
(c)(1) Any contracting officer who receives a protest, whether timely or not, or who, as the contracting officer, wishes to protest the small business representation of an offeror, or rerepresentation of a contractor, shall promptly forward the protest to the SBA Government Contracting Area Office for the geographical area where the principal office of the concern in question is located.
(f) Within 3 business days after receiving a copy of the protest and the form, the challenged concern must file with the SBA a completed SBA Form 355 and a statement answering the allegations in the protest, and furnish evidence to support its position. If the concern does not submit the required material within the 3 business days or another period of time granted by the SBA, the SBA may assume that the disclosure would be contrary to the concern's interests.
(g)(1) Within 10 business days after receiving a protest, the challenged concern's response, and other pertinent information, the SBA will determine the size status of the challenged concern and notify the contracting officer, the protester, and the challenged concern of its decision by certified mail, return receipt requested.
(2) The SBA Government Contracting Area Director, or designee, will determine the small business status of the questioned concern and notify the contracting officer and the concern of the determination. Award may be made on the basis of that determination. This determination is final unless it is appealed in accordance with paragraph (i) of this section, and the contracting officer is notified of the appeal before award. If an award was made before the time the contracting officer received notice of the appeal, the contract shall be presumed to be valid.
(k) When a concern is found to be other than small under a protest concerning a size status rerepresentation made in accordance with the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, a contracting officer may permit contract performance to continue, issue orders, or exercise option(s), because the contract remains a valid contract.
(a)(1) * * *
(2) Use the provision with its Alternate I in solicitations issued by DoD, NASA, or the Coast Guard.
(d) Insert the clause at 52.219-28, Post-Award Small Business Program Rerepresentation, in solicitations and contracts exceeding the micro-purchase threshold when the contract will be performed in the United States or its outlying areas.
(a) Separate offers and acceptances must not be made for individual orders under multiple award, Federal Supply Schedule (FSS), multi-agency contracts or Governmentwide acquisition contracts. SBA's acceptance of the original contract is valid for the term of the contract.
(b) The requirements of 19.805-1 of this part do not apply to individual orders that exceed the competitive
(c) An 8(a) concern may continue to accept new orders under a multiple award, Federal Supply Schedule (FSS), multi-agency contract or Governmentwide acquisition contract even after a concern's program term expires, the concern otherwise exits the 8(a) Program, or the concern becomes other than small for the NAICS code assigned under the contract.
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS—COMMERCIAL ITEMS (JUNE 2007)
(b) * * *
__ (14) 52.219-27, Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside (May 2004)(15 U.S.C. 657 f).
__ (15) 52.219-28, Post Award Small Business Program Rerepresentation (JUNE 2007) (15 U.S.C. 632(a)(2)).
As prescribed in 19.308(d), insert the following clause:
POST-AWARD SMALL BUSINESS PROGRAM REREPRESENTATION (JUNE 2007)
(a)
(b) If the Contractor represented that it was a small business concern prior to award of this contract, the Contractor shall rerepresent its size status according to paragraph (e) of this clause or, if applicable, paragraph (g) of this clause, upon the occurrence of any of the following:
(1) Within 30 days after execution of a novation agreement or within 30 days after modification of the contract to include this clause, if the novation agreement was executed prior to inclusion of this clause in the contract.
(2) Within 30 days after a merger or acquisition that does not require a novation or within 30 days after modification of the contract to include this clause, if the merger or acquisition occurred prior to inclusion of this clause in the contract.
(3) For long-term contracts—
(i) Within 60 to 120 days prior to the end of the fifth year of the contract; and
(ii) Within 60 to 120 days prior to the exercise date specified in the contract for any option thereafter.
(c) The Contractor shall rerepresent its size status in accordance with the size standard in effect at the time of this rerepresentation that corresponds to the North American Industry Classification System (NAICS) code assigned to this contract. The small business size standard corresponding to this NAICS code can be found at
(d) The small business size standard for a Contractor providing a product which it does not manufacture itself, for a contract other than a construction or service contract, is 500 employees.
(e) Except as provided in paragraph (g) of this clause, the Contractor shall make the rerepresentation required by paragraph (b) of this clause by validating or updating all its representations in the Online Representations and Certifications Application and its data in the Central Contractor Registration, as necessary, to ensure they reflect current status. The Contractor shall notify the contracting office by e-mail, or otherwise in writing, that the data have been validated or updated, and provide the date of the validation or update.
(f) If the Contractor represented that it was other than a small business concern prior to award of this contract, the Contractor may, but is not required to, take the actions required by paragraphs (e) or (g) of this clause.
(g) If the Contractor does not have representations and certifications in ORCA, or does not have a representation in ORCA for the NAICS code applicable to this contract, the Contractor is required to complete the following rerepresentation and submit it to the contracting office, along with the contract number and the date on which the rerepresentation was completed:
The Contractor represents that it ☐ is, ☐ is not a small business concern under NAICS Code _______ assigned to contract number _________.
(End of clause)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This
Laurieann Duarte, FAR Secretariat, (202) 501-4225. For clarification of content, contact the analyst whose name appears in the table below.
This interim rule amends the FAR to implement the Small Business Administration's (SBA) final rule published on November 15, 2006 (71 FR 66434), entitled “Small Business Size Regulations; Size for Purposes of Governmentwide Acquisition Contracts, Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) Business Development/Small Disadvantaged Business; Business Status Determinations.” The purpose of the SBA rule and this FAR rule is to improve the accuracy of small business size status reporting, at the prime contract level, over the life of certain contracts (long-term contracts, contracts involving novations, acquisitions, and mergers). Contractors will be required to rerepresent their size status on contracts prior to the end of the fifth year of a contract that is more than five years in duration (long-term contract); prior to exercising any option thereafter; following execution of a novation agreement; or following a merger or acquisition of the contractor, regardless of whether there is a novation agreement. A change in the size status does not change the terms and conditions of the contract, but the agency may no longer include the value of options exercised or orders issued against the contract in its small business prime contracting goal achievements.