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Trade Representative, Office of United States
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Trade Representative, Office of United States
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U.S. Office of Personnel Management.
Final rule.
The U.S. Office of Personnel Management (OPM) is issuing final regulations to implement a provision of the Federal Workforce Flexibility Act of 2004 granting agencies additional flexibility to pay retention incentives. The final regulations permit an agency to pay a retention incentive to an employee who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office, facility, activity, or organization. The final regulations provide agencies with additional flexibility to help retain employees critical to important agency missions and better meet strategic human capital needs.
Jeanne Jacobson by telephone at (202) 606-2858; by fax at (202) 606-0824; or by e-mail at
On May 13, 2005, the U.S. Office of Personnel Management (OPM) published interim regulations (70 FR 25732) to implement section 101 of the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004). Section 101 amended 5 U.S.C. 5753 and 5754 by providing a new authority to make recruitment, relocation, and retention payments. The amended law replaced the former recruitment and relocation bonus and retention allowance authority provided by 5 U.S.C. 5753 and 5754. The 60-day comment period for the interim regulations ended on July 12, 2005.
The Supplementary Information for the interim regulations posed a number of questions about whether the final regulations should provide agencies with the authority to pay recruitment incentives to help recruit current employees (as authorized by 5 U.S.C. 5753(b) under conditions that would be described in OPM regulations) and to pay retention incentives to help retain employees likely to leave for a different position in the Federal service (as authorized by 5 U.S.C. 5754(b) under conditions that would be described in OPM regulations) and, if so, under what circumstances. This
These final regulations provide agencies with the discretionary authority to pay a retention incentive to an employee who, in the absence of such an incentive, would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office, facility, activity, or organization. The comments on the situations proposed in the interim regulations and the changes made in these final regulations relating to the use of retention incentives are discussed further in the following sections of this Supplementary Information.
Section 5754(b) of title 5, United States Code, allows OPM to authorize the head of an agency to pay retention incentives to employees who, in the absence of an incentive, would be likely to leave their positions for a different position in the Federal service under the conditions described in OPM's regulations. In recognition that costly and inefficient interagency competition could occur if agencies are permitted to pay retention incentives in this manner, in the May 13, 2005, interim regulations, we asked for comments on the following circumstances in which agencies could grant a retention incentive to encourage employees to stay in their current position and not move to another Federal agency:
• Would it be desirable to allow an agency to offer a retention incentive to a current employee when the head of that agency determines that the loss of the employee's unique competencies (i.e., knowledge, skills, abilities, behaviors, and other characteristics) required for the position would adversely affect the successful accomplishment of an important agency mission or the completion of a critical project?
• Would it be desirable to allow an agency to offer a retention incentive to a current employee when the offered position is under a pay system that differs from the pay system of the employee's position before the move and the head of that agency determines that the loss of the employee in the current position would adversely affect the successful accomplishment of an important agency mission or the completion of a critical project?
• Would it be desirable to allow an agency to offer a retention incentive when the employee's position requires him or her to work under unusually severe or arduous working conditions (e.g., an extreme climate; unreliable essential services, such as basic utility or telecommunication services; or other harsh conditions) that the agency cannot control and the head of that agency has determined that these conditions have a significant negative effect on the agency's ability to retain that employee at the worksite?
• Would it be desirable to allow an agency to offer a retention incentive to a current employee in order to retain an employee who is likely to leave his or her position for another Federal position before the closure or relocation of the employee's office or facility and the head of that agency has determined that the employee's services are critical to the successful closure or relocation?
OPM also invited comments on whether the regulations should limit the payment of a retention incentive in any
We received mixed reactions to the situations proposed in the previous bullets for paying a retention incentive to an employee who would be likely to leave for a different position in the Federal service in the absence of such an incentive. Some commenters expressed concerns about possible bidding wars and increased costs to the Government of the proposed retention incentive flexibility; controlling the use of the flexibility; and the need for adequate funding and specific payment criteria, accountability measures, and a trial period to prevent abuse. Finally, several agencies noted authorities already exist to compensate for working under difficult conditions, such as post differentials, hazardous duty pay, and environmental differential pay, and the proposed retention incentive authority is not needed for these purposes.
However, some commenters also stated the flexibility to pay retention incentives to employees who would be likely to leave for a different position in the Federal service would help agencies retain knowledgeable, skilled, and experienced employees to finish work on critical projects and train replacement employees. One agency stated the use of this flexibility would help avoid (1) the cost of recruiting for unique skill sets, (2) the inability to get the job done after the employee leaves and prior to a replacement coming on board, and (3) the risk of not being able to fill the position at all. Another agency noted, while there are concerns about bidding wars, it is a fact that agencies are in competition with one another as well as private sector employers for the most talented employees, and additional pay flexibility is desirable to meet these needs.
Commenters provided a number of suggestions for additional criteria to use when authorizing a retention incentive for an employee who would be likely to leave for a different position in the Federal service. Some stated any payment criteria should focus on the employee's unique competencies, and the type of pay system and working conditions should not be a deciding factor in determining whether to offer a retention incentive. One agency felt the payment criteria should be written broadly to cover any of the proposed situations, but acknowledged the nature of the relevant pay systems may be an issue for consideration in authorizing a retention incentive. Another stated payment of a retention incentive should be based on staffing needs related to a “critical agency mission,” rather than just an “important agency mission,” and an agency should determine the critical agency mission or project would likely fail without the employee's services. Other suggestions for the regulations included requiring an employee to have an offer of other employment in hand before a retention incentive is paid, limiting the length of service agreements, ensuring service agreements make clear the retention incentive will be terminated when the critical project or program is complete, limiting the payment of a retention incentive to a lump-sum payment at the end of the service period (rather than biweekly or other installment payments), and establishing additional retention incentive flexibility for a trial period during which compliance with the regulations would be closely monitored.
Regarding the question as to whether the regulations should limit the payment of a retention incentive to only those employees whose rating of record is at the highest level under the applicable performance appraisal or evaluation system, commenters overwhelmingly objected to this proposed requirement. Commenters felt the needs of agencies and the employee's capabilities should be the determining factors in deciding whether to pay an incentive and that including such a limit in the regulations would be a disservice to the office attempting to meet a critical mission need or project. They pointed out that an employee with a “Fully Successful” rating might have the competencies or experience that are essential for the agency to attract or retain. Another commenter agreed an employee's performance level must be a factor when determining whether an incentive should be paid to an employee and suggested the performance level be limited to at least “Fully Successful” (or equivalent) consistent with other recruitment, relocation, and retention incentive provisions.
Ensuring agencies have an effective civilian workforce to achieve their goals is one of the primary objectives of strategic human capital management in the Government. To meet this objective, agencies must have the necessary human resources tools to retain essential employees to perform mission-critical work. The retention incentive authority is one of several tools providing agencies substantial flexibility to pay additional compensation to help retain key employees.
We carefully considered the comments received on the circumstances proposed in the interim regulations under which agencies would be allowed to pay a retention incentive to an employee who would be likely to leave for a different position in the Federal service in the absence of an incentive. In determining whether to provide additional retention incentive flexibility, we must balance the workforce needs of a single agency with the workforce needs of other agencies. An employee providing valuable services to one agency also may possess the competencies that are valuable to another agency.
We also need to be cautious when establishing new flexibilities that have the potential to result in costly and inefficient interagency competition. We agree with several of the commenters who expressed concerns about controlling any increased retention incentive flexibility and possible bidding wars between agencies. The regulations must include the appropriate approval criteria, controls, and monitoring and reporting requirements to help ensure agencies continue to use the retention incentive authority judiciously and responsibly.
In light of these concerns and the issues identified by commenters, we have not amended the regulations to establish a broad authority to pay a retention incentive to an employee who would be likely to leave for a different position in the Federal service in the absence of the incentive. We understand interagency compensation already exists and some agencies are disadvantaged because other agencies have the flexibility to pay higher salaries. However, we must balance single agency needs against the Governmentwide interest of avoiding costly and inefficient interagency competition.
In this regard, these final regulations provide agencies with the authority to pay a retention incentive to an employee who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office, facility, activity, or organization. The need to retain employees when facilities are closing or relocating is especially acute. Such employees may be more likely than others to seek other Federal employment, especially if they will otherwise be separated from Federal service when their office or facility closes or if they cannot relocate with their office or facility. At the same time, agencies typically must continue to perform mission-critical work at sites subject to closure and relocation.
In addition, no commenters objected to providing the authority to pay retention incentives to employees who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office or facility. Of those who commented on this specific proposal, all agreed such flexibility should be provided. Some commenters noted the importance of retaining employees with critical skills before a closure or relocation. One agency stressed the importance of maintaining operations and retaining needed expertise in such situations. Another recognized retention incentives alone may not be adequate to retain the services of employees facing eventual separation, but they might be of benefit in certain circumstances.
One agency stated the use of retention incentives for employees who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office or facility would require coordination between the losing and gaining agencies to ensure the employee is not harmed. We do not agree that coordination between the gaining and losing agency is necessary. The service agreement signed by the employee will define the terms and conditions of the employee's retention incentive.
The same agency noted in closure and relocation situations, reduction in force procedures may be an issue and would have to be considered and followed. We agree. Allowing agencies to pay retention incentives to employees who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office or facility does not affect any requirement for agencies to follow reduction in force procedures in appropriate circumstances.
This notice amends the retention incentive regulations at 5 CFR part 575, subpart C, by establishing a new § 575.315 to provide agencies with the authority to pay a retention incentive to an employee who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office, facility, activity, or organization. The regulations regarding this new flexibility are contained only in this section. However, § 575.315 includes numerous cross-references to provisions that must be followed in other sections of 5 CFR part 575, subpart C. While many of the provisions in § 575.315 are the same as the requirements for a retention incentive authorized for an employee likely to leave the Federal service, § 575.315 contains additional parameters. Under this final regulation, agencies will continue to have the authority to pay a retention incentive to an employee in a closure or relocation situation who would be likely to leave the Federal service in the absence of an incentive.
Under § 575.315(a)(1), an agency may approve a retention incentive for an individual employee when the agency determines—
• Given the agency's mission requirements and the employee's competencies, the agency has a special need for the employee's services that makes it essential to retain the employee in his or her current position during a period of time before the closure or relocation of the employee's office, facility, activity, or organization; and
• In the absence of a retention incentive, the employee would be likely to leave for a different position in the Federal service.
Section 575.315(a)(2) also provides an agency with the authority to approve a retention incentive for a group or category of employees if (1) the agency has a special need for the employees' services that makes it essential to retain the employees in their current positions during a period of time before a closure or relocation and (2) there is a high risk that a significant number of the employees in the group would be likely to leave for different positions in the Federal service in the absence of a retention incentive. An agency may not include an employee in a senior-level or scientific or professional, Senior Executive Service, or Executive Schedule position, or in certain other senior positions, in a group retention incentive authorization. (See §§ 575.315(a)(2) and 575.305(c).)
Agencies may use this new retention incentive flexibility for an employee in a position listed in § 575.303 (e.g., General Schedule or prevailing rate position) who is not excluded by § 575.304 (e.g., Presidential appointees). The employee must have a rating of record (or an official performance appraisal or evaluation under a system not covered by 5 U.S.C. chapter 43 or 5 CFR part 430) of at least “Fully Successful” or equivalent. In addition, the employee must have received a general or specific written notice from the agency that his or her position may or would be affected by the closure or relocation of the employee's office, facility, activity, or organization (e.g., the employee's position may or would move to a new geographic location or the employee's position may or would be eliminated). (See § 575.315(b).)
Under § 575.315(c), an agency must include in its retention incentive plan established under § 575.307(a) the conditions and requirements governing the use of retention incentives for employees who would be likely to leave for a different position in the Federal service before the closure or relocation of the employee's office, facility, activity, or organization. The plan also must designate the authorized agency officials who may approve such retention incentives, consistent with the approval requirements in § 575.307(b).
For each determination to pay a retention incentive under new § 575.315, an agency must document in writing the basis for authorizing the incentive and for the amount and timing of approved incentive payments. (See § 575.315(d).) When documenting the determination to pay a retention incentive for an individual employee who would be likely to leave for a different Federal position, agencies must consider the factors in § 575.306(b), as applicable, and—
• The extent to which the employee's departure for a different position in the Federal service would affect the agency's ability to carry out an activity, perform a function, or complete a project the agency deems essential to its mission before and during the closure or relocation period (e.g., the agency's need (1) to retain the employee to ensure minimal disruption in the performance of mission-critical functions, continuity of key operations, or minimal disruption of service to the public before and during the closure or relocation; (2) to train new employees who will move with the organization to the new geographic location; (3) to assist with the actual closure or relocation of the office, facility, activity, or organization; or (4) to perform similar mission-essential functions before or during the closure or relocation);
• The competencies possessed by the employee that are essential to retain; and
• The agency (which may be in the executive, judicial, or legislative branch) for which the employee would be likely
Agencies must address similar factors in documenting each determination to pay a retention incentive to a group or category of employees. (See § 575.315(d)(3).) In addition, the agency must narrowly define a targeted category of employees. The factors that may be appropriate are described in § 575.306(c)(2), except that each group retention incentive authorized under new § 575.315 may cover no more than one occupational series.
Under § 575.315(e), the payment options, calculations, and limitations in § 575.309 apply to the payment of retention incentives to employees who would be likely to leave for a different position in the Federal service before the closure or relocation of the employees' office, facility, activity, or organization, except an agency may not pay retention incentives in biweekly installments at the full retention incentive percentage rate established for the employee under § 575.309(a). Agencies will need to consider options to pay all or a significant portion of the retention incentive at the end of the full period of service required by the service agreement to maximize the effectiveness of the retention incentive. For example, an agency could pay the retention incentive in a single lump-sum payment at the end of the full period of service required by the service agreement. An agency also could pay the retention incentive in installment payments that are less than the full percentage retention incentive rate authorized. The agency could defer payment of a portion of the full payment (e.g., 50 percent or more) until the end of the full period of service required by the service agreement. Guidance on such strategic payment options is provided at
The service agreement provisions in §§ 575.310(b) through 575.310(e) apply to retention incentive service agreements for employees who would be likely to leave for a different position in the Federal service under this final regulation, subject to the additional requirements in § 575.315(f). The period of employment under such a service agreement may be of any length, not to exceed the date on which the employee's position is actually affected by the closure or relocation. The service agreement must include the conditions under which the agency must terminate the service agreement in § 575.310(d) and (e) and § 575.315(g), including the conditions under which the agency will pay an additional retention incentive payment for partially completed service. The service agreement also must notify employees that the agency will review the retention incentive at least annually to determine if payment is still warranted.
Under § 575.315(f), the service agreement termination provisions in § 575.311 apply to retention incentive service agreements for employees who would be likely to leave for a different position in the Federal service in the absence of such an incentive. Section 575.315(f) also requires agencies to review each determination to pay a retention incentive under new § 575.315 at least annually to determine if payment is still warranted. In addition, § 575.315(g)(2) requires an agency to terminate a retention incentive service agreement when—
• The closure or relocation is cancelled and no longer affects the employee's position;
• The employee moves to another position not affected by the closure or relocation (including another position within the same agency);
• For relocation situations, the employee accepts the agency's offer to relocate with his or her the office, facility, activity, or organization and, thus, the employee is no longer likely to leave for a different position in the Federal service; or
• The employee moves to a different position in the same office, facility, activity, or organization subject to closure or relocation not covered by the employee's service agreement. (The agency may authorize a new retention incentive under § 575.315 for the employee, as appropriate.).
If an authorized agency official terminates a service agreement under the conditions specified above, the employee is entitled to keep any retention incentive installment payments already received. Under certain conditions, the employee also may receive a portion or all of any amount attributable to completed service, similar to the provisions under § 575.311.
The Federal Workforce Flexibility Act of 2004 provided additional monitoring and reporting requirements for retention incentives authorized for employees who would be likely to leave for a different position in the Federal service in the absence of an incentive. Section 101(a)(3) provides a sense of Congress statement that OPM should be notified within 60 days after the date on which a retention incentive is paid to retain an employee who might otherwise leave one Government agency for another within the same geographic area. This section also states OPM should monitor the payment of such retention incentives to ensure they are an effective use of the Federal Government's funds and have not adversely affected Government agencies' ability to carry out their mission. In addition, section 101(c)(2) requires OPM to include in its report to Congress on recruitment, relocation, and retention incentives information and data on the use of retention incentives to prevent individuals from moving between positions in different agencies but the same geographic area (including the names of the agencies involved).
The frequent notification provisions in section 101(a)(3) of the Federal Workforce Flexibility Act of 2004 for the new retention incentive flexibility would be administratively difficult for agencies to implement and follow. Retention incentive monitoring and recordkeeping requirements in § 575.312 and 575.313(a) are already in place, and OPM and agencies will apply them to retention incentives authorized under new § 575.315 for employees who would be likely to leave for a different position in the Federal service in the absence of an incentive.
In addition, consistent with the reporting requirements in section 101(c)(2) the Federal Workforce Flexibility Act of 2004, § 575.315(i) specifies an additional annual reporting requirement for such retention incentives. This annual report will allow OPM to monitor and evaluate the use of the new retention incentive flexibility. Section 575.315(i) requires each agency to submit a written report to OPM by March 31 of each year on the use of retention incentives under § 575.315. In each of the years 2008 through 2010, the written report may be included in the agency's written report for OPM's report to Congress under § 575.313(b). Each report must include—
• A description of how the authority to pay retention incentives under § 575.315 was used in the agency during the previous calendar year;
• The number and dollar amount of retention incentives paid during the previous calendar year to individuals under § 575.315 by occupational series and grade, pay level, or other pay classification;
• The agency (which may be in the executive, judicial, legislative branch) to which each individual employee would be likely to leave in the absence of a retention incentive;
• Each individual employee's official worksite and the geographic location of the agency (which may be in the executive, judicial, or legislative branch) to which each individual employee would be likely to leave in the absence of a retention incentive; and
• Other information, records, reports, and data as OPM may require.
This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.
I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees.
Government employees, Reporting and recordkeeping requirements, Wages.
5 U.S.C. 1104(a)(2) and 5307; subparts A and B also issued under 5 U.S.C. 5753 and sec. 101, Public Law 108-411, 118 Stat. 2305; subpart C also issued under 5 U.S.C. 5754 and sec. 101, Public Law 108-411, 118 Stat. 2305; subpart D also issued under 5 U.S.C. 5755; subpart E also issued under 5 U.S.C. 5757 and sec. 207 of Public Law 107-273, 116 Stat. 1780.
(a)
(i) Given the agency's mission requirements and employee's competencies, the agency has a special need for the employee's services that makes it essential to retain the employee in his or her current position during a period of time before the closure or relocation of the employee's office, facility, activity, or organization; and
(ii) The employee would be likely to leave for a different position in the Federal service in the absence of a retention incentive.
(2) An agency in its sole and exclusive discretion, subject only to OPM review and oversight, may approve a retention incentive for a group or category of employees (subject to the exclusions in § 575.305(c)) under the conditions prescribed in this section when the agency determines that—
(i) Given the agency's mission requirements and employees' competencies, the agency has a special need for the employees' services that makes it essential to retain the employees in their current positions during a period of time before the closure or relocation of the employees' office, facility, activity, or organization; and
(ii) There is a high risk that a significant number of the employees in the group would be likely to leave for different positions in the Federal service in the absence of a retention incentive.
(b)
(1) The employee holds a position listed in § 575.303, and is not excluded by § 575.304;
(2) The employee's rating of record (or an official performance appraisal or evaluation under a system not covered by 5 U.S.C. chapter 43 or 5 CFR part 430) is at least “Fully Successful” or equivalent; and
(3) The agency has provided a general or specific written notice to the employee that his or her position may or would be affected by the closure or relocation of the employee's office, facility, activity, or organization (e.g., the employee's position may or would move to a new geographic location or the employee's position may or would be eliminated).
(c)
(d)
(i) The basis for determining the agency has a special need for the employee's (or group of employees') services that makes it essential to retain the employee(s), based on the agency's mission needs and the employee's (or group of employees') competencies, during a period of time before the closure or relocation of the employee's (or group of employees') office, facility, activity, or organization;
(ii) The basis for determining, in the absence of a retention incentive, the employee (or a significant number of employees in a group) would be likely to leave for a different position in the Federal service; and
(iii) The basis for establishing the amount and timing of the approved retention incentive payment and the length of the required service period.
(2) An agency must address the following factors when documenting the determination required by paragraph (a) of this section for an individual employee:
(i) The factors for authorizing a retention incentive for an individual employee described in § 575.306(b) as they relate to a determination made under paragraph (a)(1) of this section;
(ii) The extent to which the employee's departure for a different position in the Federal service would affect the agency's ability to carry out an activity, perform a function, or complete a project the agency deems essential to its mission before and during the closure or relocation period (e.g., the agency's need to retain the employee to ensure minimal disruption in the performance of mission-critical functions, continuity of key operations, or minimal disruption of service to the public before and during the closure or relocation; to train new employees who will move with the organization to the new geographic location; to assist with the actual closure or relocation of the office, facility, activity, or organization; or to perform similar mission-essential functions before or during the closure or relocation);
(iii) The competencies possessed by the employee that are essential to retain; and
(iv) The agency (which may be in the executive, judicial, or legislative branch) for which the employee would be likely
(3) An agency must address the following factors when documenting the determination required by paragraph (a) of this section for a group or category of employees:
(i) The factors for authorizing a retention incentive for a group or category of employees described in § 575.306(c) as they relate to the determination made under paragraph (a)(2) of this section; and
(ii) The factors in paragraphs (d)(2)(ii) through (d)(2)(iv) of this section as they relate to the determination made under paragraph (a)(2) of this section for the group or category of employees.
(4) An agency must narrowly define a targeted category of employees using factors that relate to the conditions described in paragraph (a)(2) of this section. The factors that may be appropriate are described in § 575.306(c)(2), except that each group retention incentive authorized under this section may cover no more than one occupational series.
(e)
(2) An agency may not pay retention incentives under this section in biweekly installments at the full retention incentive percentage rate established for the employee under § 575.309(a).
(f)
(2) Before paying a retention incentive under this section, an agency must require an employee, including each employee covered by a group retention incentive authorization, to sign a written service agreement to complete a specified period of employment with the agency.
(3) In no event, may the service period under a service agreement established under this paragraph extend past the date on which the employee's position is actually affected by the relocation or closure of the employee's office, facility, activity, or organization (e.g., the date the employee's position moves to a new geographic location or the date the employee's position is eliminated).
(4) In addition to the terminating conditions in § 575.310(d) and (e), the service agreement must include the conditions under which the agency must terminate the service agreement under paragraph (g) of this section, including the conditions under which the agency will pay an additional retention incentive payment for partially completed service under § 575.311.
(5) The service agreement must include a notification to the employee that the agency will review the determination to pay the retention incentive at least annually to determine whether payment is still warranted, as required by paragraph (g) of this section.
(g)
(2) In addition to the terminating conditions in § 575.311(a) and (b), an authorized agency official must terminate a retention incentive service agreement under this section if—
(i) The closure or relocation is cancelled or no longer affects the employee's position;
(ii) The employee moves to another position not affected by the closure or relocation (including another position within the same agency);
(iii) For relocation situations, the employee accepts the agency's offer to relocate with his or her the office, facility, activity, or organization and, thus, the employee is no longer likely to leave for a different position in the Federal service; or
(iv) The employee moves to a different position in the same office, facility, activity, or organization subject to closure or relocation that is not covered by the employee's service agreement. In this situation, the agency may authorize a new retention incentive for the employee under this section, as appropriate.
(3) If an authorized agency official terminates a service agreement under paragraph (g)(2)(ii) or (iv) of this section in cases in which the employee's movement to another position is by management action and not at the employee's request or under paragraph (g)(2)(i) of this section, the employee is entitled to retain any retention incentive payments that are attributable to completed service and to receive any portion of a retention incentive payment owed by the agency for completed service.
(4) If an authorized agency official terminates a service agreement in termination actions under paragraph (g)(2) of this section that are not covered by paragraph (g)(3) of this section, the employee is entitled to retain retention incentive payments previously paid by the agency that are attributable to the completed portion of the service period. If the employee received retention incentive payments that are less than the amount that would be attributable to the completed portion of the service period, the agency is not obligated to pay the employee the amount attributable to completed service, unless the agency agreed to such payment under the terms of the retention incentive service agreement.
(h)
(i)
(i) A description of how the authority to pay retention incentives under this section was used in the agency during the previous calendar year;
(ii) The number and dollar amount of retention incentives paid during the previous calendar year to individuals under this section by occupational series and grade, pay level, or other pay classification;
(iii) The agency (which may be in the executive, judicial, legislative branch) to which each employee would be likely to leave in the absence of a retention incentive;
(iv) Each employee's official worksite and the geographic location of the agency (which may be in the executive, judicial, or legislative branch) for which each employee would be likely to leave in the absence of a retention incentive; and
(v) Other information, records, reports, and data as OPM may require.
(2) In each of the years 2008 through 2010, the written report required by paragraph (i)(1) of this section may be included in the agency's written report to OPM for OPM's report to Congress under § 575.313(b).
Nuclear Regulatory Commission.
Final rule; correction.
This document corrects a final rule appearing in the
This correction is effective November 16, 2007, and is applicable to October 15, 2007.
Darani Reddick, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-3841, e-mail
As published, the final regulations contain errors which may prove to be misleading and need to be clarified.
Administrative practice and procedure, Classified information, Confidential business information, Freedom of information, Hazardous waste, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Sex discrimination.
Administrative practice and procedure, Claims, Fraud, Penalties.
Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f); Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f); sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105, 2.321 also issued under secs. 102, 103, 104, 105, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), (i), (o), 2236, 2282); sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Subpart C also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Section 2.301 also issued under 5 U.S.C. 554. Sections 2.343, 2.346, 2.712, also issued under 5 U.S.C. 557. Section 2.340 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.390 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).
Public Law 99-509, secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Sections 13.13 (a) and (b) also issued under section Pub. L. 101-410, 104 Stat. 890, as amended by section 31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final special condition; request for comments.
This special condition is issued for Supplemental Type Certificate (STC), Project Number ST2902RC-R, for the installation of a Pratt and Whitney PT6-67D Turbine Engine on Global Helicopter Technology Inc. (GHTI), Restricted Category, U.S. Army military surplus helicopters, Model UH-1H, type certificated under type certificate (TC) R00002RC. The installation of the PT6-67D on the Restricted Category UH-1H will have a novel or unusual design feature associated with the installation of the Full Authority Digital Engine Control (FADEC). The applicable airworthiness regulations do not contain adequate or appropriate safety standards to protect systems that perform critical control functions from the effects of a high-intensity radiated field (HIRF). This special condition contains the additional safety standards that the Administrator considers necessary to ensure that critical control functions of systems will be maintained when exposed to HIRF.
The effective date of this special condition is November 7, 2007. We must receive your comments by January 15, 2008.
You must mail two copies of your comments to: Federal Aviation Administration (FAA), Rotorcraft Directorate, Attention: Rules Docket (ASW-111), Docket No. SW015, Fort
Tyrone D. Millard, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0110; telephone 817-222-5439, fax 817-222-5961.
The FAA has determined that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. We are satisfied that new comments are unlikely. The FAA therefore finds that good cause exists for making this special condition effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, views, or data. The most helpful comments reference a specific portion of the special condition, explain the reason for any recommended change, and include supporting data.
We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about this special condition. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the
If you want us to let you know we received your comments on this special condition, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.
On January 9, 2007, DynCorp International applied for an STC for the installation of a Pratt & Whitney PT6-67D Turbine Engine on the GHTI, U.S. Army UH-1H, Restricted Category Helicopter, type certificated under Type Certificate R00002RC. This UH-1H Restricted Category helicopter is a utility/heavy lift helicopter with a two-bladed teetering main rotor system. It is to be powered by a single Pratt and Whitney PT6-67D engine that incorporates a full authority digital engine control (FADEC). The maximum gross weight of the aircraft is 9,500 pounds.
Under the provisions of 14 CFR 21.101, DynCorp International must show that the Engine Installation meets the applicable provisions of the regulations as listed below:
• 14 CFR part 29 as amended through and including Amendment 29-1, effective August 12, 1965.
• 14 CFR part 29.1529, Instructions for Continued Airworthiness, Amendment Number 20, effective September 11, 1980.
In accordance with 14 CFR part 36.1(a)(4), compliance with the noise requirements was not shown for the aircraft. Therefore, the engine installations under this supplemental type certificate are only eligible for external load operations excepted by § 36.1(a)(4) and defined under § 133.1(b). Any alteration to the aircraft for special purpose not identified above will require further FAA approval and in addition, may require noise testing, flight testing, or a combination of noise and flight testing.
In addition, the certification basis includes an equivalent safety finding pertaining to a limitation associated with repetitive high torque cycle events that is not relevant to this special condition.
If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this STC because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
The FAA issues special conditions as defined in § 11.19, and issued in accordance with § 11.38, and they become part of the STC certification basis under § 21.17(a)(2).
Special conditions are initially applicable to the model, the modification, or a combination of the model and the modification for which they are issued. Should this STC be revised to include any other model that incorporates the same novel or unusual design feature, this special condition would also apply to the other model under the provisions of § 21.101.
The GHTI UH-1H Restricted Category Helicopter with a Pratt & Whitney PT6-67D engine installed will incorporate the following novel or unusual design features: Electrical, electronic, or a combination of electrical and electronic (electrical/electronic) systems, specifically a FADEC, that will be performing critical control functions for the continued safe flight and landing of the helicopter. A FADEC is an electronic device that performs the critical functions of engine control during flight operations.
The DynCorp International installation of the PT6-67D in the UH-1H helicopter, at the time of application, was identified as incorporating an electronic FADEC system. After the design is finalized, DynCorp International will provide the FAA with a preliminary hazard analysis. This analysis will identify the critical control functions that are required for safe flight and landing that are performed by the FADEC system.
Recent advances in technology have given rise to the application in aircraft designs of advanced electrical/electronic systems that perform critical control functions. These advanced systems respond to the transient effects of induced electrical current and voltage caused by HIRF incidents on the external surface of the helicopter. These induced transient currents and voltages can degrade the performance of the electrical/electronic systems by damaging the components or by upsetting the systems' functions.
Furthermore, the electromagnetic environment has undergone a transformation not envisioned by the current application of § 29.1309(a). Higher energy levels radiate from operational transmitters currently used for radar, radio, and television. Also, the number of transmitters has increased significantly.
Existing aircraft or alteration certification requirements are inappropriate in view of these technological advances. In addition, the FAA has received reports of some significant safety incidents and accidents involving military aircraft equipped with advanced electrical/electronic systems when they were exposed to electromagnetic radiation.
The combined effects of the technological advances in helicopter design and the changing environment have resulted in an increased level of
On July 30, 2007, we issued a final HIRF rule (72 FR 44016, August 6, 2007). This rule provides standards to protect aircraft electrical and electronic systems from HIRFs. It was effective September 5, 2007. However, that rule included provisions that provide relief from the new testing requirements for equipment previously certificated under HIRF special conditions issued in accordance with 14 CFR § 21.16. To obtain this relief, the applicant must be able to—
(1) Provide evidence that the system was the subject of HIRF special conditions issued before December 1, 2007;
(2) Show that there have been no system design changes that would invalidate the HIRF immunity characteristics originally demonstrated under the previously issued HIRF special conditions; and
(3) Provide the data used to demonstrate compliance with the HIRF special conditions under which the system was previously approved.
DynCorp's FADEC installation is eligible for this relief provided in 14 CFR § 29.1317(d) of the final HIRF rule. However, to meet their HIRF requirements, they must comply with this Special Condition, which is based on similar, historical HIRF protections requirements.
These special conditions will require the systems that perform critical control functions, as installed in the aircraft, to meet certain standards based on either a defined HIRF environment or a fixed value using laboratory tests.
The applicant may demonstrate that the operation and operational capabilities of the installed electrical/electronic systems that perform critical control functions are not adversely affected when the aircraft is exposed to the defined HIRF test environment. The FAA has determined that the test environment defined in Table 1 is acceptable for critical control functions in helicopters.
The applicant may also demonstrate by a laboratory test that the electrical/electronic systems that perform critical control functions can withstand a peak electromagnetic field strength in a frequency range of 10 KHz to 18 GHz. If a laboratory test is used to show compliance with the defined HIRF environment, no credit will be given for signal attenuation due to installation. A level of 200 volts per meter (v/m) is more appropriate for critical functions during VFR operations. Laboratory test levels are defined according to RTCA/DO-160D Section 20 Category Y (200 v/m and 300 mA). As defined in DO-160D Section 20, the test levels are defined as the peak of the root means squared (rms) envelope. As a minimum, the modulations required for RTCA/DO-160D Section 20 Category Y will be used. Other modulations should be selected as the signal most likely to disrupt the operation of the system under test, based on its design characteristics. For example, flight control systems may be susceptible to 3 Hz square wave modulation while the video signals for electronic display systems may be susceptible to 400 Hz sinusoidal modulation. If the worst-case modulation is unknown or cannot be determined, default modulations may be used. Suggested default values are a 1 KHz sine wave with 80 percent depth of modulation in the frequency range from 10 KHz to 400 MHz and 1 KHz square wave with greater than 90 percent depth of modulation from 400 MHz to 18 GHz. For frequencies where the unmodulated signal would cause deviations from normal operation, several different modulating signals with various waveforms and frequencies should be applied.
Applicants must perform a preliminary hazard analysis to identify electrical/electronic systems that perform critical control functions. The term “critical control” means those functions whose failure would contribute to or cause an unsafe condition that would prevent the continued safe flight and landing of the helicopter. The FADEC system identified by the hazard analysis as performing critical control functions is required to have HIRF protection.
Compliance with HIRF requirements will be demonstrated by tests, analysis models, similarity with existing systems, or a combination of these methods. The two basic options of either testing the FADEC system to the defined environment or laboratory testing may not be combined. The laboratory test allows some frequency areas to be undertested and requires other areas to have some safety margin when compared to the defined environment. The areas required to have some safety margin are those shown, by past testing, to exhibit greater susceptibility to adverse effects from HIRF; and laboratory tests, in general, do not accurately represent the aircraft installation. Service experience alone will not be acceptable since such experience in normal flight operations may not include an exposure to HIRF. Reliance on a system with similar design features for redundancy, as a means of protection against the effects of external HIRF, is generally insufficient because all elements of a redundant system are likely to be concurrently exposed to the radiated fields.
The modulation that represents the signal most likely to disrupt the operation of the system under test, based on its design characteristics should be selected. For example, flight control systems may be susceptible to 3 Hz square wave modulation. If the worst-case modulation is unknown or cannot be determined, default modulations may be used. Suggested default values are a 1 KHz sine wave with 80 percent depth of modulation in the frequency range from 10 KHz to 400 MHz, and 1 KHz square wave with greater than 90 percent depth of modulation from 400 MHz to 18 GHz. For frequencies where the unmodulated signal would cause deviations from normal operation, several different modulating signals with various waveforms and frequencies should be applied.
Acceptable system performance would be attained by demonstrating that the critical control function components of the system under consideration continue to perform their intended function during and after exposure to required electromagnetic fields. Deviations from system specifications may be acceptable but must be independently assessed by the FAA on a case-by-case basis.
As discussed previously, this special condition is applicable to Supplemental Type Certificate (STC) Project Number ST2902RC-R, for the installation of a Pratt & Whitney PT6-67D turbine engine in GHTI UH-1H military surplus helicopters type certificated under TC R00002RC. Should DynCorp International apply at a later date for a change to the STC to include another model incorporating the same novel or unusual design feature, the special condition would apply to that STC modification as well under the provisions of § 21.101.
This action affects only certain novel or unusual design features associated with this STC project. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the helicopter.
The substance of this special condition has been subjected to a notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting this special condition upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.
Aircraft, Air transportation, Aviation safety, Rotorcraft, Safety.
The authority citation for this special condition is as follows:
42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113, 44701-44702, 44704, 44709, 44711, 44713, 44715, 45303.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special condition is issued as part of the supplemental type certification basis for STC Project ST2902RC-R, installation of PT6-67D on Global Helicopter Technology, Inc. (GHTI), Model UH-1H, Restricted Category Helicopters, type certificated under TC R00002RC.
1. Each system that performs critical control functions must be designed and installed to ensure that the operation and operational capabilities of these critical control functions are not adversely affected when the helicopter is exposed to high intensity radiated fields external to the helicopter.
2. For the purpose of this special condition, critical control functions are defined as those functions, whose failure would contribute to, or cause, an unsafe condition that would prevent the continued safe flight and landing of the aircraft.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; correction.
The FAA is correcting a typographical error in an existing airworthiness directive (AD) that was published in the
Effective November 16, 2007.
You may examine the AD docket on the Internet at
Tim Backman, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-2797; fax (425) 227-1149.
On October 24, 2007, the FAA issued AD 2007-22-10, amendment 39-15246 (72 FR 61796, November 1, 2007), for all Airbus Model A330-200, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. The AD requires repetitive detailed visual inspections for cracking of the LH (left hand) and RH (right hand) wing MLG (main landing gear) rib 6 aft bearing lugs, and repair or replacement of the MLG rib 6 fitting, if necessary.
As published, Table 2 of the AD states that certain repetitive inspection intervals apply to Model “A300-300 series airplanes, except WV27.” That sentence contains a typographical error and, instead, should state that those repetitive inspection intervals apply to Model “A340-300 series airplanes, except WV27.”
No other part of the regulatory information has been changed; therefore, the final rule is not republished in the
The effective date of this AD remains November 16, 2007.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes in the National Airspace System, such as the commissioning of new navigational facilities, adding of new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective November 16, 2007. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 16, 2007.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK. 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, ISMLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This Rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective November 16, 2007. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of November 16, 2007.
Availability of matters incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Harry J. Hodges, Flight Procedure
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPs, Takeoff Minimums and/or ODPs. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure before adopting these SIAPs, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Office of the Secretary, Department of Defense.
Final rule.
This final rule expands the geographic scope of the TRICARE Retiree Dental Program (TRDP) to overseas locations not currently covered by the program. At this time, TRDP is applicable only in the 50 United States (U.S.) and the District of Columbia, Canada, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands. Expanding the geographic scope of the program will ensure that all TRICARE-eligible retirees are eligible for the same dental benefits, regardless of their location. There are no additional Government costs associated with this final expansion of TRDP overseas as TRDP costs are borne entirely by enrollees through premium payments.
Col. Gary Martin, Office of the Assistant Secretary of Defense (Health Affairs), TRICARE Management Activity, telephone (703) 681-0039.
This final rule expands the geographic scope of TRDP to overseas locations not currently covered by the program. Although 10 U.S.C. 1076c does not restrict the geographic availability of the TRDP, per 32 CFR 199.22(b)(3), TRDP is currently limited to the 50 United States and the District of Columbia, Canada, Puerto Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands. Expanding the geographic scope of the program will ensure that all TRICARE-eligible retirees are eligible for the same dental benefits, regardless of their location. This expansion of the geographic scope of the TRDP program is based upon feedback from the TRICARE-eligible retiree community which indicated that there is a demand for this program in all overseas locations.
Although the TRDP is administered in a manner similar to the TRICARE Dental
Therefore, there are no additional Government costs associated with this expansion of TRDP coverage overseas. Specific methods of TRDP program administration, payment rates and procedures, provider licensure and certification requirements, and other program elements may differ by location to the extent necessary for the effective and efficient operation of the plan. These differences may include, but are not limited to, specific provisions for preauthorization of care, varying licensure and certification requirements for foreign providers, and other differences based on limitations in the availability and capabilities of the Uniformed Services overseas dental treatment facilities and a particular nation's civilian sector providers in certain areas.
We provided a 60-day comment period on the proposed rule which was published in the
Executive Order 12866 directs agencies to assess all costs and benefits available, regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget (OMB) if it meets any one of a number of specified conditions, including having an annual effect on the national economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. DoD has examined the economic, legal, and policy implications of this final rule and has concluded that it is a significant regulatory action because it may raise novel legal or policy issues of enhancing the dental health of military retirees and their dependents who reside overseas. The changes set forth in the final rule to the existing regulation do not change the basic TRDP benefit structure.
The Regulatory Flexibility Act (RFA) requires that each Federal Agency prepare and make available for public comment, a regulatory flexibility analysis when the agency issues a Regulation which would have a significant impact on a substantial number of small entities. This final rule does not have a significant impact on small entities.
This final rule is not a major rule under the Congressional Review Act because its economic impact will be less than $100 million.
Executive Order 13132 requires that each Federal Agency shall consult with State and local officials and obtain their input if a rule has federalism implications which 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. We have examined the impact of the final rule under Executive Order 13132 and it does not have policies that have federalism implications that would 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; therefore, consultation with State and local officials is not required.
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3511) and which has been approved by OMB under control number 0720-0015. This rule will not change this requirement, but will only increase the number of beneficiaries who are eligible to enroll in the TDRP by approximately 100,000 people. Public reporting burden for this collection of information is estimated to average 15 minutes 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. Respondents should be aware that notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
This rule does not contain unfunded mandates. It does not contain a Federal mandate that may result in the expenditure by State, local and tribunal governments, in aggregate, or by the private sector, of $100 million or more in any one year.
Claims, Dental health, Health care, Health insurance, Individuals with disabilities, Military personnel.
5 U.S.C. 301; 10 U.S.C. chapter 55.
(b) * * *
(3)
(ii) The Assistant Secretary of Defense (Health Affairs) (ASD (HA)) may extend the TRDP to geographic areas other than those specified in paragraph (b)(3)(i) of this section. In extending the TRDP overseas, the ASD (HA) is authorized to establish program elements, methods of administration, and payment rates and procedures that are different from those in effect for the areas specified in paragraph (b)(3)(i) of this section to the extent the ASD (HA), or designee, determines necessary for the effective and efficient operation of the TRDP. These differences may include, but are not limited to, specific provisions for preauthorization of care, varying licensure and certification requirements for foreign providers, and other differences based on limitations in the availability and capabilities of the Uniformed Services overseas dental treatment facilities and a particular nation's civilian sector providers in certain areas. The Director, TRICARE Management Activity shall issue guidance, as necessary, to implement the provisions of this paragraph. TRDP enrollees residing in overseas locations will be eligible for the same benefits as enrollees residing in the continental
Department of the Army, DoD.
Final rule; removal.
This action removes 32 CFR Part 519, Publication of Rules Affecting the Public, published in the
Effective November 16, 2007.
U.S. Army Records Management and Declassification Agency, (AAHS-RDR-C), 7701 Telegraph Road, Alexandria, VA 22315-3860.
Ms. Brenda Bowen, (703) 428-6422.
The Office of the Administrative Assistant to the Secretary of the Army, is the proponent for the regulation represented in 32 CFR part 519, and has concluded this regulation does not affect the public. The Army is not required to publish matters that are related solely to the internal personnel rules and practices of any agency. Therefore, it would be helpful in avoiding confusion with the public if 32 CFR part 519, is removed.
Administrative practices and procedures.
U.S. Marine Corps, DoD.
Final rule.
The U.S. Marine Corps, as a principal component of the Department of Navy, is making this administrative amendment to combine like systems by removing an exempted system of records notice from its inventory, MMN00018, “Base Security Incident Report System”. The records will be maintained in the Department of Navy's exempted system of record notice NM05580-1, “Security Incident System”. Therefore, the MMN00018, “Base Security Incident Report System” exemption rule system is being deleted.
November 16, 2007.
Ms. Tracy D. Ross at (703) 614-4008.
The Department of Navy's exempted system of record notice NM05580-1, “Security Incident System” was published in the
Privacy.
5 U.S.C. 552.
Environmental Protection Agency (EPA).
Final rule; technical amendment.
EPA issued a final rule in the
This final rule is effective November 16, 2007.
EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2006-0995. To access the electronic docket, go to
Phillip V. Errico, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number: (703) 305-6663; e-mail address:
The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under the
In addition to using regulations.gov, you may access this
FR Doc. 07-9428 published in the
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment, because the use of notice and comment procedures are unnecessary to effectuate this correction. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
No. This action only corrects the amendatory language for a previously published final rule and does not impose any new requirements. EPA's compliance with the statutes and Executive Order for the underlying rule is discussed in Unit VI. of the May 16, 2007, final rule (72 FR 27456).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
21 U.S.C. 321(q), 346a and 371.
(a)
Animal and Plant Health Inspection Service, USDA.
Proposed rule; reopening of comment period.
We are reopening the comment period for our proposed rule that would amend and republish the list of select agents and toxins that have the potential to pose a severe threat to animal or plant health, or to animal or plant products. This action will allow interested persons additional time to prepare and submit comments.
We will consider all comments that we receive on or before December 3, 2007.
You may submit comments by either of the following methods:
•
•
For information concerning the regulations in 7 CFR part 331, contact Ms. Gwendolyn Burnett, Select Agent Program Compliance Manager, PPQ, APHIS, 4700 River Road Unit 2, Riverdale, MD 20737-1231, (301) 734-5960.
For information concerning the regulations in 9 CFR part 121, contact Dr. Frederick D. Doddy, Veterinary Medical Officer, Animals, Organisms and Vectors, and Select Agents, VS, APHIS, 4700 River Road Unit 2, Riverdale, MD 20737-1231, (301) 734-5960.
On August 28, 2007, we published in the
Comments on the proposed rule were required to be received on or before October 29, 2007. We are reopening the comment period on Docket No. APHIS-2007-0033 for an additional 15 days from the date of this notice. This action will allow interested persons additional time to prepare and submit comments. We will also consider all comments received between October 30, 2007, and the date of this notice.
7 U.S.C. 8401; 7 CFR 2.22, 2.80, 371.3, and 371.4.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for BHTC Model 430 helicopters. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The aviation authority of Canada, with which we have a bilateral agreement, states in the MCAI:
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
The cumulative effect of individual part tolerances resulting in the total assemblage of those parts being out of tolerance could result in the tail rotor yoke striking another part other than the flapping stop (parts interference) cited in the MCAI. Also, the misalignment of the tail rotor counterweight bellcrank may result in higher tail rotor pedal forces and a higher pilot workload after failure of the #1 hydraulic system. Both parts interference and the misaligned counterweight bellcrank create an unsafe condition. The proposed AD would require actions that are intended to address these unsafe conditions.
We must receive comments on this proposed AD by December 17, 2007.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Tyrone Millard, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0111, telephone (817) 222-5439, fax (817) 222-5961.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2007-04, dated April 5, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for this Canadian-certificated product. The MCAI states:
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
Because the cumulative effect of the tolerances on the various parts may result in the total assemblage outboard of the counterweight bellcrank being out of tolerance, the tail rotor yoke may contact the nut, P/N 222-012-731-001, before contacting the flapping stop, resulting in less tail rotor travel. Additionally, the manufacturer has indicated that the tail rotor counterweight bellcranks may be misaligned, resulting in higher tail rotor pedal forces and higher pilot workload after failure of the #1 hydraulic system. Both the parts interference and the higher pedal forces constitute unsafe conditions.
You may obtain further information by examining the manufacturer's service bulletin and the MCAI in the AD docket.
Bell Helicopter Textron has issued Service Bulletin 430-07-39, dated January 9, 2007. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information.
This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and the service information. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in the “Differences Between the FAA AD and the MCAI” section in the proposed AD.
We estimate that this proposed AD would affect about 58 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. A replacement yoke would cost about $21,218, assuming the part is no longer under warranty. However, because the service information lists this part as covered under warranty, we have assumed that there will be no charge for this part, if needed. Therefore, as we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these assumptions and figures, we estimate the cost of the proposed AD on U.S. operators to be $9,280, or $160 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by December 17, 2007.
(b) None.
(c) This AD applies to Bell Helicopter Textron Canada (BHTC) Model 430 helicopters with serial numbers 49001 through 49122, certificated in any category.
(d) The mandatory continuing airworthiness information (MCAI) states:
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
This “possibility of parts interference” occurs because the cumulative effect of the tolerances on the various parts may result in the total assemblage outboard of the counterweight bellcrank being out of tolerance and the tail rotor yoke may contact nut, P/N 222-012-731-001, before contacting the flapping stop. Further, the manufacturer has indicated that the tail rotor counterweight bellcranks may be misaligned resulting in higher tail rotor pedal forces and higher pilot workload after failure of the #1 hydraulic system. Both the parts interference and the higher pedal forces constitute unsafe conditions.
(e) Within the next 150 hours time-in-service (TIS) or at the next annual inspection, whichever occurs first, unless already done, do the following actions.
(1) Adjust the rigging of the tail rotor pitch change mechanism in accordance with the Accomplishment Instructions, Paragraphs 1 and 2, in Bell Helicopter Textron Alert Service Bulletin 430-07-39, dated January 9, 2007 (ASB).
(2) If either at full left pedal position or full right pedal position a gap exists between the tail rotor yoke and the flapping stop, replace the tail rotor yoke with an airworthy tail rotor yoke.
(3) If no gap exists between the tail rotor yoke and the flapping stop at either full right or full left pedal position, measure the gap between the tail rotor yoke and nut, P/N 222-012-731-001, adjust the tail rotor pitch change mechanism, and adjust the tail rotor pedal forces in accordance with the Accomplishment Instruction, Paragraphs 4 through 6 of the ASB.
(f) This AD requires compliance within the next 150 hours TIS or at the next annual inspection, whichever occurs first, instead of “at the next 150 hour or annual inspection but no later than 31 December 2007.”
(g) Air Transport Association of America (ATA) Code JASC 6720: Tail Rotor Control System, Tail Rotor Pitch Change.
(h) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, Safety Management Group, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tyrone Millard, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0111, telephone (817) 222-5439, fax (817) 222-5961.
(2) Airworthy Product: Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(i) MCAI Transport Canada Airworthiness Directive CF-2007-04, dated April 5, 2007, and Bell Helicopter Textron Alert Service Bulletin (ASB) No. 430-07-39, dated January 9, 2007, contain related information.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for BHTC Model 222, 222B, and 222U helicopters. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The aviation
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
We must receive comments on this proposed AD by December 17, 2007.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Tyrone Millard, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0111, telephone (817) 222-5439, fax (817) 222-5961.
The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and
This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Transport Canada, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive No. CF-2007-07, dated April 11, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the Canadian-certificated products. The MCAI states:
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
Because the cumulative effect of the tolerances on the various parts may result in the total assemblage outboard of the counterweight bellcrank being out of tolerance, the tail rotor yoke may contact nut, P/N 222-012-731-001, before contacting the flapping stop, resulting in less tail rotor travel. Additionally, the manufacturer has indicated that the tail rotor counterweight bellcranks may be misaligned resulting in higher tail rotor pedal forces and higher pilot workload after failure of the No. 1 hydraulic system. Both the parts interference and the higher pedal forces constitute unsafe conditions.
You may obtain further information by examining the service information and the MCAI in the AD docket.
Bell Helicopter Textron has issued Alert Service Bulletin (ASB) 222-07-104 and ASB 222U-07-75, both dated January 9, 2007. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information.
This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.
We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in the “Differences Between the FAA AD and the MCAI” section in the proposed AD.
We estimate that this proposed AD would affect about 86 products of U.S. registry. Also, we estimate that it would take 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. A
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments by December 17, 2007.
(b) None.
(c) This AD applies to Bell Helicopter Textron Canada (BHTC) Model 222, serial numbers (S/N) 47006 through 47089; Model 222B, S/N 47131 through 47156, and Model 222U, all serial numbers, helicopters, certificated in any category.
(d) The mandatory continuing airworthiness information (MCAI) states:
It has been determined that the existing rigging procedures for the tail rotor pitch change mechanism have to be changed due to possibility of parts interference.
This “possibility of parts interference” occurs because the cumulative effect of the tolerances on the various parts may result in the total assemblage outboard of the counterweight bellcrank being out of tolerance and the tail rotor yoke may contact nut, P/N 222-012-731-001, before contacting the flapping stop. Further, the manufacturer has indicated that the tail rotor counterweight bellcranks may be misaligned resulting in higher tail rotor pedal forces and higher pilot workload after failure of the No. 1 hydraulic system. Both the parts interference and the higher pedal forces constitute unsafe conditions.
(e) Within the next 150 hours time-in-service (TIS) or at the next annual inspection, whichever occurs first, unless already done, do the following actions.
(1) Adjust the rigging of the tail rotor pitch change mechanism in accordance with the Accomplishment Instructions, Paragraphs 1 and 2, of the applicable Bell Helicopter Textron Alert Service Bulletin (ASB) listed in the following Table 1:
(2) If either at full left pedal position or full right pedal position a gap exists between the tail rotor yoke and the flapping stop, replace the tail rotor yoke with an airworthy tail rotor yoke.
(3) If no gap exists between the tail rotor yoke and the flapping stop at either full right or full left pedal position, measure the gap between the tail rotor yoke and nut, P/N 222-012-731-001, adjust the tail rotor pitch change mechanism, and adjust the tail rotor pedal forces in accordance with the Accomplishment Instruction, Paragraphs 4 through 6, of the ASB listed in Table 1 of the AD.
(f) This AD requires compliance within the next 150 hours TIS or at the next annual inspection, whichever occurs first, instead of “at the next 150 hour or annual inspection but no later than 31 December 2007.
(g) Air Transport Association of America (ATA) Code JASC 6720: Tail Rotor Control System, Tail Rotor Pitch Change.
(h) The following provisions also apply to this AD:
(1) Alternative Methods of Compliance (AMOCs): The Manager, Safety Management Group, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tyrone Millard, Aerospace Engineer; FAA, Rotorcraft Directorate, Rotorcraft Standards Staff, Fort Worth, Texas 76193-0111, telephone (817) 222-5439, fax (817) 222-5961.
(2) Airworthy Product: Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to assure the product is airworthy before it is returned to service.
(3) Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget (OMB) has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(i) MCAI Transport Canada Airworthiness Directive CF-2007-07, dated April 11, 2007, and Bell Helicopter Textron ASB Nos. 222-07-104 and 222U-07-75, both dated January 9, 2007, contain related information.
National Indian Gaming Commission, DOI.
This notice extends the period for comments on the proposed definition for electronic or electromechanical facsimile (72 FR 60482), Class II game classification standards (72 FR 60483), Class II technical standards (72 FR 60495), and Class II minimum internal control standards (72 FR 60508) published in the
The comment period for the proposed definition for electronic or electromechanical facsimile, Class II game classification standards, Class II technical standards, and Class II minimum internal control standards regulations is extended from December 10, 2007, to January 24, 2008.
Penny Coleman, John Hay, or Michael Gross at 202/632-7003; fax 202/632-7066 (these are not toll-free numbers).
Congress established the National Indian Gaming Commission (NIGC or Commission) under the Indian Gaming Regulatory Act of 1988 (25 U.S.C. 2701 et seq.) (IGRA) to regulate gaming on Indian lands. On October 24, 2007, the proposed definition for electronic or electromechanical facsimile (72 FR 60482), Class II game classification standards (72 FR 60483), Class II technical standards (72 FR 60495), and Class II minimum internal control standards (72 FR 60508) regulations were published in the
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking.
This document contains proposed regulations that provide guidance under sections 381(c)(4) and (c)(5) of the Internal Revenue Code (Code) relating to the accounting method or combination of methods, including the inventory method, to use after certain corporate reorganizations and tax-free liquidations. These proposed regulations clarify and simplify the existing regulations under sections 381(c)(4) and (c)(5). The regulations affect corporations that acquire the assets of other corporations in transactions described in section 381(a).
Written or electronic comments and requests for a public hearing must be received by February 14, 2008.
Send submissions to: CC:PA:LPD:PR (REG-151884-03), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-151884-03), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, Cheryl Oseekey at (202) 622-4970; concerning submissions of comments and requests for a hearing, Kelly Banks at (202) 622-7180 (not toll-free numbers).
Section 381 of the Code was enacted in 1954 to provide statutory authority for determining the carryover of certain tax attributes, including accounting methods, in certain corporate reorganizations and tax-free liquidations. Regulations implementing section 381(c)(4) were issued on August 5, 1964 (29 FR 11263). On August 23, 1972, the IRS proposed to revise these regulations (37 FR 16947). On December 23, 1998, the IRS withdrew the regulations that had been proposed in 1972 (63 FR 71047). Regulations implementing section 381(c)(5) were issued on January 15, 1975 (40 FR 2684).
Section 1.381(c)(4)-1 generally provides that after a section 381(a) transaction, the accounting method or combination of methods used by the parties to the section 381(a) transaction prior to the transaction will continue. However, when the accounting methods used prior to the section 381(a) transaction cannot continue to be used after the transaction, § 1.381(c)(4)-1 identifies the accounting method(s) to use after the transaction. Section 1.381(c)(5)-1 provides similar rules regarding inventory accounting methods.
The IRS and the Treasury Department are aware that the current regulations are inconsistent in the treatment of adjustments for inventory methods and for other accounting methods, and that there is confusion regarding the appropriate procedure for making accounting method changes required by section 381. In a notice of proposed rulemaking (68 FR 25310) issued on May 12, 2003, regarding sections 263A and 448, the IRS and the Treasury Department indicated that guidance regarding the accounting method(s) to be used after a section 381(a) transaction was contemplated. This notice of proposed rulemaking provides that guidance.
This notice of proposed rulemaking generally continues many of the provisions of the regulations originally issued in 1964 and 1975 regarding the accounting method or combination of methods to be used by the corporation that acquires the assets of another corporation in a section 381(a) transaction. However, the following
Under the current regulations, there are several inconsistencies between the rules that apply to accounting method changes made pursuant to section 381(c)(4) and those made under section 381(c)(5). The proposed regulations generally make the rules that apply to accounting method changes made pursuant to section 381(c)(4) consistent with the rules that apply to changes made under section 381(c)(5).
In general, the current regulations under both sections 381(c)(4) and (c)(5) provide that the accounting method to be used after a section 381(a) transaction by the party that survives the reorganization or liquidation (acquiring corporation) will depend on whether (1) The parties to the section 381(a) transaction used (or did not use) the same accounting method on the date of the section 381(a) transaction, and (2) The businesses of the parties to the section 381(a) transaction are combined after the transaction by the party that survives the transaction. If different methods are used and the combined corporations are operated as a single trade or business after the section 381(a) transaction, then the principal and special method (including the inventory method) rules apply.
The parties to the section 381(a) transaction determine the principal method by applying various tests under the regulations. The applicable test depends on whether the method under consideration is the overall accounting method, the method for a particular type of goods for which the Code or regulations provide a special method or methods, or an inventory method. The rules under the current regulations also address situations in which there is no principal method, or the principal method does not clearly reflect income. Currently, the regulations provide that if there is no principal method after applying the appropriate test or if that method is impermissible, the Commissioner shall select a suitable accounting method to use after the transaction.
The IRS and the Treasury Department believe that the various tests in the regulations and the need for the Commissioner in some situations to select a suitable accounting method to be used after the transaction have caused confusion and have led to controversies between taxpayers and the IRS. In order to eliminate the confusion and uncertainty and provide simplicity and uniformity, the IRS and the Treasury Department propose to provide rules that are similar to the current regulations but have a default rule to determine the principal method.
The proposed regulations generally provide under both sections 381(c)(4) and (c)(5) that the accounting method to be used after a section 381(a) transaction by the acquiring corporation will depend on whether (1) The businesses of the parties to the section 381(a) transaction are combined after the transaction by the acquiring corporation, and (2) The method is permissible. As under the current regulations, if the trades or businesses of the parties to the section 381(a) transaction are operated as separate trades or businesses after the section 381(a) transaction, an accounting method used by the parties prior to the section 381(a) transaction carries over and is used by the acquiring corporation provided the method is permissible (carryover method). If the trades or businesses of the parties to the section 381(a) transaction are not operated as separate trades or businesses after the section 381(a) transaction, then the acquiring corporation must determine and use the principal method.
The proposed regulations provide a general rule that the principal method generally is the accounting method used by the acquiring corporation prior to the section 381(a) transaction. However, there are two exceptions. First, if the acquiring corporation does not have an accounting method for a particular item or type of goods, the principal method is the accounting method for the item or type of goods used by the distributor or transferor corporation prior to the section 381(a) transaction. Second, if the distributor or transferor corporation is larger than the acquiring corporation, the principal methods for the overall accounting method and for the accounting method for a particular item or type of goods are the methods used by the distributor or transferor corporation prior to the section 381(a) transaction. The principal method continues to be determined separately for the overall accounting method and for any special accounting methods, such as an accounting method used for a long-term contract.
Under the proposed regulations, whether the distributor or transferor corporation is larger than the acquiring corporation is determined using the test in § 1.381(c)(4)-1 of the current regulations for determining the overall principal method for methods other than inventory. Therefore, the parties to the section 381(a) transaction will compare their relative sizes in terms of total asset bases and gross receipts for both the overall accounting method and for special accounting methods. For inventory, whether the distributor or transferor corporation is larger than the acquiring corporation will be determined based on the value of the inventory using a test similar to the test in § 1.381(c)(5)-1 of the current regulations. The principal method is the inventory method used by the party with the largest fair market value of a particular type of goods. The regulations provide a simplified election that allows the acquiring corporation to apply the principal method test by comparing the value of the entire inventories of the parties to the section 381(a) transaction rather than the value of each particular type of goods.
Under the proposed regulations, if the carryover method or principal method is an impermissible method, the acquiring corporation generally must file a request to change to a permissible accounting method. However, if the carryover method is impermissible solely because only a single accounting method with respect to a particular item may be used by the acquiring corporation on the date of the section 381(a) transaction regardless of the number of separate and distinct trades or businesses operated on that date, the acquiring corporation must use the principal method as determined under § 1.381(c)(4)-1(c) of the proposed regulations.
All parties to a section 381(a) transaction may request permission to change their accounting methods for the taxable year in which the transaction occurs or is expected to occur under section 446(e). However, the acquiring corporation need not secure the Commissioner's consent to continue a carryover method or use the principal method.
Additionally, there is confusion under the current regulations as to whether an accounting method is established immediately upon use of a carryover method or principal method if the method is impermissible, and as to the appropriate remedy if an acquiring corporation discovers after the deadline for filing a request to change an accounting method for the year of the section 381(a) transaction that the carryover method or principal method is an impermissible method. The proposed regulations make it clear that every accounting method, whether it is a carryover method or a principal method, and whether the method is a permissible or impermissible method, is an established accounting method. Therefore, if an acquiring corporation
Under the current regulations in § 1.381(c)(4)-1, once a principal method is determined, any party to the section 381(a) transaction that is required to change its accounting method to the principal method must compute the adjustment necessary to reflect the change by determining the difference between its tax liability as reflected on its actual return computed using its old accounting method, and the tax liability reflected on a hypothetical federal income tax return using the new accounting method. This adjustment is computed as if, on the date of the section 381(a) transaction, each changing corporation initiates an accounting method change. If there is an increase or decrease in tax liability, the acquiring corporation takes into account the hypothetical increase or decrease in tax in the taxable year that includes the date of the section 381(a) transaction.
The procedures are different for inventory under the current regulations in § 1.381(c)(5)-1. In lieu of the acquiring corporation taking into account the hypothetical increase or decrease in tax in the taxable year that includes the date of the section 381(a) transaction, the acquiring corporation takes the increase or decrease in income attributable to the accounting method change directly into account.
The IRS and the Treasury Department believe that the procedures for implementing changes to a principal method under the current regulations have been inconsistently applied and are another source of confusion. The proposed regulations modify § 1.381(c)(4)-1 and generally apply the adjustment methodology used under section 446(e) and § 1.381(c)(5)-1 of the current regulations. The proposed regulations generally make accounting method changes to a principal method and the resulting section 481(a) adjustment, if any, procedurally consistent with accounting method changes made pursuant to section 446(e). Accordingly, the acquiring corporation computes the section 481(a) adjustment necessary to reflect the accounting method change, if any, as if it had initiated an accounting method change for the trade or business required to implement the principal method. The acquiring corporation takes into account the appropriate amount of the section 481(a) adjustment, if any, computed as of the date of the section 381(a) transaction, from the accounting method change as an increase or decrease to its taxable income on the date of the section 381(a) transaction.
Furthermore, to simplify the procedures under section 381(a) for accounting method changes, the proposed regulations provide that the rules governing accounting method changes under section 446(e) apply to determine (1) Whether the section 381(a) accounting method change is implemented with a section 481(a) adjustment or on a cut-off basis, (2) The computation of the section 481(a) adjustment, and (3) The appropriate period of taxable years over which the adjustment is included in taxable income. These rules are contained in applicable administrative published procedures that govern voluntary accounting method changes under section 446(e). (See, for example, Rev. Proc. 2002-9 (2002-1 CB 327) (see § 601.601(d)(2)(ii)(
Under the current regulations, if the acquiring corporation cannot use a principal method because it is impermissible, that is, it does not clearly reflect income or it conflicts with a closing agreement, or the acquiring corporation does not want to use the principal method even though it is permissible, there is confusion as to the manner in which a taxpayer requests the Commissioner's permission to use a different accounting method. Specifically, it is unclear whether an acquiring corporation may file a Form 3115, Application for Change in Accounting Method, to request the Commissioner's permission or whether the acquiring corporation must file a request for a private letter ruling. The proposed regulations make it clear that a taxpayer must request an accounting method change consistent with the manner in which accounting method changes are requested pursuant to section 446(e), that is, on a Form 3115.
The regulations under section 446(e) currently allow taxpayers to request an accounting method change at any time during the taxable year. See § 1.446-1(e)(3)(i). Under §§ 1.381(c)(4)-1(d) and 1.381(c)(5)-1(d) of the current regulations, the time for filing a request for an accounting method change is inconsistent with the section 446(e) regulations. Although the times for filing under these two regulations were consistent when the regulations were initially published, the section 446(e) regulations were subsequently amended without making conforming changes to §§ 1.381(c)(4)-1(d) and 1.381(c)(5)-1(d) of the current regulations. This inconsistency also has caused confusion. Rev. Proc. 2005-63 (2005-2 CB 491) (see § 601.601(d)(2)(ii)(
The proposed regulations generally incorporate the time provided in Rev. Proc. 2005-63 for requesting the Commissioner's consent to change an accounting method. The IRS and the Treasury Department intend by this revision generally to conform the due dates for requesting an accounting method change under sections 381(c)(4) and (c)(5) to the due dates for requesting other accounting method changes under section 446(e), while providing sufficient time to request the Commissioner's consent if the section 381(a) transaction occurs at or near the end of a taxable year.
The existing regulations under sections 381(c)(4) and (c)(5) require certain adjustments attributable to an accounting method change to be taken into account entirely in one taxable year. The adjustment required of the acquiring corporation under the existing section 381(c)(4) regulations is to take into account the hypothetical tax increase due to the accounting method change rather than a section 481(a) adjustment. The administrative procedures applicable to voluntary accounting method changes historically have required a section 481(a) adjustment to be taken into account over a period of taxable years. This discrepancy in when the adjustments are taken into account produced an incentive for taxpayers to request a voluntary accounting method change in the year in which the section 381(a) transaction occurred for changes that would result in a positive adjustment while making changes that would result in a negative adjustment under the rules in § 1.381(c)(4)-1 or § 1.381(c)(5)-1 of the current regulations. The IRS generally declined to entertain requests for an accounting method change that otherwise would be effected pursuant to sections 381(c)(4) and (c)(5). More recently, however, the administrative procedures that apply to voluntary accounting method changes have provided for taking positive section 481(a) adjustments into account over a period of taxable years while allowing negative section 481(a) adjustments to be taken into account in the year in which the method change is effected, which lessens the incentive to make an accounting method change under section 446(e) in lieu of section 381(a).
Generally, the proposed regulations provide that the acquiring corporation will be permitted to request an accounting method change for the taxable year in which the section 381(a) transaction occurs. The proposed regulations also provide that the other parties to a section 381(a) transaction will be allowed to request accounting method changes for the taxable year that ends with the section 381(a) transaction. For trades or businesses that will not operate as separate trades or businesses after the section 381(a) transaction, an accounting method change will be granted only if the requested method is the method that will continue to be used after the section 381(a) transaction. For example, an acquiring corporation will be granted permission to change an accounting method only if the proposed method will be the principal method on the date of the section 381(a) transaction. The IRS generally will not grant an accounting method change to a distributor or transferor corporation for the taxable year that ends with the section 381(a) transaction if that method must change to a different method under the principal method rules of §§ 1.381(c)(4)-1(c) and 1.381(c)(5)-1(c) of the proposed regulations. Similarly, the IRS generally will not grant an accounting method change to an acquiring corporation in the taxable year that includes the section 381(a) transaction if that method must change to a different method under the principal method rules of §§ 1.381(c)(4)-1(c) and 1.381(c)(5)-1(c) of the proposed regulations. If and when the proposed regulations are finalized, the IRS and the Treasury Department intend to make changes to the administrative procedures applicable to voluntary accounting methods to generally allow changes during the year of a section 381(a) transaction as previously described and will change relevant terms and conditions, as needed, particularly for taxpayers who are under exam or in appeals.
Changes to the principal method under §§ 1.381(c)(4)-1 and 1.381(c)(5)-1 of the current regulations are made without audit protection. The IRS and the Treasury Department believe that audit protection is not warranted when either the carryover method or principal method, as applicable, is used in the context of voluntary compliance under sections 381(c)(4) and (c)(5). Unlike accounting method changes under section 446(e) for which a taxpayer must disclose its use of an improper accounting method as part of the accounting method change process, changes to a principal method pursuant to §§ 1.381(c)(4)-1 and 1.381(c)(5)-1 of the current regulations are made by the taxpayer on the tax return without disclosing the change on a Form 3115, Application for Change in Accounting Method.
The IRS and the Treasury Department, however, believe that audit protection is warranted when an accounting method other than the carryover method or principal method is used in the context of voluntary compliance under sections 381(c)(4) and (c)(5). Under the proposed regulations, a taxpayer using an improper accounting method may request permission to change the method at any time before the end of its taxable year. Thus, if the acquiring corporation is using an improper accounting method or would be required to use an improper accounting method because of the application of § 1.381(c)(4)-1 or § 1.381(c)(5)-1 of the proposed regulations, it can request consent to change to a proper accounting method. That change will be accorded the usual audit protection procedures provided in guidance issued under section 446(e) for the requested change. Similarly, if another party to the section 381(a) transaction is using an improper accounting method, it may request consent to change to a proper accounting method at any time prior to the section 381(a) transaction. That change also will be accorded the usual audit protection procedures provided in guidance issued under section 446(e) for the requested change.
These regulations are proposed to apply to corporate reorganizations and tax-free liquidations described in section 381(a) that occur on or after the date these regulations are published as final regulations in the
It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Although there is a lack of available data regarding the extent to which small entities engage in the corporate reorganizations and tax-free liquidations described in section 381(a), this certification is based on the belief of the IRS and the Treasury Department that these transactions generally involve larger entities. Notwithstanding this certification that only large entities are affected, these proposed regulations will not have a significant economic impact on large or small taxpayers. These proposed regulations will reduce burden on taxpayers by clarifying existing rules and simplifying the procedures for requesting changes in accounting methods to methods other than the carryover or principal methods. Additionally, these proposed regulations make the implementation rules more consistent with the general rules for changes in accounting methods. Therefore, because these proposed regulations would generally clarify and simplify existing rules, these regulations will not have a significant economic impact on a substantial number of small entities. The IRS and
Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and 8 copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department want to provide clear, consistent, and administrable rules that will reduce the uncertainty and controversy in this area. Thus, the IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. Topics on which comments are requested include: (1) In determining the relative sizes of the parties to a section 381(a) transaction, is it appropriate to calculate the gross receipts for a representative period by examining the gross receipts that are properly recognized under the acquiring corporation's and the distributor or transferor corporation's accounting method used for that period for federal income tax purposes, and (2) For a taxpayer using the last-in, first-out (LIFO) inventory method, should the principal method be applied at the level of each particular type of goods, or to pools of goods? All comments will be made available for public inspection and copying. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the
The principal author of these regulations is Cheryl Oseekey, Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
26 U.S.C. 7805 * * *
Section 1.381(c)(4)-1 also issued under 26 U.S.C. 381(c)(4). * * *
Section 1.381(c)(5)-1 also issued under 26 U.S.C. 381(c)(5). * * *
(b) * * *
(1) * * * (i) The complete liquidation of a subsidiary corporation upon which no gain or loss is recognized in accordance with the provisions of section 332;
(e)
(a)
(2)
(ii)
(iii)
(iv)
(ii)
(ii)
X Corporation is an engineering firm that uses the overall cash receipts and disbursements accounting method and has elected under section 171 to amortize bond premium with respect to its taxable bonds acquired at a premium. T Corporation is a manufacturer that uses an overall accrual accounting method and has not made a section 171 election to amortize bond premium with respect to its taxable bonds acquired at a premium. X Corporation acquires the assets of T Corporation in a transaction to which section 381(a) applies. X Corporation operates the engineering firm and manufacturing operations as separate and distinct trades or businesses after the date of the section 381(a) transaction.
(ii)
(ii)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(i) The transfer is in connection with a reorganization described in section 368(a)(1)(A), (C), or (F), or
(ii) The transfer is in connection with a reorganization described in section 368(a)(1)(D) or (G), provided the requirements of section 354(b) are met.
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(c)
(i) Adjusted bases of the distributor or transferor corporation's assets (determined under section 1011 and the regulations thereunder) exceed the adjusted bases of the acquiring corporation's assets immediately prior to the date of distribution or transfer, and
(ii) The distributor or transferor corporation's gross receipts for a representative period (generally the most recent period of 12 consecutive calendar months ending on the date of distribution or transfer) exceed the acquiring corporation's gross receipts for the same period.
(2)
(ii)
(ii)
(ii)
(ii)
(ii)
(ii)
(d)
(B)
X Corporation uses the overall cash receipts and disbursements accounting method while T Corporation uses an overall accrual method. X Corporation acquires the assets of T Corporation in a transaction to which section 381(a) applies. X Corporation determines that under the rules of paragraph (c)(1) of this section, X Corporation must change the accounting method for the business acquired from T Corporation to the cash receipts and disbursements method. X Corporation will determine the section 481(a) adjustment pertaining to the change to the cash receipts and disbursements method by consolidating the adjustments (whether the amounts thereof represent increases or decreases in items of income or deductions) arising with respect to balances in the various accounts, such as accounts receivable, as of the beginning of the day that immediately follows the day on which X Corporation acquires the assets of T Corporation. This adjustment, or an appropriate part thereof, will be reflected on the federal income tax return filed by X Corporation for the taxable year that includes this section 381(a) transaction.
(ii)
(iii)
(2)
(i) Under the authority of § 1.446-1(e)(3)(ii), the application for accounting method change (for example, Form 3115) must be filed with the IRS on or before the later of—
(A) The due date for filing a Form 3115 as specified in § 1.446-1(e), for example, the last day of the taxable year in which the distribution or transfer occurred, or
(B) The earlier of—
(
(
(
(e)
(2)
(3)
(ii)
(4) A
(ii)
(5)
(6)
(7)
(8)
(9)
(10)
(f)
(a)
(2)
(ii)
(iii)
(iv)
(ii)
(ii)
(ii)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(i) The transfer is in connection with a reorganization described in section 368(a)(1)(A), (C), or (F), or
(ii) The transfer is in connection with a reorganization described in section 368(a)(1)(D) or (G), provided the requirements of section 354(b) are met.
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(c)
(2)
X Corporation acquires the inventory of T Corporation in a transaction to which section 381(a) applies. The manufacturing businesses are not operated as separate and distinct trades or businesses after the date of the distribution or transfer. Immediately prior to the acquisition, the fair market value of each particular type of goods in X Corporation's inventory exceeds the fair market value of each particular type of goods in T Corporation's inventory.
(ii)
(ii)
(ii)
X Corporation acquires the inventory of T Corporation in a transaction to which section 381(a) applies. The manufacturing businesses are not operated as separate and distinct trades or businesses after the date of the distribution or transfer. In lieu of determining the fair market value of each particular type of goods held on the date of distribution or transfer, X Corporation elects to value the entire inventories held by itself and T Corporation. Immediately prior to the acquisition, the fair market value of T Corporation's inventory exceeds the fair market value of X Corporation's inventory.
(ii)
(d)
(B)
X Corporation uses the FIFO inventory method while T Corporation uses the LIFO inventory method. X Corporation acquires the assets of T Corporation in a transaction to which section 381(a) applies on July 15th. X Corporation determines that under the rules of paragraph (c)(1) of this section, X Corporation must change the inventory method for the business acquired from T Corporation to the FIFO inventory method. X Corporation will determine the section 481(a) adjustment pertaining to the change to the FIFO inventory method (whether the amounts thereof represent increases or decreases in income) as of the beginning of July 16th. This adjustment, or an appropriate part thereof, will be included in X Corporation's federal income tax return for the taxable year that includes July 15th.
(ii)
(iii)
(2)
(i) Under the authority of § 1.446-1(e)(3)(ii), the application for accounting method change (for example, Form 3115) must be filed with the IRS on or before the later of—
(A) The due date for filing a Form 3115 as specified in § 1.446-1(e), for example, the last day of the taxable year in which the distribution or transfer occurred, or
(B) The earlier of—
(
(
(ii) An application on Form 3115 filed with the IRS should be labeled “Filed under section 381(c)(5)” at the top.
(e)
(2)
(3)
(4)
(5)
(6)
(ii)
(2)
(B)
(iii)
(B)
(7)
(ii)
(8)
(9)
(10)
(11)
(12)
(f)
1. Revising the first sentence in paragraph (e)(3)(i) and adding a new second sentence.
2. Revising the first sentence in paragraph (e)(4)(i).
3. Adding paragraph (e)(4)(iii).
The revisions and addition read as follows:
(e) * * *
(3) * * * (i) Except as otherwise provided under the authority of paragraph (e)(3)(ii) of this section, to secure the Commissioner's consent to a taxpayer's change in method of accounting, the taxpayer generally must file an application on Form 3115 with the Commissioner during the taxable year in which the taxpayer desires to make the change in method of accounting. See §§ 1.381(c)(4)-1(d)(2) and 1.381(c)(5)-1(d)(2) for rules allowing additional time, in some circumstances, for the filing of an application on Form 3115 with respect to a transaction to which section 381(a) applies.
(4) * * * (i)
(iii)
National Archives and Records Administration.
Proposed rule.
The National Archives and Records Administration (NARA) is proposing to revise its regulations relating to demands for records or testimony in legal proceedings. The rule is intended to facilitate access to records in NARA's custody, centralize agency decisionmaking in response to demands for records or testimony, minimize the disruption of official duties in complying with demands, maintain agency control over the release of agency information, and protect the interests of the United States. The proposed rule affects parties to lawsuits and their counsel.
Comments must be received by January 15, 2008.
NARA invites interested persons to submit comments on this proposed rule. Comments may be submitted by any of the following methods:
•
•
•
•
Laura McCarthy at (301) 837-3023 or via fax number 301-837-0319.
NARA regularly receives subpoenas and other
Many agencies have issued regulations concerning agency responses to demands where the United States is not a party. The courts recognize the authority of Federal agencies to limit compliance with demands in such circumstances; see for example,
NARA has in its possession the following type of records:
• Permanently-valuable Federal records, Presidential records, donated and deposited historical materials in the National Archives of the United States;
• Records belonging to Federal agencies other than NARA that are in NARA's temporary physical custody;
• Records of defunct agencies that have no successor in function; and
• NARA's own operational records.
NARA's responsibility to manage, preserve, arrange, describe, or provide access to those records places the agency in a unique position in the Federal government regarding demands for records and testimony.
Requests for records that are not classified as demands are treated as requests for records under one of the following authorities: the Freedom of Information Act (5 U.S.C. 552); the Privacy Act (5 U.S.C. 552a); the Federal Records Act and its implementing regulations (44 U.S.C. chs. 21, 29, 31, 33; 36 CFR parts 1250-1256); the Presidential Records Act and its implementing regulations (44 U.S.C. ch. 22; 36 CFR part 1270); or the Presidential Recordings and Materials Preservation Act and its implementing regulations (44 U.S.C. 2111 note; 36 CFR part 1275). This rule does not restrict access to records under those authorities.
This rule applies certain restrictions to testimony by NARA employees in legal proceedings. These restrictions apply whether or not the United States is a party to the proceeding. Authorization for employees to provide such testimony is based upon the following:
• The applicability of the Federal Rules of Civil Procedure;
• A determination by NARA's General Counsel that NARA has a significant interest in the legal proceeding and that the outcome may affect the implementation of present policies (NARA's Inspector General makes the determination as to whether an employee of NARA's Office of the Inspector General may provide such testimony); or
• Other circumstances or conditions make it necessary to provide the testimony in the public interest.
These restrictions are necessary to minimize the disruption of NARA's official business, and to protect the agency's human and financial resources. NARA employees are not authorized to testify about the content of records in NARA's physical custody when the legal title of such records belongs to another Federal agency. However, NARA can provide a copy of such records and certify that the copy is a true and accurate copy of the records in NARA's physical or legal custody. Such copies have the same legal status as the original record, and when produced under seal, must be judicially noted by all Federal, state, and local courts. See 44 U.S.C. 2116.
This rule does not apply in instances where an employee is requested to appear in adjudicative, legislative, or administrative proceedings that are unrelated to information concerning Federal activities or the employee's duties at NARA. Also, this rule does not apply to subpoenas or requests for information submitted by either House of Congress or by a Congressional committee or subcommittee with jurisdiction over the matter that the testimony or information is requested.
This proposed rule contains information collection activities that are subject to review and approval by OMB under the Paperwork Reduction Act of 1995.
The reporting burden for this collection is estimated to be approximately 1.5 hours per response for providing to NARA the information specified in proposed § 1251.10, including the time for gathering and maintaining the data needed and completing and reviewing the collection of information. A requestor who produces a demand to a NARA employee to produce documents or testimony would be required to submit the demand in writing to an appropriate party as specified in § 1251.6; a demand issued by, or under color of a state or local court must be signed by a judge. The information would be collected on a one-time basis, at least 45 days before the date the records or testimony is required. Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of NARA's functions, including whether the information would have practical utility; (b) the accuracy of NARA's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques of other forms of information technology.
This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB). As required by the Regulatory Flexibility Act, it is hereby certified that this proposed rule will not have a significant impact on small entities because NARA receives fewer than 25 demands per year for testimony from individuals and small entities.
Confidential business information, Freedom of information.
Administrative practice and procedure.
Archives and records, Copyright, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, NARA proposes to amend Subchapter C of 36 CFR Ch. XII as follows:
1. The authority citation for part 1250 continues to read as follows:
44 U.S.C. 2104(a), 2204; 5 U.S.C. 552; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
2. Remove § 1250.84.
3. Add a new Part 1251 to read as follows:
44 U.S.C. 2104; 44 U.S.C. 2108; 44 U.S.C. 2109; 44 U.S.C. 2111 note; 44 U.S.C. 2112; 44 U.S.C. 2116; 44 U.S.C. ch. 22; 44 U.S.C. 3102.
(a) This part provides the policies and procedures to follow when submitting a demand to an employee of the National Archives and Records Administration (NARA) to produce records or provide testimony relating to agency information in connection with a legal proceeding. You must comply with these requirements when you request the release or disclosure of records or agency information.
(b) The National Archives and Records Administration intends these provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize NARA's role in controversial issues not related to its mission;
(3) Maintain NARA's impartiality among private litigants when NARA is not a named party; and
(4) Protect sensitive, confidential information and the deliberative processes of NARA.
(c) In providing for these requirements, NARA does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of NARA. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.
This part applies to demands to NARA employees for factual or expert testimony relating to agency information, or for production of records, in legal proceedings whether or not NARA is a named party. However, it does not apply to:
(a) Demands upon or requests for a NARA employee to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of NARA;
(b) Demands upon or requests for a former NARA employee to testify as to matters in which the former employee was not directly or materially involved while at NARA;
(c) Requests for the release of, or access to, records under the Freedom of Information Act, 5 U.S.C. 552, as amended; the Privacy Act, 5 U.S.C. 552a; the Federal Records Act, 44 U.S.C. chs. 21, 29, 31, 33; the Presidential Records Act, 44 U.S.C. ch. 22; or the Presidential Recordings and Materials Preservation Act, 44 U.S.C. 2111 note;
(d) Demands for records or testimony in matters before the Equal Employment Opportunity Commission or the Merit Systems Protection Board; and
(e) Congressional demands and requests for testimony or records.
The following definitions apply to this part:
(1) Any current or former officer or employee of NARA, except that this definition does not include former NARA employees who are retained or hired as expert witnesses or who agree to testify about general matters, matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with NARA;
(2) Any other individual hired through contractual agreement by or on behalf of NARA or who has performed or is performing services under such an agreement for NARA; and
(3) Any individual who served or is serving in any consulting or advisory capacity to NARA, whether formal or informal.
(1) All documents and materials which are NARA agency records under the Freedom of Information Act, 5 U.S.C. 552, as amended;
(2) Presidential records as defined in 44 U.S.C. 2201; historical materials as defined in 44 U.S.C. 2101; records as defined in 44 U.S.C. 2107 and 44 U.S.C. 3301.
(3) All other documents and materials contained in NARA files; and
(4) All other information or materials acquired by a NARA employee in the performance of his or her official duties or because of his or her official status.
No, except as otherwise permitted by this part, no employee may produce records and information or provide any testimony relating to agency information in response to a demand without the prior, written approval of the General Counsel.
The General Counsel may consider the following factors in determining
(a) NARA's compliance with the demand is required by federal law, regulation or rule, or is otherwise permitted by this part;
(b) The purposes of this part are met;
(c) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;
(d) NARA has an interest in the decision that may be rendered in the legal proceeding;
(e) Allowing such testimony or production of records would assist or hinder NARA in performing its statutory duties;
(f) Allowing such testimony or production of records would involve a substantial use of NARA resources;
(g) Responding to the demand would interfere with the ability of NARA employees to do their work;
(h) Allowing such testimony or production of records would be in the best interest of NARA or the United States;
(i) The records or testimony can be obtained from the publicly available records of NARA or from other sources;
(j) The demand is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand arose;
(k) Disclosure would violate a statute, Executive Order or regulation;
(l) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential commercial or financial information, otherwise protected information, or information which would otherwise be inappropriate for release;
(m) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights;
(n) Disclosure would result in NARA appearing to favor one litigant over another;
(o) Disclosure relates to documents that were produced by another agency;
(p) A substantial Government interest is implicated;
(q) The demand is within the authority of the party making it; and
(r) The demand is sufficiently specific to be answered.
(a) Demands for testimony, except those involving an employee of NARA's Office of the Inspector General, must be addressed to, and served on, the General Counsel, National Archives and Records Administration, Suite 3110, 8601 Adelphi Road, College Park, MD 20740-6001. Demands for the testimony of an employee of NARA's Office of the Inspector General must be addressed to, and served on, the Inspector General, National Archives and Records Administration, Suite 1300, 8601 Adelphi Road, College Park, MD 20740-6001.
(b) Demands for the production of NARA operational records, except those of the Office of the Inspector General, must be addressed to, and served on, the General Counsel. Demands for records of the Inspector General must be addressed to, and served on, the Inspector General. Please note that in accordance with section (b)(11) of the Privacy Act, 5 U.S.C. § 552a, demands for operational records kept in a Privacy Act system of records require the signature of a court of competent jurisdiction. See
(c) Demands for the production of records stored in a Federal Records Center (FRC) must be addressed to, and served on, the director of the FRC where the records are stored. NARA honors the demand to the extent required by law, if the agency having legal title to the records has not imposed any restrictions. If the agency has imposed restrictions, NARA notifies the authority issuing the demand that NARA abides by the agency-imposed restrictions and refers the authority to the agency for further action. See § 1251.8(b) for demands for NARA operational records kept in a Privacy Act system of records.
(d) Demands for the production of materials designated as Federal archival records, Presidential records or donated historical materials administered by NARA must be addressed to, and served on, the appropriate Assistant Archivist, Director of Archival Operations, or Presidential Library Director. An information copy of the demand must be sent to the General Counsel.
(e) For matters where the United States is a party, the Department of Justice should contact the General Counsel instead of submitting a demand for records or testimony.
(f) Contact information for each NARA facility may be found at 36 CFR part 1253.
You must comply with the following requirements, as appropriate, whenever you issue a demand to a NARA employee for records, agency information or testimony:
(a) Your demand must be in writing and must be served on the appropriate party as identified in § 1251.6. A demand issued by, or under color of, a state or local court must be signed by a judge.
(b) Your written demand (other than a demand pursuant to rule 45 of the Federal Rules of Civil Procedure, in which case you must comply with the requirements of that rule) must contain the following information:
(1) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance;
(3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought;
(4) A statement as to how the need for the information outweighs the need to maintain any confidentiality of the information and outweighs the burden on NARA to produce the records or provide testimony;
(5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a NARA employee, such as a retained expert;
(6) If testimony is requested, the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used instead of testimony;
(7) A description of all previous decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;
(8) The name, address, and telephone number of counsel to each party in the case; and
(9) An estimate of the amount of time that the requester and other parties may require with each NARA employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(c) The National Archives and Records Administration reserves the right to require additional information to comply with your demand.
(d) Your demand should be submitted at least 45 days before the date that records or testimony is required. Demands submitted in less than 45 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with your demand.
(f) The information collection contained in this section has been approved by the Office of Management and Budget under the Paperwork Reduction Act as by OMB under the control number 3095-0038 with a current expiration date of May 31, 2008.
(a) After service of a demand for production of records or for testimony, an appropriate NARA official reviews the demand and, in accordance with the provisions of this subpart, determines whether, or under what conditions, to produce records or authorize the employee to testify on matters relating to agency information.
(b) The National Archives and Records Administration processes demands in the order in which we receive them. Absent exigent or unusual circumstances, NARA responds within 45 days from the date of receipt. The time for response depends upon the scope of the demand.
(c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of NARA or the United States or for other good cause.
The General Counsel makes the final determination on demands to employees for testimony. The appropriate NARA official, as described in § 1251.8, makes the final determination on demands for the production of records. The NARA official notifies the requester and the court or other authority of the final determination and any conditions that may be imposed on the release of records or information, or on the testimony of a NARA employee. If the NARA official deems it appropriate not to comply with the demand, the official communicates the reasons for the noncompliance as appropriate.
(a) The General Counsel may impose conditions or restrictions on the testimony of NARA employees including, for example, limiting the areas of testimony or requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal or will only be used or made available in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester's expense.
(b) NARA may offer the employee's written declaration instead of testimony.
(c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee must not:
(1) Disclose confidential or privileged information; or
(2) For a current NARA employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of NARA unless testimony is being given on behalf of the United States.
(a) The General Counsel may impose conditions or restrictions on the release of records and agency information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, NARA may condition the release of records and agency information on an amendment to the existing protective order or confidentiality agreement.
(b) If the General Counsel so determines, original NARA records may be presented for examination in response to a demand, but they are not to be presented as evidence or otherwise used in a manner by which they could lose their identity as official NARA records, nor are they to be marked or altered. Instead of the original records, NARA provides certified copies for evidentiary purposes (see 28 U.S.C. 1733; 44 U.S.C. 2116). Such copies must be given judicial notice and must be admitted into evidence equally with the originals from which they were made (see 44 U.S.C. 2116).
(a)
(b)
(c)
(d)
(1) witness fees for current NARA employees are made payable to the Treasury of the United States;
(2) applicable fees paid to former NARA employees providing testimony must be paid directly in accordance with 28 U.S.C. 1821 or other applicable statutes; and
(3) fees for the production of records, including records certification fees, are made payable to the National Archives Trust Fund (NATF).
(e)
(f)
(g)
(a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by NARA or as ordered by a Federal court after NARA has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former NARA employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current NARA employee who testifies or produces official records and information in violation of this part is subject to disciplinary action.
4. The authority citation for part 1256 continues to read as follows:
44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C. 552; E.O. 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13292, 68 FR 15315, 3 CFR, 2003 Comp., p. 196; E.O. 13233, 66 FR 56023, 3 CFR, 2001 Comp., p. 815.
5. Remove § 1256.4.
Environmental Protection Agency (“EPA”).
Proposed rule—Consistency Update.
EPA is proposing to update a portion of the Outer Continental Shelf (“OCS”) Air Regulations. Requirements applying to OCS sources located within 25 miles of States' seaward boundaries must be updated periodically to remain consistent with the requirements of the corresponding onshore area (“COA”), as mandated by section 328(a)(1) of the Clean Air Act, as amended in 1990 (“the Act”). The portions of the OCS air regulations that are being updated pertain to the requirements for OCS sources by the Santa Barbara County Air Pollution Control District (Santa Barbara County APCD), South Coast Air Quality Management District (South Coast AQMD), and Ventura County Air Pollution Control District (Ventura County APCD). The intended effect of approving the OCS requirements for the Santa Barbara County APCD, South Coast AQMD, and Ventura County APCD is to regulate emissions from OCS sources in accordance with the requirements onshore. The change to the existing requirements discussed below is proposed to be incorporated by reference into the Code of Federal Regulations and is listed in the appendix to the OCS air regulations.
Any comments must arrive by December 17, 2007.
Submit comments, identified by docket number OAR-2004-0091, by one of the following methods:
1.
2.
3.
Cynthia Allen, Air Division (Air-4), U.S. EPA Region 9, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947-4120,
On September 4, 1992, EPA promulgated 40 CFR part 55,
Pursuant to § 55.12 of the OCS rule, consistency reviews will occur (1) at least annually; (2) upon receipt of a Notice of Intent under § 55.4; or (3) when a state or local agency submits a rule to EPA to be considered for incorporation by reference in part 55. This proposed action is being taken in response to the submittal of requirements submitted by the Santa Barbara County APCD, South Coast AQMD and Ventura County APCD. Public comments received in writing within 30 days of publication of this document will be considered by EPA before publishing a final rule. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of state or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.
In updating 40 CFR part 55, EPA reviewed the rules submitted for inclusion in part 55 to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure they are not arbitrary or capricious. 40 CFR 55.12 (e). In addition, EPA has excluded administrative or procedural rules,
1. After review of the requirements submitted by the Santa Barbara County APCD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources:
2. After review of the requirements submitted by the South Coast AQMD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources:
3. After review of the requirements submitted by the Ventura County APCD against the criteria set forth above and in 40 CFR part 55, EPA is proposing to make the following District requirements applicable to OCS sources:
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (“OMB”) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
This action is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB Review. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have created an adverse material effect. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA.
The OMB has approved the information collection requirements contained in 40 CFR part 55, and by extension this update to the rules, under the provisions of the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and are identified on the form and/or instrument, if applicable. In addition, EPA is amending the table in 40 CFR part 9 of currently approved OMB control numbers for various regulations to list the regulatory citations for the information requirements contained in this final rule.
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.
These rules will not have a significant economic impact on a substantial number of small entities. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. These OCS rules already apply in the COA, and EPA has no evidence to suggest that these OCS rules have had a significant economic impact on a substantial number of small entities. As required by section 328 of the Clean Air Act, this action simply updates the existing OCS requirements to make them consistent with rules in the COA. Therefore, I certify that this action will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million of more in any one year.
Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with
Executive Orders 13132, entitled “Federalism” (64 FR 43255 (August 10, 1999)), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This proposed rule does not have federalism implications. It will 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. These rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. These rules do not amend the existing provisions within 40 CFR part 55 enabling delegation of OCS regulations to a COA, and this rule does not require the COA to implement the OCS rules. Thus, Executive Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicits comments on this proposed rule from State and local officials.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes or on the distribution of power and responsibilities between the Federal Government and Indian tribes and thus does not have “tribal implications,” within the meaning of Executive Order 13175. This rule implements requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In addition, this rule does not impose substantial direct compliance costs tribal governments, nor preempt tribal law. Consultation with Indian tribes is therefore not required under Executive Order 13175. Nonetheless, in the spirit of Executive Order 13175 and consistent with EPA policy to promote communications between EPA and tribes, EPA specifically solicits comments on this proposed rule from tribal officials.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885 (April 23, 1997)), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. In addition, the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportional risk to children.
This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable laws or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decided not to use available and applicable voluntary consensus standards.
As discussed above, these rules implement requirements specifically and explicitly set forth by the Congress in section 328 of the Clean Air Act, without the exercise of any policy discretion by EPA. As required by section 328 of the Clean Air Act, this rule simply updates the existing OCS rules to make them consistent with current COA requirements. In the absence of a prior existing requirement for the state to use voluntary consensus standards and in light of the fact that EPA is required to make the OCS rules consistent with current COA requirements, it would be inconsistent with applicable law for EPA to use voluntary consensus standards in this action. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why
Environmental protection, Administrative practice and procedures, Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Nitrogen oxides, Outer Continental Shelf, Ozone, Particulate matter, Permits, Reporting and recordkeeping requirements, Sulfur oxides.
Title 40 of the Code of Federal Regulations, part 55, is proposed to be amended as follows:
1. The authority citation for part 55 continues to read as follows:
Section 328 of the Clean Air Act (42 U.S.C. 7401
2. Section 55.14 is amended by revising paragraphs (e)(3)(ii)(F), (G), and (H) to read as follows:
(e) * * *
(3) * * *
(ii) * * *
(F)
(G)
(H)
3. Appendix A to CFR part 55 is amended by revising paragraphs (b)(6), (7), and (8) under the heading “California” to read as follows:
(b) * * *
(6) The following requirements are contained in
(7) The following requirements are contained in
(8) The following requirements are contained in
Environmental Protection Agency (EPA).
Notice of petition for rulemaking.
Friends of the Earth has filed a petition with EPA, requesting that EPA find pursuant to section 231 of the Clean Air Act that lead emissions from general aviation aircraft cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare and that EPA propose emissions standards for lead from general aviation aircraft. Alternatively, Friends of the Earth requests that EPA commence a study and investigation of the health and environmental impacts of lead emissions from general aviation aircraft, if EPA believes that insufficient information exists to make such a finding. The petition submitted by Friends of the Earth explains their view that lead emissions from general aviation aircraft endanger the public health and welfare, creating a duty for the EPA to propose emission standards. EPA invites information and comments from all interested parties on the issues raised by this petition.
Comments must be received on or before March 17, 2008.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0294, by one of the following methods:
•
• Email:
• Fax: (202) 566-9744
• Mail. Send your comments to: Air and Radiation Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention: Docket ID No. OAR-2007-0294.
• Hand Delivery. Deliver your comments to: Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC, Attention: Docket ID No. OAR-2007-0294. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Bryan Manning, Assessment and Standards Division, Office of Transportation and Air Quality, 2000 Traverwood Drive, Ann Arbor, MI 48105;
1.
2.
• Identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and
• Explain your views as clearly as possible.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Make sure to submit your comments by the comment period deadline identified.
This notice is seeking comment on and information related to a petition for an EPA finding and rulemaking and collateral relief from the Friends of the Earth. This petition is seeking the regulation of lead emissions from piston-powered general aviation aircraft under section 231 of the Clean Air Act. The complete petition of Friends of the Earth is available from their Web site, the docket, from the EPA Web site at:
Friends of the Earth is an environmental advocacy organization headquartered in Washington, DC. The petition they submitted concerns the use of leaded aviation gasoline in piston-powered general aviation aircraft in the U.S. Friends of the Earth believes that “EPA action regarding lead in general aviation aircraft is long overdue. Studies increasingly show that lead in any quantity threatens the public welfare. Lead emissions from general aviation aircraft constitute a substantial proportion of all current lead air emissions. As a result of the use of leaded aviation gasoline, humans and ecological receptors at or near general aviation airports may be exposed to elevated levels of lead.”
Friends of the Earth contends that “safe unleaded alternatives to aviation gasoline do exist. Since 1999, the research and development process has produced unleaded fuels that have received approval from the FAA for current use. Tens of thousands of low-performance aircraft have received supplemental type certificates allowing them to run on unleaded automobile gasoline (commonly referred to as mogas in the aviation community). Additionally, a mogas alternative, 82UL, has been developed for use by some low-performance planes. The combination of these two fuels can be utilized by nearly seventy percent of all piston-driven aircraft. Additionally, the FAA allows a select number of planes to run on an ethanol based aviation fuel (AGE85); the remaining thirty percent of general aviation planes can potentially use this unleaded gasoline.”
The Friends of the Earth petition was addressed to EPA. Both EPA and the FAA have specific statutorily defined roles regarding aviation. EPA through section 231 of the Clean Air Act can make findings regarding air pollution emissions from aircraft and set standards regulating such emissions and FAA has the statutory authority to regulate the fuel used in aircraft (49 U.S.C. 44714). By this Notice, EPA is soliciting comment on the petition, specifically on the points discussed in the section “Request for Comments” presented below. EPA will use this information in its statutory assessment of whether lead emissions from piston-powered general aviation cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare.
In a variety of chemical forms and exposure pathways, lead has long been recognized as causing serious adverse health effects. In 1978 EPA established a National Ambient Air Quality Standard for lead of 1.5 micrograms per cubic meter, as a maximum quarterly average. Research completed since that time, discussed in EPA's
Thirty-five years ago, cars and trucks were the major contributors of lead emissions to the air. In the 1970s, EPA set national regulations to gradually reduce the lead content in gasoline. In 1974, unleaded gasoline was introduced for motor vehicles equipped with catalytic converters. EPA banned the use of leaded gasoline in highway vehicles after December 1995. As a result of EPA's regulatory efforts to remove lead from gasoline, emissions of lead from the transportation sector have dramatically declined (96 percent between 1980 and 2005). The large reductions in lead emissions from motor vehicles have changed the nature of the air quality lead problem in the United States. Industrial processes, particularly primary and secondary lead smelters, utility boilers, and battery manufacturers taken together, are now responsible for most lead emissions into the atmosphere.
Currently, tetraethyl lead (TEL) is added to gasoline used in most piston-engine powered aircraft. The 2002 National Emissions Inventory (NEI) estimates that lead emissions from the use of leaded aviation gasoline (commonly referred to as avgas) are 491 tons; this accounts for 29 percent of the air pollution emissions inventory for lead, and is overall, the largest source category. This estimate is based on the Department of Energy estimate of about 281 million gallons of avgas supplied in the U.S. in 2002 (data available at
According to the Federal Aviation Administration (FAA) General Aviation and Air Taxi Activity and Avionics (GAATAA) survey (2005), there were over 190,000 piston-engine powered aircraft engaged in flight operations in the U.S. in 2005; these aircraft comprised approximately 90 percent of the aircraft in the general aviation fleet. In 2005, approximately 29 million landing and take-off events (58 million total operations) were conducted by piston-engine powered aircraft. Among the total hours flown by general aviation aircraft, about 68 percent occurred in a piston-engine powered aircraft. According to the General Aviation Manufacturers Association (GAMA), there were approximately 2,750 new piston-engine powered aircraft manufactured in 2006. This is the largest production volume over the past ten years and reflects an average annual increase in sales that ranged from eight to 43 percent during the preceding 10-year period except for 2001 and 2002. GAMA estimates that the average piston-engine powered aircraft is 35-40 years old.
Avgas and automotive unleaded gasoline are both derived and blended from the refining of petroleum. However, due to the different nature of engine designs and operating environments these two types of gasoline are different in their chemical composition. Avgas is refined and blended to meet ASTM specification D910 while automotive unleaded gasoline (commonly referred to as mogas) meets ASTM specification D4814. Generally, avgas is transported independent of other fuel to avoid cross-contamination and to maintain the tight specifications of avgas required for proper engine operation in general aviation applications. TEL is added to avgas to increase octane, prevent knock,
Most piston engines used in general aviation are type certified by FAA for the use of leaded avgas (mostly 100LL). The FAA has issued supplemental type certificates (STCs) qualifying piston engines used in general aviation to use unleaded avgas. There are two types of unleaded gasoline reflected in these STCs. The first type of unleaded gasoline which can be used under STCs is ethanol-free unleaded automotive gasoline (mogas). Most aircraft using this mogas have low-compression engines which were originally certified to run on leaded 80/87 avgas and require only 87 antiknock index gasoline. The second type is known as 82UL avgas, which is unleaded fuel similar to automobile gasoline but without additives. It may be used in aircraft that have an STC for the use of automobile gasoline with an aviation lean octane rating of 82 or less or an antiknock index of 87 or less. ASTM specification D6227 has been established for 82UL but this fuel has not yet been produced for general distribution.
The Experimental Aircraft Association and Petersen Aviation estimate that ethanol-free unleaded gasoline can be used in approximately 40 percent of the piston-engine powered aircraft fleet (e.g., those aircraft with low-compression engines).
Efforts to explore reduced lead emissions from piston-engine powered aircraft have primarily focused on fuels to replace 100LL avgas, with less attention given to potential engine modifications. The FAA conducts research exploring replacement fuels for use in piston-engine powered aircraft at its William J. Hughes Technical Center. Publications from this research can be found at
At the 23rd World Assembly of the International AOPA, Lennart Persson of Hjelmco Oil in Sweden suggested that a 91/96 octane unleaded avgas could be a transparent switchover for 70 percent of the U.S. general aviation fleet. He indicated that this fuel would provide similar performance to 100LL avgas and has done so successfully in Sweden for 15 years. It is now offered for sale at 70 locations in Sweden. For more information see
EPA is soliciting public comment on any and all aspects of the petition from Friends of the Earth regarding issues related to the use of lead in general aviation gasoline. To assist us in developing our response to the petition EPA specifically requests information and comment on the following.
1. EPA requests information related to human and environmental lead exposures and effects around airports. Specifically, we request information on concentrations of lead in the air, soil, surface water or other environmental media at or near airports where leaded avgas is used. Information regarding sources of lead in addition to leaded avgas in these areas is also requested.
2. We request information on levels of lead in indoor dust in homes in the vicinity of airports where leaded avgas is used and information regarding the presence of leaded paint in those homes.
3. We request information on blood lead levels in children and adults residing or attending school in the vicinity of an airport where leaded avgas is used.
4. We request information on the characteristics of the populations residing in the vicinity of an airport where leaded avgas is used, specifically, information regarding the number of children six years and younger, the number of schools, daycare facilities, retirement homes, and the socioeconomic status of the population.
5. EPA request information on the volume of leaded avgas and unleaded aviation gasoline (mogas) supplied at individual airports nationwide.
6. EPA requests comment on locations where unleaded aviation gasoline is available and the reason for its apparent lack of widespread availability. We request the submission of information related to supplying unleaded aviation gasoline at airports and how potential fuel distribution issues could be addressed.
7. EPA requests information on the characteristics of piston engine general aviation operation, including annual LTOs by airport, LTO characteristics per airport and aircraft/engine type including mode, time-in-mode, and fuel flow rate in mode. Related to this, EPA requests information on the frequency and duration of local area flights (including touch/go operations) and flight durations within the mixing layer.
8. EPA requests information on the disposal of leaded avgas after a pilot checks the fuel before starting the aircraft. Specifically, we request information on how this fuel is discarded (i.e., is it deposited on the tarmac) or otherwise handled?
9. Leaded avgas contains ethylene dibromide which acts as a scavenger for lead by converting lead oxide to lead bromide compounds which are volatile and easily exhausted from the engine. This prevents lead oxide depositing on the valves and spark plugs where it could damage the engine. EPA requests information on the variation in lead emission rates at various operating modes and power settings and the quantity of lead retained in the engine and engine oil as a fraction of the lead in the fuel combusted.
10. EPA is requesting comments on the potential use of replacement fuels for use in piston-engine powered aircraft. Approximately 40 percent of the piston-engine powered aircraft fleet is certified with an STC allowing the use of ethanol-free unleaded gasoline (82UL or “mogas”), but these fuels are not widely available at airports. Information available to EPA suggests that 30 percent of the 100LL avgas consumed could be replaced by unleaded gasoline. These aircraft are equipped with low-compression engines that may also run on leaded aviation fuel when mogas or 82UL is not available.
11. We request analysis of the prospects for developing an unleaded fuel for the general aviation fleet that will meet the needs of high-compression engines, including additional research needed.
12. EPA is requesting comment on the viability of a high-octane unleaded aviation gasoline in a high-compression engine to provide equivalent performance and safety to 100LL avgas.
13. In this context, EPA requests comment on the viability of the use of ethyl tertiary-butyl ether (ETBE) or other octane enhancing compounds for unleaded fuel.
14. We also request information on what modifications would need to be made to the existing fleet of high-compression engines as well as new engines, with appropriate lead time, for them to operate on high-octane unleaded fuel with an equivalent margin of safety. In particular, we solicit comment on electronic ignition systems (full authority digital engine control) and knock (detonation) sensors, including comments on further research on these technologies. One example for consideration is the Teledyne Continental Motors/Aerosance Powerlink FADEC system.
15. EPA also requests information on the ability of current engines to operate on avgas with a decreased lead content relative to 100LL, and identification of the minimum lead content needed to maintain safe engine operation.
16. EPA requests comment on the storage of avgas, specifically, issues related to above ground storage capacity compared to below-ground storage capacity.
17. EPA requests comment on the availability of additives less toxic than lead to enhance aviation gasoline octane.
18. We request comment on the long-term availability of TEL as an avgas additive.
19. We request information related to the feasibility and costs of any potential options for limiting lead emissions from existing aircraft.
20. We request comment on the STCs which have been approved to allow for the use of unleaded gasoline in general aviation, the percent and characteristics of the current fleet covered by STCs, and obstacles to wider acceptance and application of the STCs.
21. EPA is requesting comment on additional research on alcohol-based fuels of which we should be aware. The FAA has approved a very limited number of STCs for use of ethanol-based AGE-85 fuel (85% ethanol in 15% unleaded gasoline) under a preliminary fuel specification. Subsequent approvals allowing more widespread use of AGE-85 are pending the development of a final, aviation-grade fuel specification to ensure potential safety concerns with the fuel are fully vetted by the FAA and the aviation industry.
22. EPA is requesting comment on additional research or information regarding the use of diesel engines in general aviation, particularly regarding equipment changes and the related costs. The FAA has approved Type Certificates and STCs for diesel-cycle engines that use widely-available, unleaded jet fuel.
Before the end of the comment period, please send all comments and related information to the address indicated in the
Office of the Chief Economist, U.S. Department of Agriculture.
Notice of Teleconference.
The Federal Advisory Committee for the Expert Review of Synthesis and Assessment Product 4.3 (CERSAP) will hold a teleconference on Friday, December 7, 2007. The U.S. Department of Agriculture (USDA) is the lead agency for Climate Change Science Program Synthesis and Assessment Product 4.3 (SAP 4.3) titled,
CERSAP will convene at 11 a.m. Eastern time on Friday, December 7. The teleconference is expected to last no more than 90 minutes. To receive call-in and password information, please contact Dr. Margaret Walsh at 202-720-9978 or
The teleconference will be held by telephone, and those interested in participating can do so by obtaining call-in information or using the conference room provided at USDA. Please contact Dr. Margaret Walsh at 202-720-9978 or
Dr. Margaret Walsh, Global Change Program Office, U.S. Department of Agriculture, 202-720-9978 or
This is a public meeting. In order to ensure a sufficient number of call-in lines, individuals who would like to participate in this teleconference must RSVP to Dr. Margaret Walsh before Friday, November 30, 2007 for access information. Written materials for CERSAP's consideration prior to the meeting must be received by Dr. Margaret Walsh no later than Friday, November 30, 2007. Individuals may make oral presentations. Those making oral presentations must inform Dr. Walsh when receiving the teleconference information that they plan to do so.
More information on CERSAP and on SAP 4.3 may be found online at
A. Welcome and Introductions.
B. Update on SAP 4.3.
C. Discussion of Process and Schedule.
D. Public Comment (if applicable).
Time will be reserved for public comment. Individual presentations will be limited to five minutes. Updates to the meeting agenda can be found online at the URLs listed above.
For information on facilities or services for individuals with disabilities, or to request special assistance, please contact Dr. Margaret Walsh. USDA prohibits discrimination on the basis of race, color, national origin, gender, religion, age, sexual orientation, or disability. Additionally, discrimination on the basis of political beliefs and marital or family status is also prohibited by statues enforced by USDA (not all prohibited bases apply to all programs). Persons with disabilities who require alternate means for communication of program information (Braille, large print, audio tape, etc.) should contact the USDA's Target Center at (202) 720-2000 (voice and TDD). USDA is an equal opportunity provider and employer.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA Forest Service will prepare an Environmental Impact Statement (EIS) to disclose the anticipated environmental effects of the 2007 Vail Ski Area Improvements proposal. The proposal includes projects designed to enhance the guest experience at Vail through a series of strategic, qualitative improvements and is tailored to improve Vail's ability to respond to its changing market/guests' demands and preferences.
Comments concerning the scope of the analysis must be received by December 17th. The draft environmental impact statement is expected in May 2008 and the final environmental impact statement is expected in July 2008.
Send written comments Maribeth Gustafson, Forest Supervisor, c/o Roger Poirier, Winter Sports Program Manager, White River National
For further information, mail correspondence to: Don Dressler—Snow Ranger, Holy Cross Ranger District 24747 U.S. Highway 24, P.O. Box 190, Minturn, CO 81645.
Don Dressler—Snow Ranger, Holy Cross Ranger District 24747 U.S. Highway 24, P.O. Box 190, Minturn, CO 81645,
The Proposed Action addresses issues related to the quality of the recreational experience. Presently, alpine skiing/snowboarding and other resort activities are provided to the public through a Special Use Permit (SUP) issued by the White River National Forest. All elements of the proposal remain within the existing SUP boundary area. The proposed improvements are consistent with the 2002 Revised White River National Forest Land and Resource Management Plan (Forest Plan).
The overall purpose and need for the Proposed Action is to enhance the guest experience through a series of strategic, qualitative improvements that will enable Vail to better respond to its changing market/guests' demands, expectations, and preferences—both in the near and long-term. The following basic needs are addressed by the Proposed Action:
(1) Expedite mountain circulation and afternoon egress between Vail Mountain and the Vail Village / Lionshead base areas.
(2) Improve skier/rider access to Sundown Bowl.
(3) Improve Vail's lift and vehicular maintenance facilities.
(4) Improve early-season and low snow year skiing/riding on the front side of Vail Mountain.
(5) Provide additional on-mountain dining opportunities.
(6) Improve access to West Earl's Bowl for both skiers/riders and mountain operations.
(7) Segregate ski and snowboard racing/training from the general public.
All proposed projects are within Vail's existing SUP boundary. The major aspects of the Proposed Action include:
• Upgrade Chair #5 (High Noon) to a high-speed, detachable chairlift;
• Install a high-speed, detachable chairlift in Sun Down Bowl;
• Construct a new on-mountain restaurant at the confluence of Chairs #4, #5, and #11;
• Expand the existing Golden Peak race venue to accommodate additional racing and training;
• Create a permanent, groomable route to the western extent of Earl's Bowl which will expedite skier/rider access as well as enhance Ski Patrol's ability to respond to their needs;
• Convert the existing Snow Summit SnowCat Garage into a lift maintenance facility, and construct a new, larger snowcat garage adjacent to it;
• Install additional snowmaking infrastructure on three existing trails—Simba, Upper Born Free, and Ledges—totalling approximately 95 acres of coverage;
• Infrastructural improvements associated with theses projects are also proposed, including power line installation to the bottom of Chair #5 and the proposed Sun Down Chairlift, improvements to the existing Chair #5 access road, regrading terminal locations, and installation of retaining walls and culverts.
The responsible official is Maribeth Gustafson, Forest Supervisor for the White River National Forest, 900 Grand Ave., P.O. Box 948, Glenwood Springs, Colorado 81602. The responsible official will document the decision and reasons for the decision in a Record of Decision. That decision will be subject to appeal under 36 CFR part 215 or part 251.
Based on the analysis that will be documented in the forthcoming EIS, the responsible official will decide whether or not to implement, in whole or in part, the Proposed Action or another alternative developed by the Forest Service.
Public questions and comments regarding this proposal are an integral part of this environmental analysis process. Comments will be used to identify issues and develop alternatives to Vail's proposal. To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments should be as specific as possible.
Input provided by interested and/or affected individuals, organizations and governmental agencies will be used to identify resource issues that will be analyzed in the Draft EIS. The Forest Service will identify significant issues raised during the scoping process, and use them to formulate alternatives, prescribe mitigation measures and project design features, or analyze environmental effects.
This notice of intent initiates the scoping process which guides the development of the environmental impact statement.
Early Notice of Importance of Public Participation in Subsequent Environmental Review: A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the
Proposed Deletions from the Procurement List.
The Committee is proposing to delete from the Procurement List products previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich,
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. If approved, the action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the products proposed for deletion from the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to and Deletions from the Procurement List.
This action adds to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes from the Procurement List a product and services previously furnished by such agencies.
December 16, 2007.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Kimberly M. Zeich, Telephone: (703) 603-7740, Fax: (703) 603-0655, or e-mail
On September 21, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 53989) of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government.
2. The action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
On August 10 and September 21, 2007, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice (72 FR 45008; 53989) of proposed deletions to the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the product and services listed below are no longer suitable for procurement by the Federal
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action may result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the product and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the product and services deleted from the Procurement List.
Accordingly, the following product and services are deleted from the Procurement List:
Import Administration, International Trade Administration, Department of Commerce.
On June 29, 2007, in response to requests from interested parties, the Department of Commerce published a notice of initiation of administrative reviews of the antidumping duty orders on ball bearings (and parts thereof) from France, Germany, Italy, Japan, and the United Kingdom. The period of review is May 1, 2006, through April 30, 2007. The Department of Commerce is rescinding these reviews in part.
November 16, 2007.
Richard Rimlinger, AD/CVD Enforcement, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14
On June 29, 2007, in response to requests from interested parties, the Department of Commerce (Department) published a notice of initiation of administrative reviews of the antidumping duty orders on ball bearings (and parts thereof) from France, Germany, Italy, Japan, and the United Kingdom. See
Subsequent to the initiation of these reviews, the requests we had received for the reviews of the following company/country combinations were withdrawn:
In accordance with 19 CFR 351.213(d) the Department will rescind an administrative review “if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” We received all of the above withdrawal letters, except one, within the 90-day time limit. Although Mori Seiki Co., Ltd., withdrew its request 91 days after initiation of the review, we have honored this request because we have not expended significant resources with regard to Mori Seiki Co., Ltd., and no party has objected to Mori Seiki Co., Ltd.,'s late withdrawal of its request. Because the Department received no other requests for review of these firms, the Department is rescinding the reviews in part with respect to ball bearings and parts thereof from France, Germany, Italy, Japan, and the United Kingdom by these firms. The above rescissions are pursuant to 19 CFR 351.213(d)(1). The Department will issue appropriate assessment instructions to U.S. Customs and Border Protection 15 days after publication of this notice.
This notice serves as a final reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's assumption that reimbursement of antidumping duties occurred and subsequent assessment of double antidumping duties.
This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these rescissions in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
On October 12, 2007, the Department of Commerce published in the
November 16, 2007.
Richard Rimlinger, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4477.
On October 12, 2007, the Department of Commerce (the Department) published in the
We received a timely allegation of ministerial error pursuant to 19 CFR § 351.224(c) from Mori Seiki Co., Ltd., that, due to an error in our calculations, we did not make comparisons between certain models sold in the United States and similar models sold by Mori Seiki Co., Ltd. in its home market. We also received a timely allegation of ministerial error pursuant to 19 CFR § 351.224(c) from the Timken US Corporation that, due to an error in our
As a result of the corrections of the clerical errors, the following weighted-average margins exist for exports of ball bearings by Mori Seiki Co., Ltd. and the Barden Corporation/Schaeffler UK for the period May 1, 2005, through April 30, 2006:
The Department will determine and the U.S. Bureau of Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. We intend to issue appropriate assessment instructions directly to CBP 15 days after publication of these amended final results of reviews. Where the importer-/customer-specific assessment rate or amount is above
We will also direct CBP to collect cash deposits of estimated antidumping duties on all appropriate entries in accordance with the procedures discussed in the Final Results and at the rates as amended by this notice. The amended deposit requirements are effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date these amended final results are published in the
We are issuing and publishing these determinations and notice in accordance with sections 751(a)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR § 351.224(e).
Import Administration, International Trade Administration, Department of Commerce.
November 16, 2007.
Myrna Lobo or Douglas Kirby, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, Room 7866, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-2371 or (202) 482-3782, respectively.
On August 8, 2007, the Department published the preliminary results of the administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand for the period July 1, 2005 through June 30, 2006.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act) requires the Department to issue the final results in an administrative review within 120 days of the publication date of the preliminary results. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to a maximum of 180 days. The Department has determined that completion of the final results of this review within the original time period is not practicable due to the additional analysis that must be performed on the information collected at verification conducted since the issuance of the preliminary results. Specifically, the Department requires additional time to analyze selling agent relationships pertaining to respondent. Thus, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for issuing the final results of review by an additional 60 days, until February 4, 2008.
This notice is published pursuant to sections 751(a)(3)(A) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
November 16, 2007.
Julia Hancock, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1394.
On July 12, 2007, the Department published a notice of initiation of new shipper reviews of fresh garlic from the PRC covering the period November 1, 2006, through April 30, 2007.
Section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (the “Act”), provides that the Department will issue the preliminary results of a new shipper review of an antidumping duty order within 180 days after the day on which the review was initiated.
The Department determines that these new shipper reviews involve extraordinarily complicated
We are issuing and publishing this notice in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is further extending the time limit for the preliminary results of the aligned administrative and new shipper reviews of honey from the People's Republic of China (“PRC”). These reviews cover the period December 1, 2005, through November 30, 2006.
November 16, 2007.
Bobby Wong or Michael Quigley, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0409 or (202) 482-4047, respectively.
On December 10, 2001, the Department published in the
On July 31, 2007, the Department published a notice extending the deadline of the preliminary results by 90 days, currently due no later than December 3, 2007.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), requires the Department to make a preliminary determination within 245 days after the last day of the anniversary month of an order for which a review is requested, and a final determination within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within these time periods, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the preliminary determination to a maximum of 365 days after the last day of the anniversary month.
We determine that it is not practicable to complete the preliminary results of these administrative and new shipper reviews within the original time limit because the Department requires additional time to conduct verification and evaluate the most appropriate surrogate value data to use during the period of review. Therefore, the Department is extending the time limit for completion of the preliminary results of the aligned administrative and new shipper reviews by an additional 16 days. The preliminary results will now be due no later than December 17, 2007. The final results continue to be due 120 days after the publication of the preliminary results.
We are issuing and publishing this notice in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On July 11, 2007, the Department of Commerce published the preliminary results of the 2005/2006 administrative review of the antidumping duty order on polyethylene retail carrier bags from Thailand. We gave interested parties an opportunity to comment on the preliminary results. Based on our analysis of the comments received and an examination of our calculations, we have made certain changes for the final results. The final weighted-average dumping margins for the respondents are listed below in the “Final Results of the Review” section of this notice.
November 16, 2007.
Kristin Case or Richard Rimlinger, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14
On July 11, 2007, the Department of Commerce (the Department) published
We invited parties to comment on the
We have conducted this review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to this antidumping duty order is polyethylene retail carrier bags (PRCBs) which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm).
PRCBs are typically provided without any consumer packaging and free of charge by retail establishments,
As a result of recent changes to the
In the
In the preliminary results of this administrative review, the Department found that UPC/API absorbed antidumping duties on all U.S. sales in accordance with section 751(a)(4) of the Act. See
All issues raised in the case and rebuttal briefs by parties to this review are addressed in the November 8, 2007, Issues and Decision Memorandum for the Antidumping Duty Administrative Review of Polyethylene Retail Carrier Bags from Thailand for the period of review August 31, 2005, through July 31, 2006 (Decision Memorandum), which is hereby adopted by this notice. Attached to this notice as an appendix is a list of the issues which parties have raised and to which we have responded in the Decision Memorandum. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Department's Central Records Unit, Room B-099 of the main Department building (CRU). In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn. The paper copy and electronic version of the Decision Memorandum are identical in content.
We recalculated CP's general and administrative expenses to base them on CP's 2006 audited financial statements rather than its 2005 financial statements. We also corrected a clerical error in the margin calculations for UPC/API by deducting foreign movement expenses incurred in baht.
For these final results of review, the Department disregarded home-market sales by CP, UPC/API, and TPBG that failed the cost-of-production test.
As a result of our review, we determine that the following percentage weighted-average dumping margins exist on polyethylene retail carrier bags from Thailand for the period August 31, 2005, through July 31, 2006:
Upon issuance of these final results, the Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. We calculated importer/customer-specific duty assessment rates or per-unit dollar amounts, as appropriate, for each respondent's reported importer or customer.
Where the assessment rate or amount is above
The Department clarified its “automatic assessment” regulation on May 6, 2003. See
With respect to export-price sales by TPBG and CP, we divided the total dumping margins (calculated as the difference between normal value and the export price) for each exporter's importer or customer by the total number of units the exporter sold to that importer or customer. We will direct CBP to assess the resulting per-unit dollar amount against each unit of merchandise on each of that importer's or customer's entries during the review period. See 19 CFR 351.212(b)(1).
For constructed export-price sales by UPC/API, we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct CBP to assess the resulting percentage margin against the entered customs values for the subject merchandise on each of that importer's entries during the review period. See 19 CFR 351.212(b)(1).
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication, consistent with section 751(a)(1) of the Act: (1) the cash-deposit rates for the reviewed companies will be the rates shown above; (2) for previously investigated companies not listed above, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review or the original less-than-fair-value (LTFV) investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) the cash-deposit rate for all other manufacturers or exporters will continue to be 2.80 percent, the all-others rate from the amended final determination of the LTFV investigation published on July 15, 2004. See
These deposit requirements shall remain in effect until further notice.
This notice serves as a 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 this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. See
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
In response to requests from respondent Akzo Nobel Functional
November 16, 2007.
John Drury or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Room 7866, Washington, DC 20230; telephone: (202) 482-0195 or (202) 482-3019, respectively.
The Department published an antidumping duty order on CMC from the Netherlands on July 11, 2005.
Akzo Nobel withdrew its request for review on October 2, 2007. Petitioner withdrew its request for review of sales by Akzo Nobel on October 3, 2007.
Pursuant to 19 CFR § 351.213(d)(1), the Secretary will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so. See 19 CFR § 351.213(d)(1). Both petitioner and Akzo Nobel withdrew their requests for review with respect to the latter within the 90-day time limit. Therefore, in response to the withdrawal of requests for administrative reviews by both Akzo Nobel and petitioner, the Department hereby rescinds the administrative review of the antidumping duty order on CMC from the Netherlands for the period July 1, 2006, through June 30, 2007, for Akzo Nobel. The Department intends to issue assessment instructions to the U.S. Customs and Border Protection (“CBP”) 15 days after the date of publication of this partial rescission of administrative review. The Department will direct CBP to assess antidumping duties for Akzo Nobel at the cash deposit rate in effect on the date of entry for entries during the period July 1, 2006, to June 30, 2007.
This notice serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR § 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR § 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
November 16, 2007.
Irina Itkin, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone (202) 482-0656.
On May 30, 2007, the Department of Commerce (the Department) published a notice of initiation of administrative review of the antidumping duty order on certain steel concrete reinforcing bars from Turkey.
Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), the Department shall make a preliminary determination in an administrative review of an antidumping order within 245 days after the last day of the anniversary month of the date of publication of the order. The Act further provides, however, that the Department may extend the 245-day period to 365 days if it determines that it is not practicable to complete the review within the foregoing time period. We determine that it is not practicable to complete this administrative review within the time limits mandated by section 751(a)(3)(A) of the Act because this review involves a number of complicated issues for certain of the respondents, including a request for revocation for one of the respondents. Analysis of these issues requires additional time.
In addition, we are also conducting numerous concurrent antidumping
This extension is in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).
Import Administration, International Trade Administration, U.S. Department of Commerce.
November 16, 2007.
Elfi Blum or Toni Page, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, Room 7866, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-0197 or (202) 482-1398, respectively.
On August 6, 2007, the Department published the preliminary results of the administrative review of the countervailing duty order on polyethylene terephthalate (PET) film from India for the period January 1, 2005 through December 31, 2005.
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act) requires the Department to issue the final results in an administrative review within 120 days of the publication date of the preliminary results. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to a maximum of 180 days. The Department has determined that completion of the final results of this review within the original time period is not practicable due to the additional analysis that must be performed on the information collected at the verification conducted after the issuance of the preliminary results. Thus, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for issuing the final results of review by an additional 60 days. As the 180th day falls on a Saturday, the final results will now be due no later than February 4, 2008.
This notice is published pursuant to sections 751(a)(3)(A) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Center for Biodiversity and Conservation, American Museum of Natural History, Central Park West at 79
Written, telefaxed, or e-mail comments must be received on or before [
The application and related documents are available for review upon written request or by appointment in the following offices:
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; and
Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI
Written comments or requests for a public hearing on this application should be mailed to the Chief, Permits, Conservation and Education Division, F/PR1, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910. Those individuals requesting a hearing should set forth the specific reasons why a hearing on this particular request would be appropriate.
Comments may also be submitted by facsimile at (301)427-2521, provided the facsimile is confirmed by hard copy submitted by mail and postmarked no later than the closing date of the comment period.
Comments may also be submitted by e-mail. The mailbox address for providing e-mail comments is
Patrick Opay or Amy Hapeman, (301)713-2289.
The subject permit is requested under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The applicant proposes to study the population biology and connectivity of green and hawksbill sea turtles focusing on distribution and abundance, ecology, health, and threats to sea turtles at the Palmyra Atoll in the Pacific Ocean. Researchers would also consider management and conservation applications of their research. Up to 300 green and 100 hawkbill sea turtles would be captured by hand or net, examined, measured, photographed, flipper and Passive Integrated Transponder tagged, blood sampled, carapace sampled, shell etched and painted, fecal sampled, have their temperature measured, and released. Up to 75 of the green and 25 of the hawksbill sea turtles would also be gastric lavaged before release. Up to 15 of the green and 5 of the hawksbill sea turtles would have transmitters affixed to their carapace before release. Additionally, researchers would examine, measure, tissue sample, stomach sample, humerus sample, and photograph up to 30 green and 10 hawksbill sea turtle carcasses that they may encounter. The permit would be valid for 5 years and the research would occur.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of petition finding; request for information and comments.
The National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce, announces the 90-day finding for a petition to reclassify loggerhead turtles (
We are initiating a review of the status of the species to determine whether the petitioned action is warranted and to determine whether any additional changes to the current listing of the loggerhead turtle are warranted. To ensure a comprehensive review, we are soliciting information and comments pertaining to this species from any interested party.
Written comments and information related to this petition finding must be received [see
Written comments and information should be addressed to the Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via fax to 301-427-2522, or by e-mail to:
Barbara Schroeder by phone 301-713-2322, fax 301-427-2522, or e-mail
Section 4(b)(3)(A) of the ESA (16 U.S.C. 1531
On July 16, 2007, we received a petition from the Center for Biological Diversity and the Turtle Island Restoration Network requesting that loggerhead turtles in the North Pacific Ocean be reclassified as a DPS (see Petition Finding for discussion on Distinct Population Segments) with endangered status and that critical habitat be designated.
The petition contains a detailed description of the species' natural
Finally, the petitioners request that if the North Pacific loggerhead is not determined to meet the DPS criteria, that loggerheads throughout the Pacific Ocean be designated as a DPS and listed as endangered.
Based on the above information and criteria specified in 50 CFR 424.14(b)(2), we find the petitioners present substantial scientific and commercial information indicating that a reclassification of the loggerhead in the North Pacific Ocean as a DPS and listing of that DPS with endangered status may be warranted. The ESA defines a “species” as “...any subspecies of fish or wildlife or plants and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” NMFS and the U.S. Fish and Wildlife Service (USFWS) published a joint policy defining the phrase “distinct population segment” on February 7, 1996 (61 FR 4722). Three elements are considered in a decision regarding the listing, delisting, or reclassification of a DPS as endangered or threatened under the ESA: discreteness of the population segment in relation to the remainder of the species, significance of the population segment to the species, and conservation status. Under section 4(b)(3) of the ESA, an affirmative 90-day finding requires that we commence a status review on the loggerhead turtle. NMFS and the USFWS recently completed a 5-year review of the loggerhead turtle, as required under Section 4(c)(2) of the Endangered Species Act of 1973, as amended (NMFS and USFWS 2007). This review recommended that a full status review of the loggerhead be conducted in accordance with the DPS policy. We are initiating this review and, once it has been completed, a finding will be made as to whether reclassification of the loggerhead in the North Pacific Ocean, with endangered status, is warranted, warranted but precluded by higher priority listing actions, or not warranted, as required by section 4(b)(3)(B) of the ESA. The review will also consider whether any additional changes to the current threatened listing for the loggerhead are warranted.
There is no critical habitat designated for the loggerhead turtle. The ESA currently requires us to make a critical habitat determination concurrent with listing determinations. The ESA defines “critical habitat” as
“...the specific areas within the geographical area occupied by the species, at the time it is listed... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and...specific areas outside the geographical area occupied by the species at the time it is listed... upon a determination...that such areas are essential for the conservation of the species.”
Under section 4(a)(1) of the ESA and the implementing regulations at 50 CFR 424.11(c), a species shall be reclassified, if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species' status, that the species is threatened or endangered because of one or a combination of the following: (1) present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence.
To ensure that the status review is complete and based on the best available data, we are soliciting information and comments on whether loggerhead turtles in the North Pacific Ocean, or any other area, qualify as a DPS and, if so, whether it should be classified as threatened or endangered based on the above ESA section 4(a)(1) factors. Specifically, we are soliciting information in the following areas relative to loggerheads in the North Pacific and elsewhere: (1) historical and current population status and trends; (2) historical and current distribution; (3) migratory movements and behavior; (4) genetic population structure; (5) current or planned activities that may adversely impact loggerheads; and (6) ongoing efforts to protect loggerheads. We request that all data, information, and comments be accompanied by supporting documentation such as maps, bibliographic references, or reprints of pertinent publications.
All submissions must contain the submitter's name, address, and any association, institution, or business that the person represents. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address (see
We are also requesting information on areas within U.S. jurisdiction that may qualify as critical habitat for loggerhead turtles, both in the North Pacific Ocean and elsewhere within the species' range. Areas that include the physical and biological features essential to the conservation of the species should be identified. Areas outside the present range should also be identified if such areas are essential to the conservation of the species. Essential features include, but are not limited to: (1) space for individual growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical and ecological distributions of the species (50 CFR 424.12).
For listings, delistings, and reclassifications under the ESA, NMFS and USFWS have a joint policy for peer review of the scientific data (59 FR 34270, July 1, 1994). The intent of the peer review policy is to ensure that listings are based on the best scientific and commercial data available. We are soliciting the names of recognized experts in the field that could serve as peer reviewers for the loggerhead status review. Independent peer reviewers will be selected from the academic and scientific community, applicable tribal and other Native American groups,
National Marine Fisheries Service and U.S. Fish and Wildlife Service. 2007. Loggerhead sea turtles (
16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce.
Addendum to Earlier Notice - “Notice of Public Hearings for Amendments 15A and 15B to the Snapper Grouper Fishery Management Plan for the South Atlantic Region”.
The start time for the public hearing scheduled for Atlantic Beach, NC on December 3, 2007 regarding Amendment 15A and Amendment 15B to the Snapper Grouper Fishery Management Plan has been changed from 6:00 p.m. to 7:00 p.m.
The change applies to the public hearing scheduled for December 3, 2007.
The public hearing will be held at the Sheraton Atlantic Beach, 2717 W. Fort Macon Road, Atlantic Beach, NC 28512; telephone: (252) 240-1155
Richard DeVictor, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; telephone: (843) 571-4366; fax: (843) 769-4520; email address: Richard.devictor@safmc.net.
The original notice published in the
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Federal Acquisition Regulation (FAR) Secretariat will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a currently approved information collection requirement concerning certification of independent price determination and parent company and identifying data. The clearance currently expires on January 31, 2008.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; 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.
Submit comments on or before January 15, 2008.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to the General Services Administration, FAR Secretariat (VIR), 1800 F Street, NW., Room 4035, Washington, DC 20405.
Ernest Woodson, Contract Policy Division, GSA (202) 501-3775.
Agencies are required to report under 41 U.S.C. 252(d) and 10 U.S.C. 2305(d) suspected violations of the antitrust laws (
As a first step in assuring that Government contracts are not awarded to firms violating such laws, offerors on Government contracts must complete the certificate of independent price determination. An offer will not be considered for award where the certificate has been deleted or modified. Deletions or modifications of the certificate and suspected false certificates are reported to the Attorney General.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (Corps) Omaha District has
The current project was authorized in February 2004 with Department of the Army Permit No. 199980472 (Section 404 Permit). The basic purpose of the Proposed Action would allow the reservoir to serve as a regional water management facility for multiple water providers in northern Douglas County; enable them to meet peak demands; greatly enhance water management in the region; and help extend the yield of the Denver Basin aquifers, a non-renewable water source and the primary source of water for the South Metro area. Expansion of the reservoir would result in direct impacts to an additional 0.21 acres of wetlands and 4 miles of intermittent stream channel (in addition to the 6.7 acres of wetlands and 5 miles of other waters of the U.S. permitted as part of the 16,200-acre-foot [AF] reservoir). This action requires authorization from the Corps under Section 404 of the Clean Water Act. The Permittee and Applicant is the Parker Water and Sanitation District (PWSD).
The Final SEIS was prepared in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the Corps' regulations for NEPA implementation (33 Code of Federal Regulations [CFR] parts 230 and 325, Appendices B and C). The Corps, Omaha District, Regulatory Branch is the lead federal agency responsible for the Final SEIS and information contained in the SEIS serves as the basis for a decision regarding issuance of a Section 404 Permit modification. It also provides information for local and state agencies having jurisdictional responsibility for affected resources.
The 30-day Notice of Availability of the Final SEIS ends on December 17, 2007.
Send written comments regarding the Proposed Action and Final SEIS to Rodney Schwartz, Senior Project Manager, U.S. Army Corps of Engineers, Omaha District—Regulatory Branch, 12565 West Center Road, Omaha, NE 68144-3869 or via e-mail:
Rodney Schwartz, Senior Project Manager, U.S. Army Corps of Engineers at 402-221-4143; Fax 402-221-4939.
The purpose of the Final SEIS is to provide decision-makers and the public with information pertaining to the Proposed Action and alternatives, and to disclose environmental impacts and identify mitigation measures to reduce impacts. PWSD proposes to enlarge the Rueter-Hess Reservoir from the currently permitted design of 16,200 AF by 55,800 AF for a total storage capacity of approximately 72,000 AF. This is considered the site's maximum storage capacity based on the site's topography. The proposed expanded reservoir pool would inundate approximately 1,140 acres (an additional 672 acres). PWSD would maintain a 5,000-AF emergency reserve pool in the reservoir (elevation 6,110 feet) to be used as needed to provide a reliable water supply for its customers. The proposed design involves raising the currently permitted dam (embankment) by 61 feet, to a crest elevation of 6,220 feet, using a downstream raise concept. The final dam is proposed to be a 196-foot-high and 7,675-foot-long zoned earth embankment.
The purpose for the enlarged reservoir is to provide sufficient storage of Denver Basin groundwater, and the associated reuse water from initial Denver Basin use, for selected South Metro Denver area water providers, and to assist in sustaining the Denver Basin aquifers. The additional water to be stored in a proposed expanded Rueter-Hess Reservoir would come from existing sources (i.e., Denver Basin groundwater and associated reusable return flows). The reservoir would be used to manage supplies during off-peak times and use this water during peak times to reduce the need for instantaneous production from Denver Basin wells. In addition to the proposal to expand the reservoir, new pipelines would be installed to deliver the water to and from the new Project Participants (Town of Castle Rock, Castle Pines North Metropolitan District and Stonegate Metropolitan District).
In addition to the Proposed Action, the Final SEIS analyzes two alternatives: (1) The Reduced-Capacity Reservoir (47,000 AF) Alternative, and (2) the No Action Alternative. The Reduced-Capacity Reservoir Alternative dam would be located along the same axis as the Proposed Action, but would be smaller in length (7,160 feet) and height (179 feet). The reservoir would have a surface area of 934 acres at normal pool. The No Action Alternative assumes that PWSD and the other Project Participants would continue their current operations of primarily providing water to their customers with Denver Basin groundwater by drilling additional wells to meet peak summertime demands. PWSD would construct the currently permitted Rueter-Hess Reservoir (16,200 AF) to obtain firm annual yield for the PWSD, focusing on meeting peak summertime demands. Stonegate would have some storage capacity (1,200 AF) in the currently permitted reservoir. Castle Rock and Castle Pines North would not have surface water storage available to meet their needs; therefore, their ability to capture and reuse their reusable return flows would be limited. Castle Rock and Castle Pines North would extract and use their reuse water only as it is being generated from their advanced wastewater treatment plants and lawn irrigation.
Copies of the Final SEIS will be available for review at:
1. Parker Library, 10851 South Crossroads Drive, Parker, CO 80134.
2. Philip S. Miller Library, 100 S. Wilcox, Castle Rock, CO 80104.
3. Parker Water and Sanitation District, 19801 East Mainstreet, Parker, CO 80138.
4. U.S. Army Corps of Engineers, Denver Regulatory Office, 9307 S. Wadsworth Boulevard, Littleton, CO 80128.
5. Electronically at
Copies may also be obtained from the Corps' third-party contractor, URS Corporation, Attn: Rachel Badger, 8181 East Tufts Avenue, Denver, CO 80237; 303-740-2778; Fax 303-694-3946;
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before December 17, 2007.
Written comments should be addressed to the Office of Information and Regulatory Affairs, Attention: Education Desk Officer, Office of Management and Budget, 725 17th Street, NW., Room 10222, Washington, DC 20503. Commenters are encouraged to submit responses electronically by email to
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
The programs authorized include the Strengthening Institutions Program (SIP), the American Indian Tribally Controlled Colleges and Universities (TCCU), and the Alaskan Native and Native Hawaiian-Serving Institutions (ANNH) Programs. Title V authorizes the Hispanic-Serving Institutions Program. These programs award discretionary grants to eligible institutions of higher education as that they might increase their self-sufficiency by improving academic programs, institutional management and fiscal stability.
This information collection is being submitted under the Streamlined Clearance Process for Discretionary Grant Information Collections (1890-0001). Therefore, the 30-day public comment period notice will be the only public comment notice published for this information collection.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before January 15, 2008.
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of Application.
The Royal Bank of Scotland plc (RBS) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before December 17, 2007.
Comments, protests, or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0350 (FAX 202-586-8008).
Ellen Russell (Program Office) 202-586-9624 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C.824a(e)).
On October 2, 2007, the Department of Energy (DOE) received an application from RBS for authority to transmit electric energy from the United States to Canada as a power marketer. RBS, a public limited liability company registered in Scotland, has requested an electricity export authorization with a 5-year term. RBS does not own or control any electric generation, transmission, or distribution assets, nor does it have a franchised service area. The electric energy which RBS proposes to export to Canada would be surplus energy purchased from electric utilities, Federal power marketing agencies, and other entities within the United States.
RBS will arrange for the delivery of exports to Canada over the international transmission facilities owned by Basin Electric Power Cooperative, Bonneville Power Administration, Eastern Maine Electric Cooperative, International Transmission Co., Joint Owners of the Highgate Project, Long Sault, Inc., Maine Electric Power Company, Maine Public Service Company, Minnesota Power, Inc., Minnkota Power Cooperative, Inc., New York Power Authority, Niagara Mohawk Power Corp., Northern States Power Company, Vermont Electric Power Company, and Vermont Electric Transmission Co.
The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by RBS has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
Comments on the RBS application to export electric energy to Canada should be clearly marked with Docket No. EA-330. Additional copies are to be filed directly with Paul Stevelman, Esq., Managing Director and Deputy General Counsel, RBS Greenwich Capital, 600 Steamboat Road, Greenwich, CT 06830 AND Brian Chisling, Esq., Senior Counsel, Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017-3954.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability, DOE.
Notice of application.
The Royal Bank of Scotland plc (RBS) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.
Comments, protests, or requests to intervene must be submitted on or before December 17, 2007.
Comments, protests, or requests to intervene should be addressed as follows: Office of Electricity Delivery and Energy Reliability,
Ellen Russell (Program Office) 202-586-9624 or Michael Skinker (Program Attorney) 202-586-2793.
Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the FPA (16 U.S.C.824a(e)).
On October 2, 2007, the Department of Energy (DOE) received an application from RBS for authority to transmit electric energy from the United States to Mexico as a power marketer. RBS has requested an electricity export authorization with a 5-year term. RBS does not own or control any generation, transmission, or distribution assets, nor does it have a franchised service area. The electric energy which RBS proposes to export to Mexico would be surplus energy purchased from electric utilities, Federal power marketing agencies, and other entities within the U.S.
RBS will arrange for the delivery of exports to Mexico over the international transmission facilities owned by San Diego Gas & Electric Company, El Paso Electric Company, Central Power & Light Company, Sharyland Utilities, and Comision Federal de Electricidad, the national electric utility of Mexico.
The construction, operation, maintenance, and connection of each of the international transmission facilities to be utilized by RBS has previously been authorized by a Presidential permit issued pursuant to Executive Order 10485, as amended.
DOE notes that RBS shall have no authority to export electricity to Mexico until the conclusion of this proceeding and the issuance of an order granting authority to export.
Comments on the RBS application to export electric energy to Mexico should be clearly marked with Docket No. EA-331. Additional copies are to be filed directly with Paul Stevelman, Esq., Managing Director and Deputy General Counsel, RBS Greenwich Capital, 600 Steamboat Road, Greenwich, CT 06830 AND Brian Chisling, Esq., Senior Counsel, Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017-3954.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969, and a determination is made by DOE that the proposed action will not adversely impact on the reliability of the U.S. electric power supply system. Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at
Office of Electricity Delivery and Energy Reliability (OE), Department of Energy (DOE) and the Bureau of Land Management (BLM), Department of the Interior (DOI).
Notice of Availability of the Draft Programmatic Environmental Impact Statement for the Designation of Energy Corridors in Eleven Western States and Notice of Public Hearings.
DOE and BLM of the DOI as co-lead agencies, and the U.S. Forest Service (FS) of the Department of Agriculture, the Department of Defense (DOD), and the U.S. Fish and Wildlife Service (USFWS) of the DOI as cooperating Federal Agencies (the Agencies) announce the availability of the Draft Programmatic Environmental Impact Statement for the Designation of Energy Corridors in the 11 Western States (Draft PEIS) (DOE/EIS—0386) and the dates and locations for the public hearings to receive comments on the Draft PEIS.
The Coeur d'Alene Tribe, the California Energy Commission (CEC), the California Public Utilities Commission (CPUC), the State of Wyoming, and the Lincoln, Sweetwater, and Uinta counties and conservation districts in Wyoming are also cooperating agencies. The Department of Commerce (DOC) and the Federal Energy Regulatory Commission (FERC) are consulting agencies.
The Agencies prepared the Draft PEIS pursuant to the National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. 4321 et seq., the Council on Environmental Quality NEPA regulations, 40 CFR Parts 1500-1508, the DOE NEPA regulations, 10 CFR part 1021, and 10 CFR part 1022, Compliance with Floodplain and Wetland Environmental Review Requirements, the BLM planning regulations, 43 CFR part 1600, and applicable FS planning regulations.
Section 368 of the Energy Policy Act of 2005 (EPAct 2005), Public Law 109-58, directs the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of Energy and the Secretary of the Interior, in consultation with FERC, States, tribal
The 11 Western States are Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
The 90-day public comment period begins with the publication of the Notice of Availability of the Draft PEIS in the
See Supplementary Information section for meeting addresses. Submit electronic comments and requests to speak at one of the public meetings on-line at
For information on the proposed project contact Ms. LaVerne Kyriss as indicated in the
For general information on the DOE NEPA process, contact: Carol M. Borgstrom, Director, Office of NEPA Policy and Compliance (GC-20), U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585; phone: 202-586-4600 or leave a message at 800-472-2756; facsimile: 202-586-7031.
For general information on the BLM's NEPA process, contact: Ron Montagna, (202) 452-7782, or KateWinthrop, (202) 452-5051, at: BLM, WO-350, MS 1000 LS, 1849 C Street, NW., Washington, DC 20240.
The Agencies invite interested Members of Congress, state and local governments, other Federal agencies, American Indian tribal governments, organizations, and members of the public to provide comments on the Draft PEIS. Written and oral comments will be given equal weight, and the agencies will consider all comments received or postmarked by February 14, 2008 in preparing the Final PEIS. Comments received or postmarked after that date will be considered to the extent practicable.
Public meeting dates and addresses are:
1. January 8, 2008, 2 to 5 and 6 to 8 p.m., Portland, OR: Doubletree Portland Lloyd Center, 1000 North West Multnomah and Sacramento, CA: California Energy Commission, 1516 Ninth Street.
2. January 10, 2008, 2 to 5 and 6 to 8 p.m., Seattle, WA: Renaissance Hotel Seattle, 515 Madison Street and Ontario, CA: Ayres Hotel and Suites, Ontario Airport/Convention Center, 1945 East Holt Boulevard.
3. January 15, 2008, 2 to 5 and 6 to 8 p.m., Phoenix, AZ: BLM Training Center, 9828 North 31st Avenue and Grand Junction, CO: Marriott Courtyard, 765 Horizon Drive.
4. January 17, 2008, 2 to 5 and 6 to 8 p.m., Las Vegas, NV: The Atomic Testing Museum, 1755 E. Flamingo Road and Salt Lake City, UT: Airport Hilton Hotel, 5151 Wiley Post Way.
5. January 23, 2008, 2 to 5 p.m., Window Rock, AZ: Navajo Education Center, Morgan Boulevard.
6. January 24, 2008, 2 to 5 and 6 to 8 p.m., Albuquerque, NM: Holiday Inn and Suites, 5050 Jefferson Street.
7. January 29, 2008, 2 to 5 and 6 to 8 p.m., Helena, MT: Best Western Helena Great Northern Hotel, 835 Great Northern Boulevard and Cheyenne, WY: Best Western Hitching Post Inn and Conference Center, 1700 West Lincoln Way.
8. January 31, 2008, 2 to 5 and 6 to 8 p.m., Boise, ID: Best Western Vista Inn and Conference Center, 2645 Airport Way and Denver, CO: Holiday Inn Cherry Creek, 455 South Colorado Boulevard.
9. February 5, 2008, 2 to 4 p.m., Washington, DC: Embassy Suites Washington Convention Center, 900 10th Street, NW.
Requests to speak at a specific public hearing should be received by DOE as indicated in the
The Draft PEIS consists of a stand alone Summary, the PEIS Chapters (Volume 1, 567 pages), the PEIS Appendices (Volume 2, 400 pages), and Maps (Volume 3, 131 pages). The entire Draft PEIS is available online at
The Draft PEIS Volume 3 map atlas is printed on ledger-sized paper. The CD version of the Draft PEIS includes the map atlas in PDF format. The most powerful and flexible version of the map data is available on the project Web site (
The purpose and need for the Agencies' action is to implement EPAct Section 368 by designating corridors for the preferred locations of future oil, gas, and hydrogen pipelines and electricity transmission and distribution facilities and to incorporate the designated corridors into the relevant agency land use and resource management plans or equivalent plans.
Section 368 directs the Agencies to take into account the need for upgraded and new infrastructure and to take actions to improve reliability, relieve congestion, and enhance the capability of the national grid to deliver energy. This action only pertains to the designation of corridors for potential facilities on Federal lands located within the 11 Western States. In addition, this action is intended to improve coordination among the Agencies to increase the efficiency of using designated corridors.
In many areas of the United States, including the West, the infrastructure required to deliver energy has not always kept pace with growth in energy
The Draft PEIS analyzes two alternatives: A No Action Alternative and the Proposed Action to designate new and locally approved energy corridors (Proposed Action). Under the No Action Alternative, Federal energy corridors mandated by EPAct Section 368 would not be designated on Federal lands in the 11 Western States; the siting and development of energy transport projects would continue under current agency procedures for granting rights-of-way (ROW), for which energy transport project applicants must satisfy the often disparate requirements of multiple agencies for the same project. There would be relatively little West-wide coordination for siting and permitting these projects to meet current and future energy needs in the 11 Western States.
Under the Proposed Action, the Agencies would designate and incorporate through relevant land use and resource management plans certain Federal energy corridors that would consist of existing, locally designated Federal energy corridors together with additional, newly designated energy corridors located on Federal land. These energy corridors would comprise a comprehensive, coordinated network of preferred locations for future energy projects that could be developed to satisfy demand for energy. Under the Proposed Action, approximately 6,055 miles of Federal energy corridors would be designated for multimodal energy transmission and transportation in the 11 Western States. The energy corridors would typically be 3,500 feet wide, though the width may vary in certain areas because of environmental, topographic or management constraints. BLM, DOD, FS and USFWS would amend their respective land use or equivalent plans to incorporate the designated energy corridors; the amendments would be effective upon signing of a Record(s) of Decision. The designation of energy corridors under the Proposed Action would require the amendment of the following land management or equivalent plans.
In addition to designating Federal energy corridors through these amendments, the Agencies would establish cooperative procedures to expedite the application process for energy projects proposed to be sited within these corridors.
Under the No Action Alternative, no Federal energy corridors would be designated pursuant to Section 368. The No Action alternative represents the status quo. Siting and development would continue, likely without coordination among the Agencies, under each agency's procedures for granting ROW. It would be incorrect to assume that the No Action Alternative signifies that there will be no groundbreaking for energy projects at some point in the future.
Neither alternative authorizes site-specific energy transport projects. The Draft PEIS does not examine the
Although actual environmental impacts must inevitably await proposals before being analyzed, the Agencies are preparing a PEIS at the designation stage because they believe it is an appropriate time to examine the region-wide environmental concerns. The Agencies expect that the PEIS will greatly assist subsequent, site-specific analyses for individual project proposals by allowing the Agencies to incorporate this PEIS into those later analyses.
The Agencies distributed copies of the Draft PEIS to appropriate members of Congress, state and local government officials in the 11 Western States, American Indian tribal governments, and other Federal agencies, groups, and interested parties. Copies of the document may be obtained online at the project Web site or by contacting DOE as provided in the
Take notice that on October 31, 2007, Floridian Natural Gas Storage Company, LLC (FGS), 1000 Louisiana Street, Suite 4361, Houston, Texas 77002, filed an abbreviated application pursuant to section 7(c) of the Natural Gas Act (NGA) and Parts 157 and 284 of the Commission's regulations, for a certificate of public convenience and necessity to construct and operate the Floridian Natural Gas Storage Project in Martin County, Florida; a blanket certificate to perform certain routine activities and operations; and a blanket certificate to provide open access storage services, all as more fully set forth in the application. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
FGS requests authorization to: (1) Construct, operate a natural gas storage facility in Martin County, Florida; (2) a blanket certificate pursuant to Subpart G of Part 284 that will permit FGS to provide open-access firm and interruptible natural gas storage services on behalf of others in interstate commerce; (3) a blanket certificate pursuant to Subpart F Part 157 that will permit FGS to perform certain routine activities and operations; (4) authorization to provide the proposed storage services at market-based rates; and (5) approval of a
FGS states that the project would be located on approximately 145 acres at the site of the former Florida Steel manufacturing facility, about two miles north of Indiantown in Martin County, Florida. FGS states that the project would include the initial construction of one nominal 190,000 m
FGS proposes to construct the project in two phases. It is stated that upon planned commercial operation in late May 2011, Phase I of the project would make available liquefied natural gas storage capacity of 4 Bcf, with a design sendout capacity of 400 MMscf/d and a design liquefaction rate of 50 MMscf/d. It is stated that Phase 2 of the project would involve the construction of a second, identical storage tank and additional liquefaction and vaporization capacity and commercial operation is anticipated no later than March 2016, but may be advanced to such earlier date as the market may require.
FGS requests that the Commission waive the requirements of (i) section 284.7(d)—the segmentation requirement; (ii) section 284.7(e) and 284.10 which impose requirements relating to the design of rates that are not applicable to market-based rates; (iii) section 260.2 and Part 201 concerning accounting and reporting requirements which are appropriate for a cost-of-service rate structure; (iv) partial waiver of section 284.12(a)(1)(iv) to the extent it requires compliance with the electronic data interchange standards established by NAESB; (v) exemption from Order Nos. 587-G and 587-L regarding the netting and trading of imbalances; (vi) the requirements of Part 358 concerning Standards of Conduct for transmission providers; and (vii) the “shipper must have title” policy for off-system capacity. In addition, FGS requests that the Commission waive the requirement to file Exhibits K, L, N and O because FGS is seeking authority to charge market-based rates, and Exhibit H because FGS's customers are responsible for their own gas. Also, FGS requests that the Commission waive the requirements of section 157.6(b)(8) and 157.20(c)(3) for projected cost-of-service data in advance of a Commission determination of appropriate rate treatment and updated cost data after new facilities are placed in service; and section 157.6(a)(3)(i) concerning the filing of certain exhibits in electronic format.
Any initial questions regarding FGS's proposal in this application should be directed to Joan M. Darby, Dickstein Shapiro LLP, 1825 Eye Street, NW., Washington, DC 20006, telephone: (202) 420-2200 or e-mail:
On January 10, 2007, the Commission staff granted FGS's request to utilize the National Environmental Policy Act (NEPA) Pre-Filing Process and assigned Docket No. PF07-3-000 to staff activities involving the project. Now, as of the filing of this application on October 31, 2007, the NEPA Pre-Filing
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
NedPower Mount Storm, LLC (NedPower) filed an application for market-based rate authority, with an accompanying rate schedule. The proposed market-based rate schedule provides for the sale of energy and capacity at market-based rates. NedPower also requested waivers of various Commission regulations. In particular, NedPower requested that the Commission grant blanket approval under 18 CFR Part 34 of all future issuances of securities and assumptions of liability by NedPower.
On November 7, 2007, pursuant to delegated authority, the Director, Division of Tariffs and Market Development-West, granted the requests for blanket approval under Part 34 (Director's Order). The Director's Order also stated that the Commission would publish a separate notice in the
Notice is hereby given that the deadline for filing protests is December 7, 2007.
Absent a request to be heard in opposition to such blanket approvals by the deadline above, NedPower is authorized to issue securities and assume obligations or liabilities as a guarantor, indorser, surety, or otherwise in respect of any security of another person; provided that such issuance or assumption is for some lawful object within the corporate purposes of NedPower, compatible with the public interest, and is reasonably necessary or appropriate for such purposes.
The Commission reserves the right to require a further showing that neither public nor private interests will be adversely affected by continued approvals of NewPower's issuance of securities or assumptions of liability.
Copies of the full text of the Director's Order are available from the Commission's Public Reference Room, 888 First Street, NE., Washington, DC 20426. The Order may also be viewed on the Commission's Web site at
Take notice that on September 27, 2007, New England Power Company filed a compliance filing pursuant to the Commission's Order issued on August 30, 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 November 7, 2007, Wisconsin Public Service Corporation (WPSC), pursuant to Rule 206 of the Commission's Rules of Practice and Procedure, 18 CFR 385.206, tendered for filing a complaint against ANR Pipeline Company. WPSC states that it seeks an order from the Commission finding that ANR may not require WPSC to reduce the capacity under one particular transportation contract when it reduces certain transportation and storage entitlements under another contract as it is expressly permitted to do under section 35.4 of ANR's FERC Gas Tariff. WPSC further states that it seeks expedited treatment of its 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 has received the following Natural Gas Pipeline Rate and Refund Report 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 e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company 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 e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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Deadline for filing comments, recommendations, terms and conditions, and prescriptions: 60 days from the issuance date of this notice; reply comments are due 105 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
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 whose name appears on 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.
Comments, recommendations, terms and conditions, and prescriptions may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site (
k. This application has been accepted, and is ready for environmental analysis at this time.
l. The proposed project would utilize the existing U.S. Army Corps of Engineers' Captain Anthony Meldahl Locks and Dam, and would consist of: (1) An intake approach channel; (2) an intake structure, (3) a 248-foot-long by 210-foot-wide powerhouse containing three generating units having a total installed capacity of 105 megawatts, (4) a tailrace channel; (5) a 5-mile-long, 138-kilovolt transmission line; and (6) appurtenant facilities. The City of Hamilton (Hamilton) is a municipal
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
All filings must: (1) Bear in all capital letters the title “COMMENTS”, “REPLY COMMENTS”, “RECOMMENDATIONS”, “TERMS AND CONDITIONS”, or “PRESCRIPTIONS”; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b), and 385.2010.
You may also register online at
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Issue Notice of Availability of the EA: April 2008.
o. The license applicant must file no later than 60 days following the date of issuance of this notice: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12891-000) on any comments or motions filed.
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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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly, D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12892-000) on any comments or motions filed.
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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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12893-000) on any comments or motions filed.
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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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12893-000) on any comments or motions filed.
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on
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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 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 the “e-Filing” link. The Commission strongly encourages electronic filings. Please include the project number (P-12895-000) on any comments or motions filed.
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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l. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
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Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before December 17, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0269, to (1) EPA online using
Patty Klavon, State Measures and Conformity Group, Transportation and Regional Programs Division, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4476; fax number: (734) 214-4052; 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 July 19, 2007 (72 FR 39620), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0269, which is available for online viewing at
Use EPA's electronic docket and comment system at
Transportation conformity applies, under EPA's conformity regulations at 40 CFR part 93, subpart A, to areas that are designated nonattainment and those redesignated to attainment after 1990 (“maintenance areas” with plans developed under Clean Air Act section 175A) for the following transportation-related criteria pollutants: Ozone, particulate matter (PM
Transportation conformity determinations are required before federal approval or funding is given to certain types of transportation planning documents as well as non-exempt highway and transit projects.
EPA considered the following in renewing the existing ICR:
• Burden estimates for transportation conformity determinations in current 8-hour ozone and PM
• Burden estimates for conformity determinations for CO, NO
• Efficiencies associated with the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which was signed into law on August 10, 2005;
• Burden estimates for hypothetical areas that may be designated nonattainment for the revised 24-hour PM
• Differences in conformity resource needs in large and small metropolitan areas and isolated rural areas; and
• Additional burden associated with EPA's adequacy review process for submitted SIP motor vehicle emissions budgets that are to be used in conformity determinations.
This ICR does not include burden associated with the general development of transportation planning and air quality planning documents for meeting other federal requirements.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting,
• Program change associated with transfer of DOT ICR (OMB #2132-0529) to EPA ICR 2130.03.
• Adjustments associated with the implementation of transportation conformity revisions from SAFETEA-LU.
• Reduced burden from the previous ICR, which included substantial start-up burden for areas that had never done transportation conformity prior to PM
• Other factors that have been updated since the existing ICR was approved.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be received on or before January 15, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0299, by one of the following methods:
•
•
•
Joseph Hogue, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-9072; fax number: (703) 305-5884; e-mail address:
Pursuant to section 3506(c)(2)(A) of the PRA, EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. In particular, EPA is requesting comments from very small businesses (those that employ less than 25) on examples of specific additional efforts that EPA could make to reduce the paperwork burden for very small businesses affected by this collection.
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible and provide specific examples.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. If you estimate potential burden or costs, explain how you arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the collection activity.
7. Make sure to submit your comments by the deadline identified under
8. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
This renewal ICR estimates the third party response burden from complying with the Worker Protection Standard requirements. Information is exchanged between agricultural employers and employees at farm, forest, nursery, and greenhouse establishments to ensure worker safety. No information is collected by the Agency under this ICR. Responses to this ICR are mandatory. The authority for this information collection is provided under section 25 of FIFRA and 40 CFR part 170.
The ICR provides a detailed explanation of this estimate, which is only briefly summarized here:
There is no change in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
Environmental protection, Reporting and recordkeeping requirements.
Environmental Protection Agency (EPA).
Notice.
This document announces the Office of Management and Budget's (OMB) response to Agency Clearance requests, in compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Rick Westlund (202) 566-1682, or e-mail at
EPA ICR Number 2147.03; Pesticide Registration Fee Waivers; was approved 10/10/2007; OMB Number 2070-0167; expires 10/31/2010.
EPA ICR Number 1204.10; Submission of Unreasonable Adverse Effects Information Under FIFRA Section 6(a)(2); in 40 CFR part 159, subpart D; was approved 10/10/2007; OMB Number 2070-0039; expires 10/31/2010.
EPA ICR Number 1984.03; NESHAP for Plywood and Composite Wood Products (Renewal); in 40 CFR part 63, subpart DDDD; was approved 10/15/2007; OMB Number 2060-0552; expires 10/31/2010.
EPA ICR Number 1071.09; NSPS for Stationary Gas Turbines (Renewal); in 40 CFR part 60, subpart GG; was approved 10/18/2007; OMB Number 2060-0028; expires 10/31/2010.
EPA ICR Number 2045.03; NESHAP for Automobile and Light-duty Truck Surface Coating (Renewal); in 40 CFR part 63, subpart IIII; was approved 10/22/2007; OMB Number 2060-0550; expires 10/31/2010.
EPA ICR Number 1249.08; Recordkeeping Requirements for Certified Applicators Using 1080 Collars for Livestock Protection; was approved 11/05/2007; OMB Number 2070-0074; expires 11/30/2010.
EPA ICR Number 0276.13; Application for Experimental Use Permit (EUP) to Ship and Use a Pesticide for Experimental Purposes Only; in 40 CFR part 172; was approved 11/05/2007; OMB Number 2070-0040; expires 11/30/2010.
EPA ICR Number 1214.07; Pesticide Product Registration Maintenance Fee; was approved 11/05/2007; OMB Number 2070-0100; expires 11/30/2010.
EPA ICR Number 1572.06; Hazardous Waste Specific Unit Requirements and Special Waste Processes and Types (Renewal); in 40 CFR parts 261, 264, 265 and 266; was granted a short term extension by OMB on 10/30/2007; OMB Number 2050-0050; expires 11/30/2007.
EPA ICR Number 2185.02; State Review Framework (Revision) was withdrawn by Agency on 11/02/2007 and existing program approval continues through 11/30/2008.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before December 17, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0358, to (1) EPA online using
Evelyn Swain, Stratospheric Protection Division, Office of Atmospheric Programs, Office of Air and Radiation, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Mailcode 6205J, Washington, DC 20460;
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 14, 2007 (72 FR 45423), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0358, which is available for online viewing at
Use EPA's electronic docket and comment system at
Utilities, municipalities, retailers, manufacturers, and universities can participate in the program for guidance on proper appliance disposal practices and recognition of their efforts. Participation in the program begins with completion of a Partnership Agreement that outlines responsibilities of the RAD Program. This Partnership Agreement reflects a voluntary agreement between a utility, municipality, retailer, manufacturer, or university and EPA. By joining the program, a Partner agrees to complete an annual reporting form identifying the appliances handled and the fates of their components. If the reporting form is completed electronically, it provides feedback for the user on the gross impact of their program on the environment, energy savings, and consumer savings. This agreement can be terminated by either Party 20 days after the receipt of written notice by the other Party with no penalties or continuing obligations.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 17, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2007-0047, to (1) EPA online using
Learia Williams, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; 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 March 9, 2007 (72
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2007-0047, which is available for public viewing online at
Use EPA's electronic docket and comment system at
The NSPS for Onshore Natural Gas Processing: SO
In general, all NSPS standards require initial notifications, performance tests, and periodic reports. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance and are required of all sources subject to NSPS. Owners or operators of affected facilities must submit notifications of any construction/reconstruction, modification, actual date of startup, demonstration of a continuous monitoring system, and date of a performance test. Note that the use of control devices and continuous monitoring is not required by subpart KKK, but is an option for compliance.
Owners or operators of affected facilities must submit semiannual reports and performance test results. Note that subpart LLL requires semiannual reporting of excess emissions. Owners or operators subject to subpart KKK must keep various records, including records of leak detection and repair, records of compliance tests, and records of pumps and valves that are exempted from certain monitoring requirements. Owners or operators subject to subpart LLL must keep records of various calculations and measurements.
Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least two years following the date of such measurements, maintenance reports, and records. All reports are sent to the delegated state or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 60, subparts KKK and LLL, as authorized in section 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined to be private.
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 Number 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.
There is, however, a small adjustment in the labor hour estimate. The previous ICR shows a total of 149,174 annual hours. This renewal ICR shows a total of 149,180 annual hours. The small labor hour increase of six hours was caused by a mathematical error in the previous ICR.
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Additional comments may be submitted on or before December 17, 2007.
Submit your comments, referencing docket ID number EPA-HQ-OECA-2007-0048, to (1) EPA online using
Learia Williams, Compliance Assessment and Media Programs Division, Office of Compliance, Mail Code 2223A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-4113; 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 March 9, 2007 (72 FR 10735), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2007-0048, which is available for public viewing online at
Use EPA's electronic docket and comment system at
There are approximately 236 existing sources subject to this rule. Of the total number of existing sources, we have assumed that approximately 10 sources (i.e., respondents) have elected to comply with an alternative ambient air quality limit by operating a continuous monitor in the vicinity of the affected facility. The monitoring requirements for these facilities provide information on ambient air quality and ensure that locally, the airborne beryllium concentration does not exceed 0.01 micrograms/m
Any owner or operator subject to the provisions of this part shall maintain a file of these measurements, and retain the file for at least five years following the date of such measurements, maintenance reports, and records. All reports are sent to the delegated State or local authority. In the event that there is no such delegated authority, the reports are sent directly to the EPA regional office. This information is being collected to assure compliance with 40 CFR part 61, subpart C, as authorized in section 112 and 114(a) of the Clean Air Act. The required information consists of emissions data and other information that have been determined to be private.
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 Number 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 of extension of public comment period.
On September 27, 2007, the U.S. Environmental Protection Agency (EPA) released for public comment the External Review Draft of the “Framework for Determining a Mutagenic Mode of Action for Carcinogenicity: Using EPA's 2005
The draft document is available electronically through the EPA Office of the Science Advisor's Web site at:
For more information, contact Resha Putzrath, Ph.D., Office of the Science Advisor, Mail Code 8105R, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number: (202) 564-3229; fax number: (202) 564-2070, e-mail:
Availability of EPA comments prepared pursuant to the Environmental Review Process (ERP), under section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at 202-564-7167.
An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in the
Laurie S. Leffler 615-781-5770.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA or Agency) Science Advisory Board (SAB) Staff Office announces a public teleconference of the SAB Panel for the Review of EPA's 2007 Report on the Environment. The teleconference is being held to discuss the Panel's draft advisory report.
The teleconference will be held on December 10, 2007 from 1 p.m. to 4 p.m. (Eastern Time).
Any member of the public wishing further information regarding the public teleconference may contact. Dr. Thomas Armitage, Designated Federal Officer (DFO). Dr. Armitage may be contacted at the EPA Science Advisory Board (1400F), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail: (202) 343-9995; fax (202) 233-0643; or e-mail at:
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the SAB Panel for the Review of EPA's 2007 Report on the Environment will hold a public teleconference to discuss a draft advisory report on EPA's
EPA's Office of Research and Development requested that the SAB review the ROE 2007 Science Report. In response to EPA's request, the SAB Staff Office formed the Panel for the Review of EPA's 2007 Report on the Environment. Background information on the Panel formation process was provided in a
Environmental Protection Agency (EPA).
Notice.
On August 8, 2007, EPA proposed to terminate the Special Review of oxydemeton-methyl (ODM) because the risks that were the basis of the Special Review are no longer of concern. The Agency offered an opportunity to provide comment to the proposal. The Agency received no substantive comments in response to the proposal and EPA is announcing its final determination to terminate the Special Review of ODM.
Richard P. Dumas, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8015; fax number: (703) 308-8005; e-mail address:
You may be potentially affected by this action if you as a member of the general public or a stakeholder such as environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
On October 5, 1987, EPA initiated a Special Review of oxydemeton-methyl (ODM) because of its potential to adversely affect reproduction of workers who mix, load, and apply products containing ODM. The Agency's
Since the initiation of the Special Review, additional data and more comprehensive reviews of potential risks associated with ODM exposure have been completed, including those described in the 2002 Interim Reregistration Eligibility Decision (IRED) for ODM. In addition, during the reregistration process EPA conducted an intensive and public review of whether or not ODM registrations meet the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) standard for registration. In the 2002 IRED and subsequent label amendments, the Agency addressed the occupational risk concerns, including risk associated with potential reproductive effects. There continues to be evidence of reproductive effects; however, there is no evidence that these effects inhibit the ability of organisms to reproduce. Similarly, further data and analysis have addressed the concern for heritable effects. With the label amendments that have been made since the initiation of Special Review, ODM exposure is expected to be below the levels where any reproductive effects occur. Because the risks that were the basis of the Special Review are no longer of concern, the Agency is proposing to terminate the Special Review of ODM.
The final risk management decision regarding the risk to workers exposed to ODM was completed with the 2002 IRED. A detailed description of the rationale and supporting documents can be found in
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final Determination describing the regulatory action which the Administrator has selected. The Special Review process, which was previously called the Rebuttable Presumption Against Registration (RPAR), is described in 40 CFR part 154, published in the
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR 154.21 announcing that the Agency is considering commencing a Special Review. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's proposal to commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will initiate a Special Review, 40 CFR 154.23(c) requires the Administrator to publish a Notice of Special Review in the
That regulation requires the Administrator to respond to all significant comments received on the Notice of Special Review and, among other things, make a preliminary determination of whether any of the applicable risk criteria have been satisfied. Finally, after receipt and evaluation of comments on the Notice of Preliminary Determination, 40 CFR 154.33 requires that the Administrator publish in the
Environmental protection, Pesticides, Pests.
Environmental Protection Agency (EPA).
Notice.
This notice announces the Agency's decision not to initiate a Special Review of Ethyl Parathion and its decision to terminate the Special Review of Tributyltin (TBT) used in antifouling paints. The Agency has taken these actions because all pesticide registrations of ethyl parathion and all TBT antifouling paints are canceled. These decisions were proposed in the
Richard P. Dumas, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8015; fax number: (703) 308-8005; e-mail address:
You may be potentially affected by this action if you as a member of the general public or a stakeholder such as environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
1.
In 2002, all products being manufactured for sale in the U.S. were voluntarily canceled. However, four ethyl parathion product registrations held by Drexel Chemical Company that had not been manufactured for several years were not included in the 2002 cancellation actions. On March 16, 2005, Drexel Chemical Company requested voluntary cancellation for the four registrations. The cancellation of the four remaining ethyl parathion product registrations was effective on December 13, 2006.
On August 8, 2007, EPA proposed its decision not to initiate a Special Review of Ethyl Parathion. The proposal was made because there are no longer any pesticide products registered containing ethyl parathion, and thus the risk concerns have been mitigated. The public was provided an opportunity to comment on the proposal and no comments were received. Pursuant to 40 CFR 154.25, this notice announces the Agency's final determination not to initiate a Special Review of Ethyl Parathion.
2.
A pesticide product may be sold or distributed in the United States only if it is registered or exempt from registration under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) as amended (7 U.S.C. 136
The Special Review process provides a mechanism to permit public participation in EPA's deliberations prior to issuance of any Notice of Final Determination describing the regulatory action which the Administrator has selected. The Special Review process, which was previously called the Rebuttable Presumption Against Registration (RPAR) process, is described in 40 CFR part 154, published in the
Prior to formal initiation of a Special Review, a preliminary notification is sent to registrants and applicants for registration pursuant to 40 CFR 154.21 announcing that the Agency is considering commencing a Special Review. Registrants and applicants for registration are allowed 30 days from receipt of the notification to comment on the Agency's proposal to commence a Special Review.
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will not conduct a Special Review, it is required under 40 CFR 154.23(b) to issue a proposed decision to be published in the
If the Agency determines, after issuance of a notification pursuant to 40 CFR 154.21, that it will initiate a Special Review, 40 CFR 154.23(c) requires the Administrator to publish a Notice of Special Review in the
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice.
EPA is seeking public comment on a January 24, 2007 petition and its addendums dated March 20, 2007 and July 27, 2007 from Sinapu, Public Employees for Environmental Responsibility (PEER), Beyond Pesticides, Forest Guardians, Predator Defense, Western Wildlife Conservancy, Sierra Club, The Rewilding Institute, Animal Defense League of Arizona, and Animal Welfare Institute, available in docket number EPA-HQ-OPP-2007-0944, requesting that the Agency issue a Notice of Intent to Cancel the registration of M-44 sodium cyanide capsules and sodium fluoroacetate (commonly known as “compound 1080”). The Petitioners request this action to obtain what they believe would be proper application of the safety standards of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The petition, its addendums, and the sodium cyanide and sodium fluoroacetate reregistration eligibility decisions (REDs) are available in the electronic docket at
Comments must be received on or before January 15, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2007-0944, by one of the following methods:
•
•
•
Joy Schnackenbeck, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-8072; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including: environmental, human health, and agricultural advocates; the chemical industry, pesticide users, and members of the public interested in the sale, distribution, or the use of pesticides. Since others also may be interested, the
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA requests public comment during the next 60 days on a petition (available in docket ID number EPA-HQ-OPP-2007-0944) received from Sinapu, Public Employees for Environmental Responsibility (PEER), Beyond Pesticides, Forest Guardians, Predator Defense, Western Wildlife Conservancy, Sierra Club, The Rewilding Institute, Animal Defense League of Arizona, and Animal Welfare Institute requesting that the Agency cancel all uses of M-44 sodium cyanide capsules and sodium fluoroacetate (compound 1080). The petitioners claim that sodium cyanide M-44 capsules and compound 1080 cannot perform their intended functions without causing unreasonable adverse effects on the environment and posing an imminent hazard. See 136
Environmental protection, pesticides, and predators.
Environmental Protection Agency (EPA).
Notice.
This notice announces the availability of EPA's updated human health and ecological effects risk assessments for the organochlorine pesticide endosulfan, based in part on data recently submitted by endosulfan registrants as required in the 2002 Reregistration Eligibility Decision (RED). The Agency is seeking comment on these updated risk assessments as part of EPA's Post-RED process regarding endosulfan (see Note to Reader in the endosulfan docket for more detail). In addition, this notice solicits public comment on EPA's analysis of endosulfan usage information since the 2002 RED, and its preliminary determinations regarding endosulfan's importance to growers and availability of alternatives.
Comments must be received on or before January 16, 2008.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2002-0262, by one of the following methods:
•
•
•
Tracy L. Perry, Special Review and Reregistration Division (7508P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 308-0128; fax number: (703) 308-8005; e-mail address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is making available the Agency's updated risk assessments for endosulfan, last issued for comment through a
Endosulfan is a broad spectrum contact insecticide and acaricide registered for use on a wide variety of vegetables, fruits, cereal grains, and cotton, as well as ornamental shrubs, trees, vines, and ornamentals for use in commercial agricultural settings. Endosulfan is formulated as a liquid emulsifiable concentrate and a wettable powder. There are currently three endosulfan registrants: Makhteshim-Agan of North America, Makheteshim Chemical Works, Ltd., and Drexel Chemical Company. Bayer CropScience recently canceled all U.S. registrations of endosulfan products, effective July 16, 2007.
In its 2002 RED, EPA identified use of endosulfan to pose dietary, occupational, and ecological risks of concern. However, the Agency determined that these risks could likely be mitigated to levels below concern through the deletion of use on five crops and changes to pesticide labeling and formulation. Accordingly, EPA concluded that endosulfan was eligible for reregistration provided that: (1) Additional required data were submitted by the registrants confirming this decision; and (2) the risk mitigation measures outlined in the RED were adopted, and label amendments made to reflect these measures.
EPA's updated assessment of the potential human health effects of endosulfan is based on the review of a recently submitted developmental neurotoxicity (DNT) study, which was required in the reregistration eligibility decision for endosulfan. Based on the toxicological effects observed in the DNT, the Agency selected a different endpoint than used in the 2002 RED assessment to evaluate short- and intermediate-term dermal exposure for occupational handlers. Using the revised dermal endpoint, many of the occupational handler scenarios exceed the Agency's level of concern even with maximum Personal Protective Equipment (PPE) and engineering controls. In addition, for many of the occupational postapplication scenarios, the restricted-entry interval (REI) would be several to multiple days longer than the REIs required in the 2002 RED.
In addition, EPA has updated the ecological effects assessment for endosulfan based on studies required in the 2002 RED and on additional information drawn from the published literature on endosulfan bioaccumulation, monitoring and transport, and ecological incidence. In general, although preliminary, the new information suggests that parent endosulfan and its sulfate degradate may pose greater risks than the 2002 RED outlined. While the parent may readily undergo degradation under some environmental conditions, the sulfate degradate is persistent and represents a source for endosulfan to enter aquatic and terrestrial food chains. While endosulfan is not expected to
EPA is providing an opportunity, through this notice, for interested parties to comment on the Agency's updated human health and ecological effects assessments for endosulfan. Risks of concern associated with the use of endosulfan are: (1) Occupational handler risks for many use scenarios, even with maximum PPE and engineering controls; (2) risk to aquatic and terrestrial organisms; and (3) potential for significant adverse effects to vulnerable populations and ecosystems, based on the ability for endosulfan and its sulfate degradate to migrate to sites distant from use areas. In addition, the Agency is soliciting public comment on EPA's analysis of endosulfan usage information since the 2002 RED, and its preliminary determinations regarding endosulfan's importance to growers and availability of alternatives.
All comments should be submitted using the methods in
Section 4(g)(2) of FIFRA, as amended, directs that, after submission of all data concerning a pesticide active ingredient, “the Administrator shall determine whether pesticides containing such active ingredient are eligible for reregistration,” before calling in product-specific data on individual end-use products and either reregistering products or taking other “appropriate regulatory action.”
Environmental protection, Pesticides and pests.
Environmental Protection Agency (EPA).
Notice of Public Comment Period.
EPA is announcing a public comment period for the external review draft document titled, “Toxicological Review of 1,2,3-Trichloropropane: In Support of Summary Information on the Integrated Risk Information System (IRIS)” (NCEA-S-1669). The EPA intends to consider comments and recommendations from the public and the expert panel meeting, which will be scheduled at a later date and announced in the
EPA is releasing this draft document solely for the purpose of pre-dissemination public review under applicable information quality guidelines. This document has not been formally disseminated by EPA. It does not represent and should not be construed to represent any Agency policy or determination.
The draft document is available via the Internet on NCEA's home page under the Recent Additions and the Data and Publications menus at
The public comment period begins November 16, 2007, and ends January 15, 2008. Technical comments should be in writing and must be received by EPA by January 15, 2008. EPA intends to submit comments from the public received by this date for consideration by the external peer-review panel.
The draft “Toxicological Review of 1,2,3-Trichloropropane: In Support of Summary Information on the Integrated Risk Information System (IRIS)” is available via the Internet on the National Center for Environmental Assessment's (NCEA) home page under the Recent Additions and the Data and Publications menus at
Comments may be submitted electronically via
For information on the public comment period, contact the Office of Environmental Information Docket; telephone: 202-566-1752; facsimile: 202-566-1753; or e-mail:
If you have questions about the document, contact Martin Gehlhaus, IRIS Staff, National Center for Environmental Assessment, (8601D), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone: 202-564-1596; facsimile: 202-565-0075;
IRIS is a database that contains potential adverse human health effects information that may result from chronic (or lifetime) exposure to specific chemical substances found in the environment. The database (available on the Internet at
Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2007-1083 by one of the following methods:
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If you provide comments by e-mail or hand delivery, please submit one unbound original with pages numbered consecutively, and three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.
U.S. Equal Employment Opportunity Commission (EEOC).
Notice of membership of the EEOC Performance Review Board.
Notice is hereby given of the appointment of members to the EEOC Performance Review Board.
Membership is effective on the date of this notice.
Angelica E. Ibarguen, Chief Human Capital Officer, Office of Human Resources, U.S. Equal Employment Opportunity Commission, 1801 L Street, NW., Washington, DC 20507, (202) 663-4306.
Publication of the Performance Review Board (PRB) is required by 5 U.S.C. section 4314(c)(4). The PRB reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes written recommendations regarding performance ratings, performance awards, potential Presidential Rank Award nominees, and performance-based pay adjustments to the Chair. The Board shall consist of at least three voting members. When evaluating a career appointee's initial appraisal or recommending a career appointee for a performance award, more than half of the members must be Senor Executive Service career appointees. The names and titles of the PRB members and alternates are as follows:
For the Commission.
Notice of a Partially Open Meeting of the Board of Directors of the Export-Import Bank of the United States.
Tuesday, November 20, 2007 at 9:30 a.m. The meeting will be held at Ex-Im Bank in room 1143, 811 Vermont Avenue, NW., Washington, DC 20571.
Item No. 1: Ex-Im Bank Sub-Saharan Africa Advisory Committee for 2008.
The meeting will be open to public participation for Item No. 1 only.
Office of the Secretary, 811 Vermont Avenue, NW., Washington, DC 20571 (Tel. No. 202-565-3957).
Additional Petitions for Reconsideration and Clarification have been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR 1.429(e). (
Petitions for Reconsideration have been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR 1.429(e). The full text of these documents are available for viewing and copying in Room CY-B402, 445 12th Street, SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). Oppositions to these petitions must be filed by December 3, 2007. See Section 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1). Replies to oppositions must be filed within 10 days after the time for filing oppositions have expired.
Subject: In the Matter of Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations (Fishers, Lawrence, Indianapolis and Clinton, Indiana) (MB Docket No. 05-67).
Number of Petitions Filed: 1.
Subject: In the Matter of Amendment of Section 73.202(b), Table of Allotments, FM Broadcast Stations (Corona de Tucson, Sierra Vista, Tanque Verde and Vail, Arizona; Animas, Lordsburg and Virden, New Mexico) (MB Docket No. 05-245).
Number of Petitions Filed: 1.
Federal Housing Finance Board.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Federal Housing Finance Board (Finance Board) is submitting the information collection entitled “Federal Home Loan Bank Directors” to the Office of Management and Budget (OMB) for review and approval of a three-year extension of the OMB control number, 3069-0002, which is due to expire on November 30, 2007.
Interested persons may submit written comments on or before December 17, 2007.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget,
Patricia L. Sweeney, Program Analyst, Office of Supervision, by electronic mail at
Section 7 of the Federal Home Loan Bank Act (Bank Act) (12 U.S.C. 1427) and the Finance Board's implementing regulation, codified at 12 CFR part 915, establish the eligibility requirements and the procedures for electing and appointing Federal Home Loan Bank (Bank) directors. Under part 915, the Banks determine the eligibility of elective directors and director nominees and run the annual director election process. To determine eligibility, the Banks use the Federal Home Loan Bank Elective Director Eligibility Certification Form, which has not changed since the information collection was last cleared in 2004. A copy of the Form is attached to this Notice.
In 2007, the Finance Board published two rules affecting the eligibility and selection of appointive Bank directors. The first rule, published in April 2007, requires the boards of directors of the Banks to submit to the Finance Board a list of individuals that includes information regarding each individual's eligibility and qualifications to serve as a Bank director. The Finance Board uses the list provided by each Bank to select well-qualified individuals to serve on the Bank's board of directors.
The likely respondents include Banks, Bank members, and prospective and incumbent Bank directors. The OMB number for the information collection is 3069-0002. The OMB clearance for the information collection expires on November 30, 2007.
The Finance Board estimates the total number of respondents is 4,351, which includes 12 Banks, 4,000 Bank members, and 339 prospective and incumbent Bank directors. As explained below, the Finance Board estimates that the total annual hour burden for all respondents is 4580.5 hours.
The Finance Board estimates the total annual hour burden for each Bank to conduct the election of directors and to process Elective Director Eligibility Certification Forms is 235 hours. The estimate for the average hour burden for all Banks is 2,820 hours (12 Banks × 235 hours = 2,820 hours).
The Finance Board estimates the total annual average hour burden for all Bank members to participate in the election process is 1,075 hours. This includes the time necessary to consider elective director candidates and to cast votes. The Finance Board estimates that Bank members will consider 300 elective director candidates annually for a total of 75 hours (300 individuals × 15 minutes = 75 hours). The Finance Board estimates the total annual average hour burden for a Bank member to vote in the director election is 15 minutes for a total of 1,000 hours (4,000 voting members × 15 minutes = 1,000 hours).
The Finance Board estimates the total annual average hour burden for all prospective and incumbent elective directors is 70 hours. This includes a total annual average of 100 prospective elective directors (out of the 300 individuals the Banks consider), with 1 response per individual taking an average of 30 minutes (100 individuals × 30 minutes = 50 hours). It also includes a total annual average of 80 incumbent elective directors, with 1 response per individual taking an average of 15 minutes (80 individuals × 15 minutes = 20 hours).
The Finance Board estimates the total annual average hour burden for each Bank to recruit, review, and recommend individuals to be appointed as Bank directors is 28 hours. In a typical year, no Bank should have more than three vacant appointive directorships. The estimate for the average hour burden for all Banks is 336 hours (12 Banks × 28 hours = 336 hours).
The Finance Board estimates the total annual average hour burden for all prospective and incumbent appointive directors is 279.5 hours. This includes a total annual average of 84 prospective appointive directors with 1 response per individual taking an average of 3 hours (84 individuals × 3 hours = 252 hours). It also includes a total annual average of 55 incumbent appointive directors, with 1 response per individual taking an average of 30 minutes (55 individuals × 30 minutes = 27.5 hours).
In accordance with the requirements of 5 CFR 1320.8(d), the Finance Board published a request for public comments regarding this information collection in the
The Finance Board received two public comments, one from a trade association that represents community banks and one from a Bank. The trade association supported the use of the new and revised Appointive Director Forms, believing that the Application Form will elicit valuable information about applicant's skills and the Annual Form will reduce the reporting burden on incumbent directors.
The Bank suggested several changes, which the Finance Board has adopted, to the Appointive Director Forms to clarify the information an individual must provide. The Finance Board has clarified the instructions on the Annual Form to make clear that prohibited relationships between a director and a Bank or any member of the director's Bank, also apply to such relationships with the director's spouse or minor children.
The Finance Board requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of Finance Board functions, including whether the information has practical utility; (2) the accuracy of the Finance Board's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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. Comments should be submitted to OMB in writing at the address listed above.
By the Federal Housing Finance Board.
Background. Notice is hereby given of the final approval of proposed information collections by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority, as per 5 CFR 1320.16 (OMB Regulations on Controlling Paperwork Burdens on the Public). Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer --Michelle Shore--Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202-452-3829); OMB Desk Officer--Alexander T. Hunt--Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, DC 20503.
Board of Governors of the Federal Reserve System, November 13, 2007.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center Webs ite at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 10, 2007.
Board of Governors of the Federal Reserve System, November 9, 2007.
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
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 December 13, 2007.
Board of Governors of the Federal Reserve System, November 13, 2007.
Office of Governmentwide Policy, General Services Administration (GSA).
Notice of request for comments regarding a new information collection.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the GSA Office of Governmentwide Policy will submit to the Office of Management and Budget (OMB) a request to review and approve a new information collection requirement concerning reporting real property status.
In support of OMB's continuing effort to reduce paperwork and respondent burden, GSA invites the general public and other Federal agencies to take this opportunity to comment on a proposed new information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning forms that will be used to collect information related to real property when required by a Federal financial assistance award. To view the form, go to OMB's main Web page at
Michael Nelson, Chair, Post-Award Workgroup; telephone 301-713-0833 ext. 199; fax 301-713-0806; e-mail
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Regulatory Secretariat (VIR), General Services Administration, Room 4035, 1800 F Street, NW., Washington, DC 20405.
GSA, on behalf of the Federal Grants Streamlining Initiative, proposes to issue a new standard form, the Real Property Status Report (SF-XXXX). The SF-XXXX will be used to collect information related to real property when required by a Federal financial assistance award. The SF-XXXX includes a cover page, an Attachment A and Attachment B. The purpose of this new form is to report real property status or to request agency instructions on real property that was or will be provided or acquired, in whole or in part, under a Federal financial assistance award (
Public Law 106-107 requires the OMB to direct, coordinate, and assist Executive Branch departments and agencies in establishing an interagency process to streamline and simplify Federal financial assistance procedures for non-Federal entities. The law also requires executive agencies to develop, submit to Congress, and implement a plan for that streamlining and simplification. Twenty-six Executive Branch agencies jointly submitted a plan to the Congress in May 2001. The plan described the interagency process through which the agencies would review current policies and practices and seek to streamline and simplify them. The process involved interagency work groups under the auspices of the U.S. Chief Financial Officers Council, Grants Policy Committee. The plan also identified substantive areas in which the interagency work groups had begun their review. Those areas are part of the Federal Grants Streamlining Initiative.
This proposed form is an undertaking of the interagency Post-Award Workgroup that supports the Federal Grants Streamlining Initiative. Additional information on the Federal Grants Streamlining Initiative, which focuses on implementing the Federal Financial Assistance Management Improvement Act of 1999 (Public Law 106-107), is set forth in the
Under the standards for management and disposition of federally-owned property and real property acquired under assistance awards (real property status) in 2 CFR Part 215, the “Uniform
This form will be used by Federal agencies to collect information related to real property when required by a Federal financial assistance award. Since this form will be used primarily for reporting related to grants, and the GSA does not award grants, we are providing a burden estimate for one respondent.
Office of Governmentwide Policy, General Services Administration (GSA).
Notice of request for comments regarding a new information collection.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the GSA, Office of Governmentwide Policy will submit to the Office of Management and Budget (OMB) a request to review and approve a new information collection requirement concerning reporting tangible personal property.
In support of OMB's continuing effort to reduce paperwork and respondent burden, GSA invites the general public and other Federal agencies to take this opportunity to comment on a proposed new information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning forms that will be used to collect information related to tangible personal property when required by a Federal financial assistance award. To view the form, go to OMB's main Web page at
Michael Nelson, Chair, Post-Award Workgroup; telephone 202-482-4538; fax 301-713-0806; e-mail
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Regulatory Secretariat (VIR), General Services Administration, Room 4035, 1800 F Street, NW., Washington, DC 20405. Please cite OMB Control No. 3090-00XX, Tangible Personal Property Report, in all correspondence.
GSA, on behalf of the Federal Grants Streamlining Initiative, proposes to issue a new standard form, the Tangible Personal Property Report (SF-XXXX). The SF-XXXX includes a cover page, an Annual Report attachment, a Final Report attachment, a Disposition/Request Report attachment and a Supplemental Sheet to provide detailed item information. The purpose of this new form is to provide a standard form for assistance recipients to use when they are required to provide a Federal agency with information related to federally owned property, or equipment and supplies (tangible personal property) acquired with assistance award funds. The form does not create any new reporting requirements. It does establish a standard annual reporting date of September 30 to be used if an award does not specify an annual reporting date. The standard form will replace any agency unique forms currently in use to allow uniformity of collection and to support future electronic submission of information.
Public Law 106-107 requires OMB to direct, coordinate, and assist Executive Branch departments and agencies in establishing an interagency process to streamline and simplify Federal financial assistance procedures for non-Federal entities. The law also requires executive agencies to develop, submit to Congress, and implement a plan for that streamlining and simplification. Twenty-six Executive Branch agencies jointly submitted a plan to the Congress in May 2001. The plan described the interagency process through which the agencies would review current policies and practices and seek to streamline and simplify them. The process involved interagency work groups under the auspices of the U.S. Chief Financial Officers Council, Grants Policy Committee. The plan also identified substantive areas in which the interagency work groups had begun their review. Those areas are part of the Federal Grants Streamlining Initiative.
This proposed form is an undertaking of the interagency Post-Award Workgroup that supports the Federal Grants Streamlining Initiative. Additional information on the Federal Grants Streamlining Initiative, which focuses on implementing the Federal Financial Assistance Management Improvement Act of 1999 (Pub. L. 106-107), is set forth in the
Under the standards for management and disposition of federally-owned property, equipment and supplies (tangible personal property) in 2 CFR part 215, the “Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” and the “Uniform Administrative Requirements for Grants and Agreements with State and Local Governments,” codified by Federal agencies at 53 FR 8048, March 11, 1988, recipients may be required to provide Federal agencies with information concerning property in their custody annually, at award closeout or when the property is no longer needed. During the public consultation process mandated by Public Law 106-107, recipients suggested the need for clarification of these requirements and the establishment of a standard form to help them submit appropriate property information when required. The Tangible Personal Property Report (SF-XXXX) must be used in connection with requirements listed in the table below and Federal awarding agency guidelines:
This report will be used to collect information related to tangible personal property (equipment and supplies) when required by a Federal financial assistance award. Since this form will primarily be used for reporting under grants, and GSA does not award grants, we are providing a burden estimate for one respondent.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 or send comments to Maryam Daneshvar, CDC Assistant Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Pulmonary Function Testing Course Approval Program, 29 CFR 1910.1043 (OMB No. 0920-0138)—Extension—The National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
NIOSH has the responsibility under the Occupational Safety and Health Administration's Cotton Dust Standard, 29 CFR 1920.1043, for approving courses to train technicians to perform pulmonary function testing in the cotton industry. Successful completion of a NIOSH-approved course is mandatory under the Standard. To carry out its responsibility, NIOSH maintains a Pulmonary Function Testing Course Approval Program. The program consists of an application submitted by potential sponsors (universities, hospitals, and private consulting firms) who seek NIOSH approval to conduct courses, and if approved, notification to NIOSH of any course or faculty changes during the approval period, which is limited to five years. The application form and added materials, including an agenda, curriculum vitae, and course materials are reviewed by NIOSH to determine if the applicant has developed a program which adheres to the criteria required in the Standard. Following approval, any subsequent changes to the course are submitted by course sponsors via letter or e-mail and reviewed by NIOSH staff to assure that the changes in faculty or course content continue to meet course requirements. Course sponsors also voluntarily submit an annual report to inform NIOSH of their class activity level and any faculty changes. Sponsors who elect to have their approval renewed for an additional 5 year period submit a renewal application and supporting documentation for review by NIOSH staff to ensure the course curriculum meets all current standard requirements. Approved courses that elect to offer NIOSH-Approved Spirometry Refresher Courses must submit a separate application and supporting documents for review by NIOSH staff. Institutions and organizations throughout the country voluntarily submit applications and materials to become course sponsors and carry out training. Submissions are required for NIOSH to evaluate a course and determine whether it meets the criteria in the Standard and whether technicians will be adequately trained as mandated under the Standard. The estimated annual burden to respondents is 196 hours. There will be no cost to respondents.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 639-5960 or send an e-mail to
Evaluation of the Safe Dates Project—New—National Center for Injury Prevention and Control (NCIPC), Centers for Disease Control and Prevention (CDC).
Implementation evaluation data will be collected primarily through Web questionnaires completed by principals, school prevention coordinators, and teachers delivering the program; effectiveness evaluation data will be collected via classroom scannable forms with ninth-graders who attend treatment or control schools; and cost evaluation data will be collected via a Web survey of teachers delivering the program who receive training and observation. High schools that agree to participation will be matched into sets of three.
Characteristics that will be considered in the matching process include demographics and urban/rural county type. Large schools will be given the option to invite a census of ninth grade students to participate in the study or to invite a subset of ninth grade students (in certain classes) to participate. Schools within a set of three will be matched on census versus subset selection of ninth graders to ensure that all schools in a set use the same selection process. Eighteen matched sets of three schools will be selected. One school from each matched set will be assigned randomly either to receive the Safe Dates program with teacher training and observation, to receive the Safe Dates program without teacher training and observation, or to serve as a control group.
Approximately 10,158 students at the 54 schools will complete a baseline effectiveness evaluation scannable survey. During the classroom-administered survey, information will be collected from students about how they feel about dating, communicating with a dating partner, and attitudes and behaviors related to violence, including violence between preteen and teen dating couples. Informed written consent from parents for their child's participation and informed written consent from ninth graders for their own participation will be obtained. During Web surveys, school staff will be asked about implementation and costs of the Safe Dates program.
Effectiveness evaluation baseline data collection will span the period from October to November 2007, and follow-up data collection will occur during January and February 2009. Assuming an 80 percent response rate at follow-up, it is anticipated that a total of 8,126 students will complete follow-up effectiveness evaluation surveys.
To evaluate the implementation and implementation drivers of the program, principals and prevention coordinators at all 54 schools will be asked to complete a series of Web surveys from October 2007 to February 2009. Assuming a 91 percent response rate for all school staff surveys, it is anticipated that 48 principals and 48 prevention coordinators will complete baseline implementation questionnaires, 32 principals and 32 prevention coordinators at treatment schools will complete mid-implementation questionnaires, 49 principals will complete end-of-school year implementation questionnaires, and 49 prevention coordinators will complete follow-up implementation questionnaires. In addition, 98 teachers at treatment schools will complete Web baseline implementation questionnaires, 49 teachers at treatment schools receiving training and observation will complete cost questionnaires, and 98 teachers at treatment schools will complete two mid-implementation questionnaires each. Students at treatment schools (n= 4,515) will also complete two mid-implementation questionnaires each.
It is anticipated that study results will be used to determine the Safe Dates program's effectiveness, economic and time costs, cost-effectiveness, cost-utility, feasibility of implementation, dissemination facilitators, and needed improvements for implementation with fidelity.
There are no costs to respondents except their time to participate in the interview. The total estimated annualized burden hours are 14,112.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Maryam I. Daneshvar, CDC Acting Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
Racial and Ethnic Approaches to Community Health (REACH) U.S. Evaluation—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
REACH U.S. is an effort to meet the Healthy People 2010 goal of eliminating health disparities in the health status of racial and ethnic minorities. After initial review of the national data, a study approach was adopted on the statistical techniques of “excess deaths” to define the difference in minority health in relation to non-minority health. The analysis of excess deaths revealed that several specific health areas accounted for the majority of the higher annual proportion of minority deaths. Because of these sobering statistics, and the overarching goals of Healthy People 2010, REACH U.S. is being launched as a national multi-level community intervention program that serves communities with African American, American Indian, Hispanic American, Asian American, and Pacific Islander citizens. The REACH U.S. program supports community coalitions in designing, implementing, and evaluating community-driven strategies to eliminate health disparities in several priority areas: Cardiovascular diseases, diabetes, asthma, infant mortality, breast and cervical cancer screening and management, and adult immunization.
As part of the evaluation of the REACH U.S. initiative, CDC proposes to conduct risk factor surveys by computer-assisted telephone interview (CATI) in 29 communities participating in REACH U.S. activities. Surveys will be available in English, Spanish, Vietnamese, Khmer, and Mandarin Chinese. The target number of surveys for each community is 900 adults, aged 18 and older, who belong to the racial/ethnic group served by the community-based program intervention. In communities that focus on breast and cervical cancer interventions, approximately 250 of the 900 interviews will involve women aged 40-64 years. Respondents will be identified through list-assisted random-digit dialing methods. The surveys will help to assess the prevalence of various risk factors associated with chronic diseases, deficits in breast and cervical cancer screening and management, and deficits in adult immunizations. The surveys will also assess progress towards the national goal of eliminating health disparities within the communities.
There are no costs to respondents other than their time.
The Centers for Disease Control and Prevention published a document in the
Maryam Daneshvar, 404-639-4604.
In the
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received at the address below, no later than 5 p.m. on
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health
1.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
This notice reflects the new transaction set for SCR to Federal Case Registry (FCR) transactions where States are encouraged, but not required, to submit child data from their SCR to the FCR.
The data being collected for the APD are a combination of narratives, budgets and schedules, which are used to provide funding approvals on an annual basis and to monitor and oversee systems development. Child support has separate regulations under 45 CFR 307.15 related to submittal of APDs because the program had supplemental authority for enhanced funding for systems development, a requirement for Independent Validation and Verification (IV&V) reviews for high risk projects, waiver authority, and has substantial penalties for non-compliance with the statutory deadline of October 1, 2000. This information collection reflects the fact that 52 States and Territories are now certified as meeting the automation requirements of the Family Support Act of 1988 (FSA) and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), leaving only two States that are not yet PRWORA systems certified and only one State that has not submitted an Implementation APD for compliance with PRWORA automation. The two States not yet certified have a requirement for ongoing IV&V, i.e., that up to five States will require semiannual IV&V services related to their plans to develop entirely new CSE systems to replace their legacy systems and that one State is operating under a waiver for an Alternative Systems Configuration which requires additional information to be provided on an annual basis. States and Territories that opted to keep their APD for child support systems are covered under a separate Information Collection, OMB No. 0992-0005, for 45 CFR Part 95 Subpart F.
The data being collected for the SCR is used to transmit mandatory data elements to the FCR where it is used for matching against other databases for the purposes of location of individuals, assets, employment and other child support related activities.
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 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 National Advisory Council for Complementary and Alternative Medicine (NACCAM) meeting.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
A portion of 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 applicants and/or contract proposals and the discussion could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
The public comments session is scheduled from 4-4:30 p.m., but could change depending on the actual time spent on each agenda item. Each speaker wil be permitted 5 minutes for their presentation. Interested individuals and representatives of organizations are requested to notify Dr. Martin H. Goldrosen, National Center for Complementary and Alternative Medicine, NIH, 6707 Democracy Boulevard, Suite 401, Bethesda, Maryland 20892, 301-594-2014, Fax: 301-480-9970. Letters of intent to present comments, along with a brief description of the organization represented, should be received no later than 5 p.m. on January 30, 2008. Only one representative of an organization may present oral comments. Any person attending the meeting who does not request an opportunity to speak in advance of the meeting may be considered for oral presentation, if time permits, and at the discretion of the Chairperson. In addition, written comments may be submitted to Dr. Martin H. Goldrosen at the address listed above up to ten calendar days (February 11, 2008) following the meeting.
Copies of the meeting agenda and the roster of members will be furnished upon request by contacting Dr. Martin H. Goldrosen, Executive Secretary, NACCAM, National Center for Complementary and Alternative Medicine, National Institutes of Health, 6707 Democracy Boulevard, Suite 401, Bethesda, Maryland 20892, 301-594-2014, Fax 301-480-9970, or via e-mail at
In the interest of security, NIH has instituted stringent procedures for entrance into the building by nongovernment employees. Persons without a government I.D. will need to show a photo I.D. and sign-in at the security desk upon entering the building.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Board of Scientific Counselors, NIEHS.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The meeting will be closed to the public as indicated below in accordance with provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual grant applications conducted by the National Institute of Environmental Health Sciences, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Division of Intramural Research, National Inst. of Environmental Health Sciences, National Institutes of Health, PO Box 12233, Research Triangle Park, 27709, (919) 541-4899,
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.
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 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 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 a meeting of the Board of Scientific Counselors, NICHD.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Child Health and Human Development, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, and hotel and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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
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 552(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 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.
Science and Technology Directorate, HSD.
Committee Management; Notice of partially closed Federal Advisory Committee Meeting.
The Homeland Security Science and Technology Advisory
The Homeland Security Science and Technology Advisory Committee will meet December 04, 2007, from 8 a.m. to 4 p.m.; on December 05, 2007, from 8 a.m. to 4 p.m.; and on December 06, 2007, from 8 a.m. to 4 p.m. The meeting will be open to the public on December 4th from 8 a.m. to 12 p.m. The meetings on December 4th from 12 p.m. to 4 p.m., December 5th from 8 a.m. to 4 p.m., and December 6th from 8 a.m. to 4 p.m. will be closed to the public.
The meeting will be held at 1120 Vermont Avenue, NW., Washington, DC. Requests to have written material distributed to each member of the committee prior to the meeting should reach the contact person at the address below by November 23, 2007. Send written material to Ms. Deborah Russell, Science and Technology Directorate, Department of Homeland Security, 245 Murray Drive, Bldg. 410, Washington, DC 20528. Comments must be identified by DHS-2007-0075 and may be submitted by
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Ms. Deborah Russell, at the address above or by phone at 202-254-5739.
Notice of this meeting is given under the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. 2).
The committee will meet for the purpose of receiving sensitive Homeland Security and classified briefings on Improvised Explosive Devices (IEDs) and will discuss the identification and location of IEDs based on experience in UK, Spain, Japan, etc.; countermeasures used in Iraq/Afghanistan and their applicability to U.S. homeland situations; psychological effects of IEDs; and the IED threat to national security.
Coast Guard, DHS.
Notice of meeting.
“The Great Lakes Regional Waterways Management Forum” will hold a meeting to discuss various waterways management issues. Potential agenda items will include navigation, ballast water regulations, waterways management, Great Lakes water levels, and discussions about the agenda for the next meeting. The meeting will be open to the public.
The meeting will be held December 10, 2007 from 1 p.m. to 5 p.m. Comments must be submitted on or before December 6, 2007 to be considered at the meeting.
The meeting will be held at the Village Inn, 751 Christina Street, Point Edward, Ontario. Any written comments and materials should be submitted to Commander (dpw-2), Ninth Coast Guard District, 1240 E. 9th Street, Room 2069, Cleveland, OH 44199.
Doug Sharp (dpw-2), Ninth Coast Guard District, OH 44199, telephone (216) 902-6070. Persons with disabilities requiring assistance to attend this meeting should contact Doug Sharp.
The Great Lakes Waterways Management Forum identifies and resolves waterways management issues that involve the Great Lakes region. The forum meets twice a year to assess the Great Lakes region, assign priorities to areas of concern, and identify issues for resolution.
The forum membership has identified potential agenda items for this meeting that include: navigation, ballast water regulations, waterways management, Great Lakes water levels, and discussions about the agenda for the next meeting. The Forum will also provide updates from the Canadian Coast Guard, Transport Canada, U.S. Coast Guard, and the U.S. Army Corps of Engineers on regional projects and operations.
Transportation Security Administration; United States Coast Guard; DHS.
Notice.
The Department of Homeland Security (DHS) through the Transportation Security Administration (TSA) issues this notice of the dates for the beginning of the initial enrollment for the Transportation Worker Identification Credential (TWIC) for the Ports of Dundalk, MD; Minneapolis, MN; and St. Paul, MN.
TWIC enrollment in Dundalk, Minneapolis, and St. Paul will begin on November 21, 2007.
You may view published documents and comments concerning the TWIC Final Rule, identified by the docket numbers of this notice, using any one of the following methods.
(1) Searching the Federal Docket Management System (FDMS) Web page at
(2) Accessing the Government Printing Office's Web page at
(3) Visiting TSA's Security Regulations Web page at
James Orgill, TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220. Transportation Threat Assessment and Credentialing (TTAC), TWIC Program, (571) 227-4545; e-mail:
The Department of Homeland Security (DHS), through the United States Coast Guard and the Transportation Security Administration (TSA), issued a joint final rule (72 FR 3492; January 25, 2007) pursuant to the Maritime Transportation Security Act (MTSA), Pub. L. 107-295, 116 Stat. 2064 (November 25, 2002), and the Security and Accountability for Every Port Act of 2006 (SAFE Port Act), Pub. L. 109-347 (October 13, 2006). This rule requires all credentialed merchant mariners and individuals with unescorted access to secure areas of a regulated facility or vessel to obtain a TWIC. In this final rule, on page 3510, TSA and Coast Guard stated that a phased enrollment approach based upon risk assessment and cost/benefit would be used to implement the program nationwide, and that TSA would publish a notice in the
This notice provides the start date for TWIC initial enrollment at the Ports of Dundalk, MD; Minneapolis, MN; and St. Paul, MN only. Enrollment in these ports begin on November 21, 2007. The Coast Guard will publish a separate notice in the
To obtain information on the pre-enrollment and enrollment process, and enrollment locations, visit TSA's TWIC Web site at
Customs and Border Protection, Department of Homeland Security.
Notice of Availability.
Customs and Border Protection (CBP) announces that a Draft Environmental Impact Statement (EIS) is available for public review and comment. Pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321
The Draft EIS will be available for public review and comment on November 16, 2007 and all comments must be received by December 31, 2007.
A public open house will be held on December 11, 2007, at the McAllen Convention Center in McAllen, TX. A second public open house will be held on December 12, 2007, at the Brownsville Events Center in Brownsville, TX. Each public open house will be held from 4:30 p.m. to 8 p.m. Please refer to the
Copies of the Draft EIS can be downloaded by visiting
Charles McGregor, U.S. Army Corps of Engineers, Engineering and Construction Support Office, 819 Taylor St., Room 3B10, Fort Worth, Texas 76102; phone: (817) 886-1585; and fax: (757) 282-7697.
On September 24, 2007, CBP published a Notice of Intent to Prepare an EIS in the
The mission of CBP is to prevent terrorists and terrorist weapons from entering the U.S., while also facilitating the flow of legitimate trade and travel. In supporting CBP's mission, USBP is charged with establishing and maintaining effective control of the border of the U.S. The purpose of the Proposed Action is to provide USBP agents with the tools necessary to strengthen their control of the U.S. border between Ports of Entry in the Rio Grande Valley Sector. The Proposed Action also provides a safer work environment and enables USBP agents to enhance response time.
The Proposed Action includes the installation of tactical infrastructure in
Two alternatives for the route for the tactical infrastructure are being considered under the Proposed Action—Route A and Route B. Route A is the route initially identified by USBP Rio Grande Valley Sector as meeting its operational requirements. Route B was developed through coordination with Federal and state agencies and incorporates input received through the public scoping period. The Route B alignment continues to meet current operational requirements with less environmental impact.
In addition to Routes A and B described above, an alternative of two layers of fence, known as primary and secondary fence, is analyzed in the EIS. Under this alternative, two layers of fence would be constructed approximately 130 feet apart along the same alignment as Route B and would be most closely aligned with the fence description in the Secure Fence Act of 2006, Public Law 109-367, 120 Stat. 2638, 8 U.S.C. 1701 note, 8 U.S.C. 1103 note. This alternative would also include construction and maintenance of access and patrol roads for USBP agents. The patrol road would be between the primary and secondary fences.
Under the No Action Alternative, proposed tactical infrastructure would not be built and there would be no change in fencing, access roads, or other facilities along the U.S./Mexico international border in the proposed project locations.
CBP will hold public open houses to provide information and invite comments on the Proposed Action and the Draft EIS. A public open house will be held on December 11, 2007, at the McAllen Convention Center in McAllen, TX. A second public open house will be held on December 12, 2007, at the Brownsville Events Center in Brownsville, TX. Each public open house will be held from 4:30 p.m. to 8 p.m. Central Standard Time. Notifications of these open houses will be published in the
CBP requests public participation in the EIS process. The public may participate by attending public open houses and submitting written comments on the Draft EIS. CBP will consider all comments submitted during the public comment period, and subsequently will prepare the Final EIS. CBP will announce the availability of the Final EIS and once again give interested parties an opportunity to review the document.
When submitting comments, please include name and address, and identify comments as intended for the Rio Grande Valley Sector Draft EIS. To avoid duplication, please use only one of the following methods:
(a) Attendance and submission of comments at the Public Open House meetings to be held December 11, 2007 at the McAllen Convention Center in McAllen, TX and December 12, 2007 at the Brownsville Events Center in Brownsville, TX.
(b) Electronically through the Web site at
(c) By e-mail to:
(d) By mail to: Rio Grande Valley Tactical Infrastructure EIS, c/o e
(e) By fax to: (757) 282-7697.
Comments on the Draft EIS should be submitted by December 31, 2007.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
November 16, 2007.
Kathy Ezzell, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 7262, Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800-927-7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comment.
We invite the public to comment on the following applications to conduct certain activities with endangered species.
Comments on these permit applications must be received on or before December 17, 2007.
Written data or comments should be submitted to the U.S. Fish and Wildlife Service, Chief, Endangered Species, Ecological Services, 911 NE. 11th Avenue, Portland, Oregon 97232-4181 (telephone: 503-231-2063; fax: 503-231-6243). Please refer to the respective permit number for each application when submitting comments. All comments received, including names and addresses, will become part of the official administrative record and may be made available to the public.
Linda Belluomini, Fish and Wildlife Biologist, at the above Portland address (telephone: 503-231-2063; fax: 503-231-6243).
The following applicants have applied for scientific research permits to conduct certain activities with endangered species pursuant to section 10(a)(1)(A) of the Endangered Species Act (16 U.S.C. 1531
The permittee requests an amendment to take (capture and release, band, collect biological samples, and conduct nest searches) the Oahu elepaio (
The permittee requests an amendment to take (collect biological samples) the Hawaiian coot (
We solicit public review and comment on these recovery permit applications. 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.
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Bureau of Land Management, DOI.
Temporary Closure of Selected Public Lands in La Paz County, Arizona, during the operation of the 2008 Parker 250 and Parker 425 Desert Races.
The Bureau of Land Management (BLM) Lake Havasu Field Office announces the temporary closure of selected public lands under its administration in La Paz County, Arizona. This action is being taken to help ensure public safety and prevent unnecessary environmental degradation during the permitted running of the Best in the Desert 2008 Parker 250, and 2008 Blue Water Resort and Casino Parker 425 Desert Races. Areas subject to this closure include all public land; including county maintained roads and highways located on public lands that are located within two miles of the designated course. The race course and closure areas are described in the
The Parker 250 on January 5, 2008, and the Parker 425 on February 2, 2008.
Michael Dodson, Field Staff Ranger, BLM Lake Havasu Field Office, 2610 Sweetwater Avenue, Lake Havasu City, Arizona 86406, (928) 505-1200.
1. Being present on, or driving on, the designated race course. Spectators may not be within 200 feet of the designated race course. This does not apply to race participants, race officials nor emergency vehicles authorized by or operated by local, State or Federal Government agencies. Emergency medical response shall only be conducted by personnel and vehicles operating under the guidance of La Paz County Emergency Medical Services (EMS) and Fire, or the Arizona Department of Public Safety (DPS), or the Bureau of Land Management (BLM).
2. Vehicle parking or stopping in areas affected by the closure, except where such is specifically allowed (designated spectator areas).
3. Camping in any area, except in the designated spectator areas.
4. Discharge of firearms.
5. Possession or use of any fireworks.
6. Cutting or collecting firewood of any kind, including dead and down wood or other vegetative material.
7. Operating any vehicle (except registered race vehicles), including off-highway vehicles, not registered and equipped for street and highway operation.
8. Operating any vehicle in the area of the closure at a speed of more than 35 mph. This does not apply to registered race vehicles during the race, while on the designated race course.
9. Failure to obey any official sign posted by the Bureau of Land Management, La Paz County, or the race promoter.
10. Parking any vehicle in a manner that obstructs or impedes normal traffic movement.
11. Failure to obey any person authorized to direct traffic, including law enforcement officers, BLM officials and designated race officials.
12. Failure to observe Spectator Area quiet hours of 10 p.m. to 6 a.m.
13. Failure to keep campsite or race viewing site free of trash and litter.
14. Allowing any pet or other animal to be unrestrained by a leash of not more than 6 feet in length.
The above restrictions do not apply to emergency vehicles owned by the United States, the State of Arizona, or La Paz County. Authority for closure of public lands is found in 43 CFR 8340, Subpart 8341; 43 CFR 8360, Subpart 8364.1; and 43 CFR 2930. Persons who violate this closure order are subject to arrest, and upon conviction may be fined not more than $100,000 and/or imprisoned for not more than 12 months.
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
The FEIS will be available for public review for 30 calendar days from the date of this publication, which coincides with the NOA published in the
A copy of the FEIS was sent to affected Federal, State, and local government agencies and interested parties. The document is also available electronically on the following Web site:
Joe Miczulski, Winter Sports Manager at the Ketchum Ranger District; P.O. Box 2356, Ketchum, ID. 83340; or phone at (208)-622-5371.
Sun Valley Company (SVC) has requested a new 40-year term ski area permit for the Bald Mountain Ski Resort. The existing ski area permit, which was issued in December 1977, expires December 2007. To be valid, a ski area permit must have an approved Master Development Plan (MDP), which is prepared by the permit holder and encompasses the entire winter sports resort envisioned for development and authorization by the permit. Upon acceptance by the Authorized Officers, the MDP becomes part of the ski area permit. The EIS analyzes the effects of the proposed action and alternatives. The agencies give notice of the NEPA analysis and decision making process on the proposal so interested and affected members of the public may participate in and contribute to the final decision.
A 1989 MDP currently guides the Forest Service and BLM in their administration of the Special Use Permit (SUP) for the ski area. A majority of the actions described in the 1989 MDP have been implemented. Given the age and status of the 1989 MDP, the Forest Service, BLM and SVC determined that an updated plan would be appropriate at this time.
In August 2005, the Sun Valley Master Plan (2005 Master Plan) was produced and submitted to the Forest Service and BLM. The 2005 Master Plan was accepted at that time, and the Phase 1 projects on public lands were advanced for site-specific review and analysis under requirements of NEPA.
A Draft Environmental Impact Statement (DEIS) for the Phase 1 projects of the 2005 Master Plan was released for public comment in February 2007. The comment period on the DEIS extended through April 9, 2007, eliciting ninety-three comment letters from individuals, organizations, and public agencies. Major themes of the letters included comments relating to the proposal to construct a trail on Guyer Ridge (and associated impacts on the visual environment), installation of additional snowmaking infrastructure (and associated impacts on the acoustic environment), as well as effects to recreation resources associated with trail construction, installation of snowmaking machinery, and seasonal construction of a terrain park on the Warm Springs side of the ski area. The Agencies formally addressed comments in the “Response to Comments on the DEIS” which is included with the FEIS. In addition, some comments warranted clarifications and factual changes in the
DOI Bureau of Land Management (BLM), Lead Agency; USDA Forest Service (FS), Co-lead Agency; and the State of Idaho, Idaho Department of Environmental Quality, Cooperating Agency.
Notice of Extension for the Final Environmental Impact Statement for the Smoky Canyon Mine, Panels F and G Mine Expansion Project.
The Bureau of Land Management (BLM) announces an extenion of the mandatory 30-day waiting period prior to releasing the Record of Decision (ROD) for the Smoky Canyon Mine, Panels F and G Mine Expansion Project. The original availability notice, issued October 26, 2007, provided for a 30-day waiting period prior to the release of the ROD. The BLM is extending this period until December 26, 2007.
The FEIS is now available for public review. The BLM Record of Decision will be released no sooner than December 26, 2007—60 days after publication of the original Notice of Availability of the FEIS in the
The FEIS will be available in limited quantities at the Bureau of Land Management, Pocatello Field Office, 4350 Cliffs Drive, Pocatello, Idaho 83204, phone (208) 478-6340 and the Caribou-Targhee National Forest, Soda Springs Ranger District, 410 E. Hooper Avenue, Soda Springs, Idaho 83276, phone (208) 547-4356. It will also be available on the BLM Web site at:
Bill Stout, Bureau of Land Management, phone (208) 478-6340; or Jeff Jones, Caribou-Targhee National Forest, phone (208) 236-7572.
The original Notice of Availability was published on October 26, 2007, and initiated a mandatory 30-day waiting period prior to releasing the ROD. Since this publication the BLM has received a number of requests from the public to extend the required 30-day waiting period. The FEIS, in exploring the effects of the mining operation, is lengthy and complex. Additional time will allow for increased public awareness of the proposed decision. To honor these requests the BLM has decided to extend the waiting period for an additional 30 days, to end on December 26, 2007.
Bureau of Land Management, Interior.
Notice of Arizona Resource Advisory Council Meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM), Arizona Resource Advisory Council (RAC), will meet on December 6, 2007, in Phoenix, Arizona, at the BLM Arizona State Office, One North Central Avenue, 8th floor. It will begin at 8 a.m. and conclude at 4:30 p.m. Morning agenda items include: Review of the September 6, 2007, meeting minutes for RAC and Recreation Resource Advisory Council (RRAC) business; BLM State Director's update on statewide issues; presentations on: BLM Energy Corridors in Arizona, BLM Recreation Webpage Redesign, BLM Route Evaluation and Designation Process; and Recreational Shooting on Public Lands; review and discussion of the 2008 RAC Annual Work Plan; and, reports by RAC working groups. A public comment period will be provided at 11:30 a.m. on December 6, 2007, for any interested publics who wish to address the Council on BLM programs and business.
Under the Federal Lands Recreation Enhancement Act, the RAC has been designated the RRAC, and has the authority to review all BLM and Forest Service (FS) recreation fee proposals in Arizona. The afternoon meeting agenda on December 6, will include discussion and review of the Recreation Enhancement Act (REA) Working Group Report, the Fiscal Year 2008 quarterly schedule for BLM and FS recreation fee proposals, and proposed modifications to the RRAC protocol, business cycle, and fee proposal guidelines.
After completing their RRAC business, the BLM RAC will discuss future meetings and locations.
Deborah Stevens, Bureau of Land Management, Arizona State Office, One North Central Avenue, Suite 800, Phoenix, Arizona 85004-4427, 602-417-9504.
Bureau of Land Management, Interior.
Notice of realty action.
The Bureau of Land Management (BLM) proposes direct (non-competitive) sales of two parcels of public land, containing 1.07 acres and 1.04 acres located in San Miguel County, New Mexico. The described public land has been examined and through the public-supported land use planning process has been determined to be suitable for disposal by direct sale pursuant to section 203 of the Federal Land Policy and Management Act of 1976 (90 Stat. 2750, 43 U.S.C. 1713), as amended, at no less than the appraised fair market value. These sales will resolve two inadvertent trespasses on public land. An appraisal of the subject parcels fair market value is being prepared and when completed will be available for review at the BLM's Taos Field Office at the address stated below. Upon the completion and approval of the appraisal report, a subsequent notice will be published in the local newspaper specifying the fair market value.
Interested parties may submit comments to the BLM Taos Field Office Manager at the address below. Comments must be received by not later than December 31, 2007. The land will not be offered for sale until at least 60 days after the date of publication of this notice in the
Address all written comments concerning this Notice to Sam DesGeorges, Taos Field Office Manager, 226 Cruz Alta Road, Taos, New Mexico 87571.
Francina Martinez, Realty Specialist at the above address or (505) 758-8851.
The following described public land in San Miguel County, New Mexico has been determined to be suitable for sale at not less than fair market value under section 203 of the Federal Land Policy and Management Act of 1976, as amended (90 Stat. 2750, 43 U.S.C. 1713 and 1719). The proposed sales would resolve two inadvertent trespasses upon the land. It been determined that resource values will not be affected by the disposal of these two parcels of public land.
The parcels proposed for sale are described as:
Lot 15 containing 1.07 acres is proposed to be sold to Lila Cano and Lot 18 containing 1.04 acres is proposed to be sold to Los Pueblos de San Miguel del Bado Community Council.
The patents, when issued, will contain a reservation to the United States for ditches and canals under the Act of March 30, 1890 and a reservation for all minerals.
The two parcels are being offered by direct sale to Lila Cano (NM-114188) and to Los Pueblos de San Miguel del Bado Community Council (NM-117236) of San Miguel County, New Mexico, based on historic use and added improvements. Both of the parcels of land have been used, one as a residence and the other as a school yard with a portion of a school located on it. Failure or refusal by Lila Cano and/or Los Pueblos de San Miguel del Bado Community Council to submit the required fair market appraisal amount within 180 days of the sale of the land will constitute a waiver of this preference consideration and this land may be offered for sale on a competitive or modified competitive basis.
Upon publication of this notice in the
Comments must be received by the BLM Taos Field Manager, Taos Field Office, at the address stated above, on or before the date stated above. Only written comments will be accepted. 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
Bureau of Reclamation, Interior.
Notice of Change.
The Water Resources Planning Act of 1965 and the Water Resources Development Act of 1974 require an annual determination of a discount rate for Federal water resources planning. The discount rate for Federal water resources planning for fiscal year 2008 is 4.875 percent. Discounting is to be used to convert future monetary values to present values.
This discount rate is to be used for the period October 1, 2007, through and including September 30, 2008.
Sandra Simons, Contract Services Office, Denver, Colorado 80225; telephone: 303-445-2902.
Notice is hereby given that the interest rate to be used by Federal agencies in the formulation and evaluation of plans for water and related land resources is 4.875 percent for fiscal year 2008.
This rate has been computed in accordance with Section 80(a), Pub. L. 93-251 (88 Stat. 34) and 18 CFR 704.39, which: (1) Specify that the rate shall be based upon the average yield during the preceding fiscal year on interest-bearing marketable securities of the United States which, at the time the computation is made, have terms of 15 years or more remaining to maturity (average yield is rounded to nearest one-eighth percent); and (2) provide that the rate shall not be raised or lowered more than one-quarter of 1 percent for any year. The Treasury Department calculated the specified average to be 4.9229 percent. This average value is then rounded to the nearest one-eighth of a point, resulting in 4.875 percent. The rate therefore remains unchanged from fiscal year 2007.
The rate of 4.875 percent shall be used by all Federal agencies in the formulation and evaluation of water and related land resources plans for the purpose of discounting future benefits and computing costs or otherwise converting benefits and costs to a common-time basis.
Notice is hereby given that on October 30, 2007, a proposed consent decree in
In this cost recovery action brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607, the United States sought recovery of unreimbursed past response costs and prejudgment interest incurred by the United States Environmental Protection Agency for a removal action at the Carl's Tire Retreading Site near Grown in Grand Traverse County, Michigan. Under the proposed consent decree, ten defendants that each contributed less than 2% of the total waste to the Site will pay a total of $219,425.24 to the Hazardous Substance Superfund.
The Department of Justice will accept comments relating to the proposed consent decree for a period of thirty (30) days from the date of publication of this notice. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and mailed either electronically to
The proposed consent decree may be examined at: (1) The Office of the United States Attorney for the Western District of Michigan, 330 Iona Avenue, Suite 501, Grand Rapids, Michigan 49503, (616) 456-2404; and (2) the United States Environmental Protection Agency (Region 5), 77 West Jackson Boulevard, Chicago, Illinois 60604-3590 (contact Steven P. Kaiser (312-353-3804)). During the comment period, the proposed consent decree may also be examined on the following Department of Justice Web site:
Notice is hereby given that on October 31, 2007, a proposed Consent Decree in
In this action the United States sought to recover costs incurred in responding to the release or threatened release of hazardous substances into the environment at or from the Allegany Ballistics Lab Site, a U.S. Navy-owned facility in Mineral County, West Virginia. The Consent Decree requires that Hercules Incorporated pay the United States $12.95 million. In exchange, Hercules will receive contribution protection and a release from liability for additional environmental cleanup costs or cleanup work, subject to certain exceptions and limitations.
The Department of Justice will receive comments relating to the Consent
The Consent Decree may be examined at: (1) The Office of the United States Attorney, 1125 Chapline Street, Suite 3000, Wheeling, West Virginia; (2) U.S. EPA Region 3, 1650 Arch Street, Philadelphia, Pennsylvania; (3) the ABL Information Repository at the Fort Ashby Public Library, IGA Plaza, Lincoln Street, Fort Ashby, West Virginia; or (4) the ABL Information Repository at the La Vale Public Library, 815 National Highway, La Vale, Maryland. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site, to
Pursuant to 28 CFR § 507 notice is hereby given that on November 2, 2007, a proposed Consent Decree in the case
In this action, under Sections 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9606 and 9607, the United States sought injunctive relief and recovery of response costs to remedy conditions in connection with the release or threatened release of hazardous substances into the environment at the Solitron Devices Superfund alternative Site located in Riviera Beach, Florida (``the Site'').
The proposed consent decree requires defendant Honeywell International, Inc. to fully perform the final remedy for the Site and Pay all future response costs.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed Consent Decree. Comments should be addressed to the assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Consent Decree may be examined at U.S. Environmental Protection Agency, Region IV, 61 Forsythe Street Atlanta, Georgia, 30303. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site,
A copy of the proposed Consent Decree may also be obtained by mail from the Consent Decree Library, P.O. Box 7611, U.S. Department of Justice, Washington, DC 20044-7611, or by faxing Tonia Fleetwood at fax no. (202) 514-0097 (phone confirmation number (202) 514-1547) or by e-mailing Tonia Fleetwood at
Notice is hereby given that on October 31, 2007, a proposed Consent Decree in
In this action the United States sought reimbursement of response costs from Honeywell International, Inc., Alpheus Kaplan and Nehemiah Development Company for costs incurred by EPA at or in connection with the Central Eureka Mine Superfund Site in Amador County, California. The Consent Decree will settle claims against defendants Alpheus Kaplan and Nehemiah Development Company and certain third-party defendants. Pursuant to the Consent Decree, Kaplan/Nehemiah agree to pay the sum of $600,000 and six settling third party defendants agree to pay $121,000 for past response costs incurred at the Site.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, Eastern District of California, 501 I Street, Sacramento, California 95814, and at U.S. EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. During the public comment period, the Consent Decree may also be examined on the following Department of Justice Web site, to
Notice is hereby given that on October 31, 2007, a proposed Consent Decree in
In this action the United States sought injunctive relief and recovery of costs under Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) sections 106(a) and 107, 42 U.S.C. 9606(a) and 9607, in connection with the release or threatened release of hazardous substances into the environment at the Ruston Foundry Superfund Site located at 1010 Bogan Street in Alexandria, Rapids Parish, Louisiana (“the Site”). The Consent Decree resolves the United States' claims in connection with the Site against The Kansas City Southern Railway Co. (“KCSR”) under CERCLA sections 106 and 107, 42 U.S.C. 9606 & 9607. Under the proposed Consent Decree, KCSR will (1) perform the remedy selected by the United States Environmental Protection Agency for the Site; (2) pay $750,000 to the United States for response costs incurred through October 30, 2006; and (3) pay all response costs incurred by the United States after October 30, 2006.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The Consent Decree may be examined at the Office of the United States Attorney, Western District of Louisiana, 800 Lafayette Street, Suite 2200, Lafayette, LA 70501, and at U.S. EPA Region 6, 1445 Ross Avenue, Dallas, TX 75202. During the public comment period, the Consent Decree, may also be examined on the following Department of Justice Web site:
In accordance with Department Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Kenneth L. Mims and Leonard R. Cannon AKA Robby Cannon, pursuant to section 301(a) of the Clean Water Act, 33 U.S.C. 1311(a), to obtain injunctive relief and impose civil penalties against the Defendants for violating the Clean Water Act by discharging fill material without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendants to pay a civil penalty. In addition, Defendants have agreed to a restoration plan which includes removing the sediment material deposited by the unpermitted dredging.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Emery Clark, Assistant United States Attorney, United States Attorney's Office, Wachovia Building, Suite 500, 1441 Main Street, Columbia, South Carolina 29201, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the District of South Carolina, 901 Richland Lane, Columbia, South Carolina. In addition, the proposed Consent Decree may be viewed at
Notice is hereby given that on October 30, 2007, a proposed First Amendment to Consent Decree in
The proposed First Amendment to Consent Decree implements a modification to the CERCLA remedial action at the Stauffer Chemical Superfund Site in Tarpon Springs, Pinellas County, Florida (the “Site”) adopted by the U.S. Environmental Protection Agency through an Explanation of Significant Differences to the July 1998 Record of Decision with respect to Operable Unit 1 (Soils) at the Site. The remedy originally selected by EPA called for in-situ stabilization of contaminated sediments in wastewater ponds at the Site, using a cement slurry wall. During testing for the slurry wall, a reaction occurred between residual elemental phosphorus in the ponds and the slurry wall cement, resulting in a
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the First Amendment to Consent Decree. Comments should be addressed to the Assistant Attorney General, Environmental and Natural Resources Division, and either e-mailed to
The First Amendment to Consent Decree may be examined at the Office of the United States Attorney, 400 North Tampa Street, Suite 3200, Tampa, Florida 33602, and at U.S. EPA Region 4, 61 Forsyth Street, Atlanta, Georgia 30303-8960. During the public comment period, the First Amendment to Consent Decree, may also be examined on the following Department of Justice Web Site, to
By Notice dated July 31, 2007 and published in the
The company plans to import small quantities of the listed controlled substances in dosage form to conduct clinical trials.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Almac Clinical Services Inc. to import the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Almac Clinical Services 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. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic classes of controlled substances listed.
By Notice dated July 10, 2007, and published in the
The company plans to manufacture small quantities of the listed controlled substances as radiolabeled compounds for biochemical research.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of American Radiolabeled Chemical, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated American Radiolabeled Chemical, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substance in bulk for sales to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Amri Rensselaer, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Amri Rensselaer, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
By Notice dated July 10, 2007, and published in the
The company plans to manufacture high purity drug standards used for analytical application only in clinical, toxicological, and forensic laboratories.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Applied Science Labs to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Applied Science Labs to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on May 17, 2007, Aptuit, 10245 Hickman Mills Drive, Kansas City, Missouri 64137, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Marihuana (7360), a basic class of controlled substance listed in schedule I.
The company plans to import a finished pharmaceutical product containing cannabis extracts in dosage form for packaging for a clinical trial study.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such 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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than December 17, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on June 13, 2007, Archimica, Inc., 2460 W. Bennett Street, Springfield, Missouri 65807-1229, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of
The company plans to manufacture the listed controlled substances in bulk for research purposes, and sale to its customers.
Any other such applicant and any person who is presently registered with DEA to manufacture such substances 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), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than January 15, 2008.
By Notice dated June 26, 2007, and published in the
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.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Austin Pharma LLC to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Austin Pharma LLC to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated August 16, 2007 and published in the
The company plans to import the listed controlled substance to bulk manufacture amphetamine.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Boehringer Ingelheim Chemicals, Inc. to import the basic class of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Boehringer Ingelheim Chemicals, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
By Notice dated June 26, 2007, and published in the
The company plans to qualify as a bulk manufacturer of the above listed controlled substance.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Boehringer Ingelheim Chemicals, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Boehringer Ingelheim Chemicals, Inc. to ensure that the company's registration is consistent with the public interest. The
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substance for sale as an intermediate to other opiates and supply as API to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Cambrex Charles City, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Cambrex Charles City, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
By Notice dated June 7, 2007, and published in the
The company plans to manufacture the listed controlled substance for sale to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Cambrex Charles City, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Cambrex Charles City, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substance for sale as an intermediate to generic drug customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Cambrex Charles City, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Cambrex Charles City, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic class of controlled substance listed.
By Notice dated July 31, 2007, and published in the
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Cambrex North Brunswick, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Cambrex North Brunswick, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on June 6, 2007, Cambridge Isotope Lab, 50 Frontage Road, Andover, Massachusetts 01810, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as a bulk manufacturer of Morphine (9300), a basic class of controlled substance listed in schedule II.
The company plans to utilize small quantities of the listed controlled substance in the preparation of analytical 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), 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than January 15, 2008.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on October 16, 2007, Cody Laboratories, 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 on manufacturing the listed controlled substances in bulk for sale 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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than January 15, 2008.
By Notice dated June 26, 2007, and published in the
The company plans to produce the listed controlled substances in bulk to be used in the manufacture of reagents and drug calibrator/controls for DEA exempt products.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Dade Behring, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Dade Behring, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to produce the listed controlled substances in bulk to be used in the manufacture of reagents and drug calibrator/controls for DEA exempt products.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Dade Behring, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Dade Behring, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on June 22, 2007, Fisher Clinical Services Inc., 7554 Schantz Road, Allentown, Pennsylvania 18106, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Noroxymorphone (9668), a basic class of controlled substance listed in schedule II.
The company plans to import the listed substance for analytical research and clinical trials.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such 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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than December 17, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR § 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on August 23, 2007, Formulation Technologies LLC., 11400 Burnet Road, Suite 4010, Austin, Texas 78758, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Fentanyl (9801), a basic class of controlled substance listed in schedule II.
The company plans to import the listed controlled substance for clinical trials, research, analytical purposes, and distribution to its customers.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such 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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than December 17, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
By Notice dated June 26, 2007, and published in the
The company plans to manufacture small quantities of the listed controlled substances to produce isotope labeled standards for drug testing and analysis.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Aldrich Chemical Company, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Aldrich Chemical Company, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on October 5, 2007, JFC Technologies LLC., 100 West Main Street, P.O. Box 669, Bound Brook, New Jersey 08805, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of Meperidine intermediate-B (9233), a basic class of controlled substance listed in schedule II.
The company plans to import the basic class of controlled substance for the production of controlled substances for clinical trials, research, analytical purposes, and distribution to its customers.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic class of controlled substance may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such 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), 8701 Morrissette Drive, Springfield, VA. 22152; and must be filed no later than December 17, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on September 24, 2007, JFC Technologies, LLC., 100 W. Main Street, Bound Brook, New Jersey 08805, 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 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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than January 15, 2008.
By Notice dated June 26, 2007, and published in the
The company plans on producing cocaine for sale to its customers, who are final dosage manufacturers. The ecgonine is formed during the manufacturing process for cocaine.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Johnson Matthey Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Johnson Matthey Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture bulk product and dosage units for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Abbott Laboratories to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Abbott Laboratories to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substances as bulk reagents for use in drug abuse testing.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Lin Zhi International, Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Lin Zhi International, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture bulk products for finished dosage units and distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Lonza Riverside to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Lonza Riverside to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
Pursuant to § 1301.33(a) of Title 21 of the Code of Federal Regulations (CFR), this is notice that on September 5, 2007, National Center for Natural Products Research—NIDA MProject, University of Mississippi, 135 Coy Waller Lab Complex, University, Mississippi 38677, 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:
The company plans to cultivate marihuana for the National Institute on Drug Abuse for research approved by the Department of Health and Human Services.
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), 8701 Morrissette Drive, Springfield, VA 22152; and must be filed no later than January 15, 2008.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substances in bulk for conversion and sale to dosage form manufacturers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of
By Notice dated June 26, 2007, and published in the
The company plans to manufacture the listed controlled substances in bulk for distribution to its customers.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Siegfried (USA), Inc. to manufacture the listed basic classes of controlled substances is consistent with the public interest at this time. DEA has investigated Siegfried (USA), Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated June 26, 2007, and published in the
The company plans to manufacture reference standards.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Sigma Aldrich Research Biochemicals, Inc. to manufacture the listed basic class of controlled substance is consistent with the public interest at this time. DEA has investigated Sigma Aldrich Research Biochemicals, Inc. to ensure that the company's registration is consistent with the public interest. The investigation has included inspection and testing of the company's physical security systems, verification of the company's compliance with state and local laws, and a review of the company's background and history. Therefore, pursuant to 21 U.S.C. 823, and in accordance with 21 CFR 1301.33, the above named company is granted registration as a bulk manufacturer of the basic classes of controlled substances listed.
By Notice dated April 17, 2007 and published in the
The company plans to import the listed controlled substance for the manufacture of a bulk controlled substance for distribution to its customer.
No comments or objections have been received. DEA has considered the factors in 21 U.S.C. 823(a) and 952(a) and determined that the registration of Stepan Company to import the basic class of controlled substance is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971, at this time. DEA has investigated Stepan Company 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. 952(a) and 958(a), and in accordance with 21 CFR 1301.34, the above named company is granted registration as an importer of the basic class of controlled substance listed.
Pursuant to 21 U.S.C. 958(i), the Attorney General shall, prior to issuing a registration under this Section to a bulk manufacturer of a controlled substance in schedule I or II and prior to issuing a registration under 21 U.S.C. 952(a)(2) authorizing the importation of such a substance, provide manufacturers holding registrations for the bulk manufacture of the substance an opportunity for a hearing.
Therefore, in accordance with Title 21 Code of Federal Regulations (CFR), 1301.34(a), this is notice that on August 9, 2007, Tocris Cookson, Inc., 16144 Westwoods Business Park, Ellisville, Missouri 63021, made application by renewal to the Drug Enforcement Administration (DEA) to be registered as an importer of the basic classes of controlled substances listed in schedule I:
The company plans to import the above listed synthetic products for non-clinical laboratory based research only.
Any bulk manufacturer who is presently, or is applying to be, registered with DEA to manufacture such basic classes of controlled substances may file comments or objections to the issuance of the proposed registration and may, at the same time, file a written request for a hearing on such application pursuant to 21 CFR 1301.43 and in such form as prescribed by 21 CFR 1316.47.
Any such 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 8701 Morrissette Drive, Springfield, Virginia 22152; and must be filed no later than December 17, 2007.
This procedure is to be conducted simultaneously with, and independent of, the procedures described in 21 CFR 1301.34(b), (c), (d), (e) and (f). As noted in a previous notice published in the
In accordance with section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on October 26, 2007, applicable to workers of Honeywell Sensing and Control, ACS Division, including on-site leased workers from Manpower, Sarasota, Florida. The notice was published in the
At the request of the State agency, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of speed, direction, and position sensors for the aerospace, industrial and transportation industries.
New information shows that leased workers of Westaff and Ad-Vance Personnel were employed on-site at the Sarasota, Florida, location of Honeywell Sensing and Control, ACS Division. The Department has determined that these workers were sufficiently under the control of Honeywell Sensing and Control, ACS Division to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers of Westaff and Ad-Vance Personnel working on-site at the Sarasota, Florida, location of the subject firm.
The intent of the Department's certification is to include all workers employed at Honeywell Sensing and Control, ACS Division, Sarasota, Florida, who were adversely impacted by a shift in production of speed, direction, and position sensors to Mexico.
The amended notice applicable to TA-W-62,329 is hereby issued as follows:
All workers of Honeywell Sensing and Control, ACS Division, including on-site leased workers of Manpower, Westaff and Ad-Vance Personnel, Sarasota, Florida, who became totally or partially separated from employment on or after October 17, 2006, through October 26, 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.
By application postmarked October 17, 2007, the petitioner 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 denial notice was signed on September 19, 2007 and published in the
The initial investigation resulted in a negative determination based on the finding that imports of custom injection molded plastic parts did not contribute importantly to worker separations at the subject firm and no shift of production to a foreign source occurred.
In the request for reconsideration, the petitioner provided additional information regarding the subject firm's customer.
The Department has reviewed the workers' request for reconsideration and the existing record, and has determined that an administrative review is appropriate. 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.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation announces the following meeting:
This proceeding concerns the application dated August 14, 2006, filed by Southern Nuclear Operating Company (SNC, the Applicant), pursuant to subpart A of 10 CFR part 52 for an early site permit (ESP). The ESP application seeks approval for use of the existing Vogtle Electric Generating Plant site near Waynesboro, Georgia, for the possible construction of two new nuclear reactors. On October 12, 2006, a notice of hearing and opportunity for leave to intervene was published by the United States Nuclear Regulatory Commission (NRC, the Commission) in the
In response to the notice of hearing and opportunity to petition for leave to intervene, on December 11, 2006, the Center for a Sustainable Coast, Savannah Riverkeeper, Southern Alliance for Clean Energy, Atlanta Women's Action for New Directions, and Blue Ridge Environmental Defense League (collectively the Joint Petitioners) filed a timely request for hearing and petition to intervene contesting the SNC ESP application. On December 13, 2006, the Commission referred the petition to the Atomic Safety and Licensing Board Panel to conduct any subsequent adjudication. On December 15, 2006, the Chief of the Atomic Safety and Licensing Board Panel designated, for the purpose of conducting the proceeding, the following Board, G. Paul Bollwerk, III (Chair), Dr. Nicholas G. Trikouros, and Dr. James Jackson (71 FR 77071; December 22, 2006). In a March 12, 2007, issuance, finding that each of the Joint Petitioners had established the requisite standing to intervene in this proceeding and that they had submitted two admissible contentions concerning the SNC ESP application, the Board admitted them as parties to this proceeding.
On August 16, 2007, SNC submitted to the NRC a supplement to its ESP application requesting authorization to engage in selected construction activities as defined by 10 CFR 50.10. As described by SNC, these activities would generally involve the “placement of engineered backfill and preparation of the Nuclear Island foundation base slab forms and reinforcing steel.” In light of the request for this additional authorization, the Commission herein supplements the findings and considerations set forth in the original notice of hearing on October 12, 2006, as follows:
The NRC staff will complete a detailed technical review of the application, including the supplement requesting authority to perform selected construction activities as defined by 10 CFR 50.10, and will document its findings in a safety evaluation report (SER) and an environmental impact statement (EIS). In addition, the Commission will refer a copy of the application to the Advisory Committee on Reactor Safeguards (ACRS) in accordance with 10 CFR 52.23, and the ACRS will report on those portions of the application that concern safety. In addition to the findings set forth in the initial notice of hearing, upon receipt of the ACRS report and completion of the NRC staff's SER and EIS, the Director, Office of New Reactors, NRC, will propose findings on the following additional issues:
(1) Whether the applicable standards and requirements of the Act, and the Commission's regulations applicable to the activities for which the Applicant seeks authorization have been met (Safety Issue 3); (2) whether the Applicant is technically qualified to engage in the activities authorized (Safety Issue 4); and (3) whether issuance of the ESP, granting the Applicant's requested authorization, will provide reasonable assurance of adequate protection to public health and safety and will not be inimical to the common defense and security (Safety Issue 5).
Whether, in accordance with the requirements of subpart A of 10 CFR part 51, the ESP should authorize the Applicant to conduct the requested construction activities.
If, as related to the additional issues outlined above, the hearing is contested as defined by 10 CFR 2.4, the Board, in addition to the directions in the original notice of hearing, will consider Safety Issues 3, 4, and 5 and the issue pursuant to NEPA set forth above.
If, as to the additional issues outlined above, the hearing is not a contested proceeding as defined in 10 CFR 2.4, the Board, in addition to the direction given in the original notice of hearing, will determine without conducting a de novo review: Whether the application and the record of the proceeding contain sufficient information, and the review of the application by the Commission's staff has been adequate to support affirmative findings on Safety Issues 3, 4, and 5, as proposed to be made by the Director, Office of New Reactors; and whether the review conducted by the Commission staff pursuant to NEPA has been adequate.
Regardless of whether the proceeding is contested or uncontested, the Board, in addition to complying with the provisions of the original notice of hearing, will: (1) Determine whether the requirements of section 102(2)(A), (C), and (E) of NEPA and subpart A of 10 CFR part 51 have been met, with respect to the activities to be authorized; (2) independently consider the balance among the conflicting factors with respect to the activities to be authorized which is contained in the record of the proceeding, with a view to determining the appropriate action to be taken; and (3) determine whether the redress plan submitted by the Applicant will adequately redress the activities to be authorized.
In accordance with 10 CFR 2.309, any person whose interest may be affected by this proceeding and who desires to participate as a party with respect to the supplementary issues must file a written petition for leave to intervene and must specify the contentions which the person seeks to have litigated in the hearing. A petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding, provided however parties that have already been admitted to the proceeding not need address the factors enumerated in 10 CFR 2.309(d)(1)-(2). If
Each contention must contain a specific statement of the issue of law or fact to be raised or controverted. A petitioner must also provide the following information with respect to each contention: (1) A brief explanation of the basis for the contention; (2) a concise statement of the alleged facts or expert opinions which support the petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue; and (3) sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. For each contention, the petition must demonstrate that the issue raised in the contention is within the scope of this proceeding and that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in this proceeding. A petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
A petition for leave to intervene must be filed in accordance with the December 15, 2006, issuance of the Chief of the Atomic Safety and Licensing Board Panel establishing procedures for submitting documents using the NRC Electronic Information Exchange or E-Submittal process. The accession number for the issuance is ML063520200. The issuance is also available through the NRC's electronic hearing docket which is available to the public at
If any new participant to this proceeding believes they are unable to participate in this proceeding utilizing the electronic document formatting and/or filing processes outlined in the December 15, 2006, issuance, they may file a request for an exemption from the Licensing Board in conjunction with its first filing in this proceeding. Pursuant to the December 15, 2006, issuance, the provisions of 10 CFR 2.302(g)(2) and (3) of the Commission's proposed rule on electronic document filing and formatting shall govern such an exemption request (70 FR 74950, 74960; December 16, 2005). Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
All such petitions must be filed no later than 60 days from the date of publication of this notice in the
This supplementary notice does not affect the status of any person previously admitted as a party to this proceeding or provide any additional opportunity to any person to intervene on the basis of, or to raise matters encompassed within, the issues specified for hearing in the original notice of hearing published in the
A copy of the SNC ESP application is available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records are accessible from the Agency-wide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that pursuant to a request of the European Communities, the Dispute Settlement Body of the World Trade Organization (“WTO”) has established a compliance panel under the
Although USTR will accept any comments received during the course of the dispute settlement proceeding, comments should be submitted on or before December 21, 2007.
Comments should be submitted (i) electronically, to
Elizabeth V. Baltzan, Associate General Counsel, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508, (202) 395-3582.
USTR is providing notice that the DSB has established, at the request of the EC, a dispute settlement compliance panel pursuant to the WTO
In the European Communities' (the “EC”) request for the establishment of a panel in connection with the dispute
• The consistency with Articles 17.14 and 21 of the DSU of the dates of entry into force of the SeCtion 129 determinations issued by the Department of Commerce to comply with the recommendations and rulings of the original proceeding;
• The alleged failure to eliminate “zeroing” in 16 administrative reviews found, in the original proceeding, to be inconsistent with U.S. WTO obligations; the EC alleges that the failure to eliminate “zeroing” in these reviews is a breach of Articles 2, 9.3, and 11 of the Antidumping Agreement and Article VI:2 of the GATT 1994;
• An alleged miscalculation with respect to one determination;
• With respect to all measures identified in the request, the alleged imposition, collection, or liquidation of antidumping duties “inflated” by “zeroing” beyond April 9, 2007;
• The increase in the “all-others” rate in connection with two determinations;
• With respect to original investigations in which the recalculation of dumping margins led to the conclusion that some exporters were not dumping or had
• The continued use of zeroing in the reviews related to the measures in question.
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons submitting comments may either send one copy by fax to Sandy McKinzy at (202) 395-3640, or transmit a copy electronically to
USTR encourages the submission of documents in Adobe PDF format, as attachments to an electronic mail. Interested persons who make submissions by electronic mail should not provide separate cover letters; information that might appear in a cover letter should be included in the submission itself. Similarly, to the extent possible, any attachments to the submission should be included in the same file as the submission itself, and not as separate files.
A person requesting that information contained in a comment submitted by that person be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page of the submission.
Information or advice contained in a comment submitted, other than business confidential information, may be determined by USTR to be confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitting person believes that information or advice may qualify as such, the submitting person—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of each page of the cover page and each succeeding page; and
(3) Is encouraged to provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a file on this dispute settlement proceeding, accessible to the public, in the USTR Reading Room, which is located at 1724 F Street, NW., Washington, DC 20508. The public file will include non-confidential comments received by USTR from the public with respect to the dispute; for the dispute settlement compliance panel or in the event of an appeal from such a panel, the U.S. submissions; the submissions, or non-confidential summaries of submissions, received from other participants in the dispute; the report of the panel; and, if applicable, the report of the Appellate Body. An appointment to review the public file (Docket No. WT/DS-294) may be made by calling the USTR Reading Room at (202) 395-6186. The USTR Reading Room is open to the public from 9:30 a.m. to noon and 1 p.m. to 4 p.m., Monday through Friday.
The National Association of Realtors® (“NAR”) has requested an exemption pursuant to sections 15(a)(2) and 36(a) of the Securities Exchange Act of 1934 (“Exchange Act”) from the broker-dealer registration requirements of section 15(a)(1) and the reporting and other requirements of the Exchange Act (other than sections 15(b)(4) and 15(b)(6)), and the rules and regulations thereunder, that apply to a broker or dealer that is not registered with the Commission. Subject to the conditions specified in NAR's application (“Application”) and discussed below, the requested exemption would permit a licensed real estate agent or broker who is predominantly engaged in and has substantial experience in the commercial real estate market and the real estate brokerage firm with which such agent or broker is licensed to receive compensation in the form described below for the sale of a TIC Security, as defined below.
In order to provide an opportunity for interested persons to comment on the Application, the Commission is publishing this notice and request for comment pursuant to Rule 0-12 under the Exchange Act. The Commission will carefully consider all comments submitted, and, should it determine to issue an exemption, could eliminate or add to, or modify, the conditions discussed below.
Section 15(a)(1) of the Exchange Act generally requires any broker or dealer who makes use of the mails or any instrumentality of interstate commerce to effect transactions in, or induce the purchase or sale of, any security to register with the Commission. Section 3(a)(4)(A) of the Exchange Act generally defines a “broker” as “any person engaged in the business of effecting transactions in securities for the account of others.” Absent an exemption, a licensed real estate agent or real estate broker who receives compensation for the sale of a TIC Security would be required to be registered as a broker with the Commission or to be a registered associated person of a registered broker-dealer. Similarly, a real estate brokerage firm that receives compensation for the sale of a TIC Security would be required to register as a broker-dealer.
Section 15(a)(2) of the Exchange Act authorizes the Commission to conditionally or unconditionally exempt from the broker-dealer registration requirements of section 15(a)(1) any broker or dealer or class of brokers or dealers, by rule or order, as it deems consistent with the public interest and the protection of investors.
NAR requests an exemption to allow any licensed real estate agent or broker who is predominantly engaged in and has substantial experience
Under NAR's exemptive request, a Real Estate Advisory Fee could be paid by the purchaser directly or on behalf of the purchaser by the sponsor or issuer of the TIC Security, which could, thereby, reduce the commission or other compensation received by a registered broker-dealer involved in the TIC Security transaction. The Real Estate Advisory Fee generally would be paid to the Real Estate Firm with which the Commercial Real Estate Professional is licensed. The Firm would distribute all or a previously agreed upon percentage of the Real Estate Advisory Fee to the Commercial Real Estate Professional that signed a buyer's agent agreement with the client and to any other Commercial Real Estate Professional or Real Estate Firm that was added to the agreement with the consent of the client.
As proposed by NAR, in order for any Commercial Real Estate Professional or any Real Estate Firm with which such person is licensed to receive or share in a Real Estate Advisory Fee in reliance on the requested exemption, the Commercial Real Estate Professional, the Real Estate Firm, the Selling Broker-Dealer and the Lead Placement Agent for the TIC Security transaction would comply with the following conditions, as applicable:
a. A Real Estate Advisory Fee shall only be paid to or shared with a Commercial Real Estate Professional who is predominantly engaged in sales of real estate other than TIC Securities, has substantial experience in commercial real estate,
b. Each client of the RE Participant purchasing a TIC Security must receive at closing a deed representing his or her undivided fractional interest in the TIC Security property and the TIC Security must qualify as a “replacement property” for purposes of an IRC section 1031 exchange, regardless of whether the client is purchasing the TIC Security for that purpose.
c. The TIC Security transaction must be effected through a registered broker-dealer.
a. Prior to the Commercial Real Estate Professional discussing a specific TIC Security property with his or her client, the client must enter into a written buyer's agent agreement with the RE Participant, which shall obligate the RE Participant to solely represent the client in connection with the purchase of a TIC Security.
b. The buyer's agent agreement must identify any other RE Participant who is
c. The buyer's agent agreement must state the aggregate maximum amount of the Real Estate Advisory Fee to be paid by the client to all RE Participants, including any RE Participant that is added to the agreement, which shall be expressed as either a fixed dollar amount or as a dollar amount that is determined in accordance with a predetermined formula (
d. The aggregate maximum amount of Real Estate Advisory Fee that is actually paid by the client to all RE Participants, including any RE Participant that is added to the buyer's agent agreement, will not exceed the amount of the contracted Real Estate Advisory Fee even if the client, the sponsor, or another person is willing to pay a higher fee.
e. The Commercial Real Estate Professional may discuss the real estate characteristics of a TIC Security property with the client and arrange for the client to inspect a TIC Security property and any other non-securities property before introducing the client to the Selling Broker-Dealer, but shall arrange such introduction upon the client advising the Commercial Real Estate Professional that he or she is considering the purchase of a specific TIC Security property.
A RE Participant that, directly or indirectly, receives a portion of a Real Estate Advisory Fee will not:
a. List or otherwise advertise the availability of TIC Securities or advertise that the RE Participant represents clients in connection with the purchase of TIC Securities;
b. Share a Real Estate Advisory Fee with any person not permitted to receive such Fee under the requested exemption;
c. Handle customer funds or securities in a TIC Security transaction;
d. Negotiate the terms and conditions of the purchase of any TIC Security on behalf of the client with a broker-dealer or sponsor selling a TIC Security or have any power to bind the client in the TIC Security transaction, but may transmit documents and information between the parties and may attend meetings between the Lead Placement Agent, Selling Broker-Dealer, and the sponsor and the client (solely in order to assist the client);
e. Represent the client as a “purchaser representative,” as defined in Rule 501(h) of the Securities Act of 1933;
f. Participate in the structuring of a TIC Security investment offered to the client;
g. Have the authority to close a purchase of a TIC Security on a client's behalf; or
h. Assist a client that purchases a TIC Security to obtain financing, except to provide a list of potential lenders.
a. The RE Participant must deliver a copy of the executed buyer's agent agreement to the Lead Placement Agent at closing.
b. Any Commercial Real Estate Professional that is to receive, directly or indirectly, a portion of a Real Estate Advisory Fee must not be subject to any “statutory disqualification,” as that term is defined in section 3(a)(39) of the Exchange Act (other than subparagraph (E) of that section), and will deliver a representation in writing to that effect to the Lead Placement Agent at closing. To the extent the statutory disqualification representation is included in the buyer's agent agreement, it must be updated at closing with respect to each Commercial Real Estate Professional that may, directly or indirectly, receive any portion of a Real Estate Advisory Fee.
a. Before the TIC Security transaction is effected, the Selling Broker-Dealer must perform a suitability analysis of the TIC Security transaction in accordance with the rules of the Selling Broker-Dealer's applicable self-regulatory organization (“SRO”) as if the Selling Broker-Dealer had recommended the TIC Security transaction and must deliver a representation in writing to that effect to the Lead Placement Agent at closing or, if the Selling Broker-Dealer is the Lead Placement Agent, must make a representation in writing to that effect at closing.
b. The Selling Broker-Dealer will inform the customer if the Selling Broker-Dealer determines that the TIC Security transaction to be effected for the customer is not suitable under the rules of the Selling Broker-Dealer's applicable SRO, and will not effect the TIC Security transaction unless it obtains the customer's written affirmation that the customer wants to proceed with the TIC Security transaction notwithstanding the Selling Broker-Dealer's determination. The Selling Broker-Dealer must deliver the written affirmation to the Lead Placement Agent at closing or, if the Selling Broker-Dealer is the Lead Placement Agent, must maintain the written affirmation as specified below.
c. The Lead Placement Agent must maintain a copy of each of the documents that is to be made and/or delivered at closing pursuant to the requested exemption (
NAR states that the requested exemption would allow a potential purchaser of a TIC Security to benefit from the real estate expertise of a Commercial Real Estate Professional, while receiving necessary protections afforded by federal and state securities laws and regulations. NAR states that the proposed conditions would limit the role of a Commercial Real Estate Professional and Real Estate Firm with which such person is licensed that would receive a Real Estate Advisory Fee. As a result, NAR states that an exemption from registration and regulation of the Commercial Real Estate Professional and the Real Estate Firm with which such person is licensed as a broker-dealer would be appropriate in the public interest and consistent with the protection of investors.
NAR has waived its request for confidential treatment and the Application is available on the Commission's Web site (
The Commission invites any person to submit comments or other information that relates to the exemptions requested in the Application, including whether the exemption should be granted, whether the conditions are appropriate, and whether conditions should be added, eliminated, or modified. In
• Is the Application's definition of “substantial experience in commercial real estate” appropriate? Should “substantial experience in commercial real estate” be defined differently? If so, how?
• Should a Commercial Real Estate Professional be considered to have “substantial experience in commercial real estate” if he or she meets a combination of two subjective factors (such as education and dollar value of transactions), or should substantial experience only be demonstrated by the specific education or transactional benchmarks enumerated in the Application?
• Should the quantitative factors included in the Application's definition of “substantial experience in commercial real estate” be periodically adjusted for inflation? If so, how often and which measure of inflation should be used?
• Are there education and experience designations from groups other than those affiliated with NAR that would be appropriate to name specifically as evidencing “substantial experience in commercial real estate”?
• Should the exemption include a quantitative threshold to describe when a Commercial Real Estate Professional would be “predominantly engaged” in the sale of real estate other than TIC Securities? If so, what should that threshold be? For example, should 85 percent of the dollar value of a Commercial Real Estate Professional's sales during one or more prior calendar years be in real estate other than TIC securities in order to meet the predominance requirement?
• Should the exemption be conditioned on the buyer's agent agreement including a representation that the Commercial Real Estate Professional who receives or shares a Real Estate Advisory Fee has substantial experience in commercial real estate?
• Is there a possibility that the exemption, if granted, could create an incentive for Commercial Real Estate Professionals to sell TIC Securities instead of non-security forms of commercial real estate investments to their clients? Are there countervailing factors that would mitigate or neutralize any such incentive? Should the possibility of any such incentive be addressed by one or more conditions, for example, by requiring Commercial Real Estate Professionals to disclose in the buyer's agent agreement the various fees they would receive for selling TIC Securities and non-security forms of commercial real estate investments? Are there other conditions that could address this incentive?
• Are the proposed conditions that would impose obligations on registered broker-dealers appropriate? Would they be sufficient to accomplish the desired goals, including maintaining investor protection? Should any be eliminated or modified, or should additional conditions be included? Commenters are invited to suggest conditions and explain their purpose.
For further information, contact Catherine McGuire, Chief Counsel; Brian Bussey, Assistant Chief Counsel; or Michael Hershaft, Special Counsel, at (202) 551-5550, Office of Chief Counsel, Division of Market Regulation, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-6628.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to rule-comments@sec.gov. Please include File No. S7-26-07 on the subject line.
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
Certain provisions of the requested exemption contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995.
The requested exemption would be conditioned on the RE Participant delivering a copy of the executed buyer's agent agreement to the Lead Placement Agent at closing.
The proposed buyer's agent agreement is designed to assist in implementing the requested exemption and monitoring for compliance. The proposed delivery requirement is designed to ensure that the Lead Placement Agent has a copy of the buyer's agent agreement in order to comply with its recordkeeping obligations discussed below, which would facilitate monitoring compliance with the requested exemption.
The proposed collection of information would apply to RE Participants who rely on the requested exemption.
The Commission estimates that approximately 800 RE Participants
This proposed collection of information would be mandatory for RE Participants who rely on the requested exemption.
The proposed collection of information would be provided by the RE Participant to the Lead Placement Agent and would be available for inspection by the Commission and the applicable SRO.
The requested exemption does not contain a separate record retention period.
The requested exemption would require any Commercial Real Estate Professional that is to receive, directly or indirectly, a portion of a Real Estate Advisory Fee to not be subject to any “statutory disqualification,” as defined in section 3(a)(39) of the Exchange Act (other than subparagraph (E) of that section), and to deliver a representation in writing to that effect to the Lead Placement Agent at closing.
The proposed “statutory disqualification” representation would be used in implementing the requested exemption and monitoring its use. The proposed delivery requirement is designed to ensure that the Lead Placement Agent has a copy of the statutory disqualification representation in order to comply with its recordkeeping obligations discussed below, which would facilitate monitoring compliance with the exemption.
The proposed collection of information would apply to Commercial Real Estate Professionals who would receive, directly or indirectly, a portion of a Real Estate Advisory Fee pursuant to the requested exemption.
The Commission estimates that approximately 800 Commercial Real Estate Professionals
This proposed collection of information would be mandatory for Commercial Real Estate Professionals who rely on the requested exemption.
The collection of information would be provided by the Commercial Real Estate Professional to the Lead Placement Agent and to the customer and would be available for inspection by the Commission and the applicable SRO.
The requested exemption does not contain a separate record retention period.
The requested exemption would require a Selling Broker-Dealer to deliver a representation in writing that the Selling Broker-Dealer performed a suitability analysis to the Lead Placement Agent at closing, or, if the Selling Broker-Dealer is the Lead Placement Agent, to make such a representation in writing at closing.
The proposed suitability representation would be used in
The proposed collection of information would apply to Selling Broker-Dealers, who deliver or make a suitability determination pursuant to the requested exemption.
The Commission estimates that approximately 150 Selling Broker-Dealers
This proposed collection of information would be mandatory for Selling Broker-Dealers who rely on the requested exemption.
The proposed collection of information would be provided by the Selling Broker-Dealer to the Lead Placement Agent, or if the Selling Broker-Dealer is the Lead Placement Agent, to create the collection of information and would be available for inspection by the Commission and the applicable SRO.
The requested exemption does not contain a separate record retention period.
The requested exemption would require a Selling Broker-Dealer that determines that a TIC Security transaction is not suitable to obtain a written affirmation that the customer wants to proceed with the TIC Security transaction notwithstanding the Selling Broker-Dealer's determination. It also would require the Selling Broker-Dealer to deliver the written affirmation to the Lead Placement Agent at closing or, if the Selling Broker-Dealer is the Lead Placement Agent, to maintain the written affirmation consistent with the record retention provisions of Exchange Act Rule 17a-4.
This proposed information is designed to ensure that the customer is informed if a Selling Broker-Dealer determines a transaction is not suitable, and, if the customer wants to proceed with the transaction, that the customer has made such a decision in light of the broker-dealer's determination. In addition, the proposed delivery requirement is designed to ensure that the Lead Placement Agent has a copy of the customer affirmation in order to comply with its recordkeeping obligations discussed below, which would facilitate monitoring compliance with the exemption.
The proposed collection of information would apply to Selling Broker-Dealers who deliver or maintain a customer affirmation determination pursuant to the requested exemption.
The Commission estimates that there are approximately 150 Selling Broker-Dealers that are potential respondents, those Selling Broker-Dealers would obtain and then deliver or maintain a written affirmation from 265.20 customers who are clients
This collection of information would be mandatory for Selling Broker-Dealers who rely on the requested exemption.
The proposed collection of information would be provided by the Selling Broker-Dealer to the Lead Placement Agent, or retained as a
The requested exemption does not contain a separate record retention period.
The requested exemption would require the Lead Placement Agent to maintain a copy of each of the documents that is to be made and/or delivered at closing, as discussed above (
The proposed use of this information is to facilitate monitoring compliance with the exemption by compelling the Lead Placement Agent to maintain records of all documents that are required to be delivered at closing.
The proposed collection of information would apply to Lead Placement Agents that act pursuant to the requested exemption.
The Commission estimates that approximately 45 Lead Placement Agents
This proposed collection of information would be mandatory for Lead Placement Agents that act pursuant to the requested exemption.
The proposed collection of information does not address the confidentiality of information prepared under this rule; however, the collection of information would be available for inspection by the Commission and the applicable SRO.
As specified, the Lead Placement Agent would be required to maintain copies of these documents for a period of three years in accordance with its existing obligations under Exchange Act Rule 17a-4(f).
Pursuant to 44 U.S.C. 3506(c)(2)(A), the Commission solicits comments to:
(1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information would have practical utility;
(2) Evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collections of information on those required to respond, including through the use of automated collection techniques or other forms of information technology.
Persons desiring to submit comments on the proposed collection of information requirements should direct them 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 of their comments to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090, and refer to File No. S7-26-07. OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this notice in the
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to add new Interpretation .01(c) to CBOE Rule 5.3 (Criteria for Underlying Securities) for the purpose of permitting the Exchange to list and trade individual equity options on the Exchange that are
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to revise the Exchange's options listing standards so that as long as the continued listing criteria set forth in CBOE Rule 5.4 (Withdrawal of Approval of Underlying Securities) are met and the option is listed and traded on another national securities exchange, the Exchange would be able to list and trade the option. CBOE Rule 5.3 sets forth the requirements that an underlying equity security must meet before the Exchange may initially list options on that security. The Exchange notes that these requirements are relatively uniform among the options exchanges.
Interpretation .01 to CBOE Rule 5.3 relates to the minimum market price at which an underlying security must trade for an option to be listed on it, and applies to the listing of individual equity options on both “covered” and “uncovered” underlying securities.
In connection with an underlying security deemed to be “uncovered,” Exchange rules require that the market price per share of the underlying security be at least $7.50 for the majority of business days during the three calendar months preceding the date of selection, as measured by the lowest closing price reported in any market in which the underlying security traded on each of the subject days.
CBOE Rule 5.4 sets forth the Exchange's continued listing criteria, which the Exchange notes are less stringent than the initial listing criteria contained in CBOE Rule 5.3. This is due largely because, in total, the Exchange's listing criteria assure that options will be listed and traded on securities of companies that are financially sound and subject to adequate minimum standards. The Exchange believes that the continued listing criteria are uniform among the options exchanges.
To address the circumstance in which an options class is currently ineligible for listing on the Exchange, while at the same time such option is listed and trading on another options exchange(s), the Exchange proposes to amend CBOE Rule 5.3. Specifically, the Exchange proposes to add new paragraph (c) to Interpretation .01 to CBOE Rule 5.3 to provide that notwithstanding that a particular underlying security may not meet the requirements set forth in paragraphs (a)(1), (a)(2), (b)(1) and (b)(2) of that Interpretation, the Exchange nonetheless could list and trade an option on such underlying security if (1) the underlying security meets the criteria for continued listing in CBOE Rule 5.4, and (2) options on such underlying security are listed and traded on at least one other registered national securities exchange. In connection with the proposed changes, the Exchange represents that the procedures currently employed to determine whether a particular underlying security meets the initial listing criteria will similarly be applied to the continued listing criteria.
The Exchange believes that this proposal is narrowly tailored to address the circumstances where an options class is currently ineligible for listing on the Exchange while at the same time, such option is trading on another options exchange(s). The Exchange notes that when an underlying security meets the Exchange's continued listing criteria and at least one other exchange trades options on the underlying security, the option is already available to the investing public. Therefore, the Exchange notes that the current proposal will not introduce any inappropriate additional listed options classes. Further, the adoption of the proposal is for competitive purposes and to promote a free and open market for the benefit of investors.
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.
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.
After careful consideration, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission finds good cause, pursuant to section 19(b)(2)(B) of the Act,
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.
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
Please submit comments by December 17, 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 Highway Administration (FHWA), DOT.
Notice; solicitation of applications.
This notice solicits applications for the truck parking initiative for which funding is available under section 1305 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU directed the Secretary to establish a pilot program to address the shortage of long-term parking for commercial motor vehicles on the National Highway System. States, metropolitan planning organizations (MPOs) and local governments are eligible for the funding available for fiscal years (FY) 2006-2009. Section 1305 allows for a wide range of eligible projects, ranging from construction of spaces and other capital improvements to using intelligent transportation systems (ITS) technology to increase information on the availability of both public and private commercial vehicle parking spaces. For purposes of this program, long-term parking is defined as parking available for 10 or more consecutive hours.
Applications must be received by the FHWA Division Office no later than February 14, 2008.
The FHWA Division Office locations can be found at the following URL:
Mr. Michael P. Onder, Office of Freight Management and Operations, (202) 366-2639,
An electronic copy of this notice may be downloaded from the Office of the
The Truck Parking Initiative furthers the goals of the Department of Transportation's new National Strategy to Reduce Congestion on America's Transportation Network, announced on May 16, 2006.
The shortage of long-term truck parking on the National Highway System (NHS) is a problem that needs to be addressed. The 2002 FHWA Report “
1. Promote the real-time dissemination of publicly or privately provided commercial motor vehicle parking availability on the NHS using ITS and other means;
2. Open non-traditional facilities to commercial motor vehicle parking, including inspection and weigh stations, and park and ride facilities;
3. Make capital improvements to public commercial motor vehicle parking facilities currently closed on a seasonal basis to allow the facilities to remain open year round;
4. Construct turnouts along the NHS (which must comply with appropriate design standards) to facilitate commercial motor vehicle access to parking facilities, and/or improve the geometric design of interchanges to improve access to commercial motor vehicle parking facilities. This should include improvements to the local street network or access to the proposed parking site. Applicable references, including standards, recommended industry practices, and references that provide technical guidance to assist State and local agencies in addressing truck parking issues, are listed below:
5. Construct commercial motor vehicle parking facilities adjacent to commercial truck stops and travel plazas; and
6. Construct safety rest areas that include parking for commercial motor vehicles.
The FHWA believes that projects designed to disseminate information on the availability and/or location of public or private long-term parking spaces provide the greatest opportunity to maximize the effectiveness of this pilot program.
The FHWA Administrator, acting on behalf of the Secretary of Transportation, is authorized to provide Federal grant assistance for the Truck Parking Facilities pilot grant program on a discretionary basis. After reviewing the proposals from the FY06 and FY07 solicitations, the Administrator has decided that the best approach to implementing this program, and the approach that will provide the most comprehensive and best return on investment, is to apply this program on a corridor-wide basis. Many of the FY06 and FY07 proposals were meritorious. However, choosing from among those proposals would have resulted in spot relief at isolated locations across the Interstate system. Applying this program to a congested corridor focuses limited resources where deployment provides a mechanism to potentially solve long-term commercial motor vehicle parking for a section of the Interstate system.
Accordingly, FHWA will give priority consideration to applications for Truck Parking projects from those States, MPO's and local governments that have measurable safety, congestion reduction and air quality benefits that are located within a Corridor of the Future. The States within these corridors have already proposed congestion mitigation and safety plans for accommodating freight traffic through their corridors, and have been selected as candidates to implement those plans should the necessary funding become available. The selected Corridors of the Future can be found at
The congestion reduction criteria also support the objectives of the
The candidate projects must meet the eligibility criteria for the Truck Parking Initiative program and will be evaluated on the selection criteria established for the program along with the safety and congestion criteria described below. Although funding for the Truck Parking Initiative is limited, large-scale corridor focused projects are encouraged to apply for Truck Parking Initiative funding.
Highway safety has been an increasing focus and priority for FHWA over the recent past. Targeting discretionary funding, in a results-oriented comprehensive approach to safety, is a means of directing limited discretionary funding to those projects that will yield tangible transportation and safety benefits. With respect to safety, applicants should describe the safety benefits associated with the project or activity for which funding is sought, including whether the project, activity, or improvement:
• Will result in a measurable reduction in the loss of property, injury, or life;
• Incorporates innovative safety design or operational techniques, including variable pricing for congestion reduction, electronic tolling, barrier systems, and intersection-related enhancements;
• Incorporates innovative construction work zone strategies to improve safety;
• Is located on a rural road that is in need of priority attention based on analysis of safety experience; and/or
• Is located in an urban area of high injury or fatality, and is an initiative to improve the design, operation or other aspect of the existing facility that will result in a measurable safety improvement.
Increasing mobility by reducing congestion has also been a priority for FHWA over the past few years. The application of discretionary funding to improve mobility and reduce congestion will yield tangible transportation and economic benefits that should far exceed the limited amount of discretionary funding provided to the project. In furtherance of measuring the congestion reduction and mobility benefits associated with a project that qualifies for funding under the Truck Parking Initiative program, within the application, the applicant should describe how the project, activity or improvement:
• Relieves congestion in an urban area or along a major transportation corridor;
• Employs operational and technological improvements that promote safety and congestion relief; and/or addresses major freight bottlenecks.
Appropriate quantitative data should be provided to support the safety and congestion relief discussion.
For more information on the DOT Congestion Initiative, please refer to
Section 1305 authorizes $6.25 million in contract authority for each of the fiscal years 2006 through 2009. The obligation limitation reduction reduces the total amount of contract authority that is available for obligation. Funds authorized to carry out this section remain available until expended.
The Administrator has determined that all 4 years of discretionary contracting authority under the program may be made available through this single solicitation. No awards will be made for the proposals received in response to the FY06 and FY07 solicitations. Instead, funds for 2006 and 2007 will be redirected under this comprehensive approach. Funds from FY08 and FY09 may be allocated in response to this solicitation, but would not be available for obligation until the fiscal year the funds are made available for obligation.
Projects funded under this section shall be treated as projects on a Federal-aid System under Chapter 1 of Title 23, United States Code.
Grants may be funded at an 80 to 100 percent funding level based on the criteria specified in Sections 120(b) and 120(c) of Title 23, United States Code.
This memo will also be posted on the FHWA Office of Freight Management and Operations Web site,
In accordance with the Paperwork Reduction Act, we have received clearance from OMB for this action (OMB Control number 2125-0610, March 31, 2010).
All proposals should include the following:
1. A detailed project description, which would include the extent of the long-term truck parking shortage in the corridor to be addressed, along with contact information for the project's primary point of contact, and whether funds are being requested under 23 U.S.C. 120(b) or 120(c). Data helping to define the shortage may include truck volume (Average Daily Truck Traffic—ADTT) in the corridor to be addressed, current number of long-term commercial motor vehicle parking spaces, use of current long-term parking spaces, driver surveys, observational field studies, proximity to freight loading/unloading facilities, and proximity to the NHS.
2. The rationale for the project should include an analysis and demonstration of how the proposed project will positively affect truck parking, safety, traffic congestion, or air quality in the identified corridor. Examples may include: Advance information on availability of parking that may help to reduce the number of trucks parked on roadsides and increase the use of available truck parking spaces.
3. The scope of work should include a complete listing of activities to be funded through the grant, including technology development, information processing, information integration activities, developmental phase activities (planning, feasibility analysis, environmental review, engineering or design work, and other activities), construction, reconstruction, acquisition of real property (including land related to the project and improvements to land), environmental mitigation, construction contingencies, acquisition of equipment, and operational improvements.
4. Stakeholder identification should include evidence of prior consultation and/or partnership with affected MPOs, local governments, community groups, private providers of commercial motor vehicle parking, and motorist and trucking organizations. Also, include a listing of all public and private partners, and the role each will play in the execution of the project. Commitment/consultation examples may include: Memorandums of Agreement, Memorandums of Understanding, contracts, meeting minutes, letters of support/commitment, and documentation in a metropolitan transportation improvement program (TIP) or statewide transportation improvement program (STIP).
5. A detailed quantification of eligible project costs by activity, an identification of all funding sources that will supplement the grant and be necessary to fully fund the project, and the anticipated dates on which the additional funds are to be made available. Public and private sources of funds (non-Federal commitment) will be considered by the FHWA as an in-kind match contributing to the project. State matching funds will be required for projects eligible under 23 U.S.C. 120(b).
6. Applicants should provide a timeline that includes work to be completed and anticipated funding cycles. Gantt charts are preferred.
7. Environmental process: Please include a timeline for complying with the National Environmental Policy Act (NEPA) process, if applicable, or if not applicable, include a statement to that effect.
8. Include a project map that consists of a schematic illustration depicting the project and connecting transportation infrastructure. (Although no proposals are to be submitted electronically, digital maps would be preferred. Please indicate in the proposal if the maps are available digitally.)
9. Measurement Plan. Submitter should describe a measurement plan to determine whether or not the project achieved its intended results. The measurement plan should continue for 3 years beyond the completion date of the project. After the 3-year period, a final report quantifying the results of the project should be submitted to the FHWA.
10. Proposals may not exceed 20 pages in length.
Grant applications that contain the elements detailed in this notice will be scored competitively according to the soundness of their methodology and subject to the criteria listed below. Sub-factors listed under each factor are of equal importance unless otherwise noted.
1. Demonstration of severe shortage (number of spaces, access to existing spaces or information/knowledge of space availability) of commercial motor vehicle parking capacity/utilization in the corridor. (Multi-State highway corridors are the focus of these projects. Consider the business requirements of getting the goods to market, while also considering the government regulations associated with hours of service.) (20 percent)
Examples used to demonstrate severe shortage may include:
○ Average Daily Truck Traffic (ADTT) in proposal area.
○ Average daily shortfall of truck parking in proposal area.
○ Ratio of ADTT to average daily shortfall of truck parking in proposal area.
○ Proximity to NHS.
2. The extent to which the proposed solution resolves the described shortage (35 percent).
Examples should include:
○ Number of truck parking spaces per day that will be used as a result of the proposed solution.
○ The effect on highway safety, traffic congestion, and/or air quality.
3. Cost effectiveness of proposal (25 percent).
Examples should include:
○ How many truck parking spaces will be used per day per dollar expended?
○ Total cost of project, including all non-Federal funds that will be contributed to the project.
4. Scope of proposal (20 percent).
Examples should include:
○ Evidence of a wide range of input from affected parties, including State and local governments, community groups, private providers of commercial motor vehicle parking, and motorist and trucking organizations.
○ Whether the principles outlined in the proposal can be applied to other locations/projects and possibly serve as a model for other locations.
1. All applications for grants should be submitted to the FHWA Division Office by the State DOT by the date specified in this notice.
2. State DOTs should ensure that the project proposal is compatible with or documented on their planning documents (TIP and STIP). They should also validate, to the extent the can, any analytic data.
3. Each application will be reviewed for conformance with the provisions in this notice.
4. Applications lacking any of the mandatory elements or arriving after the deadline for submission will not be considered. To assure full consideration, proposals should not exceed 20 pages in length.
5. Applicants may be contacted for additional information or clarification.
6. Applications complying with the requirements outlined in this notice will be evaluated competitively by a panel selected by the Director, Office of Freight Management and Operations, and will be scored as described in the scoring criteria.
7. If the FHWA determines that the project is technically or financially unfeasible, FHWA will notify the applicant, in writing.
8. The FHWA reserves the right to partially fund or request modification of projects.
9. All information described in the submitter's proposal elements should be quantifiable and sourced.
10. Submitter should describe a measurement plan to determine whether or not the project will achieve its intended results. The measurement plan should continue for 3 years beyond the date of the project. After a 3-year period, a final report quantifying the results of the project should be submitted to the FHWA.
11. The proposed projects should not compete with local businesses or commercial enterprises.
The grant applications will be ranked by final score. The FHWA will select applications based on those rankings, subject to the availability of funds.
The FHWA recognizes that each funded project is unique, and therefore may attach conditions to different projects' award documents. The FHWA will send an award letter with a grant agreement that contains all the terms and conditions for the grant. These successful applicants must execute and return the grant agreement, accompanied by any additional items required by the grant agreement.
Failure to provide the measurement plan will be considered during the past-performance element of future grant applications.
Section 1305, Pub. L. 109-59; 119 Stat. 1214; Aug. 10, 2005.
Federal Highway Administration (FHWA), DOT.
Notice of meeting of advisory committee and change to membership.
This document announces the third meeting of the Motorcyclist Advisory Council to the Federal Highway Administration (MAC-FHWA). The purpose of this meeting is to advise the Secretary of Transportation, through the Administrator of the Federal Highway Administration, on infrastructure issues of concern to motorcyclists, including (1) barrier design; (2) road design, construction, and maintenance practices; and (3) the architecture and implementation of intelligent transportation system technologies, pursuant to section 1914 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
The third meeting of the MAC-FHWA is scheduled for December 5-6, 2007, from 10 a.m. until 5 p.m. on December 5, 2007, and from 9 a.m. until 1 p.m. on December 6, 2007.
The third MAC-FHWA meeting will be held at the Sheraton Crystal City, 1800 Jefferson Davis Highway, Arlington, VA 22202.
Mr. Michael Halladay, the Designated Federal Official, Office of Safety, 202-366-2288, (
On August 10, 2005, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144). Section 1914 of SAFETEA-LU mandates the establishment of the Motorcyclist Advisory Council as follows: “The Secretary, acting through the Administrator of the Federal Highway Administration, in consultation with the Committee on Transportation and Infrastructure of the U.S. House of Representatives and the Committee on Environment and Public Works of the United States Senate, shall appoint a Motorcyclist Advisory Council to coordinate with and advise the Administrator on infrastructure issues of concern to motorcyclists, including—
(1) Barrier design;
(2) Road design, construction, and maintenance practices; and
(3) The architecture and implementation of intelligent transportation system technologies.”
In addition, section 1914 specifies the membership of the council: “The Council shall consist of not more than 10 members of the motorcycling community with professional expertise in national motorcyclist safety advocacy, including—
(1) At least—
(A) One member recommended by a national motorcyclist association;
(B) One member recommended by a national motorcycle riders foundation;
(C) One representative of the National Association of State Motorcycle Safety Administrators;
(D) Two members of State motorcyclists' organizations;
(E) One member recommended by a national organization that represents the builders of highway infrastructure;
(F) One member recommended by a national association that represents the traffic safety systems industry; and
(G) One member of a national safety organization; and
(2) At least one, and not more than two, motorcyclists who are traffic system design engineers or State transportation department officials.”
To carry out this requirement, the FHWA published a notice of intent to form an advisory committee in the
This notice also serves to identify changes in the MAC-FHWA membership due to changes in the employment status for two persons. Due to his semi-retirement, Mr. Robert J. McClune has been replaced by Mr. Dean Tisdall as a member recommended by the traffic safety systems industry. Mr. Mark Bloschock has retired from the Texas Department of Transportation and no longer fulfills the criterion of a motorcyclist who is a State transportation department official. An additional person will not be substituted for Mr. Bloschock as the charter requires “at least one, and not more than two, motorcyclists who are traffic system design engineers or State transportation department officials” and, Mr. Donald Vaughn of the Alabama Department of Transportation, an original member of the MAC-FHWA, is currently fulfilling that requirement.
The FHWA anticipates that the MAC-FHWA will meet at least once a year, with meetings held in the Washington, DC metropolitan area and the FHWA will publish notices in the
The agenda topics for the meetings will include a discussion of the following issues: (1) Barrier design; (2) road design, construction, and maintenance practices; and (3) the architecture and implementation of intelligent transportation system technologies.
The third meeting of the Motorcyclist Advisory Council to the Federal Highway Administration will be held on December 5-6, at the Sheraton Crystal City, 1800 Jefferson Davis Highway, Arlington, VA 22202 from 10 a.m. until 5 p.m. on December 5, 2007, and from 9 a.m. until 1 p.m. on December 6, 2007.
Columbia Basin Railroad Company, Inc. (CBRW), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire, by purchase pursuant to an agreement it anticipates entering into with BNSF Railway Company and BNSF Acquisition, Inc., and to operate approximately 74 miles of rail lines as follows: (1) From milepost 186.9 at or near Connell to milepost 145.7 at or near Wheeler, WA; (2) from milepost 0.0 at or near Bassett Junction to milepost 12.5 at or near Schrag, WA; (3) from milepost 20.0 at or near Moses Lake to milepost 5.6 at or near Sieler, WA; and (4) from milepost 5.6 at or near Sieler to milepost 0.0 at or near Wheeler. In addition, CBRW intends to acquire incidental trackage rights for local and overhead rail service over approximately 13 miles of rail line from milepost 1987 at or near Othello to the end of the track at milepost 1974 at or near Warden, WA. CBRW has leased, operated and performed trackage rights services over substantially the same rail lines since December 1996.
CBRW certifies that its projected annual revenues as a result of this transaction will not result in the creation of a Class II or Class I rail carrier.
CBRW states that it intends to consummate the transaction on or after December 1, 2007, but shall in no event consummate the transaction before the Board either grants its petition for waiver of the 60-day labor notice requirement or CBRW satisfies the applicable labor notice requirement at 49 CFR 1150.42(e).
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. 35066, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Rose-Michele Nardi, Weiner Brodsky Sidman Kider PC, 1300 19th Street, NW., Fifth Floor, Washington, DC 20036-1609.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Genesee & Wyoming Inc. (GWI), a noncarrier, has filed a verified notice of exemption
GWI is a noncarrier holding company that directly or indirectly controls one Class II carrier and 24 Class III carriers, as well as additional carriers with two of its wholly owned subsidiaries that are noncarrier holding companies (RP Acquisition Company One and RP Acquisition Company Two).
The transaction is scheduled to be consummated on or after the date that exemption covered by this notice becomes effective (which will occur on December 2, 2007).
Applicants state that: (i) The rail lines involved in this transaction do not connect with any rail lines now controlled, directly or indirectly, by GWI; (ii) this transaction is not part of a series of anticipated transactions that would connect any of these rail lines with each other; and (iii) this transaction does not involve a Class I 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. Because the transaction involves at least one Class II and one or more Class III rail carriers, the exemption is subject to the labor protection requirements of 49 U.S.C. 11326(b).
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. 35098, must be filed with the Surface Transportation Board, 395 E Street, SW., Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Kevin M. Sheys, Kirkpatrick & Lockhart Preston Gates Ellis LLP, 1601 K Street, NW., Washington, DC 20006.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Maryland Midland Railway, Inc. (MMID), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to acquire, by purchase from the State of Maryland, acting by and through the Maryland Transit Administration (MTA), two active rail lines, totaling approximately 28 miles. The two active lines extend from milepost 32.6 at or near Westminster, MD, to milepost 24.3 at or near Cedarhurst, MD, and milepost 60.1 at or near Walkersville, MD, to milepost 39.6 at or near Littlestown, PA. In its notice, MMID also seeks to acquire, by purchase from the State of Maryland, acting by and through MTA, and operate approximately 6 miles of inactive rail line. The inactive line extends from milepost 45.1 at Taneytown, MD, to milepost 39.6 at Littlestown.
This transaction is related to the concurrently filed notice of exemption in STB Finance Docket No. 35098,
Based on projected revenues for the lines being acquired, MMID expects to remain a Class III rail carrier after consummation of the proposed transaction. MMID certifies that its projected annual revenues as a result of this transaction will not result in the creation of a Class II or Class I rail carrier.
MMID states that, due to an inadvertent error, it already has acquired the lines from MTA, pursuant to a purchase and sale agreement that was executed on February 16, 2005, and a quitclaim deed that was executed on January 23, 2006. MMID states that it is filing this notice of exemption to correct this error.
Because the projected annual revenues of the lines, together with MMID's projected annual revenue, will
MMID has requested a waiver of the requirement in 49 CFR 1150.42(e), asking that this notice become effective 30 days after it has been filed, rather than the requisite 60 days. MMID argues for the waiver, stating that it has been operating the two active lines for 15 years and will continue to be the operator of these lines, and because the inactive line has had no traffic for several years, there are no affected employees on this line. The waiver request will be addressed by the Board in a separate decision in this proceeding.
As a result, the earliest this transaction will be considered to be consummated will be either 60 days after MMID's October 22 certification that it has satisfied the requirements of section 1150.42(e) or any earlier date established by the Board if the Board grants the requested waiver.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 35099, 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 R.W. Smith, Jr., DLA Piper U.S. LLP, 6225 Smith Avenue, Baltimore, MD 21209.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Everett Railroad Company (ERC), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1152 Subpart F—
ERC has certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line that has been, or would need to be, rerouted; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on December 18, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA for continued rail service under 49 CFR 1152.27(c)(2),
A copy of any petition filed with the Board should be sent to ERC's representative: Robert A. Wimbish, Baker & Miller PLLC, 2401 Pennsylvania Avenue, NW., Suite 300, Washington, DC 20037.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Portland Terminal Company (PT) and Springfield Terminal Railway Company (ST) (collectively, applicants) have jointly filed a notice of exemption under 49 CFR 1152 Subpart F—
PT and ST have certified that: (1) No local traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements of 49 CFR 1105.7 (environmental report), 49 CFR 1105.8 (historic report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to these exemptions, any employee adversely affected by the abandonment or discontinuance shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, these exemptions will be effective on December 18, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to applicants' representative: Michael Q. Geary, Iron Horse Park, North Billerica, MA 01862.
If the verified notice contains false or misleading information, the exemptions are void
PT and ST have filed an environmental and historic report which addresses the effects, if any, of the abandonment and discontinuance on the environment and historic resources. SEA will issue an environmental assessment (EA) by November 23, 2007. Interested persons may obtain a copy of the EA by writing to SEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling SEA, at (202) 245-0305. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), PT shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the line. If consummation has not been effected by PT's filing of a notice of consummation by November 16, 2008, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Willamette Valley Railway Company (WVR) has filed a verified notice of exemption under 49 CFR 1152 Subpart F—
WVR has certified that: (1) No traffic has moved over the line for at least 2 years; (2) there is no overhead traffic on the line; (3) no formal complaint filed by a user of rail service on the line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the line either is pending with the Board or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on December 18, 2007, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA for continued rail service under 49 CFR 1152.27(c)(2),
A copy of any petition filed with the Board should be sent to WVR's representative: Thomas F. McFarland,
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Notice is hereby given that on November 9, 2007, the Office of Thrift Supervision approved the application of Kaiser Federal Bank, Covina, California, to convert to the stock form of organization. Copies of the application are available for inspection by appointment (phone number: 202-906-5922 or e-mail:
By the Office of Thrift Supervision.
Notification of First Spouse Gold Coin Price Increases.
Recent increases in the price of gold require that the United States Mint raise the sale prices on its upcoming offering of the Dolley Madison First Spouse Gold Coins.
Pursuant to the authority that 31 U.S.C. 5112(o)(1) & (4) grants to the Secretary of the Treasury to mint and issue one-half ounce gold bullion First Spouse coins, and to set their sale prices, the United States Mint is changing the price of these coins to reflect the increase in value of the precious metal content of the coins. This change is attributable to recent increases in the market price of gold, which has increased substantially since the initial prices were set for the First Spouse Gold Coins.
Accordingly, effective November 19, 2007, the United States Mint will commence selling the following Dolley Madison First Spouse Gold Coins at the prices indicated below:
Gloria C. Eskridge, Associate Director for Sales and Marketing, United States Mint, 801 Ninth Street, NW., Washington, DC 20220; or call (202) 354-7500.
31 U.S.C. 5112 & 9701.
Office of Management, Department of Veterans Affairs.
Notice.
The Office of Management (OM), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 15, 2008.
Submit written comments on the collection of information through
David Sturm at (612) 970-5702 or Fax (612) 970-5687.
Under the PRA of 1995 (Public Law 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, OM invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of OM's functions, including whether the information will have practical utility; (2) the accuracy of OM's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Office of Information and Technology, Department of Veterans Affairs.
Notice.
The Office of Information and Technology (IT), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information used by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before January 15, 2008.
Submit written comments on the collection of information through
John Chambers, Jr. at (202) 461-7463 or fax (202) 461-0443.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, IT invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of IT's functions, including whether the information will have practical utility; (2) the accuracy of IT's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
a. Application of Service Representative for Placement on Mailing List, VA Form 3215.
b. Request for and Consent To Release of Information From Claimant's Records, VA Form 3288.
c. Request to Correspondent for Identifying Information, VA Form Letter 70-2.
d. 38 CFR 1.519(A) Lists of Names and Addresses.
a. VA operates an outreach services program to ensure veterans and beneficiaries have information about benefits and services to which they may be entitled. To support the program, VA distributes copies of publications to Veterans Service Organizations' representatives to be used in rendering services and representation of veterans, their spouses and dependents. Service organizations complete VA Form 3215 to request placement on a mailing list for specific VA publications.
b. Veterans or beneficiaries complete VA Form 3288 to provide VA with a written consent to release his or her records or information to third parties such as insurance companies, physicians and other individuals.
c. VA Form Letter 70-2 is used to obtain additional information from a correspondent when the incoming correspondence does not provide sufficient information to identify a veteran. VA personnel use the information to identify the veteran, determine the location of a specific file, and to accomplish the action requested by the correspondent such as processing a benefit claim or file material in the individual's claims folder.
d. Title 38 U.S.C.5701(f)(1) authorized the disclosure of names or addresses, or both of present or former members of the Armed Forces and/or their beneficiaries to nonprofit organizations (including members of Congress) to notify veterans of Title 38 benefits and to provide assistance to veterans in obtaining these benefits. This release includes VA's Outreach Program for the purpose of advising veterans of non-VA Federal State and local benefits and programs.
a. Application of Service Representative for Placement on Mailing List, VA Form 3215—25 hours.
b. Request for and Consent to Release of Information From Claimant's Records, VA Form 3288—18,875 hours.
c. Request to Correspondent for Identifying Information, VA Form Letter 70-2—3,750 hours.
d. 38 CFR(A) 1.519 Lists of Names and Addresses—50 hours.
a. Application of Service Representative for Placement on Mailing List, VA Form 3215—10 minutes.
b. Request for and Consent to Release of Information From Claimant's Records, VA Form 3288—7.5 minutes.
c. Request to Correspondent for Identifying Information, VA Form Letter 70-2—5 minutes.
d. 38 CFR(A) 1.519 Lists of Names and Addresses—60 minutes.
a. Application of Service Representative for Placement on Mailing List, VA Form 3215—150.
b. Request for and Consent to Release of Information From Claimant's Records, VA Form 3288—151,000.
c. Request to Correspondent for Identifying Information, VA Form Letter 70-2—45,000.
d. 38 CFR(A) 1.519 Lists of Names and Addresses—50.
By direction of the Secretary.
In notice document E7-21903 beginning on page 63231 in the issue of Thursday, November 8, 2007, make the following correction:
On page 63232, in the first column, in the first full paragraphÿ7E, “December 10, 2007” should read “November 19, 2007”.
In proposed rule document 07-4262 beginning on page 50544 in the issue of Friday, August 31, 2007, make the following correction:
On page 50556, in the first column, in the third bullet point, the second sentence, beginning with “The notice is required...” should begin its own paragraph.
Employee Benefits Security Administration, Labor.
Final rule.
This document contains amendments to Department of Labor regulations relating to annual reporting and disclosure requirements under Part 1 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA). The amendments contained in this document are necessary to conform the annual reporting and disclosure regulations to revisions to the Form 5500Annual Return/Report of Employee Benefit Plan, including a new Form 5500-SF (Short Form or Short Form 5500), filed for employee pension and welfare benefit plans under ERISA and the Internal Revenue Code of 1986, as amended (Code). The changes to the Form 5500 forms and implementing regulatory amendments are intended to facilitate the transition to an electronic filing system, reduce and streamline annual reporting burdens, especially for small businesses, and update the annual reporting forms to reflect current issues, agency priorities and new requirements under the Pension Protection Act of 2006. Some of the forms revisions apply on a transitional basis for the 2008 reporting year before all of the form revisions are fully implemented as part of the switch under the ERISA Filing Acceptance System (EFAST) to a wholly electronic filing system for the 2009 reporting year. The current effective date of the electronic filing requirement under 29 CFR 2520.104a-2 also is being postponed in this document to apply to plan years beginning on or after January 1, 2009. The regulatory amendments will affect the financial and other information required to be reported and disclosed by employee benefit plans filing the Form 5500 Annual Return/Report of Employee Benefit Plan, including the Form 5500-SF, under Title I of ERISA.
This rule is effective January 15, 2008.
Elizabeth A. Goodman or Michael I. Baird, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, (202) 693-8523 (not a toll-free number).
Under Titles I and IV of the Employee Retirement Income Security Act of 1974, as amended (ERISA), and the Internal Revenue Code, as amended (Code), pension and other employee benefit plans generally are required to file annual returns/reports concerning, among other things, the financial condition and operations of the plan. Filing the Form 5500, “Annual Return/Report of Employee Benefit Plan,” together with any required attachments and schedules (Form 5500 Annual Return/Report) through the ERISA Filing Acceptance System (EFAST) generally satisfies these annual reporting requirements. The Form 5500 Annual Return/Report is the primary source of information concerning the operation, funding, assets, and investments of pension and other employee benefit plans. In addition to being an important disclosure document for plan participants and beneficiaries, the Form 5500 Annual Return/Report is a compliance and research tool for the Department of Labor (Department), Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (collectively, the Agencies) and a source of information and data for use by other federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies.
On July 21, 2006, the Agencies published a notice of proposed forms revisions (July 2006 Proposal) with changes to the Form 5500 Annual Return/Report for the 2008 reporting year. 71 FR 41615. The proposed form changes were intended to: facilitate the transition to a wholly electronic filing system for the 5500 Forms, including removal of IRS-only schedules; reduce and streamline annual reporting burdens, especially for small businesses, with the establishment of a new Short Form 5500; and update the annual reporting forms to reflect current issues and agency priorities, including enhanced reporting of plan fees and expenses. The Department also published a final rule requiring electronic filing of the Form 5500 Annual Return/Report for plan years beginning January 1, 2008 (Electronic Filing Rule). 71 FR 41359 (July 21, 2006). On December 11, 2006, the Agencies published a Notice of Supplemental Proposed Forms Revisions (Supplemental Notice). The Supplemental Notice was necessary to make changes to the Form 5500 Annual Return/Report required by the Pension Protection Act of 2006, Pub. L. 109-280, 120 Stat. 780 (2006), enacted on August 17, 2006 (PPA). 71 FR 71562.
The Department received 38 comment letters on the July 2006 Proposal from representatives of employers, plans, and plan service providers.
The preamble to this Notice outlines the final amendments being adopted to the Department's annual reporting regulations to reflect the changes being adopted to the Form 5500 Annual Return/Report, the Form 5500-SF “Short Form Annual Return/Report of Small Employee Benefits Plan” (Form 5500-SF or Short Form 5500), and the required attachments and schedules (collectively, the 5500 Forms) published simultaneously. A comprehensive discussion of the changes to the 5500 Forms and instructions is in a separate notice of adoption of final revisions to the annual report/return forms (Forms Revision Notice) that is being published in today's
The public comments generally did not directly address the proposed regulations themselves. Rather, the comments were addressed to the scope and specifics of the proposed forms and instruction changes. As described more fully in the Form Revision Notice, the public comments generally approved of the Agencies' streamlining of the annual reporting requirements through the adoption of the new Form 5500-SF and eliminating the IRS-only schedules from the Form 5500 Annual Return/Report. The comments also generally supported the objectives of updating the annual return/report filing requirements to reflect current issues and enhancing transparency and accountability, although some commenters expressed concerns about the benefits, feasibility, and cost of complying with some of the proposed changes, particularly the
The following sections of this preamble describe the final regulations being adopted by the Department to implement the form and instruction changes, including a postponement of the current effective date of the Electronic Filing Rule to make it applicable one year later—for plan and reporting years beginning on or after January 1, 2009.
The Department's annual reporting regulations, including 29 CFR 2520.103-1, generally are promulgated under the provisions of ERISA that authorize the creation of limited exemptions and simplified reporting and disclosure for welfare plans under ERISA section 104(a)(3), simplified annual reports under ERISA section 104(a)(2)(A) for pension plans that cover fewer than 100 participants, and alternative methods of compliance for all pension plans under ERISA section 110(a).
A new two-page Form 5500-SF is being adopted to streamline the reporting requirements for certain small pension and welfare plans (generally, plans with fewer than 100 participants) that meet certain conditions regarding their investments being held or issued by regulated financial institutions and that have a readily determinable fair market value as described in the final regulation at section 2520.103-1(c)(2)(ii)(C). The Form 5500-SF is also being adopted to provide a simplified report for plans with fewer than 25 participants as required by section 1103(b) of the PPA.
As more fully described in the Forms Revision Notice, the IRS has advised the Department that, although there are no mandatory electronic filing requirements for the 5500 Forms under the Code or the regulations issued thereunder, the electronic filing of the 5500 Forms, in accordance with the instructions and such other guidance as the Secretary of the Treasury may provide, will be treated as satisfying the annual filing and reporting requirements under Code sections 6058(a) and 6059(a). In addition, to ease the burdens on plans that are not subject to Title I of ERISA that file the Form 5500-EZ to satisfy the annual reporting and filing obligations imposed by the Code, the IRS has advised that it will permit certain Form 5500-EZ filers to satisfy the requirement to file the Form 5500-EZ with the IRS by filing the Short Form 5500 electronically through the EFAST processing system. Eligible Form 5500-EZ filers thus will have electronic filing and paper filing options. The electronic filing option will allow eligible Form 5500-EZ filers to complete and electronically file with EFAST selected information on the Short Form 5500. Those Form 5500-EZ filers will also be able to choose instead to file a Form 5500-EZ on paper with the IRS.
For plan years beginning after December 31, 2008, the 5500 Forms will no longer include any of the schedules that are required only for the IRS. This change was made to help effectuate the adoption of a wholly electronic filing requirement for the 5500 Forms. Accordingly, the Schedule E (ESOP Annual Information) and the Schedule SSA (Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits) will no longer be required to be filed as part of the 5500 Forms.
Schedule A must be attached to the Form 5500 Annual Return/Report for an ERISA-covered plan if any pension or welfare benefits under the plan are provided by, or if the plan holds any investment contracts with, an insurance company, insurance service or other similar organization. As with the proposal, the Schedule A data elements are largely unchanged from the current form. The Department adopted in the final Schedule A the proposed line item to give administrators a specific space on the Schedule A to report a failure by an insurance carrier to provide necessary information. Certain other technical changes and clarifications were made to the Schedule A and its instructions to improve Schedule A as a vehicle for disclosure of insurance fees and commissions.
Actuarial schedules are required for defined benefit pension plans subject to the minimum funding standards (see Code section 412 and Part 3 of Title I of ERISA). Schedules SB and MB will be required to be filed as a non-standard attachment for the 2008 plan year to meet the requirements of the PPA and, for the 2009 plan year and later, will be filed in the same manner as the other schedules under the electronic filing system.
The Schedule SB must be filed for single-employer defined benefit pension plans (including multiple-employer defined benefit pension plans).
Schedule MB must be filed for all multiemployer defined benefit plans and money purchase plans (including target benefit plans) that are currently amortizing waivers. Schedule MB is similar to the existing Schedule B. New items that have been added include: (1) Accrued liability determined using the unit credit cost method; (2) information about whether the plan is in endangered, seriously endangered, or critical status, and, if so, whether the plan is complying with the applicable requirements for its funding improvement or rehabilitation plan; and (3) information required by PPA section 503.
Schedule C generally must be attached to the Form 5500 Annual Return/Report filed by large plan filers to report persons who rendered services to the plan or in connection with transactions with the plan received, directly or indirectly, $5,000 or more in compensation during the plan year, and to report terminations of plan accountants or enrolled actuaries. Consistent with recommendations of the ERISA Advisory Council Working Groups and the Government Accountability Office (GAO), EBSA has concluded that more information should be disclosed on the Form 5500 Annual Return/Report regarding plan fees and expenses.
Schedule C reporting continues to be limited to large plan filers and the $5,000 reporting threshold has been retained. As in the proposal, the Schedule C consists of three parts. Part I of the Schedule C requires, subject to an alternative reporting option described below, the identification of each person who received, directly or indirectly, $5,000 or more in total compensation (i.e., money or anything else of value) in connection with services rendered to the plan or their position with the plan during the plan year. To provide more informative disclosures about the types of fees being paid to or received by plan service providers, the final Schedule C requires direct compensation paid by the plan to be reported on a separate line item from indirect compensation received from sources other than the plan or plan sponsor. In addition, in light of the fact that particular service providers may receive indirect compensation of various types from various sources, the final forms revisions expand the codes currently required on the Schedule C to better identify the types of services provided and to also require codes for types of fees received by the service provider.
As noted above, the final form revisions includes an alternative reporting option for service providers whose only compensation in relation to the plan is limited to “eligible indirect compensation” ( certain specified types of common investment related fees) provided that written disclosure(s) are furnished to the plan administrator, including in electronic form, that disclose the existence of the indirect compensation; the services provided for the indirect compensation or the purpose for payment of the indirect compensation; the amount (or estimate) of the compensation or a description of the formula used to calculate or determine the compensation; and the identity of the party or parties paying and receiving the compensation. Where a particular service provider received only “eligible indirect compensation” for which the required disclosures were provided, instead of providing information on the service provider, the Schedule C may report instead identifying information on the person or persons who provided the plan with the required written disclosures.
With respect to service providers required to be listed on the Schedule C who received such eligible types of indirect compensation for which the written disclosures were not provided or any other indirect compensation, the Schedule C requires more detailed information on the indirect compensation, including, in the case of certain key service providers, information regarding the payor if the service provider received during the plan year indirect compensation from a single source of $1,000 or more.
Although filers generally have the option of reporting a formula used to calculate indirect compensation received instead of an actual dollar amount or estimate, where a formula is used to describe indirect compensation received by one of the key service providers, the amount of indirect compensation is presumed to meet the reporting thresholds for purposes of the Schedule C reporting requirements.
As noted above, the final Schedule C includes a new Part II for plan administrators to identify each service provider that failed or refused to provide the information necessary to complete Part I of the Schedule C.
The third part of the Schedule C (Part III) is the current Part II of the Schedule C used for reporting termination information on plan accountants and enrolled actuaries.
As noted above, in light of the removal of the Schedule E (ESOP Annual Information), selected questions from the Schedule E are being incorporated into the Schedule R in order to continue to collect certain information regarding ESOPs as part of the Form 5500 Annual Return/Report.
As in the proposal, Schedule R has been modified to include additional questions required by section 503 of PPA and to collect information the PBGC needs to enable it to properly monitor the plans it insures. The new Part V collects PPA-required information on multiemployer defined benefit plans and additional information related to major contributing employers. Asset allocation questions for large defined benefit plans (1,000 or more participants) are included in Part VI. Such plans must provide a breakdown of plan assets by type of investment (stock, investment-grade debt, high-yield debt, real estate, and other). Information on the average duration of combined investment-grade and high-yield debt is also required. For this purpose, duration may be determined using any generally accepted methodology. Although the ESOP-related questions will not be on the Schedule R until the shift to the wholly electronic filing system effective for the 2009 plan year, the PPA-related questions and the asset allocation questions for the PBGC will be required as a non-standard attachment to the Schedule R for the 2008 plan year.
Various other technical and conforming changes are being adopted as part of the final changes to the 5500 Forms. Several of the more significant changes include: (1) Revision of the instructions for the Form 5500 Annual Return/Report and development of instructions for the Short Form 5500 to reflect the new structure of the returns/reports and electronic filing requirements; (2) addition of questions regarding compliance with the Department's blackout notice regulation in 29 CFR 2510.101-3; (3) addition of a compliance question on whether the plan failed to pay benefits when due under the plan; (4) expansion of the use of codes to report plan feature information on pension and welfare benefit plans; (5) elimination of the optional entry of the form preparer's name and employer identification number (EIN); (6) requiring small plans to report administrative expenses separately from other expenses on the Schedule I; (7) addition of a question on whether any minimum funding amount reported for a pension plan will be met by the funding deadline; and (8) adoption of a standard format for use in connection with an independent qualified public accountant (IQPA) rendering an opinion on the supplemental schedule information on Line 4a of Schedule H and I relating to delinquent participant contributions.
As noted in the Forms Revision Notice, section 1103(b) of the PPA requires a simplified report for plans with fewer than 25 participants to be available for 2007 plan year filings, i.e., filings for plan years beginning after December 31, 2006. To satisfy this requirement, the Agencies proposed giving plans covering fewer than 25 participants that would meet the conditions for being eligible to file the Short Form 5500—treating those conditions as if they applied for 2007 plan year filings—the option of filing an abbreviated version of the current Form 5500 Annual Return/Report for “small plan” filers. The abbreviated version, to a large extent, is an attempt to replicate, within the context of the existing Form 5500 Annual Return/Report structure, the information that would be required to be reported on the Short Form 5500 by allowing certain schedules to be excluded from the filing and requiring only certain line items to be completed on any required schedules. Although the Department received a comment suggesting that the Agencies satisfy the PPA requirement by instituting the Form 5500-SF for 2007 plan year filings, the Department concluded that approach would not be feasible or appropriate given the costs that would have been required to modify the current EFAST system so that it could process the Form 5500-SF. Rather, with the additional deferral in the implementation of the electronic filing requirement, the proposed simplified reporting option using the existing 5500 Forms for eligible plans with fewer than 25 participants will be available for both the 2007 and 2008 plan year filings.
Thus, for the 2007 and 2008 plan years, plans with fewer than 25 participants that meet the eligibility requirements for the Short Form 5500, treating those conditions as if they applied for 2007 and 2008 plan year filings, will be permitted to satisfy the annual reporting requirement by filing on the appropriate year form and schedules: (1) The Form 5500; (2) a Schedule A for any insurance contracts for which a Schedule A is required under current rules, completing only lines A, B, C, D and the insurance fee and commission information in Part I; (3) Schedule B for the 2007 plan year, and, for the 2008 plan year, Schedule MB for multiemployer defined pension benefit plans and certain money purchase plans, and Schedule SB for single employer defined benefit pension plans; (4) Schedule I; (5) Schedule R, completing only lines A, B, C, D, and Part II; and (6) Schedule SSA. Additional detailed guidance regarding this simplified reporting option is included in the instructions to the 2007 Form 5500 and the instructions to the 2008 Form 5500.
The Department understands that some eligible small plan filers may want to wait until the implementation of the Short Form 5500 for the 2009 plan year in order to avoid having to make changes to their annual reporting systems and procedures for 2007 and 2008 plan year filings and then adjust them again to start filing the Short Form for the 2009 plan year. The above simplified reporting alternative, accordingly, is available for plans that voluntarily take advantage of its availability. Plans with fewer than 25 participants can instead continue to file in accordance with the normal small plan rules for the 2007 and 2008 plan year.
The remaining PPA-required changes in the 5500 Forms are the new actuarial information schedules (Schedules SB and MB), most of the questions on Part V of the Schedule R—Additional Information for Multiemployer Defined Benefit Pension Plans, line 18 of the Schedule R (certain liabilities to participants and beneficiaries under two or more pension plans), and line 7 of the Form 5500 (number of employers obligated to contribute to multiemployer defined benefit plans).
The proposed revisions to the Form 5500 Annual Return/Report, which include both those set forth in the Agencies' July 2006 Proposal and those in the Supplemental Notice to address changes required by the PPA, were part of the Agencies' move to a fully electronic filing and processing system to replace the existing largely paper-based EFAST system. As part of that initiative, the Department published the Electronic Filing Rule, establishing an electronic filing requirement for the Form 5500 Annual Return/Report and the Form 5500-SF for plan years beginning on or after January 1, 2008. 71 FR 41359. In adopting the final Electronic Filing Rule, the Department responded to public comments seeking a postponement in the move to a wholly electronic filing system by agreeing to a deferral of the electronic filing mandate for one year from the 2007 plan year to the 2008 plan year. The Department agreed to the deferral in order to ensure an orderly and cost-effective migration to an electronic filing system by both the Department and annual report filers. Under that deferral, the vast majority of filers would have had until at least July 2009 to make any necessary adjustments to accommodate the electronic filing of their annual report because annual reports generally are not required to be filed until the end of the 7th month following the end of the plan year. Deferring the implementation date also provided service providers, software developers, and the Department additional time to work through electronic processing issues.
A significant percentage of the commenters on the form revision proposals, including several large industry groups representing plan sponsors and service providers, asked for a further postponement in the effective date of the forms changes, and as a consequence, the electronic filing requirement. The commenters emphasized that the PPA, including its new reporting and disclosure obligations, would require many plans and service providers to update existing information management and recordkeeping systems. They also pointed out the certain of the changes in the July 2006 proposal, especially the enhanced fee disclosure requirements in Schedule C and the increased reporting by Code section 403(b) plans (described below), would also require changes in the way plans collect and keep plan information. They argued that it would be particularly burdensome to require plans to transition to the new Form 5500 annual reporting obligations, including the move to the wholly electronic filing system, at the same time as they were working to comply with new PPA requirements. Also, complications with the procurement process and delays in completing the 2007 fiscal year appropriations impacted the timing of the EFAST2 contract award.
The Department continues to believe it is important for plans, service providers, and the Agencies to have an orderly and cost-effective migration to the EFAST2 electronic filing system. The Department, in conjunction with the other Agencies, has decided to defer for an additional one year the implementation of annual reporting forms changes not mandated by the PPA. In determining to publish this deferral in final form, the Department considered section 553 of the Administrative Procedure Act (APA), which requires that an agency provide for notice and comments prior to promulgating substantive rules does not apply when an agency, for good cause, unless it determines that such procedures are impractical, unnecessary or contrary to the public interest. 5 U.S.C. 553(b)(A) and (B). The Department has determined that in order to effectuate an orderly migration to the EFAST2 system, a deferral of the final rule for one additional year is warranted without further notice and comment.
First, the deferral is necessitated by delays in the contracting process beyond the Department's control, including the timing of the fiscal year 2007 budget appropriations, which prevented a contract award in time to build the new system to process 2008 plan year filings as contemplated in the original rulemaking. The Agencies now have, however, received the budgetary authorization necessary to complete the procurement process, have received bids, and are actively pursuing the process. As noted in the Department's
Second, when implemented, the elimination of paper filings in favor of electronic filing will result not only in significant improvements in the timeliness and accuracy of information available to workers, regulators and the public about employee benefit plans and result in operational improvements and cost savings, a direct goal of the President's E-government initiative, but it will also be used to fulfill information collection and disclosure requirements of the PPA, many of which apply for the 2008 plan year. Thus, additional delays would negatively impact orderly and cost-effective integration of the new PPA requirements and the new EFAST2 system, in light of the PPA's deadlines.
Third, publishing the deferral of the effective date on an interim basis with an opportunity for comment not only could potentially interfere with the contracting and budget process, but also could also harm plans by leading them to delay preparing for the move to the new system, when it is not practical to implement the new system either earlier or later.
Accordingly, under the final regulation, the electronic filing requirement and all of the forms changes, except for those mandated by the PPA discussed in this Notice and the Forms Revision Notice, will become effective for all annual report filings made under Part 1 of Title I of ERISA for plan years (reporting years for non-plan filings) beginning on or after January 1, 2009. To effectuate the deferral of the electronic filing requirement, this final rule includes an amendment to the Electronic Filing Rule published in the
Under this final rule, the vast majority of filers will now have until at least July 2010 to complete any necessary adjustments to accommodate the non-PPA required changes to the form and those required for electronic filing of their annual report because annual reports generally are not required to be filed until the end of the 7th month following the end of the plan year.
Section 2520.104-44 and the current Form 5500 Annual Return/Report instructions provide for limited reporting for pension plans that exclusively use a tax deferred annuity arrangement under Code section 403(b)(1), custodial accounts for regulated investment company stock under Code section 403(b)(7), or a combination of both. The exemption in section 2520.104-4(b)(3) is being eliminated, with the result that Code section 403(b) pension plans subject to Title I will now be treated the same under the regulations as any other Title I pension plan for purposes of the annual reporting requirements under Title I of ERISA.
In accordance with the Department's authority under section 104(a)(2)(A) and 104(a)(3) of ERISA, the Department has adopted, at 29 CFR 2520.104-41, simplified annual reporting requirements for pension and welfare benefit plans with fewer than 100 participants. In addition, the Department, at 29 CFR 2520.104-46, has prescribed for such small plans a waiver from the requirements of ERISA section 103(a)(3)(A) to engage an IQPA and to include the opinion of the IQPA as part of the plan's annual report. The waiver of the IQPA requirements for pension plans was conditioned, among other requirements, on enhanced disclosure in the Summary Annual Report (SAR) provided to participants and beneficiaries. In that regard, the Department prepared a model notice that plans could use to satisfy the enhanced SAR disclosure conditions. That model notice has been available at the EBSA's Web site at
Section 104(b)(3) of ERISA provides in part that, each year, administrators must furnish to participants and beneficiaries receiving benefits under a plan SAR materials that fairly summarize the plan's annual report. Section 2520.104b-10 sets forth the requirements for the SAR used to satisfy that requirement and prescribes formats for such reports. The regulatory amendments described in this Notice do not include any change to the SAR content requirements. In order to facilitate compliance with the SAR requirement for Short Form 5500 filers, however, the Department is updating its cross-reference guide to correspond the line items of the SAR to the relevant line items on the Form 5500 and Short Form 5500. The cross-reference guide, as before, would continue to be an appendix to section 2520.104b-10.
Section 104(a)(2)(A) of the Act authorizes the Secretary of Labor (Secretary) to prescribe by regulation simplified reporting for pension plans that cover fewer than 100 participants. Section 104(a)(3) authorizes the Secretary to exempt any welfare plan from all or part of the reporting and disclosure requirements of Title I of ERISA or to provide simplified reporting and disclosure if the Secretary finds that such requirements are inappropriate as applied to such plans. Section 110 permits the Secretary to prescribe for pension plans alternative methods of complying with any of the reporting and disclosure requirements if the Secretary finds that: (1) The use of the alternative method is consistent with the purposes of Title I of ERISA, provides adequate disclosure to plan participants and beneficiaries, and provides adequate reporting to the Secretary; (2) application of the statutory reporting and disclosure requirements would increase costs to the plan or impose unreasonable administrative burdens with respect to the operation of the plan; and (3) the application of the statutory reporting and disclosure requirements would be adverse to the interests of plan participants in the aggregate. For purposes of Title I of ERISA, the filing of a completed Form 5500 Annual Return/Report, including the filing by eligible plans of the Short Form 5500, in accordance with the instructions and related regulations, generally would constitute compliance with the simplified report, limited exemption and/or alternative method of compliance in 29 CFR 2520.103-1. The findings required under ERISA sections 104(a)(3) and 110 relating to the use of the revised 5500 Forms as alternative methods of compliance, simplified report, and/or limited exemption from the reporting and disclosure requirements of Part 1 of Subtitle B of Title I of ERISA are set forth below. In revising the 5500 Forms and making the amendments in this rulemaking, the Department has attempted to balance the needs of participants and beneficiaries and the Department to obtain information necessary to protect ERISA rights and interests with the needs of administrators to minimize costs attendant with the reporting of information to the federal government. The Department makes the following findings under sections 104(a)(3) and 110 of the Act with regard to the use of the revised 5500 Forms as a simplified report, alternative method of compliance, and/or limited exemption pursuant to 29 CFR 2520.103-1(b).
The use of the revised 5500 Forms is consistent with the purposes of Title I of ERISA and provides adequate disclosure to participants and beneficiaries and adequate reporting to the Secretary. While the information that would be required to be reported on or in connection with the revised 5500 Forms deviates, as before, in some respects, from that delineated in section 103 of the Act, the information needed for adequate disclosure and reporting under Title I is required to be included on or as part of the 5500 Forms.
The use of the 5500 Forms will relieve plans subject to the annual reporting requirements from increased costs and unreasonable administrative burdens by providing a standardized format that facilitates reporting, eliminates duplicative reporting requirements, and simplifies the content of the annual report in general. The 5500 Forms are intended to reduce further the administrative burdens and costs attributable to compliance with the annual reporting requirements.
Taking into account the above, the Department has determined that application of the statutory annual reporting and disclosure requirements without the availability of the revised 5500 Forms and the new Schedules SB and MB, would be adverse to the interests of participants in the aggregate. The revised 5500 Forms provide for the reporting and disclosure of basic financial and other plan information described in section 103 of ERISA in a uniform, efficient, and understandable manner, thereby facilitating the disclosure of such information to plan participants and beneficiaries.
Finally, the Department has determined under section 104(a)(3) of ERISA that a strict application of the statutory reporting requirements, without taking into account the revisions to the 5500 Forms would be inappropriate in the context of welfare plans for the same reasons discussed above (i.e., the streamlined forms reduce filing burdens without impairing enforcement, research, and policy needs, while at the same time providing adequate disclosure to participants and beneficiaries).
Under Executive Order 12866, the Department must determine whether a regulatory action is “significant” and therefore subject to the requirements of the Executive Order and review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule's (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of the Executive Order, it has been determined that this regulatory action is likely to have an annual effect on the economy of approximately $100 million. Therefore, this action is being treated as “economically significant” and subject to OMB review under section 3(f)(1) of Executive Order 12866. The Department accordingly has undertaken to assess the costs and benefits of this regulatory action in satisfaction of the applicable requirements of the Executive Order and provides herein a summary discussion of its assessment.
The amendments contained in this final rule conform the annual reporting and disclosure regulations promulgated under Title I of ERISA to final revisions to the 5500 Forms and instructions being issued simultaneously with this final rule. Inasmuch as the amendments contained in this final rule implement the forms revisions contained in the Forms Revision Notice being published simultaneously with this final rule, the Department's assessment pursuant to the Executive Order combines the regulatory amendments and the form revisions, treating these changes as a coordinated regulatory action. The Department's assessment, described below, takes into account the public comments received in response to the July 2006 Proposal and the Supplemental Notice, which are discussed in detail in the preamble of the Forms Revision Notice. That discussion, to which reference is made throughout this assessment, is hereby incorporated into this assessment by reference.
In accordance with OMB Circular A-4 (available at
As described in the preambles to the July 2006 Proposal and the Supplemental Notice, the Department is promulgating these amendments of the annual reporting regulations, the revision of the Form 5500 Annual Return/Report and its instructions, and the creation of the Short Form 5500 and its instructions, with the goal of reducing the overall burden of the statutory reporting requirements and the forms without sacrificing the quality of the information collected. This action also furthers three specific Departmental initiatives, described earlier in this preamble: (1) Creating a fully electronic filing system for processing the annual reports filed by employee benefit plans; (2) responding to reports from the GAO and the ERISA Advisory Council suggesting the need for substantive changes in the information gathered through the 5500 Forms, specifically with respect to fees and expenses of employee benefit plans; and (3) effectuating new reporting and disclosure requirements contained in the PPA.
The principal reforms contained in this final action include the adoption of the Short Form 5500, the revision of reporting requirements for Code section 403(b) plans, the creation of separate Schedules SB and MB to replace the Schedule B to report actuarial information, the elimination of IRS-only schedules, and the expansion of fee reporting in Schedule C. Because of the importance of these annual return/reports as a source of information for participants and beneficiaries, as an enforcement and research tool for the Department, and as a source of information and data for use by other federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies, the final regulatory action increases the amount and improves the quality of information that plans must disclose. Because of the voluntary nature of the employee benefit system, however, the Department, in shaping this regulatory action, has carefully balanced the need for increased and improved disclosure and plan administrators' and sponsors' interest in minimizing reporting costs.
Specifically, the burden associated with completion of the Form 5500 Annual Return/Report can be divided into two steps: reading the instructions and completing the individual line items. The current structure of the Form 5500 Annual Return/Report, even without the introduction of the Short Form 5500, in contrast to what filers would need to do to comply with the statute in the absence of the Form 5500 Annual Return/Report, allows filers to answer only relevant line items and quickly find the instructions relevant to the line items that they are required to complete. In the absence of the Form 5500, filers would be required to read and evaluate the statutory requirements and make judgments, without carefully targeted instructions, as to how to comply with the statutory reporting requirements. The Short Form 5500 requires not only less line item information than the Form 5500 itself, but eliminates the need to read instructions that are not associated with small plan filers. In addition, the elimination of IRS-only schedules also streamlines reporting under the new system.
The filing burden under these regulations thus is not only less than under the existing Form 5500 Annual Return/Report without revisions, but is less than that under the statute. Moreover, while requiring less information than does the statute, the information required, especially the new enhanced fee disclosure information, is carefully targeted to provide the Agencies, participants and beneficiaries, and others using the Form 5500 Annual Return/Report for research purposes, more informative data.
Retaining the existing efficient format of the annual return/report, with most of the information broken out into separate schedules, along with the introduction of the Short Form 5500 for small plans invested in assets with a readily determinable market value should reduce, relative to reporting in the absence of the Form 5500 Annual Return/Report, as revised, the time required to read the instructions because filers will now be more able to skip over the instructions for schedules that do not apply to them. It is, however, expected that filers for whom major changes apply (i.e. Short Form eligible filers, Schedule SB, MB, and C filers, and Code section 403(b) plan administrators) will require additional time in the initial year of filing to thoroughly read the instructions and to familiarize themselves with the revised Form 5500 Annual Return/Report. It is assumed, however, that most filers will not require this additional time in subsequent years. Entry of the information required by the Form 5500 Annual Return/Report, including the Short Form 5500, is made from financial and other records maintained by plans. Sound accounting and general business practices would generally dictate that all or most of these records be maintained even in the absence of a reporting requirement.
As a result, these final changes are anticipated to result in an aggregate reduction of reporting costs for filers as compared with the reporting costs before promulgation of these changes. As explained below, the Department's assessment results in a conclusion that the benefits to be derived from this regulatory action justify the costs that the action imposes on the public.
Executive Order 12866 directs federal agencies promulgating regulations to evaluate regulatory alternatives. The Department and the other Agencies have done so in the process of developing this final action.
As described more fully in the preamble to the Forms Revision Notice, the benefits to be gained through the ability to exercise oversight of small plans that invest in other types of assets justifies not diminishing the current burden for plans with fewer than 25 participants by having them continue to file the same information currently required on those assets. Permitting plans with employer securities or other assets that are difficult to value to file the limited information in the Short Form 5500 would be inconsistent with important policy objectives, which are underscored by the PPA's emphasis on increasing plan transparency, more accurately measuring plan assets, increasing participant control over the disposition of employer securities in defined contribution plans, and expanding the annual reporting requirements for multiemployer plans. Valuation of difficult-to-value assets, such as employer securities, may provide an opportunity for abuse or mismanagement that is not lessened by a plan's smaller size. The additional oversight possible through increased reporting responsibilities justifies the additional burden on such plans.
In any event, as described in the Forms Revision Notice, the Department estimates that 95 percent of single-employer non-403(b) plans will qualify to file the Short Form 5500, about 75 percent of which will be plans with fewer than 25 participants. Expanding Short Form filing eligibility to the remaining plans with fewer than 25 participants would only affect about 25,000 additional plans. Further, restricting Short Form 5500 eligibility based on the nature of a plan's asset investments will not deprive those non-eligible small plans of simplified annual filing methods. Those small plans will still be entitled to use the other simplified reporting available to them under the Form 5500 Annual Return/Report. Taking these other simplified options into account, we estimate that this option would only have saved filing plans approximately $4.8 million per year, starting in 2009.
The Department believes that the benefits to be derived from this final regulatory action, including the final amendments to the reporting regulations and the final adoption of forms revisions, justify their costs. The Department further believes that these revisions to the existing reporting requirements will both reduce aggregate reporting costs and enhance protection of ERISA rights. The Department conducted a thorough assessment of the costs and benefits of these changes as originally proposed. The major proposed changes from the July 2006 Proposal that are promulgated in this final rule essentially as proposed include: (1) Adoption of the Short Form 5500; (2) removal of the IRS-only schedules; and (3) adoption of fuller reporting requirements for Code section 403(b) plans.
Changes proposed in the Supplemental Notice that are being finalized herein without substantial change include: (1) adoption of separate Schedules MB and SB to replace Schedule B; and (2) adoption of the Short Form 5500 as one method of compliance to effectuate the PPA's directive to establish simplified reporting for plans with fewer than 25 participants.
The discussion below under
Because this final action makes substantial changes to the requirements previously in effect, filers will experience some one-time transition costs. The Department examined similar transition cost issues in connection with the last major revision to the Form 5500 Annual Return/Report, which was for plan years beginning in 1999. See 65 FR 5026 (Feb. 2, 2000). Based on information provided by plan service providers and Form 5500 Annual Return/Report software developers at that time, the Department concluded that such costs are generally loaded into the prices paid by plans for affected services and products, spread both across plans and across the expected life of the service and product changes. The Department's estimates provided here are therefore intended to reflect such spreading and loading of these transition costs. That is, the gradual defrayal of the transition costs is included in the annual cost estimates here.
The Department has analyzed the cost impact of the individual revisions. In doing so, the Department took account of the fact that various types of plans would be affected by more than one revision and that the sequence of multiple revisions would create an interaction in the cumulative burden on those plans. For example, both large and small Code section 403(b) plans are affected by the elimination of the limited reporting rules for section 403(b) plans, but small Code section 403(b) plans are also affected by the introduction of the Short Form 5500. The Department quantified the individual revisions as described below.
Table 3 contains a summary of the changes in costs, expressed both in dollars and in hours, allocated to the changes outlined above and the number of employee benefit plans affected.
The final action does not otherwise alter reporting costs. Plans currently exempt from annual reporting requirements (such as certain small unfunded or fully insured welfare plans and certain simplified employee pensions) will remain exempt. Also, except for Code section 403(b) plans, plans eligible for limited reporting
The sections above describe reporting changes that will become effective for the 2009 plan year filings. As discussed in the preamble of the Forms Revision Notice, the Agencies are making some changes to the reporting requirements for the 2007 and 2008 plan year filings as mandated by the PPA, along with adding a few new Schedule R items for the 2008 plan year filings.
The Department has calculated the burden for the 2008 plan year return/reports as described generally above with respect to the 2009 plan year filings, but appropriately modified for the difference in filing requirements. The Department estimates that the reduction in burden resulting from the simplified filing requirements for the 2007 and 2008 plan year filings will be about half the burden reduction that will result from the introduction of the 2009 Short Form 5500, for two reasons. First, for the 2009 plan year filings, eligible filers will fill out only the Short Form 5500 and Schedules SB or MB, as applicable. While the simplified filing requirements for plan years 2007 and 2008 generally will be similar data items as are on the Short Form 5500, the items to be completed are spread over several schedules, requiring filers to review all of the instructions to those schedules.
For the 2007 filing year no other form changes that impacted the burden analysis are being made. The Department estimates a burden reduction due to the simplified filings for plans with less than 25 participants of about $38.00 million (471,000 hours). Assuming an additional 30 minute transition burden for reviewing the simplified filing requirements, the estimate for the burden reduction is reduced to $25.62 million (317,000 hours).
Without taking any transition burdens into account, the Department has estimated that the revisions for the 2008 plan year will reduce the filing burden by about $41.54 million (511,000 hours). Assuming an additional 30 minute transition burden for reviewing the simplified filing requirements, 150 minutes for Schedule SB, 90 minutes for Schedule MB, and 60 minutes for Schedule R, the Department estimates that for the 2008 plan year the reporting burden will fall by $30.23 million from the $425.34 million that is estimated under prior rules and forms, to an aggregate burden of $395.11 million.
The cost and burden associated with the annual reporting requirement for any given plan will depend upon the specific information that must be provided, given the plan's characteristics, practices, operations, and other factors. For example, a small, single-employer defined contribution pension plan filing the new Short Form 5500 should incur far lower costs than a large, multiemployer defined benefit pension plan that holds multiple insurance contracts, engages in numerous reportable transactions, and pays fees in excess of $5,000 to a number of service providers. The Department separately considered the cost to different types of plans in arriving at its aggregate cost estimates. The Department's basis for these estimates is described below.
Actuarial Research Corporation (ARC) assembled a new model for estimating burden, based on the Form 5500 Burden Model that MPR most recently used for estimating burdens in October 2004. ARC assembled a simplified model, drawing on implied burdens associated with subsets of filer groups represented in the MPR model. The ARC model is described in broad terms below. Further details about the model are explained in the Technical Appendix which can be accessed at the Department's Web site at
To estimate aggregate burdens, types of plans with similar reporting requirements were grouped together in various groups and subgroups. As shown in Table 4, calculations of aggregate cost were prepared for each of
We also separately estimated the costs for the form and for each schedule. When items on a Form 5500 Annual Return/Report schedule are required by more than one Agency, the estimated burden associated with that schedule is allocated among the Agencies. This allocation is based on whether only a single item on a schedule is required by more than one agency or whether several or all of the items are required by more than one agency. The burden associated with reading the instructions for each item also is tallied and allocated accordingly.
The reporting burden for each type of plan is estimated in light of the circumstances that are known to apply or that are generally expected to apply to such plans, including plan size, funding method, usual investment structures, and the specific items and schedules such plans ordinarily complete. For example, the annual report for a large fully insured welfare plan typically would consist of only a few questions on the Form 5500, Schedule A (Insurance Information), and Schedule G, where applicable. The requirement that this plan provide very limited information on the Form 5500 Annual Return/Report is reflected in the estimates of reporting burden time. By contrast, a large defined benefit pension plan that is intended to be tax-qualified and that uses a trust fund and invests in insurance contracts would be required to submit an annual report completing almost all the line items of the Form 5500, plus Schedule A (Insurance Information), Schedule B (Actuarial Information), Schedule C (Service Provider Information), Schedule D (DFE/Participating Plan Information), possibly the Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), and Schedule R
Burden estimates were adjusted for the proposed revisions to each schedule, including items added or deleted in each schedule and items moved from one schedule to another. The burden for the new Short Form 5500 was derived summing the burden estimates for the comparable line items contained in the current Form 5500 Annual Return/Report.
The Department has not attributed a recordkeeping burden to the 5500 Forms in this analysis or in the Paperwork Reduction Act analysis because it believes that plan administrators' practice of keeping financial records necessary to complete the 5500 Forms arises from usual and customary management practices that would be used by any financial entity and does not result from ERISA or Code annual reporting and filing requirements.
The aggregate baseline burden, as calculated by the ARC model, is the sum of the burden per form and schedule as filed prior to this action multiplied by the estimated aggregate number of forms and schedules filed.
The model estimated that the proposed revisions will lead to aggregate costs of $327.98 million, which represents a cost reduction of $97.36 million from the baseline. While overall costs will be reduced, some large plans may experience cost increases, while small plans will likely experience cost reductions. The total burden estimates, as well as the burden broken out by type of plan, can be found in Table 4, above.
Most of the key assumptions of the model like the wage rates, hour burden estimates, and the number of filers are entering the model in a direct and transparent way. If, for example, the wage rate increases by 10%, the reduction in costs also increases by 10%.
In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review, 70 FR 2664 (January 14, 2005) (Peer Review Bulletin), establishing that important scientific information shall be peer reviewed before it is disseminated by the Federal government. The Peer Review Bulletin applies to original data and formal analytic models used by agencies in regulatory impact analyses. The Department determined that the data and methods employed in its regulatory analysis constituted “influential scientific information” as defined in the Peer Review Bulletin. Accordingly, a peer review was conducted under Section II of the Bulletin. The peer review report concluded that the methodology and data generally were sound and produced plausible estimates, which supported the Department's conclusion that the proposed form changes should reduce the aggregate burden relative to the previous forms. The analysis here for the final regulations and forms revisions uses the same methodology as did the proposal, and the Department, accordingly, is relying on the Peer Review prepared for the Proposal. The Peer Review Report can be accessed at the Department's Web site at
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) imposes certain requirements with respect to Federal rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act (5 U.S.C. 551 et seq.) and that are likely to have a significant economic impact on a substantial number of small entities. In accordance with section 603 of the RFA, the EBSA presented an initial regulatory flexibility analysis at the time of the publication of the notice of proposed rulemaking describing the impact of the rule on small entities and seeking public comment on such impact. After reviewing and considering the public comments submitted in response to the proposal and the changes that are incorporated into the final regulation, the Department has prepared a final regulatory flexibility analysis, which is presented in this document as part of the broader economic analysis. The objectives of these amended regulations and the associated forms revisions are to streamline reporting and reduce aggregate reporting costs, particularly for small plans, while preserving and enhancing protection of ERISA rights. These purposes are detailed above in this preamble and in the Forms Revision Notice published simultaneously with these regulations.
For purposes of analysis under the RFA, EBSA continues to consider a small entity to be an employee benefit plan with fewer than 100 participants. The basis of this definition is found in section 104(a)(2) of ERISA, which permits the Secretary to prescribe simplified annual reports for pension plans that cover fewer than 100 participants. Under ERISA section 104(a)(3), the Secretary may also provide for exemptions or for simplified reporting and disclosure for welfare benefit plans. Pursuant to the authority of ERISA section 104(a), the Department has previously issued at 29 CFR 2520.104-20, 2520.104-21, 2520.104-41, 2520.104-46, and 2520.104b-10 certain simplified reporting provisions and limited exemptions from reporting
Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, EBSA believes that assessing the impact of these requirements on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (SBA) (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631 et seq.). Prior to the proposal, EBSA consulted with the SBA Office of Advocacy concerning use of this participant count standard for RFA purposes, see 13 CFR 121.902(b)(4), and EBSA received no comments suggesting use of a different size standard. The following subsections address specific requirements of the RFA.
While expanding reporting obligations for Code section 403(b) plans, the Agencies have attempted to minimize the burden on small Code section 403(b) plans by not excluding small Code section 403(b) plans from any simplified reporting option for which such plans are otherwise eligible. In other words, small Code section 403(b) plans will be eligible to avail themselves of simplified reporting options to the same extent as any other similarly situated plan.
As discussed elsewhere in this preamble, the Agencies are rejecting commenters' suggestion to subject small plans to Schedule C disclosure requirements that do not currently apply to small plans. The Agencies conclude that the comment record in support of the suggestion was insufficient to outweigh the added burden that would be placed on small plans.
The Agencies also are making clarifying changes to instructions for the Short Form 5500, in response to comments, to provide a clearer description of the plans exempt from filing, including small welfare plans, but is refraining from adding similar clarifications to the instructions for individual schedules in order to avoid adding unnecessary review burden for filers.
Among small plans, perhaps the most affected by this action will be the approximately 9,000 small Code section 403(b) plans. As explained above, such plans are currently subject only to limited annual reporting requirements. This action will increase these plans' reporting costs, although the cost to these plans will be comparable to that currently borne by similar small plans that are not operated under Code section 403(b). As discussed above, the Department believes the added cost to Code section 403(b) plans is justified by the need to strengthen protections under ERISA for those plans' affected participants and beneficiaries. The numbers and types of small plans affected by these regulations and the magnitude and nature of the regulations' effects are further elaborated below.
Satisfaction of annual reporting requirements under these regulations is not expected to require any additional recordkeeping that would not otherwise be part of normal business practices.
Table 5 below compares the Department's estimates of small plans' reporting costs under the requirements in effect prior to this action with those under the new requirements for various classes of affected plans. As shown, costs under the new requirements will be lower on aggregate and for most classes of plans. These estimates take account of the quantity and mix of clerical and professional skills required to satisfy the reporting requirements for various classes of plans.
The Department notes that the estimated reporting costs amount to about $240 on average for each of the 629,000 small plans subject to annual reporting requirements, or just $27 if averaged across all of the approximately 5.7 million small plans covered by Title I of ERISA. This compares with roughly $1,200 on average for each of the 152,000 affected large filers.
The Department is unaware of any relevant federal rules for small plans that duplicate, overlap, or conflict with these regulations.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)), the July 2006 Proposal solicited comments on the information collections included in the proposed amendments to the Department's regulations relating to annual reporting and disclosure requirements under Part 1 of Subtitle B of Title I of ERISA and in the proposed revision of the Form 5500 Annual Return/Report pursuant to Part 1 of Subtitle B of Title I and Title IV of ERISA and the Internal Revenue Code. The Department also submitted an information collection request (ICR) to OMB in accordance with 44 U.S.C. 3507(d), contemporaneously with publication of the July 2006 Proposal, for OMB's review of the Department's information collections previously approved under OMB Control No. 1210-0110.
In connection with publication of this final rule, the Department has submitted an information collection request (ICR) to OMB for its review of the changes in burden estimates for the information collections currently approved under OMB Control No. 1210-0110 that are the result of this final regulatory action and the Forms Revision Notice published simultaneously with this rule. In order to avoid unnecessary duplication of public comments, the PRA information published in the associated Forms Revision Notice is incorporated herein by this reference in its entirety. The public is advised that 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 Department intends to publish a notice announcing OMB's decision upon review of the Department's ICR.
A copy of the ICR can be obtained by contacting the Office of Policy and Research, Employee Benefits Security Administration, U.S. Department of Labor, Room N-5718, 200 Constitution Avenue, NW., Washington, DC 20210, Telephone: (202) 693-8410; Fax: (202) 219-4745 or at
The final rules being issued here are subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
For purposes of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as well as Executive Order 12875, these rules do not include any Federal mandate that may result in expenditures by state, local, or tribal governments in the aggregate of more than $100 million, adjusted for inflation, or increased expenditures by the private sector of more than $100 million, adjusted for inflation.
Executive Order 13132 (August 4, 1999) outlines fundamental principles of federalism and requires adherence to specific criteria by federal agencies in the process of their formulation and implementation of policies that have substantial direct effects on the States, the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. These rules do not have federalism implications because they would have no substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements implemented in these rules do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the national government and the States.
Accountants, Disclosure requirements, Employee benefit plans, Employee Retirement Income Security Act, Pension plans, Pension and welfare plans, Reporting and recordkeeping requirements, and Welfare benefit plans.
29 U.S.C. 1021-1025, 1027, 1029-31, 1059, 1134, and 1135; and Secretary of Labor's Order 1-2003, 68 FR 5374 (Feb. 3, 2003). Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.102-3, 2520.104b-1, and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1 and 2520.107 also issued under 26 U.S.C. 401 note, 111 Stat. 788.
(a) * * *
(2) Under the authority of subsections 104(a)(2), 104(a)(3) and 110 of the Act, and section 1103(b) of the Pension Protection Act of 2006, a simplified report, limited exemption or alternative method of compliance is prescribed for employee welfare and pension benefit plans, as applicable. A plan filing a simplified report or electing the limited exemption or alternative method of compliance shall file an annual report containing the information prescribed in paragraph (b) or paragraph (c) of this section, as applicable, and shall furnish a summary annual report as prescribed in § 2520.104b-10.
(b) * * *
(1) A Form 5500 “Annual Return/Report of Employee Benefit Plan” and any statements or schedules required to be attached to the form, completed in accordance with the instructions for the form, including Schedule A (Insurance Information), Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information), Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information), Schedule C (Service Provider Information), Schedule D (DFE/Participating Plan Information), Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), Schedule R (Retirement Plan Information), and other financial schedules described in Sec. 2520.103-10. See the instructions for this form.
(c)
(2)(i) The annual report of an employee benefit plan that covers fewer than 100 participants at the beginning of the plan year and that meets the conditions in paragraph (c)(2)(ii) of this section with respect to a plan year may, as an alternative to the requirements of paragraph (c)(1) of this section, meet its
(ii) A plan meets the conditions in this paragraph (c)(2)(ii) with respect to the year if the plan:
(A) Does not hold any employer securities at any time during the year;
(B) Satisfies the audit waiver conditions in §§ 2520.104-46(b)(1)(i)(A)(1), (b)(1)(i)(B) and (b)(1)(i)(C);
(C) Had at all times during the plan year 100 percent of the plan's assets held for investment purposes invested in assets that have a readily determinable fair market value. For purposes of this section, the following shall be treated as assets that have a readily determinable fair market value: Shares issued by an investment company registered under the Investment Company Act of 1940; investment and annuity contracts issued by any insurance company, qualified to do business under the laws of a State, that provides valuation information at least annually to the plan administrator; bank investment contracts issued by a bank or similar financial institution, as defined in § 2550.408b-4(c) of this chapter, that provides valuation information at least annually to the plan administrator; securities (except employer securities) traded on a public exchange; government securities issued by the United States or by a State; cash or cash equivalents held by a bank or similar financial institution, as defined in § 2550.408b-4(c) of this chapter, by an insurance company, qualified to do business under the law of a State, by an organization registered as a broker-dealer under the Securities Exchange Act of 1934, or by any other organization authorized to act as a trustee for individual retirement accounts under section 408 of the Internal Revenue Code; and any loan meeting the requirements of section 408(b)(1) of the Act and the regulations issued thereunder; and
(D) Is not a multiemployer plan.
(b) * * *
(1) * * *
(iii) Partly in the manner specified in paragraph (b)(1)(i) of this section and partly in the manner specified in paragraph (b)(1)(ii) of this section; and
(2) A pension benefit plan the benefits of which are provided exclusively through allocated insurance contracts or policies which are issued by, and pursuant to the specific terms of such contracts or policies benefit payments are fully guaranteed by an insurance company or similar organization which is qualified to do business in any State, and the premiums for which are paid directly by the employer or employee organization from its general assets or partly from its general assets and partly from contributions by its employees or members:
(e)
The U.S. Department of Labor's regulations require that an independent qualified public accountant audit the plan's financial statements unless certain conditions are met for the audit requirement to be waived. This plan met the audit waiver conditions for the plan year beginning (insert year) and therefore has not had an audit performed. Instead, the following information is provided to assist you in verifying that the assets reported on the (Form 5500 or Form 5500-SF—select as applicable) were actually held by the plan.
At the end of the (insert year) plan year, the plan had (include separate entries for each regulated financial institution holding or issuing qualifying plan assets):
[Set forth amounts and names of institutions as applicable where indicated], [(insert $ amount) in assets held by (insert name of bank)], [(insert $ amount) in securities held by (insert name of registered broker-dealer)], [(insert $ amount) in shares issued by (insert name of registered investment company)], [(insert $ amount) in investment or annuity contract issued by (insert name of insurance company)].
The plan receives year-end statements from these regulated financial institutions that confirm the above information. [Insert as applicable—The remainder of the plan's assets were (1) qualifying employer securities, (2) loans to participants, (3) held in individual participant accounts with investments directed by participants and beneficiaries and with account statements from regulated financial institutions furnished to the participant or beneficiary at least annually, or (4) other assets covered by a fidelity bond at least equal to the value of the assets and issued by an approved surety company.]
Plan participants and beneficiaries have a right, on request and free of charge, to get copies of the financial institution year-end statements and evidence of the fidelity bond. If you want to examine or get copies of the financial institution year-end statements or evidence of the fidelity bond, please contact [insert mailing address and any other available way to request copies such as e-mail and phone number].
If you are unable to obtain or examine copies of the regulated financial institution statements or evidence of the fidelity bond, you may contact the regional office of the U.S. Department of Labor's Employee Benefits Security Administration (EBSA) for assistance by calling toll-free 1.866.444.EBSA (3272). A listing of EBSA regional offices can be found at
General information regarding the audit waiver conditions applicable to the plan can be found on the U.S. Department of Labor Web site at
(a) Any annual report (including any accompanying statements or schedules) filed with the Secretary under part 1 of title I of the Act for any plan year (reporting year, in the case of common or collective trusts, pooled separate accounts, and similar non-plan entities) beginning on or after January 1, 2009, shall be filed electronically in accordance with the instructions applicable to such report, and such other guidance as the Secretary may provide.
Employee Benefits Security Administration, Labor, Internal Revenue Service, Treasury, Pension Benefit Guaranty Corporation.
Notice of adoption of revisions to annual return/report forms.
This document contains revisions to the Form 5500 Annual Return/Report forms, including the Form 5500 Annual Return/Report of Employee Benefit Plan and a new Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan (Short Form 5500 or Form 5500-SF), filed for employee pension and welfare benefit plans under the Employee Retirement Income Security Act of 1974, as amended (ERISA), and the Internal Revenue Code of 1986, as amended (Code). The Form 5500 Annual Return/Report forms, including the schedules and attachments, are an important source of financial, funding, and other information about employee benefit plans for the Department of Labor, the Pension Benefit Guaranty Corporation, and the Internal Revenue Service (the Agencies), as well as for plan sponsors, participants and beneficiaries, and the general public. The revisions to the Form 5500 Annual Return/Report forms contained in this document, including the new Short Form 5500, are intended to streamline the annual reporting process, reduce annual reporting burdens, especially for small businesses, update the annual reporting forms to reflect current issues and agency priorities, incorporate new reporting requirements contained in the Pension Protection Act of 2006, and facilitate electronic filing. Some of the forms revisions will apply on a transitional basis for the 2008 reporting year before all of the forms revisions are fully implemented for the 2009 reporting year as part of the switch under the ERISA Filing Acceptance System (EFAST) to a wholly electronic filing system (EFAST2). The forms revisions affect employee pension and welfare benefit plans, plan sponsors, administrators, and service providers to plans subject to annual reporting requirements under ERISA and the Code.
Effective January 15, 2008.
Elizabeth A. Goodman or Michael I. Baird, Employee Benefits Security Administration (EBSA), U.S. Department of Labor, (202) 693-8523, for questions relating to the Form 5500, and its Schedules A, C, D, G, H, and I, and lines 1 through 11 of the Form 5500-SF (Short Form 5500), as well as the general reporting requirements under Title I of ERISA; Lisa Mojiri-Azad, Internal Revenue Service (IRS), Office of Chief Counsel, (202) 622-6060, or Ann Junkins, IRS, (202) 283-0722, for questions relating to Schedules SB, MB, and R of the Form 5500, lines 12 and 13 of the Short Form 5500, and the filing of Short Form 5500 instead of the Form 5500-EZ for plans that are not subject to Title I of ERISA, as well as questions relating to the general reporting requirements under the Internal Revenue Code; and Michael Packard, Pension Benefit Guaranty Corporation (PBGC), (202) 326-4080, ext. 3429, for questions relating to Schedules SB and MB of the Form 5500, and lines 13 through 19 of Schedule R, as well as questions relating to the general reporting requirements under Title IV of ERISA. For further information on an item not mentioned above, contact Mr. Baird. The telephone numbers referenced above are not toll-free numbers.
Sections 101 and 104 of Title I and section 4065 of Title IV of the Employee Retirement Income Security Act of 1974, as amended (ERISA), sections 6058(a) and 6059(a) of the Internal Revenue Code of 1986, as amended (Code), and the regulations issued under those sections, impose certain annual reporting and filing obligations on pension and welfare benefit plans, as well as on certain other entities.
The Form 5500 Annual Return/Report is the principal source of information and data available to the Department of Labor (Department or Labor), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) (collectively, Agencies) concerning the operations, funding, and investments of about 800,000 pension and welfare benefit plans. These plans cover an estimated 150 million participants and hold an estimated $4.3 trillion in assets. Accordingly, the Form 5500 Annual Return/Report constitutes an integral part of each Agency's enforcement, research, and policy formulation programs, and is a source of information and data for use by other federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies. The Form 5500 Annual Return/Report also serves as a primary means by which plan operations can be monitored by participants and beneficiaries and by the general public.
On July 21, 2006, the Department published a final rule requiring electronic filing of the Form 5500 Annual Return/Report for reporting years beginning on or after January 1, 2008 (Electronic Filing Rule). 71 FR 41359. Simultaneously with the publication of the Electronic Filing Rule, the Agencies published a notice of proposed forms revisions (July 2006 Proposal) proposing changes to the Form 5500 Annual Return/Report for the 2008 reporting year. 71 FR 41615. On December 11, 2006, the Agencies published a Notice of Supplemental Proposed Forms Revisions (Supplemental Notice). 71 FR 71562. The Supplemental Notice was necessary to make changes to the Form 5500 Annual Return/Report required by the Pension Protection Act of 2006, Pub. L. 109-280, 120 Stat. 780 (2006), enacted on August 17, 2006 (PPA).
The Agencies received 38 comment letters on the July 2006 Proposal,
After careful consideration of the issues raised by the written public comments, the Agencies decided to adopt the forms largely as proposed, but, in an attempt to strike a balance between ensuring adequate reporting and disclosure to participants, beneficiaries, and the Agencies, on the one hand, and the costs and administrative burdens attendant to the administration and maintenance of employee benefit plans on the other, the Agencies revised some of the annual reporting requirements in response to public comments. The Agencies now are publishing in this Notice the final forms revisions for the Form 5500 Annual Return/Report (including the Short Form 5500), generally effective for the 2009 reporting year (with certain transition changes effective for the 2008 reporting year). Set forth below is a general summary of the public comments received in response to the proposals, changes made in response to those comments, and an overview of the final forms revisions being adopted in this Notice.
The Agencies are printing in this Notice information copies of the 2009 Form 5500, 2009 Form 5500-SF, and 2009 Schedules A, SB, MB, C, D, G, H, I, and R. This Notice also includes information copies of the related instructions, except for the instructions to the Schedule SB and MB and certain new questions on the Schedule R, which the Agencies will publish after the Treasury/IRS develop the underlying substantive guidance under the PPA, and certain instructions relating to electronic filing procedures under the EFAST2 system. Information copies of the forms and the instruction package will also be posted on the Department's Web page at
A significant number of the commenters, including several large industry groups representing plan sponsors and service providers, asked for a delay in the effective date of the forms changes. A number of the commenters asked for additional time to comment due to work being done to implement new statutory requirements enacted as part of the PPA. Some commenters also suggested that the comment period should be extended to allow more time to address the Schedule C (Service Provider Information) changes due to the significance of the changes in plan fee and expense reporting, the attendant compliance costs, and a desire to evaluate the Schedule C changes in conjunction with proposed regulations the Department has announced it will be publishing under ERISA section 408(b)(2).
The proposed revisions to the Form 5500 Annual Return/Report, which include both those set forth in the Agencies' July 2006 Proposal and those in the Supplemental Notice to address changes required by the PPA, are part of the switch under the ERISA Filing Acceptance System (EFAST) to a wholly electronic filing and processing system (EFAST2) that would replace the existing largely paper-based filing system. As part of that e-filing initiative, and as noted above, the Department published the Electronic Filing Rule, establishing an electronic filing requirement for annual reports filed for plan years beginning on or after January 1, 2008. In adopting the final Electronic Filing Rule, the Department responded to public comments seeking a delay in the wholly electronic filing system by agreeing to a one year deferral of the electronic filing mandate from the 2007 plan year to the 2008 plan year. The Department agreed to the deferral in order to facilitate an orderly and cost-effective migration to an electronic filing system by both the Department and the regulated community. Under the final Electronic Filing Rule published in July 2006, the vast majority of filers would have had until at least July 2009 to make any necessary adjustments to accommodate the electronic filing of their annual report because annual reports generally are not required to be filed until the end of the 7th month following the end of the plan year. The timing also provided service providers, software developers, and the Department additional time to work through electronic filing and processing issues.
In evaluating the public comments seeking a further deferral of the implementation of the revised forms and, as a consequence, the electronic filing requirement, the Agencies evaluated the benefits of giving the regulated community more time to transition to the new EFAST2 electronic filing system, keeping in mind the effective dates mandated by the PPA for certain of the annual reporting changes. The Agencies continue to believe it is important for plans, service providers, and the Agencies to have an orderly and cost-effective migration to the EFAST2 electronic filing system. In light of the substantial number of comments expressing concern about needing more time to adjust recordkeeping and other annual reporting systems, the Agencies have decided to defer for an additional
Under the final regulations, the electronic filing requirement and all of the forms changes, except for those mandated by the PPA and the PBGC's new Schedule R items discussed below, will become effective for all annual report filings made under Part 1 of Subtitle B of Title I of ERISA for plan years (or reporting years for non-plan filings) beginning on or after January 1, 2009.
To effectuate the postponement of the electronic filing requirement, the Department, in the final rule being published contemporaneously with this Notice amending its annual reporting regulations, is including an amendment to the Electronic Filing Rule. Specifically, that final rule amends the Department's regulation at 29 CFR 2520.104a-2 to provide that the electronic filing requirement is applicable for plan years beginning on or after January 1, 2009. The vast majority of filers will now have until at least July 2010 to make any necessary adjustments to accommodate the non-PPA required changes (other than the PBGC Schedule R changes) to the form and those required for electronic filing of their annual report because, as noted above, annual reports generally are not required to be filed until the end of the 7th month following the end of the plan year.
Short plan year filings for 2009 plan years and filings for DFEs for 2009 reporting years will be subject to a special transition rule. The instructions to the Form 5500 Annual Return/Report advise filers that the due date for their Form 5500 for a plan year of less than 12 months (short plan year) is the last day of the 7th month after the short plan year ends. For purposes of determining the filing deadline, the instructions state that a short plan year ends on the date of the change in accounting period or upon the complete distribution of assets of the plan in the case of terminated or merged plans. For DFE filings, the instructions provide that DFEs (other than GIAs) must file 2009 return/reports no later than nine and one half months after the end of the DFE year that ended in 2009, and the 2009 Form 5500 must report information for the DFE year (not to exceed 12 months in length). The Agencies historically have permitted short plan year filers and DFEs to use the prior year's forms if the current year forms are not available by the plan's or DFE's filing due date. The Agencies expect that, in some cases, filings for 2009 short plan years and DFE filings for 2009 reporting years (e.g., if the DFE year differs from the 2009 calendar year) may be due during 2009 and before the January 1, 2010, date on which the new EFAST2 wholly electronic filing system is expected to become operational for return/report filing purposes. Plans filing for 2009 short plan years and DFEs filing for 2009 reporting years will have the option of using the 2008 Form 5500 Annual Return/Report forms and filing for 2009 under the current EFAST filing system if they file before the date the new EFAST2 electronic filing system becomes operational. Alternatively, plans whose due date for their 2009 short plan year filing and DFEs whose due date for their 2009 reporting year filing falls before the new EFAST2 system becomes operational but who want to file electronically under the new EFAST2 system will be granted an automatic extension until after the EFAST2 system becomes operational in which to file. The Agencies intend to describe the terms and conditions for the automatic extension in the instructions for the 2008 Form 5500 Return/Report.
The PPA-required changes in the Form 5500 Annual Return/Report (other than the simplified reporting requirement) are the new actuarial information schedules (Schedules SB and MB), lines 13a and 13b of the Schedule R (identifying information on significant contributors to multiemployer defined benefit plans), lines 14-17 of the Schedule R (additional information related to multiemployer defined benefit pension plans), line 18 of the Schedule R (certain liabilities to participants and beneficiaries under two or more pension plans), and, for multiemployer defined benefit plans only, the new line 7 of the Form 5500 (number of employers with an obligation to contribute to the multiemployer plan).
The Agencies concluded that it would not be cost-effective or practical to create computer scannable versions of the Form 5500 and these schedules to be compatible with the outdated EFAST computer scannable form technology because these forms would have a limited one year useful life under the EFAST system during the transition period before implementation of the EFAST2 electronic filing system. Effective for the 2008 transition year, plans required to file actuarial information must check the box on the Form 5500 to indicate that they are filing a Schedule B, but instead of filing the current Schedule B, they will file Schedule SB or MB (whichever is applicable). The Schedule B will no longer be a valid schedule for 2008 plan year filings. Plan year 2008 Form 5500 Annual Return/Reports filed by pension plans subject to the minimum funding rules must include a Schedule SB or MB and not a Schedule B for 2008 plan years. Filings that include a Schedule B instead of a Schedule SB or MB will be rejected. As to the other PPA-required items (lines 13a, 13b, and 14-18 of Schedule R and line 7 of Form 5500), for
The Agencies also changed the 2007 Form 5500 Annual Return/Report instructions for short plan year filings (filings for years of less than 12 months) to accommodate these PPA changes. Specifically, the instructions to the Form 5500 Annual Return/Report historically have advised filers that the due date for their Form 5500 for a plan year of less than 12 months (short plan year) is the last day of the 7th month after the short plan year ends. For purposes of determining the filing deadline, the instructions state that a short plan year ends on the date of the change in accounting period or upon the complete distribution of assets of the plan in the case of terminated or merged plans. The Agencies have permitted short plan year filers to use the prior year's forms if the current year forms for the short plan year are not available by the plan's filing due date. The Agencies expect that, in some cases, filings for 2008 short plan years may be due during 2008 and before the final regulations and instructions for the Schedule SB or MB are available. Since the Schedule B will not be a valid schedule for plan year 2008 filings, filers will not have the option of using the 2007 Schedule B with a 2008 short plan year filing, but will be required to wait until the 2008 Forms are available for filing. The Agencies have indicated in the instructions for the 2007 Form 5500 Annual Return/Report that an automatic extension that will be available for 2008 short plan year filings required to include a Schedule SB or Schedule MB and/or a supplemental attachment to Schedule R.
As noted in the Supplemental Notice, section 1103(b) of the PPA requires a simplified report for plans with fewer than 25 participants at the beginning of the plan year to be available for 2007 plan year filings, i.e., filings for plan years beginning after December 31, 2006. The Supplemental Notice proposed to satisfy the simplified report requirement for 2008 plan years, i.e., those beginning after December 31, 2007, by implementing the Short Form for 2008 plan year reports under the new EFAST2 system. The Supplemental Notice explained the Agencies' intention for the interim 2007 reporting year to give plans covering fewer than 25 participants that met the conditions for being eligible to file the Short Form 5500 the option of filing an abbreviated version of the current Form 5500 Annual Return/Report for small plan filers. The Supplemental Notice explained that the abbreviated version would largely replicate, within the context of the existing Form 5500 Annual Return/Report structure, the information that would be required to be reported on the proposed Short Form 5500 by allowing certain schedules to be excluded from the filing and requiring only certain line items to be completed on some of the required schedules. With the additional deferral of the electronic filing requirement, this simplified reporting option for plans with fewer than 25 participants will be available for both the 2007 and 2008 plan year filings.
For the 2007 and 2008 plan years, plans with fewer than 25 participants at the beginning of the plan year that meet the eligibility requirements for the Short Form 5500, treating those conditions as if they applied for 2007 and 2008 plan year filings, may file the following as their annual return/report: (1) The entire Form 5500; (2) a Schedule A for any insurance contract for which a Schedule A is required under current rules, completing lines A, B, C, D and the insurance fee and commission information in Part I; (3) if the reporting of actuarial information is required, the entire Schedule B for the 2007 plan year, and the entire Schedule SB or MB (whichever is applicable) for the 2008 plan year; (4) the entire Schedule I; (5) Schedule R identifying information and Part II; and (6) the entire Schedule SSA. The instructions to the 2007 Form 5500 Annual Return/Report explain and 2008 Form 5500 Annual Return/Report will explain, respectively, this simplified reporting option.
Some eligible small plan filers may want to wait until the implementation of the Short Form 5500 for the 2009 plan year in order to avoid having to make changes to their annual reporting systems and procedures for 2007 and 2008 plan year filings and then having to adjust them again to start filing the Short Form 5500 electronically for the 2009 plan year. The above simplified reporting alternative, accordingly, is available for plans that voluntarily choose to take advantage of the option. Plans with fewer than 25 participants may continue to file in accordance with the otherwise applicable small plan filing rules for the 2007 and 2008 plan years. Small plans with 25 or more participants that meet the eligibility requirements must wait until the 2009 plan year to take advantage of the Short Form's simplified reporting.
The Short Form 5500 was proposed as a new two-page form for small plans (generally, plans with fewer than 100 participants) with secure and easy to value investment portfolios. As set forth in greater detail in the July 2006 Proposal, a plan would be eligible to file the Short Form if the plan: (1) Covers fewer than 100 participants or would be eligible to file as a small plan under the rule in 29 CFR 2520.103-1(d); (2) is eligible for the small plan audit waiver under 29 CFR 2520.104-46 (but not by virtue of enhanced bonding); (3) holds no employer securities; (4) has 100% of its assets in investments that have a readily determinable fair market value; and (5) is not a multiemployer plan.
Commenters on the July 2006 Proposal generally supported the proposed Short Form 5500 as a way to simplify the annual reporting requirements and reduce annual reporting burdens for small plans. The Agencies, accordingly, have decided to adopt the Short Form 5500 largely as proposed with only minor technical revisions to the form and the accompanying instructions.
Two commenters suggested that the Agencies relax the conditions for plans to be eligible to file the Short Form 5500. The commenters noted the requirement in the PPA (enacted after the July 2006 Proposal was published) that Labor and the Department of the Treasury (Treasury) jointly develop a simplified report for plans that cover fewer than 25 employees. One of the commenters suggested that Labor and Treasury use the Short Form 5500 to meet this requirement by eliminating any other eligibility conditions for plans covering fewer than 25 participants. That commenter also suggested that the Short Form 5500 eligibility requirement—that the plan hold 100% of its assets in secure, easy to value investments—be modified so that it tracked the 95% “qualifying plan asset” threshold that currently applies under the Department's regulation at 29 CFR 2520.104-46 for small pension plans to be eligible for the waiver of the general Title I requirement for employee benefit plans to be audited annually by an independent qualified public accountant (IQPA). Two other
The Department of Labor and the Department of Treasury continue to believe, as set forth in the Supplemental Notice, that the requirement in the PPA to provide “simplified” reporting for plans with fewer than 25 participants is satisfied by the simplified reporting scheme in the July 2006 Proposal. In addition, the Department of Labor does not view the PPA provision as a direction from Congress that was intended to preclude the Department from determining that plans with fewer than 25 participants should meet conditions consistent with the purposes of Title I and the PPA to be eligible to file the new simplified report. To the contrary, the Department believes the PPA provision should be read consistently with the authority granted the Department in ERISA section 104(a)(2) and 104(a)(3) to create simplified reports for pension and welfare plans, both of which provisions acknowledge that the Department has such discretion. The Short Form 5500, as proposed, was targeted to provide a simplified report for plans with fewer than 25 participants. Approximately 75% of all plans eligible to file the Short Form 5500 cover fewer than 25 participants and approximately 95% of plans with fewer than 25 participants are estimated to be eligible to file the Short Form 5500. The decision to prohibit multiemployer plans and plans that invest in employer securities from being eligible to use the Short Form 5500 is consistent with the PPA's emphasis on expanding the annual reporting requirements for multiemployer plans and increasing transparency and participant control over employer securities in individual account plans. As under the July 2006 Proposal, even those small plans not eligible to use the Short Form 5500 still would be able to avail themselves of the other simplified reporting options available to small plans under the Form 5500 Annual Return/Report. The commenter's suggestion to eliminate all of the Short Form 5500 eligibility conditions for plans covering fewer than 25 employees therefore has not been adopted.
The suggestion to modify the condition that 100% of the plan's assets are held in investments that have a readily determinable fair market value also is not being adopted. As noted above, the Short Form 5500 conditions already require plans to satisfy the audit waiver conditions in 29 CFR 2520.104-46 to be eligible to file the Short Form. The condition in the audit waiver regulation that 95% of the plans assets be “qualifying plan assets,” focuses on whether the assets are held by a regulated financial institution, The Short Form 5500 condition regarding types of plan investments, in contrast, is based on a premise that certain small plans, by virtue of all of their assets being held by regulated financial institutions and having a readily determinable fair market value, present reduced risks for their participants and beneficiaries. Using any percentage measure for assets with a readily determinable fair market value would create a risk that hard to value assets would be materially undervalued in order to meet the percentage threshold and result in plans with substantial holdings in hard to value assets being eligible to file the Short Form 5500. The Agencies continue to believe that the separate financial information regarding hard to value investments on the Schedule I is important for regulatory, enforcement, and disclosure purposes. The Agencies are not changing this provision because of their concerns that allowing plans with any hard to value assets to use abbreviated annual report filing (i.e., the Short Form 5500) could compromise enforcement and research needs of the Agencies and disclosure needs of participants and beneficiaries in such plans.
Under the July 2006 Proposal, the limited annual reporting options currently available to Code section 403(b) plans would have been eliminated so that Code section 403(b) plans would be subject to the same annual reporting rules that apply to other ERISA-covered pension plans. Two commenters representing employee benefit plan auditors and administrative service providers were supportive of the Department's proposal and agreed that requiring Code section 403(b) plans to comply with the same annual reporting rules that applied to other ERISA covered pension plans would improve transparency and accountability. Other commenters representing 403(b) plan sponsors and insurance and investment companies opposed the proposal. Those opposing the expanded reporting requirement argued that compliance with the reporting requirement would be both burdensome and costly given the fact that most 403(b) plans are a composite of individual contracts issued to employees by different 403(b) vendors without a central point for administration and recordkeeping. The commenters claimed that there is no record of abuse in the 403(b) plan area that supported the proposed changes. Certain commenters also suggested that different annual reporting rules for Code section 403(b) plans are justified by the fact that the tax exempt employers that sponsor Code section 403(b) plans do not have a tax incentive for sponsoring pension plans for their employees and might be more likely to terminate plans or refuse to sponsor plans based on concerns about administrative costs and burdens.
After evaluating the comments, the Department continues to believe that subjecting Code section 403(b) plans to the same annual reporting rules that apply to other ERISA covered pension plans is consistent with the purposes of Title I of ERISA and the interests of covered participants and beneficiaries. The approach to annual reporting by tax sheltered annuity programs was premised historically on the conclusion that they differed from ordinary pension or deferred compensation plans. Code section 403(b) plans, which date back to 1958, were originally less in the nature of a plan than of an arrangement under which an employer purchased from an insurance company on behalf of an employee an individual annuity contract that could be tailored to the desires and financial means of the individual employee. Because contributions were required to be invested only in annuity contracts or in certain mutual fund custodial accounts, the Department had believed that the regulatory supervision of insured annuity contracts and of regulated investment companies provided much of the disclosure, fiduciary and funding protection afforded by Title I of the Act. The Department also had concluded that because section 403(b) programs may be individually tailored, the reporting and disclosure provisions of Title I could present substantial administrative difficulties for the employer and for the Department. Finally, the Department viewed section 403(b) programs as similar to individual retirement account (IRA) based plans that were granted an exemption from the annual reporting requirements under Title I provided they met certain conditions.
As the IRS indicated in the preamble to the recently published final regulations on Code section 403(b) plans (72 FR 41128, Jul. 26, 2007), various amendments to section 403(b) over the past 40 years have diminished the extent to which the rules governing Code section 403(b) plans differ from the rules governing other employer-based plans, such as arrangements that include salary reduction contributions, i.e., Code section 401(k) plans. The IRS's final Code section 403(b) regulations would impose requirements involving the establishment of a more centralized system of recordkeeping for all Code section 403(b) plans. The establishment and growth since 1978 of 401(k) plans has made the “individually tailored” character of Code section 403(b) plans less distinctive. Section 401(k) plans are often structured as participant directed with multiple investment options offered by separate investment providers, and many plans include brokerage accounts as a way of allowing employees to further tailor the plan to their individual investment objectives and financial means. Developments in the Code section 403(b) plan market have also raised questions about whether regulatory supervision of Code section 403(b) plan vendors under insurance and securities laws provides much of the disclosure, fiduciary, and funding protections afforded by Title I of the Act. In the fiscal years 2002 through 2006, the Department found violations in 78 percent of its investigations of Code section 403(b) plans. Although the predominant issue in these investigations was delinquent employee salary contributions, investigations of Code section 403(b) plans also revealed delinquent employer contributions, imprudence, prohibited uses of assets, and reporting and disclosure violations. The high incidence of improper handling of employee contributions suggests a potentially broader laxity in fiduciary oversight. There are also reports that governmental entities that sponsor Code section 403(b) plans (which generally would be excluded from ERISA as governmental plans) are concerned about undisclosed fees, penalties, and restrictions in their Code section 403(b) plans and are making demands for additional disclosures.
The Department believes that the annual report requirements, including an audit by an IQPA, provide important oversight of the Code section 403(b) plan's internal control structure and overall operations. The Department believes that preparing the financial statements and schedules as part of the annual report in compliance with the Department's requirements for reporting and disclosure under ERISA provides participants with greater assurance that the plan administrator or other authorized parties have properly monitored the financial condition and operation of the plan. The impact of having to meet the same annual reporting requirements applicable to other ERISA-covered plans would be substantially less burdensome for small tax-exempt employers, which generally should be eligible for the small plan audit waiver and for filing the Short Form 5500.
While the new annual report requirements may result in additional costs to a Code section 403(b) plan, these reporting requirements would only apply to Code section 403(b) plans that are subject to Title I of ERISA and would subject those plans only to the same annual reporting requirements that apply to other ERISA-covered pension plans. In such cases, the administration and management of the Code section 403(b) plan have already been subject to ERISA's general fiduciary obligations. Such plans should, therefore, already have an administrative structure in place to ensure compliance with various Title I requirements, such as having a written plan document, furnishing summary plan descriptions and other ERISA required disclosures to participants and beneficiaries, and maintaining an adequate recordkeeping system so that the plan fiduciaries can prudently manage the plan and monitor plan service providers. In the Department's view, the process of preparing an annual report reinforces a recordkeeping and monitoring discipline on plan officials that facilitates better fiduciary compliance. In that regard, the Department does not believe that it would be helpful to adopt the suggestion by one commenter to have Code section 403(b) plans answer only a single or limited number of questions focused just on timely transmission of employee salary reduction contributions to the plan. The Department does not believe that continuing a general exemption from the audit requirement for Code section 403(b) plans subject to Title I annual reporting requirements is appropriate.
As noted in the preamble to the July 2006 Proposal, small Code section 403(b) plans (generally covering fewer than 100 participants) should be able to meet the conditions for being exempt from the audit requirement and be eligible to file the proposed Short Form 5500.
One commenter that supported the proposal to apply generally applicable annual reporting rules to Code section 403(b) plans suggested that interim relief may be needed because auditors may refuse to take on initial engagements because records from prior years may not be adequate for current year audit purposes. Although Code section 403(b) plans have not yet been subject to an audit requirement as part of the annual reporting process, as noted above, fiduciaries of such plans must keep records under ERISA section 107 to verify that they are in fact eligible to file as Code section 403(b) plans and have a general fiduciary obligation to keep adequate records to monitor the plan and ensure compliance with the fiduciary and other substantive requirements of Title I of ERISA.
A few commenters contended that the “universal availability” requirement applicable to Code section 403(b) plans under the Internal Revenue Code and Treasury Department regulations will unfairly result in Code section 403(b) plans with only a small number of active participants being subject to the large plan audit requirement because all eligible employees are counted as covered participants. The Department notes that Code section 401(k) plans are currently subject to a similar rule where all employees who are eligible to make salary reduction contributions are required to be counted as participants regardless of whether they in fact make any contributions. The Department also expects that, like Code section 401(k) plans, a substantial percentage of large Code section 403(b) plans should be eligible for limited relief from the full audit requirement by taking advantage of the limited scope audit option available under the Department's regulation at 29 CFR 2520.103-8.
Some additional technical changes were made to the final forms to make it clear that certain annual reporting options available to Code section 401(k) plans are also available to Code section 403(b) plans. Specifically, the Schedule H instructions have been modified to provide for aggregate reporting on Lines 4i (Schedule of Assets Held for Investment Purposes) and Line 4j (Schedule of Reportable Transactions) for individual annuity contracts and custodial accounts in Code section 403(b) plans as is currently permitted for participant-directed accounts in Code section 401(k) plans. In addition, the Schedule A instructions have been expanded to make clear that the current rule allowing filers to report a group of individual policies issued by the same insurer on a single Schedule A would apply for Code section 403(b) individual annuity contracts. At the request of one commenter, Line 9 of the Form 5500 has been changed to make clear that Code section 403(b) plans that are funded with and pay benefits through Code section 403(b)(7) “custodial accounts” should check “trust” for both funding and benefit arrangement.
Finally, in light of the additional annual reporting obligations associated with maintaining a Code section 403(b) plan that is covered by Title I, several commenters stated that more guidance was necessary on the Department's safe harbor regulation at 29 CFR 2510.3-2(f) to assist plans in determining whether they were covered by Title I of ERISA. The commenters stated that this guidance was especially important in light of Treasury's then anticipated issuance of final regulations at 72 FR 41128, TD 9340 reflecting legislative changes made to Code section 403(b) since the existing regulations were adopted in 1964 and incorporating interpretive positions that Treasury has taken in other guidance on Code section 403(b). The Department's safe harbor at 29 CFR 2510.3-2(f) states that a program for the purchase of an annuity contract or the establishment of a custodial account in accordance with provisions set forth in Code section 403(b) and funded solely through salary reduction agreements or agreements to forego an increase in salary, are not “established or maintained” by an employer under section 3(2) of ERISA, and, therefore, are not employee pension benefit plans subject to Title I, provided that certain factors are present. The Department agrees that it is important for Code section 403(b) plans to be able to determine whether they are covered by Title I for annual reporting and other ERISA compliance purposes. Thus, the Department issued guidance contemporaneously with Treasury's issuance of its revised regulations under Code section 403(b) on the continued availability of the safe harbor at 29 CFR 2510.3-2(f) and the interaction of the Department's safe harbor and the provisions of the Treasury regulations addressing employer tax compliance obligations in the ongoing operation of a Code section 403(b) arrangement.
Draft Schedules SB and MB were posted on the Department's Web site in conjunction with the Supplemental Notice. Instructions for these draft Schedules were not posted nor are they included in this Notice because their development hinges on guidance to be issued by the IRS and/or the PBGC implementing the PPA requirements underlying the Form 5500 Annual Return/Report data elements. Specific guidance regarding the details required in Schedule SB and Schedule MB will be provided in future guidance and will be included in the instructions.
The Agencies received no comments related to the new Schedule MB and multiple comments from one commenter on Schedule SB. That commenter suggested that Line 4a be eliminated because it is identical to the entry in the second column of Line 3d. The Agencies note that the amount reported on Line 4a will not be the same as the amount reported in Line 3d and that this will be made clear in the instructions.
This commenter also suggested that item 6 be expanded to have one line for reporting regular target normal cost and another line for reporting at-risk target normal cost. The Agencies acknowledge that some plans will need to calculate both amounts in order to determine target normal cost, but conclude that it is not necessary to require that these interim calculations be reported. Guidance regarding the details of this calculation will be included in the instructions.
This commenter suggested that the words “not less than zero” be added to
This commenter noted that the definitions for Lines 7 and 8 refer to Lines 13 and 35 from the prior year, but that these definitions will not be valid for 2008 unless the 2007 Schedule B is changed to include Lines 13 and 35 as defined in the 2008 Schedule SB. The Agencies note that Lines 13 and 35 will not be included on the 2007 Schedule B. The Schedule SB was designed to reflect various PPA reporting and disclosure provisions (generally effective for 2008 and subsequent years). Information on “look back” rules applicable for completing the questions on the Schedule SB will be included in the instructions.
The Department believes that an annual review of plan fees and expenses as part of the annual reporting process is part of a plan fiduciary's on-going obligation to monitor service provider arrangements with the plan. Commenters generally supported the goals of the proposed changes to the Schedule C, as stated in the proposal, of increasing transparency regarding fees and expenses paid by employee benefit plans and ensuring that plan officials obtain the information they need to assess the compensation paid for services rendered to the plan, taking into account revenue-sharing arrangements among plan service providers and potential conflicts of interests.
Commenters representing insurance companies, banks, and other financial institutions, however, while generally supporting fee transparency and applauding the Department's initiatives in this area, raised concerns that the proposed Schedule C reporting scheme for indirect compensation was more extensive than necessary. They asserted that the proposed changes could result in duplicative, misleading, and confusing reporting. The commenters also argued that the proposed changes, if not narrowed, would impose significant administrative costs on service providers to track and disclose information on indirect compensation, which costs they likely would pass on to their employee benefit plan clients. These commenters suggested that reporting of indirect compensation, as proposed, should be narrowed in various ways: (1) Eliminate or narrow reporting of “float” income; (2) postpone any requirement to report “soft dollars” until after the Securities and Exchange Commission (SEC), as the primary regulator of soft dollar compensation, addresses the subject as it applies to investors generally; (3) except from reporting revenue sharing payments among affiliates and by other bundled service providers to entities that the bundled provider engages to provide services; (4) retain the current rules under which brokerage commissions are not required to be reported unless the broker is granted some discretion; (5) define “service providers” required to be listed in the Schedule C as limited to persons with direct service relationships with the plan and exclude from Schedule C reporting payments to “subcontractors” based on the premise that subcontractors are merely assisting the direct service provider in fulfilling its contractual obligations and are not providing services to the plan; (6) confirm that insurers and investment providers are not required to be listed as service providers on Schedule C solely as a result of the plan's purchase of the insurance contract or investment with the investment provider; and (7) integrate the annual reporting requirement into other regulatory disclosure requirements regarding fee and expense disclosure to avoid duplicative and confusing disclosure requirements.
Two individual commenters suggested that the Schedule C should be completed by small plans as well as large plans and that the $5,000 reporting threshold for listing a service provider on the Schedule C should be lowered or eliminated. Another commenter suggested that, if full Schedule C reporting was not expanded to small plans, investment-related fees and expenses should be reported separately in a similar manner as administrative service provider expenses under the July 2006 Proposal which called for administrative service provider expenses paid by the plan to be reported as an aggregate line item on Schedule I and the Short Form.
As noted in the July 2006 Proposal, issues relating to the appropriate manner and scope of the reporting of service provider compensation on the Schedule C have been raised by the ERISA Advisory Council and the Government Accountability Office, as well as by Form 5500 Annual Return/Report filers and plan service providers. The Department is working on a separate regulation setting forth the standards applicable to the exemption under ERISA section 408(b)(2) for contracting or making reasonable arrangements with a party in interest for services.
Against this backdrop, and inasmuch as plan administrative costs are being passed on to plan participants with increasing frequency, it is critical to ensure that the benefits of any new annual reporting requirement outweigh the attendant compliance costs—costs that may ultimately reduce retirement savings. The Schedule C requirements historically have been limited to large plans that are required to file the Form 5500 Annual Return/Report and have not covered the broader class of plans covered by the Department's other fee transparency initiatives. Considered in context with other fee disclosure initiatives at the Department and elsewhere that are more tailored to the concerns expressed by GAO and the ERISA Advisory Council on changes needed to provide 401(k) plan participants better information on fees, particularly investment fees indirectly incurred by participants directing the investment of assets in their individual 401(k) plan accounts, the Department does not believe expanding the Schedule C annual reporting requirements to small pension plans would be consistent with the direction from Congress in the PPA for the Department to simplify the annual report for plans sponsored by small businesses.
The Department continues to believe that it is appropriate to modify the Schedule C reporting requirements for large plans in an effort both to clarify the reporting requirements and to ensure that the Form 5500 Annual Return/Report serves a role in helping plan officials obtain the information they need to assess the reasonableness
Reportable compensation under the final Schedule C revisions continues to be defined to include money and any other thing of value (for example, gifts, awards, trips) received directly or indirectly from the plan (including fees charged as a percentage of assets and deducted from investment returns) for services rendered to the plan. The Department does not agree with the commenters who argued that only those persons with “direct service relationships” with the plan should be treated as providing services to the plan for Schedule C reporting purposes. The Department believes that such a conclusion would be inconsistent even with the current reporting requirements in the Schedule C. Under current reporting rules, reportable indirect compensation expressly includes “among other things, payment of ‘finder's fees’ or other fees and commissions by a service provider to an independent agent or employee for a transaction or service involving the plan.” Nothing in the proposal was intended to restrict or diminish the existing requirement to report such finders' fees or commissions. Rather, the proposal was designed to expand indirect compensation reporting requirements. The Department also believes that adopting the commenters' suggestion would undermine the objective of improving disclosure of fee and compensation information because it is not consistent with the reality of the employee benefit plan marketplace where the nature and complexity of the business and investment environment in which plans operate has changed the ways in which plans obtain and pay for administrative, investment, and other services. Although the Department agrees that an investment of plan assets or the purchase of insurance is not, in and of itself, reportable service provider compensation for purposes of the Schedule C, in the Department's view, persons that provide investment management, recordkeeping, participant communication, and other services to the plan as part of a transaction with the plan should be treated as providing services to the plan or its participants for purposes of Schedule C reporting. Thus, under the final Schedule C revisions, and subject to the alternative reporting option described below, such persons would be required to be identified in Part I if they received, directly or indirectly, $5000 or more in reportable compensation for a transaction or service involving the plan.
Several commenters suggested that a payment be reportable on Schedule C only if either the service provider's eligibility for the payment or the amount of the payment is based on a transaction directly involving assets of the plan. The commenters argued that such a test would be consistent with conflict of interest rule in ERISA section 406(b)(3), which prohibits receipts by plan fiduciaries of consideration for their own personal account from any party dealing with a plan “in connection with” transactions involving plan assets. The Department does not agree that the standard for Schedule C reporting should be narrowed to parallel the prohibited transaction standard in ERISA section 406(b)(3). Unlike the prohibited transaction provision in 406(b)(3), the Schedule C revisions were not intended to be limited to receipts by plan fiduciaries or to identifying impermissible conflicts of interest. The Schedule C reporting of indirect compensation also is not limited to only those circumstances where a plan fiduciary affirmatively chooses the indirect service providers. Rather, one of the goals of the Schedule C changes is to improve fee disclosure to plan fiduciaries, especially where they do not have a role in determining the compensation paid to parties that are receiving fees for a transaction or service involving the plan. Schedule C reporting arises in part from ERISA section 103(c)(3), which requires information in the annual report regarding “each person” (not limited to just fiduciaries) who rendered services to the plan or who had transactions with the plan who received, directly or indirectly, compensation from the plan during the year for services rendered to the plan or its participants. Further, ERISA section 103(c)(5) expressly provides that the administrator shall furnish as part of the annual report “[s]uch financial and actuarial information” as the “Secretary may find necessary or appropriate.” In the Department's view, the prohibited transaction standard in ERISA section 406(a)(1)(C)—transactions that constitute a “direct or indirect” furnishing of goods, services, or facilities to the plan—is generally a more suitable analog for Schedule C reporting. Thus, in the Department's view, the Schedule C reporting requirement should generally capture both persons who receive direct or indirect compensation and persons who provide services directly or indirectly to the plan.
The Department nonetheless agrees that additional guidance on certain areas of concern raised by commenters would establish useful compliance guides for plan administrators and plan service providers.
As was noted in the July 2006 Proposal, Schedule C was intended to capture information on compensation received by persons providing services, and not information on benefit payments to participants and beneficiaries. Where fully insured group health benefits, or similarly fully insured benefits under a plan, are purchased from and guaranteed by a licensed insurance company, insurance service, or other similar organization, and where information regarding that contract is reported on the Schedule A, compensation paid by the insurance company from its general assets to affiliates or third parties for administrative activities necessary for the insurer to satisfy its contractual obligation to provide benefits is not required to be treated as reportable service provider compensation for purposes of the Schedule C. Insurance investment contracts are not eligible for this exception. As described below in the discussion of the Schedule A (Insurance Information), a similar exclusion is being adopted in defining the scope of insurance fees and commissions that must be separately reported on the Schedule A. In determining whether such compensation is excludable from the Schedule C, the Department would look to whether the administrative services are necessary for the insurer to satisfy its contractual obligation to provide benefits under the plan and are not services incidental to the sale or renewal of a policy, whether payments by the insurer are out of its general assets to third parties without any other direct or indirect charge to the plan other than the policy premium, are made pursuant to a contract or written understanding to provide the services, and whether the amount of the compensation paid by the insurer is
Under the proposal, Schedule C reportable compensation included brokerage commissions and fees directly or indirectly charged to the plan on purchase, sale, and exchange transactions regardless of whether the broker is granted discretion. Commenters urged retaining the current limitation under which such compensation is reported on the Schedule C only for brokers granted discretion. The Department continues to believe that brokerage fees and commissions may constitute a significant part of a plan's annual expenses and that continuing the current exemption from the Schedule C reporting for such expenses is not appropriate. A review of expenses as part of the annual reporting process is part of a plan fiduciary's on-going obligation to monitor service provider arrangements with the plan. Requiring the reporting of such brokerage commissions and fees should emphasize and reinforce that monitoring obligation. The Department understands that information on brokerage fees and commissions may be provided to the plan by parties other than the broker receiving the fee or commission. For example, a number of commenters indicated that in many cases the broker will not know the party on whose behalf a brokerage transaction is being executed because the instructions to execute trades are often provided by investment managers who control investment portfolios for multiple ERISA plans, non-ERISA plans, and non-plan clients. The commenters asserted that it may be very difficult for the broker to identify fees and commissions it receives from ERISA plan transactions, much less identify fees and commissions it receives on transactions involving a particular ERISA plan. The Department notes that the plan administrator is the party with the obligation to complete the Schedule C. Further, the Schedule C does not require that information on reportable fees and commissions necessarily be furnished to the administrator by the party receiving the fee or commission. Rather, in the situation described by the commenters, the investment manager should have information on which transactions are being executed for which clients and should have information on the fees and commissions it is being charged for those transactions. In such a case, the investment manager, rather than the broker, may be the appropriate party to provide the plan administrator with information on those service provider fees and commissions.
Many of the comments raising concerns about the difficulties and burdens of reporting indirect compensation focused on “float” revenue;
The commenters indicated that the burden and complexity of reporting investment-related fees is due in large part to the fact that a substantial majority of retirement plan service providers maintain plan records and investment information at an omnibus account level. Certain commenters described omnibus accounting as “best practice” in the industry. They suggested that efficiencies in data exchanges and settlement transactions between funds and retirement plan record keepers generated by omnibus accounting are used to reduce plan service costs. These savings were described as based in part upon the service provider maintaining omnibus trading accounts with investment-related service compensation based upon a percentage of the total assets in an investment fund. A commenter representing the mutual fund industry asserted that it would be extremely difficult to parse out by plan (in dollars) specific components of a fund's expenses for purposes of Form 5500 reporting. The commenter suggested that the data systems overhaul that would be needed to track this information would be prohibitively expensive. Other commenters suggested that, although it may be possible with current data systems to generate an estimate of the amount of investment-related fees reflected in the periodic net asset valuation of a plan's investment on a case-by-case basis, systematically performing such a task each year for each investing plan would be difficult given the variation in omnibus account investment fees and the pervasiveness of their use as a means of compensating service providers for an array of investment-related services.
In a similar vein, several commenters expressed concern about the Schedule C reporting requirements in the case of revenue sharing among members of a bundled service arrangement (including, in particular, revenue sharing among affiliates from investment-related fees charged at the omnibus account level). The commenters explained that bundled service arrangements include arrangements where the plan hires one company to provide, either directly or through affiliated entities or unaffiliated subcontractors, an array of services rather than purchasing the services on an individual basis. In some typical arrangements, a bundle of services is included as part of an investment transaction and the service providers are paid out of investment management and other charges levied on an investment fund comprised of many ERISA plans, other plans, and, in some cases, non-plan investors. Several commenters asked that the final Schedule C revisions confirm that payments received in such a bundled arrangement by a service provider from an affiliate not be separately reportable on Schedule C. The commenters argued
Other commenters representing “unbundled” or “open architecture” investment providers asserted that allowing aggregate reporting for bundled/affiliated providers, without having a parallel rule for unbundled providers would generate misleading information for plan administrators. The commenters represented that unbundled investment service arrangements use the same basic omnibus accounting and omnibus account fee arrangements as bundled providers. In the unbundled context, revenue sharing is used to compensate unaffiliated entities providing the same recordkeeping and shareholder services provided by affiliates in a bundled provider arrangement. They pointed out that technological improvements in information management systems and data exchange between investment funds and retirement plan record keepers have given unbundled providers the ability to offer cost and fee structures competitive to those of bundled providers. They also argue that unbundled arrangements give plans access to a wider range of unaffiliated investment vehicles than is typically offered by bundled providers.
Representatives of the “unbundled” service providers claim that, just like the bundled providers, the parties providing sales, recordkeeping, participant communication, and other services are often paid indirectly from charges levied against the investment funds in which the plan accounts are invested. They read the Schedule C proposal as requiring, in the case of bundled providers, reporting of a single sum equal to the total compensation, including investment management and other asset-based fees, paid by the plan without reporting the allocation of those charges to affiliated service providers in the bundle. In comparison, they read the proposal to require that the plan report, in the “unbundled” structure, both the total investment management and other asset-based fees as well as report allocations from those fees to the unaffiliated service providers. The commenters suggested, therefore, that, although an unbundled arrangement may provide the same services as a bundled arrangement and the various service providers may be paid out of the same investment management and omnibus asset-based charges as in a bundled arrangement, the Schedule C reporting could make it appear as if the unbundled arrangement included more fees.
The Department has decided to revise the Schedule C reporting requirement in an effort to address both the concerns regarding the burden and expense of reporting plan specific components of omnibus asset-based charges and concerns over disparate reporting treatment of affiliated service provider groups and unaffiliated providers using essentially the same indirect compensation arrangements. In that regard, the Department notes that even commenters generally supporting the Schedule C proposal urged the Department to provide flexibility, consistent with the spirit of the proposed Schedule C changes, in defining acceptable methods of reporting fee and expense information and allocating the fees and expenses for specific service provider compensation to individual plans.
Thus, the final Schedule C revisions include a new definition of what would constitute a bundled arrangement for Schedule C reporting purposes. In the case of such bundled arrangements, although revenue sharing within the bundled group generally does not need to be separately reported, the person or persons in the bundle receiving separate fees charged against the plan's investment (e.g., investment management fees, float revenue, and other asset-based fees such as shareholder servicing fees, 12b-1 fees, and wrap fees if charged in addition to the investment management fee) must, subject to the alternative reporting option described below, be treated as receiving separate reportable compensation for Schedule C purposes. Also, and subject to the alternative reporting option described below, any person in the bundle who is a fiduciary to the plan or provides one or more of the following services to the plan contract administrator, consulting, investment advisory (plan or participants), investment management, securities brokerage, or recordkeeping—receiving amounts as commissions (including finders' fees), soft dollars or other nonmonetary compensation, float revenue, or transaction-based charges (e.g., brokerage commissions) must be separately reported on the Schedule C if their total reportable compensation equals or exceeds $5,000. The Department believes that having to disclose the receipt of separate fees actually charged against the plan's investment would not require service providers to disclose information legitimately classified as proprietary or confidential. Further, in the case of commissions, soft dollars, finders' fees, float revenue, and transaction-based charges paid to affiliates, the Department believes such charges are just as likely for both affiliate groups and unaffiliated providers to be relevant to the plan fiduciary in evaluating possible conflicts of interest.
Except as described above, the Department continues to believe that it is generally sufficient for Schedule C reporting purposes to treat an affiliate group as a single person and identify that affiliate group in Part I of the Schedule C as the party receiving compensation from the plan for rendering services to the plan. The Department emphasizes, however, that if one or more of the affiliates or a member of a bundled arrangement received compensation from sources outside the affiliate group or bundled arrangement in connection with the investment transaction with the plan or services provided to the plan, that compensation also would have to be included as part of the reportable compensation received in determining Schedule C reporting requirements.
For purposes of this Schedule C reporting rule, an “affiliate” of a person includes any person, directly or
In attempting to strike a balance between the costs and benefits of improved disclosure of investment-related fees and expenses, the Department believes some of the concerns regarding the burden and complexity of allocating fees charged in an omnibus account structure can be addressed by further modifying the Schedule C requirements so they rely on disclosures regarding those fees resulting from other regulations or business practices to the extent those disclosures meet the objectives underlying the Department's Schedule C proposal. The final Schedule C revisions thus include an alternative reporting option for “eligible indirect compensation.” To constitute eligible indirect compensation for this purpose, the compensation has to be of a certain type and the plan must have received certain disclosures. The eligible compensation types are compensation not paid directly by the plan or plan sponsor but received by plan service providers from omnibus level fees charged to investment funds in which the plan invests where the charges are reflected in the value of the investment or return on investment of the participating plan or its participants and for: distribution, investment management, recordkeeping or shareholder services; commissions and finder's fees paid to persons providing direct or indirect services to the participating plans; float revenue; securities brokerage commissions and other transaction-based fees (whether or not they are capitalized as investment costs); and “soft dollar” revenue. For the alternative reporting option to be available, in addition to being within that class of investment fees, the plan administrator must also be furnished written materials, including in electronic form, that disclose the existence of the indirect compensation; the services provided for the indirect compensation or the purpose or purposes for the payment of the indirect compensation; the amount (or estimate) of the compensation or a description of the formula used to calculate or determine the compensation; and the identity of the party or parties paying and receiving the compensation. The Department believes that any written disclosure, whether regulatory, contractual, or voluntary, could be relied upon so long as all of the elements of the disclosure were provided to the plan administrator. Further, the necessary information could be provided to the plan administrator in separate disclosures from multiple parties.
In the case of service providers who received only eligible indirect compensation, the plan administrator would be able to check a box on the Schedule C to indicate that there were such service providers and that the plan had received the appropriate disclosures, and then identify on the Schedule C each person from whom the plan administrator received the necessary disclosures regarding the eligible indirect compensation. For example, 12b-1 fees received by a party providing recordkeeping services to a plan would not have to be separately reported on the Schedule C if the disclosures in the mutual fund prospectus together with disclosures in the service contract advised the plan administrator of the fact that the 12b-1 fees were being received, what the fees were paid for, the amount or estimate of the fees received or the formula used to calculate the amount of the fees received, and the party from whom the recordkeeper was receiving the fees. Similarly, “soft dollars” received by an investment manager in the form of research or other permissible services in connection with securities trades on behalf of plan clients need not be separately reported on the Schedule C if disclosures in the SEC Form ADV, together with disclosures in the investment management contract, advised the plan administrator that the manager is receiving “soft dollars,” the reason the person was receiving the “soft dollar” payment, the amount of “soft dollars” or the formula used to determine the amount of “soft dollars” that the manager receives in connection with each securities transaction, and the party or parties from whom the investment manager is receiving the “soft dollars.” The Department recognizes that it may not be practicable to provide a formula or estimate to calculate the value of certain types of “soft dollar” non-monetary compensation at the plan level, particularly so-called “proprietary” soft dollar arrangements, such as access to information from certain research specialists. In such circumstances, a description of the eligibility conditions sufficient to allow a plan fiduciary to evaluate them for reasonableness and potential conflicts of interests would satisfy the “amount of compensation” prong of the disclosure alternative for Schedule C reporting. When reporting service providers who received eligible indirect compensation and other compensation, the service provider would be required to be separately listed on the Schedule C if the total compensation equaled or exceeded the $5,000 threshold. The plan administrator would check a box to indicate that some of the compensation was eligible indirect compensation and complete the other elements of the Schedule C to report information on the balance of the direct and indirect compensation received by the service provider. Since the identity of the service provider would be included on the Schedule C in such cases, separately listing the person from whom the plan received the required disclosures regarding the eligible indirect compensation would not be necessary.
The Department has previously expressed its opinion that in hiring and retaining service providers plan fiduciaries must engage in an objective process designed to elicit information necessary to assess the qualifications of the provider, the quality of services offered, and the reasonableness of the fees charged in light of the services provided. In addition, the process should be designed to avoid self-dealing, conflicts of interest, or other improper influence. The alternative reporting option being adopted as part of the Schedule C revisions for eligible indirect compensation is intended to emphasize and reinforce the obligation to review of plan expenses as part of a plan fiduciary's on-going obligation to monitor service provider arrangements. It also provides the Department with adequate reporting to engage in effective oversight activities while addressing concerns about annual reporting burdens and costs, which are increasingly being passed on to plan participants and beneficiaries. A party seeking to avail itself of the alternative reporting option would also bear the burden of maintaining records sufficient to demonstrate compliance with the conditions of the alternative reporting option.
Several commenters asked that the Department modify the proposed Schedule C requirement applicable to plan fiduciaries and certain enumerated service providers who received, directly or indirectly, $5,000 or more in total compensation, and also received more than $1,000 in reportable compensation from a person other than the plan or plan sponsor. Under the proposal, the Schedule C would have had to provide
Modifications were also suggested to the aspect of the Schedule C proposal that required reporting business meals, gifts, promotional items, and other similar non-monetary forms of compensation. Commenters complained that the proposal would require costly tracking and reporting by plan service providers of typical business expenses only remotely connected to the plans. One commenter cited, as an example, the need to track and report when an employee of a plan service provider is treated to a business lunch by another service vendor to discuss the services the vendor provides to the service provider's plan clients. The commenter questioned whether the cost of such tracking and potential reporting, which ultimately could be passed on to the plan or the plan sponsor, is justified based on value to plan fiduciaries evaluating the reasonableness of service provider fees. The Department recognizes that providing meals, entertainment, free travel, or other gratuities may serve an ordinary business purpose, such as cultivating goodwill or securing or maintaining a commercial relationship, but continues to believe that non-monetary compensation should be subject to Schedule C reporting rules. Access to this information should help plan fiduciaries gauge whether the service provider's business decisions with regard to the plan may be influenced by any such personal benefits. At the same time, excepting from reporting occasional and insubstantial free meals, gifts, and promotional items will help to ensure that service providers are not burdened with reporting routine business gratuities that should be of little interest to plan fiduciaries.
The Department thus has modified the Schedule C reporting requirements to exclude ordinary business gifts that are both occasional and of insubstantial value, for example, widely distributed items such as pens with a company name permanently imprinted or ordinary business lunches, where the cost of the gift or meal would be tax deductible for federal income tax purposes for the person providing the gift or meal and the gift or meal would not be taxable income to the recipient. For this exemption to apply, the gift must be valued at less than $50, and the aggregate value of gifts from one source in a calendar year must be less than $100, but gifts with a value of less than $10 do not need to be counted toward the $100 annual limit. If the $100 aggregate value limit is exceeded, the aggregate value of all the gifts will be reportable. Gifts from multiple employees of one service provider should be treated as originating from a single source when calculating whether the $100 threshold applies. On the other hand, in applying the threshold to an occasional gift received from one source by multiple employees of a single service provider, the amount received by each employee should be separately determined in applying the $50 and $100 thresholds. For example, if six employees of a company providing administrative services to employee benefit plans attend a business conference put on by a broker designed to educate and explain the broker's employee benefit business services, where refreshments valued at $20 per individual are provided at no cost to the employees, the gratuities would not be reportable on the Schedule C even though the total cost of the refreshments would be $120. The Schedule C instructions have also been revised to emphasize that these thresholds are for purposes of Schedule C reporting only and to caution filers that the payment or receipt of gifts and gratuities of any amount by plan fiduciaries may violate ERISA and give rise to civil liabilities and criminal penalties.
Commenters also expressed concern that the Schedule C reporting rule allowing any reasonable method of allocating indirect compensation among multiple plans as long as the method is disclosed to the plan administrator would result in confusion for plan officials because service providers will not necessarily be using consistent methods in allocating indirect compensation. The diversity in the form and manner of payment of indirect compensation described in the comments, however, defied applying a single allocation method for such compensation among multiple plans. Thus, in circumstances where the amount of indirect compensation received by a person is attributable to more than one plan, allowing any reasonable allocation method but also requiring the method of allocation to be disclosed to the plan administrator provides the parties with appropriate flexibility in meeting the annual reporting requirement while ensuring the plan administrator is properly informed.
Several commenters raised concerns about the proposed indirect compensation reporting requirements as possibly leading to confusion among plan officials over “double reporting” of service provider compensation. They cited as an example of such “double reporting” situations where an investment advisor is paid an investment management fee from a mutual fund, and the investment advisor uses some of that revenue to pay fees to brokers, pension consultants, and others for marketing and distribution expenses. The commenters were concerned that if the investment management fee received by the investment manager and the fee received by a broker, for example, are both required to be reported as indirect compensation on the Schedule C, plan officials could incorrectly conclude that the plan paid the broker's fee in addition to the investment management fee. The Department believes that the modifications to the form and instructions described above, including the alternative reporting option for eligible indirect compensation, should address this concern by giving service providers flexibility that will allow them to provide plans with disclosures that can be used to satisfy the Schedule C reporting requirements while also clearly explaining the indirect compensation in a way that will enable the service providers to avoid creating confusion about the indirect fees and compensation they receive.
The Schedule C is also being modified so that service providers required to be
The Department believes that this revised framework for the Schedule C continues to accomplish the objectives of improving Schedule C reporting of fee and compensation information, while addressing many of the concerns of the commenters relating to annual reporting burdens, costs, and potentially duplicative and confusing disclosures to plan officials. It also provides sufficient flexibility so that plans and service providers can use other current or future regulatory disclosure regimes, such as soft dollar disclosure requirements developed by the SEC, as part of satisfying ERISA's annual reporting requirements.
One commenter asked the Department to confirm that revenue sharing payments, such as sales loads and 12b-1 fees received from the mutual funds and other revenue sharing payments from distributors and/or advisors of the mutual fund for sub-transfer agency services and shareholder services, are not necessarily “plan assets” for purposes of the fiduciary responsibility provisions of Title I of ERISA solely by virtue of being required to be listed on the Schedule C. The commenter pointed out that some revenue sharing payments to plan service providers are calculated based on the amount of assets a plan or a group of plans have invested in a particular investment vehicle or family of vehicles at a given time. Other revenue sharing payments are not asset-based, but may involve a flat fee. In the Department's view, the Schedule C reporting requirements are not restricted to plan asset payments. In general, in evaluating plan investments, identification of plan assets is governed either by the “plan asset” regulation (29 CFR 2510.3-101), or, in situations beyond the regulations, the assets of an employee benefit plan are identified on the basis of ordinary notions of property rights.
One commenter suggested that revising the instructions to Schedule C to clarify that health and welfare plans exempt from the financial reporting and audit requirements by reason of meeting the conditions in the Department's limited exemption in 29 CFR 2520.104-44, including plans that rely on the enforcement policy guidance in the Department's Technical Release 92-01, are not required to file a Schedule C. The Department has modified the instructions for the Schedule C to make it clear that, although neither the limited exemption at 2520.104-44 nor Technical Release 92-01 expressly address Schedule C reporting requirements, plans that meet the conditions of the exemption or the enforcement policy guidance are not required to complete and file a Schedule C to report information on service provider compensation. Another commenter requested confirmation that where the plan sponsor pays expenses of the plan, the amounts paid by the plan sponsor, and not reimbursed by the plan, would not have to be reported on Schedule C. The Schedule C and its instructions continue to provide that reporting is only required for amounts directly or indirectly paid by or received from the plan.
Several commenters expressed concern with the statement in the July 2006 Proposal that if reportable compensation is due to a person's position with or services rendered to more than one plan, the total amount of compensation received should be reported on the Schedule C of each plan if the compensation could not reasonably be allocated among the various separate plans. The commenters' concern focused on an example in the preamble to the July 2006 Proposal involving a $1,000 gift from a securities broker to an investment adviser given because of the investment adviser's relationship with ERISA plans as potential clients for the securities broker. The preamble assumed the $1,000 gift could not be reasonably allocated among the ERISA plans and indicated that in such a case the $1,000 should be reported on the Schedule C of all plans for which the investment advisor performed services. The commenters urged clarifying in the instructions that, as long as a reasonable allocation can be made in such circumstances, the total value of the gift or other consideration is not required to be reported on the Schedule C of each plan. The Department agrees that in the case of gifts or other consideration attributable to multiple plans, only an allocable share of value of the gift or other consideration needs to be included on each plan's Schedule C as long as the value of the gift or other consideration can be reasonably allocated among the multiple plans.
Commenters also expressed concerns, similar to those submitted by insurers on the Schedule A described below, regarding the requirement to identify service providers that fail or refuse to provide the administrator with the information needed to complete the Schedule C. The Department continues to believe that identifying service providers that fail to provide information needed to complete the
One commenter requested confirmation that the proposed changes regarding reporting of indirect compensation did not require service provider compensation reported on a Schedule C filed for a master trust investment account (MTIA) or 29 CFR 2520.103-12 investment entity (103-12IE) also to be reported on the participating plans' Schedule Cs. The indirect compensation reporting requirements were not intended to change the rule in the current instructions to the Schedule C, which emphasizes that compensation to a service provider should not be reported both on the Schedule C for the plan and on the Schedule C for the MTIA or 103-12IE in which the plan participates. Rather, plan filers must include the plan's share of compensation paid during the year to an MTIA trustee or other person providing services to the MTIA or 103-12IE only if such compensation is not subtracted from the total income of the MTIA or 103-12IE in determining the net income (loss) reported on the MTIA or 103-12IE's Schedule H, Line 2k, or is not reported on the MTIA's or 103-12IE's Schedule C.
Two commenters urged the Department not to eliminate the provision in the current Schedule C under which only the “top 40” highest compensated service providers are required to be listed on the Schedule C reporting, as proposed. The commenters suggested that the “top 40” limit be retained or replaced with some other limit based on a larger number of service providers or requiring service providers to be listed when their compensation exceeded a specified percentage of total plan expenses. The commenters suggested that, for a very large plan, requiring all service providers that received $5,000 or more in direct or indirect compensation could require the plan to list hundreds of service providers and substantially complicate their Form 5500 Annual Return/Reports. A review of Form 5500 Annual Return/Report data for reports filed before the “top 40” limit was adopted in the 1999 Form 5500 Annual Return/Report indicates that only a few very large plans reported 40 or more service providers on the Schedule C. A review of more recent Schedule C data also reflects that the 40th highest paid service provider generally was paid as much or nearly as much as the 15th or 20th highest paid service provider even though the Schedule C requires service providers to be reported in descending order of amount of compensation. Based on these data, the Department does not believe continuing the “top 40” limit is appropriate.
One commenter suggested that clarifying the reporting year in which termination of an accountant or an enrolled actuary must be reported on Schedule C. Although not expressing a preference for either result, the commenter indicated that it was not clear whether the termination should be reported on the form filed for the year in which the accountant was terminated or on the form filed for the year in which a new accountant performed the plan audit. The instructions have been revised in response to the comment to state more explicitly the existing rule that the termination of an accountant or an enrolled actuary must be reported in the Form 5500 Annual Return/Report for the plan year in which the accountant or enrolled actuary was terminated.
The Agencies received a number of comments in response to the proposed addition of a new section to the Schedule A to identify insurance providers that fail to give plan administrators the information necessary to complete the Schedule A. A commenter representing plan auditors, which supported the change based on the auditors' experience of having difficulty getting information needed to complete plan audits, also requested an expansion of the requirement to cover insurance carriers that did not provide the requisite information in a timely fashion. In contrast, insurance industry commenters expressed concern that the reporting requirement may create unnecessary administrative burdens when plan administrators wrongly identify insurers as having failed to provide required information. One insurance industry commenter, describing testimony before the ERISA Advisory Council on this issue as “unsubstantiated anecdotal reports,” objected to the Department's reliance on a report of the ERISA Advisory Council (
Section 103(a)(2) of ERISA provides that, if some or all of the information necessary to enable the administrator to comply with the requirements of Title I of ERISA is maintained by an insurance carrier or other organization that provides some or all of the benefits under a plan or holds assets of the plan in a separate account, such carrier or other organization is required to transmit and certify the accuracy of such information to the administrator within 120 days after the end of the plan year. Given the importance of plan administrators receiving timely information necessary to complete Schedule A, especially fee and commission information, the recurring reports of difficulties in this area, and the recommendation by the ERISA Advisory Council that such a question be included on the Schedule A to assist plan administrators and the Department in enforcing the insurance carriers' obligations in this regard, the Department continues to believe that insurance providers that fail to provide the necessary information should be identified on Schedule A.
The Department nonetheless agrees that, in addition to the insurer's obligation to provide information, plan administrators have an obligation to take reasonable and prudent steps to secure the necessary Schedule A information. The Department also accepts that there may be instances where plan administrators and insurers disagree over what information is required and other instances where administrators may identify an insurer on the Schedule A based the administrator's erroneous conclusion that the insurer failed to provide required information. The current instructions for the Schedule A that remind filers of the insurer's obligation to provide information needed to complete the Schedule A, accordingly, are being expanded to remind plan administrators that they have an obligation to take reasonable and prudent steps to secure the necessary Schedule A information and that they generally should contact the insurer and make a request for any missing
Another commenter requested confirmation that electronic transmission of the required Schedule A information would satisfy the insurer's obligation under ERISA section 103(a)(2). The commenter noted that some plan administrators may believe that insurers are required under ERISA to provide plan administrators with a completed copy of the Schedule A that the administrator could file as part of the plan's annual report. The commenter noted that some insurers had developed such a practice as part of the services they provided to policyholders, but indicated that such practices could be difficult to continue in a wholly electronic filing environment. In the Department's view, nothing in ERISA precludes insurers and plan administrators from agreeing to the insurer's electronic transmission of Schedule A information to the administrator. The Department also anticipates that some software providers will have EFAST2 compatible systems that will enable multiple parties, including insurers, to include information as part of the development of the plan's annual report. The Department also agrees that while insurers are required to provide the information necessary for the plan administrator to complete the Schedule A, insurers are not required by ERISA to provide the information on a completed Schedule A itself.
One commenter suggested that the requirement to report fees, commissions, and other compensation paid to agents, brokers, and other persons in connection with an insurance contract placed with or retained by the plan should be reported on Schedule C instead of on Schedule A. The commenter suggested that such a change would facilitate a “level playing field” in the annual reporting area between insurers and banks, investment companies, and other investment product providers. Another commenter suggested that there should be a de minimis reporting exception on the Schedule A under which persons receiving monetary or non-monetary commissions and fees totaling less than $500 would not be required to be listed on the Schedule A. One insurance company commenter complained that the Schedule A approach to the reporting of fees and commissions was unduly burdensome on insurers and service providers and lacked a clearly articulated purpose. The commenter asked that the Agencies limit or clarify Schedule A reporting in several ways: Limit Schedule A fee and commission reporting to “sales-related” compensation; exempt from Schedule A reporting payments to a “general agent or manager” even if the amounts are paid in connection with a policy placed with or retained by an employee benefit plan; address whether compensation can be reported on a Schedule A for the year in which the compensation was paid rather than for the year in which the right to the payment accrued; confirm that payments are not required to be reported if they are made after the year in which an insurance contract or policy is terminated; and establish safe harbor methods for allocation of compensation attributable to multiple policies.
The July 2006 Proposal did not include any proposed changes to the fee and commission reporting requirements on the Schedule A.
Specifically, the Department previously clarified, as part of an update of the instructions following the publication of Advisory Opinion 2005-02A, that compensation paid by the insurer to third parties for recordkeeping and claims processing services provided to the insurer as part of the insurer's administration of the insurance policy is not required to be reported as fees and commissions on Line 2 of the Schedule A.
The other Schedule C change that the Department is also adopting as part of the Schedule A fee and commission reporting requirements is the provision excluding occasional and insubstantial non-monetary compensation paid by an insurance company to agents, brokers and other persons from the fees and commissions that would otherwise be required to be reported on the Schedule A. The same restrictions governing this
Generally commenters were supportive of the removal of IRS-only schedules. One commenter suggested, however, that the IRS should provide guidance on the method and format of reporting information formerly on the Schedule SSA. The IRS is reviewing alternatives for simplifying the filing of the data formerly on the Schedule SSA and working with stakeholders in exploring and evaluating simplification and other changes while ensuring that this data remains a source of information for the Social Security Administration. The Agencies note that due to the additional one-year deferral in implementing the annual reporting form changes not mandated by the PPA (except for a few Schedule R items), the removal of IRS-only forms and schedules as a result of the electronic filing mandate will also be delayed until the electronic filing system is in place. Therefore, Form 5500-EZ, Schedule E, and Schedule SSA will continue to be filed under the current EFAST processing system for the 2007 and 2008 plan years.
The comments submitted on this issue generally supported the Department's inclusion in the instructions of a format for a supplemental schedule to be used by the plan's accountant for purposes of rendering an opinion on whether delinquent participant contributions information on Line 4a of Schedule H is presented fairly, and is in all material respects the information required to be reported. Commenters also supported the proposal to revise the instructions to expressly confirm that delinquent participant loan payments can be included on Line 4a as opposed to being reported in response to the general prohibited transaction question on Line 4d. Accordingly, the revised instructions for line 4a are being adopted as proposed.
One commenter thought that it would be easier to report delinquent contribution information if the items on the proposed standardized schedule were incorporated into Line 4a itself and the requirement to attach a supplemental schedule were eliminated. A commenter representing accountants stated that including a standard schedule for reporting delinquent contributions in the Form 5500 Annual Return/Report instructions was helpful, but suggested that it be revised to be identical to the prohibited transaction schedule included in Schedule G.
The revisions to the 2002 Form 5500 Annual Return/Report eliminated the need for plan administrators to double report delinquent participant contributions on Line 4a (which specifically asked about delinquent transmittal of participant contributions) and Line 4d (which asked about prohibited transactions with parties in interest). Rather, the instructions for Line 4a expressly state that the amounts paid by a participant or beneficiary to an employer and/or withheld by an employer for contribution to the plan become plan assets as of the earliest date on which such contributions can reasonably be segregated from the employer's general assets (
Likewise, having the Line 4a supplemental schedule format match the prohibited transaction format on Schedule G also would result in unnecessary reporting. By definition the party-in-interest involved is the employer and the prohibited transaction is the delinquent transmittal of participant contribution or delinquent transmittal of participant loan repayments. The Schedule G requirements to identify the parties involved and describe the nature of the prohibited transaction are therefore unnecessary. Further, the Schedule G is structured so that it can be used to report a diverse variety of prohibited transactions, whereas the additional elements on the proposed format for the Line 4a supplemental schedule are tailored for the specific prohibited transaction involved. Finally, line 4a requires reporting delinquent contributions regardless of whether the prohibited transaction has been fully corrected under the Department's Voluntary Fiduciary Correction Program (VFCP) and the conditions of Prohibited Transaction Class Exemption 2002-51 have been satisfied, but Schedule G only requires reporting if an exemption does not apply.
The Department had posted a series of frequently asked questions (FAQs) on its Web site at
One commenter expressed concern about the structure of the compliance questions proposed for Schedule H, Schedule I, and the Short Form 5500 on whether there was a “blackout period” subject to the notice requirements in section 101(i) of ERISA and the Department's regulation at 29 CFR 2520.101-3. Specifically, the commenter noted that the proposal would require a plan administrator whose plan had experienced a “blackout period” during the reporting year to answer that a blackout notice was not provided even in cases where an exception from the notice requirement applied. Although the proposed instructions expressly directed filers to indicate that they had not provided a notice even in cases where an exception from the notice requirement applied, the blackout notice questions have been modified to address the commenter's concern. The first question asking whether there was a blackout remains unchanged. The second question has been modified to have filers check “yes” if they either provided the required notice or one of the exceptions to providing the notice applied or “no” if they did not provide notice and no exception applied.
One commenter suggested moving line items regarding defaulted participant loans as “deemed” distributions on the Short Form 5500,
Funded health and welfare plans may be exposed to a financial obligation for claims that have been incurred, for example, by a participant who obtained covered health care treatment from a doctor or hospital, but that have not yet been reported to the plan in the form of a claim for benefits. Many funded plans thus establish an “Incurred But Not Reported” (IBNR) accounting reserve for such claims that have been incurred but not yet been submitted for payment. The financial accounting for these obligations is required under the American Institute of Certified Public Accountant's Statement of Position 01-2, but that accounting treatment is not consistent with Form 5500 Annual Return/Report reporting requirements, which allow funded welfare plans to report IBNR on the Schedule H financial statements as a plan liability. A commenter representing the accounting industry suggested modifying the instructions for Schedule H to shift reporting of IBNR for welfare plans from the financial statements on the Schedule H to the general compliance questions on the Schedule H, presumably in order to avoid the need for the accountant's report to include a reconciling note reflecting the difference between the Schedule H financial statements and any separate financial statements prepared by the accountant for purposes of rendering the required accountant's opinion under section 103 of ERISA. The reason that IBNR was permitted to be included in the Schedule H financial statements was due to comments from representatives of large funded welfare benefit plans that maintained their financial records on a cash basis and claimed that their IBNR reserve can often amount to a fairly significant liability for plans such that failing to include the liability on the Schedule H for a cash basis filer created the false impression that the plan was substantially overfunded at the end of the plan year. There was nothing in the accounting industry comment that suggested the above described problem was no longer a concern for large funded welfare plans or that explained how the proposed change would substantially benefit employee benefit plans, their participants and beneficiaries, or the Agencies, and, accordingly the option to include IBNR as part of the plan's liabilities is not being converted into a mandatory compliance question for all welfare plans that file the Schedule H at this time.
Line 4g of the Schedule H is a compliance question that asks whether the plan held any assets whose current value was neither readily determinable on an established market nor set by an independent third party appraiser. If the answer to Line 4g is “yes,” the filer is required to report the value of those assets. Line 4g currently gives examples of assets that may not have a readily determinable value on an established market (e.g., NYSE, AMEX, over the counter, etc.) including real estate, nonpublicly traded securities, shares in a limited partnership, and collectibles. An accounting industry commenter suggested that the instructions be revised to include expressly “hedge funds, certain [common and collective trusts], and stable value funds” as examples of assets required to be reported on Line 4g. The Agencies did not adopt this suggestion. Rather than there being a generally accepted definition of what constitutes a “hedge fund” or “stable value fund,” the class of investments that might fit within those terms is quite diverse. More importantly, regardless of the label used to describe an investment, the standard for Line 4g remains the same—assets should be listed if they do not have a readily determinable value on an established market and were not valued by an independent third-party appraiser during the plan year.
The comment did, however, lead the Agencies to evaluate the instructions and conclude that a strict reading of Line 4g might lead filers to conclude that certain types of common plan investments are required to be reported on Line 4g, such as insurance investment contracts and mutual fund shares. The Agencies, therefore, are modifying the instructions to Line 4g to make clear that insurance investment contracts for which the plan received valuation information at least annually and mutual fund shares are not reportable on Line 4g.
A commenter asked for clarification as to whether the lines on Schedule H and Schedule I for “total fees paid” include indirect compensation. The commenter correctly noted that the proposed instructions for these Schedules did not expressly include indirect compensation and that the balance sheet structure of the financial statements on these Schedules was
9. Schedule R (Retirement Plan Information)
One commenter suggested simplifying line items on the Short Form 5500 and the Schedule R concerning minimum funding. The Agencies have determined that the minimum funding reporting requirements are necessary and consistent with the PPA's additional reporting requirements relating to plan funding and to ensuring transparency and accountability. The Agencies, however, have determined to make certain revisions to the minimum funding information on Schedule R and the Short Form 5500 to avoid any discrepancies in the data being reported. Therefore, the Short Form 5500 and Schedule R minimum funding questions are being revised to provide adequate information on minimum funding to the Agencies, participants, and other interested persons.
Twelve commenters addressed the PBGC's efforts to gather information on the allocation of assets by large defined benefit pension plans. (Two of these commenters reiterated their concerns when commenting on the Supplemental Notice.) Four commenters asserted that most of the information is already included as a part of the Schedule H and that collecting this data is unnecessary. Six commenters said it would be difficult or costly to obtain the requested asset allocation breakdowns for assets invested in commingled funds. Two asked that the effective date of the additional information be delayed. The commenters acknowledged that such information is required on the SEC Form 10-K. Two pointed out that the 10-K data are aggregated from all of the sponsor's defined benefit plans and do not include the detailed debt breakout requested in the proposal. Four noted that the data on the SEC Form 10-K may be as of a date that is different from the plan reporting date for the Form 5500 Annual Return/Report. Three also noted that non-publicly traded companies are not required to file the SEC Form 10-K and, therefore, do not necessarily collect this information. One suggested that the new funding requirements of the recently enacted PPA diminish the value of this information. One commenter supported the proposal to move the asset allocation information from Schedule B to Schedule R (as noted in the Supplemental Notice).
Two commenters noted that providing the Macaulay duration would be time consuming and costly. Four suggested that the Macaulay duration is not a good measure of risk and does not address the callability of some bonds. Others suggested that the effective duration is a more commonly used measure than the Macaulay duration. Three commented that the debt holdings of some plans are split among several different bond managers and providing a single duration measure for all of the plan's debt holdings could be difficult.
In an effort to address the comments citing the burden of complying with the data collection, the questions were modified to reduce the number of calculations. Specifically, instead of asking for the distribution by four categories (stocks, debt, real estate, and other) and then asking for a separate breakdown of the debt, the questions have been restructured to ask for data on five categories of assets (stocks, investment-grade debt, high-yield debt, real estate, and other) that should sum to 100 percent. Holdings of government bonds would be included in the appropriate debt group which should generally be investment-grade debt.
In response to comments on the appropriateness of reporting the average duration determined using the Macaulay measure, two changes have been made. First, ranges are provided so that, in most cases, an estimate will suffice (0-3 years, 3-6 years, 6-9 years, 9-12 years, 12-15 years, etc.). Guidance regarding how to determine the average duration when there are multiple bond portfolios will be included in the instructions to the 2008 Form 5500 Annual Return/Report. It is anticipated that the instructions will provide that the weighted average of the individual portfolio average durations (where the weights are the values of the bond portfolios) be reported for plans with several bond portfolios.
Second, any generally accepted measure of duration may be used (effective duration, modified duration, Macaulay duration, etc.). An item has been added to report the measurement basis that was used to determine the average duration.
As redesigned, the allocation of assets questions will provide the PBGC with important data necessary to enable it to monitor properly the plans it insures. The data will be particularly useful for the PBGC's Early Warning program, which is designed to identify plans whose risk to the PBGC is increasing. For many plans the PBGC is unable to derive this information from the current Schedule H data. Knowing not only the level of plan assets relative to its liabilities but also how well a plan's assets match these liabilities is integral information the PBGC needs to properly assess the risks and exposures the Agency faces.
The difficulty in obtaining asset allocation information for assets invested in commingled funds is appreciated, and, in fact, is the reason the PBGC needs to collect these data on the Form 5500 Annual Return/Report. For publicly traded companies, the allocation of these assets is reported on companies' Form 10-K. Even in cases where aggregated data are reported on the Form 10-K or where data are determined as of a different date, the disaggregated information should be accessible without undue burden. Also, most financial information is available on a daily basis and the incremental costs for obtaining this data for the valuation date should not be significant. The cost of obtaining the data may be somewhat higher for non-publicly traded companies that may need to institute new procedures to obtain this information; however, the PBGC's need for this data for plans of non-publicly traded companies is also great. The PBGC believes ample notice has been given to allow companies to make whatever data gathering arrangements are necessary because notification of these questions was given at least three years prior to the first date they would be due (July 31, 2009 for calendar year plans) and because similar information is already required to be provided on the Form 10-K.
The bond portfolio duration information will help the PBGC properly monitor the plans it insures in several ways. First, as an insurer, the PBGC needs to know not only what proportion of a plan's liabilities is covered by its assets, but also how well those assets immunize the liabilities. Second, it will assist the PBGC in its monitoring activities and indicate which plans are moving to more risky asset investments that could increase the PBGC's exposure or the likelihood that the PBGC will receive a claim from that plan. Third, it will inform the PBGC of how to negotiate better protections for the plan's participants should such negotiations become necessary. Finally, it would assist the PBGC's modeling
One commenter suggested that the strengthened funding rules under the PPA negate the need for the additional asset allocation information. The new funding rules do not guarantee that the plans that the PBGC insures will become and remain fully funded in the future. Even if they do become fully funded, the PBGC's risk is highly dependent on how well plans' assets immunize their liabilities. A decrease in the price of stocks generally or a decrease in interest rates can quickly move a plan from being fully-funded to being only 80 percent funded, or worse.
One comment was submitted about the PBGC's efforts to obtain data on major contributors to multiemployer pension plans. The commenter questioned how information should be reported in situations where a contributing employer has multiple contribution rates, contribution base units, or bargaining agreement expiration dates with respect to different groups of participants under the plan. In response to this comment, question 13 has been slightly modified. In this situation, in lieu of reporting this information directly on the form, plan administrators will check a box to indicate that the employer contributes under two or more collective bargaining agreements or at different rates for different classes of participants and include, as an attachment, a summary of the date each collective bargaining agreement expires and/or information about each contribution rate.
One commenter suggested that the definition of “participant” for this purpose needs to be clearly defined. Although no comments were submitted with respect to the question on the ratio of participants on whose behalf no employer had an obligation to make contributions, the wording on the Schedule R has been revised to conform more closely to the wording in section 503(a) of the PPA. Terms will be defined in the instructions for the Schedule R.
One commenter questioned whether the definition of “withdrew” is the definition contained in the Multiemployer Pension Plan Amendments Act of 1980, Pub. L. No. 96-364, 94 Stat. 1208, which includes special rules for plans in the construction, entertainment, and other industries.
A commenter who was focused particularly on the Short Form 5500 suggested that it would further streamline the filing process for small plans if the Agencies eliminated supplemental attachments for Line D of the Form 5500 Annual Return/Report and Line C of the Short Form 5500 regarding filing under extension or under the Delinquent Filer Voluntary Correction Program (DFVC Program). The Agencies agree that eliminating those supplemental attachments would facilitate electronic filing, especially for small plans. Accordingly, for those filing on extension or under the DFVC Program, filers would now simply check a box as to the type of extension (IRS Form 5558, Corporate tax extension, special extension) or the DFVC Program. A new space is being added to this line for filers using a special extension,
That commenter also suggested that the supplemental schedules should not be required to be attached if information on Schedule H, Line 4i (assets held for investment) and Line 4j (5% reportable transactions), are in the IQPA report. Past experience with the supplemental schedule for Line 4a strongly suggests that making this change could give rise to confusion among accountants regarding their obligations to render opinions on the supplemental schedules required to be part of the annual report.
Two commenters suggested that welfare plans have separate reporting forms and instructions. This comment appears to be based on the premise that the Form 5500 Annual Return/Report is primarily designed to collect information about the activity of retirement plans and that creating a separate form for welfare plans would be more appropriate than having the welfare plan fit itself into a retirement plan-oriented filing. As noted in the preamble to the proposal, the Department believes that generally retaining the current reporting requirements is important for disclosure purposes for both the Department and for participants and beneficiaries in the welfare plans that currently report. Rather than being designed for pension plans versus welfare plans, the Form 5500 Annual Return/Report is primarily focused on collecting financial information about funded plans and plans that use insurance products to provide benefits. The Department already exempts most small welfare plans from the requirement to file a Form 5500 Annual Return/Report and exempts most large welfare plans from the financial reporting and audit requirements in its regulations at 29 CFR 2520.104-20 and 2520.104-44. The structure of the Form 5500 Annual Return/Report was modified in 1999 further to remove pension related information from the welfare plan annual report by structuring the Form 5500 Annual Return/Report as a main Form 5500, which includes basic identifying information, and separate schedules that focus on particular subject matter or filing requirements. The Department also believes that considerations for having a separate form for welfare plans will be less significant in a system where all filing is electronic. Under any type of electronic system, we anticipate that filers would need to access the instructions relevant only to their type of plan, eliminating any potential confusion from determining in a unified form package which instructions are relevant to the filer.
The commenters also suggested that the Department reconsider the ERISA Advisory Council Working Group's recommendation to eliminate the audit requirement for large, funded welfare
A commenter noted that instructions to Forms 5500 and 5500-SF under the section entitled “How to File—Electronic Filing Requirement” contain the following statement: “Even though the Forms 5500 and 5500-SF must be filed electronically, the administrator must keep a copy of the Forms 5500 and 5500-SF, including schedules and attachments, with all required manual signatures on file as part of the plan's records * * *.” The commenter asked for confirmation that plan sponsors may satisfy the Department's record retention rule by maintaining an electronic version (as permitted under ERISA section 107) and, therefore, are not required to keep a paper signature copy of the filing. The Department notes that its electronic filing regulations require that plan administrators and direct filing entities maintain an original copy of the Form 5500 Annual Return/Report, with all required signatures, as part of their records.
Commenters also asked how manual signatures on schedules filed with the Form 5500 will be handled under the EFAST2 electronic filing system. Enrolled actuaries will continue to have the obligation to sign a copy of the plan's Schedule SB or MB (whichever is applicable) and an electronic copy of the manually signed schedule must be filed as part of the plan's electronic filing under the EFAST2 system. To meet this obligation, the plan or the enrolled actuary must use EFAST-approved software capable of generating a printed version of the Schedule SB or MB (whichever is applicable). The completed version of the schedule must be printed, manually signed by the enrolled actuary, and converted into an electronic image (such as a pdf document) of the schedule showing the manual signature, and that electronic image file must be attached to the Form 5500 Annual Return/Report e-filing. A signed copy of the schedule must also be kept on file as part of the plan's records pursuant to the above noted requirements in the Department's annual reporting regulations. It is expected that the Form 5500 Annual Returns/Reports filed by plans subject to the IQPA audit requirement will follow a similar procedure in attaching a copy of the signed IQPA report to the plan's electronically filed annual report.
One commenter noted that the Form 5500 signature section contains a declaration that the signatories have “examined this return/report, including accompanying schedules, statements and attachments, as well as the electronic version of this return/report,” and noted that it is unclear what action must be taken by the plan sponsor and plan administrator to satisfy the requirement to examine the electronic version. The declaration on the Form 5500, as well as on the Short Form 5500, continues to provide that the person signing the Form must examine a copy of the electronic version of the annual return/report. The Agencies expect that EFAST2 will be designed in a manner so that all required signatures will satisfy the applicable statutory and regulatory provisions.
The revisions to the annual return/report forms involve the following major categories of changes, along with other technical revisions and updates, to the current structure and content of the Form 5500 Annual Return/Report:
• Establishment of the Short Form 5500 as a new simplified report for certain small plans effective for 2009 plan year;
• Removal of the IRS-only schedules from the Form 5500 Annual Return/Report as a result of the move to a wholly electronic filing system effective for 2009 plan year;
• Elimination of the special limited financial reporting rules for Code section 403(b) plans effective for 2009 plan year;
• Revision of the Schedule C (Service Provider Information) to clarify the reporting requirements and improve the information plan officials receive regarding amounts being received by plan service providers effective for 2009 plan year;
• Replacement of Schedule B with Schedule SB and Schedule MB to reflect the changes in reporting and funding requirements for single and multiemployer defined benefit pension plans under the PPA effective for 2008 plan year;
• Modification of the Schedule R to add questions required by the PPA to gather information on pension plan funding and compliance with minimum funding requirements effective for 2008 plan year but filed as an attachment rather than as actual schedules. These modifications will be effective in standard format for 2009 plan year;
• Modification of the Schedule R to collect data PBGC needs to properly monitor the plans it insures effective for 2008 plan year but filed as an attachment rather than as an actual schedule. These modifications will be effective in standard format for 2009 plan year; and
• Miscellaneous changes to the schedules and instructions to improve and clarify reporting effective for 2009 plan year.
In addition to the description of the form changes contained in this Notice, the Agencies have included the following appendices: (1) Appendix A—a facsimile of the Short Form 5500; (2) Appendix B—Instructions to the Short Form 5500; (3) Appendix C—facsimiles of the Form 5500 Annual Return/Report, Schedule A, Schedule SB, Schedule MB, Schedule C, Schedule D, Schedule G, Schedule H, Schedule I, and Schedule R; and (4) Appendix D—the instructions for the 2009 Form 5500 Annual Return/Report.
The Agencies are adopting the new two page form—the Short Form 5500—to be filed by certain small plans (generally, plans with fewer than 100 participants) with secure and easy to value investment portfolios—as proposed, except that the instructions for the line item for “administrative expenses” has been modified slightly to make it consistent with parallel line items on Schedules H and I.
A pension or welfare plan will be eligible to file the Short Form 5500 if the plan: (1) Covers fewer than 100 participants or would be eligible to file as a small plan under the 80 to 120 rule in 29 CFR 2520.103-1(d); (2) is eligible for the small plan audit waiver under 29 CFR 2520.104-46 (but not by virtue of enhanced bonding); (3) holds no employer securities at any time during the plan year; (4) at all times during the plan year, has 100% of its assets in investments that have a readily determinable fair market value; and (5) is not a multiemployer plan. For this purpose, participant loans meeting the requirements of ERISA section 408(b)(1), whether or not they have been deemed distributed, and investment products issued by banks and licensed insurance companies that provide valuation information at least annually to the plan administrator will be treated as having a readily determinable fair market value.
Most Short Form 5500 filers will not be required to file any schedules, although defined benefit pension plans and money purchase plans currently amortizing funding waivers will be required to file Schedule SB or MB.
Small plans that are not eligible to file the Short Form 5500 will continue to be able to file simplified reports as under the current system. Specifically, small plan Form 5500 Annual Return/Report filers will file the Form 5500 and Schedules A, SB or MB, D, I, and R, where applicable. The conditions for the small pension plan audit waiver in 29 CFR 2520.104-46 remain unchanged. Small pension plans will still be able to claim the audit waiver even if they are not eligible to file the Short Form 5500. Conversely, small pension plans filing the Short Form 5500 will continue to be required to meet all applicable requirements for the audit waiver, including the enhanced Summary Annual Report (SAR) and other disclosure requirements of that regulation.
As described in detail in the July 2006 Proposal, in order to effectuate the electronic filing requirement that will be effective for the 2009 Form 5500 Annual Return/Report, the portions of the Form 5500 Annual Return/Report required to satisfy filing obligations imposed by the Code, but not required under ERISA, had to be removed because the Code and regulations thereunder do not permit the IRS to mandate electronic filing of the Form 5500 Annual Return/Report. Therefore, effective for the 2009 plan year (when mandatory electronic filing is implemented), the following form and schedules will not be filed with the Form 5500 Annual Return/Report to the Department, but will be filed to the IRS: Form 5500-EZ Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan and the Schedule SSA (Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits).
Code section 403(b) plans that are subject to Title I of ERISA now will be subject to the annual reporting rules that apply to other ERISA-covered pension plans, including eligibility for the Short Form 5500.
As proposed, a new check box is being adopted on the Schedule A to permit plans to identify situations in which the insurance company or other organization that provides some or all of the benefits under a plan has failed to provide Schedule A information. Space also is provided for the administrator to indicate the type of information that was not provided. As a separate Schedule A is required for each insurance contract, the identity of the insurance company or organization will be self-evident. This would give the Department more usable data on insurers that fail to satisfy their disclosure obligations under section 103(a)(2) of ERISA and the Department's regulations. A reminder is being added to the Schedule A instructions to advise plan administrators that they should contact the insurer to request the required information and to advise the insurer that the plan administrator intends to identify the insurer on the Schedule A as not having provided the information needed.
The Agencies have adopted their proposal to eliminate the existing
The Schedule SB is to be filed for all single-employer defined benefit plans (including multiple-employer defined benefit plans).
Schedule MB is to be filed for multiemployer defined benefit plans and for money purchase plans (including target benefit plans) that are currently amortizing funding waivers. Schedule MB is very similar to the existing Schedule B.
New items that have been added include (1) accrued liability determined using the unit credit cost method, (2) information about whether the plan is in endangered, seriously endangered, or critical status, and, if so, whether the plan is complying with the applicable requirements for its funding improvement or rehabilitation plan, and (3) information required by PPA section 503. Information that was applicable solely to single-employer plans has been eliminated.
As in the proposal, the Schedule C will consist of three parts. Part I of the Schedule C will require the identification of each person who received, directly or indirectly, $5,000 or more in total compensation (i.e., money or anything else of value) in connection with services rendered to the plan or their position with the plan during the plan year. Direct compensation would be reported on a separate line item from compensation received from sources other than the plan or plan sponsor in connection with the service provider's position with the plan or services provided to the plan. The final revisions also provide an alternative disclosure option for reporting certain eligible indirect compensation provided that certain disclosures are made to the plan administrator regarding the compensation and the party or parties paying and receiving the indirect compensation. With respect to such compensation for which those disclosures were not provided, and other indirect compensation received from sources other than the plan or plan sponsor, filer would report a total amount. They would also provide identifying information regarding the payor and the nature of compensation received by certain key service providers where the amount was $1,000 or more and where the amount was an estimate rather than an actual amount.
A new Part II for Schedule C provides a place for plan administrators to identify each fiduciary or service provider that failed or refused to provide the information necessary to complete Part I of the Schedule C.
The third part of the Schedule C (Part III) will be the current Part II of the Schedule C, used for reporting termination information on accountants and enrolled actuaries. The proposal would not alter these current requirements.
Plan administrators now will report on Schedule H or I, or the Short Form 5500, as appropriate, whether there has been a temporary suspension, limitation, or restriction lasting more than three consecutive business days of any ability of participants or beneficiaries to direct or diversify assets credited to their accounts, to obtain loans from the plan, or to obtain plan distributions. If there was a blackout, plan administrators will have to state if participants either were provided the required notice of this suspension period or one of the exceptions to providing the blackout notice applies.
As in the July 2006 Proposal, a compliance question that would require plan administrators to answer whether the plan has failed to pay any benefits when due during the plan year is added to the Schedule H and Schedule I, and is also included on the new Short Form 5500.
The disclosure requirements for direct compensation paid by small plans for administrative expenses, i.e., professional and administrative salary, fee, and commission payments, were expanded in the proposal and are modified here in response to comments suggesting that the requirements for Short Form 5500, Schedule I, and Schedule H filers be more uniform. As with the proposal, the Short Form 5500 and Schedule I have a separate line item for direct payments to professional and administrative service providers, which will promote better awareness among plan fiduciaries regarding these fee payments and will provide participants, beneficiaries, and government regulatory agencies with improved
As proposed, Schedule R has been modified for 2009 to include additional questions required by section 503 of the PPA and to collect information on how assets are invested. Certain ESOP questions previously on the Schedule E also have been moved to the Schedule R.
The new Part V collects PPA-required information on multiemployer defined benefit plans and additional information related to major contributing employers. Asset allocation questions for large defined benefit plans (1,000 or more participants) are included in Part VI. Such plans must provide a breakdown of plan assets by type of investment (stock, investment-grade debt, high-yield debt, real estate, and other). Information on the average duration of combined investment-grade and high-yield debt is also required. For this purpose, duration may be determined using any generally accepted methodology.
Schedule R has been modified, as proposed, to ask the following questions regarding the operations and investments of the ESOP: (1) Whether any unallocated employer securities or proceeds from the sale of unallocated securities were used to repay any exempt loan; (2) whether the ESOP holds any preferred stock, and if so, whether the ESOP has an exempt loan with the employer as lender that is part of a “back-to-back” loan—the repayment terms of the employer loan to the ESOP are substantially similar to the repayment terms of a loan to the employer from a commercial lender; and (3) whether the ESOP holds any stock that is not readily tradable on an established securities market.
The new PPA-related questions and the asset allocation questions on the 2009 Schedule R, but not the ESOP questions, will be required to be submitted as a non-standard attachment to the 2008 Schedule R under the original EFAST system.
The last category of revisions involves technical amendments to the Form 5500, individual schedules, and instructions to clarify and improve existing reporting requirements that either were set forth in the proposal or are being made in response to public comments.
A question asking for the number of contributing employers in a multiemployer plan is added to the Form 5500. The instructions for the funding and benefit checklists have been expanded to clarify that Code section 403(b) plans invested in annuity contracts should check “insurance” and plans using Code section 403(b)(7) custodial accounts should check “trust.” The Form 5500 includes a checklist of the various schedules that may be required to be attached. In addition to revising the checklist to eliminate the IRS-only Schedules, and replacing the Schedule B with the Schedules SB and MB, the Agencies have also kept the other proposed cosmetic changes to the presentation of the schedule checklist. Under the current filing requirements, plans must include on the Form 5500 all of the plan characteristics that apply to the plan from a list of codes included in the instructions. These “feature” codes allow the Agencies to identify and classify the universe of filers by their major characteristics. New plan feature codes for defined contribution pension plans with automatic enrollment features and default investment provisions have been added. The Agencies also have eliminated the feature codes for certain types of plans that are not subject to Title I of ERISA because they will not be filing the Form 5500 with EFAST under the proposed electronic filing system. The optional line for identifying the principal preparer of the Form 5500 is deleted.
The instructions continue to state that delinquent participant contributions reported on Schedule H, Line 4a, should be treated as part of the supplemental schedules for purposes of the required IQPA audit and opinion. The instructions separately also provide that, if the information contained on Schedule H, Line 4a, is not presented in accordance with the Department's regulatory requirements, the IQPA report must make the appropriate disclosures in accordance with Generally Accepted Auditing Standards (GAAS). The instructions to Schedule H, Line 4a, are modified to require delinquent participant contributions to be presented on a standardized supplemental schedule where delinquent participant contributions are identified on Line 4a and are expanded to include the guidance contained in the previously released “FAQs on Reporting Delinquent Participant Contributions on the Form 5500,” available on the Department's Web site at
In addition, as proposed, the Schedule H and I instructions for Line 4a now permit inclusion of delinquent forwarding of participant loan repayments on Line 4a of the Schedule H or Schedule I, and Line 10a of the Short Form 5500, provided that filers that choose to include such participant loan repayments on Line 4a use the same supplemental schedule and IQPA disclosure requirements for the loan repayments as for delinquent transmittals of participant contributions. At the suggestion of one commenter, a checkbox has been added to the new line 4a Schedule to identify whether loan repayments are included.
Schedule R currently contains questions regarding minimum required contributions for certain defined contribution plans. An additional question now asks whether the minimum funding amount reported will be met by the funding deadline and the minimum funding questions have been revised to avoid any discrepancies in the date being reported.
Various commenters submitted technical suggestions on how to further improve and clarify various portions of the proposals which focused principally on technical corrections and improvements in the instructions as opposed to changes on the forms. The Agencies have reviewed the comments and made various technical corrections/ clarifications in response to those comments.
As noted above, certain amendments to the annual reporting regulations under ERISA are necessary to accommodate some of the revisions to the forms. The Department is publishing separately today in the
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)), the July 2006 Proposal solicited comments on the information collections included in the proposed revision of the Form 5500 Annual Return/Report pursuant to Part 1 of Subtitle B of Title I and Title IV of ERISA and the Internal Revenue Code. The Department also submitted an information collection request (ICR) to OMB in accordance with 44 U.S.C. 3507(d), contemporaneously with publication of the July 2006 Proposal, for OMB's review of the Department's information collections previously approved under OMB Control No. 1210-0110.
In connection with the publication of this Notice, the Department and the PBGC submitted ICRs to OMB for its review and approval of the information collections contained in the Form 5500 Annual Return/Report, as herein revised, and the new Short Form 5500. OMB has approved these ICRs. The IRS has not submitted an ICR to OMB, but will do so in advance of release of the Form 5500 Annual Return/Report and the Short Form 5500 for public use as agreed with OMB. The public is advised that 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 Department intends to publish a notice announcing OMB's decision upon review of the Department's ICR.
A copy of the ICR for an Agency may be obtained by contacting the appropriate PRA addressee shown below or at www.RegInfo.gov. PRA Addressees: Department of Labor: Gerald B. Lindrew, Office of Policy and Research, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue, NW., Room N-5718, Washington, DC 20210. Telephone: (202) 693-8410; Fax: (202) 219-4745. Pension Benefit Guaranty Corporation: Disclosure Division of the Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street, NW., 11th Floor, Washington, DC 20005-4026. Telephone: (202) 326-4040 (TTY and TDD users may call the Federal relay service toll-free at 1-800-877-8339 and asked to be connected to (202) 326-4040). Fax: (202) 326-4042. Except as otherwise indicated, these are not toll-free numbers.
The following is a summary of the information collection and the Agencies' estimates of the burden it imposes for plan year 2007:
The Agencies' burden estimation methodology excludes certain activities from the calculation of “burden.” If the activity is performed for any reason other than compliance with the applicable federal tax administration system or the Title I annual reporting requirements, it is not counted as part of the paperwork burden. For example, most businesses or financial entities maintain, in the ordinary course of business, detailed accounts of assets and liabilities, and income and expenses for the purposes of operating the business or entity. These recordkeeping activities were not included in the calculation of burden because prudent business or financial entities collect and maintain such information for ordinary and customary business reasons unrelated to annual return/reporting under ERISA. This analysis accounts only for time necessary for gathering and processing information associated with the annual return reporting, including learning about changes in the reporting requirements.
Estimated time needed to complete the forms listed below reflects the combined requirements of the IRS, the Department, and the PBGC. The time needed by a particular plan will vary depending on individual circumstances.
The aggregate
The
• 1,800 hours and $1.6 million for plan year 2007,
• 2,000 hours and $1.8 million for plan year 2008, and
• 1,200 hours and $1.3 million for plan year 2009.
ERISA refers to the Employee Retirement Income Security Act of 1974, and Code references are to the Internal Revenue Code, unless otherwise noted.
Under the computerized ERISA Filing Acceptance System (EFAST), you must electronically file your 2009 Form 5500-SF. You may file your 2009 Form 5500-SF on-line, using EFAST's web-based filing system or you may file through an EFAST-approved vendor. For more information, see the instructions for Electronic Filing Requirement.
The Form 5500-SF, Short Form Annual Return/Report of Small Employee Benefit Plan (Form 5500-SF), is a simplified annual reporting form for use by certain small pension and welfare benefit plans. To be eligible, the plan generally must have fewer than 100 participants at the beginning of the plan year; it must be exempt from the requirement that the plan's books and records be audited by an independent qualified public accountant; it must have 100% of its assets invested in certain secure investments with a readily determinable fair value; it must hold no employer securities; and it must not be a multiemployer plan.
To reduce the possibility of correspondence and penalties, we remind filers that the Internal Revenue Service (IRS), Department of Labor (DOL), and Pension Benefit Guaranty Corporation (PBGC) have consolidated their return/report forms to minimize the filing burden for employee benefit plans. Administrators and sponsors of employee benefit plans generally will satisfy their IRS and DOL annual reporting requirements for the plan under ERISA sections 104 and 4065 and Code section 6058 by filing either the Form 5500, Form 5500-SF, or Form 5500-EZ, Annual Return of One-Participant (Owners and Their Spouses) Retirement Plan (Form 5500-EZ),. Defined contribution and defined benefit pension plans may be required to file additional information with the IRS regarding their compliance with tax laws.
The Form 5500-SF must be filed electronically.
ERISA and the Code provide for the assessment or imposition of penalties for not submitting the required information when due.
Annual reports filed under Title I of ERISA must be made available by plan administrators to plan participants and by the DOL to the public pursuant to ERISA sections 104 and 106.
The IRS Form 5500-EZ generally is used by one-participant plans (as defined below) that are not subject to the requirements of section 104(a) of ERISA to satisfy the annual reporting and filing obligations imposed by the Code. Certain one-participant plans who are eligible to file a Form 5500-EZ may file the Form 5500-SF to satisfy the filing obligations under the Code. One-participant plans that are eligible to file the Form 5500-SF electronically complete only certain questions on the Form 5500-SF. (
If you need help completing this form or have related questions, call the EFAST Help Line at [number to be provided] (toll free). The EFAST Help Line is available Monday through Friday from 8 a.m. to 8 p.m., Eastern Time.
You can access the EFAST Web Site 24 hours a day, 7 days a week at
• View forms and related instructions.
• Get information regarding EFAST, including approved software vendors.
• See answers to frequently asked questions about the Form 5500-SF, the Form 5500 and its Schedules, and EFAST.
• Access the main EBSA and DOL Web Sites for news, regulations, and publications.
You can access the IRS Web Site 24 hours a day, 7 days a week at
• View forms, instructions, and publications.
• See answers to frequently asked tax questions.
• Search publications on-line by topic or keyword.
• Send comments or request help by e-mail.
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You can order related forms and IRS publications by calling 1-800-TAX-FORM (1-800-829-3676). You can order EBSA publications by calling 1-866-444-3272. In addition, most IRS forms and publications are available at your local IRS office.
All pension benefit plans and welfare benefit plans covered by ERISA must annually file a Form 5500 or Form 5500-SF unless they are eligible for a filing exemption. (Code section 6058 and ERISA sections 104 and 4065). An annual return/report must be filed even if the plan is not “tax qualified,” benefits no longer accrue, contributions were not made during this plan year, or contributions are no longer made. Pension benefit plans required to file include both defined benefit plans and defined contribution plans. Profit
The DOL has issued regulations under which some pension plans and many welfare plans with fewer than 100 participants are exempt from filing an annual return/report. Do not file a Form 5500-SF for an employee benefit plan that is any of the following:
1. A welfare plan that covers fewer than 100 participants as of the beginning of the plan year and is unfunded, fully insured, or a combination of insured and unfunded. For this purpose:
a. An unfunded welfare benefit plan has its benefits paid as needed directly from the general assets of the employer or the employee organization that sponsors the plan.
Plans which are NOT unfunded include those plans that received employee (or former employee) contributions during the plan year and/or used a trust or separately maintained fund (including a Code section 501(c)(9) trust) to hold plan assets or act as a conduit for the transfer of plan assets during the plan year.
b. A fully insured welfare benefit plan has its benefits provided exclusively through insurance contracts or policies, the premiums of which must be paid directly to the insurance carrier by the employer or employee organization from its general assets or partly from its general assets and partly from contributions by its employees or members (which the employer or organization forwards within 3 months of receipt). The insurance contracts or policies discussed above must be issued by an insurance company or similar organization (such as Blue Cross, Blue Shield or a health maintenance organization) that is qualified to do business in any state.
c. A combination unfunded/insured welfare plan has its benefits provided partially as an unfunded plan and partially as a fully insured plan. An example of such a plan is a welfare plan that provides medical benefits as in a above and life insurance benefits as in b above.
A “voluntary employees' beneficiary association” as used in Code section 501(c)(9) (“VEBA”) should not be confused with the employee organization or employer that establishes and/or maintains (i.e., sponsors) the welfare benefit plan.
2. An unfunded pension benefit plan or an unfunded or insured welfare benefit plan: (a) whose benefits go only to a select group of management or highly compensated employees, and (b) which meets the terms of 29 CFR 2520.104-23 (including the requirement that a registration statement be timely filed with DOL) or 29 CFR 2520.104-24.
3. Plans maintained only to comply with workers' compensation, unemployment compensation, or disability insurance laws.
4. An unfunded excess benefit plan.
5. A welfare benefit plan maintained outside the United States primarily for persons substantially all of whom are nonresident aliens.
6. A pension benefit plan maintained outside the United States primarily for the benefit of persons substantially all of whom are non-resident aliens.
7. An annuity or custodial account arrangement under Code section 403(b)(1) or (7) not established or maintained by an employer as described in DOL Regulation 29 CFR 2510.3-2(f).
8. A simplified employee pension (SEP) described in Code section 408(k) that conforms to the alternative method of compliance described in 29 CFR 2520.104-48 or 29 CFR 104-49. A SEP is a pension plan that meets certain minimum qualifications regarding eligibility and employer contributions.
9. A Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) that involves SIMPLE IRAs under Code section 408(p).
10. A church welfare plan under ERISA section 3(33).
11. A church pension plan if the pension plan did not elect coverage under Code section 410(d).
12. An unfunded dues financed pension benefit plan that meets the alternative method of compliance provided by 29 CFR 2520.104-27.
13. An individual retirement account or annuity not considered a pension plan under 29 CFR 2510.3-2(d).
14. A governmental plan.
15. A welfare benefit plan that participates in a group insurance arrangement that files a return/report Form 5500 on its behalf. A group insurance arrangement generally is an arrangement that provides benefits to the employees of two or more unaffiliated employers (not in connection with a multiemployer plan or a collectively bargained multiple-employer plan), fully insures one or more welfare plans of each participating employer, uses a trust (or other entity such as a trade association) as the holder of the insurance contracts and uses a trust as the conduit for payment of premiums to the insurance company. For further details,
16. An apprenticeship or training plan meeting all of the conditions specified in 29 CFR 2520.104-22.
17. A One-Participant (Owners and Their Spouses) Retirement Plan (generally referred to as a One-Participant Plan) that has elected to file a Form 5500-EZ or is exempt from filing the Form 5500-EZ. A one-participant plan is: (1) A plan that covers only an individual or an individual and his or her spouse who wholly own a trade or business, whether incorporated or unincorporated; or (2) a plan for a partnership that covers only the partners or the partners and the partners' spouses.
18. An unfunded dues financed pension benefit plan that meets the alternative method of compliance provided by 29 CFR 2520.104-27.
For more information on plans that are exempt from filing an annual return/report,
If your plan is required to file an annual return/report, you may file the Form 5500-SF instead of the Form 5500 only if you meet all of the eligibility conditions listed below.
1. The plan (a) covered fewer than 100 participants at the beginning of plan year 2009, or (b) under 29 CFR 2520.103-1(d) was eligible to and filed as a small plan for plan year 2008 and did not cover more than 120 participants at the beginning of plan year 2009 (
TIP: If a Code section 403(b) plan would have been eligible to file as a small plan under 29 CFR 2520.103-1(d) in 2008 (i.e., the plan was eligible to file in the previous year under the small plans requirements and has a participant count of less than 121 at the beginning of the 2009 plan year), then it can rely on 29 CFR 2520.103-1(d) to file as a small plan in 2009.
2. The plan does not hold any employer securities at any time during the plan year;
3. At all times during the plan year, the plan is 100% invested in certain secure, easy to value assets such as mutual fund shares, investment contracts with insurance companies and banks valued at least annually, publicly traded securities held by a registered broker dealer, cash and cash equivalents, and plan loans to participants (
4. The plan is eligible for the waiver of the annual examination and report of an independent qualified public accountant (IQPA) under 29 CFR 2520.104-46 (but not by reason of enhanced bonding), which requirement includes, among others, giving certain disclosures and supporting documents to participants and beneficiaries regarding the plan's investments (
5. The plan is not a multiemployer plan.
Employee stock ownership plans (ESOPs) and Direct Filing Entities (DFEs) may not file the Form 5500-SF.
TIP: Section III of Schedule D must be completed by DFEs for all participating plans even those plans filing the Form 5500-SF.
One-participant plans should follow the “Specific Instructions for One-Participant Plans” in lieu of the instructions 1-5 above.
CAUTION: One-participant plans that are ESOPs cannot file the Form 5500-SF electronically. These plans must file the paper Form 5500-EZ with the IRS.
Plans required to file an annual return/report that meet all of the conditions for filing the Form 5500-SF may complete and file the Form 5500-SF in accordance with its instructions. Single-employer Defined Benefit pension plans using the Form 5500-SF must also file the Schedule SB (Form 5500), Single-Employer Defined Benefit Plan Actuarial Information (Schedule SB). Money Purchase plans amortizing a waiver using the Form 5500-SF must also file the Schedule MB (Form 5500), Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information (Schedule MB).
File the 2009 Form 5500-SF for plan years that began in 2009. The form, and any required schedules and attachments, must be filed by the last day of the 7th calendar month after the end of the plan year (not to exceed 12 months in length) that began in 2009.
If the filing due date falls on a Saturday, Sunday, or Federal holiday, the return may be filed on the next day that is not a Saturday, Sunday, or Federal holiday.
If filing under an extension of time based on the filing of an IRS Form 5558, Application For Extension Of Time To File Certain Employee Plan Returns (Form 5558), check the appropriate box on the Form 5500-SF, Part I, item C. A one-time extension of time to file the Form 5500-SF (up to 2
An automatic extension of time to file Form 5500 until the due date of the Federal income tax return of the employer will be granted if all of the following conditions are met: (1) The plan year and the employer's tax year are the same; (2) the employer has been granted an extension of time to file its Federal tax return to a date later than the normal due date for filing the Form 5500; and (3) a copy of the application for extension of time to file the Federal income tax return is maintained with the filer's records. An extension of time granted by using this automatic extension procedure CANNOT be extended further by filing a Form 5558, nor can it be extended beyond a total of 9
An extension of time to file the Form 5500-SF Return/Report described in this section does not operate as an extension of time to file the PBGC Form 1.
The IRS, DOL, and PBGC may announce special extensions of time under certain circumstances, such as extensions for presidentially declared disasters or for service in, or in support of, the Armed Forces of the United States in a combat zone.
The DFVC Program facilitates voluntary compliance by plan administrators who are delinquent in filing annual return/report forms under Title I of ERISA by permitting administrators to pay reduced civil penalties for voluntarily complying with their DOL annual reporting obligations. If the Form 5500-SF is being filed under the DFVC Program, check the appropriate box on Form 5500-SF.
Generally, only defined benefit pension plans need to get approval for a change in plan year. (
If a change in plan year for a pension or a welfare plan creates a short plan year, file the form and applicable schedules by the last day of the 7th month after the short plan year ends. Fill in the short plan year beginning and ending dates in the space provided and check the appropriate box in Part I, Line B of the Form 5500-SF. For purposes of this return/report, the short plan year ends on the date of the change in accounting period or upon the complete distribution of assets of the plan. Also see the instructions for Final Return/Report to determine if “the final return/report” in Line B should be checked.
Plan administrators and plan sponsors must provide complete and accurate information and must otherwise comply fully with the filing requirements. ERISA and the Code provide for the DOL and the IRS, respectively, to assess or impose penalties for not giving complete information and for not filing statements and returns/reports. Certain penalties are administrative (i.e., they may be imposed or assessed in an administrative proceeding by one of the governmental agencies delegated to
Listed below are various penalties under ERISA and the Code that may be assessed or imposed for not meeting the annual return/report filing requirements. Generally, whether the penalty is assessed under ERISA or the Code, or both, depends upon the agency for which the information is required to be filed. One or more of the following administrative penalties may be assessed or imposed in the event of incomplete filings or filings received after the due date unless it is determined that your explanation for failure to file properly is for reasonable cause:
1. A penalty of up to $1,100 a day for each day a plan administrator fails or refuses to file a complete report.
2. A penalty of $25 a day (up to $15,000) for not filing returns for certain plans of deferred compensation, trusts, and annuities, and bond purchase plans by the due date(s).
3. A penalty of $1,000 for not filing an actuarial statement.
1. Any individual who willfully violates any provision of Part 1 of Title I of ERISA shall be fined not more than $100,000 or imprisoned not more than 10 years, or both.
2. A penalty up to $10,000, five (5) years imprisonment, or both, may be imposed for making any false statement or representation of fact, knowing it to be false, or for knowingly concealing or not disclosing any fact required by ERISA.
Under the computerized ERISA Filing Acceptance System (EFAST), you must file your 2009 Form 5500-SF electronically. You may file your 2009 Form 5500-SF on-line, using EFAST's web-based filing system, or you may file through an EFAST-approved vendor. Detailed information on electronic filing is available at (insert web address). For telephone assistance, call the EFAST Help Line at [number to be provided]. The EFAST Help Line is available Monday through Friday from 8 a.m. to 8 p.m., Eastern Time.
CAUTION: Annual reports filed under Title I of ERISA must be made available by plan administrators to plan participants and by the DOL to the public pursuant to ERISA sections 104 and 106. Even though the Form 5500-SF must be filed electronically, the administrator must keep a copy of the Form 5500-SF, including schedules and attachments, with all required manual signatures on file as part of the plan's records and must make a paper copy available on request to participants, beneficiaries, and the DOL as required by section 104 of ERISA and 29 CFR 2520.103-1.
Answer all questions with respect to the plan year unless otherwise explicitly stated in the instructions or on the form itself. Therefore, responses usually apply to the year entered at the top of the first page of the form.
Your entries will be screened. Your entries must satisfy this screening in order to be filed. Once filed, your form may be subject to further detailed review, and your filing may be rejected based upon this further review. To reduce the possibility of correspondence and penalties:
• Complete all lines on the Form 5500-SF unless otherwise specified. Also complete or electronically attach, as required, any applicable schedules and attachments.
• Do not enter “N/A” or “Not Applicable” on the Form 5500-SF or Schedules SB/MB unless specifically permitted. “Yes” or “No” questions on the forms and schedules cannot be left blank, but must be answered either “Yes” or “No,” and not both.
The Form 5500-SF, Schedules SB/ MB, and any attachments are open to public inspection, and the contents are public information subject to publication on the Internet. Do not enter social security numbers in response to questions asking for an employer identification number (EIN). Because of privacy concerns, the inclusion of a social security number on the Form 5500-SF or on a schedule or attachment that is open to public inspection may result in the rejection of the filing.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web site at
The Form 5500-SF Annual Return/Report and any applicable schedules must be signed and dated. The administrator is required under ERISA to maintain a copy of the annual report with all required signatures, as part of the plan's records, even though the return/report is filed electronically.
Electronic signatures on annual returns/reports filed under EFAST2 are affected by the applicable statutory and regulatory requirements. Information on those requirements will be made available for electronic filing under EFAST2.
A one-participant plan is: (1) A pension benefit plan that covers only an individual or an individual and his or her spouse who wholly own a trade or business, whether incorporated or unincorporated; or (2) a pension benefit plan for a partnership that covers only the partners or the partners and the partners' spouses. One-participant plans may be eligible to file an abbreviated version of the Form 5500-SF electronically or the paper Form 5500-EZ with the IRS.
One-participant plan filers that meet the following conditions are eligible to file an abbreviated Form 5500-SF electronically:
1. The plan is a one-participant plan.
2. The plan meets the minimum coverage requirements of section 410(b) without being combined with any other plan you may have that covers other employees of your business.
3. The plan does not provide benefits for anyone except you, or you and your spouse, or one or more partners and their spouses.
4. The plan does not hold any employer securities.
If you do not meet all the conditions listed above, you must file either the complete Form 5500-SF or the Form 5500-EZ. If you do not meet the fourth condition, you are not eligible to file the Form 5500-SF and must file the complete Form 5500-EZ.
One-participant plans complete only the following questions on the Form 5500-SF: Part I items A, B and C, Part II lines 1a-5a, Part III lines 7a-c, 8a, Part IV line 9a, Part V line 10g, Part VI lines 11-12e.
A Form 5500-SF may be filed for one-participant plans that are either defined contribution plans (which include profit-sharing and money purchase pension plans, but not an ESOP or stock bonus plan) or defined benefit plans.
Actuaries of one-participant plans that are defined benefit plans subject to the minimum funding standards for this plan year must complete Schedule SB and forward the completed Schedule SB to the person responsible for filing the Form 5500-SF. The completed Schedule SB is subject to the
If you are filing a paper form, you must file the Form 5500-EZ with the IRS (address to be added). You may order the paper Form 5500-EZ by calling 1-800-TAX-FORM (1-800-829-3676).
If you are filing an amendment for a one-participant plan that filed a Form 5500-SF electronically, you must submit the amendment using the Form 5500-SF electronically as well. Similarly, if you are filing an amendment for a one-participant plan that previously filed on a paper Form 5500-EZ, you must submit the amendment using the paper Form 5500-EZ with the IRS.
CAUTION: Multiemployer plans cannot use the Form 5500-SF to satisfy their annual reporting obligations. They must file the Form 5500. For these purposes, a plan is a multiemployer plan if: (a) More than one employer is required to contribute; (b) the plan is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer; and (c) an election under Code section 414(f)(5) and ERISA section 3(37)(E) has not been made. A plan that made a proper election under ERISA section 3(37)(G) and Code section 414(f)(6) on or before Aug. 17, 2007, is also a multiemployer plan.
File an amended return/report to correct errors and/or omissions in a previously filed annual return/report for the 2009 plan year. The amended Form 5500-SF and any amended schedules must conform to the requirements in these instructions. If you need to file an amended return/report to correct errors and or omissions in a previously filed annual return/report for the 2009 plan year AND you are eligible to file the Form 5500-SF, you may use the Form 5500-SF even if the original filing was a Form 5500. If you determine that you were not eligible to file the Form 5500-SF, your amended return/report must be the Form 5500.
A final return/report should be filed for the plan year (12 months or less) that ends when all plan assets were legally transferred to the control of another plan.
If the plan was terminated but all plan assets were not distributed, a return/report must be filed for each year the plan has assets. The return/report must be filed by the plan administrator, if designated, or by the person or persons who actually control the plan's assets/property.
A welfare plan cannot file a final return/report if the plan is still liable to pay benefits for claims that were incurred prior to the termination date, but not yet paid.
• You filed for an extension of time to file this form with the IRS using a completed Form 5558, Application for Extension of Time To File Certain Employee Plan Returns (maintain a copy of the Form 5558 with the filer's records).
• You are filing using the automatic extension of time to file the Form 5500 Return/Report until the due date of the Federal income tax return of the employer (maintain a copy of the employer's extension of time to file the income tax return with the filer's records).
• You are filing using a special extension of time to file the Form 5500 Return/Report that has been announced by the IRS, DOL, and PBGC. If you checked that you are using a special extension of time, enter a description of the extension of time in the space provided.
Start at 001 for plans providing pension benefits. Start at 501 for welfare plans. Do not use 888 or 999.
Once you use a plan number, continue to use it for that plan on all future filings with the IRS, DOL, and PBGC. Do not use it for any other plan, even if the first plan is terminated.
In the case of a multiple-employer plan, if an association or similar entity is not the sponsor, enter the name of a participating employer as sponsor. A plan of a controlled group of corporations should enter the name of one of the sponsoring members. In either case, the same name must be used in all subsequent filings of the Form 5500 Return/Report for the multiple-employer plan or controlled group (see instructions to line 4 concerning change in sponsorship).
Employers who do not have an EIN must apply for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
A multiple-employer plan or plan of a controlled group of corporations should use the EIN of the sponsor identified in line 2a. The EIN must be used in all subsequent filings of the Form 5500-SF (or any subsequent Form 5500 in a year where the plan is not eligible to file the Form 5500-SF) for these plans. (
EINs for funds (trusts or custodial accounts) associated with plans are generally not required to be furnished on the Form 5500-SF. The IRS, however, will issue EINs for such funds for other reporting purposes. EINs may be obtained by filing Form SS-4 as explained above. Plan sponsors should use the trust EIN when opening a bank account or conducting other transactions for a trust.
Plan administrator for this purpose means:
• The person or group of persons specified as the administrator by the instrument under which the plan is operated;
• The plan sponsor/employer if an administrator is not so designated; or
• Any other person prescribed by regulations if an administrator is not designated and a plan sponsor cannot be identified.
Employees of the plan sponsor who perform administrative functions for the plan are generally not the plan administrator unless specifically designated in the plan document. If an employee of the plan sponsor is designated as the plan administrator, that employee must obtain an EIN.
CAUTION: Failure to indicate on line 4 that a plan was previously identified by a different EIN or PN could result in correspondence from the DOL and the IRS.
The description of “participant” in the instructions below is only for purposes of these lines.
An individual becomes a participant covered under an employee welfare benefit plan on the earliest of: the date designated by the plan as the date on which the individual begins participation in the plan; the date on which the individual becomes eligible under the plan for a benefit subject only to occurrence of the contingency for which the benefit is provided; or the date on which the individual makes a contribution to the plan, whether voluntary or mandatory.
TIP: Before counting the number of participants, especially in a welfare plan, it is important to determine whether the plan sponsor has established one or more plans for Form 5500/Form 5500-SF reporting purposes. As a matter of plan design, plan sponsors can offer benefits through various structures and combinations. For example a plan sponsor could create (i) one plan providing major medical benefits, dental benefits, and vision
The fact that you have separate insurance policies for each different welfare benefit does not necessarily mean that you have separate plans. Some plan sponsors use a “wrap” document to incorporate various benefits and insurance policies into one comprehensive plan. In addition, whether a benefit arrangement is deemed to be a single plan may be different for purposes other than Form 5500-SF reporting. For example, special rules may apply for purposes of HIPAA, COBRA, and Internal Revenue Code compliance. If you need help determining whether you have a single welfare benefit plan for Form 5500-SF reporting purposes, you should consult a qualified benefits consultant or legal counsel.
For pension benefit plans, “alternate payees” entitled to benefits under a qualified domestic relations order (QDRO) are not to be counted as participants for this line.
For pension benefit plans, “participant” for this line means any individual who is included in one of the categories below:
1. Active participants, i.e., any individuals who are currently in employment covered by a plan and who are earning or retaining credited service under a plan. This includes any individuals who are eligible to elect to have the employer make payments into a Code section 401(k) qualified cash or deferred arrangement. Active participants also include any nonvested individuals who are earning or retaining credited service under a plan. This does not include (a) nonvested former employees who have incurred the break in service period specified in the plan or (b) former employees who have received a “cash-out” distribution or deemed distribution of their entire nonforfeitable accrued benefit.
2. Retired or separated participants receiving benefits, i.e., individuals who are retired or separated from employment covered by the plan and who are receiving benefits under the plan. This does not include any individual to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the individual is entitled under the plan.
3. Other retired or separated participants entitled to future benefits, i.e., any individuals who are retired or separated from employment covered by the plan and who are entitled to begin receiving benefits under the plan in the future. This does not include any individual to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the individual is entitled under the plan.
4. Deceased individuals who had one or more beneficiaries who are receiving or are entitled to receive benefits under the plan. This does not include any individual to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the beneficiaries of that individual are entitled under the plan.
One-participant plans skip to Part III.
For purposes of this line, “eligible plan assets” are assets that have a readily determinable fair market value for purposes of this annual reporting requirement as described in 29 CFR 2520.103-1(c)(2)(ii)(C), are not employer securities, and are held or issued by one of the following regulated financial institutions: a bank or similar financial institution as defined in 29 CFR 2550.408b-4(c) (for example, banks, trust companies, savings and loan associations, domestic building and loan associations, and credit unions); an insurance company qualified to do business under the laws of a state; organizations registered as broker-dealers under the Securities Exchange Act of 1934; investment companies registered under the Investment Company Act of 1940; or any other organization authorized to act as a trustee for individual retirement accounts under Code section 408. Examples of assets that would qualify as eligible plan assets for this annual reporting purpose are: mutual fund shares; investment contracts with insurance companies or banks that provide the plan with valuation information at least annually; publicly traded stock held by a registered broker dealer; and cash and cash equivalents held by a bank. Participant loans meeting the requirements of ERISA section 408(b)(1) are also “eligible plan assets” for this purpose whether or not they have been deemed distributed.
Welfare plans that cover fewer than 100 participants at the beginning of the plan year are exempt from the annual audit requirement. A pension plan is exempt from the annual audit requirement if it covered fewer than 100 participants at the beginning of the plan year or is eligible to file as a small plan under the 80 to 120 rule (described above) and meets the following three requirements for the audit waiver under 29 CFR 2520.104-46: (1) As of the end of the preceding plan year at least 95% of a small pension plan's assets were “qualifying plan assets;” (2) the plan includes the required audit waiver disclosure in the Summary Annual Report (SAR), or, in the case of plans subject to section 101(f) of the Act, the annual funding notice (described in § 2520.101-5), furnished to participants and beneficiaries (
“Qualifying plan assets” for the purpose of determining whether the plan is exempt from the requirement to be audited annually by an IQPA include: shares issued by an investment company registered under the Investment Company Act of 1940 (
CAUTION: In order to be able to file the Form 5500-SF, a small plan must meet the audit waiver conditions by virtue of having 95% or more of its assets as qualifying plan assets in accordance with 29 CFR 2520.104-46(b)(1)(i)(A)(1). If the small plan satisfies the conditions of the audit waiver by virtue of having enhanced fidelity bond under 29 CFR 2520.104-46(b)(1)(i)(A)(2), the plan does not satisfy the conditions for filing the Form 5500-SF and must file the Form 5500, along with the appropriate schedules and attachments. Also, many “qualifying plan assets” for audit waiver purposes will also be “eligible plan assets” as described in the instructions for line 6a, but the definitions are not the same. For example, real estate held by a bank as trustee for a plan could be a qualifying plan asset for purposes of the small pension plan audit waiver conditions but it would not be a “eligible plan asset” for purposes of the plan being eligible to file the Form 5500-SF because real estate would not have a readily determinable fair market value as described in described in 29 CFR 2520.103-1(c)(2)(ii)(C).
The cash, modified cash, or accrual basis may be used for recognition of transactions in Parts I and II, as long as you use one method consistently. Round off all amounts reported on the Form 5500-SF to the nearest dollar. Any other amounts are subject to rejection. Check all subtotals and totals carefully.
Current value means fair market value where available. Otherwise, it means the fair value as determined in good faith under the terms of the plan by a trustee or a named fiduciary, assuming an orderly liquidation at the time of the determination.
Amounts reported on line 7a, 7b, and 7c for the beginning of the plan year must be the same as reported for the end of the plan year for the corresponding lines on the return/report for the preceding plan year. That means that if the Form 5500 was filed for plan year 2008, the amounts reported on the Form 5500-SF line 7a, column (a), 7b, column (a), and 7c, column (a) should correspond to the amounts entered in line 1a, column (b), 1b, column (b), and 1c, column (b) of the 2008 Schedule I (Form 5500) or the amounts entered in line 1f, column (b), 1k, column (b), and 1l, column (b) of the 2008 Schedule H (Form 5500), whichever schedule was filed.
Enter the total amount of plan assets at the end of the plan year in column (b). Do not include in column (b) a participant loan that has been deemed distributed during the plan year under the provisions of Code section 72(p) and Treasury Regulation section 1.72(p)-1, if both the following circumstances apply: (1) Under the plan, the participant loan is treated as a direct investment solely of the participant's individual account; and (2) as of the end of the plan year, the participant is not continuing repayment under the loan.
If the deemed distributed participant loan is included in column (a) and both of these circumstances apply, include the value of the loan as a deemed distribution on line 8e. However, if either of these two circumstances does not apply, the current value of the participant loan (including interest accruing thereon after the deemed distribution) should be included in column (b) without regard to the occurrence of a deemed distribution.
After a participant loan that has been deemed distributed is included in the amount reported on line 8e, it is no longer to be reported as an asset on line 7a unless, in a later year, the participant resumes repayment under the loan. However, such a loan (including interest accruing thereon after the deemed distribution) that has not been repaid is still considered outstanding for purposes of applying Code section 72(p)(2)(A) to determine the maximum amount of subsequent loans. Also, the deemed distribution is not treated as an actual distribution for other purposes, such as the qualification requirements of Code section 401, including, for example, the determination of top-heavy status under Code section 416 and the vesting requirements of Treasury Regulation section 1.411(a)-7(d)(5).
The entry on line 7a, column (b) (plan assets at end of year) must include the current value of any participant loan included as a deemed distribution in the amount reported for any earlier year if, during the plan year, the participant resumes repayment under the loan. In addition, the amount to be entered on line 8e must be reduced by the amount of the participant loan reported as a deemed distribution for the earlier year.
1. Benefit claims that have been processed and approved for payment by the plan but have not been paid (including all incurred but not reported welfare benefit claims);
2. Accounts payable obligations owed by the plan that were incurred in the normal operations of the plan but have not been paid; and
3. Other liabilities such as acquisition indebtedness and any other amount owed by the plan.
1. Interest on investments (including money market accounts, sweep accounts, etc.)
2. Dividends. (Accrual basis plans should include dividends declared for all stock held by the plan even if the dividends have not been received as of the end of the plan year.)
3. Net gain or loss from the sale of assets.
4. Other income such as unrealized appreciation (depreciation) in plan assets.
For line 8e, also include in the total amount a participant loan included in line 7a, column (a) that has been deemed distributed during the plan year under the provisions of Code section 72(p) and Treasury Regulation section 1.72(p)-1 only if both of the following circumstances apply:
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If either of these circumstances does not apply, a deemed distribution of a participant loan should not be included in the total on line 8e. Instead, the current value of the participant loan (including interest accruing thereon after the deemed distribution) should be included on lines 7a, column (b) (plan assets—end of year), and 10j (participant loans—end of year), without regard to the occurrence of a deemed distribution.
The amount to be reported on line 8e must be reduced if, during the plan year, a participant resumes repayment under a participant loan reported as a deemed distribution on line 2g of Schedule H or Schedule I of a prior Form 5500 or line 8e of a prior Form 5500-SF for any earlier year. The amount of the required reduction is the amount of the participant loan that was reported as a deemed distribution on such line for any earlier year. If entering a negative number, enter a minus sign “−” to the left of the number. The current value of the participant loan must then be included in line 7a, column (b) (plan assets—end of year).
Although certain participant loans deemed distributed are to be reported on line 8e, and are not to be reported on the Form 5500-SF or on the Schedule H or Schedule I of the Form 5500 as an asset thereafter (unless the participant resumes repayment under the loan in a later year), they are still considered outstanding loans and are not treated as actual distributions for certain purposes.
1. Salaries to employees of the plan;
2. Fees and expenses for accounting, actuarial, legal, investment management, investment advice, and securities brokerage services;
3. Contract administrator fees; and
4. Fees and expenses for individual plan trustees, including reimbursement for travel, seminars, and meeting expenses.
A distribution of all or part of an individual participant's account balance that is reportable on Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., should not be included on line 8j but must be included in benefit payments reported on Line 8d. Do not submit IRS Form 1099-R with the Form 5500-SF.
One-participant plans should only complete question 10g.
An employer holding participant contributions commingled with its general assets after the earliest date on which such contributions can reasonably be segregated from the employer's general assets will have engaged in a prohibited use of plan assets (
Participant loan repayments paid to and/or withheld by an employer for purposes of transmittal to the plan that were not transmitted to the plan in a timely fashion must be reported either on line 4a in accordance with the reporting requirements that apply to delinquent participant contributions or on line 4d.
Applicants that satisfy both the DOL Voluntary Fiduciary Correction Program (VFCP) and the conditions of Prohibited Transaction Exemption (PTE) 2002-51 are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also relieved from the requirement to file the IRS Form 5330 with the IRS. For more information on how to apply under the VFCP, the specific transactions covered (which transactions include delinquent participant contributions to pension and welfare plans), and acceptable methods for correcting violations,
Non-exempt transactions with a party-in-interest include any direct or indirect:
A. Sale or exchange, or lease, of any property between the plan and a party-in-interest.
B. Lending of money or other extension of credit between the plan and a party-in-interest.
C. Furnishing of goods, services, or facilities between the plan and a party-in-interest.
D. Transfer to, or use by or for the benefit of, a party-in-interest, of any income or assets of the plan.
E. Acquisition, on behalf of the plan, of any employer security or employer real property in violation of ERISA section 407(a).
F. Dealing with the assets of the plan for a fiduciary's own interest or own account.
G. Acting in a fiduciary's individual or any other capacity in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.
H. Receipt of any consideration for his or her own personal account by a party-in-interest who is a fiduciary from any party dealing with the plan in connection with a transaction involving the income or assets of the plan.
A. Any fiduciary (including, but not limited to, any administrator, officer, trustee or custodian), counsel, or employee of the plan;
B. A person providing services to the plan;
C. An employer, any of whose employees are covered by the plan;
D. An employee organization, any of whose members are covered by the plan;
E. An owner, direct or indirect, of 50% or more of: (1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation; (2) the capital interest or the profits interest of a partnership; or (3) the beneficial interest of a trust or unincorporated enterprise which is an employer or an employee organization described in C or D;
F. A relative of any individual described in A, B, C, or E;
G. A corporation, partnership, or trust or estate of which (or in which) 50% or more of: (1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of such corporation, (2) the capital interest or profits interest of such partnership, or (3) the beneficial interest of such trust or estate, is owned directly or indirectly, or held by persons described in A, B, C, D, or E;
H. An employee, officer, director (or an individual having powers or responsibilities similar to those of officers or directors), or a 10% or more shareholder directly or indirectly, of a person described in B, C, D, E, or G, or of the employee benefit plan; or
I. A 10% or more (directly or indirectly in capital or profits) partner or joint venturer of a person described in B, C, D, E, or G.
TIP: Applicants that satisfy the VFCP requirements and the conditions of PTE 2002-51 (
Plans are permitted under certain conditions to purchase fiduciary liability insurance with plan assets. These fiduciary liability insurance policies are not written specifically to protect the plan from losses due to dishonest acts and are not fidelity bonds reported in line 10c.
CAUTION: Willful failure to report is a criminal offense.
For purposes of line 10e, commissions and fees include sales or base commissions and all other monetary and non-monetary forms of compensation where the broker's, agent's, or other person's eligibility for the payment or the amount of the payment is based, in whole or in part, on the value (e.g., policy amounts, premiums) of contracts or policies (or classes thereof) placed with or retained by an ERISA plan, including, for example, persistency and profitability bonuses. The amount (or pro rata share of the total) of such commissions or fees attributable to the contract or policy placed with or retained by the plan must be reported. Insurers must provide plan administrators with a proportionate allocation of commissions and fees attributable to each contract. Any reasonable method of allocating commissions and fees to policies or contracts is acceptable, provided the method is disclosed to the plan administrator. A reasonable allocation method could allocate fees and commissions based on a calendar year calculation even if the plan year or policy year was not a calendar year. For additional information on these reporting requirements, see ERISA Advisory Opinion 2005-02A, available on the Internet at
Where (1) benefits under a plan have been purchased from and guaranteed by a licensed insurance company, insurance service, or other similar organization, (2) the payments by the insurer to affiliates or third parties for performing administrative activities
Reporting is not required for compensation paid by the insurer to third parties for record keeping and claims processing services provided to the insurer as part of the insurer's administration of the insurance policy. Reporting also is not required for compensation paid by the insurer to a “general agent” or “manager” for that general agent's or manager's management of an agency or performance of administrative functions for the insurer. For this purpose, (1) a “general agent” or “manager” does not include brokers representing insureds, and (2) payments would not be treated as paid for managing an agency or performance of administrative functions where the recipient's eligibility for the payment or the amount of the payment is dependent or based on the value (e.g., policy amounts, premiums) of contracts or policies (or classes thereof) placed with or retained by ERISA plan(s).
Reporting is not required for occasional gifts or meals of insubstantial value which are tax deductible for federal income tax purposes by the person providing the gift or meal and would not be taxable income to the recipient. For this exemption to be available, the gift or gratuity must be both occasional and insubstantial. For this exemption to apply, the gift must be valued at less than $50, the aggregate value of gifts from one source in a calendar year must be less than $100, but gifts with a value of less than $10 do not need to be counted toward the $100 annual limit. If the $100 aggregate value limit is exceeded, then the aggregate value of all the gifts will be reportable. Gifts from multiple employees of one service provider should be treated as originating from a single source when calculating whether the $100 threshold applies. On the other hand, in applying the threshold to an occasional gift received from one source by multiple employees of a single service provider, the amount received by each employee should be separately determined in applying the $50 and $100 thresholds. For example, if six employees of a broker attend an business conference put on by an insurer designed to educate and explain the insurer's products for employee benefit plans, and the insurer provides, at no cost to the attendees, refreshments valued at $20 per individual, the gratuities would not be reportable on this line even though the total cost of the refreshments for all the employees would be $120. These thresholds are for purposes of line 10a reporting. Filers are cautioned that the payment or receipt of gifts and gratuities of any amount by plan fiduciaries may violate ERISA and give rise to civil liabilities and criminal penalties.
Complete Part VI only if the plan is subject to the minimum funding requirements of Code section 412 or ERISA section 302.
All qualified defined benefit and defined contribution plans are subject to the minimum funding requirements of Code section 412 unless they are described in the exceptions listed under section 412(e)(2). These exceptions include profit-sharing or stock bonus plans, insurance contract plans described in section 412(e)(3), and certain plans to which no employer contributions are made.
Nonqualified employee pension benefit plans are subject to the minimum funding requirements of ERISA section 302 unless specifically exempted under ERISA sections 4(a) or 301(a).
The employer or plan administrator of a single-employer or multiple-employer defined benefit plan that is subject to the minimum funding requirements must file the Schedule SB as an attachment to the Form 5500-SF. Schedule MB is filed for multiemployer defined benefit plans and certain money purchase defined contribution plans (whether they are single or multiemployer plans). However, Schedule MB is not required to be filed for a money purchase defined contribution plan that is subject to the minimum funding requirements unless the plan is currently amortizing a waiver of the minimum funding requirements.
CAUTION: A Form 5500 must be filed for each year the plan has assets, and, for a welfare benefit plan, if the plan is still liable to pay benefits for claims incurred before the termination date, but not yet paid. See 29 CFR 2520.104b-2(g)(2)(ii).
IRS Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business, must be filed at least 30 days before any plan merger or consolidation or any transfer of plan assets or liabilities to another plan. There is a penalty for not filing Form 5310-A on time. In addition, a transfer of benefit liabilities involving a plan covered by PBGC insurance may be reportable to the PBGC.
Check “No” for a welfare benefit plan that is still liable to pay benefits for claims that were incurred before the termination date, but not yet paid.
Do not use a social security number in lieu of an EIN or include an attachment that contains visible social security numbers. The Form 5500-SF is open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Form 5500-SF may result in the rejection of the filing.
A distribution of all or part of an individual participant's account balance that is reportable on Form 1099-R should not be included on line 13c. Do not submit Form 1099-R with the Form 5500.
CAUTION: IRS Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business, must be filed at least 30 days before any plan merger or consolidation or any transfer of plan assets or liabilities to another plan. There is a penalty for not filing Form 5310-A on time. In addition, a transfer of benefit liabilities involving a plan covered by PBGC insurance may be reportable to the PBGC.
Compliance with the Employee Retirement Income Security Act (ERISA) begins with knowing the rules. Plan administrators and other plan officials can use this checklist as a quick diagnostic tool for assessing a plan's compliance with certain important ERISA rules; it is not a complete description of all ERISA's rules and it is not a substitute for a comprehensive compliance review. Use of this checklist is voluntary, and it is not to be filed with your Form 5500-SF.
If you answer “No” to any of the questions below, you should review your plan's operations because you may not be in full compliance with ERISA's requirements.
1. Have you provided plan participants with a summary plan description, summaries of any material modifications of the plan, and annual summary financial reports?
2. Do you maintain copies of plan documents at the principal office of the plan administrator for examination by participants and beneficiaries?
3. Do you respond to written participant inquiries for copies of plan documents and information within 30 days?
4. Does your plan include written procedures for making benefit claims and appealing denied claims, and are you complying with those procedures?
5. Is your plan covered by a fidelity bond against losses due to fraud or dishonesty?
6. Are the plan's investments diversified so as to minimize the risk of large losses?
7. If the plan permits participants to select the investments in their plan accounts, has the plan provided them with enough information to make informed decisions?
8. Has a plan official determined that the investments are prudent and solely in the interest of the plan's participants and beneficiaries, and evaluated the risks associated with plan investments before making the investments?
9. Did the employer or other plan sponsor send participant contributions to the plan on a timely basis?
10. Did the plan pay participant benefits on time and in the correct amounts?
11. Did the plan give participants and beneficiaries 30 days advance notice before imposing a “blackout period” of at least three consecutive business days during which participants or beneficiaries of a 401(k) or other individual account pension plan were unable to change their plan investments, obtain loans from the plan, or obtain distributions from the plan?
If you answer “Yes” to any of the questions below, you should review your plan's operations because you may not be in full compliance with ERISA's requirements.
1. Has the plan engaged in any financial transactions with persons related to the plan or any plan official? (For example, has the plan made a loan to or participated in an investment with the employer?)
2. Has the plan official used the assets of the plan for his/her own interest?
3. Have plan assets been used to pay expenses that were not authorized in the plan document, were not necessary to the proper administration of the plan, or were more than reasonable in amount?
If you need help answering these questions or want additional guidance about ERISA requirements, a plan official should contact the U.S. Department of Labor Employee Benefits Security Administration office in your region or consult with the plan's legal counsel or professional employee benefit advisor.
The list of business codes published with the Form 5500 instructions will be included in the Short Form instructions and will be updated to reflect the North American Industry Classification System Update for 2007.
We ask for the information on this form to carry out the law as specified in ERISA and in Code sections 6058(a), and 6059(a). You are required to give us the information. We need it to determine whether the plan is operating according to the law.
You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number. Books and records relating to a form or its instructions must be retained as long as their contents may become material in the administration of the Internal Revenue Code or are required to be maintained pursuant to Title I or IV of ERISA. The Form 5500-SF returns/reports are open to public inspection and are subject to publication on the Internet.
The time needed to complete and file the form 5500-SF and the Schedules SB/MB reflects the combined requirements of the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation. These times will vary depending on individual circumstances. The estimated average times are:
If you have comments concerning the accuracy of these time estimates or suggestions for making these forms simpler, we would be happy to hear from you. You can write to the Internal Revenue Service, Tax Products Coordinating Committee, SE:W:CAR:MP:T:T:SP, 1111 Constitution Ave., NW., IR-6526, Washington, DC 20224. DO NOT send any of these forms or schedules to this address. The forms and schedules must be filed electronically.
[Insert photo pages of Form 5500 and Schedules A, SB, MB, C, D, G, H, I, and R, numbered on back of pages as 197-1 through 197-36]
ERISA refers to the Employee Retirement Income Security Act of 1974, and Code references are to the Internal Revenue Code, unless otherwise noted.
Under the computerized ERISA Filing Acceptance System (EFAST), you must electronically file your 2009 Form 5500. You may file your 2009 Form 5500 on-line, using EFAST's web-based filing system or you may file through an EFAST-approved vendor. For more information, see the instructions for Electronic Filing Requirement.
The Form 5500, Annual Return/Report of Employee Benefit Plan, including all required schedules and attachments (Form 5500 Return/Report) is used to report information concerning employee benefit plans and Direct Filing Entities (DFEs). Any administrator or sponsor of an employee benefit plan subject to ERISA must file information about each benefit plan every year (Code section 6058 and ERISA sections 104 and 4065). Some plans participate in certain trusts, accounts, and other investment arrangements that file a Form 5500 Return/Report as DFEs. See Who Must File and When to File.
The Internal Revenue Service (IRS), Department of Labor (DOL), and Pension Benefit Guarantee Corporation (PBGC) have consolidated certain returns and report forms to reduce the filing burden for plan administrators and employers. Employers and administrators who comply with the instructions for the Form 5500 Return/Report generally will satisfy the annual reporting requirements for the IRS and DOL.
Plans covered by the PBGC have special additional requirements, including filing Annual Premium Payment (PBGC Form 1) and reporting certain transactions directly with that agency. See PBGC's Premium Payment Instructions (Form 1 Package).
Each Form 5500 Return/Report must accurately reflect the characteristics and operations of the plan or arrangement being reported. The requirements for completing the Form 5500 Return/Report will vary according to the type of plan or arrangement. The section What to File summarizes what information must be reported for different types of plans and arrangements. The Quick Reference Chart for Form 5500, Schedules and Attachments gives a brief guide to the annual return/report requirements for the 2009 Form 5500.
The Form 5500 Return/Report must be filed electronically. Your entries will be initially screened. Your entries must satisfy this screening in order to be filed. Once filed, your form may be subject to further detailed review and your filing may be rejected based on this further review.
ERISA and the Code provide for the assessment or imposition of penalties for not submitting the required information when due. See Penalties.
Annual reports filed under Title I of ERISA must be made available by plan administrators to plan participants and by the DOL to the public pursuant to ERISA sections 104 and 106.
If you need help completing this form or have related questions, call the EFAST Help Line at [number to be provided] (toll free). The EFAST Help
You can access the EFAST Web site 24 hours a day, 7 days a week at
• View forms and related instructions.
• Get information regarding EFAST, including approved software vendors.
• See answers to frequently asked questions about the Form 5500-SF, the Form 5500 and its Schedules, and EFAST.
• Access the main EBSA and DOL Web sites for news, regulations, and publications.
You can access the IRS Web site 24 hours a day, 7 days a week at
• View forms, instructions, and publications.
• See answers to frequently asked tax questions.
• Search publications online by topic or keyword.
• Send comments or request help by e-mail.
• Sign up to receive local and national tax news by e-mail.
You can order related forms and IRS publications by calling 1-800-TAX-FORM (1-800-829-3676). You can order EBSA publications by calling 1-866-444-3272. In addition, most IRS forms and publications are available at your local IRS office.
A return/report must be filed every year for every pension benefit plan, welfare benefit plan, and for every entity that files as a DFE as specified below (Code section 6058 and ERISA sections 104 and 4065).
TIP: Plans that have fewer than 100 participants at the beginning of the plan year, are exempt from the requirement that the plan's books and records be audited by an independent qualified public accountant (IQPA) (but not by reason of enhanced bonding), have 100% of their assets invested in certain secure investments with a readily determinable fair market value, hold no employer securities, and are not multiemployer plans, generally are eligible to file the Form 5500-SF, Short Form Annual Return/Report of Small Employer Benefit Plan (Form 5500-SF), in lieu of the Form 5500 Return/Report. For more information on who may file the Form 5500-SF, see
All pension benefit plans covered by ERISA must file an annual return/report except as provided in this section. This return/report must be filed whether or not the plan is “tax qualified,” benefits no longer accrue, contributions were not made this plan year, or contributions are no longer made. Pension benefit plans required to file include both defined benefit plans and defined contribution plans.
The following are among the pension benefit plans for which a return/report must be filed:
1. Profit-sharing, stock bonus, money purchase, 401(k) plans, etc.
2. Annuity arrangements under Code section 403(b)(1).
3. Custodial accounts established under Code section 403(b)(7) for regulated investment company stock.
4. Individual retirement accounts (IRAs) established by an employer under Code section 408(c).
5. Church pension plans electing coverage under Code section 410(d).
6. Pension benefit plans that cover residents of Puerto Rico, the U.S. Virgin Islands, Guam, Wake Island, or American Samoa. This includes a plan that elects to have the provisions of section 1022(i)(2) of ERISA apply.
7. Plans that satisfy the Actual Deferral Percentage requirements of Code section 401(k)(3)(A)(ii) by adopting the “SIMPLE” provisions of section 401(k)(11).
See What to File for more information about what must be completed for pension plans.
1. An unfunded excess benefit plan. See ERISA section 4(b)(5).
2. An annuity or custodial account arrangement under Code section 403(b)(1) or (7) not established or maintained by an employer as described in DOL Regulation 29 CFR 2510.3-2(f).
3. A Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) that involves SIMPLE IRAs under Code section 408(p).
4. A simplified employee pension plan (SEP) or a salary reduction SEP described in Code section 408(k) that conforms to the alternative method of compliance in 29 CFR 2520.104-48 or 2520.104-49.
5. A church plan not electing coverage under Code section 410(d).
6. A pension plan that is maintained outside the United States primarily for the benefit of persons substantially all of whom are nonresident aliens.
7. An unfunded pension plan for a select group of management or highly compensated employees that meets the requirements of 29 CFR 2520.104-23, including timely filing of a registration statement with the DOL.
8. An unfunded dues financed pension benefit plan that meets the alternative method of compliance provided by 29 CFR 2520.104-27.
9. An individual retirement account or annuity not considered a pension plan under 29 CFR 2510.3-2(d).
10. A governmental plan.
11. One-Participant (Owners and Their Spouses) Retirement Plan (generally referred to as a One-Participant Plan). However, One-Participant Plans must file either the Form 5500-EZ with the IRS or, if eligible, may file the Form 5500-SF
All welfare benefit plans covered by ERISA are required to file a Form 5500 except as provided in this section. Welfare benefit plans provide benefits such as medical, dental, life insurance, apprenticeship and training, scholarship funds, severance pay, disability, etc. See What to File for more information.
Reminder: The administrator of an employee welfare benefit plan that provides benefits wholly or partially through a Multiple-employer Welfare Arrangement (MEWA), as defined in ERISA section 3(40), must file a Form 5500, unless otherwise exempt.
Do Not File a Form 5500 for a Welfare Benefit Plan That Is Any of the Following:
1. A welfare benefit plan that covered fewer than 100 participants as of the beginning of the plan year and is unfunded, fully insured, or a combination of insured and unfunded.
To determine whether the plan covers fewer than 100 participants for purposes of these filing exemptions for insured and unfunded welfare plans, see instructions for lines 6 and 7 on counting participants in a welfare plan. See also 29 CFR 2510.3-3(d).
a. An unfunded welfare benefit plan has its benefits paid as needed directly from the general assets of the employer or employee organization that sponsors the plan.
Plans that are NOT unfunded include those plans that received employee (or former employee) contributions during the plan year and/or used a trust or separately maintained fund (including a Code section 501(c)(9) trust) to hold plan assets or act as a conduit for the transfer of plan assets during the year. A welfare plan with employee contributions that is associated with a cafeteria plan under Code section 125 may be treated for annual reporting purposes as an unfunded welfare plan if it meets the requirements of DOL Technical Release 92-01, 57 FR 23272 (June 2, 1992) and 58 FR 45359 (Aug. 27, 1993). The mere receipt of COBRA contributions or other after-tax participant contributions would not by itself affect the availability of the relief provided for cafeteria plans that otherwise meet the requirements of DOL Technical Release 92-01. See 61 FR 41220, 41222-23 (Aug. 7, 1996).
b. A fully insured welfare benefit plan has its benefits provided exclusively through insurance contracts or policies, the premiums of which must be paid directly to the insurance carrier by the employer or employee organization from its general assets or partly from its general assets and partly from contributions by its employees or members (which the employer or employee organization forwards within three (3) months of receipt). The insurance contracts or policies discussed above must be issued by an insurance company or similar organization (such as Blue Cross, Blue Shield or a health maintenance organization) that is qualified to do business in any state.
c. A combination unfunded/insured welfare plan has its benefits provided partially as an unfunded plan and partially as a fully insured plan. An example of such a plan is a welfare benefit plan that provides medical benefits as in a above and life insurance benefits as in b above. See 29 CFR 2520.104-20.
A “voluntary employees' beneficiary association,” as used in Code section 501(c)(9) (“VEBA”), should not be confused with the employer or employee organization that sponsors the plan. See ERISA section 3(4).
2. A welfare benefit plan maintained outside the United States primarily for persons substantially all of whom are nonresident aliens.
3. A governmental plan.
4. An unfunded or insured welfare plan for a select group of management or highly compensated employees, which meets the requirements of 29 CFR 2520.104-24.
5. An employee benefit plan maintained only to comply with workers' compensation, unemployment compensation, or disability insurance laws.
6. A welfare benefit plan that participates in a group insurance arrangement that files a Form 5500 Return/Report on behalf of the welfare benefit plan as specified in 29 CFR 2520.103-2. See 29 CFR 2520.104-43.
7. An apprenticeship or training plan meeting all of the conditions specified in 29 CFR 2520.104-22.
8. An unfunded dues financed welfare benefit plan exempted by 29 CFR 2520.104-26.
9. A church plan under ERISA section 3(33).
10. A welfare benefit plan solely for (1) an individual or an individual and his or her spouse, who wholly owns a trade or business, whether incorporated or unincorporated, or (2) partners or the partners and the partners' spouses in a partnership. See 29 CFR 2510.3-3(b).
Some plans participate in certain trust, accounts, and other investment arrangements that file the Form 5500 Return/Report as a DFE in accordance with the Direct Filing Entity (DFE) Filing Requirements. A Form 5500 Return/Report must be filed for a master trust investment account (MTIA). A Form 5500 is not required, but may be filed for a common/collective trust (CCT), pooled separate account (PSA), 103-12 investment entity (103-12 IE), or group insurance arrangement (GIA). Plans that participate in CCTs, PSAs, 103-12 IEs, or GIAs that file as DFEs, however, generally are eligible for certain annual reporting relief. For reporting purposes, a CCT, PSA, 103-12 IE, or GIA is not considered a DFE unless a Form 5500 Return/Report is filed for it in accordance with the Direct Filing Entity (DFE) Filing Requirements.
Special requirements also apply to Schedules D and H attached to the Form 5500 filed by plans participating in MTIAs, CCTs, PSAs, and 103-12 IEs. See the instructions for these schedules.
(1) If the filing due date falls on a Saturday, Sunday, or Federal holiday, the return/report may be filed on the next day that is not a Saturday, Sunday, or Federal holiday. (2) If the 2010 Form 5500 is not available before the plan or DFE filing due date, you may use the 2009 Form 5500 and enter the 2009 fiscal year beginning and ending dates in the space provided.
A plan or GIA may obtain a one-time extension of time to file a Form 5500 Return/Report (up to 2
File Form 5558 with the Department of the Treasury, Internal Revenue Service Center, Ogden, UT 84201-0027.
An automatic extension of time to file the Form 5500 Return/Report until the due date of the Federal income tax return of the employer will be granted if all of the following conditions are met: (1) The plan year and the employer's tax year are the same; (2) the employer has been granted an extension of time to file its Federal income tax return to a date later than the normal due date for filing the Form 5500 Return/Report; and (3) a copy of the application for extension of time to file the Federal income tax return is maintained with the filer's records. An extension of time granted by using this automatic extension procedure CANNOT be extended further by filing a Form 5558, nor can it be extended beyond a total of 9
An extension of time to file the Form 5500 Return/Report described in this section does not operate as an extension of time to file a Form 5500 Return/Report for a DFE (other than a GIA) or the PBGC Form 1.
The IRS, DOL, and PBGC may announce special extensions of time under certain circumstances, such as extensions for Presidentially-declared disasters or for service in, or in support of, the Armed Forces of the United States in a combat zone. See
The DFVC Program facilitates voluntary compliance by plan administrators who are delinquent in filing annual reports under Title I of ERISA by permitting administrators to pay reduced civil penalties for voluntarily complying with their DOL annual reporting obligations. If the Form 5500 Return/Report is being filed under the DFVC Program, check the appropriate item in Form 5500, Part I, line D to indicate that the Form 5500 Return/Report is being filed under the DFVC Program.
See
Under the computerized ERISA Filing Acceptance System (EFAST), you must file your 2009 Form 5500 Return/Report electronically. You may file on-line, using EFAST's web-based filing system, or you may file through an EFAST-approved vendor. Detailed information on electronic filing is available at (insert web address). For telephone assistance, call the EFAST Help Line at [number to be provided]. The EFAST Help Line is available Monday through Friday from 8:00 a.m. to 8:00 p.m., Eastern Time.
CAUTION: Annual reports filed under Title I of ERISA must be made available by plan administrators to plan participants and by DOL to the public pursuant to ERISA sections 104 and 106. Even though the Form 5500 Return/Report must be filed electronically, the administrator must keep a copy of the Form 5500, including schedules and attachments, with all required manual signatures on file as part of the plan's records and must make a paper copy available on request to participants, beneficiaries, and the DOL as required by section 104 of ERISA and 29 CFR 2520.103-1.
Answer all questions with respect to the plan year unless otherwise explicitly stated in the instructions or on the form itself. Therefore, responses usually apply to the 2009 plan year.
Your entries will be initially screened. Your entries must satisfy this screening in order to be filed. Once filed, your form may be subject to further detailed review, and your filing may be rejected based upon this further review. To reduce the possibility of correspondence and penalties:
• Complete all lines on the Form 5500 unless otherwise specified. Also complete or electronically attach, as required, applicable schedules and attachments.
• Do not enter “N/A” or “Not Applicable” on the Form 5500 Return/Report unless specifically permitted. “Yes” or “No” questions on the forms and schedules cannot be left blank, but must be answered either “Yes” or “No,” and not both.
The Form 5500, Schedules, and attachments are open to public inspection, and the contents are public information subject to publication on the Internet. Do not enter social security numbers in response to questions asking for an employer identification number (EIN). Because of privacy concerns, the inclusion of a social security number on the Form 5500 or on a schedule or attachment may result in the rejection of the filing. EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web site at
File an amended return/report to correct errors and/or omissions in a previously filed and accepted annual return/report for the 2009 plan year. The amended Form 5500 and any amended schedules and/or attachments must conform to the requirements in these Instructions. See the DOL Web site at
If all assets under the plan (including insurance/annuity contracts) have been distributed to the participants and beneficiaries or legally transferred to the control of another plan, and when all
Examples:
A final return/report should be filed for the plan year (12 months or less) that ends when all plan assets were legally transferred to the control of another plan.
If the plan was terminated, but all plan assets were not distributed, a return/report must be filed for each year the plan has assets. The return/report must be filed by the plan administrator, if designated, or by the person or persons who actually control the plan's assets/property.
A welfare plan cannot file a final return/report if the plan is still liable to pay benefits for claims that were incurred prior to the termination date, but not yet paid. See 29 CFR 2520.104b-2(g)(2)(ii).
The Form 5500 Annual Return/Report and any applicable schedules must be signed and dated. The administrator is required under ERISA to maintain a copy of the annual report with all required signatures, as part of the plan's records, even though the return/report is filed electronically.
Electronic signatures on annual returns/reports filed under EFAST2 are affected by the applicable statutory and regulatory requirements. Information on those requirements will be made available for electronic filing under EFAST2.
Generally, only defined benefit pension plans need to get approval for a change in plan year. (
Plan administrators and plan sponsors must provide complete and accurate information and must otherwise comply fully with the filing requirements. ERISA and the Code provide for the DOL and IRS, respectively, to assess or impose penalties for not giving complete information and for not filing statements and returns/reports. Certain penalties are administrative (i.e., they may be imposed or assessed by one of the governmental agencies delegated to administer the collection of the annual return/report data). Others require a legal conviction.
Listed below are various penalties under ERISA and the Code that may be assessed or imposed for not meeting the annual return/report filing requirements. Generally whether the penalty is assessed under ERISA or the Code, or both, depends upon the agency for which the information is required to be filed. One or more of the following administrative penalties may be assessed or imposed in the event of incomplete filings or filings received after the due date unless it is determined that your explanation for failure to file properly is for reasonable cause:
1. A penalty of up to $1,100 a day for each day a plan administrator fails or refuses to file a complete report. See ERISA section 502(c)(2) and 29 CFR 2560.502c-2.
2. A penalty of $25 a day (up to $15,000) for not filing returns for certain plans of deferred compensation, trusts and annuities, and bond purchase plans by the due date(s). See Code section 6652(e).
3. A penalty of $1,000 for not filing an actuarial statement. See Code section 6692.
1. Any individual who willfully violates any provision of Part 1 of Title I of ERISA shall be fined not more than $100,000 or imprisoned not more than 10 years, or both. See section 501 of ERISA.
2. A penalty up to $10,000, five (5) years imprisonment, or both, may be imposed for making any false statement or representation of fact, knowing it to be false, or for knowingly concealing or not disclosing any fact required by ERISA. See section 1027, Title 18, U.S. Code, as amended by section 111 of ERISA.
The Form 5500 Return/Report reporting requirements vary depending on whether the Form 5500 is being filed for a “large plan,” a “small plan,” and/or a DFE, and on the particular type of plan or DFE involved (e.g., welfare plan, pension plan, common/collective trust (CCT), pooled separate account (PSA), master trust investment account (MTIA), 103-12 IE, or group insurance arrangement (GIA)).
The Instructions below provide detailed information about each of the Form 5500 Return/Report schedules and which plans and DFEs are required to file them. First, the schedules are grouped by type: (1) Pension Schedules and (2) General Schedules. Each schedule is listed separately with a description of the subject matter covered by the schedule and the plans and DFEs that are required to file the schedule.
Filing requirements are also listed by type of filer: (1) Pension Benefit Plan Filing Requirements; (2) Welfare Benefit Plan Filing Requirements; and (3) DFE Filing Requirements. For each filer type there is a separate list of the schedules that must be filed with the Form 5500 (including where applicable, separate lists for large plan filers, small plan filers, and different types of DFEs).
The filing requirements are summarized in a “Quick Reference Chart for Form 5500, Schedules, and Attachments.”
Generally, a return/report filed for a pension benefit plan or welfare benefit plan that covered fewer than 100 participants as of the beginning of the plan year should be completed following the requirements below for a “small plan,” and a return/report filed for a plan that covered 100 or more participants as of the beginning the plan year should be completed following the requirements below for a “large plan.”
Use the number of participants required to be entered in line 5 of the Form 5500 to determine whether a plan is a “small plan” or a “large plan.”
(1)
(2)
Do not file Schedule A for Administrative Services Only (ASO) contracts. Do not file Schedule A if a Schedule A is filed for the contract as part of the Form 5500 Return/Report filed directly by an MTIA or 103-12 IE.
CAUTION: An unfunded, fully insured, or combination unfunded/ insured welfare plan with 100 or more participants exempt under 29 CFR 2520.104-44 from completing Schedule H must still complete Schedule G, Part III, to report nonexempt transactions.
Pension benefit plan filers must complete the Form 5500, including the signature block, and unless otherwise specified, attach the following schedules and information:
The following schedules (including any additional information required by the instructions to the schedules) must be attached to a Form 5500 filed for a small pension plan that is neither exempt from filing nor is filing the Form 5500-SF.
1. Schedule A (as many as needed), to report insurance, annuity, and investment contracts held by the plan.
2. Schedule SB or MB, to report actuarial information, if applicable.
3. Schedule D, Part I, to list any CCTs, PSAs, MTIAs, and 103-12 IEs in which the plan invested at any time during the plan year.
4. Schedule I, to report small plan financial information, unless exempt.
5. Schedule R, to report retirement plan information, if applicable.
CAUTION: If Schedule I, line 4k, is checked “No,” you must attached the report of the independent qualified public accountant (IQPA) or a statement that the plan is eligible and elects to defer attaching the IQPA's opinion pursuant to 29 CFR 2520.104-50 in connection with a short plan year of seven months or less.
The following schedules (including any additional information required by the instructions to the schedules) must
1. Schedule A (as many as needed), to report insurance, annuity, and investment contracts held by the plan.
2. Schedule SB or MB, to report actuarial information, if applicable.
3. Schedule C, if applicable, to report information on service providers and, if applicable, any terminated accountants or enrolled actuaries.
4. Schedule D, Part I, to list any CCTs, PSAs, MTIAs, and 103-12 IEs in which the plan invested at any time during the plan year.
5. Schedule G, to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the plan year, leases in default or classified as uncollectible, and nonexempt transaction, i.e., file Schedule G if Schedule H (Form 5500) lines 4b, 4c, and/or 4d are checked “Yes.”
6. Schedule H, to report large plan financial information, unless exempt.
7. Schedule R, to report retirement plan information, if applicable.
CAUTION: You must attach the report of the independent qualified public accountant (IQPA) identified on Schedule H, Line 3c, unless line 3d(2) is checked.
The pension benefit plans or arrangements described below are eligible for limited annual reporting:
1. IRA Plans: A pension plan using individual retirement accounts or annuities (as described in Code section 408) as the sole funding vehicle for providing pension benefits need complete only Form 5500, Part I and Part II, lines 1 through 5, and 8 (enter pension feature code 2N).
2. Fully Insured Pension Plan: A pension benefit plan providing benefits exclusively through an insurance contract or contracts that are fully guaranteed and that meet all of the conditions of 29 CFR 2520.104-44(b)(2) during the entire plan year must complete all the requirements listed under this Pension Benefit Plan Filing Requirements section, except that such a plan is exempt from attaching Schedule H, Schedule I, and an independent qualified public accountant's (IQPA's) opinion, and from the requirement to engage an IQPA.
A pension benefit plan that has insurance contracts of the type described in 29 CFR 2520.104-44 as well as other assets must complete all requirements for a pension benefit plan, except that the value of the plan's allocated contracts (see below) should not be reported in Part I of Schedule H or I. All other assets should be reported on Schedule H or Schedule I, and any other required schedules. If Schedule H is filed, an IQPA's report must be attached in accordance with the Schedule H instructions.
For purposes of the annual return/report and the alternative method of compliance set forth in 29 CFR 2520.104-44, a contract is considered to be “allocated” only if the insurance company or organization that issued the contract unconditionally guarantees, upon receipt of the required premium or consideration, to provide a retirement benefit of a specified amount. This amount must be provided to each participant without adjustment for fluctuations in the market value of the underlying assets of the company or organization, and each participant must have a legal right to such benefits, which is legally enforceable directly against the insurance company or organization. For example, deposit administration, immediate participation guarantee, and guaranteed investment contracts are NOT allocated contracts for Form 5500 Return/Report purposes.
Welfare benefit plan filers must complete the Form 5500, including the signature block and, unless otherwise specified, attach the following schedules and information:
The following schedules (including any additional information required by the instructions to the schedules) must be attached to a Form 5500 filed for a small welfare plan not exempt from filing that also is not eligible to file Form 5500-SF:
1. Schedule A (as many as needed), to report insurance contracts held by the plan.
2. Schedule D, Part I, to list any CCTs, PSAs, MTIAs, and 103-12 IEs in which the plan participated at any time during the plan year.
3. Schedule I, to report small plan financial information.
The following schedules (including any additional information required by the instructions to the schedules) must be attached to a Form 5500 filed for a large welfare plan.
1. Schedule A (as many as needed), to report insurance and investment contracts held by the plan.
2. Schedule C, if applicable, to report information on service providers and any terminated accountants or actuaries.
3. Schedule D, Part I, to list any CCTs, PSAs, MTIAs, and 103-12 IEs in which the plan invested at any time during the plan year.
4. Schedule G, to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the plan year, leases in default or classified as uncollectible, and nonexempt transactions, i.e., file Schedule G if Schedule H (Form 5500) lines 4b, 4c, and/or 4d are checked “Yes” or if a large welfare plan that is not required to file a Schedule H has nonexempt transactions.
5. Schedule H, to report financial information, unless exempt.
CAUTION: Attach the report of the independent qualified public accountant (IQPA) identified on Schedule H, line 3c, unless line 3d(2) is checked.
TIP: Neither Schedule H nor an IQPA's opinion should be attached to a Form 5500 filed for an unfunded, fully insured or combination unfunded/insured welfare plan that covered 100 or more participants as of the beginning of the plan year which meets the requirements of 29 CFR 2520.104-44. However, Schedule G, Part III, must be attached to the Form 5500 to report any nonexempt transactions. A welfare benefit plan that uses a “voluntary employees' beneficiary association” (VEBA) under Code section 501(c)(9) is generally not exempt from the requirement of engaging an IQPA.
Some plans participate in certain trusts, accounts, and other investment arrangements that file the Form 5500 Return/Report as a DFE. A Form 5500 Return/Report must be filed for a master trust investment account (MTIA). A Form 5500 Return/Report is not required but may be filed for a common/collective trust (CCT), pooled separate account (PSA), 103-12 investment entity (103-12 IE), or group insurance arrangement (GIA). However, plans that participate in CCTs, PSAs, 103-12 IEs, or GIAs that file as DFEs generally are eligible for certain annual reporting relief. For reporting purposes, a CCT, PSA, 103-12 IE, or GIA is considered a DFE only when a Form 5500 and all required schedules attachments are filed for it in accordance with the following instructions.
Only one Form 5500 Return/Report should be filed for each DFE for all plans participating in the DFE; however, the Form 5500 Return/Report filed for the DFE, including all required schedules and attachments, must report information for the DFE year (not to exceed 12 months in length) that ends with or within the participating plan's year. Any Form 5500 Return/Report filed for a DFE is an integral part of the
The administrator filing a Form 5500 Return/Report for an employee benefit plan is required to file or have a designee also file a Form 5500 Return/Report for each MTIA in which the plan participated at any time during the plan year. For reporting purposes, a “master trust” is a trust for which a regulated financial institution (as defined below) serves as trustee or custodian (regardless of whether such institution exercises discretionary authority or control with respect to the management of assets held in the trust), and in which assets of more than one plan sponsored by a single-employer or by a group of employers under common control are held.
“Common control” is determined on the basis of all relevant facts and circumstances (whether or not such employers are incorporated). A “regulated financial institution” means a bank, trust company, or similar financial institution that is regulated, supervised, and subject to periodic examination by a state or Federal agency. A securities brokerage firm is not a “similar financial institution” as used here. See DOL Advisory Opinion 93-21A (available at
The assets of a master trust are considered for reporting purposes to be held in one or more “investment accounts.” A “master trust investment account” may consist of a pool of assets or a single asset. Each pool of assets held in a master trust must be treated as a separate MTIA if each plan that has an interest in the pool has the same fractional interest in each asset in the pool as its fractional interest in the pool, and if each such plan may not dispose of its interest in any asset in the pool without disposing of its interest in the pool. A master trust may also contain assets that are not held in such a pool. Each such asset must be treated as a separate MTIA.
(1) If a MTIA consists solely of one plan's asset(s) during the reporting period, the plan may report the asset(s) either as an investment account on a MTIA's Form 5500, or as a plan asset(s) that is not part of the master trust (and therefore subject to all instructions concerning assets not held in a master trust) on the plan's Form 5500. (2) If a master trust holds assets attributable to participant or beneficiary directed transactions under an individual account plan and the assets are interests in registered investment companies, interests in contracts issued by an insurance company licensed to do business in any state, interests in common/collective trusts maintained by a bank, trust company or similar institution, or have a current value that is readily determinable on an established market, those assets may be treated as a single MTIA. The Form 5500 Return/Report submitted for the MTIA must comply with the instructions for a Large Pension Plan, unless otherwise specified in the forms and instructions.
The MTIA must file:
1. Form 5500, except lines C, D, 1c, 2d, and 6 through 9. Be certain to enter “M” in Part 1, A.
2. Schedule A (as many as needed) to report insurance, annuity and investment contracts held by the MTIA.
3. Schedule C, if applicable, to report service provider information. Part II is not required for a MTIA.
4. Schedule D, to list CCTs, PSAs, and 103-12 IEs in which the MTIA invested at any time during the MTIA year and to list all plans that participated in the MTIA during its year.
5. Schedule G, to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the MTIA year, all leases in default or classified as uncollectible, and nonexempt transactions.
6. Schedule H, except lines 1b(1), 1b(2), 1c(8), 1g, 1h, 1i, 2a, 2b(1)(E), 2e, 2f, 2g, 4a, 4e, 4f, 4g, 4h, 4k, 4l, 4m, 4n, and 5, to report financial information. An independent qualified public accountant's (IQPA's) opinion is not required for a MTIA.
7. Additional information required by the instructions to the above schedules, including, for example, the schedules of assets held for investment and the schedule of reportable transactions. For purposes of the schedule of reportable transactions, the 5% figure shall be determined by comparing the current value of the transaction at the transaction date with the current value of the investment account assets at the beginning of the applicable fiscal year of the MTIA. All attachments must be properly labeled.
A Form 5500 Return/Report is not required to be filed for a CCT or PSA. However, the administrator of a large plan or DFE that participates in a CCT or PSA that files as specified below is entitled to reporting relief that is not available to plans or DFEs participating in a CCT or PSA for which a Form 5500 Return/Report is not filed.
For reporting purposes, “common/collective trust” and “pooled separate account” are, respectively: (1) A trust maintained by a bank, trust company, or similar institution or (2) an account maintained by an insurance carrier, which are regulated, supervised, and subject to periodic examination by a state or Federal agency in the case of a CCT, or by a state agency in the case of a PSA, for the collective investment and reinvestment of assets contributed thereto from employee benefit plans maintained by more than one employer or controlled group of corporations as that term is used in Code section 1563. See 29 CFR 2520.103-3, 103-4, 103-5, and 103-9.
For reporting purposes, a separate account that is not considered to be holding plan assets pursuant to 29 CFR 2510.3-101(h)(1)(iii) does not constitute a pooled separate account. The Form 5500 Return/Report submitted for a CCT or PSA must comply with the instructions for a Large Pension Plan, unless otherwise specified in the forms and instructions.
The CCT or PSA must file:
1. Form 5500, except lines C, D, 1c, 2d, and 6 through 9. Enter “C” or “P, as appropriate, in Part I, line A.
2. Schedule D, to list all CCTs, PSAs, MTIAs, and 103-12 IEs in which the CCT or PSA invested at any time during the CCT or PSA year and to list in Part II all plans that participated in the CCT or PSA during its year.
3. Schedule H, except lines 1b(1), 1b(2), 1c(8), 1d, 1e, 1g, 1h, 1i, 2a, 2b(1)(E), 2e, 2f, and 2g, to report financial information. Part IV and an independent qualified public accountant's (IQPA's) opinion are not required for a CCT or PSA.
CAUTION: Different requirements apply to the Schedules D and H attached to the Form 5500 filed by plans and DFEs participating in CCTs and PSAs, depending upon whether a DFE Form 5500 Return/Report has been filed for the CCT or PSA. See the instructions for these schedules.
DOL Regulation 2520.103-12 provides an alternative method of reporting for plans that invest in an entity (other than a MTIA, CCT, or PSA), whose underlying assets include “plan assets” within the meaning of 29 CFR 2510.3-101 of two or more plans that are not members of a “related group” of employee benefit plans. Such an entity for which a Form 5500 Return/Report is filed constitutes a “103-12
The Form 5500 Return/Report submitted for a 103-12 IE must comply with the instructions for a Large Pension Plan, unless otherwise specified in the forms and instructions.
The 103-12 IE must file:
1. Form 5500, except lines C, D, 1c, 2d, and 6 through 9. Enter “E” in Part I, line A.
2. Schedule A (as many as needed), to report insurance, annuity and investment contracts held by the 103-12 IE.
3. Schedule C, if applicable, to report service provider information and any terminated accountants.
4. Schedule D, to list all CCTs, PSAs, and 103-12 IEs in which the 103-12 IE invested at any time during the 103-12 IE's year, and to list all plans that participated in the 103-12 IE during its year.
5. Schedule G, to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the 103-12 IE year, leases in default or classified as uncollectible, and nonexempt transactions.
6. Schedule H, except lines 1b(1), 1b(2), 1c(8), 1d, 1e, 1g, 1h, 1i, 2a, 2b(1)(E), 2e, 2f, 2g, 4a, 4e, 4f, 4g, 4h, 4j, 4k, 4l, 4m, 4n, and 5, to report financial information.
7. Additional information required by the instructions to the above schedules, including, for example, the report of the independent qualified public account (IQPA) identified on Schedule H, line 3c, and the schedule(s) of assets held for investment. All attachments must be properly labeled.
Each welfare benefit plan that is part of a group insurance arrangement is exempted from the requirement to file a Form 5500 Return/Report if a consolidated Form 5500 Return/Report for all the plans in the arrangement was filed in accordance with 29 CFR 2520.104-43. For reporting purposes, a “group insurance arrangement” provides benefits to the employees of two or more unaffiliated employers (not in connection with a multiemployer plan or a collectively-bargained multiple-employer plan), fully insures one or more welfare plans of each participating employer, uses a trust or other entity as the holder of the insurance contracts, and uses a trust as the conduit for payment of premiums to the insurance company.
The GIA must file:
1. Form 5500, except lines C and 2d. Enter “G” in Part I, line A.
2. Schedule A (as many as needed), to report insurance, annuity and investment contracts held by the GIA.
3. Schedule C, if applicable, to report service provider information and any terminated accountants.
4. Schedule D, to list all CCTs, PSAs, and 103-12 IEs in which the GIA invested at any time during the GIA year, and to list all plans that participated in the GIA during its year.
5. Schedule G, to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the GIA year, leases in default or classified as uncollectible, and nonexempt transactions.
6. Schedule H, except lines 4a, 4e, 4f, 4g, 4h, 4k, 4m, 4n, and 5, to report financial information.
7. Additional information required by the instructions to the above schedules, including, for example, the report of the independent qualified accountant (IQPA) identified on Schedule H, line 3c, the schedules of assets held for investment and the schedule of reportable transactions. All attachments must be properly labeled.
File the 2009 Form 5500 Return/Report for a plan year that began in 2009 or a DFE year that ended in 2009. If the plan or DFE year is not the 2009 calendar year, enter the dates in Part I. The 2009 Form 5500 Return/Report must be filed electronically. Because of this, filings for 2009 plan years, including short plan years, cannot use prior year paper forms.
One Form 5500 is generally filed for each plan or entity described in the instructions to boxes in line A. Do not check more than one box.
A separate Form 5500 must be filed by each employer participating in a plan or program of benefits in which the funds attributable to each employer are available to pay benefits only for that employer's employees, even if the plan is maintained by a controlled group.
A “controlled group” is generally considered one employer for Form 5500 reporting purposes. A “controlled group” is a controlled group of corporations under Code section 414(b), a group of trades or businesses under common control under Code section 414(c), or an affiliated service group under Code section 414(m).
A separate annual report with an “M” entered on Form 5500, box A, must be filed for each MTIA.
Do not check box B (Final Return/Report) if “4R” is entered on line 8b for a welfare plan that is not required to file a Form 5500 Return/Report for the next plan year because the welfare plan has become eligible for an annual reporting exemption. For example, certain unfunded and insured welfare plans may be required to file the 2008 Form 5500 and be exempt from filing a Form 5500 Return/Report for the plan year 2009 if the number of participants covered as of the beginning of the 2009 plan year drops below 100. See Who Must File. Should the number of participants covered by such a plan increase to 100 or more in a future year, the plan must resume filing the Form 5500 Return/Report and enter “4S” on line 8b on that year's Form 5500. See 29 CFR 2520.104-20.
• You filed for an extension of time to file this form with the IRS using a completed Form 5558, Application for Extension of Time To File Certain Employee Plan Returns (maintain a copy of the Form 5558 with the filer's records).
• You are filing using the automatic extension of time to file the Form 5500 Return/Report until the due date of the Federal income tax return of the employer (maintain a copy of the employer's extension of time to file the income tax return with the filer's records).
• You are filing using a special extension of time to file the Form 5500 Return/Report that has been announced by the IRS, DOL, and PBGC. If you checked that you are using a special extension of time, enter a description of the extension of time in the space provided.
• You are filing under DOL's Delinquent Filer Voluntary Compliance (DVFC) Program.
Start at 001 for plans providing pension benefits or DFEs as illustrated in the table below. Start at 501 for welfare plans and GIAs. Do not use 888 or 999. Once you use a plan or DFE number, continue to use it for that plan or DFE on all future filings with the IRS, DOL, and PBGC. Do not use it for any other plan or DFE, even if the first plan or DFE is terminated.
1. Enter the name of the plan sponsor or, in the case of a Form 5500 filed for a DFE, the name of the insurance company, financial institution, or other sponsor of the DFE (e.g., in the case of a GIA, the trust or other entity that holds the insurance contract, or in the case of an MTIA, one of the sponsoring employers). If the plan covers only the employees of one employer, enter the employer's name.
The term “plan sponsor” means:
• The employer, for an employee benefit plan that a single-employer established or maintains;
• The employee organization in the case of a plan of an employee organization; or
• The association, committee, joint board of trustees, or other similar group of representatives of the parties who establish or maintain the plan, if the plan is established or maintained jointly by one or more employers and one or more employee organizations, or by two or more employers.
In the case of a multiple-employer plan, if an association or similar entity is not the sponsor, enter the name of a participating employer as sponsor. A plan of a controlled group of corporations should enter the name of one of the sponsoring members. In either case, the same name must be used in all subsequent filings of the Form 5500 Return/Report for the multiple-employer plan or controlled group (see instructions to line 4 concerning change in sponsorship).
2. Enter any “in care of “ (C/O) name.
3. Enter the street address. A post office box number may be entered if the Post Office does not deliver mail to the sponsor's street address.
4. Enter the name of the city.
5. Enter the two-character abbreviation of the U.S. state or possession and zip code.
6. Enter the foreign routing code, if applicable. Leave U.S. state and zip code blank if entering a foreign routing code and country name.
7. Enter the foreign country, if applicable.
8. Enter the D/B/A (doing business as) or trade name of the sponsor if different from the plan sponsor's name.
9. Enter any second address. Use only a street address, not a P.O. Box, here.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
A multiple-employer plan or plan of a controlled group of corporations should use the EIN of the sponsor identified in line 2a. This EIN must be used in all subsequent filings of the Form 5500 Return/Report for these plans (see instructions to line 4 concerning change in EIN).
If the plan sponsor is a group of individuals, get a single EIN for the group. When you apply for a number, enter on line 1 of Form SS-4 the name of the group, such as “Joint Board of Trustees of the Local 187 Machinists” Retirement Plan.” EINs may be obtained by filing Form SS-4 as explained above.
EINs for funds (trusts or custodial accounts) associated with plans (other than DFEs) are generally not required to be furnished on the Form 5500; the IRS will issue EINs for such funds for other reporting purposes. EINs may be obtained by filing Form SS-4 as explained above. Plan sponsors should use the trust EIN described above when opening a bank account or conducting other transactions for a trust that require an EIN.
1. Enter the name of the plan administrator unless the administrator is the sponsor identified in line 2 or the Form 5500 is submitted for a DFE (Part I, box A should be checked and enter the appropriate DFE code). If this is the case, enter the word “same” on line 3a and leave the remainder of line 3a, and all of lines 3b and 3c blank.
Plan administrator means:
• The person or group of persons specified as the administrator by the instrument under which the plan is operated;
• The plan sponsor/employer if an administrator is not so designated; or
• Any other person prescribed by regulations if an administrator is not designated and a plan sponsor cannot be identified.
2. Enter any “in care of” (C/O) name.
3. Enter the street address. A post office box number may be entered if the Post Office does not deliver mail to the administrator's street address.
4. Enter the name of the city.
5. Enter the two-character abbreviation of the U.S. state or possession and zip code.
6. Enter the foreign routing code and foreign country, if applicable. Leave U.S. state and zip code blank if entering foreign routing code and country information.
Employees of the plan sponsor who perform administrative functions for the plan are generally not the plan administrator unless specifically designated in the plan document. If an employee of the plan sponsor is designated as the plan administrator, that employee must get an EIN.
CAUTION: The failure to indicate on Line 4 that a plan was previously identified by a different Employer Identification Number (EIN) or Plan Number (PN) could result in correspondence from the DOL and the IRS.
The description of “participant” in the instructions below is only for purposes of these lines.
For welfare plans, the number of participants should be determined by reference to 29 CFR 2510.3-3(d)(1), which provides that an individual becomes a participant covered under an employee welfare benefit plan on the earlier of: the date designated by the plan as the date on which the individual begins participation in the plan; the date on which the individual becomes eligible under the plan for a benefit subject only to occurrence of the contingency for which the benefit is provided; or the date on which the individual makes a contribution to the plan, whether voluntary or mandatory. “Participants” includes former employees who are receiving group health continuation coverage benefits pursuant to Part 6 of ERISA and who are covered by the employee welfare benefit plan. Covered dependents are not counted as participants or beneficiaries.
A child who is an “alternate recipient” entitled to health benefits under a qualified medical child support order should not be counted as a participant for lines 5 and 6. An individual is not a participant covered under an employee welfare plan on the earliest date on which the individual (A) is ineligible to receive any benefit under the plan even if the contingency for which such benefit is provided should occur, and (B) is not designated by the plan as a participant. See 29 CFR 2510.3-3(d)(2).
TIP: Before counting the number of participants in welfare plans, it is important for Form 5500 Return/Report purposes to determine whether the plan sponsor has established one or more plans. As a matter of plan design, plan sponsors can offer benefits through various structures and combinations. For example, a plan sponsor could create (i) one plan providing major medical benefits, dental benefits, and vision benefits, (ii) two plans with one providing major medical benefits and the other providing self-insured dental
The fact that you have separate insurance policies for each different welfare benefit does not necessarily mean that you have separate plans. Some plan sponsors use a “wrap” document to incorporate various benefits and insurance policies into one comprehensive plan. In addition, whether a benefit arrangement is deemed to be a single plan may be different for purposes other than the Form 5500 Return/Report. For example, special rules may apply for purposes of HIPAA, COBRA, and Internal Revenue Code compliance. If you need help determining whether you have a single welfare benefit plan for purposes of the Form 5500 Return/Report, you should consult a qualified benefits consultant or legal counsel.
For pension benefit plans, “alternate payees” entitled to benefits under a qualified domestic relations order (QDRO) are not to be counted as participants for these lines.
For pension benefit plans, “participant” means any individual who is included in one of the categories below:
1. Active participants include any individuals who are currently in employment covered by a plan and who are earning or retaining credited service under a plan. This category includes any individuals who are eligible to elect to have the employer make payments to a Code section 401(k) qualified cash or deferred arrangement. Active participants also include any nonvested individuals who are earning or retaining credited service under a plan. This category does not include (a) nonvested former employees who have incurred the break in service period specified in the plan or (b) former employees who have received a “cash-out” distribution or deemed distribution of their entire nonforfeitable accrued benefit.
2. Retired or separated participants receiving benefits are any individuals who are retired or separated from employment covered by the plan and who are receiving benefits under the plan. This category does not include any individual to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the individual is entitled under the plan.
3. Other retired or separated participants entitled to future benefits are any individuals who are retired or separated from employment covered by the plan and who are entitled to begin receiving benefits under the plan in the future. This category does not include any individual to whom an insurance company has made an irrevocable commitment to pay all the benefits to which the individual is entitled under the plan.
4. Deceased individuals who had one or more beneficiaries who are receiving or are entitled to receive benefits under the plan. This category does not include an individual if an insurance company has made an irrevocable commitment to pay all the benefits to which the beneficiaries of that individual are entitled under the plan.
CAUTION: Applicable to plan sponsors of Puerto Rico plans. Enter condition code 3C only in instances where there was no election made under section 1022(i)(2) of ERISA and, therefore, the plan does not intend to qualify under section 401(a) of the Code. If an election was made under section 1022(i)(2) of ERISA, do not enter condition code 3C.
For the purposes of line 9:
“Insurance” means the plan has an account, contract, or policy with an insurance company, insurance service, or other similar organization (such as Blue Cross, Blue Shield, or a health maintenance organization) during the plan or DFE year. (This includes investments with insurance companies such as guaranteed investment contracts (GICs).) An annuity account arrangement under Code section 403(b)(1) that is required to complete the Form 5500 Return/Report should mark “insurance” for both the plan funding arrangement and plan benefit arrangement. Do not check “insurance” if the sole function of the insurance company was to provide administrative services.
“Code section 412(e)(3) insurance contracts” are contracts that provide retirement benefits under a plan that are guaranteed by an insurance carrier. In general, such contracts must provide for level premium payments over the individual's period of participation in the plan (to retirement age), premiums must be timely paid as currently required under the contract, no rights under the contract may be subject to a security interest, and no policy loans may be outstanding. If a plan is funded exclusively by the purchase of such contracts, the otherwise applicable minimum funding requirements of section 412 of the Code and section 302 of ERISA do not apply for the year and neither the Schedule MB nor SB is required to be filed.
“Trust” includes any fund or account that receives, holds, transmits, or invests plan assets other than an account or policy of an insurance company. A custodial account arrangement under Code section 403(b)(7) that is required to complete
“General assets of the sponsor” means either the plan had no assets or some assets were commingled with the general assets of the plan sponsor prior to the time the plan actually provided the benefits promised.
Example. If the plan holds all its assets invested in registered investment companies and other non-insurance company investments until it purchases annuities to pay out the benefits promised under the plan, box 9a(3) should be checked as the funding arrangement and box 9b(1) should be checked as the benefit arrangement.
An employee benefit plan that checks boxes 9a(1), 9a(2), 9b(1), and/or 9b(2) must attach Schedule A (Form 5500), Insurance Information, to provide information concerning each contract year ending with or within the plan year. See the instructions to the Schedule A and enter the number of Schedules A on line 10b(3), if applicable.
Schedule A (Form 5500), Insurance Information (Schedule A), must be attached to the Form 5500 filed for every defined benefit pension plan, defined contribution pension plan, and welfare benefit plan required to file a Form 5500 if any benefits under the plan are provided by an insurance company, insurance service, or other similar organization (such as Blue Cross, Blue Shield, or a health maintenance organization). This includes investment contracts with insurance companies such as guaranteed investment contracts (GICs). In addition, Schedules A must be attached to a Form 5500 filed for GIAs, MTIAs, and 103-12 IEs for each insurance or annuity contract held in the MTIA, or 103-12 IE or by the GIA.
TIP: If Form 5500 line 9a(1), 9a(2), 9b(1), or 9b(2) is checked, indicating that either the plan funding arrangement or plan benefit arrangement includes an account, policy, or contract with an insurance company (or similar organization), at least one Schedule A would be required to be attached to the Form 5500 filed for the pension or welfare plan to provide information concerning the contract year ending with or within the plan year.
Do not file Schedule A for a contract that is an Administrative Services Only (ASO) contract, a fidelity bond or policy, or a fiduciary liability insurance policy. Also, if a Schedule A for a contract or policy is filed as part of a Form 5500 Return/Report for a MTIA or 103-12 IE that holds the contract, do not include a Schedule A for the contract or policy on the Form 5500s filed for the plans participating in the MTIA or 103-12 IE.
Check the Schedule A box on the Form 5500 (Part II, line 10b(3)), and enter the number attached in the space provided if one or more Schedules A are attached to the Form 5500.
Information entered on Schedule A should pertain to the insurance contract or policy year ending with or within the plan year (for reporting purposes, a year cannot exceed 12 months).
Example: If an insurance contract year begins on July 1 and ends on June 30, and the plan year begins on January 1 and ends on December 31, the information on the Schedule A attached to the 2009 Form 5500 should be for the insurance contract year ending on June 30, 2009.
Exception: If the insurance company maintains records on the basis of a plan year rather than a policy or contract year, the information entered on Schedule A may pertain to the plan year instead of the policy or contract year.
Include only the contracts issued to or held by the plan, GIA, MTIA, or 103-12 IE for which the Form 5500 Return/Report is being filed.
Do not use a social security number in lieu of an EIN. The Schedule A and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule A or any of its attachments may result in the rejection of the filing. EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
For purposes of lines 2 and 3, commissions and fees include sales and base commissions and all other monetary and non-monetary forms of compensation where the broker's, agent's, or other person's eligibility for the payment or the amount of the payment is based, in whole or in part, on the value (e.g., policy amounts, premiums) of contracts or policies (or classes thereof) placed with or retained by an ERISA plan, including, for example, persistency and profitability bonuses. The amount (or pro rata share of the total) of such commissions or fees attributable to the contract or policy placed with or retained by the plan must be reported in line 2 and in line 3, elements (b) and/or (c) as appropriate.
Where benefits under a plan are purchased from and guaranteed by an insurance company, insurance service, or other similar organization, and the contract or policy is reported on a Schedule A, payments of reasonable monetary compensation by the insurer out of its general assets to affiliates or third parties for performing administrative activities necessary for the insurer to fulfill its contractual obligation to provide benefits, where there is no direct or indirect charge to the plan for the administrative services other than the insurance premium, then the payments for administrative services by the insurer to the affiliates or third parties do not need to be reported on lines 2 and 3 of Schedule A. This would include compensation for services such as recordkeeping and claims processing services provided by a third party pursuant to a contract with the insurer to provide those services but would not include compensation provided by the insurer incidental to the sale or renewal of a policy, such as finder's fees, insurance brokerage commissions and fees, or similar fees.
Schedule A reporting also is not required for compensation paid by the insurer to a “general agent” or “manager” for that general agent's or manager's management of an agency or performance of administrative functions for the insurer. For this purpose, (1) a “general agent” or “manager” does not include brokers representing insureds, and (2) payments would not be treated as paid for managing an agency or performance of administrative functions where the recipient's eligibility for the payment or the amount of the payment is dependent or based on the value (e.g., policy amounts, premiums) of contracts or policies (or classes thereof) placed with or retained by ERISA plan(s).
Schedule A reporting is not required for occasional gifts or meals of insubstantial value which are tax deductible for federal income tax purposes by the person providing the gift or meal and would not be taxable income to the recipient. For this exemption to be available, the gift or gratuity must be both occasional and insubstantial. For this exemption to apply, the gift must be valued at less than $50, the aggregate value of gifts from one source in a calendar year must be less than $100, but gifts with a value of less than $10 do not need to be counted toward the $100 annual limit. If the $100 aggregate value limit is exceeded, then the aggregate value of all the gifts will be reportable. Gifts from multiple employees of one service provider should be treated as originating from a single source when calculating whether the $100 threshold applies. On the other hand, in applying the threshold to an occasional gift received from one source by multiple employees of a single service provider, the amount received by each employee should be separately determined in applying the $50 and $100 thresholds. For example, if six employees of a broker attend a business conference put on by an insurer designed to educate and explain the insurer's products for employee benefit plans, and the insurer provides, at no cost to the attendees, refreshments valued at $20 per individual, the gratuities would not be reportable on lines 2 and 3 of the Schedule A even though the total cost of the refreshments for all the employees would be $120. These thresholds are for purposes of Schedule A reporting. Filers are cautioned that the payment or receipt of gifts and gratuities of any amount by plan fiduciaries may violate ERISA and give rise to civil liabilities and criminal penalties.
1—Banking, Savings & Loan Association, Credit Union, or other similar financial institution.
2—Trust Company.
3—Insurance Agent or Broker.
4—Agent or Broker other than insurance.
5—Third party administrator.
6—Investment Company/Mutual Fund.
7—Investment Manager/Adviser.
8—Labor Union.
9—Foreign entity (e.g., an agent or broker, bank, insurance company, etc., not operating within the jurisdictional boundaries of the United States).
0—Other.
For plans, GIAs, MTIAs, and 103-12 IEs required to file Part I of Schedule C, commissions and fees listed on the Schedule A are also to be reported on Schedule C, unless the only compensation in relation to the plan or DFE consists of insurance fees and commissions listed on the Schedule A.
Employers sponsoring welfare plans may purchase a stop-loss insurance policy with the employer as the insured to help the employer manage its risk associated with its liabilities under the plan. These employer contracts with premiums paid exclusively out of the employer's general assets without any employee contributions generally are not plan assets and are not reportable on Schedule A.
The insurance company, insurance service, or other similar organization is required under ERISA section 103(a)(2) to provide the plan administrator with the information needed to complete this return/report. If you do not receive this information in a timely manner, contact the insurance company, insurance service, or other similar organization. If information is missing on Schedule A due to a refusal to provide information, check “Yes” on line 11 and enter a description of the information not provided on line 12.
TIP. As noted above, the insurance company, insurance service, or other similar organization is statutorily required to provide all of the information necessary to complete the return/report, but need not provide the information on a Schedule itself. If you do not receive this information in a timely manner, you should contact the insurance company, insurance service, or other similar organization and advise them that the plan administrator will identify the provider on the Schedule A if the required information is not provided.
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Schedule C (Form 5500), Service Provider Information (Schedule C) must be attached to a Form 5500 filed for a large pension or welfare benefit plan, an MTIA, a 103-12IE, or a GIA, to report certain information concerning service providers. Remember to check the Schedule C box on the form 5500 (Part II, line 10b(4)) if a Schedule C is attached to the Form 5500.
Part I of the Schedule C must be completed to report persons who rendered services to or who had transactions with the plan or DFE during the reporting year if the person received, directly or indirectly, $5,000 or more in reportable compensation in connection with services rendered to the plan or DFE, or their position with the plan except:
1. Employees of the plan whose only compensation in relation to the plan was less than $25,000 for the plan year;
2. Employees of the plan sponsor or other business entity where the plan sponsor or business entity is reported on the Schedule C as a service provider, provided the employee did not separately receive reportable direct or indirect compensation in relation to the plan;
3. Persons whose only compensation in relation to the plan consists of insurance fees and commissions listed in a Schedule A filed for the plan; and
4. Payments made directly by the plan sponsor that are not reimbursed by the plan.
Only line 1 of Part I of the Schedule C must be completed for persons who received only “eligible indirect compensation” as defined below.
Part II of the Schedule C must be completed to report service providers who fail or refuse to provide information necessary to complete Part I of this Schedule.
Part III of the Schedule C must be completed to report a termination in the appointment of an accountant or enrolled actuary during the 2009 plan year.
TIP: Health and welfare plans that meet the conditions of the limited exemption at 2520.104-44 or Technical Release 92-01 are not required to complete and file a Schedule C.
Do not use a social security number in line D in lieu of an EIN. The Schedule C and its attachments are open to public inspection, and the contents are public information subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule C or any of its attachments may result in the rejection of the filing. EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
Do not list the PBGC or the IRS on Schedule C as service providers.
Either the cash or accrual basis may be used for the recognition of transactions reported on the Schedule C as long as you use one method consistently.
If service provider compensation is reported on a Schedule C filed as part of a Form 5500 filed for a MTIA or 103-12IE, do not report the same compensation again on the Schedules C filed for the plans that participate in the MTIA or 103-12IE.
You must enter the information required for each person receiving $5,000 or more in total direct or indirect compensation (i.e., money or anything else of value) in connection with services rendered to the plan or the person's position with the plan during the plan year.
Example. A plan had service providers, A, B, C, and D, who received $12,000, $6,000, $4,500, and $430, respectively, in direct and indirect compensation from the plan. Service providers A and B must be identified separately by name, EIN, etc. As service providers C and D each received less than $5,000, they do not need to be reported on the Schedule C.
For Schedule C purposes, reportable compensation includes money and any other thing of value (for example, gifts, awards, trips) received by a person,
Direct Compensation: Payments made directly by the plan for services rendered to the plan or because of a person's position with the plan are reportable as direct compensation. Direct payments by the plan would include, for example, direct payments by the plan out of a plan account, charges to plan forfeiture accounts and fee recapture accounts, charges to a plan's trust account before allocations are made to individual participant accounts, and direct charges to plan participant individual accounts. Payments made by the plan sponsor, which are not reimbursed by the plan, are not subject to Schedule C reporting requirements even if the sponsor is paying for services rendered to the plan.
Indirect Compensation: Compensation received from sources other than directly from the plan or plan sponsor is reportable on Schedule C as indirect compensation from the plan if the compensation was received in connection with services rendered to the plan during the plan year or the person's position with the plan. For this purpose, compensation is considered to have been received in connection with the person's position with the plan or for services rendered to the plan if the person's eligibility for a payment or the amount of the payment is based, in whole or in part, on services that were rendered to the plan or on a transaction or series of transactions with the plan. Indirect compensation would not include compensation that would have been received had the service not been rendered or the transaction had not taken place and that cannot be reasonably allocated to the services performed or transaction(s) with the plan. Examples of reportable indirect compensation include fees and expense reimbursement payments received by a person from mutual funds, bank commingled trusts, insurance company pooled separate accounts, and other separately managed accounts and pooled investment funds in which the plan invests that are charged against the fund or account and reflected in the value of the plan's investment (such as management fees paid by a mutual fund to its investment adviser, sub-transfer agency fees, shareholder servicing fees, account maintenance fees, and 12b-1 distribution fees). Other examples of reportable indirect compensation are finder's fees, float revenue, brokerage commissions (regardless of whether the broker is granted discretion), research or other products or services, other than execution, received from a broker-dealer or other third party in connection with securities transactions (soft dollars), and other transaction based fees received in connection with transactions or services involving the plan whether or not they are capitalized as investment costs.
CAUTION: These thresholds are for purposes of Schedule C reporting only. Filers are strongly cautioned that gifts and gratuities of any amount paid to or received by plan fiduciaries may violate ERISA and give rise to civil liabilities and criminal penalties.
Direct payments by the plan to the bundled service provider should be reported as direct compensation to the bundled service provider. Such direct payments by the plan do not need to be allocated among affiliates or subcontractors and also reported as indirect compensation received by the affiliates or subcontractors unless the amount paid to the affiliate or subcontractor is set on a per transaction basis, e.g., brokerage fees and commissions.
Fees charged to the plan's investment and reflected in the net value of the investment, such as management fees paid by mutual funds to their investment advisers, float revenue,
If any indirect compensation is either not of the type described below or if the plan did not receive the written disclosures described below, the indirect compensation is not “eligible indirect compensation” for purposes of Part I.
(1) Eligible Indirect Compensation: Indirect compensation that is fees or expense reimbursement payments charged to investment funds and reflected in the value of the investment or return on investment of the participating plan or its participants finders' fees “soft dollar” revenue, float revenue, and/or brokerage commissions or other transaction-based fees for transactions or services involving the plan that were not paid directly by the plan or plan sponsor (whether or not they are capitalized as investment costs).
(2) Written Disclosures: For the indirect compensation to be eligible indirect compensation you must have received written materials that disclosed and described (a) the existence of the indirect compensation; (b) the services provided for the indirect compensation or the purpose for payment of the indirect compensation; (c) the amount (or estimate) of the compensation or a description of the formula used to calculate or determine the compensation; and (d) the identity of the party or parties paying and receiving the compensation. The written disclosures for a bundled arrangement must separately disclose and describe each element of indirect compensation that would be required to be separately reported if you were not relying on this alternative reporting option.
CAUTION: If any person received eligible indirect compensation and either direct compensation and/or indirect compensation that does not meet the requirements of this line to be eligible indirect compensation, you cannot rely on the alternative reporting option for that person and must complete line 2 for each such person who received $5,000 or more in direct and indirect compensation.
Complete Part III if there was a termination in the appointment of an accountant or enrolled actuary during the 2009 plan year. This information must be provided on the Form 5500 Return/Report for the plan year during which the termination occurred. For example, if an accountant was terminated in the 2009 plan year after completing work on an audit for the 2007 plan year, the termination should be reported on the Schedule C filed with the 2009 plan year Form 5500. If the accountant is a firm (such as a corporation, partnership, etc.), report when the service provider (not an individual within the firm) was terminated. An enrolled actuary is by definition an individual and not a firm, and you must report when the individual is terminated.
Provide an explanation of the reasons for the termination of an accountant or enrolled actuary. Include a description of any material disputes or matters of disagreement concerning the termination, even if resolved prior to the termination. If an individual is listed, and the individual does not have an EIN, the EIN to be entered should be the EIN of the individual's employer. Do not use a social security number in lieu of an EIN. The Schedule C and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule C or any of its attachments may result in the rejection of the filing.
The plan administrator must also provide the terminated accountant or enrolled actuary with a copy of the explanation for the termination provided in Part III of the Schedule C,
I, as plan administrator, verify that the explanation that is reproduced below or attached to this notice is the explanation concerning your termination reported on the Schedule C (Form 5500) attached to the 2009 Form 5500, Annual Return/Report of Employee Benefit Plan for the ________(enter name of plan). This Form 5500 is identified in line 2b by the nine-digit EIN__-____(enter sponsor's EIN), and in line 1b by the three-digit PN____(enter plan number).
You have the opportunity to comment to the Department of Labor concerning any aspect of this explanation.
Comments should include the name, EIN, and PN of the plan and be submitted to: Office of Enforcement, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210.
Signed
Dated
When the Form 5500 Return/Report is filed for a plan or Direct Filing Entity (DFE) that invested or participated in any master trust investment accounts (MTIAs), 103-12 Investment Entities (103-12 IEs), common/collective trusts (CCTs) and/or pooled separate accounts (PSAs), Part I provides information about these entities. When the Form 5500 Return/Report is filed for a DFE, Part II provides information about plans participating in the DFE.
Check the Schedule D box on the Form 5500 (Part II, line 10b(5)) if a Schedule D is attached to the Form 5500. As many repeating entries must be completed as necessary to report the required information.
Do not use a social security number in line D in lieu of an EIN. The Schedule D and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule D or any of its attachments may result in the rejection of the filing.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
Complete as many repeating entries as necessary to enter the information specified below for all MTIAs, CCTs, PSAs, and 103-12 IEs in which the plan or DFE filing the Form 5500 Return/Report participated at any time during the plan or DFE year.
Complete a separate item (elements (a) through (e)) for each MTIA, CCT, PSA, or 103-12 IE.
Because of privacy concerns, the inclusion of a social security number on this Schedule D or any of its attachments may result in the rejection of the filing.
Example for Part I: If a plan participates in an MTIA, the MTIA is named in element (a); the MTIA's sponsor is named in element (b); the MTIA's EIN and PN is entered in element (c) (such as: 12-3456789-001); an “M” is entered in element (d); and the dollar value of the plan's interest in the MTIA as of the end of the plan year is entered in element (e).
If the plan also participates in a CCT for which a Form 5500 was not filed, the CCT is named in another element (a); the name of the CCT sponsor is entered in element (b); the EIN for the CCT, followed by 000 is entered in element (c) (such as: 99-8765432-000); a “C” is entered in element (d); and the dollar value of the plan's interest in the CCT is entered in element (e).
If the plan also participates in a PSA for which a Form 5500 was filed, the PSA is named in a third element (a); the name of the PSA sponsor is entered in element (b); the PSA's EIN and PN are entered in element (c) (such as: 98-7655555-001); a “P” is entered in element (d); and the dollar value of the plan's interest in the PSA is entered in element (e).
Complete as many repeating entries as necessary to enter the information specified below for all plans that invested or participated in the DFE at any time during the DFE year.
Complete a separate item (elements (a) through (c)) for each plan.
Schedule G (Form 5500), Financial Transaction Schedules (Schedule G), must be attached to a Form 5500 filed for a plan, MTIA, 103-12 IE, or GIA to report loans or fixed income obligations in default or determined to be uncollectible as of the end of the plan year, leases in default or classified as uncollectible, and nonexempt transactions. See Schedule H lines 4b, 4c, and/or 4d.
Check the Schedule G box on the Form 5500 (Part II, line 10b(6)) if a Schedule G is attached to the Form 5500. As many entries must be completed as necessary to report the required information.
The Schedule G consists of three parts. Part I of the Schedule G reports any loans or fixed income obligations in default or determined to be uncollectible as of the end of the plan year. Part II of the Schedule G reports any leases in default or classified as uncollectible. Part III of the Schedule G reports nonexempt transactions.
Lines A, B, C, and D. This information must be the same as reported in Part II of the Form 5500 to which this Schedule G is attached. The plan name may be abbreviated.
Do not use a social security number in line D in lieu of an EIN. The Schedule G and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule G or any of its attachments may result in the rejection of the filing.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
List all loans or fixed income obligations in default or determined to be uncollectible as of the end of the plan year or the fiscal year of the GIA, MTIA, or 103-12 IE. Include:
• Obligations where the required payments have not been made by the due date;
• Fixed income obligations that have matured, but have not been paid, for which it has been determined that payment will not be made; and
• Loans that were in default even if renegotiated later during the year.
Identify in element (a) each obligor known to be a party-in-interest to the plan.
Provide, on a separate attachment, an explanation of what steps have been taken or will be taken to collect overdue amounts for each loan listed and label the attachment “Schedule G, Part I—Overdue Loan Explanation.”
The due date, payment amount, and conditions for determining default in the case of a note or loan are usually contained in the documents establishing the note or loan. A loan is in default when the borrower is unable to pay the obligation upon maturity. Obligations that require periodic repayment can default at any time. Generally loans and fixed income obligations are considered uncollectible when payment has not been made and there is little probability that payment will be made. A fixed income obligation has a fixed maturity date at a specified interest rate.
Do not report in Part I participant loans under an individual account plan with investment experience segregated for each account, that are made in accordance with 29 CFR 2550.408b-1, and that are secured solely by a portion of the participant's vested accrued benefit. Report all other participant loans in default or classified as uncollectible on Part I, and list each such loan individually.
List any leases in default or classified as uncollectible. A lease is an agreement conveying the right to use property, plant, or equipment for a stated period. A lease is in default when the required payment(s) has not been made. An uncollectible lease is one where the required payments have not been made and for which there is little probability that payment will be made. Provide, on a separate attachment, an explanation of what steps have been taken or will be taken to collect overdue amounts for each lease listed and label the attachment “Schedule G, Part II—Overdue Lease Explanation.”
All nonexempt party-in-interest transactions must be reported, regardless of whether disclosed in the accountant's report, unless the nonexempt transaction is:
1. Statutorily exempt under Part 4 of Title I of ERISA;
2. Administratively exempt under ERISA section 408(a);
3. Exempt under Code sections 4975(c) or 4975(d);
4. The holding of participant contributions in the employer's general assets for a welfare plan that meets the conditions of ERISA Technical Release 92-01;
5. A transaction of a 103-12 IE with parties other than the plan; or
6. A delinquent participant contribution reported on Schedule H, line 4a.
Nonexempt transactions with a party-in-interest include any direct or indirect:
A. Sale or exchange, or lease, of any property between the plan and a party-in-interest.
B. Lending of money or other extension of credit between the plan and a party-in-interest.
C. Furnishing of goods, services, or facilities between the plan and a party-in-interest.
D. Transfer to, or use by or for the benefit of, a party-in-interest, of any income or assets of the plan.
E. Acquisition, on behalf of the plan, of any employer security or employer real property in violation of ERISA section 407(a).
F. Dealing with the assets of the plan for a fiduciary's own interest or own account.
G. Acting in a fiduciary's individual or any other capacity in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.
H. Receipt of any consideration for his or her own personal account by a party-in-interest who is a fiduciary from any party dealing with the plan in connection with a transaction involving the income or assets of the plan.
For purposes of this form, party-in-interest is deemed to include a disqualified person. See Code section 4975(e)(2). The term “party-in-interest” means, as to an employee benefit plan:
A. Any fiduciary (including, but not limited to, any administrator, officer, trustee or custodian), counsel, or employee of the plan;
B. A person providing services to the plan;
C. An employer, any of whose employees are covered by the plan;
D. An employee organization, any of whose members are covered by the plan;
E. An owner, direct or indirect, of 50% or more of: (1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation, (2) the capital interest or the profits interest of a partnership, or (3) the beneficial interest of a trust or unincorporated enterprise that is an employer or an employee organization described in C or D;
F. A relative of any individual described in A, B, C, or E;
G. A corporation, partnership, or trust or estate of which (or in which) 50% or more of:
(1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of such corporation, (2) the capital interest or profits interest of such partnership, or (3) the beneficial interest of such trust or estate is owned directly or indirectly, or held by, persons described in A, B, C, D, or E;
H. An employee, officer, director (or an individual having powers or responsibilities similar to those of officers or directors), or a 10% or more shareholder, directly or indirectly, of a person described in B, C, D, E, or G, or of the employee benefit plan; or
I. A 10% or more (directly or indirectly in capital or profits) partner or joint venturer of a person described in B, C, D, E, or G.
CAUTION: An unfunded, fully insured, or combination unfunded/ insured welfare plan with 100 or more participants exempt under 29 CFR 2520.104-44 from completing Schedule H must still complete Schedule G, Part III, to report nonexempt transactions.
If you are unsure whether a transaction is exempt or not, you should consult with either the plan's independent qualified public accountant (IQPA) or legal counsel or both.
You may indicate that an application for an administrative exemption is pending.
If the plan is a qualified pension plan and a nonexempt prohibited transaction occurred with respect to a disqualified person, an IRS Form 5330, Return of Excise Taxes Related to Employee Benefit Plans, is required to be filed with the IRS to pay the excise tax on the transaction.
TIP: The DOL Voluntary Fiduciary Correction Program (VFCP) describes how to apply, the specific transactions covered (which transactions include delinquent participant contributions to pension and welfare plans), and acceptable methods for correcting violations. In addition, applicants that satisfy both the VFCP requirements and the conditions of Prohibited Transaction Exemption (PTE) 2002-51 are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also relieved from the obligation to file the Form 5330 with the IRS. For more information, see 71 FR 20261 (Apr. 19, 2006) and 71 FR 20135 (Apr. 19, 2006). If the conditions of PTE 2002-51 are satisfied, corrected transactions should be treated as exempt under Code section 4975(c) for the purposes of answering Schedule G, Part III. Information about the VFCP is also available on the Internet at
Schedule H (Form 5500) must be attached to a Form 5500 filed for a pension benefit plan or a welfare benefit plan that covered 100 or more participants as of the beginning of the plan year and a Form 5500 filed for an MTIA, CCT, PSA, 103-12 IE, or GIA. See the instructions to the Form 5500 for Direct Filing Entity (DFE) Filing Requirements.
(1) Insured, unfunded, or a combination of unfunded/insured welfare plans and fully insured pension benefit plans that meet the requirements of 29 CFR 2520.104-44 are exempt from completing the Schedule H.
(2) If a Schedule I was filed for the plan for the 2008 plan year and the plan covered fewer than 121 participants as of the beginning of the 2009 plan year, the Schedule I may be completed instead of a Schedule H.
(3) Plans that file a Form 5500-SF for the 2009 plan year are not required to file a Schedule H for that year.
Check the Schedule H box on the Form 5500 (Part II, line 10b(1)) if a Schedule H is attached to the Form 5500. Do not attach both a Schedule H and a Schedule I to the same Form 5500.
Do not use a social security number in line D in lieu of an EIN. The Schedule H and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule H or any of its attachments may result in the rejection of the filing.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
The cash, modified cash, or accrual basis may be used for recognition of transactions in Parts I and II, as long as you use one method consistently. Round off all amounts reported on the Schedule H to the nearest dollar. Any other amounts are subject to rejection. Check all subtotals and totals carefully.
If the assets of two or more plans are maintained in a fund or account that is not a DFE, a registered investment company, or the general account of an insurance company under an unallocated contract (see the instructions for lines 1c(9) through 1c(14)), complete Parts I and II of the Schedule H by entering the plan's allocable part of each line item.
If assets of one plan are maintained in two or more trust funds, report the combined financial information in Parts I and II.
Current value means fair market value where available. Otherwise, it means the
For the 2009 plan year, plans that provide participant-directed brokerage accounts as an investment alternative (and have entered pension feature code “2R” on line 8a of the Form 5500) may report investments in assets made through participant-directed brokerage accounts either:
1. As individual investments on the applicable asset and liability categories in Part I and the income and expense categories in Part II, or
2. By including on line 1c(15) the total aggregate value of the assets and on line 2c the total aggregate investment income (loss) before expenses, provided the assets are not loans, partnership or joint-venture interests, real property, employer securities, or investments that could result in a loss in excess of the account balance of the participant or beneficiary who directed the transaction. Expenses charged to the accounts must be reported on the applicable expense line items. Participant-directed brokerage account assets reported in the aggregate on line 1c(15) should be treated as one asset held for investment for purposes of the line 4i schedules, except that investments in tangible personal property must continue to be reported as separate assets on the line 4i schedules.
In the event that investments made through a participant-directed brokerage account are loans, partnership or joint venture interests, real property, employer securities, or investments that could result in a loss in excess of the account balance of the participant or beneficiary who directed the transaction, such assets must be broken out and treated as separate assets on the applicable asset and liability categories in Part I, income and expense categories in Part II, and on the line 4i schedules. The remaining assets in the participant-directed brokerage account may be reported in the aggregate as set forth in paragraph 2 above.
Amounts reported in column (a) must be the same as reported for the end of the plan year for corresponding line items of the return/report for the preceding plan year. Do not include contributions designated for the 2009 plan year in column (a).
“Preferred” means any of the above securities that are publicly traded on a recognized securities exchange and the securities have a rating of “A” or above. If the securities are not “Preferred,” list them as “Other.”
When applicable, combine this amount with the current value of any other participant loans. Do not include in column (b) a participant loan that has been deemed distributed during the plan year under the provisions of Code section 72(p) and Treasury Regulation section 1.72(p)-1, if both of the following circumstances apply:
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If both of these circumstances apply, report the loan as a deemed distribution on line 2g. However, if either of these circumstances does not apply, the current value of the participant loan (including interest accruing thereon after the deemed distribution) must be included in column (b) without regard to the occurrence of a deemed distribution.
After a participant loan that has been deemed distributed is reported on line 2g, it is no longer to be reported as an asset on
The entry on line 1c(8), column (b), of Schedule H (participant loans—end of year) or on line 1a, column (b), of Schedule I (plan assets—end of year) must include the current value of any participant loan that was reported as a deemed distribution on line 2g for any earlier year if the participant resumes repayment under the loan during the plan year. In addition, the amount to be entered on line 2g must be reduced by the amount of the participant loan that was reported as a deemed distribution on line 2g for the earlier year.
CAUTION: The plan's or DFE's interest in common/collective trusts (CCTs) and pooled separate accounts (PSAs) for which a DFE Form 5500 has not been filed may not be included on lines 1c(9) or 1c(10). The plan's or DFE's interest in the underlying assets of such CCTs and PSAs must be allocated and reported in the appropriate categories on a line-by-line basis on Part I of the Schedule H.
For reporting purposes, a separate account that is not considered to be holding plan assets pursuant to 29 CFR 2510.3-101(h)(1)(iii) does not constitute a PSA.
1. By the organization in acquiring or improving the property;
2. Before the acquisition or improvement of the property if the debt was incurred only to acquire or improve the property; or
3. After the acquisition or improvement of the property if the debt was incurred only to acquire or improve the property and was reasonably foreseeable at the time of such acquisition or improvement. For further explanation, see Code section 514(c).
Plans using the accrual basis of accounting should not include contributions designated for years before the 2009 plan year on line 2a.
As current value reporting is required for the Form 5500, assets are revalued to current value at the end of the plan year. For purposes of this form, the
The sum of the realized gain (or loss) on assets sold or exchanged during the plan year is to be calculated as follows:
1. Enter in 2b(4)(A), column (a), the sum of the amount received for these former assets;
2. Enter in 2b(4)(B), column (a), the sum of the current value of these former assets as of the beginning of the plan year and the purchase price for assets both acquired and disposed of during the plan year; and
3. Enter in 2b(4)(C), column (b), the result obtained when 2b(4)(B) is subtracted from 2b(4)(A). If entering a negative number, enter a minus sign “-” to the left of the number.
Bond write-offs must be reported as realized losses.
1. The sum of the current value of the plan's interest in each entity at the end of the plan year,
2. Minus the current value of the plan's interest in each entity at the beginning of the plan year,
3. Plus any amounts transferred out of each entity by the plan during the plan year, and
4. Minus any amounts transferred into each entity by the plan during the plan year.
Enter the net gain as a positive number or the net loss as a negative number.
Enter the combined net investment gain or loss from all CCTs and PSAs, regardless of whether a DFE Form 5500 was filed for the CCTs and PSAs.
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If either of these circumstances does not apply, a deemed distribution of a participant loan must not be reported on line 2g. Instead, the current value of the participant loan (including interest accruing thereon after the deemed distribution) must be included on line 1c(8), column (b) (participant loans—end of year), without regard to the occurrence of a deemed distribution.
The amount to be reported on line 2g of Schedule H or Schedule I must be reduced if, during the plan year, a participant resumes repayment under a participant loan reported as a deemed distribution on line 2g for any earlier year. The amount of the required reduction is the amount of the participant loan reported as a deemed distribution on line 2g for the earlier year. If entering a negative number, enter a minus sign “−” to the left of the number. The current value of the participant loan must then be included in line 1c(8), column (b), of Schedule H (participant loans—end of year) or in line 1a, column (b), of Schedule I (plan assets—end of year).
Although certain participant loans that are deemed distributed are to be reported on line 2g of the Schedule H or Schedule I, and are not to be reported on the Schedule H or Schedule I as an asset thereafter (unless the participant resumes repayment under the loan in a later year), they are still considered outstanding loans and are not treated as actual distributions for certain purposes. See Q&As 12 and 19 of Treasury Regulation section 1.72(p)-1.
If this Schedule H is filed for a DFE, report the value of all asset transfers to the DFE, including those resulting from contributions to participating plans on line 2l(1), and report the total value of all assets transferred out of the DFE, including assets withdrawn for disbursement as benefit payments by participating plans, on line 2l(2). Contributions and benefit payments are considered to be made to/by the plan (not to/by a DFE).
29 CFR 2520.103-1(b) requires that any separate financial statements prepared in order for the IQPA to form the opinion and notes to these financial statements must be attached to the Form 5500 Return/Report. Any separate statements must include the information required to be disclosed in Parts I and II of the Schedule H; however, they may be aggregated into categories in a manner other than that used on the Schedule H. The separate statements must consist of reproductions of Parts I and II or statements incorporating by references Parts I and II. See ERISA section 103(a)(3)(A), and the DOL regulations 29 CFR 2520.103-1(a)(2) and (b), 2520.103-2, and 2520.104-50.
Delinquent participant contributions reported on line 4a should be treated as part of the separate schedules referenced in ERISA section 103(a)(3)(A) and 29 CFR 2520.103-1(b) and 2520.103-2(b) for purposes of preparing the IQPA's opinion described on line 3 even though they are no longer required to be listed on Part III of the Schedule G. If the information contained on line 4a is not presented in accordance with regulatory requirements, i.e., when the IQPA concludes that the scheduled information required by Line 4a does not contain all the required information or contains information that is inaccurate or is inconsistent with the plan's financial statements, the IQPA report must make the appropriate disclosures in accordance with generally accepted auditing standards. Delinquent participant contributions that are exempt because they satisfy the DOL voluntary fiduciary correction program (VFCP) requirements and the conditions of prohibited transaction exemption (PTE) 2002-51 do not need to be treated as part of the schedule of nonexempt party-in-interest transactions.
If the required IQPA's report is not attached to the Form 5500 Return/Report, the filing is subject to rejection as incomplete and penalties may be assessed.
The term “similar institution” as used here does not extend to securities brokerage firms (see DOL Advisory Opinion 93-21A). See 29 CFR 2520.103-8 and 2520.103-12(d).
These regulations do not exempt the plan administrator from engaging an IQPA or from attaching the IQPA's report to the Form 5500 Return/Report. If you check line 3b, you must also check the appropriate box on line 3a to identify the type of opinion offered by the IQPA.
Do not check the box on line 3d(2) if the Form 5500 Return/Report is filed for a 103-12 IE or a GIA. A deferral of the IQPA's opinion is not permitted for a 103-12 IE or a GIA. If an E or G is entered on Form 5500, Part I, line A(4), an IQPA's opinion must be attached to the Form 5500 Return/Report, and the type of opinion must be reported on Schedule H, line 3a.
Report investments in CCTs, PSAs, MTIAs, and 103-12 IEs, but not the investments made by these entities. Plans with all of their funds held in a master trust must check “No” on lines 4b, 4c, 4i, and 4j. CCTs and PSAs do not complete Part IV. MTIAs, 103-12 IEs, and GIAs do not complete lines 4a, 4e, 4f, 4g, 4h, 4k, 4m, or 4n. 103-12 IEs also do not complete lines 4j and 4l. MTIAs also do not complete line 4l.
Plans that check “Yes” must enter the aggregate amount of all late contributions for the year. The total amount of the delinquent contributions must be included on line 4a of the Schedule H or I, as applicable, for the year in which the contributions were delinquent and must be carried over and reported again on line 4a of the Schedule H or I, as applicable, for each subsequent year until the year after the violation has been fully corrected, which correction includes payment of the late contributions and reimbursement of the plan for lost earnings or profits. If no participant contributions were received or withheld by the employer during the plan year, answer “No.”
Participant loan repayments paid to and/or withheld by an employer for purposes of transmittal to the plan that were not transmitted to the plan in a timely fashion must be reported either on line 4a in accordance with the reporting requirements that apply to delinquent participant contributions or on line 4d.
TIP: Delinquent participant contributions reported on line 4a must be treated as part of the separate schedules referenced in ERISA section 103(a)(3)(A) and 29 CFR 2520.103-1(b) and 2520.103-2(b) for purposes of preparing the IQPA's opinion described on line 3 even though they are no longer required to be listed on Part III of the Schedule G. If the information contained on line 4a is not presented in accordance with regulatory requirements, i.e., when the IQPA concludes that the scheduled information required by line 4a does not contain all the required information or contains information that is inaccurate or is inconsistent with the plan's financial statements, the IQPA report must make the appropriate disclosures in accordance with generally accepted auditing standards. For more information,
The VFCP describes how to apply the specific transactions covered (which transactions include delinquent participant contributions to pension and welfare plans), and acceptable methods for correcting violations. In addition, applicants that satisfy both the VFCP requirements and the conditions of PTE 2002-51 are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also
All delinquent participant contributions must be reported on line 4a even if violations have been corrected. Information about the VFCP is also available on the Internet at
See the instructions for Part III of the Schedule G concerning non-exempt transactions and parties-in-interest.
You may indicate that an application for an administrative exemption is pending. If you are unsure as to whether a transaction is exempt or not, you should consult with either the plan's IQPA or legal counsel or both.
TIP: Applicants that satisfy the VFCP requirements and the conditions of PTE 2002-51 (see the instructions for line 4a) are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also relieved from the obligation to file the IRS Form 5330 with the IRS. For more information,
CAUTION: Willful failure to report is a criminal offense. See ERISA section 501.
An accurate assessment of fair market value is essential to a pension plan's ability to comply with the requirements set forth in the Code (e.g., the exclusive benefit rule of Code section 401(a)(2), the limitations on benefits and contributions under Code section 415, and the minimum funding requirements under Code section 412) and must be determined annually.
Examples of assets that may not have a readily determinable value on an established market (e.g., NYSE, AMEX, over the counter, etc.) include real estate, nonpublicly traded securities, shares in a limited partnership, and collectibles. Do not check “Yes” on line 4g for mutual fund shares or insurance company investment contracts. Also do not check “Yes” on line 4g if the plan is a defined contribution plan and the only assets the plan holds that do not have a readily determinable value on an established market are: (1) Participant loans not in default or (2) assets over which the participant exercises control within the meaning of section 404(c) of ERISA.
Although the current value of plan assets must be determined each year, there is no requirement that the assets (other than certain nonpublicly traded employer securities held in ESOPs) be valued every year by independent third-party appraisers.
Enter in the amount column the fair market value of the assets referred to on line 4g whose value was not readily determinable on an established market and which were not valued by an independent third-party appraiser in the plan year. Generally, as it relates to these questions, an appraisal by an independent third party is an evaluation of the value of an asset prepared by an individual or firm who knows how to judge the value of such assets and does not have an ongoing relationship with the plan or plan fiduciaries except for preparing the appraisals.
Assets held for investment purposes shall include:
• Any investment asset held by the plan on the last day of the plan year; and
• Any investment asset purchased during the plan year and sold before the end of the plan year except:
1. Debt obligations of the U.S. or any U.S. agency.
2. Interests issued by a company registered under the Investment Company Act of 1940 (e.g., a mutual fund).
3. Bank certificates of deposit with a maturity of one year or less.
4. Commercial paper with a maturity of 9 months or less if it is valued in the highest rating category by at least two nationally recognized statistical rating services and is issued by a company required to file reports with the Securities and Exchange Commission under section 13 of the Securities Exchange Act of 1934.
5. Participations in a bank common or collective trust.
6. Participations in an insurance company pooled separate account.
7. Securities purchased from a broker-dealer registered under the Securities Exchange Act of 1934 and either: (1) Listed on a national securities exchange and registered under section 6 of the Securities Exchange Act of 1934 or (2) quoted on NASDAQ.
Assets held for investment purposes shall not include any investment that was not held by the plan on the last day of the plan year if that investment is reported in the annual report for that plan year in any of the following:
1. The schedule of loans or fixed income obligations in default required by Schedule G, Part I;
2. The schedule of leases in default or classified as uncollectible required by Schedule G, Part II;
3. The schedule of non-exempt transactions required by Schedule G, Part III; or
4. The schedule of reportable transactions required by Schedule H, line 4j.
In column (a), place an asterisk (*) on the line of each identified person known to be a party-in-interest to the plan. In column (c), include any restriction on transferability of corporate securities. (Include lending of securities permitted under Prohibited Transactions Exemption 81-6.)
This schedule must be clearly labeled “Schedule H, line 4i—Schedule of Assets (Held At End of Year).”
The second schedule required to be attached is a schedule of investment assets that were both acquired and disposed of within the plan year. This schedule must be clearly labeled “Schedule H, line 4i—Schedule of Assets (Acquired and Disposed of Within Year).”
(1) Participant loans under an individual account plan with investment experience segregated for each account, that are made in accordance with 29 CFR 2550.408b-1 and that are secured solely by a portion of the participant's vested accrued benefit, may be aggregated for reporting purposes in item 4i. Under identity of borrower enter “Participant loans,” under rate of interest enter the lowest rate and the highest rate charged during the plan year (e.g., 8%-10%), under the cost and proceeds columns enter zero, and under current value enter the total amount of these loans. (2) Column (d) cost information for the Schedule of Assets (Held At End of Year) and the column (c) cost of acquisitions information for the Schedule of Assets (Acquired and Disposed of Within Year) may be omitted when reporting investments of an individual account plan that a participant or beneficiary directed with respect to assets allocated to his or her account (including a negative election authorized under the terms of the plan). Likewise, investments in Code section 403(b)(1) annuity contracts and Code section 403(b)(7) custodial accounts may also be omitted. (3) Participant-directed brokerage account assets reporting in the aggregate on line 1c(15) must be treated as one asset held for investment for purposes of the line 4i schedules, except investments in tangible personal property must continue to be reported as separate assets on the line 4i schedules. Investments in Code section 403(b) annuity contracts and Code section 403(b)(7) custodial accounts should also be treated as one asset held for investment for purposes on the line 4i schedules.
A reportable transaction includes:
1. A single transaction within the plan year in excess of 5% of the current value of the plan assets;
2. Any series of transactions with or in conjunction with the same person, involving property other than securities, which amount in the aggregate within the plan year (regardless of the category of asset and the gain or loss on any transaction) to more than 5% of the current value of plan assets;
3. Any transaction within the plan year involving securities of the same issue if within the plan year any series of transactions with respect to such securities amount in the aggregate to more than 5% of the current value of the plan assets; and
4. Any transaction within the plan year with respect to securities with, or in conjunction with, a person if any prior or subsequent single transaction within the plan year with such person, with respect to securities, exceeds 5% of the current value of plan assets.
The 5% figure is determined by comparing the current value of the transaction at the transaction date with the current value of the plan assets at the beginning of the plan year. If this is the initial plan year, you may use the current value of plan assets at the end of the plan year to determine the 5% figure.
If the assets of two or more plans are maintained in one trust, except as provided below, the plan's allocable portion of the transactions of the trust shall be combined with the other transactions of the plan, if any, to determine which transactions (or series of transactions) are reportable (5%) transactions.
For investments in common/collective trusts (CCTs), pooled separate accounts (PSAs), 103-12 IEs and registered investment companies, determine the 5% figure by comparing the transaction date value of the acquisition and/or disposition of units of participation or shares in the entity with the current value of the plan assets at the beginning of the plan year. If the Schedule H is attached to a Form 5500 filed for a plan with all plan funds held in a master trust, check “No” on line 4j. Plans with assets in a master trust that have other transactions should determine the 5% figure by subtracting the current value of plan assets held in the master trust from the current value of all plan assets at the beginning of the plan year and check “Yes” or “No,” as appropriate. Do not include individual transactions of CCTs, PSAs, master trust investment accounts (MTIAs), 103-12 IEs, and registered investment companies in which this plan or DFE invests.
In the case of a purchase or sale of a security on the market, do not identify the person from whom purchased or to whom sold.
Special rule for certain participant-directed transactions. Transactions under an individual account plan that a participant or beneficiary directed with respect to assets allocated to his or her account (including a negative election authorized under the terms of the plan) should not be treated for purposes of line 4j as reportable transactions. The current value of all assets of the plan, including these participant-directed transactions, should be included in determining the 5% figure for all other transactions.
Check “No” for a welfare benefit plan that is still liable to pay benefits for claims incurred before the termination date, but not yet paid. See 29 CFR 2520.104b-2(g)(2)(ii).
CAUTION: A Form 5500 must be filed for each year the plan has assets, and, for a welfare benefit plan, if the plan is still liable to pay benefits for claims incurred before the termination date, but not yet paid. See 29 CFR 2520.104b-2(g)(2)(ii).
Do not use a social security number in lieu of an EIN or include an attachment that contains visible social security numbers. The Schedule H is open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule H or the inclusion of a visible social security number on an attachment may result in the rejection of the filing.
A distribution of all or part of an individual participant's account balance that is reportable on Form 1099-R should not be included on line 5b. Do not submit Form 1099-R with the Form 5500.
CAUTION: IRS Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business, must be filed at least 30 days before any plan merger or consolidation or any transfer of plan assets or liabilities to another plan. There is a penalty for not filing Form 5310-A on time. In addition, a transfer of benefit liabilities involving a plan covered by PBGC insurance may be reportable to the PBGC.
Schedule I (Form 5500), Financial Information—Small Plan, must be attached to a Form 5500 filed for pension benefit plans and welfare benefit plans that covered fewer than 100 participants as of the beginning of the plan year and that are not eligible to file Form 5500-SF.
If a Schedule I was filed for the plan for the 2008 plan year and the plan covered fewer than 121 participants as of the beginning of the 2009 plan year, the Schedule I may be completed instead of a Schedule H.
Exception: Certain insured, unfunded or combination unfunded/insured welfare plans are exempt from filing the Form 5500 and the Schedule I. In addition, certain fully insured pension benefit plans are exempt from completing the Schedule I. See the Form 5500 instructions for Who Must File and Limited Pension Plan Reporting for more information.
Check the Schedule I box on the Form 5500 (Part II, line 10b(2)) if a Schedule I is attached to the Form 5500. Do not attach both a Schedule I and a Schedule H to the same Form 5500.
Do not use a social security number in line D in lieu of an EIN. The Schedule I and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule I or any of its attachments may result in the rejection of the filing.
EINs may be obtained by applying for one on Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
Use the cash, modified cash, or accrual basis for recognition of transactions, as long as you use one method consistently. Round off all amounts reported on the Schedule I to the nearest dollar. Any other amounts are subject to rejection. Check all subtotals and totals carefully.
If the assets of two or more plans are maintained in one fund, such as when
If assets of one plan are maintained in two or more trust funds, report the combined financial information in Part I.
Current value means fair market value where available. Otherwise, it means the fair value as determined in good faith under the terms of the plan by a trustee or a named fiduciary, assuming an orderly liquidation at time of the determination. See ERISA section 3(26).
Amounts reported on lines 1a, 1b, and 1c for the beginning of the plan year must be the same as reported for the end of the plan year for corresponding lines on the return/report for the preceding plan year.
Do not include contributions designated for the 2009 plan year in column (a).
Line 1a. A plan with assets held in common/collective trusts (CCTs), pooled separate accounts (PSAs), master trust investment accounts (MTIAs), and/or 103-12 IEs must also attach Schedule D.
Use the same method for determining the value of the plan's interest in an insurance company general account (unallocated contracts) that you used for line 4 of Schedule A, or, if line 4 is not required, line 7 of Schedule A.
Do not include in column (b) a participant loan that has been deemed distributed during the plan year under the provisions of Code section 72(p) and Treasury Regulation section 1.72(p)-1, if both of the following circumstances apply:
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If the deemed distributed participant loan is included in column (a) and both of these circumstances apply, report the loan as a deemed distribution on line 2g. However, if either of these circumstances does not apply, the current value of the participant loan (including interest accruing thereon after the deemed distribution) should be included in column (b) without regard to the occurrence of a deemed distribution.
After a participant loan that has been deemed distributed is reported on line 2g, it is no longer to be reported as an asset on Schedule H or Schedule I unless, in a later year, the participant resumes repayment under the loan. However, such a loan (including interest accruing thereon after the deemed distribution) that has not been repaid is still considered outstanding for purposes of applying Code section 72(p)(2)(A) to determine the maximum amount of subsequent loans. Also, the deemed distribution is not treated as an actual distribution for other purposes, such as the qualification requirements of Code section 401, including, for example, the determination of top-heavy status under Code section 416 and the vesting requirements of Treasury Regulation section 1.411(a)-7(d)(5). See Q&As 12 and 19 of Treasury Regulation section 1.72(p)-1.
The entry on line 1a, column (b), of Schedule I (plan assets—end of year) or on line 1c(8), column (b), of Schedule H (participant loans—end of year) must include the current value of any participant loan reported as a deemed distribution on line 2g for any earlier year if, during the plan year, the participant resumes repayment under the loan. In addition, the amount to be entered on line 2g must be reduced by the amount of the participant loan reported as a deemed distribution on line 2g for the earlier year.
1. Benefit claims that have been processed and approved for payment by the plan but have not been paid (including all incurred but not reported welfare benefit claims);
2. Accounts payable obligations owed by the plan that were incurred in the normal operations of the plan but have not been paid; and
3. Other liabilities such as acquisition indebtedness and any other amount owed by the plan.
1. Interest on investments (including money market accounts, sweep accounts, STIF accounts, etc.)
2. Dividends. (Accrual basis plans should include dividends declared for all stock held by the plan even if the dividends have not been received as of the end of the plan year.)
3. Rents from income-producing property owned by the plan.
4. Royalties.
5. Net gain or loss from the sale of assets.
6. Other income, such as unrealized appreciation (depreciation) in plan assets. To compute this amount subtract the current value of all assets at the beginning of the year plus the cost of any assets acquired during the plan year from the current value of all assets at the end of the year minus assets disposed of during the plan year.
Generally, these payments discussed in (3) are made to individual providers of welfare benefits such as legal services, day care services, and training and apprenticeship services. If securities or other property are
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If either of these circumstances does not apply, a deemed distribution of a participant loan should not be reported on line 2g. Instead, the current value of the participant loan including interest accruing thereon after the deemed distribution) should be included on line 1a, column (b) (plan assets—end of year), without regard to the occurrence of a deemed distribution.
The amount to be reported on line 2g of Schedule H or Schedule I must be reduced if, during the plan year, a participant resumes repayment under a participant loan reported as a deemed distribution on line 2g for any earlier year. The amount of the required reduction is the amount of the participant loan that was reported as a deemed distribution on line 2g for the earlier year. If entering a negative number, enter a minus sign “−” to the left of the number. The current value of the participant loan must then be included in line 1c(8), column (b), of Schedule H (participant loans—end of year) or in line 1a, column (b), of Schedule I (plan assets—end of year).
Although certain participant loans deemed distributed are to be reported on line 2g of the Schedule H or Schedule I, and are not to be reported on the Schedule H or Schedule I as an asset thereafter (unless the participant resumes repayment under the loan in a later year), they are still considered outstanding loans and are not treated as actual distributions for certain purposes. See Q&As 12 and 19 of Treasury Regulation section 1.72(p)-1.
1. Salaries to employees of the plan;
2. Fees and expenses for accounting, actuarial, legal, investment management, investment advice, and securities brokerage services;
3. Contract administrator fees;
4. Fees and expenses for individual plan trustees, including reimbursement for travel, seminars, and meeting expenses; and
5. Fees and expenses paid for valuations and appraisals of real estate and closely held securities.
A distribution of all or part of an individual participant's account balance that is reportable on Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., should not be included on line 2l but must be included in benefit payments reported on line 2e. Do not submit IRS Form 1099-R with Form 5500.
1. Under the plan, the participant loan is treated as a directed investment solely of the participant's individual account; and
2. As of the end of the plan year, the participant is not continuing repayment under the loan.
If both of these circumstances apply, report the loan as a deemed distribution on line 2g. However, if either of these circumstances does not apply, the current value of the participant loan (including interest accruing thereon after the deemed distribution) should be
After participant loans have been deemed distributed and reported on line 2g of the Schedule I or H, they are no longer required to be reported as assets on the Schedule I or H. However, such loans (including interest accruing thereon after the deemed distribution) that have not been repaid are still considered outstanding for purposes of applying Code section 72(p)(2)(A) to determine the maximum amount of subsequent loans. Also, the deemed distribution is not treated as an actual distribution for other purposes, such as the qualification requirements of Code section 401, including, for example, the determination of top-heavy status under Code section 416 and the vesting requirements of Treasury Regulation section 1.411(a)-7(d)(5). See Q&As 12 and 19 of Treasury Regulation section 1.72(p)-1.
Answer all lines either “Yes” or “No,” and if lines 4a through 4i are “Yes” or line 4l is “Yes,” an amount must be entered. If you check “No” on line 4k you must attach the report of an independent qualified public accountant (IQPA) or a statement that the plan is eligible and elects to defer attaching the IQPA's opinion pursuant to 29 CFR 2520.104-50 in connection with a short plan year of seven months or less. Plans with all of their funds held in a master trust should check “No” on Schedule I, lines 4b, c, and i.
Plans that check “Yes” must enter the aggregate amount of all late contributions for the year. The total amount of the delinquent contributions must be included on line 4a of the Schedule H or I, as applicable, for the year in which the contributions were delinquent and must be carried over and reported again on line 4a of the Schedule H or I, as applicable, for each subsequent year until the year after the violation has been fully corrected, which correction includes payment of the late contributions and reimbursement of the plan for lost earnings or profits. If no participant contributions were received or withheld by the employer during the plan year, answer “No.”
Participant loan repayments paid to and/or withheld by an employer for purposes of transmittal to the plan that were not transmitted to the plan in a timely fashion must be reported either on line 4a in accordance with the reporting requirements that apply to delinquent participant contributions or on line 4d.
TIP: For those Schedule I filers required to submit an IQPA report, delinquent participant contributions reported on line 4a must be treated as part of the separate schedules referenced in ERISA section 103(a)(3)(A) and 29 CFR 2520.103-1(b) and 2520.103-2(b) for purposes of preparing the IQPA's opinion even though they are no longer required to be listed on Part III of the Schedule G. If the information contained on line 4a is not presented in accordance with regulatory requirements, i.e., when the IQPA concludes that the scheduled information required by line 4a does not contain all the required information or contains information that is inaccurate or is inconsistent with the plan's financial statements, the IQPA report must make the appropriate disclosures in accordance with generally accepted auditing standards. For more information,
The VFCP describes how to apply, the specific transactions covered (which transactions include delinquent participant contributions to pension and welfare plans), and acceptable methods for correcting violations. In addition, applicants that satisfy both the VFCP requirements and the conditions of PTE 2002-51 are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also relieved from the obligation to file the IRS Form 5330 with the IRS. For more information,
TIP: Applicants that satisfy the VFCP requirements and the conditions of PTE 2002-51 (see the instructions for line 4a) are eligible for immediate relief from payment of certain prohibited transaction excise taxes for certain corrected transactions, and are also relieved from the obligation to file the Form 5330 with the IRS. For more information,
A. Any fiduciary (including, but not limited to, any administrator, officer, trustee or custodian), counsel, or employee of the plan;
B. A person providing services to the plan;
C. An employer, any of whose employees are covered by the plan;
D. An employee organization, any of whose members are covered by the plan;
E. An owner, direct or indirect, of 50% or more of: (1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of a corporation, (2) the capital interest or the profits interest of a partnership, or (3) the beneficial interest of a trust or unincorporated enterprise that is an employer or an employee organization described in C or D;
F. A relative of any individual described in A, B, C, or E;
G. A corporation, partnership, or trust or estate of which (or in which) 50% or more of: (1) The combined voting power of all classes of stock entitled to vote or the total value of shares of all classes of stock of such corporation, (2) the capital interest or profits interest of such partnership, or (3) the beneficial interest of such trust or estate is owned directly or indirectly, or held by, persons described in A, B, C, D, or E;
H. An employee, officer, director (or an individual having powers or responsibilities similar to those of officers or directors), or a 10% or more shareholder, directly or indirectly, of a person described in B, C, D, E, or G, or of the employee benefit plan; or
I. A 10% or more (directly or indirectly in capital or profits) partner or joint venturer of a person described in B, C, D, E, or G.
Nonexempt transactions with a party-in-interest include any direct or indirect:
A. Sale or exchange, or lease, of any property between the plan and a party-in-interest.
B. Lending of money or other extension of credit between the plan and a party-in-interest.
C. Furnishing of goods, services, or facilities between the plan and a party-in-interest.
D. Transfer to, or use by or for the benefit of, a party-in-interest, of any income or assets of the plan.
E. Acquisition, on behalf of the plan, of any employer security or employer real property in violation of ERISA section 407(a).
F. Dealing with the assets of the plan for a fiduciary's own interest or own account.
G. Acting in a fiduciary's individual or any other capacity in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.
H. Receipt of any consideration for his or her own personal account by a party-in-interest who is a fiduciary from any party dealing with the plan in connection with a transaction involving the income or assets of the plan.
Plans are permitted under certain conditions to purchase fiduciary liability insurance with plan assets. These fiduciary liability insurance policies are not written specifically to protect the plan from losses due to dishonest acts and are not fidelity bonds reported in line 4e.
CAUTION: Willful failure to report is a criminal offense. See ERISA section 501.
An accurate assessment of fair market value is essential to a pension plan's ability to comply with the requirements set forth in the Code (e.g., the exclusive benefit rule of Code section 401(a)(2), the limitations on benefits and contributions under Code section 415, and the minimum funding requirements under Code section 412) and must be determined annually.
Examples of assets that may not have a readily determinable value on an established market (e.g., NYSE, AMEX, over the counter, etc.) include real estate, nonpublicly traded securities, shares in a limited partnership, and collectibles. Do not check “Yes” on line 4g for mutual fund shares or insurance company investment contracts. Also do not check “Yes” on line 4g if the plan is a defined contribution plan and the only assets the plan holds, that do not have a readily determinable value on an established market are: (1) Participant loans not in default, or (2) assets over which the participant exercises control within the meaning of section 404(c) of ERISA.
Although the current value of plan assets must be determined each year, there is no requirement that the assets (other than certain nonpublicly traded employer securities held in ESOPs) be valued every year by independent third-party appraisers.
Enter in the amount column the fair market value of the assets referred to on line 4g whose value was not readily determinable on an established market and which were not valued by an independent third-party appraiser in the plan year. Generally, as it relates to these questions, an appraisal by an independent third party is an evaluation of the value of an asset prepared by an individual or firm who knows how to judge the value of such assets and does not have an ongoing relationship with the plan or plan fiduciaries except for preparing the appraisals.
Check “No” for a welfare benefit plan that is still liable to pay benefits for claims that were incurred before the termination date, but not yet paid. See 29 CFR 2520.104b-2(g)(2)(ii).
1. A small welfare plan, or
2. A small pension plan for a plan year that began on or after April 18, 2001, that complies with the conditions of 29 CFR 2520.104-46 summarized below.
Check “No” and attach the report of the IQPA meeting the requirements of 29 CFR 2520.103-1(b) if you are not claiming the waiver. Also check “No,” and attach the required IQPA reports or the required explanatory statement if you are relying on 29 CFR 2520.104-50 in connection with a short plan year of seven months or less. At the top of any attached 2520.104-50 statement, enter “2520.104-50 Statement, Schedule I, Line 4k.”
For more information on the requirements for deferring an IQPA report pursuant to 29 CFR 2520.104-50 in connection with a short plan year of seven months or less and the contents of the required explanatory statement, see the instructions for Schedule H, line 3d(2) or call the EFAST Help Line at [number to be provided].
For plans that check “No,” the IQPA report must make the appropriate disclosures in accordance with generally accepted auditing standards if the information reported on line 4a is not presented in accordance with regulatory requirements.
The following summarizes the conditions of 29 CFR 2520.104-46 that must be met for a small pension plan with a plan year beginning on or after April 18, 2001, to be eligible for the waiver. For more information regarding these requirements, see the EBSA's Frequently Asked Questions On The Small Pension Plan Audit Waiver Regulation and 29 CFR 2520.104-46, which are available at
Condition 1: At least 95 percent of plan assets are “qualifying plan assets” as of the end of the preceding plan year, or any person who handles assets of the plan that do not constitute qualifying plan assets is bonded in accordance with the requirements of ERISA section 412 (see the instructions for line 4e), except that the amount of the bond shall
The determination of the “percent of plan assets” as of the end of the preceding plan year and the amount of any required bond must be made at the beginning of the plan's reporting year for which the waiver is being claimed. For purposes of this line, you will have satisfied the requirement to make these determinations at the beginning of the plan reporting year for which the waiver is being claimed if they are made as soon after the date when such year begins as the necessary information from the preceding reporting year can practically be ascertained. See 29 CFR 2580.412-11, 14 and 19 for additional guidance on these determinations, and 29 CFR 2580.412-15 for procedures to be used for estimating these amounts if there is no preceding plan year.
The term “qualifying plan assets,” for purposes of this line, means:
1. Any assets held by any of the following regulated financial institutions:
a. A bank or similar financial institution as defined in 29 CFR 2550.408b-4(c);
b. An insurance company qualified to do business under the laws of a state;
c. An organization registered as a broker-dealer under the Securities Exchange Act of 1934; or
d. Any other organization authorized to act as a trustee for individual retirement accounts under Code section 408.
2. Shares issued by an investment company registered under the Investment Company Act of 1940 (e.g., mutual funds);
3. Investment and annuity contracts issued by any insurance company qualified to do business under the laws of a state;
4. In the case of an individual account plan, any assets in the individual account of a participant or beneficiary over which the participant or beneficiary has the opportunity to exercise control and with respect to which the participant or beneficiary is furnished, at least annually, a statement from a regulated financial institution referred to above describing the assets held or issued by the institution and the amount of such assets;
5. Qualifying employer securities, as defined in ERISA section 407(d)(5); and
6. Participant loans meeting the requirements of ERISA section 408(b)(1).
Condition 2: The administrator must include in the summary annual report (SAR) or, in the case of plans subject to section 101(f) of the Act, the annual funding notice (described in § 2520.101-5), furnished to participants and beneficiaries in accordance with 29 CFR 2520.104b-10:
1. The name of each regulated financial institution holding or issuing qualifying plan assets and the amount of such assets reported by the institution as of the end of the plan year (this SAR disclosure requirement does not apply to qualifying employer securities, participant loans and individual account assets described in paragraphs 4, 5 and 6 above);
2. The name of the surety company issuing the fidelity bond, if the plan has more than 5% of its assets in non-qualifying plan assets;
3. A notice that participants and beneficiaries may, upon request and without charge, examine or receive from the plan evidence of the required bond and copies of statements from the regulated financial institutions describing the qualifying plan assets; and
4. A notice that participants and beneficiaries should contact the EBSA Regional Office if they are unable to examine or obtain copies of the regulated financial institution statements or evidence of the required bond, if applicable.
A Model Notice that plans can use to satisfy the enhanced SAR (or Annual Funding Notice) disclosure requirements to be eligible for the audit waiver is available as an Appendix to 29 CFR 2520.104-46.
Condition 3: In addition, in response to a request from any participant or beneficiary, the administrator, without charge to the participant or beneficiary, must make available for examination, or upon request furnish copies of, each regulated financial institution statement and evidence of any required bond.
Examples. Plan A, which has a plan year that began on or after April 18, 2001, had total assets of $600,000 as of the end of the 2000 plan year that included: Investments in various bank, insurance company and mutual fund products of $520,000; investments in qualifying employer securities of $40,000; participant loans (meeting the requirements of ERISA section 408(b)(1)), totaling $20,000; and a $20,000 investment in a real estate limited partnership. Because the only asset of the plan that did not constitute a “qualifying plan asset” is the $20,000 real estate limited partnership investment and that investment represents less than 5% of the plan's total assets, no fidelity bond is required as a condition for the plan to be eligible for the waiver for the 2001 plan year.
Plan B is identical to Plan A except that of Plan B's total assets of $600,000 as of the end of the 2000 plan year, $558,000 constitutes “qualifying plan assets” and $42,000 constitutes non-qualifying plan assets. Because 7%—more than 5%—of Plan B's assets do not constitute “qualifying plan assets,” Plan B, as a condition to be eligible for the waiver for the 2001 plan year, must ensure that it has a fidelity bond in an amount equal to at least $42,000 covering persons handling its non-qualifying plan assets. Inasmuch as compliance with ERISA section 412 generally requires the amount of the bond be not less than 10% of the amount of all the plan's funds or other property handled, the bond acquired for section 412 purposes may be adequate to cover the non-qualifying plan assets without an increase (i.e., if the amount of the bond determined to be needed for the relevant persons for section 412 purposes is at least $42,000). As demonstrated by the foregoing example, where a plan has more than 5% of its assets in non-qualifying plan assets, the required bond is for the total amount of the non-qualifying plan assets, not just the amount in excess of 5%.
If you need further information regarding these requirements, see 29 CFR 2520.104-46 which is available at
CAUTION: A Form 5500 must be filed for each year the plan has assets, and, for a welfare benefit plan, if the plan is still liable to pay benefits for claims that were incurred before the termination date, but not yet paid.
Do not use a social security number in lieu of an EIN or include an attachment that contains visible social security numbers. The Schedule I and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a social security number on this Schedule I or the inclusion of a visible social security number on an attachment may result in the rejection of the filing.
A distribution of all or part of an individual participant's account balance that is reportable on IRS Form 1099-R should not be included on line 5b. Do not submit IRS Form 1099-R with the Form 5500.
CAUTION: IRS Form 5310-A, Notice of Plan Merger or Consolidation, Spinoff, or Transfer of Plan Assets or Liabilities; Notice of Qualified Separate Lines of Business, must be filed at least 30 days before any plan merger or consolidation or any transfer of plan assets or liabilities to another plan. There is a penalty for not filing IRS Form 5310-A on time. In addition, a transfer of benefit liabilities involving a plan covered by PBGC insurance may be reportable to the PBGC.
Schedule R (Form 5500), Retirement Plan Information, reports certain information on plan distributions, funding, and the adoption of amendments increasing the value of benefits in a defined benefit pension plan, as well as certain information on ESOPs and multiemployer defined benefit plans.
Schedule R must be attached to a Form 5500 filed for both tax qualified and nonqualified pension benefit plans. The parts of the Schedule R that must be completed depend on whether the plan is subject to the minimum funding standards of Code section 412 or ERISA section 302 and the type of plan.
Exceptions: (1) Schedule R should not be completed when the Form 5500 Return/Report is filed for a pension plan that uses, as the sole funding vehicle for providing benefits, individual retirement accounts or annuities (as described in Code section 408).
(2) Schedule R also should not be completed if each of the following conditions is met:
• The plan is not a defined benefit plan or otherwise subject to the minimum funding standards of Code section 412 or ERISA section 302.
• No plan benefits that would be reportable on line 1 of Part I of this Schedule R were distributed during the plan year. See the instructions for Part I, line 1, below.
• No benefits, as described in the instructions for Part I, line 2, below, were paid during the plan year other than by the plan sponsor or plan administrator. (This condition is not met if benefits were paid by the trust or any other payor(s) which are reportable on IRS Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc, using an EIN other than that of the plan sponsor or plan administrator reported on line 2b or 3b of Form 5500.)
• Unless the plan is a profit-sharing, ESOP or stock bonus plan, no plan benefits of living or deceased participants were distributed during the plan year in the form of a single sum distribution. See the instructions for Part I, line 3, below.
• The plan is not an ESOP.
• The plan is not a multiemployer defined benefit plan.
Check the Schedule R box on the Form 5500 (Part II, line 10a(1)) if a Schedule R is attached to the Form 5500.
Do not use a Social Security number in line D in lieu of an EIN. The Schedule R and its attachments are open to public inspection, and the contents are public information and are subject to publication on the Internet. Because of privacy concerns, the inclusion of a Social Security number on this Schedule R or any of its attachments may result in the rejection of the filing.
EINs may be obtained by applying for one on IRS Form SS-4, Application for Employer Identification Number, as soon as possible. You can obtain an IRS Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
“Distribution” includes only payments of benefits during the plan year, in cash, in kind, by purchase for the distributee of an annuity contract from an insurance company, or by distribution of life insurance contracts. It does not include corrective distributions of excess deferrals, excess contributions, or excess aggregate contributions, or the income allocable to any of these amounts. It also does not
“Participant” for purposes of Schedule R means any present of former employee who at any time during the plan year had an accrued benefit (account balance in a defined contribution plan) in the plan.
Complete Part II only if the plan is subject to the minimum funding requirements of Code section 412 or ERISA section 302.
All qualified defined benefit and defined contribution plans are subject to the minimum funding requirements of Code section 412 unless they are described in the exceptions listed under section 412(e)(2). These exceptions include profit-sharing or stock bonus plans, insurance contract plans described in section 412(e)(3), and certain plans to which no employer contributions are made.
Nonqualified employee pension benefit plans are subject to the minimum funding requirements of ERISA section 302 unless specifically exempted under ERISA sections 4(a) or 301(a).
The employer or plan administrator of a single-employer or multiple-employer defined benefit plan that is subject to the minimum funding requirements must file the Schedule SB as an attachment to Form 5500. Schedule MB is filed for multiemployer defined benefit plans and certain money purchase defined contribution plans (whether they are single or multiemployer plans). However, Schedule MB is not required to be filed for a money purchase defined contribution plan that is subject to the minimum funding requirements unless the plan is currently amortizing a waiver of the minimum funding requirements.
1. The requirement is adopted no later than two and one-half months after the close of such plan year (two years for a multiemployer plan);
2. The amendment does not reduce the accrued benefit of any participant determined as of the beginning of such plan year; and
3. The amendment does not reduce the accrued benefit of any participant determined as of the adoption of the amendment unless the plan administrator notified the Secretary of the Treasury of the amendment and the Secretary either approved the amendment or failed to disapprove the amendment within 90 days after the date the notice was filed.
See Temporary Regulations section 11.412(c)-7(b) for details on when and how to make the election and what information to include on the statement of election, which must be filed with the Form 5500 Return/Report.
• Check “No” if no amendments were adopted during this plan year that increased or decreased the value of benefits.
• Check “Increase” if an amendment was adopted during the plan year that increased the value of benefits in any way. This includes an amendment providing for an increase in the amount of benefits or rate of accrual, more generous lump sum factors, COLAs, more rapid vesting, additional payment forms, and/or earlier eligibility for some benefits.
• Check “Decrease” if an amendment was adopted during the plan year that decreased the value of benefits in any way. This includes a decrease in future accruals, closure of the plan to new employees, and accruals being frozen for some or all participants.
• If the amendments that were adopted increased the value of some benefits but decreased the value of others, check “Both.”
1. The loan from the employer corporation to the ESOP qualifies as an exempt loan under DOL regulations at 29 CFR 2550.408b-3 and under Treasury Regulation sections 54.4975-7 and 54.4975-11; and
2. The repayment terms of the loan from the sponsoring corporation to the ESOP are substantially similar to the repayment terms of the loan from the commercial lender to the sponsoring employer.
EINs may be obtained by applying for one on IRS Form SS-4, Application for Employer Identification Number. You can obtain an IRS Form SS-4 by calling 1-800-TAX-FORM (1-800-829-3676) or at the IRS Web Site at
Lines 14-17—[RESERVED]
Lines 18 and 19—[RESERVED]
Compliance with the Employee Retirement Income Security Act (ERISA) begins with knowing the rules. Plan administrators and other plan officials can use this checklist as a quick diagnostic tool for assessing a plan's compliance with certain important ERISA rules; it is not a complete description of all ERISA's rules and it is not a substitute for a comprehensive compliance review. Use of this checklist is voluntary, and it is not to be filed with your Form 5500.
If you answer “No” to any of the questions below, you should review your plan's operations because you may not be in full compliance with ERISA's requirements.
1. Have you provided plan participants with a summary plan description, summaries of any material modifications of the plan, and annual summary financial reports?
2. Do you maintain copies of plan documents at the principal office of the plan administrator for examination by participants and beneficiaries?
3. Do you respond to written participant inquires for copies of plan documents and information within 30 days?
4. Does your plan include written procedures for making benefit claims and appealing denied claims, and are you complying with those procedures?
5. Is your plan covered by a fidelity bond against losses due to fraud or dishonesty?
6. Are the plan's investments diversified so as to minimize the risk of large losses?
7. If the plan permits participants to select the investments in their plan accounts, has the plan provided them with enough information to make informed decisions?
8. Has a plan official determined that the investments are prudent and solely in the interest of the plan's participants and beneficiaries, and evaluated the risks associated with plan investments before making the investments?
9. Did the employer or other plan sponsor send participant contributions to the plan on a timely basis?
10. Did the plan pay participant benefits on time and in the correct amounts?
11. Did the plan give participants and beneficiaries 30 days advance notice before imposing a “blackout period” of at least three consecutive business days during which participants or beneficiaries of a 401(k) or other individual account pension plan were unable to change their plan investments, obtain loans from the plan, or obtain distributions from the plan?
If you answer “Yes” to any of the questions below, you should review your plan's operations because you may not be in full compliance with ERISA's requirements.
1. Has the plan engaged in any financial transactions with persons related to the plan or any plan official? (For example, has the plan made a loan to or participated in an investment with the employer?)
2. Has the plan official used the assets of the plan for his/her own interest?
3. Have plan assets been used to pay expenses that were not authorized in the plan document, were not necessary to the proper administration of the plan, or were more than reasonable in amount?
If you need help answering these questions or want additional guidance about ERISA requirements, a plan official should contact the U.S. Department of Labor Employee Benefits Security Administration office in your region or consult with the plan's legal counsel or professional employee benefit advisor.
We ask for the information on this form to carry out the law as specified in ERISA and in Code sections 6058(a) and 6059(a). You are required to give us the information. We need it to determine whether the plan is operating according to the law.
You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number. Books and records relating to a form or its instructions must be retained as long as their contents may become material in the administration of the Internal Revenue Code or are required to be maintained pursuant to Title I or IV of ERISA. The Form 5500 return/reports are open to public inspection and are subject to publication on the Internet.
The time needed to complete and file the forms listed below reflects the combined requirements of the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation. These times will vary depending on individual circumstances. The estimated average times are:
If you have comments concerning the accuracy of these time estimates or suggestions for making these forms simpler, we would be happy to hear from you. You can write to the Internal Revenue Service, Tax Products Coordinating Committee, SE:W:CAR:MP:T:T:SP, 1111 Constitution Ave., NW., IR-6526, Washington, DC 20224. DO NOT send any of these forms or schedules to this address. The forms and schedules must be filed electronically.
This list of principal business activities and their associated codes is designed to classify an enterprise by the type of activity in which it is engaged. These principal activity codes are based on the North American Industry Classification System.
“Offices of Bank Holding Companies” and “Offices of Other Holding Companies” are located under Management of Companies (Holding Companies).
Accordingly, pursuant to the authority in sections 101, 103, 104, 109, 110, and 4065 of ERISA and section 6058 of the Code, the Form 5500 Annual Return/Report and the instructions thereto are amended as set forth herein, including the addition of the proposed Short Form 5500 and the replacement of the Schedule B with Schedules SB and MB.
Environmental Protection Agency (EPA).
Final rule.
EPA is issuing final amendments to the standards of performance for equipment leaks of volatile organic compounds in the synthetic organic chemicals manufacturing industry and to the standards of performance for equipment leaks of volatile organic compounds in petroleum refineries. The amended standards for the synthetic organic chemicals manufacturing industry apply to affected facilities that are constructed, reconstructed, or modified after January 5, 1981, and on or before November 7, 2006. The amended standards for petroleum refineries apply to affected facilities that are constructed, reconstructed, or modified after January 4, 1983, and on or before November 7, 2006. In this action, EPA is also issuing new standards of performance for equipment leaks of volatile organic compounds in the synthetic organic chemicals manufacturing industry and for equipment leaks of volatile organic compounds in petroleum refineries which apply to affected facilities that are constructed, reconstructed, or modified after November 7, 2006. The final amendments and new standards are based on the results of our review of the existing regulations as required by section 111(b)(1)(B) of the Clean Air Act.
This final rule is effective on November 16, 2007. The incorporation by reference of certain publications listed in these rules is approved by the Director of the Federal Register as of November 16, 2007.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0699. All documents in the docket are listed in the Federal Docket Management System index at
For information concerning the final amendments and new standards, contact Ms. Karen Rackley, Coatings and Chemicals Group, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (E143-01), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0634; fax number: (919) 541-0246; e-mail address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.480, 60.590, 60.480a, and 60.590a. If you have any questions regarding the applicability of the final amendments or new standards to a particular entity, contact the people listed in the preceding
Section 307(d)(7)(B) of the CAA further provides that “[O]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that is was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time
New source performance standards (NSPS) implement CAA section 111 and are issued for categories of sources which cause, or contribute significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. The primary purpose of the NSPS are to attain and maintain ambient air quality by ensuring that the best demonstrated emission control technologies are installed as the industrial infrastructure is modernized. Since 1970, the NSPS have been successful in achieving long-term emissions reductions at numerous industries by assuring cost-effective controls are installed on new, reconstructed, or modified sources.
Section 111 of the CAA requires that NSPS reflect the application of the best system of emission reductions which (taking into consideration the cost of achieving such emission reductions, any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. This level of control is commonly referred to as best demonstrated technology (BDT).
Section 111(b)(1)(B) of the CAA requires that EPA periodically review and revise the standards of performance, as necessary, to reflect improvements in methods for reducing emissions. Based on the results of the review required by CAA section 111(b)(1)(B), we proposed amendments to the NSPS for equipment leaks of volatile organic compounds (VOC) in the synthetic organic chemicals manufacturing industry (SOCMI) and the petroleum refining industry on November 7, 2006 (71 FR 65302). In this action, EPA is finalizing amendments to 40 CFR part 60, subparts VV and GGG and issuing new standards of performance in 40 CFR part 60, subparts VVa and GGGa.
New source performance standards for equipment leaks of VOC have been developed for four source categories. Subpart VV of 40 CFR part 60 applies to SOCMI process units. Subpart DDD of 40 CFR part 60, Standards of Performance for Volatile Organic Compound (VOC) Emissions from the Polymer Manufacturing Industry, applies to polypropylene, polyethylene, polystyrene, and poly (ethylene terephthalate) process units. Subpart GGG of 40 CFR part 60 applies to petroleum refining process units. Subpart KKK of 40 CFR part 60 applies to onshore natural gas processing plants. Subparts DDD, GGG, and KKK of 40 CFR part 60 cross-reference the requirements in subpart VV, and they specify source category-specific definitions and exceptions to the requirements in subpart VV.
The NSPS for equipment leaks of VOC in the SOCMI (40 CFR part 60, subpart VV) were originally promulgated on October 18, 1983 (48 FR 48335) and apply to all equipment, as defined by the rule, within a process unit in the SOCMI that commenced construction, reconstruction, or modification after January 5, 1981. For the purpose of subpart VV, the SOCMI consists of process units producing any of the chemicals listed in 40 CFR 60.489 of subpart VV. The standards apply to pumps, compressors, pressure relief devices, sampling connection systems, open-ended valves or lines (OEL), valves, and flanges or other connectors in VOC service. Depending on the type of equipment, the standards require either periodic monitoring for and repair of leaks, the use of specified equipment to minimize leaks, or specified work practices. Monitoring for leaks must be conducted using EPA Method 21 in appendix A-7 to 40 CFR part 60 or other approved equivalent monitoring techniques. Owners and operators must keep records that identify the equipment that is subject to the standards, identify equipment that is leaking, and document attempts at repair. Information related to leaks and repair attempts also must be included in semiannual reports. This subpart has been amended several times between 1984 and 2000. Typically, these amendments added definitions, exemptions, alternative compliance options, and clarifications. For example, one amendment provides an option to comply with the equipment leak provisions in the Consolidated Federal Air Rule (CAR) (40 CFR part 65, subpart F). None of these amendments increased the intended performance level of the standards.
The NSPS for equipment leaks of VOC in petroleum refineries (40 CFR part 60, subpart GGG) apply to petroleum refining process units for which construction, reconstruction, or modification commenced after January
We proposed amendments to 40 CFR part 60, subpart VV and 40 CFR part 60, subpart GGG on November 7, 2006 (71 FR 65302). The preamble for the proposed amendments described the rationale for the proposed amendments. Public comments were solicited at the time of proposal. The public comment period lasted from November 7, 2006, to February 8, 2007. We offered at proposal the opportunity for a public hearing concerning the proposed amendments, but no hearing was requested. We also published a Notice of Additional Data Availability (NODA) on July 9, 2007 (72 FR 37157). The NODA provided additional information regarding OEL. Public comments were solicited at the time of publication, and the public comment period lasted from July 9, 2007, to August 8, 2007.
We received a total of 28 public comment letters during the comment periods, 23 on the proposed amendments and five on the NODA. Comments were submitted by industry trade associations and consultants, chemical companies and petroleum refineries, state regulatory agencies, local government agencies, and environmental groups. These final amendments reflect our consideration of all of the comments received during the comment periods. Major public comments on the proposed amendments, along with our responses to those comments, are summarized in this preamble.
In response to public comments, we have revised the scope and applicability of the proposed amendments to the standards of performance for equipment leaks of VOC for SOCMI (40 CFR part 60, subpart VV) and petroleum refineries (40 CFR part 60, subpart GGG). As proposed, all of the amendments to subparts VV and GGG, except the change in leak definitions for pumps and valves, applied to affected facilities in these industries that commenced construction, reconstruction, or modification after January 5, 1981, (SOCMI) or January 4, 1983, (petroleum refineries). In addition, all of the proposed amendments, except the leak definition change, applied to affected facilities under all other NSPS that cross-reference subpart VV (i.e., 40 CFR part 60, subparts DDD and KKK).
Based on the public comments, we decided to include only clarifications, changes that reduce burden, and additional compliance options in the final amendments to 40 CFR part 60, subparts VV and GGG. The final amendments to both subparts also limit which SOCMI and petroleum refinery affected sources are subject to the existing subparts. Specifically, the existing subparts only apply to those existing affected sources that commenced construction, reconstruction, or modification after January 5, 1981, (SOCMI) or January 4, 1983, (petroleum refineries) and on or before November 7, 2006. The final amendments to subpart VV also apply to affected sources under NSPS that cross-reference subpart VV (i.e., 40 CFR part 60, subparts DDD and KKK).
In addition to amending 40 CFR part 60, subparts VV and GGG, we also decided to develop new standards in new subparts VVa and GGGa of 40 CFR part 60 that apply only to SOCMI and petroleum refinery affected sources, respectively, that commence construction, reconstruction, or modification after November 7, 2006. These new standards parallel the standards in the amended subparts VV and GGG, but they also include different standards for pumps in light liquid service and valves in gas/vapor or light liquid service (i.e., lower leak definitions than in subparts VV and GGG), and they include additional recordkeeping and instrument calibration requirements. Furthermore, the new standards in 40 CFR part 60, subpart VVa include monitoring and repair requirements for connectors. The new standards do not apply to affected sources under 40 CFR part 60, subparts DDD or KKK because we have not amended those subparts to reference the requirements in subpart VVa and we have not completed an analysis to determine if the new standards are BDT for subparts DDD and KKK.
The final amendments to 40 CFR part 60, subpart VV provide additional compliance options, clarify ambiguous provisions, and make technical corrections. These changes are summarized in Table 1 in section III.C of this preamble.
The owner or operator of an affected facility subject to 40 CFR part 60, subpart VV may choose to comply with the requirements in new 40 CFR part 60, subpart VVa instead of the requirements in subpart VV.
The final amendments simplify the compliance requirements for pumps. When indications of liquids dripping are observed during weekly inspections, 40 CFR part 60, subpart VV requires repair of the leak following the same procedures as if the leak were detected by monitoring. The final amendment in 40 CFR 60.482-2(b)(2) allows the owner or operator to either repair the leak by eliminating the indications of liquids dripping or determine if it is leaking based on the instrument reading obtained by monitoring the pump in accordance with EPA Method 21 (40 CFR part 60, appendix A-7) or other approved equivalent monitoring techniques. This amendment will focus the leak detection and repair (LDAR) program on finding and repairing VOC leaks.
The final amendments also include an alternative compliance option that allows less frequent monitoring for pumps and valves in batch process units that operate part-time during the year. This alternative applies to currently required monthly, quarterly, and semiannual monitoring intervals; less frequent monitoring is not allowed for monitoring that is currently required on an annual or less frequent basis. For example, pumps in a process unit that operate 5,250 hours per year (about 60 percent of full-time operation) may be monitored every other month rather than monthly. This alternative will ensure that monitoring occurs consistently while the process unit is operating. The alternative monitoring schedule for batch processes was developed as part of the development of the hazardous organic national emission standards for hazardous air pollutants (NESHAP) (HON) (57 FR 62680). This alternative has been determined to be comparable to the provisions for continuous processes. As the time in use increases, the monitoring frequencies are identical for both batch and continuous processes.
In response to public comments, we have revised the proposed clarification to the initial monitoring requirements for pumps and valves (that all pumps and valves be monitored within the first month of operation after installation). The final amendments require the owner or operator to monitor all pumps
As an alternative to monitoring all of the valves in the first month of a quarter, an owner or operator may elect to subdivide the process unit into two or three subgroups of valves and monitor each subgroup in a different month during the quarter, provided each subgroup is monitored every 3 months. The owner or operator must keep records of the valves assigned to each subgroup.
The clarifications to the requirements for sampling connection systems in 40 CFR 60.482-5 have been revised since proposal to add additional destinations for purged process fluid. All containers must be covered when not being filled or emptied. The amendments also clarify what materials must be captured and returned to the process during sampling.
In response to comments, we have revised the proposed option for delay of repair in 40 CFR 60.482-9. The proposed amendment would have allowed the owner or operator to discontinue monitoring for equipment on delay-of-repair. We have not included this in the final amendments and new standards because a leak may worsen while on delay-of-repair and require a more immediate shutdown. Therefore, all equipment on delay-of-repair must be monitored as scheduled. The option to consider equipment to be repaired if two consecutive readings are below the leak definition was not removed. If two consecutive readings are below the applicable leak definition, the owner or operator may remove the equipment from delay-of-repair.
Several amendments clarify the original intent of the definitions in 40 CFR part 60, subpart VV. These definitions include “connector,” “process unit,” and “sampling connection system.” In addition, definitions of “closed-loop system,” “closed-purge system,” “storage vessel,” and “transfer rack” were added to further clarify existing definitions. The definition of “process unit” is discussed in further detail in section IV.A.3 of this preamble. The rationale for revising and adding the other definitions is included in Docket ID No. EPA-HQ-OAR-2006-0699.
Finally, the final amendments include a few technical corrections to fix references and other miscellaneous errors in 40 CFR part 60, subpart VV. No changes have been made to the proposed corrections, and a number of additional corrections are included in the final amendments. The technical corrections are identified in section III.A.3 of the preamble to the proposed amendments (71 FR 65307-65308, November 7, 2006) as well as Table 1 of this preamble.
A few minor changes have been made to the 40 CFR part 60, subpart GGG amendments since proposal. The heading and 40 CFR 60.590(b) were revised to clarify that the subpart applies to sources that commence construction, reconstruction, or modification on or before November 7, 2006, and 40 CFR 60.590(d) was revised to exclude facilities subject to 40 CFR part 60, subpart VVa. Proposed revisions that remain in the final amendments to subpart GGG include a definition of “asphalt” and an exemption from the requirements for OEL in 40 CFR 60.482-6(a) through (c) for OEL containing asphalt. The definition of “process unit” is comparable to the definition in 40 CFR part 60, subpart VV.
The final amendments also include a few technical corrections to fix references and other miscellaneous errors in 40 CFR part 60, subpart GGG. These changes are identified in section III.B.5 of the preamble to the proposed amendments (71 FR 65309, November 7, 2006). No changes have been made to these corrections since proposal.
40 CFR part 60, subpart VVa applies to affected facilities in the SOCMI that are constructed, reconstructed, or modified after November 7, 2006. This new subpart includes all the requirements of 40 CFR part 60, subpart VV, as amended, along with new provisions. The owner or operator of an affected facility subject to subpart VVa may elect to comply with the CAR at 40 CFR part 65, subpart F, or the HON at 40 CFR part 63, subpart H, instead of the requirements in subpart VVa, provided they still comply with the requirements in 40 CFR 60.482-6a.
40 CFR part 60, subpart VVa includes lower leak definitions for pumps and valves than 40 CFR part 60, subpart VV. Under subpart VVa, the leak definition for pumps in light liquid service is 2,000 parts per million (ppm) (5,000 ppm for pumps handling polymerizing monomers) instead of 10,000 ppm. The leak definition for valves in gas/vapor service or light liquid service is 500 ppm instead of 10,000 ppm. Rationale for this new standard was provided in section III.A.1 of the preamble to the proposed amendments and is discussed further in section III.A.1 of this preamble.
40 CFR part 60, subpart VVa also includes requirements for monitoring connectors. The owner or operator is required to monitor connectors at a leak definition of 500 ppm and at a frequency that is based on the percentage of connectors found to be leaking. The rationale supporting the LDAR provisions for connectors is located in section III.A.2 of this preamble.
40 CFR part 60, subpart VVa includes additional recordkeeping requirements and quality assurance measures. Records must identify the monitoring instrument, operator, equipment, the date, and maximum instrument reading. A calibration drift assessment is required at the end of each day of monitoring and records of monitoring instrument calibrations are required. The calibration drift assessment requirements proposed for 40 CFR part 60, subpart VV were revised based on public comments. The requirements in the new standards include a requirement to remonitor equipment if the drift assessment shows positive drift. The requirements in the new standards provide for a less stringent remonitoring effort for drift assessments showing negative drift.
40 CFR part 60, subpart GGGa applies to affected facilities at petroleum refineries that are constructed, reconstructed, or modified after November 7, 2006. New subpart GGGa
Five sources of information were considered in reviewing the appropriateness of the current NSPS requirements for new sources: (1) Applicable Federal regulations; (2) applicable state and local regulations; (3) data from National Enforcement Investigations Center (NEIC) inspections; (4) emissions data provided by industry representatives; and (5) petroleum refinery consent decrees. (A significant number of refineries, representing about 77 percent of the national refining capacity, are subject to consent decrees that limit the emissions from 40 CFR part 60, subpart GGG process units.) Once we identified leak definitions for various equipment types, we evaluated these leak definitions in conjunction with technical feasibility, costs, and emission reductions to determine BDT for each type of equipment.
The cost methodology incorporates the calculation of annualized costs and emission reductions associated with each of the options presented. Cost-effectiveness is the annualized cost of control divided by the annual emission reductions achieved. For NSPS regulations, the standard metric for expressing costs and emission reductions is the impact on all affected facilities accumulated over the first 5 years of the regulation. Details of the calculations can be found in the public docket (EPA-OAR-HQ-2006-0699). Our BDT determinations took all relevant factors into account, including cost considerations.
For each of the new standards, the predominant method used to reduce emissions from equipment leaks is the work practice of an LDAR program that includes periodic monitoring of equipment using EPA Method 21. This method has been used for more than 20 years to detect leaks and is currently the most widely-used test method. However, other approved methods may be used to detect leaks.
We also considered an equipment standard requiring installation of “leakless” equipment. “Leakless” equipment, such as diaphragm valves, is less likely to leak than standard equipment, but leaks may still develop. Therefore, monitoring or other type of observation is appropriate to ensure that leaks are caught if they develop. In addition, these types of equipment may not be suitable for all possible process operating temperatures, pressures, and fluid types. We could not identify any new “leakless” technologies that could be applied in all applications. Therefore, requiring “leakless” equipment is not technically feasible and this option was not considered to be BDT for SOCMI or petroleum refining sources. We note that 40 CFR part 60, subpart VV does include provisions for equipment designed for no detectable emissions, so owners or operators that do replace existing equipment with “leakless” equipment have options for compliance.
We previously demonstrated that leak definitions of 2,000 ppm for pumps and 500 ppm for valves are BDT in the preamble to the proposed amendments to 40 CFR part 60, subparts VV and GGG (November 7, 2006, 71 FR 65305, with additional discussion at 71 FR 65308). Since proposal, the cost-effectiveness values for this new requirement have changed slightly based on changes to the assumptions used to develop emission estimates; section V of this preamble includes details on the specific changes. For SOCMI, the estimated emission reductions are 94 tons of VOC per year at a cost savings of $380/ton. For petroleum refineries, the estimated emission reductions are 13 tons of VOC per year at a cost of $1,600/ton. The cost to achieve these emission reductions is still considered to be reasonable; therefore, we maintain our original conclusion that EPA Method 21 monitoring of pumps and valves and repair of leaks above 2,000 ppm for pumps and 500 ppm for valves is BDT.
We have also evaluated the cost-effectiveness of lowering the leak definitions even further for valves because there are some state rules and petroleum refinery consent decrees at lower levels. The results of that analysis show that an LDAR program for valves at a leak definition lower than 500 ppm is not cost-effective. The analysis shows emission reductions of 26 tons of additional VOC per year at a cost-effectiveness of $5,700/ton for SOCMI and emission reductions of 8 tons of additional VOC per year at a cost-effectiveness of $16,000/ton for refineries. The additional VOC emission reductions at a leak definition lower than 500 ppm is not cost-effective. The results of the impacts analysis is provided in the docket (Docket ID No. EPA-HQ-OAR-2006-0699).
We decided not to consider a lower leak definition for pumps because we do not have evidence that it will achieve significant emission reductions at reasonable cost and because such a requirement would impose an unwarranted increase in the compliance burden. No other Federal or state rules require repair of pumps with leaks below 2,000 ppm, and concerns have been expressed in the past that repair of pumps with lower concentrations could result in significant and costly maintenance. We also cannot estimate the emission reductions because we are unsure how effective repairs will be for pumps with low leak concentrations. In addition, many facilities that will be subject to the new standards have other process units that are subject to other standards. Including a leak definition in the new standards that differs from the leak definitions in all other rules would make compliance more challenging at such facilities and unnecessarily increase the potential for inadvertent errors.
We also did not consider increasing the number of times per year that valves and pumps must be monitored. Valves and pumps are already subject to monthly monitoring. The cost to monitor more frequently would outweigh the possible emission reductions. Additionally, pumps are subject to weekly inspections for indications of liquids dripping. Therefore, the monitoring frequency was not changed and is still considered BDT.
After consideration of current operating practices, we concluded that repairing connector leaks as they are discovered is still the predominant method for reduction of VOC from connectors. However, during our review of the current requirements, we found a
Upon consideration and review of the public comments, we evaluated whether the connector monitoring and repair provisions included in the Generic MACT are BDT for 40 CFR part 60, subparts VVa and GGGa. The Generic MACT provisions include a leak definition of 500 ppm and a monitoring frequency based on the number of connectors found to be leaking during the initial monitoring campaign.
For SOCMI, the estimated emission reductions achieved by connector monitoring and repair of leaks above 500 ppm are 230 tons of VOC per year at a cost of $2,500/ton. For petroleum refineries, the estimated emission reductions are 92 tons of VOC per year at a cost of $20,000/ton. The cost to achieve these emission reductions is considered to be reasonable for SOCMI sources but is not reasonable for petroleum refineries. Based on these impacts and consideration of current operating practices, we concluded that BDT for connectors at SOCMI sources is monitoring using EPA Method 21 or another approved alternative method at a frequency based on the number of connectors found leaking during initial monitoring and repair of leaks above 500 ppm. We concluded that BDT for connectors at petroleum refineries is equivalent to the current 40 CFR part 60, subpart GGG requirements. Therefore, we are promulgating connector monitoring and repair standards consistent with this determination for SOCMI sources subject to 40 CFR part 60, subpart VVa that will not apply to petroleum refinery sources subject to 40 CFR part 60, subpart GGGa.
The recordkeeping requirements in the final amendments and new standards are authorized by section 114 of the CAA. Section 114 of the CAA allows EPA to require one-time, periodic, or continuous records for the purpose of determining if the owner or operator is in compliance with the standard. The recordkeeping requirements in the final amendments are the minimum necessary for affected facilities to demonstrate compliance and for EPA to enforce the rule. The recordkeeping requirements in the new standards include a few requirements in addition to the requirements in the final amendments. Most of these requirements are associated with new monitoring and repair requirements; other additional requirements are minimal and are necessary for EPA to enforce the rule. Further rationale for the new requirements is available below and in section IV.D of this preamble.
We have made significant changes to the proposed recordkeeping requirements as a result of the changes made to the scope and applicability of the standards. Because the final amendments to 40 CFR part 60, subparts VV and GGG include only clarifications to existing requirements, burden reducing provisions, and new compliance options, no changes or additions to the recordkeeping requirements in subpart VV or GGG are needed to document and/or enforce these amendments.
Sources subject to the new standards in 40 CFR part 60, subpart VVa are required to keep records of the same information required by 40 CFR part 60, subpart VV and certain additional information described below. Sources subject to 40 CFR part 60, subpart GGGa must comply with the requirements in subpart VVa except for the monitoring requirements applicable to connectors (and the associated recordkeeping requirements). Facilities subject to 40 CFR part 60, subparts DDD, GGG, or KKK are excluded from the requirement to comply with the recordkeeping provisions of subpart VVa because these subparts are not being amended to reference the new standards in subpart VVa.
The new recordkeeping provisions in 40 CFR part 60, subpart VVa require general identifying information for each monitoring activity required by the rule. As explained in the preamble to the proposed amendments (71 FR 65308, November 7, 2006), many facilities already record this information. This information requirement is consistent with other equipment leak standards and is needed by enforcement representatives to determine if the facility is complying with the standards. Specifically, EPA found that the results of the LDAR review demonstrated that the current requirements are not sufficient to verify that all monitoring requirements have been performed. For example, EPA enforcement initiatives have found missed monitoring (monitoring at an inappropriate interval, monitoring late, or not monitoring), understated leak rates, leaks not found or repaired, and monitoring records indicating that more equipment was monitored than physically possible given the time needed to meet EPA Method 21 requirements, among other issues. Since we cannot physically inspect every facility on the schedule required by the LDAR program, these additional records will provide safeguards that the program is being implemented as intended.
Other new recordkeeping requirements include specific information that is necessary to demonstrate compliance with the new monitoring provisions for connectors and pumps in light liquid service (weekly visual inspections for indications of dripping liquids). Records are also required to demonstrate compliance with the requirement for a calibration drift assessment at the end of each day and comparison of the results of the assessment with the most recent calibration results. We eliminated the proposed requirement to keep records of information on bypass lines because the new subpart does not include the requirement to monitor bypass lines. In addition, records of information related to the proposed initial monitoring requirement for pumps and valves
We have reviewed the recordkeeping requirements and believe that these are the minimum needed to ensure compliance and that the requirements do not impose excessive costs. The costs of the recordkeeping requirements for 40 CFR part 60, subpart VVa, including the time required to enter and store additional information, are included in the information collection request (ICR) (see section V.B of this preamble).
The amendments to 40 CFR part 60, subpart VV are listed in Table 1 of this preamble. Most of the technical corrections for 40 CFR part 60, subparts VV and GGG were discussed in the preamble to the proposed amendments (71 FR 65302, November 7, 2006). Other technical corrections and amendments are the result of public comments, and these are discussed in detail in the responses to the applicable comments. For each amendment that is more significant than an editorial or grammatical correction, Table 1 to this preamble includes a reference to the rule language and a reference to the location of the detailed explanation.
We proposed amendments to 40 CFR part 60, subpart VV and 40 CFR part 60, subpart GGG on November 7, 2006 (71 FR 65302). We published a NODA regarding OEL on July 9, 2007 (72 FR 37157). A total of 28 comment letters were received during the comment periods for the two notices. In response to these public comments, several changes were made in developing these final amendments and new standards. The major comments and our responses are summarized in the following sections. A summary of the remainder of the comments received during the comment period and responses thereto can be found in the docket for the final amendments and new standards (EPA-OAR-HQ-2006-0699).
To address the issue of compliance dates, several commenters recommended that EPA amend 40 CFR part 60, subpart VV so that it applies only to existing sources and develop a new 40 CFR part 60, subpart VVa that applies to affected sources that commence construction, reconstruction, or modification after November 7, 2006.
In contrast, two commenters urged EPA to apply the proposed requirements to all existing SOCMI and refinery process units, and a third commenter recommended applying the proposed leak definitions for pumps and valves to all SOCMI and refinery affected sources. All of these commenters noted that existing facilities are more likely than new sources to have problems with leaks and, thus, should receive extra scrutiny.
Instead of referencing 40 CFR part 60, subpart VVa from 40 CFR part 60, subpart GGG, we decided to create a new 40 CFR part 60, subpart GGGa that applies to new petroleum refining affected sources. This new subpart GGGa references all of the new standards in subpart VVa except for the monitoring requirements for connectors. Reasons for the differences in standards between subparts VVa and GGGa are described elsewhere in this preamble.
Sources subject to 40 CFR part 60, subpart DDD and 40 CFR part 60, subpart KKK, and sources subject to the Refinery NESHAP (40 CFR part 63, subpart CC), but not subject to 40 CFR part 60, subparts VV or GGG, are not required to comply with 40 CFR part 60, subpart VVa at this time.
While we understand there is a concern that existing sources are more likely to leak, there is no provision in section 111 of the CAA that allows us to retroactively apply new standards to sources already subject to the NSPS. EPA agrees with the statements made by the commenters that relate to the application of new requirements under NSPS to existing sources. Section 111 of the CAA does state that NSPS will apply only to new, reconstructed, or modified sources after the date of proposal. The authority to regulate existing sources under section 111(d) of the CAA does not authorize EPA to regulate criteria pollutants or precursors to such pollutants. Therefore, we have not included any new requirements for existing sources in the final amendments to 40 CFR part 60, subpart VV and subpart GGG. These requirements will apply only to sources that commence construction, reconstruction, or modification after the November 7, 2006 proposal date.
After reading the preamble discussion of the proposed change, one commenter expressed concern that the proposed definition inadvertently includes valves and other equipment on storage tanks. Other commenters objected to the inclusion of all feed, intermediate, and product storage vessels and transfer operations in the definition because the following discussion from the original rulemaking notice for 40 CFR part 60, subpart VV (46 FR 1139, January 5, 1981) makes it clear that EPA's original intent was to include storage in the process unit only if it is within the battery limits of the process:
“A process unit is specifically defined as equipment assembled to produce one or more of the chemicals listed in proposed appendix E which can operate independently if supplied with sufficient feed or raw materials and sufficient storage facilities for the final product. A process unit includes intermediate storage or surge tanks and all fluid transport equipment connecting reaction, separation, and purification devices. All equipment within the battery limits is included. However,
Several commenters described ways the proposed change could complicate compliance. For example, two commenters indicated that it would increase the difficulty of tracking equipment, process units, and applicable requirements at refineries where the storage and transfer areas are consolidated into “logistical process units” that support numerous process units, particularly when storage tanks are shared by multiple process units. One commenter added that it may also either restrict the ability of a facility to use its tanks as needed, because they will have been forced into an arbitrary association with a given unit, or create a useless recordkeeping exercise each time a tank switches contents or services a different process. To avoid immediate compliance problems for affected sources that are currently subject to 40 CFR part 60, subpart VV, a commenter requested that existing facilities be allowed 180 days after promulgation of the amendments so that they will have time to include the additional equipment in the applicable LDAR programs. Commenters also noted that the rule should clarify how to assign storage vessels and transfer racks that are shared by multiple processes; they suggested using language in the HON and the Refinery NESHAP as a guide. One commenter stated that EPA should clarify that a compressor is still a separate affected facility from the group of equipment in a refinery process unit under 40 CFR part 60, subpart GGG.
The amended definition of process unit clarifies EPA's original intent and is consistent with the language provided by the commenters from the January 1981 rulemaking. It is clear from the 1981 rulemaking that all equipment that is located within the battery limits is included as part of the process unit. Likewise, there is no question that any fluid transport and storage facilities located outside of the facility property are not included. However, the 1981 language also states that a process unit includes storage tanks and all fluid transport equipment. There is no specification that these components are only included if within the battery limits. There has been confusion in the past regarding the inclusion of components outside of the battery limits but within the property of the facility. To clarify this issue, EPA previously issued formal guidance (see April 6, 1994 letter from John Rasnic to Raymond Hiley in Docket ID No. EPA-HQ--OAR-2006-0699).
We agree that the determination of whether a particular tank is a storage tank, feed tank, or intermediate tank and part of a process unit must be done on a site-specific basis, dependent on how the tank functions within a particular plant site. The physical proximity of the storage tank to the other processing equipment within a process unit is not a sole determinate in establishing whether a storage tank is part of the process or not.
The final amendments and new standards include provisions for assigning a shared storage tank to a specific process unit for the purposes of an LDAR program. The owner or operator will need to determine what process units the storage tank is associated with. They will then determine which process unit, or combination of units subject to the same subpart, has the greatest annual quantity of stored materials in that tank. The subpart that the process unit (or combination of units subject to the same subpart) associated with the greatest use of that tank is subject to will be the applicable subpart for the tank. The process unit, which is subject to the same subpart as the tank, with the greatest annual quantity of stored materials in that tank will be the process unit the tank is assigned to. If a tank is shared equally between two process units that are subject to 40 CFR part 60 standards, the process unit with the most stringent requirements will be the unit the tank is assigned to. For example, if the predominant use of a storage tank is to service a process unit subject to 40 CFR part 60, subpart VV, that storage tank is a part of that process unit and subject to subpart VV and the equipment must be monitored at a leak definition of 10,000 ppm.
In contrast with the above comments, three commenters supported the proposed language or more stringent requirements. One of these commenters recommended monitoring new pumps within 1 month after installation to minimize the time period for potential leaks. A second commenter recommended that monitoring be required even sooner after installation. This commenter also questioned why a clarification of the requirements for pumps was needed because the preamble to the proposed amendments did not explain how industry currently handles new pumps and why that practice is a problem. This commenter also objected to the second sentence in 40 CFR 60.482-7(a)(2) because it means valves added to a process would not have to be monitored for 2 consecutive months before implementing skip monitoring, which is less stringent than the requirements for valves in an entirely new process.
However, to provide operational flexibility, we have decided to add an option for newly installed valves in the final amendments and new standards. If a new valve is placed into service during a skip period, the source has the option to either monitor the valve on the monthly schedule and establish the skip period for that valve, or count the valve as a leaker in the percent leaking calculation. If the result of the percent leaking calculation remains below 2.0 percent with the new valve counted as a leaker, the owner or operator must monitor the new valve by the next scheduled skip period or within 90 days, whichever comes first. We have stated the timeframe for these requirements in days instead of months in the final amendments and new standards (30 days for pumps and either 30 or 90 days for valves, depending on whether the owner or operator is complying with the skip monitoring option).
To further clarify this issue, we have revised 40 CFR 60.482-2(a)(1), 40 CFR 60.482-7(a)(2), 40 CFR 60.483-2(b)(7), 40 CFR 60.482-2a(a)(1), 40 CFR 60.482-7a(a)(2), and 40 CFR 60.483-2a(b)(7).
Three commenters did not support the proposed changes to the weekly inspection requirements. Two of these commenters disagreed with EPA's conclusion that the existing requirements are overly burdensome. According to one commenter, an operator should be required to make a showing of an undue burden; simply stating that an operator may have to conduct more inspections and repair more leaks than absolutely necessary does not demonstrate an undue burden. Two commenters noted that eliminating evidence of liquids dripping does not guarantee that the pump is no longer leaking VOC. As a result, these two commenters stated that monitoring should be required after eliminating evidence of liquids dripping to verify that repair was successful. Even if liquids dripping are not process fluid, one commenter noted that the liquid is probably either seal barrier fluids or condensate from a pump jacket used for temperature control. Regardless of the cause or fluid, one commenter noted that any liquid dripping may be a first sign of a potential maintenance problem that is best addressed as soon as possible as a matter of good operational practice as well as good environmental practice.
Six commenters objected to some of the assumptions we used to estimate equipment leak emissions. Some of these commenters stated that our emission reduction estimates were high because we used assumed leak frequencies and leak rates from
Four commenters objected to various elements in the cost estimates. These commenters noted that more connectors than valves are difficult to monitor, and the cost analysis did not include the cost for the additional labor and equipment needed to monitor these connectors. One commenter stated that the unit cost for monitoring connectors should be more than $1.50 per connector because the time required to monitor a connector is longer than for other types of equipment. The increased monitoring time is the result of several factors: (1) The distance that must be traversed per component is greater; (2) connectors often are in hard-to-reach locations, requiring the operator to squeeze through small spaces, often having to remove the monitor backpack; and (3) connectors tend to be spread out and are hard to find. In addition, this commenter noted that recordkeeping for connectors is more burdensome and complicated than for valves. Connectors are not typically shown on process and instrumentation drawings, making them difficult to find. The commenter stated that our estimate of 10 hours per year to complete administrative tasks and reports associated just with monitoring connectors is inadequate. Finally, the commenter noted that our cost estimates omit the cost of a data collection system or monitoring device rental; the commenter estimated these costs to be $14,500 for data collection systems and $135 per day for monitor rental. The commenter stated that even if a facility has a data collection system, additional licenses are needed to add connectors. Another commenter stated that rationale for requiring monitoring at SOCMI facilities does not apply to natural gas processing plants; thus, this commenter requested that an impact analysis be performed to address natural gas processing plants before making that industry subject to connector monitoring.
In contrast with the above comments, three commenters were in favor of adding connector monitoring to the rule. One commenter suggested that connectors be monitored annually or biennially because they have significant leak potential that would go undetected without monitoring. Regardless of the uncertainties in the leak rates and emissions factors, another commenter stated that connector monitoring should be required because emissions reductions can be achieved at a relatively low cost. The third commenter supported a requirement to monitor connectors at SOCMI sources because it is technically feasible, our impacts analysis shows it is economically feasible, and it would achieve greater reductions than the proposed amendments for pumps and valves. According to this commenter, more accurate emissions data in the impacts analysis is unnecessary because emissions inventories based on monitoring data typically show emissions that are higher than the emissions estimated using engineering calculations and emission factors, which would only strengthen the argument for monitoring. This commenter also argued that refineries should be required to monitor connectors because such monitoring is technically feasible, it is already required for some refineries in Texas and California, and our impacts analysis showed connectors at refineries were more likely to leak than connectors at SOCMI sources.
The commenter's claim that we used the leak frequencies and leak rates in the Protocol document for the SOCMI analysis is incorrect. We used the same initial leak frequency (0.36 percent) as in the MON analysis. We also started with the same initial leak rate (0.000186 kilogram (kg)/hour (hr)/connector), but we then escalated it in the same manner that leak rates for pumps and valves were escalated. The leak frequencies and leak rates in the MON analysis were based on industry-supplied data for almost 165,000 connectors. We decided not to use the leak rate data in the report supplied by one of the commenters because it contains a smaller data set (29,000 connectors), and it is possible that these data are also included in the larger data set. However, our assumption that the subsequent leak frequency is the same as the initial leak frequency is consistent with the conclusion in the report cited by the commenter.
The new standards in 40 CFR part 60, subpart VVa include connector monitoring because we have determined
After reviewing the comments, we revised the impacts analyses to include two of the suggested changes to the cost estimates. First, we corrected an error, which increased the estimated time for reporting and administrative activities related to connectors from 10 hr/year (yr) to 50 hr/yr. Second, although we are not aware that monitoring contractors charge a higher fee for connectors than for other equipment, we accept the commenter's suggested fee of $2.50/connector because the $1.50/connector that we used in the original analysis may be closer to the low end of the range than the average. We disagree with the other changes suggested by the commenters. Details of the revised impacts analysis, including rationale for not making the suggested changes, are provided in the docket (Docket ID No. EPA-HQ-OAR-2006-0699).
On the other hand, four commenters opposed the drift check requirement, saying it is unnecessary and provides no environmental benefit. One of these commenters added that monitoring instruments such as the Foxboro TVA 1000 FID/PID or Foxboro TVA 1000B are quite stable over a 24-hour period, and EPA has not presented data or an analysis showing the need for calibration assessments. A second commenter noted that instruments typically drift in a positive direction. A third commenter argued that a drift check and re-monitoring is a futile effort to make the equipment leak monitoring method more accurate than was originally intended and than the instruments can achieve because of the following: (1) The Foxboro TVA 1000B instrument accuracy is only ±25 percent for readings between 1 and 10,000 parts per million by volume (ppmv); (2) a response factor as high as 10 is allowed for compounds of interest; (3) the 10 percent drift limit is inconsistent with the level of the instrument's accuracy allowed by EPA Method 21; and (4) leaking equipment does not emit a constant concentration. In addition, this commenter noted that drift checks conducted to satisfy consent decrees have shown only about 10 percent of instruments drift more than 10 percent every 2 to 3 weeks, and the release of calibration gases would be considered a negative environmental impact.
Several commenters stated that the additional recordkeeping would be burdensome and either would not improve the rule's effectiveness or is excessive relative to any minimal improvement in performance. In addition, one commenter stated that the proposal preamble did not adequately explain how we estimated the cost of the additional recordkeeping and reporting for SOCMI sources to be $369,000/yr, and another stated that the proposal preamble did not explain why the current monitoring requirements are not sufficient to verify that monitoring was performed. According to one commenter, recording the time of
One commenter noted several specific deficiencies and concerns with the burden impact analyses. First, it is not clear if all of the proposed new requirements are addressed in the ICR for sources subject to NSPS 40 CFR part 60, subpart GGG because the ICR does not discuss the incremental effects of the new requirements. Second, the ICR for SOCMI sources appears to address impacts only for those sources that elect to comply with the CAR option, not those that would comply directly with 40 CFR part 60, subpart VV. Third, no ICR analyses were provided for sources that are subject to other rules that reference subpart VV (i.e., NSPS subparts DDD and KKK of 40 CFR part 60, and the Refinery NESHAP). Fourth, the available analyses appear to address burden impacts only for sources that become subject to subparts VV and GGG in the future, but the proposed new requirements also would apply to sources that are currently subject to subpart VV or any of the rules that reference it. Fifth, even if some facilities voluntarily collect some of the records of concern, a requirement making their collection mandatory is still subject to the PRA, Regulatory Flexibility Act, and Executive Order 12866. Sixth, the commenter noted that the claim in the preamble that records of all monitoring events would be “useful” is not a legal basis for imposing the recordkeeping requirement. Seventh, if the total burden for all of the sources exceeds $100 million per year, additional review is triggered under other laws and Executive Order 12866. Based on the lack of analyses, the commenter stated that proposed recordkeeping and reporting requirements cannot be imposed on any sources, except perhaps new sources subject to subpart GGG, without additional proposal notice and opportunity for public comment.
For the final amendments and new standards, we have made adjustments to the supporting statements for all subparts involved. The burden associated with the amended 40 CFR part 60, subpart VV and the new 40 CFR part 60, subpart VVa is included in the supporting statement for the CAR and all other referenced subparts. The burden associated with the amended 40 CFR part 60, subpart GGG and the new 40 CFR part 60, subpart GGGa is included in the supporting statement that originally just supplied information for subpart GGG.
Because this particular rulemaking did not evaluate sources subject to 40 CFR part 60, subparts DDD and KKK or the Refinery NESHAP, we have not included any changes to the associated ICR for these subparts.
In setting standards, the CAA requires us to consider alternative emission control approaches, taking into account the estimated costs and benefits, as well as the energy, solid waste, and other effects. We are presenting estimates of the impacts for the 500 ppm leak definition for valves and the 2,000 ppm leak definition for pumps in 40 CFR part 60, subparts VVa and GGGa and connector monitoring in subpart VVa. The final amendments are clarifications to the existing subpart VV and subpart GGG to 40 CFR part 60; they have no associated emission reduction impacts. The cost, environmental, and economic impacts of the new standards are expressed as incremental differences between the impacts of SOCMI and petroleum refining process units complying with the new subparts and the current NSPS requirements (i.e., baseline). The impacts are presented for SOCMI and petroleum refining process
EPA estimates that there are no significant energy or secondary environmental impacts as a result of the new standards. The new standards are changes to work practice requirements and do not require changes to equipment or control devices. Therefore, use of fuel or electricity is not expected to increase significantly as a result of the new standards. Likewise, the new standards do not require physical changes that have the potential to increase wastewater or solid waste from SOCMI or petroleum refinery process units.
The methodology used to estimate impacts for the lower leak definitions for pumps and valves in the new 40 CFR part 60, subpart VVa is essentially the same as the methodology described in section VI.A of the preamble for the proposed amendments (71 FR 65311, November 7, 2006). There are, however, a few changes in the assumptions. We adjusted the estimates of baseline emissions and monitoring frequencies for new, modified, and reconstructed process units not subject to the HON, the MON, or the Ethylene NESHAP to better reflect baseline conditions.
In addition, we added emission reduction and cost impacts for the monitoring of connectors. The analysis completed for the proposed amendments to 40 CFR part 60, subpart VV was documented in a technical memorandum (EPA-HQ-OAR-2006-0699-0035). Based on the leak frequencies obtained from
Based on the assumptions described above, we estimate that the new standards will reduce emissions of VOC about 325 tons/yr from the baseline. The estimated increase in annual cost, including annualized initial costs, is about $821,000. The cost-effectiveness is about $1,700 per ton of VOC removed. The estimated nationwide 5-year incremental emissions reductions and cost impacts for each of the new standards are summarized in Table 2 of this preamble.
The methodology used to estimate impacts for the new 40 CFR part 60, subpart GGGa is essentially the same as the methodology described in section VI.B of the preamble for the proposed amendments (71 FR 65311). There are, however, a few changes in the assumptions. For example, we originally assumed that the leak definitions in the Refinery NESHAP for valves and pumps on new sources since July 14, 1994, are equivalent to the leak definitions in 40 CFR part 60, subparts VVa and GGGa. However, the leak definitions in subparts VVa and GGGa are, in fact, more stringent than the Refinery NESHAP (proposed amendments at 72 FR 50716, September 4, 2007, did not include any changes to the equipment leak standards). Therefore, process units subject to both standards will comply with the leak definitions in subpart GGGa, so we revised the analysis of the impacts for the promulgated amendments to include the impacts for sources subject to both the Refinery NESHAP and subpart GGGa. We also adjusted the estimates of baseline emissions and monitoring frequencies for process units not subject to a consent decree. The revised impacts analysis is described in detail in Docket ID No. EPA-HQ-OAR-2006-0699.
We estimate that the new standards will reduce emissions of VOC about 13 tons/yr from the baseline. The estimated increase in annual cost, including annualized initial costs, is about $26,000. The cost-effectiveness is about $1,600 per ton of VOC removed. The estimated nationwide 5-year incremental emissions reductions and cost impacts for the new standards are summarized in Table 3 of this preamble.
An economic impact analysis was performed to compare the control costs associated with producing a product at petroleum refineries and various types of SOCMI facilities to the average value of shipments from such facilities. Since we are unable to associate projected control costs with specific facilities, we examined two polar cases for each industry, (1) a worst-case and (2) a best-case scenario. For the SOCMI, the polar cases are: (1) No more than eight complex process units located at a single facility and (2) no more than one process unit per facility. For petroleum refineries, the polar cases are: (1) All of the affected process units associated with one facility in the industry and (2) no more than one affected process unit at any given facility. In all cases, the magnitude of the costs is quite small. The only scenario for which the control costs reach 0.3 percent of the facility value of shipments is if an average ethyl alcohol manufacturing facility (in terms of value of shipments) experienced the worst case scenario of 8 complex processing units requiring control. Therefore, while the distribution of costs to small entities is unknown, no significant impact is expected for facilities of any size. The impact of the regulation on prices and profitability depends on the extent that the costs of control are passed on in the form of higher prices or absorbed by the facility. Because the costs are so small, any price increases or loss of profit would be quite small. No significant impact is expected as a result of the final amendments or the new standards of performance for equipment leaks of VOC for the petroleum refining industry and SOCMI.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action.
The final amendments to the standards of performance for SOCMI and petroleum refineries (40 CFR part 60, subparts VV and GGG) do not impose any new information collection burden. The final amendments to these existing rules contain only clarifications, burden reducing provisions, and new compliance options. OMB has previously approved the information collection requirements contained in the existing regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501,
The information collection requirements in these new final standards (40 CFR part 60, subparts VVa and GGGa) have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501,
The information to be collected for the new standards are based on recordkeeping and reporting requirements in the NSPS General Provisions in 40 CFR part 60, subpart A, which are mandatory for all operators subject to NSPS. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to EPA policies set forth in 40 CFR part 2, subpart B.
Facilities subject to 40 CFR part 60, subpart VVa are required to comply with the same monitoring, recordkeeping, and reporting requirements for equipment leaks as required by 40 CFR part 60, subpart VV, along with certain additional requirements. The new recordkeeping provisions in subpart VVa require general identifying information for each monitoring activity required by the rule and specific information needed to demonstrate compliance with the new monitoring provisions for connectors and pumps in light liquid service (weekly visual inspections for indications of dripping liquids). Records are also required to demonstrate compliance with the QA/QC requirement for a calibration drift assessment at the end of each day and comparison of the results of the assessment with the most recent calibration value. A new, reconstructed, or modified affected facility subject to 40 CFR part 60, subpart VVa or GGGa must submit a notification of compliance status report and include information about leaking connectors in semi-annual compliance reports. Affected facilities subject to subpart GGGa are required to comply with the monitoring, recordkeeping, and reporting requirements in subpart VVa except for the monitoring requirements applicable to connectors (and the associated recordkeeping/reporting requirements).
The annual average burden for the information collection requirements in 40 CFR part 60, subpart VVa is estimated at 7,194 labor-hours per year, with a total annual cost of $527,104 per year. The hour burden is based on an estimated 29 hours per response on a semi-annual basis by 76 respondents. Total capital/startup costs associated with the monitoring equipment over the 3-year period of the ICR are estimated at $4,200. The operation of the monitors is included in the monitoring costs, and maintenance costs on these units are incidental; therefore, no maintenance or operation costs are incurred.
The annual average burden for the information collection requirements in 40 CFR part 60, subpart GGGa is estimated at 4,216 labor-hours per year, with a total annual cost of $330,353 per year. The hour burden is based on an estimated 70 hours per response on a semi-annual basis by 20 respondents. No capital/startup costs or operation and maintenance costs are associated with the information collection requirements.
Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment for the approved information collection requirements contained in the new standards.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the final amendments and new standards on small entities, small entity is defined as: (1) A small business according to Small Business Administration size standards by the North American Industry Classification System (NAICS) category of the owning entity; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. For the SOCMI, a small business ranges from less than 500 employees to less than 1,000 employees, depending on the NAICS code. For petroleum refiners, a small business has no more than 1,500 employees and a crude oil distillation capacity of no more than 125,000 barrels per calendar day.
After considering the economic impacts of these final amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. We have determined that no facilities subject to the final amendments to the standards of performance for the SOCMI (40 CFR part 60, subpart VV) and petroleum refineries (40 CFR part 60, subpart GGG), including small businesses, will incur any adverse impacts because the final amendments do not create any new requirements or burdens. The final amendments include only clarifications, burden-reducing provisions, and new compliance options. We have determined that no facilities, large or small, subject to the new standards of performance for the SOCMI (40 CFR part 60, subpart VVa) or petroleum refineries (40 CFR part 60, subpart GGGa) will incur any economic impact greater than 0.3 percent of their revenues. For more information on the results of the analysis of small entity impacts, please refer to the economic impact analysis for the final amendments and new standards in Docket ID No. EPA-HQ-OAR-2006-0699.
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that this final action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. As discussed earlier in this preamble, no costs are associated with the final amendments, which contain only clarifications, burden-reducing provisions, and new compliance options. For the new standards, the estimated annual expenditures for the private sector in the fifth year after proposal are $821,000 for SOCMI and $26,000 for petroleum refineries. Thus, the final amendments and the new standards are not subject to the requirements of sections 202 and 205 of the UMRA.
In addition, EPA has determined that the final action contains no regulatory requirements that might significantly or uniquely affect small governments. The final action contains no requirements that apply to such governments, imposes no obligations upon them, and will not result in expenditures by them of $100 million or more in any 1 year or any disproportionate impacts on them. Therefore, the final action is not subject to the requirements of section 203 of the UMRA.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of
The final action does not have federalism implications. The final amendments and the new standards will 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. None of the affected facilities are owned or operated by State governments. Thus, Executive Order 13132 does not apply to this final action.
Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The final action does not have tribal implications, as specified in Executive Order 13175. The final amendments and the new standards will not have substantial direct effects on tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this final action.
Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This final action is not subject to Executive Order 13045 because the final amendments and the new standards are based on technology performance and not on health or safety risks.
This final action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this final action is not likely to have any adverse energy effects. The final action will not have any significant or adverse energy impacts because no additional pollution controls or other equipment that consume energy are required by the final amendments or new standards.
As noted in the proposal, section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Public Law No. 104-113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.
This rulemaking involves technical standards. The EPA cites the following methods: EPA Method 2, 2A, 2C, 2D, 18, 21, and 22 of 40 CFR part 60, appendix A.
In addition, the EPA cites the following ASTM methods that are also VCS: ASTM E260-73, E260-91, E260-96 (reapproved 2006), E168-67, E168-77, E168-92, E169-63, E169-77, and E169-93 when determining if a piece of equipment is in VOC service; ASTM D2879-83, D2879-96, and D2879-97 (reapproved 2007) when determining if a piece of equipment is in light liquid service, and ASTM D2504-67, D2504-77, D2504-88 (reapproved 1993), D2382-76, D2382-88, and D4809-95 when determining the maximum permitted velocity for air-assisted flares; ASTM E260-73, E260-91, E260-96, E168-67, E168-77, E168-92, E169-63, E169-77, and E169-93 when determining if a piece of equipment is in hydrogen service; and ASTM D86-78, D86-82, D86-90, D86-95, and D86-96 when determining if a piece of equipment is in light liquid service. These VCS will be incorporated by reference into § 60.17.
Consistent with the NTTAA, EPA conducted searches to identify VCS in addition to these EPA methods. No applicable VCS were identified for EPA Methods 2A, 2D, 21, and 22. The search and review results are in the docket for this rule.
The search identified one VCS as an acceptable alternative to an EPA Method. The standard ASTM D6420-99 (2004), “Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography/Mass Spectrometry,” is cited in this rule as an alternative to EPA Method 18 for measuring gaseous organic HAP.
Similar to EPA's performance-based Method 18, ASTM D6420-99 is also a performance-based method for measurement of gaseous organic compounds. However, ASTM D6420-99 was written to support the specific use of highly portable and automated gas chromatography (GC)/mass spectrometry (MS). While offering advantages over the traditional EPA Method 18, the ASTM method does allow some less stringent criteria for accepting GC/MS results than required by EPA Method 18. Therefore, ASTM D6420-99 is a suitable alternative to EPA Method 18 only where:
(1) The target compound(s) are those listed in Section 1.1 of ASTM D6420-99, and
(2) The target concentration is between 150 parts per billion by volume and 100 ppmv.
For target compound(s) not listed in Section 1.1 of ASTM D6420-99, but potentially detected by mass spectrometry, the regulation specifies that the additional system continuing calibration check after each run, as detailed in Section 10.5.3 of the ASTM method, must be followed, met, documented, and submitted with the data report even if there is no moisture condenser used or the compound is not considered water soluble. For target
As a result, EPA will cite ASTM D6420-99 in this rule. The EPA will also cite EPA Method 18 as a GC option in addition to ASTM D6420-99. This will allow the continued use of GC configurations other than GC/MS.
The search for emissions measurement procedures identified four other VCS. The EPA determined that these four standards identified for measuring emissions of the HAP or surrogates subject to emission standards in this rule were impractical alternatives to EPA test methods for the purposes of this rule. Therefore, EPA does not intend to adopt these standards for this purpose. The reasons for the determinations for the four methods are discussed in the docket to this rule.
A source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures. Potential standards are reviewed to determine if they meet the requirements of EPA Method 301 for accepting alternative methods or scientific, engineering, and policy equivalence to procedures in EPA reference methods.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. The final amendments to the standards of performance for SOCMI (40 CFR part 60, subpart VV) and petroleum refineries (40 CFR part 60, subpart GGG) are comprised of clarifications, burden-reducing provisions, and new compliance options that do not affect the current level of control at facilities subject these rules. The new standards of performance for SOCMI (40 CFR part 60, subpart VVa) and petroleum refineries (40 CFR part 60, subpart GGGa) will increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The new subparts will increase the stringency of the standards of performance by reducing the leak definitions for certain pumps and valves, and subpart VVa will increase the stringency further by requiring the monitoring of certain connectors.
The Congressional Review Act, 5 U.S.C. 801,
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations.
42 U.S.C. 7401,
(a) * * *
(7) ASTM D86-78, 82, 90, 93, 95, 96, Distillation of Petroleum Products, IBR approved for §§ 60.562-2(d), 60.593(d), 60.593a(d), and 60.633(h).
(35) ASTM D2382-76, 88, Heat of Combustion of Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method), IBR approved for §§ 60.18(f)(3), 60.485(g)(6), 60.485a(g)(6), 60.564(f)(3), 60.614(e)(4), 60.664(e)(4), and 60.704(d)(4).
(36) ASTM D2504-67, 77, 88 (Reapproved 1993), Noncondensable Gases in C3 and Lighter Hydrocarbon Products by Gas Chromatography, IBR approved for §§ 60.485(g)(5) and 60.485a(g)(5).
(41) ASTM D2879-83, 96, 97, Test Method for Vapor Pressure-Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope, IBR approved for §§ 60.111b(f)(3), 60.116b(e)(3)(ii), 60.116b(f)(2)(i), 60.485(e)(1), and 60.485a(e)(1).
(70) ASTM D4809-95, Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision Method), IBR approved for §§ 60.18(f)(3), 60.485(g)(6), 60.485a(g)(6), 60.564(f)(3), 60.614(d)(4), 60.664(e)(4), and 60.704(d)(4).
(88) ASTM E168-67, 77, 92, General Techniques of Infrared Quantitative Analysis, IBR approved for §§ 60.485a(d)(1), 60.593(b)(2), 60.593a(b)(2), and 60.632(f).
(89) ASTM E169-63, 77, 93, General Techniques of Ultraviolet Quantitative Analysis, IBR approved for §§ 60.485a(d)(1), 60.593(b)(2), 60.593a(b)(2), and 60.632(f).
(90) ASTM E260-73, 91, 96, General Gas Chromatography Procedures, IBR approved for §§ 60.485a(d)(1), 60.593(b)(2), 60.593a(b)(2), and 60.632(f).
(b) Any affected facility under paragraph (a) of this section that commences construction, reconstruction, or modification after January 5, 1981, and on or before November 7, 2006, shall be subject to the requirements of this subpart.
(d) * * *
(2) Any affected facility that has the design capacity to produce less than 1,000 Mg/yr (1,102 ton/yr) of a chemical listed in § 60.489 is exempt from §§ 60.482-1 through 60.482-10.
(3) If an affected facility produces heavy liquid chemicals only from heavy liquid feed or raw materials, then it is exempt from §§ 60.482-1 through 60.482-10.
(4) Any affected facility that produces beverage alcohol is exempt from §§ 60.482-1 through 60.482-10.
(5) Any affected facility that has no equipment in volatile organic compounds (VOC) service is exempt from §§ 60.482-1 through 60.482-10.
(e)
(ii)
(2)
(1) An unscheduled work practice or operational procedure that stops production from a process unit or part of a process unit for less than 24 hours.
(2) An unscheduled work practice or operational procedure that would stop production from a process unit or part of a process unit for a shorter period of time than would be required to clear the process unit or part of the process unit of materials and start up the unit, and would result in greater emissions than delay of repair of leaking components until the next scheduled process unit shutdown.
(3) The use of spare equipment and technically feasible bypassing of equipment without stopping production.
(e) Equipment that an owner or operator designates as being in VOC service less than 300 hours (hr)/yr is excluded from the requirements of §§ 60.482-2 through 60.482-10 if it is identified as required in § 60.486(e)(6) and it meets any of the conditions specified in paragraphs (e)(1) through (3) of this section.
(1) The equipment is in VOC service only during startup and shutdown, excluding startup and shutdown between batches of the same campaign for a batch process.
(2) The equipment is in VOC service only during process malfunctions or other emergencies.
(3) The equipment is backup equipment that is in VOC service only when the primary equipment is out of service.
(f)(1) If a dedicated batch process unit operates less than 365 days during a year, an owner or operator may monitor to detect leaks from pumps and valves at the frequency specified in the following table instead of monitoring as specified in §§ 60.482-2, 60.482-7, and 60.483-2:
(2) Pumps and valves that are shared among two or more batch process units that are subject to this subpart may be monitored at the frequencies specified in paragraph (f)(1) of this section, provided the operating time of all such process units is considered.
(3) The monitoring frequencies specified in paragraph (f)(1) of this section are not requirements for monitoring at specific intervals and can be adjusted to accommodate process operations. An owner or operator may monitor at any time during the specified monitoring period (e.g., month, quarter, year), provided the monitoring is conducted at a reasonable interval after completion of the last monitoring campaign. Reasonable intervals are defined in paragraphs (f)(3)(i) through (iv) of this section.
(i) When monitoring is conducted quarterly, monitoring events must be separated by at least 30 calendar days.
(ii) When monitoring is conducted semiannually (
(iii) When monitoring is conducted in 3 quarters per year, monitoring events must be separated by at least 90 calendar days.
(iv) When monitoring is conducted annually, monitoring events must be separated by at least 120 calendar days.
(g) If the storage vessel is shared with multiple process units, the process unit with the greatest annual amount of stored materials (predominant use) is the process unit the storage vessel is assigned to. If the storage vessel is shared equally among process units, and one of the process units has equipment subject to subpart VVa of this part, the storage vessel is assigned to that process unit. If the storage vessel is shared equally among process units, none of which have equipment subject to subpart VVa of this part, the storage vessel is assigned to any process unit subject to this subpart. If the predominant use of the storage vessel varies from year to year, then the owner or operator must estimate the predominant use initially and reassess every 3 years. The owner or operator must keep records of the information and supporting calculations that show how predominant use is determined. All equipment on the storage vessel must be monitored when in VOC service.
(a)(1) Each pump in light liquid service shall be monitored monthly to detect leaks by the methods specified in § 60.485(b), except as provided in § 60.482-1(c) and (f) and paragraphs (d), (e), and (f) of this section. A pump that begins operation in light liquid service after the initial startup date for the process unit must be monitored for the first time within 30 days after the end of its startup period, except for a pump that replaces a leaking pump and except as provided in § 60.482-1(c) and (f) and paragraphs (d), (e), and (f) of this section.
(2) Each pump in light liquid service shall be checked by visual inspection each calendar week for indications of liquids dripping from the pump seal, except as provided in § 60.482-1(f).
(b) * * *
(2) If there are indications of liquids dripping from the pump seal, the owner or operator shall follow the procedure specified in either paragraph (b)(2)(i) or (ii) of this section. This requirement does not apply to a pump that was monitored after a previous weekly inspection if the instrument reading for that monitoring event was less than 10,000 ppm and the pump was not repaired since that monitoring event.
(i) Monitor the pump within 5 days as specified in § 60.485(b). If an instrument reading of 10,000 ppm or greater is measured, a leak is detected. The leak shall be repaired using the procedures in paragraph (c) of this section.
(ii) Designate the visual indications of liquids dripping as a leak, and repair the leak within 15 days of detection by eliminating the visual indications of liquids dripping.
(c) * * *
(2) A first attempt at repair shall be made no later than 5 calendar days after each leak is detected. First attempts at repair include, but are not limited to, the practices described in paragraphs (c)(2)(i) and (ii) of this section, where practicable.
(i) Tightening the packing gland nuts;
(ii) Ensuring that the seal flush is operating at design pressure and temperature.
(d) Each pump equipped with a dual mechanical seal system that includes a barrier fluid system is exempt from the requirements of paragraph (a) of this section, provided the requirements specified in paragraphs (d)(1) through (6) of this section are met.
(1) * * *
(ii) Equipped with a barrier fluid degassing reservoir that is routed to a process or fuel gas system or connected by a closed vent system to a control device that complies with the requirements of § 60.482-10; or
(4)(i) Each pump is checked by visual inspection, each calendar week, for indications of liquids dripping from the pump seals.
(ii) If there are indications of liquids dripping from the pump seal at the time of the weekly inspection, the owner or operator shall follow the procedure specified in either paragraph (d)(4)(ii)(A) or (B) of this section.
(A) Monitor the pump within 5 days as specified in § 60.485(b) to determine if there is a leak of VOC in the barrier fluid. If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(B) Designate the visual indications of liquids dripping as a leak.
(5)(i) Each sensor as described in paragraph (d)(3) of this section is checked daily or is equipped with an audible alarm.
(ii) The owner or operator determines, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(iii) If the sensor indicates failure of the seal system, the barrier fluid system, or both, based on the criterion established in paragraph (d)(5)(ii) of this section, a leak is detected.
(6)(i) When a leak is detected pursuant to paragraph (d)(4)(ii)(A) of this section, it shall be repaired as specified in paragraph (c) of this section.
(ii) A leak detected pursuant to paragraph (d)(5)(iii) of this section shall be repaired within 15 days of detection by eliminating the conditions that activated the sensor.
(iii) A designated leak pursuant to paragraph (d)(4)(ii)(B) of this section shall be repaired within 15 days of detection by eliminating visual indications of liquids dripping.
(e) Any pump that is designated, as described in § 60.486(e)(1) and (2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraphs (a), (c), and (d) of this section if the pump:
(a) Each compressor shall be equipped with a seal system that includes a barrier fluid system and that prevents leakage of VOC to the atmosphere, except as provided in § 60.482-1(c) and paragraphs (h), (i), and (j) of this section.
(j) Any existing reciprocating compressor in a process unit which becomes an affected facility under provisions of § 60.14 or § 60.15 is exempt from paragraphs (a) through (e) and (h) of this section, provided the owner or operator demonstrates that recasting the distance piece or replacing the compressor are the only options available to bring the compressor into compliance with the provisions of paragraphs (a) through (e) and (h) of this section.
(a) Each sampling connection system shall be equipped with a closed-purge, closed-loop, or closed-vent system, except as provided in § 60.482-1(c) and paragraph (c) of this section.
(b) Each closed-purge, closed-loop, or closed-vent system as required in paragraph (a) of this section shall comply with the requirements specified in paragraphs (b)(1) through (4) of this section.
(1) Gases displaced during filling of the sample container are not required to be collected or captured.
(2) Containers that are part of a closed-purge system must be covered or closed when not being filled or emptied.
(3) Gases remaining in the tubing or piping between the closed-purge system valve(s) and sample container valve(s) after the valves are closed and the sample container is disconnected are not required to be collected or captured.
(4) Each closed-purge, closed-loop, or closed-vent system shall be designed and operated to meet requirements in either paragraph (b)(4)(i), (ii), (iii), or (iv) of this section.
(i) Return the purged process fluid directly to the process line.
(ii) Collect and recycle the purged process fluid to a process.
(iii) Capture and transport all the purged process fluid to a control device that complies with the requirements of § 60.482-10.
(iv) Collect, store, and transport the purged process fluid to any of the following systems or facilities:
(A) A waste management unit as defined in § 63.111, if the waste management unit is subject to and operated in compliance with the provisions of 40 CFR part 63, subpart G, applicable to Group 1 wastewater streams;
(B) A treatment, storage, or disposal facility subject to regulation under 40 CFR part 262, 264, 265, or 266;
(C) A facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the process fluids are not hazardous waste as defined in 40 CFR part 261;
(D) A waste management unit subject to and operated in compliance with the treatment requirements of § 61.348(a), provided all waste management units that collect, store, or transport the purged process fluid to the treatment unit are subject to and operated in compliance with the management requirements of §§ 61.343 through 61.347; or
(E) A device used to burn off-specification used oil for energy recovery in accordance with 40 CFR part 279, subpart G, provided the purged process fluid is not hazardous waste as defined in 40 CFR part 261.
(a)(1) Each open-ended valve or line shall be equipped with a cap, blind flange, plug, or a second valve, except as provided in § 60.482-1(c) and paragraphs (d) and (e) of this section.
(a)(1) Each valve shall be monitored monthly to detect leaks by the methods specified in § 60.485(b) and shall comply with paragraphs (b) through (e) of this section, except as provided in paragraphs (f), (g), and (h) of this section, § 60.482-1(c) and (f), and §§ 60.483-1 and 60.483-2.
(2) A valve that begins operation in gas/vapor service or light liquid service after the initial startup date for the process unit must be monitored according to paragraphs (a)(2)(i) or (ii), except for a valve that replaces a leaking valve and except as provided in paragraphs (f), (g), and (h) of this section, § 60.482-1(c), and §§ 60.483-1 and 60.483-2.
(i) Monitor the valve as in paragraph (a)(1) of this section. The valve must be
(ii) If the valves on the process unit are monitored in accordance with § 60.483-1 or § 60.483-2, count the new valve as leaking when calculating the percentage of valves leaking as described in § 60.483-2(b)(5). If less than 2.0 percent of the valves are leaking for that process unit, the valve must be monitored for the first time during the next scheduled monitoring event for existing valves in the process unit or within 90 days, whichever comes first.
(c)(1)(i) Any valve for which a leak is not detected for 2 successive months may be monitored the first month of every quarter, beginning with the next quarter, until a leak is detected.
(ii) As an alternative to monitoring all of the valves in the first month of a quarter, an owner or operator may elect to subdivide the process unit into 2 or 3 subgroups of valves and monitor each subgroup in a different month during the quarter, provided each subgroup is monitored every 3 months. The owner or operator must keep records of the valves assigned to each subgroup.
(a) * * *
(2) The owner or operator shall eliminate the visual, audible, olfactory, or other indication of a potential leak within 5 calendar days of detection.
(d) First attempts at repair include, but are not limited to, the best practices described under §§ 60.482-2(c)(2) and 60.482-7(e).
(a) Delay of repair of equipment for which leaks have been detected will be allowed if repair within 15 days is technically infeasible without a process unit shutdown. Repair of this equipment shall occur before the end of the next process unit shutdown. Monitoring to verify repair must occur within 15 days after startup of the process unit.
(f) When delay of repair is allowed for a leaking pump or valve that remains in service, the pump or valve may be considered to be repaired and no longer subject to delay of repair requirements if two consecutive monthly monitoring instrument readings are below the leak definition.
(d) Owners and operators who elect to comply with this alternative standard shall not have an affected facility with a leak percentage greater than 2.0 percent, determined as described in § 60.485(h).
(b) * * *
(5) The percent of valves leaking shall be determined as described in § 60.485(h).
(7) A valve that begins operation in gas/vapor service or light liquid service after the initial startup date for a process unit following one of the alternative standards in this section must be monitored in accordance with § 60.482-7(a)(2)(i) or (ii) before the provisions of this section can be applied to that valve.
(b) * * *
(2) The Administrator will compare test data for demonstrating equivalence of the means of emission limitation to test data for the equipment, design, and operational requirements.
(b) The owner or operator shall determine compliance with the standards in §§ 60.482-1 through 60.482-10, 60.483, and 60.484 as follows:
(e) The owner or operator shall demonstrate that a piece of equipment is in light liquid service by showing that all the following conditions apply:
(1) The vapor pressure of one or more of the organic components is greater than 0.3 kPa at 20 °C (1.2 in. H
(2) The total concentration of the pure organic components having a vapor pressure greater than 0.3 kPa at 20 °C (1.2 in. H
(g) * * *
(4) The net heating value (H
(5) Method 18 or ASTM D6420-99 (2004) (where the target compound(s) are those listed in Section 1.1 of ASTM D6420-99, and the target concentration is between 150 parts per billion by volume and 100 parts per million by volume) and ASTM D2504-67, 77 or 88 (Reapproved 1993) (incorporated by reference—see § 60.17) shall be used to determine the concentration of sample component “i.”
(h) The owner or operator shall determine compliance with § 60.483-1 or § 60.483-2 as follows:
(1) The percent of valves leaking shall be determined using the following equation:
%V
(2) The total number of valves monitored shall include difficult-to-monitor and unsafe-to-monitor valves
(3) The number of valves leaking shall include valves for which repair has been delayed.
(4) Any new valve that is not monitored within 30 days of being placed in service shall be included in the number of valves leaking and the total number of valves monitored for the monitoring period in which the valve is placed in service.
(5) If the process unit has been subdivided in accordance with § 60.482-7(c)(1)(ii), the sum of valves found leaking during a monitoring period includes all subgroups.
(6) The total number of valves monitored does not include a valve monitored to verify repair.
(e) * * *
(2) * * *
(ii) The designation of equipment as subject to the requirements of § 60.482-2(e), § 60.482-3(i), or § 60.482-7(f) shall be signed by the owner or operator. Alternatively, the owner or operator may establish a mechanism with their permitting authority that satisfies this requirement.
(6) A list of identification numbers for equipment that the owner or operator designates as operating in VOC service less than 300 hr/yr in accordance with § 60.482-1(e), a description of the conditions under which the equipment is in VOC service, and rationale supporting the designation that it is in VOC service less than 300 hr/yr.
(c) * * *
(2) * * *
(i) Number of valves for which leaks were detected as described in § 60.482-7(b) or § 60.483-2,
(iii) Number of pumps for which leaks were detected as described in § 60.482-2(b), (d)(4)(ii)(A) or (B), or (d)(5)(iii),
(iv) Number of pumps for which leaks were not repaired as required in § 60.482-2(c)(1) and (d)(6),
(a)(1) The provisions of this subpart apply to affected facilities in the synthetic organic chemicals manufacturing industry.
(2) The group of all equipment (defined in § 60.481a) within a process unit is an affected facility.
(b) Any affected facility under paragraph (a) of this section that commences construction, reconstruction, or modification after November 7, 2006, shall be subject to the requirements of this subpart.
(c) Addition or replacement of equipment for the purpose of process improvement which is accomplished without a capital expenditure shall not by itself be considered a modification under this subpart.
(d)(1) If an owner or operator applies for one or more of the exemptions in this paragraph, then the owner or operator shall maintain records as required in § 60.486a(i).
(2) Any affected facility that has the design capacity to produce less than 1,000 Mg/yr (1,102 ton/yr) of a chemical listed in § 60.489 is exempt from §§ 60.482-1a through 60.482-11a.
(3) If an affected facility produces heavy liquid chemicals only from heavy liquid feed or raw materials, then it is exempt from §§ 60.482-1a through 60.482-11a.
(4) Any affected facility that produces beverage alcohol is exempt from §§ 60.482-1a through 60.482-11a.
(5) Any affected facility that has no equipment in volatile organic compounds (VOC) service is exempt from §§ 60.482-1a through 60.482-11a.
(e)
(ii)
(2)
(ii)
As used in this subpart, all terms not defined herein shall have the meaning given them in the Clean Air Act (CAA) or in subpart A of part 60, and the following terms shall have the specific meanings given them.
(a) Exceeds P, the product of the facility's replacement cost, R, and an adjusted annual asset guideline repair allowance, A, as reflected by the following equation: P = R × A, where:
(1) The adjusted annual asset guideline repair allowance, A, is the product of the percent of the replacement cost, Y, and the applicable basic annual asset guideline repair allowance, B, divided by 100 as reflected by the following equation:
A = Y × (B ÷ 100);
(2) The percent Y is determined from the following equation: Y = 1.0 − 0.575 log X, where X is 2006 minus the year of construction; and
(3) The applicable basic annual asset guideline repair allowance, B, is selected from the following table consistent with the applicable subpart:
(1) An unscheduled work practice or operational procedure that stops production from a process unit or part of a process unit for less than 24 hours.
(2) An unscheduled work practice or operational procedure that would stop production from a process unit or part of a process unit for a shorter period of time than would be required to clear the process unit or part of the process unit of materials and start up the unit, and would result in greater emissions than delay of repair of leaking components until the next scheduled process unit shutdown.
(3) The use of spare equipment and technically feasible bypassing of equipment without stopping production.
(a) Each owner or operator subject to the provisions of this subpart shall demonstrate compliance with the requirements of §§ 60.482-1a through 60.482-10a or § 60.480a(e) for all equipment within 180 days of initial startup.
(b) Compliance with §§ 60.482-1a to 60.482-10a will be determined by review of records and reports, review of performance test results, and inspection using the methods and procedures specified in § 60.485a.
(c)(1) An owner or operator may request a determination of equivalence of a means of emission limitation to the requirements of §§ 60.482-2a, 60.482-3a, 60.482-5a, 60.482-6a, 60.482-7a, 60.482-8a, and 60.482-10a as provided in § 60.484a.
(2) If the Administrator makes a determination that a means of emission limitation is at least equivalent to the requirements of §§ 60.482-2a, 60.482-3a, 60.482-5a, 60.482-6a, 60.482-7a, 60.482-8a, or 60.482-10a, an owner or operator shall comply with the requirements of that determination.
(d) Equipment that is in vacuum service is excluded from the requirements of §§ 60.482-2a through 60.482-10a if it is identified as required in § 60.486a(e)(5).
(e) Equipment that an owner or operator designates as being in VOC service less than 300 hr/yr is excluded from the requirements of §§ 60.482-2a through 60.482-11a if it is identified as required in § 60.486a(e)(6) and it meets any of the conditions specified in paragraphs (e)(1) through (3) of this section.
(1) The equipment is in VOC service only during startup and shutdown, excluding startup and shutdown between batches of the same campaign for a batch process.
(2) The equipment is in VOC service only during process malfunctions or other emergencies.
(3) The equipment is backup equipment that is in VOC service only when the primary equipment is out of service.
(f)(1) If a dedicated batch process unit operates less than 365 days during a year, an owner or operator may monitor to detect leaks from pumps, valves, and open-ended valves or lines at the frequency specified in the following table instead of monitoring as specified in §§ 60.482-2a, 60.482-7a, and 60.483.2a:
(2) Pumps and valves that are shared among two or more batch process units that are subject to this subpart may be monitored at the frequencies specified in paragraph (f)(1) of this section, provided the operating time of all such process units is considered.
(3) The monitoring frequencies specified in paragraph (f)(1) of this section are not requirements for monitoring at specific intervals and can be adjusted to accommodate process operations. An owner or operator may monitor at any time during the specified monitoring period (e.g., month, quarter, year), provided the monitoring is conducted at a reasonable interval after completion of the last monitoring campaign. Reasonable intervals are defined in paragraphs (f)(3)(i) through (iv) of this section.
(i) When monitoring is conducted quarterly, monitoring events must be separated by at least 30 calendar days.
(ii) When monitoring is conducted semiannually (
(iii) When monitoring is conducted in 3 quarters per year, monitoring events
(iv) When monitoring is conducted annually, monitoring events must be separated by at least 120 calendar days.
(g) If the storage vessel is shared with multiple process units, the process unit with the greatest annual amount of stored materials (predominant use) is the process unit the storage vessel is assigned to. If the storage vessel is shared equally among process units, and one of the process units has equipment subject to this subpart, the storage vessel is assigned to that process unit. If the storage vessel is shared equally among process units, none of which have equipment subject to this subpart of this part, the storage vessel is assigned to any process unit subject to subpart VV of this part. If the predominant use of the storage vessel varies from year to year, then the owner or operator must estimate the predominant use initially and reassess every 3 years. The owner or operator must keep records of the information and supporting calculations that show how predominant use is determined. All equipment on the storage vessel must be monitored when in VOC service.
(a)(1) Each pump in light liquid service shall be monitored monthly to detect leaks by the methods specified in § 60.485a(b), except as provided in § 60.482-1a(c) and (f) and paragraphs (d), (e), and (f) of this section. A pump that begins operation in light liquid service after the initial startup date for the process unit must be monitored for the first time within 30 days after the end of its startup period, except for a pump that replaces a leaking pump and except as provided in § 60.482-1a(c) and paragraphs (d), (e), and (f) of this section.
(2) Each pump in light liquid service shall be checked by visual inspection each calendar week for indications of liquids dripping from the pump seal, except as provided in § 60.482-1a(f).
(b)(1) The instrument reading that defines a leak is specified in paragraphs (b)(1)(i) and (ii) of this section.
(i) 5,000 parts per million (ppm) or greater for pumps handling polymerizing monomers;
(ii) 2,000 ppm or greater for all other pumps.
(2) If there are indications of liquids dripping from the pump seal, the owner or operator shall follow the procedure specified in either paragraph (b)(2)(i) or (ii) of this section. This requirement does not apply to a pump that was monitored after a previous weekly inspection and the instrument reading was less than the concentration specified in paragraph (b)(1)(i) or (ii) of this section, whichever is applicable.
(i) Monitor the pump within 5 days as specified in § 60.485a(b). A leak is detected if the instrument reading measured during monitoring indicates a leak as specified in paragraph (b)(1)(i) or (ii) of this section, whichever is applicable. The leak shall be repaired using the procedures in paragraph (c) of this section.
(ii) Designate the visual indications of liquids dripping as a leak, and repair the leak using either the procedures in paragraph (c) of this section or by eliminating the visual indications of liquids dripping.
(c)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 60.482-9a.
(2) A first attempt at repair shall be made no later than 5 calendar days after each leak is detected. First attempts at repair include, but are not limited to, the practices described in paragraphs (c)(2)(i) and (ii) of this section, where practicable.
(i) Tightening the packing gland nuts;
(ii) Ensuring that the seal flush is operating at design pressure and temperature.
(d) Each pump equipped with a dual mechanical seal system that includes a barrier fluid system is exempt from the requirements of paragraph (a) of this section, provided the requirements specified in paragraphs (d)(1) through (6) of this section are met.
(1) Each dual mechanical seal system is:
(i) Operated with the barrier fluid at a pressure that is at all times greater than the pump stuffing box pressure; or
(ii) Equipped with a barrier fluid degassing reservoir that is routed to a process or fuel gas system or connected by a closed vent system to a control device that complies with the requirements of § 60.482-10a; or
(iii) Equipped with a system that purges the barrier fluid into a process stream with zero VOC emissions to the atmosphere.
(2) The barrier fluid system is in heavy liquid service or is not in VOC service.
(3) Each barrier fluid system is equipped with a sensor that will detect failure of the seal system, the barrier fluid system, or both.
(4)(i) Each pump is checked by visual inspection, each calendar week, for indications of liquids dripping from the pump seals.
(ii) If there are indications of liquids dripping from the pump seal at the time of the weekly inspection, the owner or operator shall follow the procedure specified in either paragraph (d)(4)(ii)(A) or (B) of this section prior to the next required inspection.
(A) Monitor the pump within 5 days as specified in § 60.485a(b) to determine if there is a leak of VOC in the barrier fluid. If an instrument reading of 2,000 ppm or greater is measured, a leak is detected.
(B) Designate the visual indications of liquids dripping as a leak.
(5)(i) Each sensor as described in paragraph (d)(3) is checked daily or is equipped with an audible alarm.
(ii) The owner or operator determines, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(iii) If the sensor indicates failure of the seal system, the barrier fluid system, or both, based on the criterion established in paragraph (d)(5)(ii) of this section, a leak is detected.
(6)(i) When a leak is detected pursuant to paragraph (d)(4)(ii)(A) of this section, it shall be repaired as specified in paragraph (c) of this section.
(ii) A leak detected pursuant to paragraph (d)(5)(iii) of this section shall be repaired within 15 days of detection by eliminating the conditions that activated the sensor.
(iii) A designated leak pursuant to paragraph (d)(4)(ii)(B) of this section shall be repaired within 15 days of detection by eliminating visual indications of liquids dripping.
(e) Any pump that is designated, as described in § 60.486a(e)(1) and (2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraphs (a), (c), and (d) of this section if the pump:
(1) Has no externally actuated shaft penetrating the pump housing;
(2) Is demonstrated to be operating with no detectable emissions as indicated by an instrument reading of less than 500 ppm above background as measured by the methods specified in § 60.485a(c); and
(3) Is tested for compliance with paragraph (e)(2) of this section initially upon designation, annually, and at other times requested by the Administrator.
(f) If any pump is equipped with a closed vent system capable of capturing and transporting any leakage from the seal or seals to a process or to a fuel gas system or to a control device that complies with the requirements of § 60.482-10a, it is exempt from
(g) Any pump that is designated, as described in § 60.486a(f)(1), as an unsafe-to-monitor pump is exempt from the monitoring and inspection requirements of paragraphs (a) and (d)(4) through (6) of this section if:
(1) The owner or operator of the pump demonstrates that the pump is unsafe-to-monitor because monitoring personnel would be exposed to an immediate danger as a consequence of complying with paragraph (a) of this section; and
(2) The owner or operator of the pump has a written plan that requires monitoring of the pump as frequently as practicable during safe-to-monitor times, but not more frequently than the periodic monitoring schedule otherwise applicable, and repair of the equipment according to the procedures in paragraph (c) of this section if a leak is detected.
(h) Any pump that is located within the boundary of an unmanned plant site is exempt from the weekly visual inspection requirement of paragraphs (a)(2) and (d)(4) of this section, and the daily requirements of paragraph (d)(5) of this section, provided that each pump is visually inspected as often as practicable and at least monthly.
(a) Each compressor shall be equipped with a seal system that includes a barrier fluid system and that prevents leakage of VOC to the atmosphere, except as provided in § 60.482-1a(c) and paragraphs (h), (i), and (j) of this section.
(b) Each compressor seal system as required in paragraph (a) of this section shall be:
(1) Operated with the barrier fluid at a pressure that is greater than the compressor stuffing box pressure; or
(2) Equipped with a barrier fluid system degassing reservoir that is routed to a process or fuel gas system or connected by a closed vent system to a control device that complies with the requirements of § 60.482-10a; or
(3) Equipped with a system that purges the barrier fluid into a process stream with zero VOC emissions to the atmosphere.
(c) The barrier fluid system shall be in heavy liquid service or shall not be in VOC service.
(d) Each barrier fluid system as described in paragraph (a) shall be equipped with a sensor that will detect failure of the seal system, barrier fluid system, or both.
(e)(1) Each sensor as required in paragraph (d) of this section shall be checked daily or shall be equipped with an audible alarm.
(2) The owner or operator shall determine, based on design considerations and operating experience, a criterion that indicates failure of the seal system, the barrier fluid system, or both.
(f) If the sensor indicates failure of the seal system, the barrier system, or both based on the criterion determined under paragraph (e)(2) of this section, a leak is detected.
(g)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 60.482-9a.
(2) A first attempt at repair shall be made no later than 5 calendar days after each leak is detected.
(h) A compressor is exempt from the requirements of paragraphs (a) and (b) of this section, if it is equipped with a closed vent system to capture and transport leakage from the compressor drive shaft back to a process or fuel gas system or to a control device that complies with the requirements of § 60.482-10a, except as provided in paragraph (i) of this section.
(i) Any compressor that is designated, as described in § 60.486a(e)(1) and (2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraphs (a) through (h) of this section if the compressor:
(1) Is demonstrated to be operating with no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as measured by the methods specified in § 60.485a(c); and
(2) Is tested for compliance with paragraph (i)(1) of this section initially upon designation, annually, and at other times requested by the Administrator.
(j) Any existing reciprocating compressor in a process unit which becomes an affected facility under provisions of § 60.14 or § 60.15 is exempt from paragraphs (a) through (e) and (h) of this section, provided the owner or operator demonstrates that recasting the distance piece or replacing the compressor are the only options available to bring the compressor into compliance with the provisions of paragraphs (a) through (e) and (h) of this section.
(a) Except during pressure releases, each pressure relief device in gas/vapor service shall be operated with no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as determined by the methods specified in § 60.485a(c).
(b)(1) After each pressure release, the pressure relief device shall be returned to a condition of no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, as soon as practicable, but no later than 5 calendar days after the pressure release, except as provided in § 60.482-9a.
(2) No later than 5 calendar days after the pressure release, the pressure relief device shall be monitored to confirm the conditions of no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, by the methods specified in § 60.485a(c).
(c) Any pressure relief device that is routed to a process or fuel gas system or equipped with a closed vent system capable of capturing and transporting leakage through the pressure relief device to a control device as described in § 60.482-10a is exempted from the requirements of paragraphs (a) and (b) of this section.
(d)(1) Any pressure relief device that is equipped with a rupture disk upstream of the pressure relief device is exempt from the requirements of paragraphs (a) and (b) of this section, provided the owner or operator complies with the requirements in paragraph (d)(2) of this section.
(2) After each pressure release, a new rupture disk shall be installed upstream of the pressure relief device as soon as practicable, but no later than 5 calendar days after each pressure release, except as provided in § 60.482-9a.
(a) Each sampling connection system shall be equipped with a closed-purge, closed-loop, or closed-vent system, except as provided in § 60.482-1a(c) and paragraph (c) of this section.
(b) Each closed-purge, closed-loop, or closed-vent system as required in paragraph (a) of this section shall comply with the requirements specified in paragraphs (b)(1) through (4) of this section.
(1) Gases displaced during filling of the sample container are not required to be collected or captured.
(2) Containers that are part of a closed-purge system must be covered or closed when not being filled or emptied.
(3) Gases remaining in the tubing or piping between the closed-purge system valve(s) and sample container valve(s) after the valves are closed and the sample container is disconnected are not required to be collected or captured.
(4) Each closed-purge, closed-loop, or closed-vent system shall be designed and operated to meet requirements in either paragraph (b)(4)(i), (ii), (iii), or (iv) of this section.
(i) Return the purged process fluid directly to the process line.
(ii) Collect and recycle the purged process fluid to a process.
(iii) Capture and transport all the purged process fluid to a control device that complies with the requirements of § 60.482-10a.
(iv) Collect, store, and transport the purged process fluid to any of the following systems or facilities:
(A) A waste management unit as defined in 40 CFR 63.111, if the waste management unit is subject to and operated in compliance with the provisions of 40 CFR part 63, subpart G, applicable to Group 1 wastewater streams;
(B) A treatment, storage, or disposal facility subject to regulation under 40 CFR part 262, 264, 265, or 266;
(C) A facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the process fluids are not hazardous waste as defined in 40 CFR part 261;
(D) A waste management unit subject to and operated in compliance with the treatment requirements of 40 CFR 61.348(a), provided all waste management units that collect, store, or transport the purged process fluid to the treatment unit are subject to and operated in compliance with the management requirements of 40 CFR 61.343 through 40 CFR 61.347; or
(E) A device used to burn off-specification used oil for energy recovery in accordance with 40 CFR part 279, subpart G, provided the purged process fluid is not hazardous waste as defined in 40 CFR part 261.
(c) In-situ sampling systems and sampling systems without purges are exempt from the requirements of paragraphs (a) and (b) of this section.
(a)(1) Each open-ended valve or line shall be equipped with a cap, blind flange, plug, or a second valve, except as provided in § 60.482-1a(c) and paragraphs (d) and (e) of this section.
(2) The cap, blind flange, plug, or second valve shall seal the open end at all times except during operations requiring process fluid flow through the open-ended valve or line.
(b) Each open-ended valve or line equipped with a second valve shall be operated in a manner such that the valve on the process fluid end is closed before the second valve is closed.
(c) When a double block-and-bleed system is being used, the bleed valve or line may remain open during operations that require venting the line between the block valves but shall comply with paragraph (a) of this section at all other times.
(d) Open-ended valves or lines in an emergency shutdown system which are designed to open automatically in the event of a process upset are exempt from the requirements of paragraphs (a), (b), and (c) of this section.
(e) Open-ended valves or lines containing materials which would autocatalytically polymerize or would present an explosion, serious overpressure, or other safety hazard if capped or equipped with a double block and bleed system as specified in paragraphs (a) through (c) of this section are exempt from the requirements of paragraphs (a) through (c) of this section.
(a)(1) Each valve shall be monitored monthly to detect leaks by the methods specified in § 60.485a(b) and shall comply with paragraphs (b) through (e) of this section, except as provided in paragraphs (f), (g), and (h) of this section, § 60.482-1a(c) and (f), and §§ 60.483-1a and 60.483-2a.
(2) A valve that begins operation in gas/vapor service or light liquid service after the initial startup date for the process unit must be monitored according to paragraphs (a)(2)(i) or (ii), except for a valve that replaces a leaking valve and except as provided in paragraphs (f), (g), and (h) of this section, § 60.482-1a(c), and §§ 60.483-1a and 60.483-2a.
(i) Monitor the valve as in paragraph (a)(1) of this section. The valve must be monitored for the first time within 30 days after the end of its startup period to ensure proper installation.
(ii) If the existing valves in the process unit are monitored in accordance with § 60.483-1a or § 60.483-2a, count the new valve as leaking when calculating the percentage of valves leaking as described in § 60.483-2a(b)(5). If less than 2.0 percent of the valves are leaking for that process unit, the valve must be monitored for the first time during the next scheduled monitoring event for existing valves in the process unit or within 90 days, whichever comes first.
(b) If an instrument reading of 500 ppm or greater is measured, a leak is detected.
(c)(1)(i) Any valve for which a leak is not detected for 2 successive months may be monitored the first month of every quarter, beginning with the next quarter, until a leak is detected.
(ii) As an alternative to monitoring all of the valves in the first month of a quarter, an owner or operator may elect to subdivide the process unit into two or three subgroups of valves and monitor each subgroup in a different month during the quarter, provided each subgroup is monitored every 3 months. The owner or operator must keep records of the valves assigned to each subgroup.
(2) If a leak is detected, the valve shall be monitored monthly until a leak is not detected for 2 successive months.
(d)(1) When a leak is detected, it shall be repaired as soon as practicable, but no later than 15 calendar days after the leak is detected, except as provided in § 60.482-9a.
(2) A first attempt at repair shall be made no later than 5 calendar days after each leak is detected.
(e) First attempts at repair include, but are not limited to, the following best practices where practicable:
(1) Tightening of bonnet bolts;
(2) Replacement of bonnet bolts;
(3) Tightening of packing gland nuts;
(4) Injection of lubricant into lubricated packing.
(f) Any valve that is designated, as described in § 60.486a(e)(2), for no detectable emissions, as indicated by an instrument reading of less than 500 ppm above background, is exempt from the requirements of paragraph (a) of this section if the valve:
(1) Has no external actuating mechanism in contact with the process fluid,
(2) Is operated with emissions less than 500 ppm above background as determined by the method specified in § 60.485a(c), and
(3) Is tested for compliance with paragraph (f)(2) of this section initially upon designation, annually, and at other times requested by the Administrator.
(g) Any valve that is designated, as described in § 60.486a(f)(1), as an unsafe-to-monitor valve is exempt from the requirements of paragraph (a) of this section if:
(1) The owner or operator of the valve demonstrates that the valve is unsafe to monitor because monitoring personnel would be exposed to an immediate danger as a consequence of complying with paragraph (a) of this section, and
(2) The owner or operator of the valve adheres to a written plan that requires monitoring of the valve as frequently as practicable during safe-to-monitor times.
(h) Any valve that is designated, as described in § 60.486a(f)(2), as a difficult-to-monitor valve is exempt
(1) The owner or operator of the valve demonstrates that the valve cannot be monitored without elevating the monitoring personnel more than 2 meters above a support surface.
(2) The process unit within which the valve is located either:
(i) Becomes an affected facility through § 60.14 or § 60.15 and was constructed on or before January 5, 1981; or
(ii) Has less than 3.0 percent of its total number of valves designated as difficult-to-monitor by the owner or operator.
(3) The owner or operator of the valve follows a written plan that requires monitoring of the valve at least once per calendar year.
(a) If evidence of a potential leak is found by visual, audible, olfactory, or any other detection method at pumps, valves, and connectors in heavy liquid service and pressure relief devices in light liquid or heavy liquid service, the owner or operator shall follow either one of the following procedures:
(1) The owner or operator shall monitor the equipment within 5 days by the method specified in § 60.485a(b) and shall comply with the requirements of paragraphs (b) through (d) of this section.
(2) The owner or operator shall eliminate the visual, audible, olfactory, or other indication of a potential leak within 5 calendar days of detection.
(b) If an instrument reading of 10,000 ppm or greater is measured, a leak is detected.
(c)(1) When a leak is detected, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 60.482-9a.
(2) The first attempt at repair shall be made no later than 5 calendar days after each leak is detected.
(d) First attempts at repair include, but are not limited to, the best practices described under §§ 60.482-2a(c)(2) and 60.482-7a(e).
(a) Delay of repair of equipment for which leaks have been detected will be allowed if repair within 15 days is technically infeasible without a process unit shutdown. Repair of this equipment shall occur before the end of the next process unit shutdown. Monitoring to verify repair must occur within 15 days after startup of the process unit.
(b) Delay of repair of equipment will be allowed for equipment which is isolated from the process and which does not remain in VOC service.
(c) Delay of repair for valves and connectors will be allowed if:
(1) The owner or operator demonstrates that emissions of purged material resulting from immediate repair are greater than the fugitive emissions likely to result from delay of repair, and
(2) When repair procedures are effected, the purged material is collected and destroyed or recovered in a control device complying with § 60.482-10a.
(d) Delay of repair for pumps will be allowed if:
(1) Repair requires the use of a dual mechanical seal system that includes a barrier fluid system, and
(2) Repair is completed as soon as practicable, but not later than 6 months after the leak was detected.
(e) Delay of repair beyond a process unit shutdown will be allowed for a valve, if valve assembly replacement is necessary during the process unit shutdown, valve assembly supplies have been depleted, and valve assembly supplies had been sufficiently stocked before the supplies were depleted. Delay of repair beyond the next process unit shutdown will not be allowed unless the next process unit shutdown occurs sooner than 6 months after the first process unit shutdown.
(f) When delay of repair is allowed for a leaking pump, valve, or connector that remains in service, the pump, valve, or connector may be considered to be repaired and no longer subject to delay of repair requirements if two consecutive monthly monitoring instrument readings are below the leak definition.
(a) Owners or operators of closed vent systems and control devices used to comply with provisions of this subpart shall comply with the provisions of this section.
(b) Vapor recovery systems (for example, condensers and absorbers) shall be designed and operated to recover the VOC emissions vented to them with an efficiency of 95 percent or greater, or to an exit concentration of 20 parts per million by volume (ppmv), whichever is less stringent.
(c) Enclosed combustion devices shall be designed and operated to reduce the VOC emissions vented to them with an efficiency of 95 percent or greater, or to an exit concentration of 20 ppmv, on a dry basis, corrected to 3 percent oxygen, whichever is less stringent or to provide a minimum residence time of 0.75 seconds at a minimum temperature of 816 °C.
(d) Flares used to comply with this subpart shall comply with the requirements of § 60.18.
(e) Owners or operators of control devices used to comply with the provisions of this subpart shall monitor these control devices to ensure that they are operated and maintained in conformance with their designs.
(f) Except as provided in paragraphs (i) through (k) of this section, each closed vent system shall be inspected according to the procedures and schedule specified in paragraphs (f)(1) and (2) of this section.
(1) If the vapor collection system or closed vent system is constructed of hard-piping, the owner or operator shall comply with the requirements specified in paragraphs (f)(1)(i) and (ii) of this section:
(i) Conduct an initial inspection according to the procedures in § 60.485a(b); and
(ii) Conduct annual visual inspections for visible, audible, or olfactory indications of leaks.
(2) If the vapor collection system or closed vent system is constructed of ductwork, the owner or operator shall:
(i) Conduct an initial inspection according to the procedures in § 60.485a(b); and
(ii) Conduct annual inspections according to the procedures in § 60.485a(b).
(g) Leaks, as indicated by an instrument reading greater than 500 ppmv above background or by visual inspections, shall be repaired as soon as practicable except as provided in paragraph (h) of this section.
(1) A first attempt at repair shall be made no later than 5 calendar days after the leak is detected.
(2) Repair shall be completed no later than 15 calendar days after the leak is detected.
(h) Delay of repair of a closed vent system for which leaks have been detected is allowed if the repair is technically infeasible without a process unit shutdown or if the owner or operator determines that emissions resulting from immediate repair would be greater than the fugitive emissions likely to result from delay of repair. Repair of such equipment shall be complete by the end of the next process unit shutdown.
(i) If a vapor collection system or closed vent system is operated under a vacuum, it is exempt from the
(j) Any parts of the closed vent system that are designated, as described in paragraph (l)(1) of this section, as unsafe to inspect are exempt from the inspection requirements of paragraphs (f)(1)(i) and (f)(2) of this section if they comply with the requirements specified in paragraphs (j)(1) and (2) of this section:
(1) The owner or operator determines that the equipment is unsafe to inspect because inspecting personnel would be exposed to an imminent or potential danger as a consequence of complying with paragraphs (f)(1)(i) or (f)(2) of this section; and
(2) The owner or operator has a written plan that requires inspection of the equipment as frequently as practicable during safe-to-inspect times.
(k) Any parts of the closed vent system that are designated, as described in paragraph (l)(2) of this section, as difficult to inspect are exempt from the inspection requirements of paragraphs (f)(1)(i) and (f)(2) of this section if they comply with the requirements specified in paragraphs (k)(1) through (3) of this section:
(1) The owner or operator determines that the equipment cannot be inspected without elevating the inspecting personnel more than 2 meters above a support surface; and
(2) The process unit within which the closed vent system is located becomes an affected facility through §§ 60.14 or 60.15, or the owner or operator designates less than 3.0 percent of the total number of closed vent system equipment as difficult to inspect; and
(3) The owner or operator has a written plan that requires inspection of the equipment at least once every 5 years. A closed vent system is exempt from inspection if it is operated under a vacuum.
(l) The owner or operator shall record the information specified in paragraphs (l)(1) through (5) of this section.
(1) Identification of all parts of the closed vent system that are designated as unsafe to inspect, an explanation of why the equipment is unsafe to inspect, and the plan for inspecting the equipment.
(2) Identification of all parts of the closed vent system that are designated as difficult to inspect, an explanation of why the equipment is difficult to inspect, and the plan for inspecting the equipment.
(3) For each inspection during which a leak is detected, a record of the information specified in § 60.486a(c).
(4) For each inspection conducted in accordance with § 60.485a(b) during which no leaks are detected, a record that the inspection was performed, the date of the inspection, and a statement that no leaks were detected.
(5) For each visual inspection conducted in accordance with paragraph (f)(1)(ii) of this section during which no leaks are detected, a record that the inspection was performed, the date of the inspection, and a statement that no leaks were detected.
(m) Closed vent systems and control devices used to comply with provisions of this subpart shall be operated at all times when emissions may be vented to them.
(a) The owner or operator shall initially monitor all connectors in the process unit for leaks by the later of either 12 months after the compliance date or 12 months after initial startup. If all connectors in the process unit have been monitored for leaks prior to the compliance date, no initial monitoring is required provided either no process changes have been made since the monitoring or the owner or operator can determine that the results of the monitoring, with or without adjustments, reliably demonstrate compliance despite process changes. If required to monitor because of a process change, the owner or operator is required to monitor only those connectors involved in the process change.
(b) Except as allowed in § 60.482-1a(c), § 60.482-10a, or as specified in paragraph (e) of this section, the owner or operator shall monitor all connectors in gas and vapor and light liquid service as specified in paragraphs (a) and (b)(3) of this section.
(1) The connectors shall be monitored to detect leaks by the method specified in § 60.485a(b) and, as applicable, § 60.485a(c).
(2) If an instrument reading greater than or equal to 500 ppm is measured, a leak is detected.
(3) The owner or operator shall perform monitoring, subsequent to the initial monitoring required in paragraph (a) of this section, as specified in paragraphs (b)(3)(i) through (iii) of this section, and shall comply with the requirements of paragraphs (b)(3)(iv) and (v) of this section. The required period in which monitoring must be conducted shall be determined from paragraphs (b)(3)(i) through (iii) of this section using the monitoring results from the preceding monitoring period. The percent leaking connectors shall be calculated as specified in paragraph (c) of this section.
(i) If the percent leaking connectors in the process unit was greater than or equal to 0.5 percent, then monitor within 12 months (1 year).
(ii) If the percent leaking connectors in the process unit was greater than or equal to 0.25 percent but less than 0.5 percent, then monitor within 4 years. An owner or operator may comply with the requirements of this paragraph by monitoring at least 40 percent of the connectors within 2 years of the start of the monitoring period, provided all connectors have been monitored by the end of the 4-year monitoring period.
(iii) If the percent leaking connectors in the process unit was less than 0.25 percent, then monitor as provided in paragraph (b)(3)(iii)(A) of this section and either paragraph (b)(3)(iii)(B) or (b)(3)(iii)(C) of this section, as appropriate.
(A) An owner or operator shall monitor at least 50 percent of the connectors within 4 years of the start of the monitoring period.
(B) If the percent of leaking connectors calculated from the monitoring results in paragraph (b)(3)(iii)(A) of this section is greater than or equal to 0.35 percent of the monitored connectors, the owner or operator shall monitor as soon as practical, but within the next 6 months, all connectors that have not yet been monitored during the monitoring period. At the conclusion of monitoring, a new monitoring period shall be started pursuant to paragraph (b)(3) of this section, based on the percent of leaking connectors within the total monitored connectors.
(C) If the percent of leaking connectors calculated from the monitoring results in paragraph (b)(3)(iii)(A) of this section is less than 0.35 percent of the monitored connectors, the owner or operator shall monitor all connectors that have not yet been monitored within 8 years of the start of the monitoring period.
(iv) If, during the monitoring conducted pursuant to paragraphs (b)(3)(i) through (iii) of this section, a connector is found to be leaking, it shall be re-monitored once within 90 days after repair to confirm that it is not leaking.
(v) The owner or operator shall keep a record of the start date and end date of each monitoring period under this section for each process unit.
(c) For use in determining the monitoring frequency, as specified in paragraphs (a) and (b)(3) of this section, the percent leaking connectors as used in paragraphs (a) and (b)(3) of this section shall be calculated by using the following equation:
(d) When a leak is detected pursuant to paragraphs (a) and (b) of this section, it shall be repaired as soon as practicable, but not later than 15 calendar days after it is detected, except as provided in § 60.482-9a. A first attempt at repair as defined in this subpart shall be made no later than 5 calendar days after the leak is detected.
(e) Any connector that is designated, as described in § 60.486a(f)(1), as an unsafe-to-monitor connector is exempt from the requirements of paragraphs (a) and (b) of this section if:
(1) The owner or operator of the connector demonstrates that the connector is unsafe-to-monitor because monitoring personnel would be exposed to an immediate danger as a consequence of complying with paragraphs (a) and (b) of this section; and
(2) The owner or operator of the connector has a written plan that requires monitoring of the connector as frequently as practicable during safe-to-monitor times but not more frequently than the periodic monitoring schedule otherwise applicable, and repair of the equipment according to the procedures in paragraph (d) of this section if a leak is detected.
(f)
(i) Buried;
(ii) Insulated in a manner that prevents access to the connector by a monitor probe;
(iii) Obstructed by equipment or piping that prevents access to the connector by a monitor probe;
(iv) Unable to be reached from a wheeled scissor-lift or hydraulic-type scaffold that would allow access to connectors up to 7.6 meters (25 feet) above the ground;
(v) Inaccessible because it would require elevating the monitoring personnel more than 2 meters (7 feet) above a permanent support surface or would require the erection of scaffold; or
(vi) Not able to be accessed at any time in a safe manner to perform monitoring. Unsafe access includes, but is not limited to, the use of a wheeled scissor-lift on unstable or uneven terrain, the use of a motorized man-lift basket in areas where an ignition potential exists, or access would require near proximity to hazards such as electrical lines, or would risk damage to equipment.
(2) If any inaccessible, ceramic, or ceramic-lined connector is observed by visual, audible, olfactory, or other means to be leaking, the visual, audible, olfactory, or other indications of a leak to the atmosphere shall be eliminated as soon as practical.
(g) Except for instrumentation systems and inaccessible, ceramic, or ceramic-lined connectors meeting the provisions of paragraph (f) of this section, identify the connectors subject to the requirements of this subpart. Connectors need not be individually identified if all connectors in a designated area or length of pipe subject to the provisions of this subpart are identified as a group, and the number of connectors subject is indicated.
(a) An owner or operator may elect to comply with an allowable percentage of valves leaking of equal to or less than 2.0 percent.
(b) The following requirements shall be met if an owner or operator wishes to comply with an allowable percentage of valves leaking:
(1) An owner or operator must notify the Administrator that the owner or operator has elected to comply with the allowable percentage of valves leaking before implementing this alternative standard, as specified in § 60.487a(d).
(2) A performance test as specified in paragraph (c) of this section shall be conducted initially upon designation, annually, and at other times requested by the Administrator.
(3) If a valve leak is detected, it shall be repaired in accordance with § 60.482-7a(d) and (e).
(c) Performance tests shall be conducted in the following manner:
(1) All valves in gas/vapor and light liquid service within the affected facility shall be monitored within 1 week by the methods specified in § 60.485a(b).
(2) If an instrument reading of 500 ppm or greater is measured, a leak is detected.
(3) The leak percentage shall be determined by dividing the number of valves for which leaks are detected by the number of valves in gas/vapor and light liquid service within the affected facility.
(d) Owners and operators who elect to comply with this alternative standard shall not have an affected facility with a leak percentage greater than 2.0 percent, determined as described in § 60.485a(h).
(a)(1) An owner or operator may elect to comply with one of the alternative work practices specified in paragraphs (b)(2) and (3) of this section.
(2) An owner or operator must notify the Administrator before implementing one of the alternative work practices, as specified in § 60.487(d)a.
(b)(1) An owner or operator shall comply initially with the requirements for valves in gas/vapor service and valves in light liquid service, as described in § 60.482-7a.
(2) After 2 consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0, an owner or operator may begin to skip 1 of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.
(3) After 5 consecutive quarterly leak detection periods with the percent of valves leaking equal to or less than 2.0, an owner or operator may begin to skip 3 of the quarterly leak detection periods for the valves in gas/vapor and light liquid service.
(4) If the percent of valves leaking is greater than 2.0, the owner or operator shall comply with the requirements as described in § 60.482-7a but can again elect to use this section.
(5) The percent of valves leaking shall be determined as described in § 60.485a(h).
(6) An owner or operator must keep a record of the percent of valves found leaking during each leak detection period.
(7) A valve that begins operation in gas/vapor service or light liquid service after the initial startup date for a process unit following one of the alternative standards in this section must be monitored in accordance with § 60.482-7a(a)(2)(i) or (ii) before the provisions of this section can be applied to that valve.
(a) Each owner or operator subject to the provisions of this subpart may apply to the Administrator for determination of equivalence for any means of emission limitation that achieves a reduction in emissions of VOC at least equivalent to the reduction in emissions of VOC achieved by the controls required in this subpart.
(b) Determination of equivalence to the equipment, design, and operational requirements of this subpart will be evaluated by the following guidelines:
(1) Each owner or operator applying for an equivalence determination shall be responsible for collecting and verifying test data to demonstrate equivalence of means of emission limitation.
(2) The Administrator will compare test data for demonstrating equivalence of the means of emission limitation to test data for the equipment, design, and operational requirements.
(3) The Administrator may condition the approval of equivalence on requirements that may be necessary to assure operation and maintenance to achieve the same emission reduction as the equipment, design, and operational requirements.
(c) Determination of equivalence to the required work practices in this subpart will be evaluated by the following guidelines:
(1) Each owner or operator applying for a determination of equivalence shall be responsible for collecting and verifying test data to demonstrate equivalence of an equivalent means of emission limitation.
(2) For each affected facility for which a determination of equivalence is requested, the emission reduction achieved by the required work practice shall be demonstrated.
(3) For each affected facility, for which a determination of equivalence is requested, the emission reduction achieved by the equivalent means of emission limitation shall be demonstrated.
(4) Each owner or operator applying for a determination of equivalence shall commit in writing to work practice(s) that provide for emission reductions equal to or greater than the emission reductions achieved by the required work practice.
(5) The Administrator will compare the demonstrated emission reduction for the equivalent means of emission limitation to the demonstrated emission reduction for the required work practices and will consider the commitment in paragraph (c)(4) of this section.
(6) The Administrator may condition the approval of equivalence on requirements that may be necessary to assure operation and maintenance to achieve the same emission reduction as the required work practice.
(d) An owner or operator may offer a unique approach to demonstrate the equivalence of any equivalent means of emission limitation.
(e)(1) After a request for determination of equivalence is received, the Administrator will publish a notice in the
(2) After notice and opportunity for public hearing, the Administrator will determine the equivalence of a means of emission limitation and will publish the determination in the
(3) Any equivalent means of emission limitations approved under this section shall constitute a required work practice, equipment, design, or operational standard within the meaning of section 111(h)(1) of the CAA.
(f)(1) Manufacturers of equipment used to control equipment leaks of VOC may apply to the Administrator for determination of equivalence for any equivalent means of emission limitation that achieves a reduction in emissions of VOC achieved by the equipment, design, and operational requirements of this subpart.
(2) The Administrator will make an equivalence determination according to the provisions of paragraphs (b), (c), (d), and (e) of this section.
(a) In conducting the performance tests required in § 60.8, the owner or operator shall use as reference methods and procedures the test methods in appendix A of this part or other methods and procedures as specified in this section, except as provided in § 60.8(b).
(b) The owner or operator shall determine compliance with the standards in §§ 60.482-1a through 60.482-11a, 60.483a, and 60.484a as follows:
(1) Method 21 shall be used to determine the presence of leaking sources. The instrument shall be calibrated before use each day of its use by the procedures specified in Method 21 of appendix A-7 of this part. The following calibration gases shall be used:
(i) Zero air (less than 10 ppm of hydrocarbon in air); and
(ii) A mixture of methane or n-hexane and air at a concentration no more than 2,000 ppm greater than the leak definition concentration of the equipment monitored. If the monitoring instrument's design allows for multiple calibration scales, then the lower scale shall be calibrated with a calibration gas that is no higher than 2,000 ppm above the concentration specified as a leak, and the highest scale shall be calibrated with a calibration gas that is approximately equal to 10,000 ppm. If only one scale on an instrument will be used during monitoring, the owner or operator need not calibrate the scales that will not be used during that day's monitoring.
(2) A calibration drift assessment shall be performed, at a minimum, at the end of each monitoring day. Check the instrument using the same calibration gas(es) that were used to calibrate the instrument before use. Follow the procedures specified in Method 21 of appendix A-7 of this part, Section 10.1, except do not adjust the meter readout to correspond to the calibration gas value. Record the instrument reading for each scale used as specified in § 60.486a(e)(7). Calculate the average algebraic difference between the three meter readings and the most recent calibration value. Divide this algebraic difference by the initial calibration value and multiply by 100 to express the calibration drift as a percentage. If any calibration drift assessment shows a negative drift of more than 10 percent from the initial calibration value, then all equipment monitored since the last calibration with instrument readings below the appropriate leak definition and above the leak definition multiplied by (100 minus the percent of negative drift/divided by 100) must be re-monitored. If any calibration drift assessment shows a positive drift of more than 10 percent from the initial calibration value, then, at the owner/operator's discretion, all equipment since the last calibration with instrument readings above the appropriate leak definition and below the leak definition multiplied by (100 plus the percent of positive drift/divided by 100) may be re-monitored.
(c) The owner or operator shall determine compliance with the no-detectable-emission standards in §§ 60.482-2a(e), 60.482-3a(i), 60.482-4a, 60.482-7a(f), and 60.482-10a(e) as follows:
(1) The requirements of paragraph (b) shall apply.
(2) Method 21 of appendix A-7 of this part shall be used to determine the background level. All potential leak interfaces shall be traversed as close to the interface as possible. The arithmetic difference between the maximum
(d) The owner or operator shall test each piece of equipment unless he demonstrates that a process unit is not in VOC service, i.e., that the VOC content would never be reasonably expected to exceed 10 percent by weight. For purposes of this demonstration, the following methods and procedures shall be used:
(1) Procedures that conform to the general methods in ASTM E260-73, 91, or 96, E168-67, 77, or 92, E169-63, 77, or 93 (incorporated by reference—see § 60.17) shall be used to determine the percent VOC content in the process fluid that is contained in or contacts a piece of equipment.
(2) Organic compounds that are considered by the Administrator to have negligible photochemical reactivity may be excluded from the total quantity of organic compounds in determining the VOC content of the process fluid.
(3) Engineering judgment may be used to estimate the VOC content, if a piece of equipment had not been shown previously to be in service. If the Administrator disagrees with the judgment, paragraphs (d)(1) and (2) of this section shall be used to resolve the disagreement.
(e) The owner or operator shall demonstrate that a piece of equipment is in light liquid service by showing that all the following conditions apply:
(1) The vapor pressure of one or more of the organic components is greater than 0.3 kPa at 20 °C (1.2 in. H
(2) The total concentration of the pure organic components having a vapor pressure greater than 0.3 kPa at 20 °C (1.2 in. H
(3) The fluid is a liquid at operating conditions.
(f) Samples used in conjunction with paragraphs (d), (e), and (g) of this section shall be representative of the process fluid that is contained in or contacts the equipment or the gas being combusted in the flare.
(g) The owner or operator shall determine compliance with the standards of flares as follows:
(1) Method 22 of appendix A-7 of this part shall be used to determine visible emissions.
(2) A thermocouple or any other equivalent device shall be used to monitor the presence of a pilot flame in the flare.
(3) The maximum permitted velocity for air assisted flares shall be computed using the following equation:
(4) The net heating value (HT) of the gas being combusted in a flare shall be computed using the following equation:
(5) Method 18 of appendix A-6 of this part or ASTM D6420-99 (2004) (where the target compound(s) are those listed in Section 1.1 of ASTM D6420-99, and the target concentration is between 150 parts per billion by volume and 100 ppmv) and ASTM D2504-67, 77, or 88 (Reapproved 1993) (incorporated by reference-see § 60.17) shall be used to determine the concentration of sample component “i.”
(6) ASTM D2382-76 or 88 or D4809-95 (incorporated by reference-see § 60.17) shall be used to determine the net heat of combustion of component “i” if published values are not available or cannot be calculated.
(7) Method 2, 2A, 2C, or 2D of appendix A-7 of this part, as appropriate, shall be used to determine the actual exit velocity of a flare. If needed, the unobstructed (free) cross-sectional area of the flare tip shall be used.
(h) The owner or operator shall determine compliance with § 60.483-1a or § 60.483-2a as follows:
(1) The percent of valves leaking shall be determined using the following equation:
(2) The total number of valves monitored shall include difficult-to-monitor and unsafe-to-monitor valves only during the monitoring period in which those valves are monitored.
(3) The number of valves leaking shall include valves for which repair has been delayed.
(4) Any new valve that is not monitored within 30 days of being placed in service shall be included in the number of valves leaking and the total number of valves monitored for the monitoring period in which the valve is placed in service.
(5) If the process unit has been subdivided in accordance with § 60.482-7a(c)(1)(ii), the sum of valves found leaking during a monitoring period includes all subgroups.
(6) The total number of valves monitored does not include a valve monitored to verify repair.
(a)(1) Each owner or operator subject to the provisions of this subpart shall comply with the recordkeeping requirements of this section.
(2) An owner or operator of more than one affected facility subject to the provisions of this subpart may comply with the recordkeeping requirements for these facilities in one recordkeeping system if the system identifies each record by each facility.
(3) The owner or operator shall record the information specified in paragraphs (a)(3)(i) through (v) of this section for each monitoring event required by §§ 60.482-2a, 60.482-3a, 60.482-7a, 60.482-8a, 60.482-11a, and 60.483-2a.
(i) Monitoring instrument identification.
(ii) Operator identification.
(iii) Equipment identification.
(iv) Date of monitoring.
(v) Instrument reading.
(b) When each leak is detected as specified in §§ 60.482-2a, 60.482-3a, 60.482-7a, 60.482-8a, 60.482-11a, and 60.483-2a, the following requirements apply:
(1) A weatherproof and readily visible identification, marked with the equipment identification number, shall be attached to the leaking equipment.
(2) The identification on a valve may be removed after it has been monitored for 2 successive months as specified in § 60.482-7a(c) and no leak has been detected during those 2 months.
(3) The identification on a connector may be removed after it has been monitored as specified in § 60.482-11a(b)(3)(iv) and no leak has been detected during that monitoring.
(4) The identification on equipment, except on a valve or connector, may be removed after it has been repaired.
(c) When each leak is detected as specified in §§ 60.482-2a, 60.482-3a, 60.482-7a, 60.482-8a, 60.482-11a, and 60.483-2a, the following information shall be recorded in a log and shall be kept for 2 years in a readily accessible location:
(1) The instrument and operator identification numbers and the equipment identification number, except when indications of liquids dripping from a pump are designated as a leak.
(2) The date the leak was detected and the dates of each attempt to repair the leak.
(3) Repair methods applied in each attempt to repair the leak.
(4) Maximum instrument reading measured by Method 21 of appendix A-7 of this part at the time the leak is successfully repaired or determined to be nonrepairable, except when a pump is repaired by eliminating indications of liquids dripping.
(5) “Repair delayed” and the reason for the delay if a leak is not repaired within 15 calendar days after discovery of the leak.
(6) The signature of the owner or operator (or designate) whose decision it was that repair could not be effected without a process shutdown.
(7) The expected date of successful repair of the leak if a leak is not repaired within 15 days.
(8) Dates of process unit shutdowns that occur while the equipment is unrepaired.
(9) The date of successful repair of the leak.
(d) The following information pertaining to the design requirements for closed vent systems and control devices described in § 60.482-10a shall be recorded and kept in a readily accessible location:
(1) Detailed schematics, design specifications, and piping and instrumentation diagrams.
(2) The dates and descriptions of any changes in the design specifications.
(3) A description of the parameter or parameters monitored, as required in § 60.482-10a(e), to ensure that control devices are operated and maintained in conformance with their design and an explanation of why that parameter (or parameters) was selected for the monitoring.
(4) Periods when the closed vent systems and control devices required in §§ 60.482-2a, 60.482-3a, 60.482-4a, and 60.482-5a are not operated as designed, including periods when a flare pilot light does not have a flame.
(5) Dates of startups and shutdowns of the closed vent systems and control devices required in §§ 60.482-2a, 60.482-3a, 60.482-4a, and 60.482-5a.
(e) The following information pertaining to all equipment subject to the requirements in §§ 60.482-1a to 60.482-11a shall be recorded in a log that is kept in a readily accessible location:
(1) A list of identification numbers for equipment subject to the requirements of this subpart.
(2)(i) A list of identification numbers for equipment that are designated for no detectable emissions under the provisions of §§ 60.482-2a(e), 60.482-3a(i), and 60.482-7a(f).
(ii) The designation of equipment as subject to the requirements of § 60.482-2a(e), § 60.482-3a(i), or § 60.482-7a(f) shall be signed by the owner or operator. Alternatively, the owner or operator may establish a mechanism with their permitting authority that satisfies this requirement.
(3) A list of equipment identification numbers for pressure relief devices required to comply with § 60.482-4a.
(4)(i) The dates of each compliance test as required in §§ 60.482-2a(e), 60.482-3a(i), 60.482-4a, and 60.482-7a(f).
(ii) The background level measured during each compliance test.
(iii) The maximum instrument reading measured at the equipment during each compliance test.
(5) A list of identification numbers for equipment in vacuum service.
(6) A list of identification numbers for equipment that the owner or operator designates as operating in VOC service less than 300 hr/yr in accordance with § 60.482-1a(e), a description of the conditions under which the equipment is in VOC service, and rationale supporting the designation that it is in VOC service less than 300 hr/yr.
(7) The date and results of the weekly visual inspection for indications of liquids dripping from pumps in light liquid service.
(8) Records of the information specified in paragraphs (e)(8)(i) through (vi) of this section for monitoring instrument calibrations conducted according to sections 8.1.2 and 10 of Method 21 of appendix A-7 of this part and § 60.485a(b).
(i) Date of calibration and initials of operator performing the calibration.
(ii) Calibration gas cylinder identification, certification date, and certified concentration.
(iii) Instrument scale(s) used.
(iv) A description of any corrective action taken if the meter readout could not be adjusted to correspond to the calibration gas value in accordance with section 10.1 of Method 21 of appendix A-7 of this part.
(v) Results of each calibration drift assessment required by § 60.485a(b)(2) (i.e., instrument reading for calibration at end of monitoring day and the calculated percent difference from the initial calibration value).
(vi) If an owner or operator makes their own calibration gas, a description of the procedure used.
(9) The connector monitoring schedule for each process unit as specified in § 60.482-11a(b)(3)(v).
(10) Records of each release from a pressure relief device subject to § 60.482-4a.
(f) The following information pertaining to all valves subject to the requirements of § 60.482-7a(g) and (h), all pumps subject to the requirements of § 60.482-2a(g), and all connectors subject to the requirements of § 60.482-11a(e) shall be recorded in a log that is kept in a readily accessible location:
(1) A list of identification numbers for valves, pumps, and connectors that are designated as unsafe-to-monitor, an explanation for each valve, pump, or connector stating why the valve, pump, or connector is unsafe-to-monitor, and the plan for monitoring each valve, pump, or connector.
(2) A list of identification numbers for valves that are designated as difficult-to-monitor, an explanation for each valve stating why the valve is difficult-to-monitor, and the schedule for monitoring each valve.
(g) The following information shall be recorded for valves complying with § 60.483-2a:
(1) A schedule of monitoring.
(2) The percent of valves found leaking during each monitoring period.
(h) The following information shall be recorded in a log that is kept in a readily accessible location:
(1) Design criterion required in §§ 60.482-2a(d)(5) and 60.482-3a(e)(2) and explanation of the design criterion; and
(2) Any changes to this criterion and the reasons for the changes.
(i) The following information shall be recorded in a log that is kept in a readily accessible location for use in determining exemptions as provided in § 60.480a(d):
(1) An analysis demonstrating the design capacity of the affected facility,
(2) A statement listing the feed or raw materials and products from the affected facilities and an analysis demonstrating whether these chemicals are heavy liquids or beverage alcohol, and
(3) An analysis demonstrating that equipment is not in VOC service.
(j) Information and data used to demonstrate that a piece of equipment is not in VOC service shall be recorded
(k) The provisions of § 60.7(b) and (d) do not apply to affected facilities subject to this subpart.
(a) Each owner or operator subject to the provisions of this subpart shall submit semiannual reports to the Administrator beginning 6 months after the initial startup date.
(b) The initial semiannual report to the Administrator shall include the following information:
(1) Process unit identification.
(2) Number of valves subject to the requirements of § 60.482-7a, excluding those valves designated for no detectable emissions under the provisions of § 60.482-7a(f).
(3) Number of pumps subject to the requirements of § 60.482-2a, excluding those pumps designated for no detectable emissions under the provisions of § 60.482-2a(e) and those pumps complying with § 60.482-2a(f).
(4) Number of compressors subject to the requirements of § 60.482-3a, excluding those compressors designated for no detectable emissions under the provisions of § 60.482-3a(i) and those compressors complying with § 60.482-3a(h).
(5) Number of connectors subject to the requirements of § 60.482-11a.
(c) All semiannual reports to the Administrator shall include the following information, summarized from the information in § 60.486a:
(1) Process unit identification.
(2) For each month during the semiannual reporting period,
(i) Number of valves for which leaks were detected as described in § 60.482-7a(b) or § 60.483-2a,
(ii) Number of valves for which leaks were not repaired as required in § 60.482-7a(d)(1),
(iii) Number of pumps for which leaks were detected as described in § 60.482-2a(b), (d)(4)(ii)(A) or (B), or (d)(5)(iii),
(iv) Number of pumps for which leaks were not repaired as required in § 60.482-2a(c)(1) and (d)(6),
(v) Number of compressors for which leaks were detected as described in § 60.482-3a(f),
(vi) Number of compressors for which leaks were not repaired as required in § 60.482-3a(g)(1),
(vii) Number of connectors for which leaks were detected as described in § 60.482-11a(b)
(viii) Number of connectors for which leaks were not repaired as required in § 60.482-11a(d), and
(xi) The facts that explain each delay of repair and, where appropriate, why a process unit shutdown was technically infeasible.
(3) Dates of process unit shutdowns which occurred within the semiannual reporting period.
(4) Revisions to items reported according to paragraph (b) of this section if changes have occurred since the initial report or subsequent revisions to the initial report.
(d) An owner or operator electing to comply with the provisions of §§ 60.483-1a or 60.483-2a shall notify the Administrator of the alternative standard selected 90 days before implementing either of the provisions.
(e) An owner or operator shall report the results of all performance tests in accordance with § 60.8 of the General Provisions. The provisions of § 60.8(d) do not apply to affected facilities subject to the provisions of this subpart except that an owner or operator must notify the Administrator of the schedule for the initial performance tests at least 30 days before the initial performance tests.
(f) The requirements of paragraphs (a) through (c) of this section remain in force until and unless EPA, in delegating enforcement authority to a state under section 111(c) of the CAA, approves reporting requirements or an alternative means of compliance surveillance adopted by such state. In that event, affected sources within the state will be relieved of the obligation to comply with the requirements of paragraphs (a) through (c) of this section, provided that they comply with the requirements established by the state.
For the purposes of this subpart:
(a) The cost of the following frequently replaced components of the facility shall not be considered in calculating either the “fixed capital cost of the new components” or the “fixed capital costs that would be required to construct a comparable new facility” under § 60.15: Pump seals, nuts and bolts, rupture disks, and packings.
(b) Under § 60.15, the “fixed capital cost of new components” includes the fixed capital cost of all depreciable components (except components specified in § 60.488a(a)) which are or will be replaced pursuant to all continuous programs of component replacement which are commenced within any 2-year period following the applicability date for the appropriate subpart. (See the “Applicability and designation of affected facility” section of the appropriate subpart.) For purposes of this paragraph, “commenced” means that an owner or operator has undertaken a continuous program of component replacement or that an owner or operator has entered into a contractual obligation to undertake and complete, within a reasonable time, a continuous program of component replacement.
Process units that produce, as intermediates or final products, chemicals listed in § 60.489 are covered under this subpart. The applicability date for process units producing one or more of these chemicals is November 8, 2006.
(b) Any affected facility under paragraph (a) of this section that commences construction, reconstruction, or modification after January 4, 1983, and on or before November 7, 2006, is subject to the requirements of this subpart.
(d) Facilities subject to subpart VV, subpart VVa, or subpart KKK of this part are excluded from this subpart.
(b) For a given process unit, an owner or operator may elect to comply with the requirements of paragraphs (b)(1), (2), or (3) of this section as an alternative to the requirements in § 60.482-7.
(1) Comply with § 60.483-1.
(2) Comply with § 60.483-2.
(3) Comply with the Phase III provisions in 40 CFR 63.168, except an owner or operator may elect to follow the provisions in § 60.482-7(f) instead of 40 CFR 63.168 for any valve that is designated as being leakless.
(b) * * *
(2) Each compressor is presumed not to be in hydrogen service unless an owner or operator demonstrates that the piece of equipment is in hydrogen service. * * *
(c) Any existing reciprocating compressor that becomes an affected facility under provisions of § 60.14 or § 60.15 is exempt from § 60.482-3(a), (b), (c), (d), (e), and (h) provided the owner or operator demonstrates that recasting the distance piece or replacing the compressor are the only options available to bring the compressor into compliance with the provisions of § 60.482-3(a), (b), (c), (d), (e), and (h).
(d) An owner or operator may use the following provision in addition to § 60.485(e): Equipment is in light liquid service if the percent evaporated is greater than 10 percent at 150 °C as determined by ASTM Method D86-78, 82, 90, 95, or 96 (incorporated by reference as specified in § 60.17).
(f) Open-ended valves or lines containing asphalt as defined in § 60.591 are exempt from the requirements of § 60.482-6(a) through (c).
(a)(1) The provisions of this subpart apply to affected facilities in petroleum refineries.
(2) A compressor is an affected facility.
(3) The group of all the equipment (defined in § 60.591a) within a process unit is an affected facility.
(b) Any affected facility under paragraph (a) of this section that commences construction, reconstruction, or modification after November 7, 2006, is subject to the requirements of this subpart.
(c) Addition or replacement of equipment (defined in § 60.591a) for the purpose of process improvement which is accomplished without a capital expenditure shall not by itself be considered a modification under this subpart.
(d) Facilities subject to subpart VV, subpart VVa, subpart GGG, or subpart KKK of this part are excluded from this subpart.
As used in this subpart, all terms not defined herein shall have the meaning given them in the Clean Air Act, in subpart A of part 60, or in subpart VVa of this part, and the following terms shall have the specific meanings given them.
(a) Each owner or operator subject to the provisions of this subpart shall comply with the requirements of §§ 60.482-1a to 60.482-10a as soon as practicable, but no later than 180 days after initial startup.
(b) For a given process unit, an owner or operator may elect to comply with the requirements of paragraphs (b)(1), (2), or (3) of this section as an alternative to the requirements in § 60.482-7a.
(1) Comply with § 60.483-1a.
(2) Comply with § 60.483-2a.
(3) Comply with the Phase III provisions in § 63.168, except an owner or operator may elect to follow the provisions in § 60.482-7a(f) instead of § 63.168 for any valve that is designated as being leakless.
(c) An owner or operator may apply to the Administrator for a determination of equivalency for any means of emission limitation that achieves a reduction in emissions of VOC at least equivalent to the reduction in emissions of VOC achieved by the controls required in this subpart. In doing so, the owner or operator shall comply with requirements of § 60.484a.
(d) Each owner or operator subject to the provisions of this subpart shall comply with the provisions of § 60.485a except as provided in § 60.593a.
(e) Each owner or operator subject to the provisions of this subpart shall comply with the provisions of §§ 60.486a and 60.487a.
(a) Each owner or operator subject to the provisions of this subpart may comply with the following exceptions to the provisions of subpart VVa of this part.
(b)(1) Compressors in hydrogen service are exempt from the requirements of § 60.592a if an owner or operator demonstrates that a compressor is in hydrogen service.
(2) Each compressor is presumed not to be in hydrogen service unless an owner or operator demonstrates that the piece of equipment is in hydrogen service. For a piece of equipment to be considered in hydrogen service, it must be determined that the percent hydrogen content can be reasonably expected always to exceed 50 percent by volume. For purposes of determining the percent hydrogen content in the process fluid that is contained in or contacts a compressor, procedures that conform to the general method described in ASTM E260-73, 91, or 96, E168-67, 77, or 92, or E169-63, 77, or 93 (incorporated by reference as specified in § 60.17) shall be used.
(3)(i) An owner or operator may use engineering judgment rather than procedures in paragraph (b)(2) of this section to demonstrate that the percent content exceeds 50 percent by volume, provided the engineering judgment demonstrates that the content clearly exceeds 50 percent by volume. When an owner or operator and the Administrator do not agree on whether a piece of equipment is in hydrogen service, however, the procedures in paragraph (b)(2) of this section shall be used to resolve the disagreement.
(ii) If an owner or operator determines that a piece of equipment is in hydrogen service, the determination can be revised only after following the procedures in paragraph (b)(2).
(c) Any existing reciprocating compressor that becomes an affected facility under provisions of § 60.14 or § 60.15 is exempt from § 60.482-3a(a), (b), (c), (d), (e), and (h) provided the owner or operator demonstrates that recasting the distance piece or replacing the compressor are the only options available to bring the compressor into compliance with the provisions of § 60.482-3a(a), (b), (c), (d), (e), and (h).
(d) An owner or operator may use the following provision in addition to § 60.485a(e): Equipment is in light liquid service if the percent evaporated is greater than 10 percent at 150 °C as determined by ASTM Method D86-78, 82, 90, 93, 95, or 96 (incorporated by reference as specified in § 60.17).
(e) Pumps in light liquid service and valves in gas/vapor and light liquid service within a process unit that is located in the Alaskan North Slope are exempt from the requirements of §§ 60.482-2a and 60.482-7a.
(f) Open-ended valves or lines containing asphalt as defined in § 60.591a are exempt from the requirements of § 60.482-6a(a) through (c).
(g) Connectors in gas/vapor or light liquid service are exempt from the requirements in § 60.482-11a, provided the owner or operator complies with § 60.482-8a for all connectors, not just those in heavy liquid service.
42 U.S.C. 7401,
(b) * * *
(28) ASTM D6420-99 (Reapproved 2004), Standards Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectometry, IBR approved for §§ 60.485(g)(5), 60.485a(g)(5), 63.772(a)(1)(ii), 63.2354(b)(3)(i), 63.2354(b)(3)(ii), 63.2354(b)(3)(ii)(A), and 63.2351(b)(3)(ii)(B).
Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule.
This rule proposes the adoption of final uniform standards for an electronic prescription drug program as required by section 1860D-4(e)(4)(D) of the Social Security Act (the Act). It also proposes the adoption of a standard identifier for providers and dispensers for use in e-prescribing transactions under sections 1860D-4(e)(3) and 1860D-4(e)(4)(C)(ii), and section 1102 of the Social Security Act. The standards proposed under section 1860D-4(e)(4)(D) have been pilot tested and evaluated, and the findings indicate that the proposed standards meet the requirements for final standards that can be used for the Medicare Part D e-prescribing programs. The standards proposed in this rule, in addition to the foundation standards that were already adopted as final standards (see 70 FR 67568), represent an ongoing approach to adopting standards that are consistent with the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) objectives of patient safety, quality of care, and efficiencies and cost saving in the delivery of care.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 15, 2008.
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For information on viewing public comments, see the beginning of the
Denise M. Buenning, (410) 786-6711.
This
Section 101 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173) amended title XVIII of the Social Security Act (the Act) to establish
Prescription Drug Plan (PDP) sponsors and Medicare Advantage (MA) organizations offering Medicare Advantage-Prescription Drug Plans (MA-PD), are required to establish electronic prescription drug programs to provide for electronic transmittal of certain information to the prescribing provider and dispensing pharmacy and pharmacist. This would include information about eligibility, benefits (including drugs included in the applicable formulary, any tiered formulary structure and any requirements for prior authorization), the drug being prescribed or dispensed and other drugs listed in the medication history, as well as the availability of lower cost, therapeutically appropriate alternatives (if any) for the drug prescribed. The MMA directed the Secretary to promulgate uniform standards for the electronic transmission of such data.
There is no requirement that prescribers or dispensers implement e-prescribing. However, prescribers and dispensers who electronically transmit prescription and certain other information for covered drugs prescribed for Medicare Part D eligible beneficiaries, directly or through an intermediary, would be required to comply with any applicable final standards that are in effect.
Section 1860D-4(e)(4) of the Act generally required the Secretary to conduct a pilot project to test initial standards recognized under 1860D-4(e)(4)(A) of the Act, prior to issuing the final standards in accordance with section 1860D-4(e)(4)(D) of the Act. The initial standards were recognized by the Secretary in 2005 and then tested in a pilot project during calendar year (CY) 2006. The MMA created an exception to the requirement for pilot testing of standards where, after consultation with the National Committee on Vital and Health Statistics (NCVHS), the Secretary determined that there already was adequate industry experience with the standard(s). The first set of such standards, the “foundation standards,” were recognized and adopted through notice and comment rulemaking as final standards without pilot testing. See 70 FR 67568.
Based upon the evaluation of the pilot project, and not later than April 1, 2008, the Secretary is required to issue final uniform standards under section 1860D-4(e)(4)(D). These final standards must be effective not later than 1 year after the date of their issuance.
In the e-prescribing final rule at 70 FR 67589, we also discussed the estimated start-up costs for e-prescribing for providers and/or dispensers. Based on industry input, we cited approximately $3,000 for annual support, maintenance, infrastructure and licensing costs. Physicians at that time reported paying user-based licensing fees ranging from $80 to $400 per month. For further discussion of the start-up costs associated with e-prescribing, see the regulatory impact analysis section of this proposed regulation, and the e-prescribing final rule at 70 FR 67589.
For a further discussion of the statutory basis for this proposed rule and the statutory requirements at section 1860D-4(e) of the Act, please refer to section I. (Background) of the E-Prescribing and the Prescription Drug Program proposed rule, published February 4, 2005 (70 FR 6256).
In the e-prescribing final rule at 70 FR 67589, we also discussed the estimated start-up costs for e-prescribing for providers and/or dispensers. Based on industry input, we cited approximately $3,000 for annual support, maintenance, infrastructure and licensing costs. Physicians at that time reported paying user-based licensing fees ranging from $80 to $400 per month. For further discussion of the start-up costs associated with e-prescribing, see the regulatory impact analysis section of this proposed regulation, and the e-prescribing final rule at 70 FR 67589.
In the November 7, 2005 final rule, we addressed the issues of privacy and security relative to e-prescribing in general. We noted that disclosures of protected health information (PHI) in connection with e-prescribing transactions would have to meet the minimum necessary requirements of the Privacy Rule if the entity is a covered entity (70 FR 6161). It is important to note that health plans, prescribers, and dispensers are HIPAA covered entities, and that these covered entities under HIPAA must continue to abide by the applicable HIPAA standards including these for privacy and security. E-prescribing provisions do not affect or alter the applicability of the Privacy Act to a particular entity. Entities which are covered by the Privacy Act and the HIPAA Privacy Rule must comply with provisions of both. Entities are responsible for determining whether they fall under the Privacy Act.
We continue to agree that privacy and security are important issues related to e-prescribing. Achieving the benefits of e-prescribing require the prescriber and dispenser to have access to patient medical information that may not have been previously available to them. Section 1860-D(e)(2)(C) of the Act requires that disclosure of patient data in e-prescribing must, at a minimum, comply with HIPAA's privacy and security requirements.
Although HIPAA standards for privacy and security are flexible and scalable to each entity's situation, they provide comprehensive protections. We will continue to evaluate additional standards for consideration as adopted e-prescribing standards. For further discussion of privacy and security and e-prescribing, refer to the final rule at 70 FR 67581 through 82.
After consulting with the NCVHS, the Secretary found that there was adequate industry experience with several potential e-prescribing standards. Upon adoption through notice and comment rulemaking, these standards were called “foundation” standards, because they would be the first set of final standards adopted for an electronic prescription drug program. Three standards were adopted for purposes of e-prescribing in the E-Prescribing and the Prescription Drug Program final rule, published November 7, 2005 (70 FR 67568). Two of these standards, Accredited Standards Committee (ASC) X12N 270/271; and The National Council for Prescription Drug Programs (NCPDP) Telecommunication Standard Specification, Version 5, Release 1 (Version 5.1), were previously adopted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and have been in effect since 2001.
These foundation standards are as follows:
For the exchange of eligibility information between prescribers and Medicare Part D sponsors: Accredited Standards Committee (ASC) X12N 270/271—Health Care Eligibility Benefit Inquiry and Response, Version 4010, May 2000, Washington Publishing Company, 004010X092 and Addenda to Health Care Eligibility Benefit Inquiry and Response, Version 4010A1, October 2002, Washington Publishing Company. 004010X092A1 (hereafter referred to as the ASC X12N 270/271 standard).
For the exchange of eligibility inquiries and responses between dispensers and Medicare Part D sponsors: The National Council for Prescription Drug Programs (NCPDP) Telecommunication Standard Specification, Version 5, Release 1 (Version 5.1), September 1999, and equivalent NCPDP Batch Standard Batch Implementation Guide, Version 1, Release 1 (Version 1.1), January 2000 supporting Telecommunications Standard Implementation Guide Version
For the exchange of new prescriptions, changes, renewals, cancellations and certain other transactions between prescribers and dispensers: NCPDP SCRIPT Standard, Implementation Guide, Version 5, Release 0 (Version 5.0), May 12, 2004, excluding the Prescription Fill Status Notification Transaction (and its three business cases; Prescription Fill Status Notification Transaction—Filled, Prescription Fill Status Notification Transaction—Not Filled, and Prescription Fill Status Notification Transaction—Partial Fill), hereafter referred to as NCPDP SCRIPT 5.0.
In 42 CFR 423.160(a)(3)(iii) we exempt entities transmitting prescriptions or prescription-related information where the prescriber is required by law to issue a prescription for a patient to a non-prescribing provider (such as a nursing facility) that in turn forwards the prescription to a dispenser from the requirement to use the NCPDP SCRIPT Standard 5.0 adopted by this section in transmitting such prescriptions or prescription-related information.
Industry comments indicated that while the e-prescribing standards we proposed were proven to have adequate industry experience in the ambulatory setting, the NCPDP SCRIPT Standard was not proven to support the workflows and legal responsibilities in the long-term care setting. As such, we exempted entities from the requirement to use the NCPDP SCRIPT standard when that entity is required by law to issue a prescription for a patient to a non-prescribing provider (such as a nursing facility) that in turn forwards the prescription to a dispenser. The CY 2006 pilot project tested for such entities' use of the foundation standards in “three-way prescribing communications” between facility, physician, and pharmacy. (For a more detailed discussion see the November 7, 2005 final rule (70 FR 67583).
In the E-Prescribing and the Prescription Drug Program final rule, published November 7, 2005 (70 FR 67568), we responded to comments on whether Medicare Part D plans should be required to use the standards for e-prescribing transactions taking place within their own enterprises. In the final rule we stated that entities may use either HL7 or NCPDP SCRIPT standards to conduct internal electronic transmittals for the specified NCPDP SCRIPT transactions. However, entities are required to use the NCPDP SCRIPT Standard if they electronically send prescriptions for Medicare beneficiaries outside the organizations, such as to a non-network pharmacy. Any pharmacy that already accepts e-prescriptions, even if only as a part of a larger legal entity, must be able to receive electronic prescription transmittals for Medicare beneficiaries via NCPDP SCRIPT from outside the enterprise.
The November 7, 2005 final rule also exempted entities that transmit prescriptions or prescription-related information by means of computer-generated facsimile (faxes) from the requirement to use the adopted NCPDP SCRIPT standard. “Electronic media” was already defined by regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), so e-prescribing utilized the same definition. As a result, faxes that were generated by a prescriber's computer and sent to a dispenser's computer or fax machine which prints out a hard copy of the original computer-generated fax (that is, “computer-generated” faxes) fell within the definition of “electronic media” for e-prescribing. Absent an exemption, computer-generated faxes would be required to comply with the adopted foundation standards. The November 7, 2005 final rule exempted computer-generated faxes from having to comply with the NCPDP SCRIPT standard.
In June 2007, CMS proposed to eliminate this exemption. See 72 FR 38195 through 38196 for a discussion of the elimination of this exemption.
In the November 7, 2005 final rule (70 FR 67579), we discussed the means for updating e-prescribing standards. If an e-prescribing transaction standard has also been adopted under 45 CFR parts 160 through 162 (that is, as HIPAA transaction standards), the updating process for the e-prescribing transaction standard must be coordinated with the maintenance and modification of the applicable HIPAA transaction standard. As the final rule adopted and incorporated by reference the relevant HIPAA transaction standards (the ASC X12N 270/271 and the NCPDP Telecommunication Standard), the e-prescribing standards can be modified through a parallel rulemaking whenever the HIPAA transaction standards are modified. A streamlined process was created for updating adopted e-prescribing standards that were not also HIPAA transaction standards. This is done by identifying backward compatible later versions of the standards. This version updating and maintenance of the implementation specifications for the adopted non-HIPAA e-prescribing standards will allow for the correction of technical errors, the elimination of technical inconsistencies, and the addition of functions that support the specified e-prescribing transaction. To do this, we adopted a process for the Secretary to identify a subsequent version(s) of a standard where the new version(s) are backwards compatible with the adopted standard. Use of such subsequent versions of an adopted standard is voluntary. Because HIPAA transaction standards are presently not backward compatible and the HIPAA transactions standards regulation does not currently address the use of subsequent versions of adopted standards that are backward compatible to the adopted standards, the streamlined process cannot presently be used for those HIPAA transactions standards that are also e-prescribing standards.
Subsequent industry input indicated that the adopted NCPDP SCRIPT 5.0, should be updated with a later version of the standard NCPDP SCRIPT Standard, Implementation Guide, Version 8, Release 1 (Version 8.1), October 2005, excluding the Prescription Fill Status Notification Transaction (and its three business cases; Prescription Fill Status Notification Transaction—Filled, Prescription Fill Status Notification Transaction—Not Filled, and Prescription Fill Status Notification Transaction—Partial Fill), hereafter referred to as NCPDP SCRIPT 8.1.
Using the streamlined process, HHS published an Interim Final Rule on June 23, 2006 (71 FR 36020) updating the adopted NCPDP SCRIPT standard, thereby permitting either version to be used. For more information, see the June 23, 2006 interim final rule with comment (71 FR 36020).
In the November 7, 2005 final rule (70 FR 67578), we discussed the use of the National Provider Identifier (NPI) for the Medicare Part D e-prescribing program once it became available. The NPI is the standard that was adopted in the final rule published on January 23, 2004 (69
In the November 7, 2005 final rule (70 FR 67578), in response to comments received in the February 4, 2005 proposed rule, we indicated that we would include the NPI in the 2006 pilots to determine how it worked with e-prescribing standards. However, we also noted that accelerating NPI usage for e-prescribing might not be possible, as we might not have had the capacity to issue NPIs to all providers involved in the e-prescribing program by January 1, 2006. At the time the Request for Application was released, we had just begun to use the National Plan/Provider Enumeration System (NPPES) to process provider requests for NPIs. Upon reconsideration and in view of the short time period allowed for pilot testing, it was determined that the focus should be on standards testing and not on NPI as it would constitute a simple bench testing of the identifier and would have no substantive results. Therefore, NPI was not assessed during the pilots, which used other identifiers to accomplish their testing of the standards as outlined in the Request for Application.
The MMA required the Secretary to develop, adopt, recognize or modify “initial uniform standards” relating to the requirements for the e-prescribing programs in 2005. To ensure the efficient implementation of the e-prescribing program requirements, the MMA called for pilot testing of these initial e-prescribing standards in 2006. To fulfill this requirement, the Secretary ultimately recognized (based on NCVHS input) six “initial” standards, which are discussed below. A Request for Applications (RFA) was issued in September 2005 that laid out the details for how these initial standards were to be pilot tested (Available through
[If you choose to comment on issues in this section, please include the caption “Initial Standards” at the beginning of your comments.]
As HHS had not yet published a final rule identifying the foundation standards at the time the RFA was published, it conditionally included the proposed foundation standards among the “initial standards” to be tested. Any proposed foundation standards that were not adopted as foundation standards were to be tested as initial standards in the pilot project. Furthermore, if the proposed foundation standards were ultimately adopted as foundation standards, those standards nevertheless were to be used in the pilot project to ensure interoperability with the initial standards. A summary of the initial standards follows:
• Formulary and benefit information—The formulary and benefits standard, NCPDP Formulary and Benefits Standard, Implementation Guide, Version 1, Release 0 (version 1.0), hereinafter referred to as the NCPDP Formulary and Benefits Standard 1.0, is intended to provide prescribers with information from a plan about a patient's drug coverage at the point of care.
• Exchange of medication history—The medication history standard, included in the National Council for Prescription Drug Programs (NCPDP) Prescriber/Pharmacist Interface SCRIPT Standard, Version 8 Release 1 and its equivalent NCPDP Prescriber/Pharmacist Interface SCRIPT Implementation Guide, Version 8, Release 1, is intended to provide a uniform means for prescribers and payers to communicate about the list of drugs that have been dispensed to a patient.
• Structured and Codified SIG—The standard tested was NCPDP's proposed Structured and Codified SIG Standard 1.0. Structured and Codified SIG—instructions for taking medications (such as “by mouth, three times a day”)—that are currently expressed as free text at the end of a prescription.
• Fill status notification function—The Fill Status Notification, or RxFill, was included in the NCPDP SCRIPT 5.0, and the updated NCPDP SCRIPT 8.1 but it previously was not proposed as a foundation standard due to lack of industry experience. The dispenser uses the prescription fill status transaction to notify the prescriber if a patient has picked up a prescribed medication at the pharmacy.
• Clinical drug terminology (RxNorm)—RxNorm, a standardized nomenclature for clinical drugs developed by the National Library of Medicine (NLM), provides standard names for clinical drugs (active ingredient + strength + dose form) and for dose forms as administered to a patient.
• Prior authorization messages—The pilot sites tested to determine the functionality of new versions of the ASC X12N 275, Version 4010 with HL7 and ASC X12N 278, Version 4010A1 to obtain certification from the plan to a provider that the patient meets criteria for a drug to be covered.
The RFA also specified that pilot sites would use NCPDP SCRIPT 5.0. With the Secretary's recognition of the updated NCPDP SCRIPT 8.1, AHRQ, in its capacity as the administrator of the pilot project, gave pilot sites the option to voluntarily use NCPDP SCRIPT 8.1. Accordingly, all grantees/contractor in the pilot sites voluntarily employed the updated NCPDP SCRIPT 8.1 in their various testing modalities.
[If you choose to comment on issues in this section, please include the caption “Grantees/Contractor and Testing Criteria” at the beginning of your comments.]
The initial standards were tested in five healthcare/geographic settings to determine whether they were ready for broad adoption. Grantees/contractor tested whether the initial standards allowed participants to effectively communicate the necessary information between all participants in the transactions, such as the pharmacy, pharmacy benefits manager (PBM), router, plan and prescriber. They also tested how the initial standards worked with the foundation standards. Pilot sites also tracked generally anticipated e-prescribing outcomes, such as a reduction in medical errors. For more information on testing parameters and criteria, go to
One of the strengths of the pilot project was the diversity and uniqueness of the five grantees/contractor. Grantees/contractor represented the spectrum of communities involved with e-prescribing, including most practice settings, and focused on utilization by pharmacists, physicians, nurses, and technology vendors. Applications were considered based on specific
[If you choose to comment on issues in this section, please include the caption “Pilot test findings” at the beginning of your comments.]
In the February 4, 2005 proposed rule, we discussed how the adoption of the formulary and benefit standard would enhance e-prescribing capabilities under Medicare Part D by making it possible for the prescriber to obtain information on the patient's benefits, including the formulary status of drugs that the physician is considering prescribing. At that time, we proposed characteristics for a formulary and benefit standard (for a more detailed discussion refer to 70 FR 6262 through 6263). We proposed that if those characteristics for formulary were met by a standard and there was adequate industry experience with it, we would consider adopting it as a foundation standard. The NCVHS, in a September 2, 2004 letter to the Secretary (
Formulary and benefits data standards must provide a uniform means for pharmacy benefit payers (including health plans and PBMs) to communicate a range of formulary and benefit information to prescribers via point-of-care (POC) systems. These include:
• General formulary data (for example, therapeutic classes and subclasses);
• Formulary status of individual drugs (that is, which drugs are covered);
• Preferred alternatives (including any coverage restrictions, such as quantity limits and need for prior authorization); and
• Copayment (the copayments for one drug option versus another).
The NCPDP Formulary and Benefits Standard 1.0 enables the prescriber to consider this information during the prescribing process, and make the most appropriate drug choice without extensive back-and-forth administrative activities with the pharmacy or the health plan.
The NCPDP Formulary and Benefits Standard 1.0 was implemented live in all pilot sites, and technology vendors were certified prior to production. This standard works in tandem with the eligibility request and response (ASC X12N 270/271). Once the individual is identified, the appropriate drug benefit coverage is located and transmitted to the requestor.
The pilot sites demonstrated that the NCPDP Formulary and Benefits Standard 1.0 can be successfully implemented between prescriber and plan. The NCPDP Formulary and Benefits Standard 1.0 is quite broad, and there are a number of complex data relationships supported by the standard. This complexity creates a certain level of confusion as to how to properly use the data and leads to implementation issues. While complex, the standard can support the transaction, and is ready for implementation as part of the e-prescribing program under Medicare Part D.
Formularies by their very nature are complex. They consist of hundreds of pages of drug names, dosages, etc., that frequently change due to updates in formulations, coverage decisions, etc. In addition, each drug plan has their own formulary that they use for coverage purposes. Coverage of benefits is sometimes a fluid issue; coverage can change from day to day, depending, for example, as to whether a Medicare Part D beneficiary has met out-of-pocket spending thresholds, or has experienced a life-changing situation that might affect their benefit delivery for example, entering a long-term care facility). Adoption of this standard for formulary and benefits transactions between plans and providers may deliver added value in approximating patients’ drug coverage and lead to patient-specific, real-time benefit information.
A medication history standard provides a way for prescribers, dispensers, and payers to communicate about a listing of drugs that have been prescribed or claimed for a patient within a certain timeframe. It may provide information that would be of use in helping to identify drug interactions, including the dispensing pharmacy and the prescribing physician. This standard is relatively mature and widely adopted by the prescribing industry. It has been useful in preventing medication errors, as well as understanding medication management compliance. Results demonstrate there is a difference in how the standard is implemented based on the source of the medication history.
In the February 4, 2005 proposed rule, we discussed how the adoption of the medication history standard would enhance e-prescribing capabilities under Medicare Part D by making it possible for the prescriber to obtain information on the medications the patient is already taking, including those prescribed by other providers. At that time, we proposed characteristics for a medication history standard (for a more detailed discussion refer to 70 FR 6262 through 6263). We proposed that if those characteristics for medication history were met, and there was adequate industry experience with them, we would consider adopting foundation standards. The NCVHS, in a September 2, 2004 letter to the Secretary (
The pilot sites found that the proposed medication history standard included as a transaction in the NCPDP SCRIPT 8.1 is well structured, supports the exchange of information, would not impose an undue administrative burden on prescribers and dispensers, is compatible with other health IT standards, and is ready to be used as part of the e-prescribing program under Medicare Part D.
Patient instructions for taking medications are placed at the end of a prescription. These are called the
The pilot sites found that the proposed Structured and Codified SIG format needs additional work with reference to field definitions and examples, field naming conventions and clarifications of field use. It is imperative that the prescriber's instructions be translated exactly into e-prescribing and pharmacy practice management systems to reduce medication errors, decrease healthcare costs and improve patient safety. Contradictions with other structured fields exist, and there are limitations on directions for topical drugs (such as the area of application). The
The Fill Status Notification standard is a function within the NCPDP SCRIPT 8.1, but it was not named a foundation standard due to lack of adequate industry experience. The standard enables a pharmacy to notify a prescriber when the prescription has been dispensed (medication picked up by patient), partially dispensed (partial amount of medication picked up by the patient), or not dispensed (medication not picked up by patient, resulting in the medication being returned to stock).
Pilot sites found that the NCPDP SCRIPT 8.1 standard supports the activities of a pharmacy sending messages to the prescriber as to the status of a prescription. The challenges encountered were not related to the structure and format of the standard, but in its implementation. RxFill is intended to encourage adherence and compliance with medication therapy. Although the transaction is technically capable of performing that function, the pilot sites’ experiences and observations indicate there is no marketplace demand for this information, and may cause an unnecessary administrative burden on prescribers and dispensers. Prescribers expressed concerns about being inundated with data if they were informed every time a prescription was filled or not filled, and were unsure of the usefulness of the information. Moreover, implementing the Fill Status transaction would require significant business process changes at pharmacies as well as development of common rules for determining when a prescription becomes a “no-fill.” We question the marketplace demand for Fill Status Notification and solicit comments regarding both stakeholders’ and industry's potential utilization of RxFill.
RxNorm is a vocabulary resulting from a collaboration between the Food and Drug Administration (FDA) and the National Library of Medicine (NLM) that provides standard names for clinical drugs (active ingredient + strength + dose form), and for dose forms as administered to a patient. These concepts are relevant to how a physician would order a drug. It provides links from clinical drugs, both branded and generic, to their active ingredients, drug components (active ingredient + strength), and related brand names. NDCs (National Drug Codes) for specific drug products (where there are often many NDC codes for a single product) are linked to that product in RxNorm. NDCs for specific drug products identify not only the drug but also the manufacturer and the size of the package from which it is dispensed. NDCs are relevant to how a pharmacy would dispense the drug. RxNorm links its names to many of the drug vocabularies commonly used in pharmacy management and drug interaction software. By providing links between these vocabularies, RxNorm can mediate messages between systems not using the same software and vocabulary.
RxNorm terminology was evaluated in the context of the NCPDP SCRIPT 8.1 for new prescriptions, renewals, and changes. RxNorm was included in the pilot to determine how well the RxNorm information can be translated from the prescriber's system to the dispenser's system while maintaining the prescriber's intent. The grantees/contractor tested this standard in a laboratory setting, specifically to gain understanding of the completeness and accuracy of RxNorm.
The pilot sites demonstrated that RxNorm has significant potential to simplify e-prescribing, create efficiencies, and reduce dependence on NDCs among dispensers. It was able to represent both new prescriptions and renewal requests. In some testing, RxNorm erroneously linked some NDCs to lists of ingredients rather than to the drugs themselves. Testing also revealed cases in which the NDC codes linked by RxNorm did not match to a semantic clinical drug (SCD), which always contains the ingredient(s), strength and dose form, in that order. This indicates there was either an error in matching to the correct RxNorm concept, or an error with RxNorm itself, with more than one term being available for the same clinical drug concept (that is, unresolved synonymy). There is currently no central repository containing a list of all NDC codes, nor a reference guide that indicates all of the NDCs associated with a particular drug. (On August 29, 2006, FDA published a proposed rule [71 FR 51276] which would result in the creation of an electronic drug registration and listing system for which FDA would issue all NDCs, registrants would be required to keep information up to date, and there would be a centralized electronic repository for these NDCs. Through the Structured Product Labeling (SPL) for
The prior authorization standard incorporates real-time prior authorization functionality in the ASC X12N 278 Version 4010A1 Health Care Services Review transaction. Originally there were two models that were to be considered, solicited (prescriber proactively solicits prior authorization criteria/forms from plan) and unsolicited (questions appear via prompts on a point-of-care software system). The solicited model is rarely used and usually results in a paper-based response, versus the unsolicited model which employs e-prescribing technology. Upon consultation between the pilot sites and AHRQ as the administrator of the pilot project, AHRQ advised that the pilot sites use the unsolicited model using the NCPDP Formulary and Benefits Standard 1.0 specification as it would provide a better test of prior authorization in an e-prescribing environment.
Prior authorization is a very complex standard to implement, necessitating an understanding of four different standards and multiple payer requirements. The combination of ASC X12N 278, ASC X12N 275 and the HL7 prior authorization (PA) attachment is cumbersome, confusing and requires expertise that may limit adoption. Because health plans typically require prior authorization only for a small subset of drugs, the pilot sites had limited live experience with this standard. Nevertheless, they pilot tested the ASC X12N 278 version 4010A1 and ASC X12N 275 version 4010 with the HL7 PA attachment and identified several issues that need to be addressed before this standard should be adopted as an e-prescribing final standard, including some inconsistencies between ASC X12N 278 Version 4010A1 and ASC X12N 275 Version 4010 that need to be addressed. Investigators agreed that the HIPAA-named prior authorization standard—the ASC X12N 278 version 4010A1—was not adequate to support prior authorization because it was designed for service or procedure prior authorizations, not for medication prior authorization. One of the challenges of the ASC X12N 275 version 4010 with the HL7 PA attachment is that it did not allow vendors to make questions mandatory, which would ensure that the information required is complete and reduce the need for back-and-forth communication that takes place between plan prior authorization representatives and prescribers. Standards modifications would need to be made prior to adoption as a final standard for the Medicare Part D e-prescribing program.
Healthcare Delivery in long-term care (LTC) settings is unique for several reasons. Nurses are frequently the primary caregivers, with off-site physicians who monitor care; specialized long-term care pharmacies are located off-site with drugs being delivered to the facility. While the participants in the Achieve study were drawn from a convenience sample, the setting provided a special opportunity for understanding e-prescribing's impact on an entirely different patient population, provider type, and prescription delivery system.
In long-term care, a prescription order typically remains an open order with no end date or a date far in the future. A prescriber may need to modify this order and notify the pharmacy. Changes might include dose, form, strength, route, modifications of frequency, or a minor change related to the order. Also, in the long-term care environment, there is a need to send a refill request from a facility to a pharmacy. An example is when a medication supply for a resident is running low (2-3 doses remaining), and a new supply is needed from the pharmacy. The facility needs a way to notify the pharmacy that a refill for the medication is needed. E-prescribing was evaluated within the unique context of long-term care workflow from facility to pharmacy.
The primary purpose of the long-term care pilot site was to test the NCPDP SCRIPT 8.1 in the long-term care setting and found that modifications were required in order to ensure accurate transmission of the data. Through partner agreement, “work-arounds” were identified and implemented. These work-around requests were formally submitted by the pilot site grantee to NCPDP in the form of a DERF (Data Element Request Form) to modify the standard as needed. When an updated version of the NCPDP SCRIPT Standard becomes available that can accommodate the unique prescription workflow of the LTC setting, we will consider removing the current exemption. We solicit industry and other interested stakeholder comments on the impact and timing of lifting this exemption.
[If you choose to comment on issues in this section, please include the caption “Adoption of NCPDP SCRIPT 8.1” at the beginning of your comments.]
We propose to revise § 423.160(b)(1) to replace the NCPDP SCRIPT 5.0 standard with the NCPDP SCRIPT 8.1. Those providers and dispensers using e-prescribing to provide for the electronic communication of a prescription or prescription-related information would be required to use the NCPDP SCRIPT 8.1 for the following transactions:
• Get message transaction.
• Status response transaction.
• Error response transaction.
• New prescription transaction.
• Prescription change request transaction.
• Prescription change response transaction.
• Refill prescription request transaction.
• Refill prescription response transaction.
• Verification transaction.
• Password change transaction.
• Cancel prescription request transaction.
• Cancel prescription response transaction.
On June 23, 2006, we published an interim final rule with comment (71 FR 30620) to solicit comments as to whether the NCPDP SCRIPT 8.1 was a backward compatible update to NCPDP SCRIPT 5.0. We received 5 timely public comments on this interim rule with comment. The comments came from a standards setting organization, two national industry associations, and two private corporations actively involved in e-prescribing. All commenters supported the voluntary use of the backward compatible Version 8.1 of the NCPDP SCRIPT Standard. Four recommended that it be adopted as soon as reasonably possible, and that Version 5.0 be retired as soon as reasonably practical. They also indicated that Version 8.1 was already in widespread use throughout their
We continue to find that the NCPDP SCRIPT 8.1 is backward compatible to the adopted NCPDP SCRIPT 5.0. Both versions are the same, except that Version 8.1 contains the additional feature of medication history. One commenter expressed that it has been their experience that, while capable of processing Version 5.0, the industry is already implementing Version 8.1, and that few, if any, of their trading partners are using Version 5.0. This is supported by industry reports that numerous software systems now using Version 8.1 have been certified for use by electronic prescribing networks.
Regarding the comment that backward compatibility should not be the sole criterion for determining whether use of a subsequent version requires an update or a modification of an e-prescribing standard, we note that it is not the sole criterion. The “backward compatibility” of a subsequent version of an adopted standard simply indicates that entities may voluntarily upgrade their systems with the subsequent version that is “backward compatible,” and still be compliant with the adopted standard. With the backward compatible version, entities may conduct transactions with other entities that continue to use the adopted version of the standard with no deleterious effect on the transmission of information or the transaction itself. We also note that we are required by law to employ notice and comment rulemaking to modify an adopted standard or when entities would be required to transition to a subsequent version. Through the rulemaking process, we must notify the public as to the proposed modifications, receive public comment on our proposals, and take into consideration an analysis of factors such as the modification's impact on affected entities relative to cost, benefit projections, productivity, etc., as well as industry and stakeholder feedback provided by means of the written comment process. We are soliciting comments regarding the retirement of Version 5.0 and the adoption of Version 8.1 as the adopted standard for the e-prescribing functions outlined in 42 CFR 423.160(b)(1), and based on the proposed compliance date described in section II.E. of this proposed rule.
[If you choose to comment on issues in this section, please include the caption “Medication History” at the beginning of your comments.]
In the Foundation Standards final rule, 70 FR 67568, we discussed the need for medication history standards, and that we were unaware of any standard for these transactions that clearly met the criteria for adequate industry experience. As a result, a standard for medication history was tested in the 2006 pilot project.
The NCVHS noted in its September 2, 2004 letter to the Secretary that medication history information was communicated between payers and prescribers using proprietary messaging standards, frequently the Information File Transfer protocols established by RxHub, a national formulary and benefits information exchange. The NCVHS recommended that HHS actively participate in and support the rapid development of an NCPDP standard for formulary and medication history using the RxHub protocol as a basis. In September 2005, RxHub announced that its propriety data transaction format for Medication History which they had submitted to NCPDP, had been approved and incorporated into the NCPDP Script Standard, and approved by the American National Standard Institute (ANSI). NCVHS considered ANSI accreditation to be one criterion in their recommendation process for adoption of e-prescribing standards, and HHS adopted this as a criterion for determining adequate industry experience. (See 70 FR 67568, 67577 for a discussion of all the criterion considered by NCVHS.) The resulting NCPDP SCRIPT standard was recognized by the Secretary as an initial standard, then pilot tested in accordance with the MMA.
The pilot sites demonstrated that the standard can be successfully implemented among a variety of e-prescribing partners and, while complex, the standard can support the Medication History transaction, and is ready for implementation under Medicare Part D.
If NCPDP SCRIPT 8.1 is adopted in place of NCPDP SCRIPT 5.0 at § 423.160(b)(1) as proposed above, we also propose to add § 423.160(b)(3) to adopt the NCPDP SCRIPT 8.1 for electronic medication history transactions among the plan sponsor, prescriber, and the dispenser when e-prescribing for covered Medicare Part D drugs for Medicare Part D eligible individuals. The medication history transaction in the NCPDP SCRIPT 8.1 standard is based on the proprietary file transfer protocol developed by RxHub, which is currently being used to communicate this information in many e-prescribing products.
Adoption of the NCPDP SCRIPT 8.1 standard for the medication history transaction will provide a uniform communications mechanism for prescribers, dispensers and payers, support reconciliation of useful data from a large number of sources, and raise awareness of its availability and use among providers. Cost savings to the public will be generated based on reductions in the number of preventable adverse drug events (ADEs). Significantly, systems that utilize this proposed transaction in the NCPDP SCRIPT 8.1 standard will be substantially more effective at ADE reduction than those merely utilizing the original foundation standards by allowing prescribers to see what medications have been prescribed by other providers in the past.
[If you choose to comment on issues in this section, please include the caption “formulary and benefit transactions” at the beginning of your comments.]
As a result of pilot testing, we are proposing to add § 423.160(b)(4) to adopt the NCPDP Formulary and Benefit Standard 1.0, for the transaction of communicating formulary and benefit information between the prescriber and the plan sponsor when e-prescribing for covered Medicare Part D drugs for Medicare Part D eligible individuals. This standard is based on a proprietary file transfer protocol developed by RxHub, which is currently being used to communicate this information in many e-prescribing products. The RxHub protocols were submitted to NCPDP for accreditation, and the resulting standard was recognized by the Secretary as an initial standard and pilot-tested in accordance with the MMA.
The NCPDP Formulary and Benefits Standard 1.0 was implemented live in all pilot sites. This standard works in tandem with the eligibility request and response (ASC X12N 270/271). Once the individual is identified, the appropriate drug benefit coverage is located and transmitted to the requestor.
The pilot sites demonstrated that the NCPDP Formulary and Benefits Standard 1.0 can be successfully
Adoption of this standard for formulary and benefits transactions between plan sponsors and prescribers may deliver added value in approximating patients' drug coverage and lead to patient-specific, real-time benefit information. The NCPDP Formulary and Benefits Standard 1.0 enables the prescriber to consider this information during the prescribing process, and make the most appropriate drug choice without extensive back-and-forth administrative activities with the pharmacy or the plan sponsors. As prescribers prescribe based on the coverage offered by a patient's plan formulary, plans will experience reduced costs through paying for drugs that are specific to their formularies for which they have negotiated favorable rates. Patients will see reduced costs in not having to pay increased out-of-pocket expenses for prescribed drugs that are not on their plan's formularies.
[If you choose to comment on issues in this section, please include the caption “Adoption of the National Provider Identifier” at the beginning of your comments.]
We are proposing to add § 423.160(b)(5) to adopt the National Provider Identifier as a standard for use in e-prescribing transactions among the plan sponsor, prescriber, and the dispenser. The NCPDP SCRIPT standard 8.1, which we are proposing for adopting in this proposed rule, supports the use of NPI.
While the NPI was not tested in the pilot project, we have reason to believe that there is adequate industry experience with the NPI which would support its use in e-prescribing transactions under section 1860D-4(e)(4)(C)(ii). Use of the NPI is already required in order to conduct HIPAA-compliant transactions which require the identity of HIPAA covered health care providers; and the compliance date for the NPI, May 27, 2007, has already passed. The NPI is in widespread use by HIPAA covered entities in HIPAA transactions. Although the NCPDP SCRIPT transaction is not a HIPAA transaction, the prescribers and dispensers that conduct it would be HIPAA covered entities, and as such, they would already be using NPI as they conduct their HIPAA transactions. They would, therefore, already be familiar with the NPI, even though they may not currently use it in the NCPDP SCRIPT transaction. Furthermore, NPI meets the objectives and design criteria laid out at section 1860D-4(e)(3) of the Act, so adoption of the NPI for use in e-prescribing standards is supported by section 1860D-4(e)(3)(A) of the Act as well. Finally, as uniform identifiers are necessary to conduct electronic transactions such as those in the e-prescribing program, adoption of NPI is also supported by section 1102 of the Act.
We generally solicit comments from the industry and other stakeholders on the adoption of NPI as an e-prescribing standard, and we specifically request comments as to whether use of the NPI in HIPAA-compliant transactions constitutes adequate industry experience for purposes of using NPI as a covered health care provider identifier in Medicare Part D e-prescribing transactions.
In accordance with section 1860D-4(e) of the Act, the Secretary must issue certain final uniform standards for e-prescribing no later than April 1, 2008, to become effective not later than 1 year after the date of their promulgation. Therefore, in accordance with this requirement, the Secretary proposes a compliance date of 1 year after the publication of the final uniform standards. The Secretary also proposes adopting NCPDP SCRIPT 8.1 as the e-prescribing standard for the transactions listed in section III. C. of this proposed rule, effective 1 year after the publication of the final uniform standards. We solicit comments regarding the impact of these proposed dates on industry and other interested stakeholders and whether an earlier compliance date should be adopted.
Under the Paperwork Reduction Act of 1995 (PRA), agencies are required to provide a 30-day notice in the
• Whether the information collection is necessary and useful to carry out the proper functions of the agency.
• The accuracy of the agency's estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements.
The emerging and increasing use of health care electronic data interchange (EDI) standards and transactions have raised the issue of the applicability of the PRA. It has been determined that a regulatory requirement mandating the use of a particular EDI standard constitutes an agency-sponsored third-party disclosure as defined under the PRA.
As a third-party disclosure requirement subject to the PRA, Medicare Part D sponsors offering qualified prescription drug coverage must support and comply with electronic prescription standards relating to covered Medicare Part D drugs, for Medicare Part D enrolled individuals as would be required under § 423.160.
However, the requirement that Medicare Part D sponsors support electronic prescription drug programs in accordance with standards set forth in this section, as established by the Secretary, does not require that prescriptions be written or transmitted electronically by prescribers or dispensers. After the promulgation of this set of final standards, these entities will be required to comply with the proposed standards only if they transmit prescription information electronically as discussed in section 1860D-4(e)(1) and (2) of the Act.
Testimony presented to the NCVHS indicates that most health plans/PBMs currently have e-prescribing capability either directly or by contracting with another entity. Therefore, we do not believe that conducting an electronic prescription drug program would be an additional burden for those plans. We solicit industry and other interested stakeholder comments and input on this issue.
Since these standards are already familiar to industry, we believe the requirement to adopt them constitutes a usual and customary business practice and the burden associated with the requirements is exempt from the PRA as stipulated under 5 CFR 1320.3(b)(2).
As required by section 3504(h) of the Paperwork Reduction Act of 1995, we have submitted a copy of this document to OMB for its review of these information collection requirements.
If you comment on any of these information collection requirements, please mail copies directly to the following: Centers for Medicare & Medicaid Services, Office of Strategic Operations and Regulatory Affairs, Regulations Development and Issuances Group, Attn: William Parham, III, CMS-0016-P, Room C5-14-03, 7500 Security Boulevard, Baltimore, MD 21244-1850; and Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503. Attn: Carolyn Lovett, CMS Desk Officer, CMS-0016-P,
Because of the large number of public comments we normally receive on
[If you choose to comment on issues in this section, please include the caption “Regulatory Impact Analysis” at the beginning of your comments.]
We have examined the impacts of this rule as required by Executive Order 12866 of September 30, 1993, as further amended; the Regulatory Flexibility Act (RFA) (September 16, 1980, Pub. L. 96-354); section 1102(b) of the Social Security Act; section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995, Pub. L. 104-4); and Executive Order 13132 of August 4, 1999.
Executive Order 12866 (as amended by Executive Order 13258, which merely reassigns responsibility of duties, and further amended by Executive Order 13422) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). According to Executive Order 12866, a regulatory action may reasonably be “significant” if it meets any one of a number of specified conditions, including if the action may reasonably be anticipated to lead to:
• An annual effect on the economy of $100 million or more, adversely affecting in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
• A serious inconsistency or otherwise interfering with an action taken or planned by another agency;
• Material alteration in the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
• Novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.
This proposed rule is anticipated to have an annual benefit on the economy of $100 million or more and will have “economically significant effects.” We believe that prescribers and dispensers that are now e-prescribing have already largely invested in the hardware, software and connectivity necessary to e-prescribe. We do not anticipate that the proposed modification of the NCPDP SCRIPT 5.0 to the NCPDP SCRIPT 8.1 at § 423.160(b)(1), the adoption of NCPDP SCRIPT 8.1 for the Medication History transaction, the adoption of the NCPDP Formulary and Benefit Standard 1.0 for formulary and benefit transactions, and the adoption of NPI for use in e-prescribing transactions will result in significant costs. We solicit industry and other interested stakeholder comments and input on this issue. We anticipate that the ability to utilize electronic formulary and benefit inquiries will result in administrative efficiencies and increased prescribing of generic drugs versus brand name drugs, and the access to medication history at the point of care will result in reduced adverse drug events (ADEs). The benefits accruing from these transactions will have an economically significant effect on Medicare Part D program costs and patient safety. As this is a significant rule under Executive Order 12866, we are required to prepare a regulatory impact analysis (RIA) for this rule.
The Regulatory Flexibility Act (RFA) requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by qualifying as small businesses under the Small Business Administration's size standards (revenues of $6.5 million to $31.5 million in any 1 year for the health care industry). States and individuals are not included in the definition of a small entity. For details, see the Small Business Administration's regulation that set forth the current size standards for health care industries at
Based on our initial analysis, we expect this proposed rule will not have a significant impact on a substantial number of small entities because, while many prescribing physician practices and independent pharmacies would be small entities, e-prescribing is voluntary for prescribers and pharmacies. For prescribers and dispensers that have already implemented e-prescribing, the adoption of NCPDP SCRIPT 8.1 would in most cases be accommodated through software upgrades whose cost would already be included in annual maintenance fees. Medicare Part D sponsors are required to support e-prescribing, and would incur some costs to support the NCPDP Formulary and Benefit Standard 1.0 and the NCPDP SCRIPT 8.1 medication history transaction. However, using the SBA revenue guidelines, the majority of Medicare Part D plan sponsors would not be considered small entities as they represent major insurance companies with annual revenues of over $31.5 million. We also do not anticipate that the proposed requirement to use NPI in e-prescribing would have any effect on Medicare Part D plans, providers or dispensers as they are already using the NPI in HIPAA-covered transactions.
Section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a core-bed Metropolitan Statistical Area and has fewer than 100 beds. This proposed rule would not affect small rural hospitals because the program will be directed at outpatient prescription drugs covered under Medicare Part D and not drugs provided during a hospital stay. Prescription drugs provided during hospital stays are covered under Medicare as part of Medicare payments to hospitals. Therefore, for purposes of our obligations under section 1102(b) of the Act, we are not providing an analysis.
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct costs on State and local governments, preempts State law, or otherwise has Federalism implications. Every State allows for the electronic transmission of prescriptions. In recent years, many States have more actively legislated in this area. The scope and substance of this State activity, however, varies widely among the States.
(5) Relation to State Laws. The standards promulgated under this subsection shall supercede any State law or regulation that—
(A) Is contrary to the standards or restricts the ability to carry out this part; and
(B) Pertains to the electronic transmission of medication history and of information on eligibility, benefits, and prescriptions with respect to covered part D drugs under this part.
In the final rule (70 FR 67568 through 67594), we interpreted this section of the Act as preempting State law provisions that conflicted with Federal electronic prescription program drug requirements that are adopted under Medicare Part D. We viewed it as mandating Federal preemption of State laws and regulations that are either contrary to the Federal standards, or that restrict the ability to carry out (that is, stand as an obstacle to) the electronic prescription drug program requirements, and that also pertain to the electronic transmission of prescriptions or certain information regarding covered Medicare Part D drugs for Medicare Part D enrolled individuals.
Consequently, for a State law or regulation to be preempted under this express preemption provision, the State law or regulation would have to meet the requirements of both paragraphs (A) and (B). Furthermore, there would have to be a Federal standard adopted through rulemaking that creates a conflict for a State law to be preempted. This interpretation closely reflected the language of the statute, and it is consistent with the presumption against Federal preemption of State law
In the final rule at 70 FR 67568 through 67594, we acknowledged that some industry representatives believed that the Congress intended this preemption provision to be much broader. For instance, some expressed the position that this statutory provision preempts all State laws that would in any way restrict the development of e-prescribing for all providers and payors. This position was based on the belief that the Congress intended to preempt the field of e-prescribing through this provision in the MMA. It would have required an interpretation that the word “and” between paragraphs (A) and (B) was disjunctive, that is, that “and” means “or” in this context. Under this interpretation, the operative language would be “restricts the ability to carry out this part” in paragraph (A), which arguably would have enabled the standards and requirements adopted for the Federal electronic prescription drug program to preempt all State laws and regulations that restricted the Secretary's ability to carry out the goals of an electronic prescription drug program, even if they were not related to covered Medicare Part D drugs, or Medicare Part D covered individuals. They contended that some States had existing statutory or regulatory barriers that could impede the success of e-prescribing; for example, laws and regulations that were drafted with only paper prescriptions in mind, which may not be well-suited to e-prescribing applications.
We determined that this interpretation did not comport with the use of the word “contrary” in the statutory language which generally establishes “conflict preemption.” This interpretation would seem to render paragraph (B) virtually meaningless and serve to establish “field preemption.”
We invited public comment on our proposed interpretation of the scope of preemption, particularly with respect to relevant State statutes and regulations which commenters believe should be preempted, but would not under our proposed interpretation. We specifically asked for comment on whether this preemption provision applied only to transactions and entities that are part of an electronic prescription drug program under Medicare Part D or to a broader set of transactions and entities. We also asked for comment on whether this preemption provision applied to only electronic prescription transactions or to paper transactions as well. For the same reasons given above, we have determined that States would not incur any direct costs as a result of this proposed rule. However, as mandated by section 1860D-4(e) of the Act, and under the Executive Order, we are required to minimize the extent of preemption, consistent with achieving the objectives of the Federal statute, and to meet certain other conditions. We believe that, taken as a whole, this proposed rule would meet these requirements. We do seek comments from States and other entities on possible problems and on ways to minimize conflicts, consistent with achieving the objectives of the MMA, and will be undertaking outreach to States on these issues.
We have consulted with the National Association of Boards of Pharmacy directly and through participation in NCVHS hearings and we believe that the approach we suggested provides both States and other affected entities the best possible means of addressing preemption issues. We will consult further with States before issuing the final rule. This section constitutes the Federalism summary impact statement required under the Executive Order.
The objective of this regulatory impact analysis is to summarize the cost and benefits of implementing the standards we are proposing in this rule for the conversion from NCPDP SCRIPT 5.0 to NCPDP SCRIPT 8.1 at § 423.160(b)(1), the adoption of
According to 2006 CMS data, approximately 24 million beneficiaries were enrolled in a Medicare Part D plan, (either a stand-alone Prescription Drug Plan or a Medicare Advantage Drug Plan). Another 7 million retirees were enrolled in employer or union-sponsored retiree drug coverage receiving the Retiree Drug Subsidy (RDS); 3 million in Federal retiree programs such as TRICARE and the Federal Employees Health Benefits Plans (FEHBP) and 5 million receiving drug coverage from alternative sources, including 2 million who have coverage through the Veterans’ Administration. The breadth of Medicare's coverage suggests that e-prescribing under Medicare Part D could impact virtually every pharmacy and a large percentage of the physician practices in the country. Standards established for Medicare Part D beneficiaries will, as a matter of economic necessity, be adopted by vendors of e-prescribing and pharmacy software, and as a result, would extend to other populations unless they are manifestly unsuited for the purpose. However, we note again that e-prescribing is voluntary for both prescribers and dispensers under the Medicare Part D electronic prescribing program.
Our pilot testing and industry collaboration activities were partially intended to prevent the development of multiple, “parallel” e-prescribing environments, with their attendant incremental costs. In general, we attempted to avoid imposing an undue administrative burden on prescribing health care professionals, dispensing pharmacies and pharmacists. The standards we are proposing here, like the foundation standards adopted previously, are maintained by an accredited standards development organization. These proposed standards have been shown through pilot testing to work effectively with the foundation standards.
Because e-prescribing is voluntary, we anticipate that entities who currently do not now e-prescribe and who will not implement e-prescribing during the period reflected in the regulatory impact analysis will incur neither costs nor benefits.
Entities that do not now e-prescribe, but that will implement e-prescribing during the period reflected in the regulatory impact analysis will incur the costs and benefits associated with the foundation standards (which we discussed in the final rule at 70 FR 67568), but we do not claim either in this analysis. We assume that implementation of the NCPDP SCRIPT standards would not significantly affect the implementation cost; that is, the cost to implement the foundation standards and these two standards is not significantly higher than the cost of implementing the foundation standards alone. However, these entities could incur some additional costs for the purchase of new e-prescribing products that include these two transactions in the standard format. They would also incur the benefits of the two proposed standards. We solicit industry and other interested stakeholder comment and input on these issues.
We assume that since these standards are new and not currently deployed and implemented in vendor products, that entities do not exist that e-prescribe now and who have software that conducts these two transactions using the NCPDP SCRIPT standards.
Entities that e-prescribe now using a software product that cannot conduct the two transactions and cannot be upgraded to conduct them (for example, stand-alone Microsoft Word-based prescription writers) are not required to conduct the two new transactions, and if they decide not to conduct them, they would incur neither cost nor benefit. However, if they decide to upgrade their entire e-prescribing system to take advantage of the benefits of these new transactions, they would incur costs. However, we have no clear sense of how many entities would fall into this category.
Entities that e-prescribe now using a product that could be upgraded to conduct the two transactions would incur no cost or benefit if they decide not to upgrade. This would also apply to entities that e-prescribe now using a product that can conduct the two transactions using nonstandard (Non NCPDP SCRIPT) formats, but the functionality is not used. Based on our research, this category likely is the one in which most current e-prescribers fall. If they decide to upgrade, they would incur the cost of the upgrade (unless the upgrade is included in their maintenance agreement) and any testing costs, and would incur the benefits of the two transactions.
Entities that e-prescribe now using a product that can conduct the two transactions using nonstandard formats, and who use the transactions would have to upgrade. They would not enjoy all the benefits of the two new transactions since they would have already been performing them in some manner, but definitely would incur cost savings due to the increased interoperability of using the NCPDP SCRIPT standards. In fact, any entity engaging in e-prescribing would incur benefits due to increased interoperability, as the existence of standards simplifies data exchange product selection and testing. We solicit industry and other interested stakeholder comment and input on these issues.
In the e-prescribing final rule at 70 FR 67589, we also discussed the estimated start-up costs for e-prescribing for providers and/or dispensers. Based on industry input, we cited approximately $3,000 for annual support, maintenance, infrastructure and licensing costs. Physicians at that time reported paying user-based licensing fees ranging from $80 to $400 per month. For further discussion of the start-up costs associated with e-prescribing, see the regulatory impact analysis section of
In the November 7, 2005 final rule, we addressed the issues of privacy and security relative to e-prescribing in general. We noted that disclosures of protected health information (PHI) in connection with e-prescribing transactions would have to meet the minimum necessary requirements of the Privacy Rule if the entity is a covered entity (70 FR 6161). It is important to note that health plans, prescribers, and dispensers are HIPAA covered entities, and that these covered entities under HIPAA must continue to abide by the applicable HIPAA standards including these for privacy and security.
We continue to agree that privacy and security are important issues related to e-prescribing. Achieving the benefits of e-prescribing require the prescriber and dispenser to have access to patient medical information that may not have been previously available to them. Section 1860-D(e)(2)(C) of the Act requires that disclosure of patient data in e-prescribing must, at a minimum, comply with HIPAA's privacy and security requirements.
Although HIPAA standards for privacy and security are flexible and scalable to each entity's situation, they provide comprehensive protections. We will continue to evaluate additional standards for consideration as adopted e-prescribing standards. For further discussion of privacy and security and e-prescribing, refer to the final rule at 70 FR 67581 through 67582.
Because e-prescribing is voluntary for pharmacies, dispensers who do not currently conduct e-prescribing would not incur any costs related to any of the provisions of this rule. However, we recognize that costs would be incurred by those dispensers that currently conduct e-prescribing transactions, as well as those who voluntarily implement e-prescribing during the period reflected in our regulatory impact analysis. Industry estimates are that close to 100 percent of the nation's retail chain pharmacies are connected live to an e-prescribing network, with over 95 percent of those connected to networks capable of receiving and exchanging formulary and benefit and medication history data. This is in contrast to only 20 percent of independent pharmacies that are connected to e-prescribing networks.
The transaction using the NCPDP Formulary and Benefit Standard 1.0 is carried out between the plan and prescriber and, therefore, pharmacies will not incur any cost related to this transaction.
While the NCPDP SCRIPT 8.1 Medication History transaction supports communication between the dispenser and prescriber, its use is, nonetheless, voluntary for both. We assume for purposes of this analysis that the Medication History transaction will be carried out between the plan and prescriber, and therefore preliminarily conclude that pharmacies will not incur costs related to this transaction. We solicit industry and other interested stakeholder comment and input on this issue.
The modification of the NCPDP SCRIPT 5.0 foundation standard to NCPDP SCRIPT 8.1 at § 423.160(b)(1) will impact pharmacies. Pharmacies will have to assure that their software can accept prescription transactions using the 8.1 standard, and they will need to test with prescribers to assure that their electronic transactions are being received and can be processed. We believe there is little, if any, incremental costs associated with these activities. Software vendors are already implementing version 8.1 in their products, and we believe that any needed upgrades will be included in routine version upgrades. The number of current e-prescribers per pharmacy is small, and the testing process is not complicated. We believe that the implementation of the NPI will be accomplished as part of this transition. Prescribers and dispensers already use the NPI to conduct retail pharmacy drug claim transactions.
Medical practices, compared to pharmacies, face a different set of costs in implementing information systems for clinical care and financial management. Unlike pharmacies, where technology has become an important part of operations (especially for larger retail chains), many providers have been cautious in their adoption of health information technology. We assume that, based on industry estimates, anywhere from 5 to 18 percent of physicians are e-prescribing today
Plan sponsors will be required to support NCPDP SCRIPT 8.1 for the transactions listed at § 423.160(b)(1), the NCPDP Formulary and Benefit Standard 1.0, and the NCPDP SCRIPT 8.1 Medication History transaction. They will need to assure that their software can receive and create NCPDP Formulary and Benefit Standard 1.0 and NCPDP SCRIPT 8.1 Medication History transaction queries and responses, and that their internal systems and databases can supply the information needed to build the transaction. For example, they will need to be able to extract prescription claims history and format it according to the Medication History transaction in the NCPDP SCRIPT 8.1 Standard. We believe that many plans will have already implemented this functionality because the standards we are proposing are based on proprietary file transfer protocols developed by Rx-
We recognize that some Medicare Part D plans may need to make additional investments to support these standards, and we solicit industry and other interested stakeholder comment and input on this issue.
Because plans typically pay the per transaction network fees for eligibility transactions, which likely includes providing a formulary and benefit response as well as a medication history response, Medicare Part D plans will incur increased transaction costs for formulary and benefit and medication history transactions as the frequency in which these transactions are conducted electronically increases.
Through information provided by SureScripts and industry consultants, this transaction fee appears to range from 6 cents to 25 cents per transaction, with the midpoint being 15 cents. In 2006, RxHub, one of the nation's largest electronic prescription and prescription-related information routing networks, estimated that their transaction volume increased 50 percent, from 29 million in 2005 to more than 43 million in 2006. These transactions were real-time requests for patient eligibility and benefits, formulary and medication history information.
Based on CMS data we estimate that approximately 24 million Medicare beneficiaries received Medicare Part D benefits in 2006. (This figure excludes beneficiaries covered under the Retiree Drug Subsidy [RDS] program.) Approximately 825,000,000 claims (prescription drug events) were finalized and accepted for 2006 payment.
Based on CMS data, we estimate that approximately 24 million Medicare beneficiaries received Medicare Part D benefits in 2006. This figure reflects those Medicare beneficiaries enrolled in a Medicare Prescription Drug Plan (PDP) and/or a Medicare Advantage plan with Prescription Drug coverage (MA-PD), for which CMS has prescription drug event data. Approximately 825,000,000 claims (prescription drug events) were finalized and accepted for 2006 payment.
The annual percentage increase in the number of Medicare Part D prescriptions is estimated by CMS at 4.6 percent based on industry estimates (
Medicare Part D plan sponsors may negotiate the cost of e-prescribing transactions as part of the dispensing fees included in their pharmacy contracts, and account for these costs in their annual bids to participate in the Medicare Part D program. In these instances, inclusion of these costs may increase the cost of their Medicare Part D bids. However, we anticipate that these costs would be negated by the savings from an increased rate of conversion from brand name to generic prescriptions realized through utilization of the formulary and benefit transaction, which would more than offset the transaction costs, and solicit comments on this assumption.
Medicare Part D plan sponsors will not be affected by the proposals to modify the NCPDP SCRIPT 5.0 foundation standard to adopt NCPDP SCRIPT 8.1 for the transactions listed at 42 CFR 423.160(b)(1) because these transactions are conducted between prescribers and dispensers, and plans are not involved.
Medicare Part D plan sponsors will not be significantly affected by the proposal to adopt the NPI as a standard for use in e-prescribing transactions among the plan sponsor, prescriber, and the dispenser because the plans already use the NPI in HIPAA transactions, such as the retail pharmacy drug claim.
Vendors of e-prescribing software will incur costs to bring their products into compliance with these requirements. However, we consider the need to enhance functionality and comply with industry standards to be a normal cost of doing business that will be subsumed into normal version upgrade activities. Vendors may incur somewhat higher costs connected with testing activities but vendors should be able to address this potential workload on a flow basis. We believe these costs to be minimal, and solicit industry and other interested stakeholder comment and input on this issue.
The benefits of the proposed adoption of standards for formulary and benefits and medication history transactions take place over a multi-year timeframe. The benefits come in the form of beneficiary cost savings realized by increases in formulary adherence and/or generic versus brand name prescribing by physicians as a result of real-time access to formulary and benefits information, administrative (time and labor cost) savings through reduced call-backs on the part of both physicians and pharmacists, and a reduction of the occurrence of preventable adverse drug events (ADEs) among Medicare beneficiaries, reducing resultant health care costs.
We assume that, based on industry estimates, approximately 5 percent to 18 percent of group practices are e-prescribing today, and use that range for our assumptions. The formulary and benefit transaction will allow the
In 2006, 60 percent of Medicare Part D prescriptions in the first two quarters of the program were for generic drugs, and the remaining 40 percent were brand name prescription drugs. During a Medco study of physicians using e-prescribing technology (
We again apply the previously used 5 and 18 percent e-prescribing estimate range. Based on industry data, we assume the cost of a brand name prescription drug at $111.02 and the cost of a generic drug at $32.23.
While Medicare beneficiaries will be the most direct recipients of the benefit realized by the conversion of brand name to generic prescription drugs, the Medicare program will benefit as well. The Medicare program will save money as it will be paying for an increased number of lower-cost generic prescriptions versus higher-cost, brand-name prescription drugs, as outlined in Table 2, and we solicit comments on both beneficiary and Medicare program savings assumption. We calculate a cost savings of $95 million to $410 million.
The 2004 Medical Group Management Association (MGMA) survey entitled, “Analyzing the Cost of Administrative Complexity” (
Table 3 shows the administrative savings benefit to physicians and physician office staffs of performing formulary and benefit transactions electronically. CMS estimates the number of physicians in active practice who participated in the Medicare program in 2006 at 1,048,243.
Pilot site experience shows that, among prescribers or their agents who adopted e-prescribing, obtaining prior approvals, responding to refill requests, and resolving pharmacy callbacks were all done more efficiently with e-prescribing than before. Both groups perceived a greater than 50 percent reduction in time to manage refill requests and significant time savings in managing pharmacy call backs.
In Table 4, we draw a correlation from the potential administrative savings realized by physicians and staff for pharmacists. If each physician and their office staff save a total of 80 hours a year by using the formulary and benefit transaction and reducing the time spent on the phone with pharmacists, we assume that pharmacists are saving the equivalent amount of time by not making these calls. Since the MGMA survey assumes a pharmacist labor rate of $60 per hour, our model predicts that, at an annualized cost savings, pharmacists would realize an annualized cost benefit savings ranging from a low of $65 million to a high of $242 million at 25 percent implementation.
Automating the transmission of medication history information will simplify medication reconciliation through transitions in care and, in so doing, provide a safer and more effective health care system. Consumers will benefit from a safer medication delivery system, and greater convenience.
Although outpatient ADEs are difficult to estimate, current literature estimates that, as of 2005, there were 530,000 preventable ADEs for Medicare beneficiaries.
Brigham and Women's Hospital discovered in their analysis of ADEs, conducted as part of the CMS e-prescribing pilot project, that e-prescribing could reduce the risk of ADEs by approximately 50 percent.
Table 5 shows that the introduction of e-prescribing can potentially realize a cost savings of $13 million to $156 million from avoided ADEs. We solicit industry and other interested stakeholder comment and input on this issue. Besides lower rates of ADEs, the public will also realize other benefits related to the medication history function of e-prescribing. Through improved collaboration and communication between physicians and plans, patients will be more likely to have greater access to information which will encourage them to become more involved in their own treatment, which studies show decreases the probability of experiencing an ADE-related error.
This analysis has focused on the costs and benefits of two new e-prescribing standards, and the adoption of NCPDP SCRIPT 8.1 in place of version 5.0. We conclude that the cost of implementing these proposals is minimal, with quantifiable benefits reaped by pharmacies, providers, and beneficiaries. Over time, we expect that these groups will see average benefits in a range from $218.0 million to $863.9 million from the utilization of formulary and benefit and medication history transactions and the promulgation of these standards (Table 6).
In developing this proposed rule, we considered a range of alternatives. While required by statute to issue a regulation, we were not required to issue standards for specific functionality if appropriate standards were not available.
We considered not issuing an additional rule, and allowing the foundation standards to become the complete set. Since we had successful results from the pilot project, and the value added by the proposed additional standards is substantial, we chose to proceed. Given the existing foundation standards, our failure to proceed would not have averted many costs, but the lack of a medication history standard, for example, would have limited benefits, particularly for consumers.
We considered proposing the prior authorization and RxNorm standards for adoption, and elected not to do so. In both cases, the decision was based on the results of the pilot project. We expect that both standards, in their current forms and given the current state of the industry, would impose substantial additional costs while delivering marginal additional benefits. In the case of prior authorization, much of the additional cost is likely to be on the health plan side. We expect that software vendors will explore adding this functionality to provider-based systems and that health plans will adopt it as doing so becomes feasible.
In the case of the RxFill standard, we did not get a clear indication from the pilot project as to its added value.
We considered not proposing adoption of the NPI as a standard for Medicare Part D e-prescribing transactions, but, given the need for an identifier in e-prescribing transactions and the fact that large portions of the health care industry are required to use NPI as a HIPAA standard, we felt that adoption at this time was feasible and desirable.
As required by OMB Circular A-4 (available at
Administrative practice and procedure, Emergency medical services, Health facilities, Health maintenance organizations (HMO), Health professions, Incorporation by reference, Medicare, Penalties, Privacy, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble in this proposed regulation, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR part 423 as follows:
1. The authority citation for part 423 continues to read as follows:
Secs. 1102, 1860D-1 through 1860D-42, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395W-101 through 1395W-152, and 1395hh).
2. Section 423.160 is amended by—
A. Revising paragraph (b)(1).
B. Adding new paragraphs (b)(3), (b)(4), and (b)(5).
C. Revising paragraph (c).
The revisions and additions read as follows:
(b)
(i) Get message transaction.
(ii) Status response transaction.
(iii) Error response transaction.
(iv) New prescription transaction.
(v) Prescription change request transaction.
(vi) Prescription change response transaction.
(vii) Refill prescription request transaction.
(viii) Refill prescription response transaction.
(ix) Verification transaction.
(x) Password change transaction.
(xi) Cancel prescription request transaction.
(xii) Cancel prescription response transaction.
(3)
(4)
(5)
(c)
The publications approved for incorporation by reference and their original sources are as follows:
(1) National Council for Prescription Drug Programs, Incorporated, 9240 E. Raintree Drive, Scottsdale, AZ 85260-7518; Telephone (480) 477-1000; and FAX (480) 767-1042 or
(i) National Council for Prescription Drug Programs Prescriber/Pharmacist Interface SCRIPT Standard, Implementation Guide, Version 8, Release 1, October 2005, excluding the Prescription Fill Status Notification Transactions (and its three business cases; Prescription Fill Status Notification Transaction—Filled, Prescription Fill Status Notification Transaction—Not Filled, and Prescription Fill Status Notification Transaction—Partial Fill).
(ii) The National Council for Prescription Drug Programs Formulary and Benefits Standard, Implementation Guide, Version 1, Release 0, October 2005.
(iii) National Council for Prescription Drug Programs Telecommunication Standard Specification, Version 5, Release 1 (Version 5.1), September 1999 and equivalent National Council for the Prescription Drug Program (NCPDP) Batch Standard Batch Implementation Guide, Version 1, Release 1 (Version 1.1), January 2000 supporting Telecommunications Standard Implementation Guide, Version 5, Release 1 (Version 5.1) for the NCPDP Data Record in the Detail Data Record.
(2) Accredited Standards Committee, 7600 Leesburg Pike, Suite 430, Falls Church, VA 22043; Telephone (301) 970-4488; and fax: (703) 970-4488 or
(i) Accredited Standards Committee (ASC) X12N 270/271-Health Care Eligibility Benefit Inquiry and Response, Version 4010, May 2000, Washington Publishing Company, 004010X092 and Addenda to Health Care Eligibility Benefit Inquiry and Response, Version 4010A1, October 2002, Washington Publishing Company, 004010X092A1.
(ii) [Reserved].