Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2006-09-18 · Unknown

Unknown. Final

38,612 words·~176 min read·/register/2006/09/18/06-7731

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2006-09-18.xml --- 71 180 Monday, September 18, 2006 Contents Agriculture Agriculture Department See Forest Service Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Census Census Bureau NOTICES Meetings: Professional Associations Census Advisory Committee, 54610 E6-15456 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-15435 54659-54661 E6-15451 Centers Centers for Medicare & Medicaid Services NOTICES Medicare:
Part A premium; uninsured aged and certain disabled individuals who have exhausted other entitlement (2007 CY), 54661-54662 06-7710 Medicare: Inpatient hospital deductible and hospital and extended care services coinsurance amounts (2007 CY), 54662-54664 06-7711 Medicare Hospital Gainsharing Demonstration Program, 54664-54665 06-7738 Part B monthly actuarial rates, premium rates and annual deductible for calendar year 2007, 54665-54673 06-7709 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 54673 06-7727 Civil Civil Rights Commission NOTICES Meetings;
State advisory committees: North Carolina, 54610 E6-15488 Commerce Commerce Department See Census Bureau See Foreign-Trade Zones Board See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 54618 E6-15406 Customs Customs and Border Protection Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, E6-15448 54674-54676 E6-15450 E6-15455 Defense Defense Department See Navy Department NOTICES Arms sales notification; transmittal letter, etc., 54618-54627 06-7722 06-7723 Meetings:
Defense Acquisition University Board of Visitors, 54628 06-7724 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 54628-54629 E6-15407 Grants and cooperative agreements; availability, etc.: Postsecondary education— Fulbright-Hays Group Projects Abroad Program, 54629-54632 E6-15487 Energy Energy Department See Federal Energy Regulatory Commission FAA Federal Aviation Administration RULES Airworthiness standards:
Special conditions— Boeing Model 777-200 series airplanes, 54572-54576 E6-15380 Gulfstream Aerospace Corp. Model G150 airplanes, 54576-54578 E6-15401 Standard instrument approach procedures, 54578-54580 E6-15252 FDIC Federal Deposit Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 54654-54658 E6-15363 E6-15367 E6-15368 Federal Emergency Federal Emergency Management Agency NOTICES Agency information collection activities; proposals, submissions, and approvals, 54676-54677 E6-15463 Disaster and emergency areas:
Arizona, 54677-54678 E6-15465 Texas, 54678 E6-15464 National Flood Insurance Program: Private sector property insurers assistance, 54678-54679 E6-15462 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed: Californians for Renewable Energy, Inc., 54641 E6-15382 Electric rate and corporate regulation combined filings, 54641-54645 E6-15372 E6-15419 E6-15431 Environmental statements; availability, etc.: Puget Sound Energy, Inc., 54645 E6-15384 Environmental statements; notice of intent:
Gulfstream Natural Gas System, L.L.C., 54645-54647 E6-15386 Northern Natural Gas Co., 54647-54649 E6-15430 Hydroelectric applications, 54649-54653 E6-15375 E6-15427 E6-15428 Meetings: Columbia Gas Transmission Corp. et al., 54653-54654 E6-15424 Off-the-record communications, 54654 E6-15429 *Applications, hearings, determinations, etc.:* Columbia Gas Transmission Corp., 54632-54633 E6-15376 E6-15378 Coons, Rick D., 54634 E6-15425 Dauphin Island Gathering Partners, 54634 E6-15394 Eastern Shore Natural Gas Co., 54634-54635 E6-15396 Gulf South Pipeline Co., LP, E6-15390 54635-54636 E6-15398 International Paper Co., 54636 E6-15377 Iroquois Gas Transmission System, L.P., 54636-54637 E6-15395 Kern River Gas Transmission Co., 54637 E6-15397 Kinder Morgan Interstate Gas Transmission LLC, 54637 E6-15388 Portland General Electric Co., 54637-54638 E6-15385 Southern Natural Gas Co., 54638 E6-15393 Southern Natural Gas Co. et al., 54638-54639 E6-15399 Texas Gas Transmission, LLC, E6-15389 54639-54640 E6-15392 UGI LNG, Inc., 54640 E6-15379 Williston Basin Interstate Pipeline Co., 54640-54641 E6-15381 Federal Reserve Federal Reserve System NOTICES Agency information collection activities; proposals, submissions, and approvals, 54658 E6-15408 Banks and bank holding companies:
Formations, acquisitions, and mergers, 54658-54659 E6-15371 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 54710 06-7730 Fish Fish and Wildlife Service NOTICES Endangered and threatened species: Recovery plans— Newcomb's snail, 54682-54683 E6-15438 Yreka phlox, 54681-54682 06-7713 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* Hawaii, 54610 E6-15477 Kentucky NACCO Materials Handling Group, Inc.; forklift truck manufacturing facility, 54611 E6-15479 Michigan Pfizer, Inc.; pharmaceutical products manufacturing facilities, 54611-54612 E6-15480 North Carolina NACCO Materials Handling Group, Inc.; forklift truck manufacturing facility, 54612 E6-15481 Forest Forest Service NOTICES Environmental statements; notice of intent:
Grand Mesa, Uncompahgre, and Gunnison National Forests, CO, 54608-54609 E6-15473 Meetings: Southwest Oregon Provincial Advisory Committee, 54609 06-7712 GAO Government Accountability Office PROPOSED RULES Public availability of records; congressional correspondence disclosure and interview records withholding; exemptions, 54597 E6-15474 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See National Institutes of Health Homeland Homeland Security Department See Customs and Border Protection Bureau See Federal Emergency Management Agency See U.S.
Citizenship and Immigration Services Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 54680-54681 E6-15387 E6-15391 Industry Industry and Security Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 54612-54614 E6-15466 E6-15467 E6-15468 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See National Park Service See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service PROPOSED RULES Income taxes:
Elimination of country-by-country reporting to shareholders of foreign taxes paid by regulated investment companies, 54598-54601 06-7731 International International Trade Administration NOTICES Antidumping: Oil country tubular goods from— Mexico, 54614-54615 E6-15478 Labor Labor Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 54689 E6-15439 Land Land Management Bureau NOTICES Public land orders: New Mexico, 54683 E6-15414 Washington, 54683 E6-15409 Realty actions; sales, leases, etc.:
Idaho, 54683-54684 E6-15410 Wyoming, 54684-54685 E6-15411 Maritime Maritime Administration NOTICES Coastwise trade laws; administrative waivers: BRIER PATCH, 54708 E6-15373 NAMASTE, 54708-54709 E6-15374 National Credit National Credit Union Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 54689-54690 E6-15403 Meetings; Sunshine Act, 54690 06-7764 National Foundation National Foundation on the Arts and the Humanities NOTICES Meetings;
Sunshine Act, 54690-54691 06-7753 National Highway National Highway Traffic Safety Administration PROPOSED RULES Motor vehicle safety standards: Electronic stability control systems, 54712-54753 06-7598 NIH National Institutes of Health NOTICES Meetings: Alzheimer's disease conference, 54673 06-7732 National Institute of Mental Health, 54674 06-7733 NOAA National Oceanic and Atmospheric Administration NOTICES Committees; establishment, renewal, termination, etc.: Climate Change Science Program Product Development Committee for Synthesis and Assessment Product 5.3, 54615-54616 E6-15472 Meetings:
Gulf of Mexico Fishery Management Council, 54616 E6-15417 North Pacific Fishery Management Council, 54616-54617 E6-15416 Pacific Fishery Management Council, 54617-54618 E6-15418 National Park National Park Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 54685-54687 06-7717 06-7719 Environmental statements; notice of intent: Glacier Bay National Park, AK, 54687 06-7716 Environmental statements; record of decision: Denali National Park and Preserve, AK, 54687-54688 06-7714 Herbert Hoover National Historic Site, IA, 54688 06-7715 Navy Navy Department NOTICES Meetings:
Chief of Naval Operations Executive Panel, 54628 E6-15434 Nuclear Nuclear Regulatory Commission RULES Public records: Duplication fees; revised charges for copying publicly available documents, 54570-54572 E6-15420 NOTICES Environmental statements; availability, etc.: United Technologies Corp., 54693-54694 E6-15421 *Applications, hearings, determinations, etc.:* Florida Power & Light Co., 54691-54692 E6-15415 Personnel Personnel Management Office RULES Absence and leave: Creditable service, 54567-54570 E6-15423 Intergovernmental Personnel Act Mobility Program:
Federal Government and State, local, and Indian Tribal governments, higher education institutions, etc.; temporary employee assignments, 54565-54567 E6-15436 Public Public Debt Bureau See Fiscal Service SEC Securities and Exchange Commission RULES Staff accounting bulletins: Financial statement misstatements; quantification process, 54580-54582 E6-15457 NOTICES Agency information collection activities; proposals, submissions, and approvals, 54694-54696 E6-15453 E6-15458 E6-15459 Self-regulatory organizations; proposed rule changes:
NASDAQ Stock Market LLC, 54696-54698 E6-15441 E6-15446 NYSE Arca, Inc, 54698-54699 E6-15405 Philadelphia Stock Exchange, Inc., 54699-54702 E6-15402 E6-15404 SBA Small Business Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 54702-54704 E6-15482 E6-15485 E6-15486 Disaster loan areas: New Mexico, 54704-54705 E6-15369 Meetings: Audit and Financial Management Advisory Committee, 54705 E6-15361 Regulatory Fairness Boards— Region IX; hearing, 54705 E6-15362 Training conference and public meeting, 54705 E6-15370 Social Social Security Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 54705-54708 E6-15281 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions:
Colorado, 54583-54586 E6-15442 Kentucky, 54586-54589 E6-15443 Pennsylvania, 54590-54596 E6-15445 PROPOSED RULES Permanent program and abandoned mine land reclamation plan submissions: West Virginia, 54601-54607 E6-15444 Surface Surface Transportation Board NOTICES Railroad services abandonment: Norfolk Southern Railway Co., 54709-54710 E6-15264 Transportation Transportation Department See Federal Aviation Administration See Maritime Administration See National Highway Traffic Safety Administration See Surface Transportation Board Treasury Treasury Department See Fiscal Service See Internal Revenue Service MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 06-7720 54679-54680 06-7721 U.S. Institute of Peace United States Institute of Peace NOTICES Meetings; Sunshine Act, 54710 06-7744 Separate Parts In This Issue Part II Transportation Department, National Highway Traffic Safety Administration, 54712-54753 06-7598 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 180 Monday, September 18, 2006 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR PART 334 RIN 3206-AJ94 Temporary Assignments Under the Intergovernmental Personnel Act
(IPA)AGENCY: Office of Personnel Management. ACTION: Final. SUMMARY: The Office of Personnel Management
(OPM)is issuing final regulations on a plain language rewrite of its regulations regarding the Intergovernmental Personnel Act Mobility Program as part of a broader review of OPM regulations. The purpose of the revision is to make the regulations more readable. DATES: October 18, 2006. FOR FURTHER INFORMATION CONTACT: Darlene Phelps by telephone on 202-606-0960, by FAX on 202-606-2329, by TDD on 202-418-3134, or by e-mail at *employ@opm.gov.* SUPPLEMENTARY INFORMATION: OPM published for comment on August 22, 2003, (at 68 FR 50726) proposed regulations revising part 334 of title 5, Code of Federal Regulations, to make it more readable. The principal purpose of that proposed revision was to clarify the regulations. OPM also solicited comments on whether certain non-Federal entities define themselves as:
(1)An “instrumentality or authority of a State or States or local government” as cited in 5 U.S.C. 3371; or
(2)a “Federal-State authority or instrumentality” as cited in 5 U.S.C. 3371. Two agencies submitted comments on OPM's proposed part 334 regulations. Both agencies believed that the question and answer format in the proposed regulations required the reader to spend more, rather than less time, to locate information in part 334. After consideration of the agencies' comments, OPM dropped the question and answer format in this final redraft of part 334. One agency suggested we rename the title of this part by including a reference to the Intergovernmental Personnel Act. We agree the current title does not accurately describe the nature of assignments under this part, so we have renamed part 334 as “Temporary Assignments under the Intergovernmental Personnel Act (IPA)”. The other agency suggested OPM provide definitions of the terms listed in § 334.102 rather than offer readers the statutory citations where these terms are defined. We agree having the definitions in the regulation improves the readability of part 334, so we have added the definitions along with their statutory citations in § 334.102. The other agency asked that OPM clarify whether the definition of “Institution of higher education” includes graduate level programs. OPM agrees clarification is necessary and we have revised the definition in § 334.102 to include longstanding OPM policy that this definition includes both undergraduate and graduate study. The same agency also asked that OPM set a specific time period for maintaining copies of each written agreement that documents the obligations and responsibilities of each party to an IPA assignment. OPM believes that each agency should have the flexibility to best determine the appropriate time period for retaining copies of its written agreements under this part. We have modernized the final regulations, in § 334.106(b), to allow agencies the flexibility for establishing the time period for retaining copies of its written agreements under the IPA program. The second agency asked that OPM clarify the IPA participation restriction in § 334.104(c) that a Federal agency may not send or receive an individual on an IPA assignment for more than four continuous years without at least a 12-month return to duty back to the organization where the individual was employed before the IPA assignment. OPM believes that the present language in § 334.104(c) sufficiently states OPM's intention that an individual may not participate on an assignment under this part for more than four continuous years without a minimum 12-month return to duty back to the individual's pre-assignment employing organization. The same agency also asked OPM to include a statement in § 334.102(c) clarifying that “successive assignments with a break of no more than 60 calendar days will be regarded as continuous service” per guidance on OPM's Web site. For the convenience of the reader we have added the statement pertaining to successive assignments of at least 60 calendar days to § 334.102(c), which is consistent with longstanding OPM policy. E.O. 12866 Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. Lists of Subjects in 5 CFR Part 334 Colleges and universities, Government employees, Indians, Intergovernmental relations. U.S. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is revising 5 CFR part 334 to read as follows: PART 334—TEMPORARY ASSIGNMENTS UNDER THE INTERGOVERNMENTAL PERSONNEL ACT
(IPA)Sec. 334.101 Purpose. 334.102 Definitions. 334.103 Requirements for approval of instrumentalities or authorities of State and local governments and “other organizations.” 334.104 Length of assignment. 334.105 Obligated service requirement. 334.106 Requirement for written agreement. 334.107 Termination of agreement. 334.108 Reports required. Authority: 5 U.S.C. 3376; E.O. 11589, 3 CFR 557 (1971-1975) § 334.101 Purpose. The purpose of this part is to implement title IV of the Intergovernmental Personnel Act
(IPA)of 1970 and title VI of the Civil Service Reform Act. These statutes authorize the temporary assignment of employees between the Federal Government and State, local, and Indian tribal governments, institutions of higher education and other eligible organizations. § 334.102 Definitions. In this part: *Assignment* means a period of service under chapter 33, subchapter VI of title 5, United States Code; *Employee,* for purposes of participation in this program, means an individual serving in a Federal agency under a career or career-conditional appointment, including career appointees in the Senior Executive Service, individuals under appointments of equivalent tenure in excepted service positions (including, *e.g.* , the Presidential Management Fellows Program, the Federal Career Intern Program, the Student Career Experience Program, and Veterans Recruitment Appointments (VRA)), or an individual employed for at least 90 days in a career position with a State, local, or Indian tribal government, institution of higher education, or other eligible organization; *Federal agency* as defined in 5 U.S.C. 3371(3) means an Executive agency, military department, a court of the United States, the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Printing Office, the Congressional Budget Office, the United States Postal Service, the Postal Rate Commission, the Office of the Architect of the Capitol, the Office of Technology Assessment, and such other similar agencies of the legislative and judicial branches as determined appropriate by the Office of Personnel Management; *Indian tribal government* as defined in 5 U.S.C. 3371(2)(c) means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village as defined in the Alaska Native Claims Settlement Act (85 Stat. 668), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians and includes any tribal organization as defined in section 4(c) of the Indian Self-Determination and Education Assistance Act; *Institution of higher education* means a domestic, accredited public or private 4-year and/or graduate level college or university, or a technical or junior college; *Local government* as defined in 5 U.S.C. 3371(2)(A) and
(B)means:
(1)Any political subdivision, instrumentality, or authority of a State or States; and
(2)Any general or special purpose agency of such a political subdivision, instrumentality, or authority; *Other organization* as defined in 5 U.S.C. 3371(4) means:
(1)A national, regional, Statewide, area wide, or metropolitan organization representing member State or local governments;
(2)An association of State or local public officials;
(3)A nonprofit organization which offers, as one of its principal functions, professional advisory, research, educational, or development services, or related services, to governments or universities concerned with public management; or
(4)A federally funded research and development center. *State* as defined in 5 U.S.C. 3371(1) means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, the Northern Mariana Islands, and a territory or possession of the United States; an instrumentality or authority of a State or States; and a Federal-State authority or instrumentality. § 334.103 Requirements for approval of instrumentalities or authorities of State and local governments and “other organizations.”
(a)Organizations interested in participating in the IPA mobility program as an instrumentality or authority of a State or local government or as an “other organization” as set out in this part must have their eligibility certified by the Federal agency with which they are entering into an assignment.
(b)Written requests for certification must include a copy of the organization's:
(1)Articles of incorporation;
(2)Bylaws;
(3)Internal Revenue Service nonprofit statement; and
(4)Any other information which indicates that the organization has as a principal function the offering of professional advisory, research, educational, or development services, or related services to governments or universities concerned with public management.
(c)Federally funded research and development centers which appear on a master list maintained by the National Science Foundation are eligible to participate in the program.
(d)An organization denied certification by an agency may request reconsideration by the Office of Personnel Management (OPM). § 334.104 Length of assignment.
(a)The head of a Federal agency, or his or her designee, may make an assignment for up to 2 years, which may be extended for up to 2 more years if the parties agree.
(b)A Federal agency may not send an employee on an assignment if that person is a Federal employee and has participated in this program for more than a total of 6 years during his or her Federal career. OPM may waive this restriction upon the written request of the agency head, or his or her designee.
(c)A Federal agency may not send or receive an employee on an assignment if the employee has participated in this program for 4 continuous years without at least a 12-month return to duty with the organization from which the employee was originally assigned. Successive assignments with a break of no more than 60 calendar days will be regarded as continuous service under the mobility authority. § 334.105 Obligated service requirement.
(a)A Federal employee assigned under this part must agree, as a condition of accepting an assignment, to serve with the Federal Government upon completion of the assignment for a period equal to the length of the assignment.
(b)If the employee fails to carry out this agreement, he or she must reimburse the Federal agency for its share of the costs of the assignment (exclusive of salary and benefits). The head of the Federal agency, or his or her designee, may waive this reimbursement for good and sufficient reason. § 334.106 Requirement for written agreement.
(a)Before the assignment begins, the assigned employee and the Federal agency, the State, local, Indian tribal government, institution of higher education, or other eligible organization must enter into a written agreement recording the obligations and responsibilities of the parties, as specified in 5 U.S.C. 3373-3375.
(b)Federal agencies must maintain a copy of each assignment agreement form established under this part, including any modification to the agreement. The agency may determine the appropriate time period for retaining copies of its written agreements. § 334.107 Termination of agreement.
(a)An assignment may be terminated at any time at the request of the Federal agency or the State, local, Indian tribal government, institution of higher education, or other organization participating in this program. Where possible, the party terminating the assignment prior to the agreed upon date should provide 30-days advance notice along with a statement of reasons, to the other parties to the agreement.
(b)Federal assignees continue to encumber the positions they occupied prior to assignment, and the position is subject to any personnel actions that might normally occur. At the end of the assignment, the employee must be allowed to resume the duties of the employee's position or must be reassigned to another position of like pay and grade.
(c)An assignment is terminated automatically when the employer-employee relationship ceases to exist between the assignee or original employer.
(d)OPM has the authority to direct Federal agencies to terminate assignments or take other corrective actions when OPM finds assignments have been made in violation of the requirements of the Intergovernmental Personnel Act or this part. § 334.107 Reports required. A Federal agency which assigns an employee to or receives an employee from a State, local, Indian tribal government, institution of higher education, or other eligible organization in accordance with this part must submit to OPM such reports as OPM may request. [FR Doc. E6-15436 Filed 9-15-06; 8:45 am] BILLING CODE 6325-39-P OFFICE OF PERSONNEL MANAGEMENT 5 CFR PART 630 RIN 3206-AK80 Absence and Leave; Creditable Service AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management is issuing final regulations to provide Federal agencies with the authority to grant a newly appointed or reappointed employee credit for prior work experience that otherwise would not be creditable for the purpose of determining the employee's annual leave accrual rate. An agency may use this authority to recruit an individual with the skills and experience necessary to achieve an important agency mission or performance goal. DATES: The regulations are effective on October 18, 2006. FOR FURTHER INFORMATION CONTACT: Carey Johnston by telephone at
(202)606-2858, by fax at
(202)606-0824, or by e-mail at *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: On April 29, 2005, the Office of Personnel Management
(OPM)published interim regulations (70 FR 22245) to implement section 202(a) of the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004), hereafter referred to as “the Act.” Section 202(a) added subsection
(e)to 5 U.S.C. 6303, which provides OPM with the authority to prescribe regulations to permit an agency to grant a newly appointed or reappointed employee service credit for prior work experience that otherwise would not be creditable for the purpose of determining his or her annual leave accrual rate. An employee may receive credit if
(1)The experience was obtained in a position having duties that directly relate to the duties of the position to which he or she is being appointed, and
(2)it is determined by the head of the agency that crediting service to provide a higher annual leave accrual rate is necessary to recruit an individual with the skills and experience necessary to achieve an important agency mission or performance goal. The 60-day public comment period on the interim regulations ended on June 28, 2005. During the comment period, OPM received comments from 1 Federal labor organization, 5 Federal agencies, and 20 individuals. Three commenters expressed the view that the effective date of an agency's authority to provide credit for non-Federal work experience should be the date the Act was signed (October 30, 2004). Section 6303(e)(1) of title 5, United States Code, provides that, not later than 180 days after enactment of the Act, OPM must prescribe regulations to permit an agency to provide service credit to a newly appointed or reappointed employee for prior work experience that otherwise would not be creditable for the purpose of determining his or her annual leave accrual rate. The earliest date this new authority could become effective was the effective date of OPM's regulations— *i.e.* , April 28, 2005. Several commenters objected to the interim regulations because current Federal employees may not receive credit for non-Federal work experience for the purpose of redetermining their annual leave accrual rate. The commenters believe the new authority provides an unfair advantage to newly appointed employees, since current employees must have 3 years or more of creditable service before accruing 6 hours of annual leave each pay period and 15 years or more of creditable service before accruing 8 hours of annual leave each pay period. One commenter thought it was unfair that this provision applies only to future employees, while section 202(b) of the Act provides an 8-hour annual leave accrual rate each pay period to current and future members of the Senior Executive Service
(SES)and employees in senior-level and scientific or professional positions. Creditable service for non-Federal work experience may not be granted to current Federal employees because section 202(c) of the Act prohibits employees who were employed before the effective date of OPM's regulations ( *i.e.* , April 28, 2005) from receiving such credit. Two agencies asked whether there are any exceptions to the prohibition on crediting non-Federal work experience to reappointed employees who held civil service positions within 90 days before their reappointment. OPM may not grant any exceptions because 5 U.S.C. 6303(e)(3) prohibits a reappointed employee who held an appointment in the civil service within the previous 90-day period from receiving service credit for non-Federal work experience. Senate Report 108-223 (January 27, 2004) on the Act stated that the law would “reform the annual leave accrual policy for new mid-career federal employees” so that agencies have an enhanced capability to recruit these individuals (pages 9). The Senate Report explained that “individuals with substantial private sector experience may be hesitant to enter government service if they have to surrender a considerable amount of vacation time” (page 9). OPM's regulations are consistent with this expression of congressional intent that this tool be available to agencies to recruit individuals with the skills and experience necessary to achieve an important agency mission or performance goal. The fact that current employees accepted Federal employment without receiving this new leave benefit clearly demonstrates that a higher annual leave accrual rate was not necessary to recruit them. An agency recommended revising 5 CFR 630.205(a) by replacing “a newly appointed employee” with “an employee receiving his or her first appointment (regardless of tenure) as a civilian employee of the Federal Government.” The agency explained that the recommended revision would align the language in § 630.205(a) with the language in 5 CFR 531.211(a) covering pay setting for new appointees. We agree and have revised § 630.205(a) accordingly. Another agency recommended that OPM define a *newly appointed* employee to mean an employee who is newly appointed to a permanent position in the Federal service. We have not adopted this recommendation. Any employee who has an established regular tour of duty, including an employee appointed to a temporary position, may earn annual leave, with one limited exception. Under 5 U.S.C. 6303(b), a newly appointed employee whose appointment is limited to fewer than 90 days is not entitled to accrue annual leave. However, if the appointment is extended or the employee receives one or more successive appointments without a break in service, the employee becomes eligible to accrue annual leave on the 90th day of employment, and in addition, the employee is entitled to the annual leave that would have accrued during the initial 90-day period. A decision to provide creditable service for prior work experience must be made when an employee is newly appointed to a Federal position. Under § 630.205(a)(1), an agency may provide credit for service that otherwise would not be creditable under 5 U.S.C. 6303(a) for the purpose of determining the annual leave accrual rate of an employee if the head of the agency or his or her designee determines that the skills and experience the employee possesses are essential to the new position and were acquired through performance in a non-Federal position having duties that directly relate to the duties of the position to which the employee is being appointed. An agency recommended that OPM remove the term *non-Federal* in § 630.205(a)(1) and throughout the regulations, since the law does not require a prior position to be a *non-Federal* position. Although the law does not require a position to be a non-Federal position, we believe most work experience that will now be considered for credit will be work performed in a *non-Federal* position. For administrative convenience, we refer to this prior work experience in this Supplementary Information as *non-Federal* work experience. However, we have revised the regulations at § 630.205 to remove the term *non-Federal* . An agency asked whether the head of the agency or designee may redelegate the authority to grant service credit for non-Federal work experience. The head of an agency may authorize a designee to redelegate this authority to a lower level. The same agency asked whether an agency may change its initial determination to provide service credit if, for example, the agency learns after the employee enters on duty that the employee was fired from the position upon which the creditable service was based. Section 6303(e)(2) of title 5, United States Code, provides that credit for prior work experience is granted to the employee upon the effective date of his or her initial appointment or reappointment to the agency and remains creditable for annual leave accrual purposes thereafter unless the employee fails to complete 1 full year of continuous service with the appointing agency. Therefore, an agency may not reduce the amount of creditable service under the circumstances described. However, an agency may require, as part of the written documentation required by § 630.205(d), that an employee provide written self-certification that he or she was not fired from the position upon which the creditable service is based. Another agency asked whether an employee may appeal an agency's decision not to provide creditable service to OPM. Under § 630.205(a), the authority to provide service credit for non-Federal work experience rests solely with the head of the agency or his or her designee. An agency's determination not to provide creditable service under § 630.205(a) is not appealable to OPM. However, a claim that such decision constitutes a prohibited personnel practice under 5 U.S.C. 2302 could be filed with the Office of Special Counsel. An agency recommended that a definition of *agency* be added to the regulations. We agree and have added a definition of *agency* in § 630.201. Several agencies requested more specific guidance on
(1)Determining whether an individual possesses the skills and experience essential to the new position,
(2)determining whether the duties performed in the prior position directly relate to the position to which the employee is being appointed,
(3)determining whether providing service credit to an employee is necessary to achieve an important agency mission or performance goal, and
(4)determining what kind and how much directly related experience should be credited. An agency recommended that the term *important agency mission* be defined to mean a mission or function that is central or core to the purpose of the agency and that the term *performance goal* be defined to mean a goal or objective assigned to a Department or agency by Presidential directive, Executive order or other official issuance or through laws passed by Congress. Two commenters expressed concern that the lack of specific guidance in the regulations may result in widely divergent implementation and recruitment strategies among Federal agencies. A Federal labor organization stated that it anticipates this new leave benefit will be applied equally to all eligible candidates and that the conditions prescribed for eligibility appear to be fair to newly appointed and reappointed employees. OPM has delegated to the head of each agency or his or her designee the sole discretion to make these determinations consistent with the law and OPM's regulations. Because it is likely that each agency will tailor its plan for using this authority to meet its individual workforce and mission needs, we do not believe it would be constructive to require a uniform, Governmentwide approach, since doing so may inappropriately limit the use of an agency's authority. The amount of service credit that may be granted may not exceed the actual amount of service during which an employee performed duties directly related to the position to which he or she is being appointed. (See § 630.205(c).) By enhancing the annual leave accrual policy, Congress has provided an additional tool to assist agencies in strategically aligning their human resources management policies with their goals and missions. Agencies are cautioned to use this new leave benefit for the sole purpose for which it was established— *i.e.* , to recruit an individual with the skills and experience necessary to achieve an important agency mission or performance goal. Agencies should not provide creditable service for non-Federal work experience or experience in a uniformed service across-the-board for all new hires. Three commenters asked whether service credit may be provided for non-paid volunteer work experience. Another commenter questioned whether service may be credited for previously noncreditable work experience in quasi-Federal organizations. Another commenter asked whether service may be credited for a combination of prior work experience and experience in a uniformed service. Under 5 U.S.C. 6303(e)(1), an agency may provide service credit for prior work experience if the agency determines that the work experience was obtained in a position having duties that directly relate to the duties of the position to which the employee is being appointed. Therefore, agencies may consider non-paid volunteer work, formerly noncreditable work experience in a quasi-Federal organization, or a combination of prior work experience and experience in a uniformed service as creditable for this purpose. Section 630.205(d) requires an employee to provide written documentation, acceptable to the agency, of his or her non-Federal work experience. An agency recommended that OPM require agencies to make the determination to approve an employee's qualifying work experience before the employee enters on duty. We agree and have revised § 630.205(d) to include this requirement. The same agency asked whether a resumé or employment application is sufficient. Each agency is responsible for determining what constitutes acceptable written documentation of an employee's qualifying prior work experience. However, the written documentation must be sufficient to allow an agency to make the determination that the employee's work experience was obtained in a position having duties that directly relate to the duties of the position to which the employee is being appointed. A resumé or employment application may be acceptable if it provides sufficient information for an agency to make this determination. An agency recommended that OPM revise § 630.205(d) to require an employee to provide written documentation from the military before crediting uniformed service. This would be consistent with OPM's requirement that an employee or applicant submit documentation from the military to credit uniformed service for other purposes, such as creditable service for annual leave accrual under 5 U.S.C. 6303(a) and veteran's preference in hiring. We agree and have revised § 630.205(d) to include this requirement. An individual recommended that OPM require Standard Form
(SF)813, Verification of A Military Retiree's Service in Nonwartime Campaigns or Expeditions, to be used to verify military service. We disagree. Agencies use SF 813 to request verification of a retiree's military service performed in a nonwartime campaign or expedition for which a badge or medal was authorized in order to credit such service for determining an annual leave accrual rate under 5 U.S.C. 6303(a) and applying reduction-in-force procedures. However, SF 813 does not provide sufficient information on the duties performed by the retiree. An agency asked whether it must document the reasons for not giving service credit to an employee. There is no statutory or regulatory requirement to document the reasons for not crediting prior work experience under § 630.205(a). However, if such a decision is appealed as a prohibited personnel action, the agency may be well-served by contemporaneous documentation that the decision was made consistent with an established agency policy and criteria. Section 630.205(e) of the interim regulations requires each agency to establish documentation and recordkeeping procedures sufficient to allow reconstruction of each action. An agency asked whether the Guide to Personnel Recordkeeping will be updated to include various documents provided by the employee for right-side retention to allow reconstruction of the service computation date when additional service credit has been granted. The Guide to Personnel Recordkeeping already requires documentation that supports an employee's creditable service to be retained on the permanent (right) side of the official personnel folder. Section 630.205(f) provides that credit for prior work experience or experience in a uniformed service is granted to the employee and remains creditable for annual leave accrual purposes thereafter unless the employee fails to complete 1 full year of continuous service with the appointing agency. An agency recommended that an employee who transfers to a position in the same line of work for which he or she received creditable service should retain that service even though the position is in a different agency. We have not adopted this recommendation. Section 6303(e)(2)(B) of title 5, United States Code, allows service to remain creditable unless the employee fails to complete a full year of continuous service with the agency. In addition, House Report 108-733 (October 5, 2004) states that “[o]nce credited upon the effective date of the employee's appointment, the past experience remains creditable for this purpose unless the employee does not complete one continuous year of service with the *same* agency” [page 16, emphasis added]. Section 630.205(g) provides that if an employee separates from Federal service or transfers to another agency before completing 1 full year of continuous service with the appointing agency, the agency must subtract the creditable service and redetermine the employee's annual leave accrual rate under 5 U.S.C. 6303(a). All unused annual leave accrued and accumulated by an employee as a result of receiving service credit for non-Federal work experience or experience in a uniformed service remains to the credit of the employee and must be transferred to the new agency under § 630.501 or liquidated by a lump-sum payment under § 550.1205, as appropriate. A commenter asked whether employees should be required to sign a service agreement. Employees are not required to sign a service agreement for this purpose. When an agency provides service credit, the agency will use remark code B73 or B74 on the SF-50 (Notification of Personnel Action) that effects the appointment. The text of these remark codes notifies the employee that the service will remain creditable unless the employee fails to complete 1 full year of continuous service with the appointing agency. Another commenter expressed concern about the increased cost of paying a lump-sum payment for accrued and accumulated annual leave under 5 CFR part 550, subpart L, for employees who separate from Federal service prior to completing 1 year of continuous service. The commenter recommended that employees who do not complete 1 full year of service be required to repay the Government for the hours of annual leave they accrued during their service. Section 6303(e)(2)(B) allows an agency to reduce the amount of creditable service granted the employee if he or she does not fulfill the 1-year service requirement. The law does not allow an agency to reduce the amount of annual leave accrued by the employee as a result of the creditable service or require the employee to repay the Government for any annual leave accrued during this period. A commenter asked whether a gaining agency may correct an employee's annual leave accrual rate if the agency discovers an error made by the losing agency in providing the employee credit for prior work experience. The gaining agency must coordinate any proposed corrections with the losing agency. However, the losing agency makes the final determination on whether a correction is appropriate. An agency asked whether an employee's service credit for prior work experience would be reduced for periods during which the employee is in a nonpay status— *e.g.* , leave without pay. The amount of creditable service is not affected by extended periods of leave without pay. However, since an employee must remain with the appointing agency for 1 full continuous year for the service to remain creditable, the completion date of the 1-year period must be extended by any period of leave without pay. If an employee's absence is due to active duty uniformed service or a compensable injury, the period of leave without pay must be credited as though the employee had remained in a pay and duty status. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act 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. List of Subjects in 5 CFR 630 Government employees. Office of Personnel Management. Linda M. Springer, Director Accordingly, the interim rule amending 5 CFR part 630, which was published at 70 FR 22245 on April 29, 2005, is adopted as final with the following changes: PART 630—ABSENCE AND LEAVE 1. The authority citation for part 630 is revised to read as follows: Authority: 5 U.S.C. 6311; § 630.205 also issued under Pub. L. 108-411, 118 Stat 2312; § 630.301 also issued under Pub. L. 103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; § 630.303 also issued under 5 U.S.C. 6133(a); §§ 630.306 and 630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337, 108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108 Stat. 2423; 630.501 and subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L 100-566, and Pub. L. 103-103; subpart K also issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92. Subpart B—Definitions and General Provisions for Annual and Sick Leave 2. In § 630.201, a definition of *agency* is added in alphabetical order to read as follows: § 630.201 Definitions. *Agency* means an Executive agency, as defined in 5 U.S.C. 105, and any other entity of the Federal Government that employs officers and employees to whom subchapter I of chapter 63 of title 5, United States Code, applies. 3. In § 630.205, the section heading and paragraphs (a), introductory text; (a)(1); (c); (d); and
(f)are revised to read as follows: § 630.205 Credit for Prior Work Experience and Experience in a Uniformed Service for Determining Annual Leave Accrual Rate.
(a)The head of an agency or his or her designee may, at his or her sole discretion, provide credit for service that otherwise would not be creditable under 5 U.S.C. 6303(a) for the purpose of determining the annual leave accrual rate of an individual receiving his or her first appointment (regardless of tenure) as a civilian employee of the Federal Government or an employee who is reappointed following a break in service of at least 90 calendar days after his or her last period of civilian Federal employment. The head of the agency or his or her designee must determine that the skills and experience the employee possesses are—
(1)Essential to the new position and were acquired through performance in a prior position having duties that directly relate to the duties of the position to which he or she is being appointed; and
(c)When the head of an agency or his or her designee makes a determination to provide service credit for prior work experience or active duty in the uniformed services under paragraph
(a)or
(b)of this section, he or she must determine the amount of service that will be credited. The amount of service credited may not exceed the actual amount of service during which the employee performed duties directly related to the position to which the employee is being appointed.
(d)An employee must provide written documentation, acceptable to the agency, of his or her prior work experience. An employee must provide written documentation from the military, acceptable to the agency, of his or her uniformed service. The head of an agency or his or her designee must make the determination to approve an employee's qualifying prior work experience before the employee enters on duty. (f)(1) Credit for prior work experience or experience in a uniformed service under paragraphs
(a)and
(b)of this section is granted to the employee upon the effective date of his or her initial appointment to the agency or reappointment after a 90-day break in service and remains creditable for annual leave accrual purposes thereafter unless the employee fails to complete 1 full year of continuous service with the appointing agency.
(2)If an employee is placed in a leave without pay status during the 1-year period of continuous service required by paragraph (f)(1) of this section, the 1-year period of continuous service must be extended by the amount of time in a leave without pay unless—
(i)The employee separates or is placed in a leave without pay status to perform service in the uniformed services (as defined in 38 U.S.C. 4303 and 5 CFR 353.102) and later returns to civilian service through the exercise of a reemployment right provided by law, Executive order, or regulation; or
(ii)The employee separates or is placed in a leave without pay status because of an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81 and later recovers sufficiently to return to work. [FR Doc. E6-15423 Filed 9-15-06; 8:45 am] BILLING CODE 6325-39-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 9 RIN 3150-AH66 Charges for Reproducing Records AGENCY: Nuclear Regulatory Commission. ACTION: Final rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is revising its charges for copying publicly available documents by the copy service at the NRC's Public Document Room (PDR). The revised charges for copying publicly available documents are listed in § 9.35 Duplication fees. This document is necessary to inform the public of these changes to the NRC's regulations. DATES: *Effective Date:* October 18, 2006. FOR FURTHER INFORMATION CONTACT: Anna McGowan, Chief, Technical Information Center Section, Office of Information Services, Nuclear Regulatory Commission, Washington, DC 20555-0001, 301-415-7204, or 1-800-397-4209 (toll-free). SUPPLEMENTARY INFORMATION: The NRC is revising its charges for copying publicly available documents by the copy service at the NRC's PDR. The PDR retains a copy service to reproduce for a fee publicly available documents, regardless of format. Since the NRC's Agencywide Documents Access and Management System (ADAMS) was implemented in November 2000, making recently released documents available in full text online, there has been a significant reduction in the volume of documents being reproduced. The total volume of pages copied has decreased from over 1,600,000 in FY2000 to 529,600 in FY2003 and 321,000 pages in FY2004. Because the copy service contract is at no cost to the government, the contractor must provide all supplies and equipment. Due to this reduction in the total volume of pages copied, the copying fees charged by the NRC's contractor have changed. The NRC believes that the revised prices, which were the result of a competitive solicitation process, are reasonable and in line with the prices charged by other Federal agencies. The contractor is able to accept orders from the PDR reference staff via telephone (301-415-4737), fax (301-415-3548), standard mail, or e-mail ( *pdr@nrc.gov* ), and from requesters in the PDR Reading Room located at NRC Headquarters, One White Flint North, 11555 Rockville Pike, Room O-1F23, Rockville, Maryland. The ADAMS retrieval system provides text and image files of NRC's public documents. The documents may be accessed through the NRC's Public Electronic Reading Room on the Internet *http://www.nrc.gov/reading-rm/adams.html.* If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov* . The Freedom of Information Act
(FOIA)requires each federal agency covered by the Act to promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to processing requests for agency records. 5 U.S.C. 552(a)(4)(A)(i). The Commission published a proposed rule containing a schedule of fees for public comment on August 6, 1987 (52 FR 29196). The Commission received six comments on the proposed rule (52 FR 49351; December 31, 1987). All six comments were addressed in the final rule establishing the fee schedule (52 FR 49351-54; December 31, 1987). The revisions to the copying charges contained in this amendment are not intended to affect any rights under the FOIA. As explained above, the revisions are necessary to update the Commission's procedures to reflect current copying charges, which have changed due to the reduction in the volume of documents being reproduced. The NRC believes that the revised fees, which were the result of a competitive solicitation process, represent reasonable standard charges for document duplication. Because this amendment deals solely with agency practice and procedure, the NRC has determined that the notice and comment provisions under the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(A). Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1) and (2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0043. Public Protection Notification If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection. Regulatory Analysis A regulatory analysis has not been prepared for this final rule because the final rule makes only minor conforming changes to the regulations that reference Section 202 of the Energy Reorganization Act and minor changes to other regulations. Backfit Analysis The NRC has determined that these amendments do not involve any provisions which would impose backfits as defined in 10 CFR 50.109(a)(1); therefore a backfit analysis is not necessary. Congressional Review Act In accordance with the Congressional Review Act, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB. List of Subjects in 10 CFR Part 9 Criminal penalties, Freedom of information, Privacy, Reporting and record keeping requirements, the Sunshine Act. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 9. PART 9—PUBLIC RECORDS 1. The authority citation for part 9 continues to read as follows: Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Subpart A also issued 5 U.S.C. 552; 31 U.S.C. 9701; Pub. L. 99-570. Subpart B is also issued under 5 U.S.C. 552a. Subpart C is also issued under 5 U.S.C. 552b. 2. Section 9.35 is amended by removing paragraph (a)(2), redesignating paragraphs (a)(3), (a)(4), and (a)(5), as (a)(2), (a)(3), and (a)(4), respectively, and revising paragraph (a)(1) to read as follows: § 9.35 Duplication fees. (a)(1) The charges by the duplicating service contractor for the duplication of records made available under § 9.21 at the NRC Public Document Room (PDR), One White Flint North, 11555 Rockville Pike, Room O-1F23, Rockville, Maryland, may be found on the NRC's Web site at *http://www.nrc.gov/reading-rm/pdr/copy-service.html* or by calling the PDR at 1-800-397-4209 or 301-415-4737, by e-mail *pdr@nrc.gov* and are as follows:
(i)Paper-to-paper reproduction is $0.30 per page for standard size (up to and including 11″ x 14″ reduced). Pages 11″ x 17″ are $0.30 per page. Pages larger than 11″ x 17″, including engineering drawings, are $1.50 per square foot.
(ii)Pages larger than 11″ x 17″ are $1.50 per square foot.
(iii)Microfiche-to-paper reproduction is $0.30 per page. Aperture card blowback to paper is $3.00 per square foot.
(iv)Microfiche card duplication is $5.00 per card; CD-ROM duplication is $10.00 each.
(v)The charges for Electronic Full Text
(EFT)(ADAMS documents) copying are as follows:
(A)Electronic Full Text
(EFT)copying of ADAMS documents to paper (applies to images, OCR TIFF, and PDF text) is $0.30 per page.
(B)EFT copying of ADAMS documents to CD-ROM is $5.00 per CD plus $0.15 per page.
(C)CD-ROM-to-paper reproduction is $0.30 per page.
(vi)Priority rates (rush processing) are as follows:
(A)The priority rate offered for standard size paper-to-paper reproduction is $0.35, microfiche-to-paper reproduction is $0.40, EFT copying of ADAMS documents to paper and CD-ROM-to-paper production is $0.35 per page.
(B)The priority rate for aperture cards is $3.50 per square foot. The priority rate for copying EFT to CD-ROM is $6.00 per CD-ROM plus $0.20 per page.
(vii)Facsimile charges are $1.00 per page for local calls; $2.00 per page for U.S. long distance calls, and $6.00 per page for foreign long distance calls, plus the regular per page copying charge. Dated at Rockville, Maryland, this 4th day of September 2006. For the Nuclear Regulatory Commission. Luis A. Reyes, Executive Director for Operations. [FR Doc. E6-15420 Filed 9-15-06; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM347; Special Conditions No. 25-331-SC] Special Conditions: Boeing Model 777-200 Series Airplanes; Forward Lower Lobe Crew Rest Compartment
(CRC)AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions. SUMMARY: These special conditions are issued for the Boeing Model 777-200 series airplanes. These airplanes, modified by Aerocon Engineering Company (AEC), will have a novel or unusual design feature associated with a forward lower lobe crew rest compartment (CRC). The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: *Effective Date:* The effective date of these special conditions is September 8, 2006. FOR FURTHER INFORMATION CONTACT: Jayson Claar, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-2194; facsimile
(425)227-1320. SUPPLEMENTARY INFORMATION: Background On March 10, 2005, AEC applied for a supplemental type certificate
(STC)to allow installation of a CRC in Boeing 777-200 series airplanes. The CRC will be located under the passenger cabin floor in the forward cargo compartment of Boeing Model 777-200 series airplanes. It will be the size of three standard airfreight containers, combined, and will be removable from the cargo compartment. The CRC will be occupied in flight but not during taxi, takeoff, or landing. No more than ten crewmembers at a time will be permitted to occupy it. The CRC will have a smoke detection system, a hand held fire extinguishing system, and an oxygen system. The CRC will be accessed from the main deck via a “stairhouse.” The floor within the stairhouse has a hatch that leads to stairs which occupants use to descend into the CRC. This hatch locks automatically in the open position when fully opened. In addition, there will be an emergency hatch which opens directly into the main passenger cabin area. The CRC also has a maintenance access/ground loading door. This door is intended to be used to allow maintenance personnel and cargo handlers to enter the CRC from the cargo compartment when the airplane is not in flight. Type Certification Basis Under § 21.101, AEC must show that Boeing Model 777-200 series airplanes, as changed, continue to meet
(1)the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or
(2)the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE are as follows: The certification basis for Boeing Model 777-200 series airplanes is 14 CFR part 25, as amended by Amendments 25-1 through 25-82, except for § 25.571(e)(1) which remains at Amendment 25-71, with exceptions. Refer to Type Certificate No. T00001SE, as applicable, for a complete description of the certification basis for this model, including certain special conditions that are not relevant to these special conditions. If the Administrator finds the applicable airworthiness regulations ( *i.e.* , part 25) do not contain adequate or appropriate safety standards for Boeing Model 777-200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16. Besides the applicable airworthiness regulations and special conditions, Boeing Model 777-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features While the installation of a CRC is not a new concept for large transport category airplanes, each CRC has unique features based on design, location, and use on the airplane. The CRC is novel in terms of part 25 in that it will be located below the passenger cabin floor in the forward cargo compartment of Boeing Model 777-200 series airplanes. Because of the novel or unusual features associated with the installation of a CRC, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificates of these airplanes. These special conditions do not negate the need to address other applicable part 25 regulations. Operational Evaluations and Approval These special conditions specify requirements for design approvals ( *i.e.* , type design changes and STCs) of CRCs administered by the FAA's Aircraft Certification Service. Before operational use of a CRC, the FAA's Flight Standards Service, Aircraft Evaluation Group (AEG), must evaluate and approve the “basic suitability” of the CRC for occupation by crewmembers. If an operator wishes to utilize a CRC as “sleeping quarters,” the CRC must undergo an additional operational evaluation and approval. The CRC would be evaluated for compliance to §§ 121.485(a) and 121.523(b), with Advisory Circular 121-31, Flight Crew Sleeping Quarters and Rest Facilities, providing one method of compliance to these operating regulations. To obtain an operational evaluation, the supplemental type design holder must contact the AEG within the Flight Standards Service which has operational approval authority for the project. In this instance, it is the Seattle AEG. The supplemental type design holder must request a “basic suitability” evaluation or a “sleeping quarters” evaluation of the CRC. The supplemental type design holder may make these requests concurrently with the demonstration of compliance with these special conditions. The results of these evaluations will be documented in the Boeing Model 777-200 Flight Standardization Board
(FSB)Report Appendix. In discussions with their FAA Principal Operating Inspector (POI), individual operators may reference these standardized evaluations as the basis for an operational approval, in lieu of an on-site operational evaluation. An operational reevaluation and approval will be required for any changes to the approved CRC configuration, if the changes affect procedures for emergency egress of crewmembers, other safety procedures for crewmembers occupying the CRC, or training related to these procedures. The applicant for any such change is responsible for notifying the Seattle AEG that a new CRC evaluation is required. All instructions for continued airworthiness (ICAW), including service bulletins, must be submitted to the Seattle AEG for approval before the FAA issues its approval of the modification. Discussion of Special Conditions No. 9 and 12 The following clarifies how Special Condition No. 9 should be understood relative to the requirements of § 25.1439(a): Amendment 25-38 modified the requirements of § 25.1439(a) by adding, “In addition, protective breathing equipment must be installed in each isolated separate compartment in the airplane, including upper and lower lobe galleys, in which crewmember occupancy is permitted during flight for the maximum number of crewmembers expected to be in the area during any operation.” The CRC is an isolated separate compartment, so § 25.1439(a) is applicable. However, the § 25.1439(a) PBE requirements for isolated separate compartments are not appropriate because the CRC is novel and unusual in terms of the number of occupants. In 1976 when Amendment 25-38 was adopted, small galleys were the only isolated compartments that had been certificated. Two crewmembers were the maximum expected to occupy those galleys. These special conditions address a CRC, which can accommodate up to ten crewmembers. This large number of occupants in an isolated compartment was not envisioned at the time Amendment 25-38 was adopted. It is not appropriate for all occupants to don PBE in the event of a fire because the first action should be to leave the confined space unless the occupant is fighting the fire. Taking the time to don the PBE would prolong the time for the emergency evacuation of the occupants and possibly interfere with efforts to extinguish the fire. Regarding Special Condition No. 12; the FAA considers that during the 1-minute smoke detection time, penetration of a small quantity of smoke from this forward lower lobe CRC design into an occupied area on this airplane configuration would be acceptable based on the limitations placed in these special conditions. The FAA considers that the special conditions place sufficient restrictions in the quantity and type of material allowed in crew carry-on bags that the threat from a fire in this remote area would be equivalent to that experienced on the main cabin. Discussion of Comments Notice of proposed special conditions No. 25-06-06SC for the Boeing Model 777-200 series airplanes was published in the **Federal Register** on June 21, 2006 (71 FR 35567). No comments were received, and the special conditions are adopted as proposed. Applicability As discussed above, these special conditions are applicable to Boeing Model 777-200 series airplanes as modified by the AEC to include a forward lower lobe CRC. Should AEC apply at a later date for a change to the STC to include another model listed on the same type certificate data sheet, incorporating the same or similar novel or unusual design feature, these special conditions would apply to that model as well. Under standard practice, the effective date of final special conditions would be 30 days after the date or publication in the **Federal Register** ; however, as the certification date for the Boeing Model 777-200 series airplanes is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance. Conclusion This action affects only certain novel or unusual design features on the Boeing Model 777-200 series airplanes. It is not a rule of general applicability, and it affects only the applicant which applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777-200 series airplanes, modified by Aerocon Engineering Company. 1. Occupancy of the forward lower lobe crew rest compartment
(CRC)is limited to the total number of installed bunks and seats in each compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the CRC. The maximum occupancy is ten in the CRC.
(a)There must be appropriate placard(s) displayed in a conspicuous place at each entrance to the CRC to indicate:
(1)The maximum number of occupants allowed;
(2)That occupancy is restricted to crewmembers who are trained in the evacuation procedures for the CRC;
(3)That occupancy is prohibited during taxi, take-off and landing;
(4)That smoking is prohibited in the CRC;
(5)That hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from the CRC.
(6)That stowage in the CRC must be limited to emergency equipment, airplane-supplied equipment ( *e.g.* , bedding), and crew personal luggage; cargo or passenger baggage is not allowed.
(b)There must be at least one ashtray located conspicuously on or near the entry side of any entrance to the CRC.
(c)There must be a means to prevent passengers from entering the compartment in the event of an emergency or when no flight attendant is present.
(d)There must be a means for any door installed between the CRC and passenger cabin to be opened quickly from inside the compartment, even when crowding occurs at each side of the door.
(e)For all doors installed in the evacuation routes, there must be a means to preclude anyone from being trapped inside the compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time. 2. There must be at least two emergency evacuation routes, each of which can be used by each occupant of the CRC to rapidly evacuate to the main cabin. The exit door/hatch for each route must be able to be closed for the main cabin after evacuation. In addition—
(a)The routes must be located with one at each end of the compartment, or with two having sufficient separation within the compartment and between the routes to minimize the possibility of an event (either inside or outside of the CRC) rendering both routes inoperative.
(b)The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing on top of or against the escape route. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If a hatch is installed in an evacuation route, the point at which the evacuation route terminates in the passenger cabin should not be located where normal movement by passengers or crew occurs (main aisle, cross aisle, passageway or galley complex). If such a location cannot be avoided, special consideration must be taken to ensure that the hatch or door can be opened when a person, the weight of a ninety-fifth percentile male, is standing on the hatch or door. The use of evacuation routes must not be dependent on any powered device. If there is low headroom at or near an evacuation route, provisions must be made to prevent or to protect occupants (of the CRC) from head injury.
(c)Emergency evacuation procedures, including the emergency evacuation of an incapacitated occupant from the CRC, must be established. All of these procedures must be transmitted to all operators for incorporation into their training programs and appropriate operational manuals.
(d)There must be a limitation in the Airplane Flight Manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes. 3. There must be a means for the evacuation of an incapacitated person (representative of a 95th percentile male) from the CRC to the passenger cabin floor. The evacuation must be demonstrated for all evacuation routes. A flight attendant or other crewmember (a total of one assistant within the CRC) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. For evacuation routes having stairways, the additional assistants may descend down to one half the elevation change from the main deck to the lower deck compartment, or to the first landing, whichever is higher. 4. The following signs and placards must be provided in the CRC:
(a)At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i) at Amendment 25-58, except that a sign with reduced background area of no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color ( *e.g.* , white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters would also be acceptable;
(b)An appropriate placard located near each exit defining the location and the operating instructions for each evacuation route;
(c)Placards must be readable from a distance of 30 inches under emergency lighting conditions; and
(d)The exit handles and evacuation path operating instruction placards must be illuminated to at least 160 micro lamberts under emergency lighting conditions. 5. There must be a means in the event of failure of the aircraft's main power system, or of the normal CRC lighting system, for emergency illumination to be automatically provided for the CRC.
(a)This emergency illumination must be independent of the main lighting system.
(b)The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.
(c)The illumination level must be sufficient for the occupants of the CRC to locate and transfer to the main passenger cabin floor by means of each evacuation route.
(d)The illumination level must be sufficient with the privacy curtains in the closed position for each occupant of the CRC to locate a deployed oxygen mask. 6. There must be means for two-way voice communications between crewmembers on the flightdeck and occupants of the CRC. There must also be public address
(PA)system microphones at each flight attendant seat required to be near a floor level exit in the passenger cabin per § 25.785(h) at Amendment 25-51. The PA system must allow two-way voice communications between flight attendants and the occupants of the CRC, except that one microphone may serve more than one exit provided the proximity of the exits allows unassisted verbal communication between seated flight attendants. 7. There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flightdeck and at each pair of required floor level emergency exits to alert occupants of the CRC of an emergency situation. Use of a public address or crew interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight for at least ten minutes after the shutdown or failure of all engines and auxiliary power units
(APU)or the disconnection or failure of all power sources which are dependent on the continued operation of the engines and APUs. 8. There must be a means, readily detectable by seated or standing occupants of the CRC, which indicates when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence ( *e.g.* , sufficient handholds). Seat belt type restraints must be provided for berths and must be compatible for the sleeping attitude during cruise conditions. There must be a placard on each berth requiring that seat belts must be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard identifying the head position. 9. In lieu of the requirements specified in § 25.1439(a) at Amendment 25-38 that pertain to isolated compartments and to provide a level of safety equivalent to that which is provided occupants of a small isolated galley, the following equipment must be provided in the CRC:
(a)At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur;
(b)Two PBE devices approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for fire fighting, or one PBE for each hand-held fire extinguisher, whichever is greater; and
(c)One flashlight. Note: Additional PBEs and fire extinguishers in specific locations, (beyond the minimum numbers prescribed in Special Condition No. 9) may be required as a result of any egress analysis accomplished to satisfy Special Condition No. 2(a). 10. A smoke or fire detection system (or systems) must be provided that monitors each occupiable area within the CRC, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:
(a)A visual indication to the flightdeck within one minute after the start of a fire;
(b)An aural warning in the CRC; and
(c)A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight. 11. The CRC must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for fire fighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the fire fighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source. 12. There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the CRC from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the CRC and, if applicable, when accessing the CRC to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers when the access to the CRC is opened, during an emergency evacuation, must dissipate within five minutes after the access to the CRC is closed. Hazardous quantities of smoke may not enter any other compartment occupied by crewmembers or passengers during subsequent access to manually fight a fire in the CRC (the amount of smoke entrained by a firefighter exiting the CRC through the access is not considered hazardous). During the 1-minute smoke detection time, penetration of a small quantity of smoke from the CRC into an occupied area is acceptable. Flight tests must be conducted to show compliance with this requirement. If a built-in fire extinguishing system is used in lieu of manual fire fighting, then the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crew. The system must have adequate capacity to suppress any fire occurring in the CRC, considering the fire threat, volume of the compartment and the ventilation rate. 13. There must be a supplemental oxygen system equivalent to that provided for main deck passengers for each seat and berth in the CRC. The system must provide an aural and visual warning to warn the occupants of the CRC to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the CRC is depressed. Procedures for crew rest occupants to follow in the event of decompression must be established. These procedures must be transmitted to the operators for incorporation into their training programs and appropriate operational manuals. 14. The following requirements apply to CRCs that are divided into several sections by the installation of curtains or partitions:
(a)To warn sleeping occupants, there must be an aural alert that can be heard in each section of the CRC and that accompanies automatic presentation of supplemental oxygen masks. A visual indicator that occupants must don an oxygen mask is required in each section where seats or berths are not installed. A minimum of two supplemental oxygen masks is required for each seat or berth. There must also be a means by which the oxygen masks can be manually deployed from the flightdeck.
(b)A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the CRC into small sections. The placard must require that the curtain remains open when the private section it creates is unoccupied.
(c)For each section of the CRC created by the installation of a curtain, the following requirements of these special conditions must be met both with the curtain open and with the curtain closed:
(1)Emergency illumination (Special Condition No. 5);
(2)Emergency alarm system (Special Condition No. 7);
(3)Seat belt fasten signal or return to seat signal as applicable (Special Condition No. 8); and
(4)The smoke or fire detection system (Special Condition No. 10).
(d)Crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the CRC, and must meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.
(e)For sections within a CRC that are created by the installation of a partition with a door separating the sections, the following requirements of these special conditions must be met both with the door open and with the door closed:
(1)There must be a secondary evacuation route from each section to the main deck, or alternatively, it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment. Removal of an incapacitated occupant within this area must be considered. A secondary evacuation route from a small room designed for only one occupant for short time duration, such as a changing area or lavatory, is not required. However, removal of an incapacitated occupant within this area must be considered.
(2)Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.
(3)There may be no more than one door between any seat or berth and the primary stairway exit.
(4)There must be exit signs in each section meeting the requirements of § 25.812(b)(1)(i) at Amendment 25-58 that direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.
(5)Special Conditions No. 5 (emergency illumination), No. 7 (emergency alarm system), No. 8 (fasten seat belt signal or return to seat signal as applicable) and No. 10 (smoke or fire detection system) must be met both with the door open and with the door closed.
(6)Special Conditions No. 6 (two-way voice communication) and No. 9 (emergency fire fighting and protective equipment) must be met independently for each separate section except for lavatories or other small areas that are not intended to be occupied for extended periods of time. 15. Where a waste disposal receptacle is fitted, it must be equipped with a built-in fire extinguisher designed to discharge automatically upon occurrence of a fire in the receptacle. 16. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of § 25.853 at Amendment 25-72. Mattresses must comply with the flammability requirements of § 25.853(b) and
(c)at Amendment 25-72. 17. All lavatories within the CRC are required to meet the same requirements as those for a lavatory installed on the main deck except with regard to Special Condition No.10 for smoke detection. 18. When a CRC is installed or enclosed as a removable module in part of a cargo compartment or is located directly adjacent to a cargo compartment without an intervening cargo compartment wall, the following apply:
(a)Any wall of the module (container) forming part of the boundary of the reduced cargo compartment, subject to direct flame impingement from a fire in the cargo compartment and including any interface item between the module (container) and the airplane structure or systems, must meet the applicable requirements of § 25.855 at Amendment 25-72.
(b)Means must be provided so that the fire protection level of the cargo compartment meets the applicable requirements of § 25.855 at Amendment 25-72, § 25.857 at Amendment 25-60 and § 25.858 at Amendment 25-54 when the module (container) is not installed.
(c)Use of each emergency evacuation route must not require occupants of the CRC compartment to enter the cargo compartment in order to return to the passenger compartment.
(d)The aural warning in Special Condition No. 7 must sound in the CRC. 19. Means must be provided to prevent access into the Class C cargo compartment during all airplane flight operations and to ensure that the maintenance door is closed during all airplane flight operations. 20. All enclosed stowage compartments within the CRC that are not limited to stowage of emergency equipment or airplane-supplied equipment ( *e.g.* , bedding) must meet the design criteria given in the table below. As indicated by the table below, this special condition does not address enclosed stowage compartments greater than 200 ft 3 in interior volume. The in-flight accessibility of very large enclosed stowage compartments and the subsequent impact on the crewmembers ability to effectively reach any part of the compartment with the contents of a hand fire extinguisher will require additional fire protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments. Fire protection features Stowage compartment interior volumes less than 25 ft 3 25 ft 3 to 57 ft 3 57 ft 3 to 200 ft 3 Materials of Construction 1 Yes Yes Yes. Detectors 2 No Yes Yes. Liner 3 No No Yes. Locating device 4 No Yes Yes. 1 *Material* The material used to construct each enclosed stowage compartment must at least be fire resistant and must meet the flammability standards established for interior components per the requirements of §25.853. For compartments less than 25 ft 3 in interior volume, the design must ensure the ability to contain a fire likely to occur within the compartment under normal use. 2 *Detectors* Enclosed stowage compartments equal to or exceeding 25 ft 3 in interior volume must be provided with a smoke or fire detection system to ensure that a fire can be detected within a one-minute detection time. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:
(a)A visual indication in the flightdeck within one minute after the start of a fire;
(b)An aural warning in the CRC; and
(c)A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight. 3 *Liner* If it can be shown that the material used to construct the stowage compartment meets the flammability requirements of a liner for a Class B cargo compartment, then no liner would be required for enclosed stowage compartments equal to or greater than 25 ft 3 in interior volume but less than 57 ft 3 in interior volume. For all enclosed stowage compartments equal to or greater than 57 ft 3 in interior volume but less than or equal to 200 ft 3 , a liner must be provided that meets the requirements of § 25.855 at Amendment 25-72 for a class B cargo compartment. 4 *Location Detector* Crew rest areas which contain enclosed stowage compartments exceeding 25 ft 3 interior volume and which are located away from one central location such as the entry to the crew rest area or a common area within the crew rest area would require additional fire protection features and/or devices to assist the firefighter in determining the location of a fire. Issued in Renton, Washington, on September 8, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-15380 Filed 9-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM351; Special Conditions No. 25-325-SC] Special Conditions: Gulfstream Aerospace Corporation Model G150 Airplanes; High-Intensity Radiated Fields
(HIRF)AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: The FAA issues these special conditions for Gulfstream Aerospace Corporation Model G150 airplanes modified by Gulfstream Aerospace Corporation, Dallas, Texas. These modified airplanes will have novel or unusual design features when compared with the state of technology envisioned in the airworthiness standards for transport category airplanes. The modification consists of installing an electronic laser inertial reference system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for protecting these systems from effects of high-intensity radiated fields (HIRF). These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is September 8, 2006. We must receive your comments on or before October 18, 2006. ADDRESSES: You may mail or deliver comments on these special conditions in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM351, 1601 Lind Avenue SW., Renton, Washington 98057-3356. You must mark your comments Docket No. NM351. FOR FURTHER INFORMATION CONTACT: Greg Dunn, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-2799; facsimile
(425)227-1320. SUPPLEMENTARY INFORMATION: Comments Invited The FAA has determined that notice and opportunity for prior public comment for these special conditions is impracticable because these procedures would significantly delay certification and delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. We therefore find that good cause exists for making these special conditions effective upon issuance. However, we invite interested persons to take part in this rulemaking by submitting written comments. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You may 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 ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On June 9, 2006, Gulfstream Aerospace Corporation, Dallas, Texas, applied for a supplemental type certificate
(STC)to modify Gulfstream G150 airplanes. The Gulfstream G150 is a low-wing, pressurized, transport category airplane with two fuselage-mounted jet engines. It can seat up to 19 passengers, with a crew of two pilots. The modification consists of installing an electronic laser inertial reference system. These systems have a potential to be vulnerable to high-intensity radiated fields
(HIRF)external to the airplane. Type Certification Basis Under provisions of 14 CFR 21.101, Gulfstream Aerospace Corporation must show that the Gulfstream G150 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A16NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The specific regulations are 14 CFR part 25, as amended by Amendments 25-1 through 25-108 with exceptions as indicated in the Type Certificate Data Sheet. If the Administrator finds that the applicable airworthiness regulations (part 25, as amended) do not contain adequate or appropriate safety standards for the Gulfstream G150 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the G150 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under the provisions of § 21.101. Novel or Unusual Design Features As noted earlier, the Gulfstream G150 airplanes modified by Gulfstream Aerospace Corporation will incorporate an electronic laser inertial reference system that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane. Current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for protecting this equipment from adverse effects of HIRF. So this system is considered to be a novel or unusual design feature. Discussion As previously stated, there is no specific regulation that addresses protection for electrical and electronic systems from HIRF. Increased power levels from radio frequency transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection. To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Gulfstream G150 airplanes modified by Gulfstream Aerospace Corporation. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function because of HIRF. High-Intensity Radiated Fields
(HIRF)High-power radio frequency transmitters for radio, radar, television, and satellite communications can adversely affect operation of airplane electric and electronic systems. Therefore, the immunity of critical avionics/electronics and electrical systems to HIRF must be established. Based on surveys and an analysis of existing HIRF emitters, an adequate level of protection exists when airplane system immunity is demonstrated when exposed to the HIRF environments in either paragraph 1 or 2 below: 1. A minimum environment of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz. a. System elements and their associated wiring harnesses must be exposed to the environment without benefit of airframe shielding. b. Demonstration of this level of protection is established through system tests and analysis. 2. An environment external to the airframe of the field strengths shown in the table below for the frequency ranges indicated. Immunity to both peak and average field strength components from the table must be demonstrated. Frequency Field Strength (volts per meter) Peak Average 10 kHz-100 kHz 50 50 100 kHz-500 kHz 50 50 500 kHz-2 MHz 50 50 2 MHz-30 MHz 100 100 30 MHz-70 MHz 50 50 70 MHz-100 MHz 50 50 100 MHz-200 MHz 100 100 200 MHz-400 MHz 100 100 400 MHz-700 MHz 700 50 700 MHz-1 GHz 700 100 1 GHz-2 GHz 2000 200 2 GHz-4 GHz 3000 200 4 GHz-6 GHz 3000 200 6 GHz-8 GHz 1000 200 8 GHz-12 GHz 3000 300 12 GHz-18 GHz 2000 200 18 GHz-40 GHz 600 200 The field strengths are expressed in terms of peak of the root-mean-square
(rms)over the complete modulation period. The environment levels identified above are the result of an FAA review of existing studies on the subject of HIRF and of the work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee. Applicability These special conditions are applicable to Gulfstream G150 airplanes modified by Gulfstream Aerospace Corporation. Should Gulfstream Aerospace Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A16NM to incorporate the same or similar novel or unusual design feature, these special conditions would apply to that model as well under provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features on Gulfstream G150 airplanes modified by Gulfstream Aerospace Corporation. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions Therefore, under the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the G150 airplanes modified by Gulfstream Aerospace Corporation. 1. *Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF).* Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields. 2. For the purpose of these special conditions, the following definition applies: *Critical Functions:* Functions whose failure would contribute to or cause a failure condition that would prevent continued safe flight and landing of the airplane. Issued in Renton, Washington, on September 8, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-15401 Filed 9-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30514 ; Amdt. No. 3185] Standard Instrument Approach Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in 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. DATES: This rule is effective September 18, 2006. 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 September 18, 2006. ADDRESSES: Availability of matter incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Ave, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; or 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: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* *For Purchase* —Individual SIAP copies may be obtained from: 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. *By Subscription* —Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, 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. SUPPLEMENTARY INFORMATION: This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule 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 chart changes to SIAPs, the TERPS criteria were applied to only these 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. Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. 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. Conclusion 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. List of Subjects in 14 CFR Part 97 Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on September 8, 2006. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended] 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: * * * Effective Upon Publication FDC date State City Airport FDC Number Subject 08/31/06 CO CORTEZ CORTEZ MUNI 6/7621 RNAV
(GPS)Y RWY 21, ORIG 08/31/06 CO CORTEZ CORTEZ MUNI 6/7623 RNAV
(GPS)Z RWY 21, ORIG 08/25/06 KS WICHITA BEECH FACTORY 6/7858 RNAV
(GPS)RWY 36, ORIG-A 08/25/06 KS WICHITA BEECH FACTORY 6/7860 RNAV
(GPS)RWY 18, ORIG 08/25/06 OK ADA ADA MUNI 6/7878 VOR/DME A, ORIG-D 08/25/06 OK ADA ADA MUNI 6/7879 VOR/DME RWY 17, AMDT 1C 08/25/06 OK ADA ADA MUNI 6/7880 GPS RWY 35, ORIG-B 08/25/06 OK ADA ADA MUNI 6/7882 GPS RWY 17, ORIG-A 08/28/06 ME SANFORD SANFORD REGIONAL 6/8038 ILS RWY 7, AMDT 3A 08/28/06 RI BLOCK ISLAND BLOCK ISLAND STATE 6/8064 RNAV
(GPS)RWY 10, ORIG 08/28/06 NC MORGANTON FOOTHILLS REGIONAL 6/8076 LOC RWY 3, ORIG-C 08/28/06 PA HARRISBURG CAPITAL CITY 6/8077 ILS RWY 8, AMDT 10F 08/29/06 FL PENSACOLA PENSACOLA REGIONAL 6/8196 LOC/DME RWY 26, ORIG 08/29/06 FL ST.PETERSBURG-CLEARWATER ST.PETERSBURG-CLEARWATER INTL 6/8201 ILS RWY 17L, AMDT 19C 08/29/06 FL MIAMI MIAMI INTL 6/8202 ILS OR LOC RWY 26L, AMDT 14C 08/29/06 FL DAYTONA BEACH DAYTONA BEACH INTL 6/8230 RNAV
(GPS)RWY 7R, ORIG 08/29/06 FL DAYTONA BEACH DAYTONA BEACH INTL 6/8232 RADAR-1, AMDT 8 08/29/06 FL DAYTONA BEACH DAYTONA BEACH INTL 6/8233 RNAV
(GPS)RWY 34, AMDT 1 08/30/06 IL CARMI CARMI MUNI 6/8315 NDB RWY 36, AMDT 1 08/30/06 IL CARMI CARMI MUNI 6/8316 GPS RWY 36, ORIG 08/30/06 IN FORT WAYNE FORT WAYNE INTERNATIONAL 6/8324 ILS OR LOC RWY 32, AMDT 28 08/30/06 AK GUSTAVUS GUSTAVUS 6/8328 VOR/DME RWY 29, AMDT 1 08/30/06 AK RUSSIAN MISSION RUSSIAN MISSION 6/8384 RNAV
(GPS)RWY 35, ORIG 08/30/06 AK RUSSIAN MISSION RUSSIAN MISSION 6/8386 RNAV
(GPS)RWY 17, ORIG 08/31/06 GU AGANA GUAM INTL 6/8410 THIS NOTAM REPLACES FDC 6/6548 PUBLISHED IN TL06-20. VOR/DME OR TACAN RWY 6L, ORIG-A 09/01/06 MA HYANNIS BARNSTABLE MUNI-BOARDMAN/POLANDO FIELD 6/8551 ILS OR LOC RWY 24, AMDT 17 08/31/06 MI LUDINGTON MASON COUNTY 6/8593 NDB RWY 25, ORIG 08/31/06 MI LUDINGTON MASON COUNTY 6/8595 GPS RWY 25, ORIG 09/06/06 AL MOBILE MOBILE DOWNTOWN 6/9133 ILS OR LOC RWY 32, AMDT 1A 09/06/06 FL FERNANDINA BEACH FERNANDINA BEACH MUNI 6/9134 RNAV
(GPS)RWY 13, ORIG 09/06/06 NY BUFFALO NIAGARA INTL 6/9136 RNAV
(GPS)RWY 14, ORIG-A 06/13/06 NE NORTH PLATTE NORTH PLATTE RGNL AIRPORT LEE BIRD FIELD 6/9612 ILS RWY 30, AMDT 5C [FR Doc. E6-15252 Filed 9-15-06; 8:45 am] BILLING CODE 4910-13-P SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 211 [Release No. SAB 108] Staff Accounting Bulletin No. 108 AGENCY: Securities and Exchange Commission. ACTION: Publication of Staff Accounting Bulletin. SUMMARY: The interpretations in this Staff Accounting Bulletin express the staff's views regarding the process of quantifying financial statement misstatements. The staff is aware of diversity in practice. For example, certain registrants do not consider the effects of prior year errors on current year financial statements, thereby allowing improper assets or liabilities to remain unadjusted. While these errors may not be material if considered only in relation to the balance sheet, correcting the errors could be material to the current year income statement. Certain registrants have proposed to the staff that allowing these errors to remain on the balance sheet as assets or liabilities in perpetuity is an appropriate application of generally accepted accounting principles. The staff believes that approach is not in the best interest of the users of financial statements. The interpretations in this Staff Accounting Bulletin are being issued to address diversity in practice in quantifying financial statement misstatements and the potential under current practice for the build up of improper amounts on the balance sheet. DATES: September 13, 2006. FOR FURTHER INFORMATION CONTACT: Mark S. Mahar, Office of the Chief Accountant
(202)551-5300, Todd E. Hardiman, Division of Corporation Finance
(202)551-3400, or Toai P. Cheng
(202)551-6918, Division of Investment Management, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549. SUPPLEMENTARY INFORMATION: The statements in staff accounting bulletins are not rules or interpretations of the Commission, nor are they published as bearing the Commission's official approval. They represent interpretations and practices followed by the Division of Corporation Finance, the Division of Investment Management and the Office of the Chief Accountant in administering the disclosure requirements of the Federal securities laws. Dated: September 13, 2006. Nancy M. Morris, Secretary. PART 211—[AMENDED] Accordingly, Part 211 of Title 17 of the Code of Federal Regulations is amended by adding Staff Accounting Bulletin No. 108 to the table found in Subpart B. Staff Accounting Bulletin No. 108 The staff hereby adds Section N to Topic 1, *Financial Statements,* of the Staff Accounting Bulletin Series. Section N provides guidance on the consideration of the effects of prior year misstatements in quantifying current year misstatements for the purpose of a materiality assessment. Note: The text of SAB 108 will not appear in the Code of Federal Regulations. Topic 1: Financial Statements N. Considering the Effects of Prior Year Misstatements When Quantifying Misstatements in Current Year Financial Statements *Facts:* During the course of preparing annual financial statements, a registrant is evaluating the materiality of an improper expense accrual ( *e.g.* , overstated liability) in the amount of $100, which has built up over 5 years, at $20 per year. 1 The registrant previously evaluated the misstatement as being immaterial to each of the prior year financial statements ( *i.e.* , years 1-4). For the purpose of evaluating materiality in the current year ( *i.e.* , year 5), the registrant quantifies the error as a $20 overstatement of expenses. 1 For purposes of these facts, assume the registrant properly determined that the overstatement of the liability resulted from an error rather than a change in accounting estimate. See FASB Statement 154, * Accounting Changes and Error Corrections,* paragraph 2, for the distinction between an error and a change in accounting estimate. *Question 1:* Has the registrant appropriately quantified the amount of this error for the purpose of evaluating materiality for the current year? *Interpretive Response:* No. In this example, the registrant has only quantified the effects of the identified unadjusted error that arose in the current year income statement. The staff believes a registrant's materiality evaluation of an identified unadjusted error should quantify the effects of the identified unadjusted error on each financial statement and related financial statement disclosure. Topic 1M notes that a materiality evaluation must be based on all relevant quantitative and qualitative factors. 2 This analysis generally begins with quantifying potential misstatements to be evaluated. There has been diversity in practice with respect to this initial step of a materiality analysis. 2 Topic 1N addresses certain of these quantitative issues, but does not alter the analysis required by Topic 1M. The diversity in approaches for quantifying the amount of misstatements primarily stems from the effects of misstatements that were not corrected at the end of the prior year (“prior year misstatements”). These prior year misstatements should be considered in quantifying misstatements in current year financial statements. The techniques most commonly used in practice to accumulate and quantify misstatements are generally referred to as the “rollover” and “iron curtain” approaches. The rollover approach, which is the approach used by the registrant in this example, quantifies a misstatement based on the amount of the error originating in the current year income statement. Thus, this approach ignores the effects of correcting the portion of the current year balance sheet misstatement that originated in prior years ( *i.e.* , it ignores the “carryover effects” of prior year misstatements). The iron curtain approach quantifies a misstatement based on the effects of correcting the misstatement existing in the balance sheet at the end of the current year, irrespective of the misstatement's year(s) of origination. Had the registrant in this fact pattern applied the iron curtain approach, the misstatement would have been quantified as a $100 misstatement based on the end of year balance sheet misstatement. Thus, the adjustment needed to correct the financial statements for the end of year error would be to reduce the liability by $100 with a corresponding decrease in current year expense. As demonstrated in this example, the primary weakness of the rollover approach is that it can result in the accumulation of significant misstatements on the balance sheet that are deemed immaterial in part because the amount that originates in each year is quantitatively small. The staff is aware of situations in which a registrant, relying on the rollover approach, has allowed an erroneous item to accumulate on the balance sheet to the point where eliminating the improper asset or liability would itself result in a material error in the income statement if adjusted in the current year. Such registrants have sometimes concluded that the improper asset or liability should remain on the balance sheet into perpetuity. In contrast, the primary weakness of the iron curtain approach is that it does not consider the correction of prior year misstatements in the current year ( *i.e.* , the reversal of the carryover effects) to be errors. Therefore, in this example, if the misstatement was corrected during the current year such that no error existed in the balance sheet at the end of the current year, the reversal of the $80 prior year misstatement would not be considered an error in the current year financial statements under the iron curtain approach. Implicitly, the iron curtain approach assumes that because the prior year financial statements were not materially misstated, correcting any immaterial errors that existed in those statements in the current year is the “correct” accounting, and is therefore not considered an error in the current year. Thus, utilization of the iron curtain approach can result in a misstatement in the current year income statement not being evaluated as an error at all. The staff does not believe the exclusive reliance on either the rollover or iron curtain approach appropriately quantifies all misstatements that could be material to users of financial statements. In describing the concept of materiality, FASB Concepts Statement No. 2, *Qualitative Characteristics of Accounting Information* , indicates that materiality determinations are based on whether “it is probable that the judgment of a reasonable person relying upon the report would have been changed or influenced *by the inclusion or correction of the item* ” (emphasis added). 3 The staff believes registrants must quantify the impact of correcting all misstatements, including both the carryover and reversing effects of prior year misstatements, on the current year financial statements. The staff believes that this can be accomplished by quantifying an error under both the rollover and iron curtain approaches as described above and by evaluating the error measured under each approach. Thus, a registrant's financial statements would require adjustment when either approach results in quantifying a misstatement that is material, after considering all relevant quantitative and qualitative factors. 3 Concepts Statement 2, paragraph 132. See also Concepts Statement 2, Glossary of Terms—Materiality. As a reminder, a change from an accounting principle that is not generally accepted to one that is generally accepted is a correction of an error. 4 4 Statement 154, paragraph 2h. The staff believes that the registrant should quantify the current year misstatement in this example using both the iron curtain approach ( *i.e.* , $100) and the rollover approach ( *i.e.* , $20). Therefore, if the $100 misstatement is considered material to the financial statements, after all of the relevant quantitative and qualitative factors are considered, the registrant's financial statements would need to be adjusted. It is possible that correcting an error in the current year could materially misstate the current year's income statement. For example, correcting the $100 misstatement in the current year will: • Correct the $20 error originating in the current year; • Correct the $80 balance sheet carryover error that originated in Years 1 through 4; but also • Misstate the current year income statement by $80. If the $80 understatement of current year expense is material to the current year, after all of the relevant quantitative and qualitative factors are considered, the prior year financial statements should be corrected, even though such revision previously was and continues to be immaterial to the prior year financial statements. Correcting prior year financial statements for immaterial errors would not require previously filed reports to be amended. Such correction may be made the next time the registrant files the prior year financial statements. The following example further illustrates the staff's views on quantifying misstatements, including the consideration of the effects of prior year misstatements: *Facts:* During the course of preparing annual financial statements, a registrant is evaluating the materiality of a sales cut-off error in which $50 of revenue from the following year was recorded in the current year, thereby overstating accounts receivable by $50 at the end of the current year. In addition, a similar sales cut-off error existed at the end of the prior year in which $110 of revenue from the current year was recorded in the prior year. As a result of the combination of the current year and prior year cut-off errors, revenues in the current year are understated by $60 ($110 understatement of revenues at the beginning of the current year partially offset by a $50 overstatement of revenues at the end of the current year). The prior year error was evaluated in the prior year as being immaterial to those financial statements. *Question 2:* How should the registrant quantify the misstatement in the current year financial statements? *Interpretive Response:* The staff believes the registrant should quantify the current year misstatement in this example using both the iron curtain approach ( *i.e.* , $50) and the rollover approach ( *i.e.* , $60). Therefore, assuming a $60 misstatement is considered material to the financial statements, after all relevant quantitative and qualitative factors are considered, the registrant's financial statements would need to be adjusted. Further, in this example, recording an adjustment in the current year could alter the amount of the error affecting the current year financial statements. For instance: • If only the $60 understatement of revenues were to be corrected in the current year, then the overstatement of current year end accounts receivable would increase to $110; or, • If only the $50 overstatement of accounts receivable were to be corrected in the current year, then the understatement of current year revenues would increase to $110. If the misstatement that exists after recording the adjustment in the current year financial statements is material (considering all relevant quantitative and qualitative factors), the prior year financial statements should be corrected, even though such revision previously was and continues to be immaterial to the prior year financial statements. Correcting prior year financial statements for immaterial errors would not require previously filed reports to be amended. Such correction may be made the next time the registrant files the prior year financial statements. If the cut-off error that existed in the prior year was not discovered until the current year, a separate analysis of the financial statements of the prior year (and any other prior year in which previously undiscovered errors existed) would need to be performed to determine whether such prior year financial statements were materially misstated. If that analysis indicates that the prior year financial statements are materially misstated, they would need to be restated in accordance with Statement 154. 5 5 Statement 154, paragraph 25. *Facts:* When preparing its financial statements for years ending on or before November 15, 2006, a registrant quantified errors by using either the iron curtain approach or the rollover approach, but not both. Based on consideration of the guidance in this Staff Accounting Bulletin, the registrant concludes that errors existing in previously issued financial statements are material. *Question 3:* Will the staff expect the registrant to restate prior period financial statements when first applying this guidance? *Interpretive Response:* The staff will not object if a registrant 6 does not restate financial statements for fiscal years ending on or before November 15, 2006, if management properly applied its previous approach, either iron curtain or rollover, so long as all relevant qualitative factors were considered. 6 If a registrant's initial registration statement is not effective on or before November 15, 2006, and the registrant's prior year(s) financial statements are materially misstated based on consideration of the guidance in this Staff Accounting Bulletin, the prior year financial statements should be restated in accordance with Statement 154, paragraph 25. If a registrant's initial registration statement is effective on or before November 15, 2006, the guidance in the interpretive response to Question 3 is applicable. To provide full disclosure, registrants electing not to restate prior periods should reflect the effects of initially applying the guidance in Topic 1N in their annual financial statements covering the first fiscal year ending after November 15, 2006. The cumulative effect of the initial application should be reported in the carrying amounts of assets and liabilities as of the beginning of that fiscal year, and the offsetting adjustment should be made to the opening balance of retained earnings for that year. Registrants should disclose the nature and amount of each individual error being corrected in the cumulative adjustment. The disclosure should also include when and how each error being corrected arose and the fact that the errors had previously been considered immaterial. Early application of the guidance in Topic 1N is encouraged in any report for an interim period of the first fiscal year ending after November 15, 2006, filed after the publication of this Staff Accounting Bulletin. In the event that the cumulative effect of application of the guidance in Topic 1N is first reported in an interim period other than the first interim period of the first fiscal year ending after November 15, 2006, previously filed interim reports need not be amended. However, comparative information presented in reports for interim periods of the first year subsequent to initial application should be adjusted to reflect the cumulative effect adjustment as of the beginning of the year of initial application. In addition, the disclosures of selected quarterly information required by Item 302 of Regulation S-K should reflect the adjusted results. [FR Doc. E6-15457 Filed 9-15-06; 8:45 am] BILLING CODE 8010-01-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 906 [CO-031-FOR] Colorado Abandoned Mine Land Reclamation Plan AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Final rule; approval of amendment. SUMMARY: We are approving an amendment to the Colorado abandoned mine land reclamation
(AMLR)plan (hereinafter referred to as the “Colorado plan”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). DATES: *Effective Date:* September 18, 2006. FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: 303.844.1400 x1424. E-mail address: *jfulton@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Colorado Plan II. Submission of the Proposed Amendment III. Office of Surface Mining Reclamation and Enforcement's
(OSM)Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Colorado Plan The Abandoned Mine Land Reclamation Program was established by Title IV of the Act in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On June 11, 1982, the Secretary of the Interior approved the Colorado plan. You can find general background information on the Colorado plan, including the Secretary's findings and the disposition of comments, in the June 11, 1982, **Federal Register** (47 FR 25332). You can also find later actions concerning Colorado's plan and plan amendments at 30 CFR 906.20 and 906.25 II. Submission of the Proposed Amendment By letter dated October 29, 1996, Colorado sent to us a proposed amendment to its plan (administrative record number CO-AML-24) under SMCRA. Colorado sent the amendment in response to a September 26, 1994, letter (administrative record number CO-AML-19) that we sent to Colorado in accordance with 30 CFR 884.15(b), and at its own initiative. We announced receipt of the proposed amendment in the November 19, 1996, **Federal Register** (61 FR 58800), provided an opportunity for a public hearing or meeting on its substantive adequacy, and invited public comment on its adequacy (administrative record number CO-AML-26). Because no one requested a public hearing or meeting, none was held. The public comment period ended on December 19, 1996. We received comments from one industry group, four Federal agencies and two citizen or academic groups. During our review of the amendment, we identified a concern relating to the provisions of Colorado's plan provisions at Section V.B.2. concerning the determination of eligibility for proposed sites. We notified Colorado of our concern by letter dated June 7, 1999 (administrative record number CO-AML-35). Colorado responded by a memo dated June 15, 2005, by submitting a revised amendment (administrative record number CO-AML-36). Colorado also took this opportunity to submit additional revisions at its own initiative. We announced receipt of the revised amendment in the September 13, 2005, **Federal Register** (70 FR 54490). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. CO-AML-37). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on October 17, 2005. We did not receive any comments. III. Office of Surface Mining Reclamation and Enforcement's
(OSM)Findings Following are the findings we made concerning the amendment. OSM's standard for comparison of State AMLR amendments with SMCRA and the Federal regulations is found in Directive STP-1, Appendix 11. This policy provides that “in accordance with 30 CFR 884.14(a), the proposed plan must meet all applicable requirements of the Federal statute and rules. That is, a State's statutes, rules, policy statements, procedures, and similar materials must compare, all together, with applicable requirements of the Federal statute and rules, to ensure that the State's plan, as a whole, meets all Federal requirements.” We are approving the amendment. A. Minor Revisions to Colorado's Plan Provisions Colorado proposed numerous minor wording, editorial, punctuation, grammatical, and recodification changes throughout its plan provisions. Because the changes to these previously approved plan provisions are minor, we find that they meet the requirements of the Federal regulations and the Act. B. Revisions to Colorado's Plan Provisions That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations and Statute Colorado proposed revisions to the following plan provisions; the revisions contain language that is the same as, or similar to, the corresponding sections of the Federal regulations. Section I intro; 30 CFR 884.13(c)(1); goals and objectives. Section I B intro; 30 CFR 884.13; additional reclamation activities. Section I B 1; 30 CFR 884.13(e); inactive mine inventory. Section I B 3; 30 CFR 884.13(f); fish & wildlife habitat. Section I B 5; 30 CFR 884.13(c)(7); public involvement. Section I B 6; SMCRA 407(e); reclamation on public lands. Section I B 7; 30 CFR 873.12, 876.12; future reclamation set-aside. Section I B 8; 30 CFR 874.12(d)(2); interim program mines and insolvent sureties. Section I B 9; 30 CFR 887.1; mine subsidence protection program. Section II intro; 30 CFR 884.13(c)(2); ranking and selection of projects. Section II B & C; 30 CFR 874.13, 884.13(c)(2); project and design selection criteria. Section III A & B; 30 CFR 884.14(c)(3); coordination of reclamation work. Section III C, D, & E; SMCRA 414; coordination with local governments. Section IV; 30 CFR Part 879; acquisition, management, and disposition of lands & waters. Section V, intro; 30 CFR Part 882; reclamation on private land. Section V A; 30 CFR 886.15; grant applications. Section V B 1; 30 CFR 884.13(c)(5) & Part 882; project feasibility studies. Section V B 2; 30 CFR 874.12(c) & Chapter 4-01-30, Federal Assistance Manual; determination of project eligibility. Section V B 3; 30 CFR Part 887; consent for reclamation activities. Section V B 6; 30 CFR 884.13(f); environmental assessments. Section V C; 30 CFR 884.13(c)(5); project implementation. Section V D; 30 CFR 886.23, 886.24; project evaluation. Section VI intro; 30 CFR 884.13(c)(7); public participation. Section VI A & B; 30 CFR 884.13(c)(7) & (d)(1); public participation. Section VI C deleted (A-95 process); 30 CFR 884.14(c)(3); coordination of reclamation work. Section VII B; 30 CFR 884.13(d)(2); personnel policies. Section VII A; 30 CFR 886.22, 886.24; administrative procedures. Section VII C, intro, 1, 2; 30 CFR 884.13(d)(3); procurement and purchasing. Section VII C 3; 30 CFR 874.16 & 875.20; contractors eligible for permits. Section VIII; 30 CFR 884.13(d); organization and management. C. Revisions to Colorado's Plan Provisions That Are Not the Same as the Corresponding Provisions of the Federal Regulations and Statute C.1. Section 1 A 6; 30 CFR 875.12(e); Reclamation Priorities for Non-coal Reclamation Colorado proposed to add a new subsection, providing for reclamation of resources affected by non-coal mining activities. The subsection provides that “the Division may carry out these objectives only after all reclamation goals with respect to inactive [abandoned] coal mined lands have been met, except for non-coal projects relating to the protection of health and safety.” We note that “protection of health and safety” encompasses Priority 1 and Priority 2 sites. The Federal requirement at 30 CFR 875.12(e) allows such non-coal reclamation only if needed to protect against “extreme danger” of adverse effects; that is, it is limited to Priority 1 sites. Thus it initially appears that Colorado's proposal would allow non-coal reclamation for Priority 2 sites, while the Federal program allows it only for Priority 1 sites. However, we note that a different section of Colorado's proposal, II B 1, specifies that “non-coal hazards must be in the ‘extreme hazard’
(P1)category.” Therefore we find that Colorado's proposal compares with applicable requirements of the Act and Federal rules as a whole, and meets all Federal requirements. We are approving it. C.2. Sections V B 4 and 5; 30 CFR 882.12 & 882.13; Appraisals and Liens Colorado proposed at subsection 4 that “a determination of fair market value of the land as adversely affected by past mining will be made before and following reclamation work. This finding will be based on an appraisal or letter of opinion from the [program] realty specialist.” Further, Colorado proposed at subsection 5 that for each reclamation project which may significantly increase the fair market value, Colorado will make a written finding on how the proposed project will specifically benefit public health, safety, or environmental values of the greater community or area. The Federal regulations at 30 CFR 882.12(a) require that appraisals as described in subsection 4 be obtained from independent appraisers. However, it is clear from 30 CFR 882.12 and 882.13 that such appraisals are meant to serve as the basis for filing possible liens against the reclaimed property if its value significantly increases. And, 30 CFR 882.13(a) states that the filing of liens is discretionary. The Colorado plan as revised indicates only one use for such appraisals, that proposed at subsection 5 (to document the benefits to the greater community); as revised, the Colorado plan makes no provision for the filing of liens. In other words, Colorado has revised its plan so that no liens will be filed. As noted above, 30 CFR 882.13(a) provides that the filing of liens is discretionary. Since no liens will be filed, the determination of property value need not be obtained from an independent appraiser. For these reasons, we find that Colorado's proposed revisions are in agreement with the applicable requirements of the Federal statute and rules as a whole, and meet all Federal requirements. We are approving them. IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment and the revised amendment. We received no comments on the revision, but did receive comments on the initial amendment from one industry group and two citizen or academic groups. The Colorado School of Mines and the Citizens Coal Council responded that they had no comments. The Colorado Mining Association expressed concern that, because of the large numbers of non-coal AML sites with water pollution problems, much of the 10% set-aside funds might be drained by water treatment at such sites. As discussed above at Finding C.1., the proposed plan at subsection I.A.6. would allow for reclamation of non-coal AML sites; but such work is limited at subsection II.B.1. to extreme hazards to public health and safety. Further, under II.C. 1 & 3, hazard abatement does not include restoration of environmental hazards. We also note that under the set-aside provision of I.B.7., funds set-aside for the acid mine drainage fund will be used to treat only waters affected by coal mining. These subjects may need to be addressed again if Colorado should in the future certify completion of all coal-mining-related AML problems. For the current situation, we find that Colorado's revised plan alleviates the concerns expressed. Federal Agency Comments Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Colorado plan. We received replies but no comments from four Federal agencies. The Mine Safety and Health Administration, the U.S. Forest Service, the U.S. Environmental Protection Agency, and the Bureau of Land Management replied that they had no comments. OSM's Decision Based on the above findings, we approve Colorado's October 29, 1996 amendment, as revised on June 15, 2005. To implement this decision, we are amending the Federal regulations at 30 CFR Part 906, which codify decisions concerning the Colorado plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 405(d) of SMCRA requires that the State have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this regulation effectively immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget
(OMB)under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State AMLR plans and revisions thereof because each plan is drafted and promulgated by a specific State, not by OSM. Decisions on proposed State AMLR plans and revisions thereof submitted by a State are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR Part 884. Executive Order 13132—Federalism This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that state laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that state programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)Considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act No environmental impact statement is required for this rule since agency decisions on proposed State AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose any unfunded mandates on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 906 Abandoned mine reclamation programs, Intergovernmental relations, Surface mining, Underground mining. Dated: August 18, 2006. Allen D. Klein, Director, Western Region. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below: PART 906—COLORADO ABANDONED MINE LAND RECLAMATION PROGRAMS 1. The authority citation for part 906 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 906.25 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows: § 906.25 Approval of Colorado abandoned mine land reclamation plan amendments. Original amendment submission date Date of final publication Citation/description * * * * * * * October 29, 1996 and June 15, 2005 September 18, 2006 Colorado Inactive Mine Reclamation Plan, Chapter VI. [FR Doc. E6-15442 Filed 9-15-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 917 [KY-250-FOR] Kentucky Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. SUMMARY: We are approving an amendment, with one exception, to the Kentucky regulatory program (the “Kentucky program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Kentucky submitted three separate items with revisions pertaining to prepayment of civil penalties, easements of necessity for reclamation on bankruptcy sites, and various statutes to eliminate outdated language. DATES: *Effective Date:* September 18, 2006. FOR FURTHER INFORMATION CONTACT: William J. Kovacic, Telephone:
(859)260-8400. Telefax number:
(859)260-8410. SUPPLEMENTARY INFORMATION: I. Background on the Kentucky Program II. Submission of the Proposed Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Kentucky Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program on May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval in the May 18, 1982, **Federal Register** (47 FR 21434). You can also find later actions concerning Kentucky's program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16 and 917.17. II. Submission of the Proposed Amendment By letter dated March 28, 2006, Kentucky sent us a proposed amendment to its program under SMCRA (30 U.S.C. 1201 *et seq.* ) at its own initiative ([KY-250-FOR], Administrative Record No. KY-1642). The full text of the program amendment is available for you to read at the location listed above under ADDRESSES . III. OSM's Findings Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes. The first change was mandated by the Supreme Court of Kentucky (Court) in the case of *Commonwealth of Kentucky, Natural Resources and Environmental Protection Cabinet* v. *Kentec Coal Co., Inc.* , No. 2003-SC-000622-DG. The Court issued an opinion on September 22, 2005, in which it found that the provisions of 405 KAR [Kentucky Administrative Regulations] 7:092 that required a corporate permittee to prepay an assessed civil penalty to get a due process hearing on the penalty amount was an unconstitutional violation of equal protection provisions of the State and Federal constitutions. The court also held that the assessment of the penalty against Kentec without prepayment and without consideration of the permittee's inability to pay was a violation of Section 2 of the Kentucky Constitution and an unreasonable and arbitrary exercise of the Kentucky Environmental and Public Protection Cabinet's (Cabinet) authority. The Department for Natural Resources' Division of Mine Reclamation and Enforcement, in response to this ruling, has altered the provisions on its notices of assessment of civil penalties to comply with the ruling. The Division uses the following statement of appeal rights on the assessment notices: Should you decide not to negotiate, you have three
(3)options remaining to resolve the proposed assessment. You may
(1)choose not to contest the amount of the proposed assessment or the violation in which case a final Order [order] of the Secretary will be entered. **Note:** If an administrative hearing as to the fact of the violation was properly requested under 405 KAR 7:092, the final order will only determine the amount of the penalty and *not* the fact of the violation;
(2)request an assessment conference to contest the proposed assessment; **Note:** The Kentucky Bar Association has determined that the appearance of individual who is not a licensed attorney, on behalf of a third person, corporation or another entity, at a penalty assessment conference constitutes the unauthorized practice of law. Corporations or other entities must be represented by counsel at penalty assessment conferences. Individuals may represent themselves; or
(3)request an administrative hearing instead of an assessment conference. See 405 KAR 7:092, Section 6. Prepayment of the proposed assessment is no longer required. [emphasis added] The Office of Administrative Hearings has also altered language on the Penalty Assessment Conference Officer's Report that advises permittees of their rights to an administrative hearing. That language reads as follows: Any person issued a proposed penalty assessment may request an administrative hearing to contest the Conference Officer's recommended penalty or the fact of the violation or both by filing with the Office of Administrative Hearings, 35-36 Fountain Place, Frankfort, Kentucky 40601, a petition under Section 6 of 405 KAR 7:092. The Cabinet may also request under Section 5 of 405 KAR 7:092 an administrative hearing to contest the Conference Officer's recommended penalty. [Permittee] should take notice that given the decision by the Supreme Court of Kentucky in Environmental and Public Protection Cabinet v. Kentec, 2005 WL 2316191, __S.W. 3d__, (2005), the provisions of 405 KAR 7:092, Section 6 (2)(b) requiring prepayment of the proposed penalty ARE NO LONGER IN EFFECT and [Permittee] DOES NOT need to prepay the recommended penalty amount in the event it decides to request a Formal Administrative Hearing. If a request for an administrative hearing is not filed with the Office of Administrative Hearings within thirty
(30)days of mailing of this Report and Recommendation, the Secretary shall enter an order providing:
(a)That [Permittee] has waived all rights to an administrative hearing on the amount of the proposed assessment;
(b)that the fact of violation is deemed admitted; and
(c)that the penalty assessment contained in this Report and Recommendation is deemed accepted and is due and payable to the Cabinet within thirty
(30)days after the entry of the final order. If a petition requesting a hearing as to the fact of the violation has been timely filed pursuant to Section 7 of 405 KAR 7:092, the finding set forth in clause
(b)of the preceding sentence shall be omitted from the Secretary's order and the penalty assessment contained in this Report and Recommendation shall be due and payable within thirty
(30)days of the mailing of the final order affirming the fact of a violation. [emphasis added] This is the second time the Supreme Court of Kentucky has ruled that prepayment requirements used by the cabinet for due process hearings regarding surface mining violations are unconstitutional under the Kentucky Constitution. The ruling in *Franklin* v. *Natural Resources and Environmental Protection Cabinet* , 799 S.W.2d 1 (Ky. 1990) held that a similar prepayment requirement that applied to all persons violated the equal protection clauses of the State and Federal constitutions. Kentucky undertook a major revamp of its hearing procedures in response to that ruling and put the current hearings process in place. That process, insofar as the prepayment requirement is concerned, has now been found unconstitutional. The Supreme Court of Kentucky ruling notwithstanding, section 518(c) of SMCRA and the Federal regulations require prepayment of a proposed penalty if a hearing is requested. The Federal regulations at 30 CFR 845.19(a) clearly state: The person charged with the violation may contest the proposed penalty or the fact of the violation by submitting a petition and an amount equal to the proposed penalty or, if a conference has been held, the reassessed or confirmed penalty to the Office of Hearings and Appeals (to be held in escrow * * *) within 30 days from receipt of the proposed assessment or reassessment or 30 days from the date of service of the conference officer's action, whichever is later. Because Kentucky is waiving prepayment of the penalty specifically required by the Federal regulations, the Director finds that Kentucky's proposed revision is less stringent than section 518(c) of SMCRA and less effective than the Federal regulations at 30 CFR 845.19(a) and therefore cannot be approved. The second proposed change is Senate Bill 219, which creates an easement of necessity to conduct reclamation operations by entities who have assumed the reclamation obligations of a bankrupt permittee and where the rights of entry held by the permittee have been terminated. The terms only apply to those areas where only reclamation is being performed. It does not apply to areas where coal removal is planned by a successor to the permittee. The legislation calls for payment of a sum certain to rights holders and allows the parties to take any disputes about the sufficiency of the payment to court for an adjudication of an appropriate amount. There is no Federal counterpart to these provisions. Because they provide a method for ensuring reclamation that is in addition to the methods provided for in the Federal rule, the revisions Kentucky proposes in this amendment are approved in accordance with Section 505(b) of SMCRA. The third proposed change is Senate Bill 136 which deletes certain language from Chapter 350 of the Kentucky Revised Statutes (KRS), the chapter containing the Kentucky surface mining laws. This bill eliminates language in: KRS 350.060(12) relating to the two-acre exemption and KRS 350.060(16) pertaining to permit renewal applications that were not timely filed; KRS 350.075(3) requiring the submission of regulations before August 1, 1986; KRS 350.090(1) relating to the exceptions for permit applications or renewals submitted in compliance with KRS 350.060(2) ( **note:** we believe that the correct citation should be KRS 350.060(12)); KRS 350.093(9) dealing with bond coverage exceptions for third party actions; and KRS 350.445(3)(g) pertaining to roads above highwalls that “support coal mining activities.” Section KRS 350.285 relating to removal of coal on private lands is deleted in its entirety. Each of these amendments to statutes eliminates language from the chapter that is outdated, was disapproved by OSM in previous years, or was a counterpart to a repealed provision of SMCRA. The OSM actions to which Kentucky is responding are listed below. At section 201 of SMCRA, OSM repealed the two-acre exemption on May 7, 1987. On May 10, 2000, OSM disapproved Kentucky's proposal at KRS 350.060(16) to issue a notice of noncompliance, instead of an Imminent Harm Cessation Order, to a person who has not yet filed a renewal application when the permit has expired (65 FR 29949). Then, on September 6, 2000, OSM set aside these provisions (65 FR 53909). On February 12, 1990, OSM disapproved Kentucky's proposal at KRS 350.093(6)(c) relieving a permittee of bond liability for actions of third parties beyond the permittee's control (55 FR 4866). Then, on June 5, 1990, OSM set aside these provisions (55 FR 22903). On November 20, 2002, OSM disapproved Kentucky's proposal at 350.285 that removal of coal on private land, incidentally and as a necessary requirement of facility construction or related excavation or landscaping, not require the landowner to obtain a surface mining permit if the coal is 5,000 tons or less, the coal is donated to a charitable organization, or if the landowner notifies Kentucky at the time the coal is first encountered (67 FR 70007). On January 16, 2003, OSM disapproved the retention of roads above highwalls “to support coal mining activities.” (68 FR 2196). Because Kentucky's revisions at KRS 350.060(12) and (16), KRS 350.090(1), KRS 350.093(9), KRS 350.285, and KRS 350.445(3)(g) either eliminate provisions disapproved by OSM, or, in the case of the “two acre exemption,” eliminate a provision that had a repealed Federal counterpart, we find that the revisions do not render the Kentucky program less stringent than the provisions of SMCRA or less effective than the Federal regulations. The following revision was made to remove outdated language. Kentucky deleted the requirement at KRS 350.075(3) to submit proposed regulations pertaining to special remining permits to OSM on or before August 1, 1986. While there is no corresponding Federal provision, we are approving the revision because it is not inconsistent with the requirements of SMCRA and the Federal regulations. We announced receipt of the proposed amendment in the May 3, 2006, **Federal Register** (69 FR 55373), and in the same document invited public comment and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on June 2, 2006. We received five comments. IV. Summary and Disposition of Comments Public Comments We solicited public comments on May 3, 2006, and provided an opportunity for a public hearing on the amendment. We received three public comments. Because no one requested an opportunity to speak, a hearing was not held. The Coal Operators and Associates
(COA)supports the three major revisions proposed by Kentucky in this submission. Regarding the changes to the assessment notices and reports that Kentucky made in response to the Kentucky Supreme Court ruling regarding prepayment of civil penalties, the COA suggested that OSM approve the changes or if OSM finds this provision to be less effective than SMCRA, it file an appeal to the U.S. Circuit Court of Appeals. Regarding the provisions of Senate Bill 219 concerning an easement of necessity to conduct reclamation and Senate Bill 136 concerning the removal of outdated or previously disapproved language, the COA recommended approval, but also stated that it believes the former Secretary erred in disapproving several of the provisions that Kentucky has herein proposed to delete. However, the COA conceded that its opposition to the disapprovals is a moot issue “with the exception of our continued belief in the right of a state to be given latitude under the program to determine how best to handle specific situations that do not conflict with the overriding tenets of SMCRA itself.” For the reasons discussed in section III above, we are approving the provisions of Senate Bills 219 and 136. However, because Kentucky's waiver of the prepayment of civil penalties is clearly less effective than the Federal regulations, it is not approvable by OSM, even though the Kentucky Supreme Court has ruled it unconstitutional. OSM's mandate, as presented in 30 CFR 732.15(a), is to ensure that a State's laws and regulations are in accordance with the provisions of SMCRA and consistent with the requirements of the Code of Federal Regulations. The Lexington Coal Company
(LCC)commented on the provisions of Senate Bill 219 which creates an easement of necessity to conduct reclamation operations in the cases of bankrupt permittees. The LCC supports the provisions because “the law balances land owner rights with the public benefits of mine reclamation.” We agree with the commenter and as discussed in section III above, are approving the easement provisions. The Kentucky Resources Council
(KRC)responded and had no comment on the provisions of Senate Bills 219 and 136. Pertaining to the prepayment of civil penalties, the KRC recommended that OSM address “whether and how other mechanisms, including partial federalization of the penalty portion of the state program, can be used to provide the same deterrent effect on frivolous appeals as was intended by the prepayment requirement.” In response, we note that we must consider all possible options in order to address the problem created by the decision in *Commonwealth of Kentucky* v. *Kentec, supra.* Federal Agency Comments According to 30 CFR 732.17(h)(11)(i), on May 3, 2006, we solicited comments from various Federal agencies with an actual or potential interest in the March 28, 2006, Kentucky program amendment (Administrative Record No. KY-1644). We received one response from the U.S. Department of the Interior, Bureau of Land Management, who concurred with the revisions. State Agency Comments According to 30 CFR 732.17(h)(4), on May 3, 2006, we solicited comments from the Kentucky State Historic Preservation Office (Administrative Record No. KY-1644) on the March 28, 2006, program amendment. Kentucky's State Historic Preservation Office responded stating the amendment has no bearing on the treatment of archaeological or historic sites. Environmental Protection Agency
(EPA)Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the written concurrence of the EPA with respect to those provisions of the proposed program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or the Clean Air Act (42 U.S.C. 7401 *et seq.* ). Because the provisions of this amendment do not relate to air or water quality standards, we did not request EPA's concurrence. V. OSM's Decision Based on the above finding, we are approving, with an exception, the amendment as submitted by Kentucky on March 28, 2006. To implement this decision, we are amending the Federal regulations at 30 CFR Part 917 which codify decisions concerning the Kentucky program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that Kentucky's program demonstrate that it has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. Effect of OSM's Decision Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSM for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSM. In the oversight of the Kentucky program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Kentucky to enforce only approved provisions. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is our decision on a State regulatory program and does not involve a Federal regulation involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 917 Intergovernmental relations, Surface mining, Underground mining. Dated: August 10, 2006. Hugh V. Weaver, Acting Regional Director, Appalachian Region. For the reasons set out in the preamble, 30 CFR part 917 is amended as set forth below: PART 917—KENTUCKY 1. The authority citation for part 917 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 917.12 is amended by adding paragraph
(f)to read as follows: § 917.12 State regulatory program and proposed program amendment provisions not approved.
(f)the changes to Kentucky's Notice of Assessment of Civil Penalties and Penalty Assessment Conference Officer's Report that specify that prepayment of a proposed assessment or penalty is no longer required are not approved. 3. Section 917.15 is amended in the table by adding a new entry in chronological order by the “Date of final publication” to read as follows: § 917.15 Approval of Kentucky regulatory program amendments. Original amendment submission date Date of final publication Citation/description * * * * * * * March 28, 2006 September 18, 2006 Easements of necessity, deletion of outdated language in KRS Chapter 350 [FR Doc. E6-15443 Filed 9-15-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [PA-146-FOR] Pennsylvania Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule. SUMMARY: We are removing six required amendments to the Pennsylvania regulatory program (the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). These required amendments pertain to civil penalties, non-augmentative normal husbandry practices, affected area, access roads, and permit renewal applications. We are removing these required amendments because these changes are no longer necessary for the Pennsylvania program to be consistent with the corresponding Federal regulations. DATES: *Effective Date:* September 18, 2006. FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh Field Division, Telephone:
(717)782-4036, e-mail: *grieger@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Pennsylvania Program II. The Proposed Rule III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Pennsylvania Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, **Federal Register** (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16. II. The Proposed Rule In this rulemaking, we are removing the required amendments codified in the Federal regulations at 30 CFR 938.16(r), (eee), (ggg), (kkk),
(lll)and (qqq). We required these amendments in the May 31, 1991 final rule (56 FR 24687). By letters dated February 7, 2006 (Administrative Record No. PA 803.37), and February 28, 2006 (Administrative Record No. PA 803.36), the Pennsylvania Department of Environmental Protection (PADEP) sent OSM its explanation and rationale of why it believes the Pennsylvania program is no less effective than the Federal requirements and that the required amendments codified at 30 CFR 938.16(eee), (ggg),
(qqq)and
(ttt)should be removed. Our review of PADEP's explanation and rationale results in our removing three of the four required amendments. We are not removing the required amendment at 30 CFR 938.16(ttt) as discussed below under “OSM Findings”. We are also removing required amendments codified at 30 CFR 938.16(r), (kkk), and (lll). The removal of these three required amendments is a result of our review of the required amendments and the reason they were required. We have determined that they are no longer necessary for the Pennsylvania program to be consistent with the corresponding Federal regulations. We announced receipt of the State's letters and our proposal to remove these amendments in the May 23, 2006, **Federal Register** (71 FR 29597-29604). In the same notice, we opened the public comment period and provided an opportunity for a public hearing or meeting on the proposal to remove the required amendments. The public comment period ended on June 22, 2006. We did not hold a public hearing on the rulemaking because one was not requested. We received written comments from two Federal agencies and one environmental group. III. OSM's Findings Following are the findings we made concerning removal of the required program amendments under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are removing six required amendments codified in the Federal regulations at 30 CFR 938.16(r), (eee), (ggg), (kkk), (lll), (qqq). 30 CFR 938.16(r). Civil Penalties Required Amendment: We required Pennsylvania to amend Chapter 86.193(h) or otherwise amend its program to be no less effective than 30 CFR 846.12(a) by clarifying that an individual civil penalty
(ICP)is not a substitute for mandatory civil penalties, and also to clarify when the assessment of an individual civil penalty would be appropriate. (See 56 FR 24696, May 31, 1991). Our analysis of this required amendment was presented in the May 23, 2006, proposed rule notice (71 FR 29598). The first part of the required amendment was resolved by an amendment PADEP submitted on January 23, 1996 (PA 838.00-Part 1), in which it deleted the portion of 25 Pa. Code 86.195(h) that stated that “The Department may, when appropriate, assess a penalty against corporate officers, directors or agents as an alternative to, or in combination with, other penalty actions.” OSM approved this deletion in a final rule issued on November 7, 1997 (62 FR 60169-60177), but did not remove the first portion of this required amendment. We are, therefore, taking the opportunity to remove the first portion in this rulemaking. The second part of the requirement stated that Pennsylvania must clarify when the assessment of an ICP would be appropriate. While subsection
(h)does not contain this clarification, subsection
(a)does. Specifically, 25 Pa. Code 86.195(a) provides for the assessment of ICPs against corporate officers who either participate in or intentionally allow violations to occur. We have previously determined that Pennsylvania's culpability standard for ICPs is actually broader than the standard contained in 30 CFR 846.12(a), since the State provision does not require “knowing” or “willful” participation. We further recognized that the term “participates” is defined to be consistent with the Federal terms “authorized, ordered or carried out.” See 25 Pa. Code 86.1 (“Participates” means “to take part in an action or to instruct another person or entity to conduct or not to conduct an activity.”). Therefore, we approved the culpability standard in subsection 86.195(a). 58 FR 18149 and 18153, April 8, 1993. (In two other respects, we found subsections 86.195(a) and
(b)to be inconsistent with Federal requirements, and imposed a required amendment at 30 CFR 938.16(eee). 58 FR at 18160. The disposition of that required amendment is discussed in the next finding.). We note that subsection 86.195(a) was promulgated after the imposition of 30 CFR 938.16(r), was approved in part in 1993, and is being approved in this rulemaking. This subsection sufficiently sets forth the circumstances that will result in the assessment of an ICP; therefore, we find that the second portion of the required amendment at 30 CFR 938.16(r) is satisfied, and it will be removed. 30 CFR 938.16(eee). Civil Penalties Required Amendment: We required Pennsylvania to submit a proposed amendment to 25 Pa. Code 86.195(a) and
(b)to specify that ICPs may be assessed against corporate directors or agents of the corporate permittee and to include provisions for the assessment of an ICP for a failure or refusal to comply with any orders issued by the Secretary. (See 58 FR 18149 and 18160, April 8, 1993). For a discussion of PADEP's explanation and rationale for requesting removal of this required amendment, see the May 23, 2006, proposed rule notice (71 FR 29598). Pennsylvania has explained, by letter dated February 7, 2006 (Administrative Record No. PA 803.37), that Section 18.4 of the Pennsylvania Surface Mining Conservation and Reclamation Act (PASMCRA) states that “the Department may assess a civil penalty upon a person or municipality * * *” 52 P.S. (Pennsylvania Statute) 1396.18d. PASMCRA provides that the term “person”, with respect to “any clause prescribing or imposing a penalty shall not exclude members of an association and the directors, officers or agents of a corporation.” 52 P.S. 1396.3. Given this information, we can now find that the Pennsylvania program authorizes the issuance of ICPs, which are “penalties”, to corporate directors and agents, as well as corporate officers. Therefore, the first portion of the required amendment at 30 CFR 938.16(eee) is unnecessary, and it will be removed. OSM imposed the second element of the required amendment because it believed that the State lacked the authority to issue ICPs for a “failure or refusal to comply with an order issued by the Secretary under the Act (such as an order to revise a permit).” (58 FR 18153). However, Pennsylvania has informed us, by letter dated February 7, 2006 (Administrative Record No. PA 803.37), that the term “violation”, contained in subsection 86.195(a), includes an individual's failure to comply with an order to modify a permit. In support of its contention, the State cited 25 Pa. Code 86.213, which authorizes the PADEP to issue orders to modify, suspend or revoke permits. Failure to comply with a permit-based order, according to PADEP, constitutes a “violation”, as that term is commonly understood. See, *e.g.* , Black's Law Dictionary 1564 (7th ed. 1999) (“violation” is defined as “an infraction or breach of the law” or, the “act of breaking or dishonoring the law.”) (Emphasis added) For these reasons, Pennsylvania contends that 25 Pa. Code 86.195(a) provides for the issuance of ICPs for failure to comply with any order issued by the PADEP, including orders with respect to permits. Our analysis of PADEP's explanation and rationale concludes that the Pennsylvania program includes the necessary authority to assess ICPs and provides for the assessment of ICPs for failure to comply with any orders issued by the Secretary. We find that the second portion of the required amendment at 30 CFR 938.16(eee) is unnecessary, and it will be removed. 30 CFR 983.16(ggg). Non-augmentative Normal Husbandry Practices Required Amendment: We required Pennsylvania to submit a proposed amendment to 25 Pa. Code 86.151(d) to define the point at which seeding, fertilization, irrigation, or rill and gully repairs cease to be augmentative and may be considered non-augmentative normal husbandry practices. Moreover, Pennsylvania was required to submit a proposed amendment to require that such practices be evaluated and approved in accordance with the State program amendment process and 30 CFR 732.17 (58 FR 18160). For a full discussion of PADEP's explanation and rationale for requesting removal of this required amendment, see the May 23, 2006, proposed rule notice (71 FR 29600). Pennsylvania has explained, by letter dated February 28, 2006 (Administrative Record No. PA 803.36), that its regulations define the point at which practices cease to be selective husbandry and become subject to liability extension in a manner that is consistent with the Federal regulations at 30 CFR 816/817.116(c)(4). Specifically, Pennsylvania cited other portions of 25 Pa. Code 86.151(d), which declare that normal husbandry practices, such as “pest and vermin control, pruning, repair of rills and gullies or reseeding or transplanting or both”, will not require restarting the revegetation responsibility period so long as they “constitute normal conservation practices within the region for other land with similar uses.” We note that the quoted language is consistent with, and therefore no less effective than, its Federal counterparts at 30 CFR 816/817.116(c)(4) (“Approved practices shall be normal husbandry practices within the region for unmined lands having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control; and any pruning, reseeding, and transplanting specifically necessitated by such actions”). Finally, we note that our 1993 disapproval of the word “augmented”, in the last sentence of subsection 86.151(d), remains in place. We disapproved this word because its presence created the inference that there could be instances when “augmented” seeding would not necessitate restarting of the revegetation liability period. See 58 FR 18154. However, we neglected to codify the disapproval on April 8, 1993, and are therefore taking the opportunity to correct this oversight. The information provided by Pennsylvania, coupled with the disapproval of the word “augmented”, persuade us that the State program adequately defines the point at which seeding, fertilization, irrigation, or rill and gully repairs cease to be augmentative and may be considered non-augmentative normal husbandry practices. Therefore, we find that the first portion of the required amendment at 30 CFR 938.16(ggg) is unnecessary, and it will be removed. With respect to the second portion of the required amendment, Pennsylvania informed us, by letter dated February 28, 2006 (Administrative Record No. PA 803.36), that it has not approved any alternative selective husbandry practices beyond those already approved in 25 Pa. Code 86.151(d). If such additional “non-augmentative normal husbandry practices” are proposed, Pennsylvania will submit them to OSM in accordance with the State program amendment process before these practices are approved in Pennsylvania. Based upon this assurance, we find that the second portion of 30 CFR 938.16(ggg) has been satisfied and will be removed. However, we will continue to monitor the Pennsylvania program through Federal oversight and may in the future take action if we find that the State is not implementing its program in accordance with this finding. 30 CFR 938.16(kkk). Affected Area Required Amendment: We codified a required amendment at 30 CFR 938.16(kkk) requiring PADEP to submit a proposed amendment to 25 Pa. Code 88.1 requiring that the definition of affected area include all roads that receive substantial use and are substantially impacted by the mining activity (58 FR 18160). After further review, OSM has determined that the required program amendment at 30 CFR 938.16(kkk) was mistakenly imposed, because the Pennsylvania program includes a “road rule” consistent with OSM's 1988 regulation. A full explanation of our rationale can be reviewed in the May 23, 2006 proposed rule notice (71 FR 29600-29601). Specifically, Pennsylvania's anthracite mining regulations define “road” to include “access and haul roads constructed, used, reconstructed, improved or maintained for use in coal exploration or surface coal mining activities.” 25 Pa. Code 88.1. This portion is substantively identical to its Federal counterpart at 30 CFR 701.5. The Federal definition of “road”, promulgated in 1988, contains no reference to the “affected area”, since OSM concluded that its new “road” definition was “clear on its own terms as to which roads are included.” (See 53 FR 45190 and 45192, November 8, 1988). OSM also determined that the definition of “affected area”, as partially suspended, “no longer provides additional guidance as to which roads are included in the definition of ‘surface coal mining operations.’ ” (See 53 FR 45193). In other words, as of December 8, 1988 (the effective date of the final rule promulgated on November 8, 1988), a “road” meeting the criteria of the definition at 30 CFR 701.5 would be regulated as a surface coal mining operation, without regard to the suspended portion of the “affected area” definition. Moreover, the definition of “road” is broad enough to be capable of including some public roads. In fact, OSM expressly declined to exclude public roads from the definition, because “[j]urisdiction under the Act and applicability of the performance standards are best determined on a case-by-case basis by the regulatory authority.” See 53 FR 45193. Indeed, the 1988 “road” definition focuses on the use of the road by the mining operation, rather than use by the public, thereby alleviating the concern that resulted in the partial invalidation of the “public roads” exclusion within the definition of “affected area” in 1985. (See In Re: Permanent Surface Mining Regulation Litigation, 620 F. Supp. 1519, 1581-2 (D.D.C. 1985). Since Pennsylvania's regulations contain a substantively identical counterpart to the Federal definition of “road”, an amendment to the State's “affected area” definition is unnecessary and should not have been required in 1993. Therefore, the required amendment at 30 CFR 938.16(kkk) will be removed. 30 CFR 938.16(lll). Access Roads Required Amendment: We required that Pennsylvania submit a proposed amendment to Section 88.1 to require that the definition of access road include all roads that are improved or maintained for minimal and infrequent use and that the area of the road is comprised of the entire area within the right-of-way, including roadbeds, shoulders, parking and side areas, approaches, structures, and ditches. (58 FR 18160) After further review, OSM has determined that the required program amendment at 30 CFR 938.16(lll) was mistakenly imposed since the Pennsylvania program contains a definition consistent with OSM's regulation. For a full explanation of our review of the Pennsylvania program which led to our determination that this amendment is satisfied without any further action by Pennsylvania, please review the May 23, 2006, proposed rule notice (71 FR 29601). Specifically, Pennsylvania's anthracite mining regulations define “road” to include “access and haul roads constructed, used, reconstructed, improved or maintained for use in coal exploration or surface coal mining activities.” 25 Pa. Code 88.1. Moreover, Pennsylvania defines “access road” to include roads “located * * * for minimal or infrequent use.” Id. Finally, the Pennsylvania definition of “road” contains the following language required by 30 CFR 938.16(lll): “A road consists of the entire area within the right-of-way, including the roadbed shoulders, parking and side areas, approaches, structures, [and] ditches.” Id. Read together, Pennsylvania's definitions of “access road” and “road” satisfy the required amendment. Indeed, OSM would not have imposed the requirement in 1993 if it had first examined these two definitions. Therefore, we will remove this required amendment. 30 CFR 938.16(qqq). Permit Renewals Required Amendment: We required Pennsylvania to submit a proposed amendment to § 86.55(j), or otherwise amend its program, to require that any applications for permit renewal be submitted at least 120 days before the permit expiration date. (62 FR 60169 and 60171, November 7, 1997.) For a full discussion of PADEP's explanation and rationale for requesting removal of this required amendment, see the May 23, 2006, proposed rule notice (71 FR 29601). Pennsylvania explained to us, by letter dated February 7, 2006 (Administrative Record No. PA 803.37), that its program provides sufficient safeguards to assure that renewals filed under § 86.55(j) are required to meet the public notice and participation requirements, and that coal mining will not continue after the permit expiration date. Nevertheless, § 86.55(j) appears to allow permittees to submit renewal applications within 120 days of permit expiration. This provision is silent, however, with respect to the consequences that flow from an untimely filing. In 1997, we concluded that this allowance rendered the Pennsylvania program less stringent, per se, than subsection 506(d)(3) of SMCRA and less effective, per se, than the Federal regulations at 30 CFR 774.15(b). Both Federal provisions require that renewal applications be filed at least 120 days prior to permit expiration. Since our 1997 decision, we have had the opportunity to reexamine our position. In a May 10, 2000, rulemaking, we partially disapproved a Kentucky statute that would have allowed coal mining operations to continue on an expired permit, so long as the permittee had submitted a renewal application, even where that application was not filed in a timely fashion. 65 FR 29949 and 29953. In response to a commenter who asserted that the filing of an untimely renewal application ( *i.e.* , an application filed within 120 days of expiration) violates subsection 506(d)(3) of SMCRA, we stated that: (W)e agree with the commenter that the untimely filing of a renewal application can constitute a violation of Section 506(d)(3) * * * We do not agree, however, that allowing the filing of a late renewal application violates Section 506(d)(3). Instead, we believe this provision is sufficiently flexible to allow consideration of untimely application, so long as the permit renewal procedures, which include public participation, are properly followed. 65 FR 29951 (Emphasis in original) We believe this rationale applies with equal force here. Pennsylvania's program already contains an advance filing requirement at 25 Pa. Code 86.55(c). Failure to comply with this provision can constitute a violation, just as failure to comply with the 120 day filing requirement can constitute a violation of SMCRA under a Federal program. Moreover, this requirement is more stringent than the Federal one since it requires renewal applications to be filed at least 180 days prior to expiration. Therefore, we conclude that it is unnecessary for Pennsylvania to incorporate a 120 day advance filing requirement. Neither the Federal nor the State provision expressly bars the renewal of a permit if the application was not timely filed. We find that subsection 86.55(j) is not inconsistent with subsection 506(d)(3) of SMCRA or with 30 CFR 774.15(b). Finally, Pennsylvania's program requires that all renewal applications be subject to the public notice and participation requirements of 25 Pa. Code 86.31. See 25 Pa. Code 86.55(d). For the above-stated reasons, we find that the required amendment at 30 CFR 938.16(qqq) is no longer necessary and the Pennsylvania program is consistent with SMCRA and the Federal regulations, and it will be removed. 30 CFR 938.16(ttt). Noncoal Waste In Refuse Piles Required Amendment: OSM required Pennsylvania to submit a proposed amendment to 25 Pa. Code 88.321 and 90.133, or otherwise amend its program, to require that no noncoal waste be deposited in a coal refuse pile or impounding structure. (See 62 FR 60177). PADEP requested the removal of 30 CFR 938.16(ttt), by letter dated February 7, 2006 (Administrative Record No. PA 803.37), on the fact that the Pennsylvania program does not allow for noncoal waste to be deposited in a coal refuse pile or impounding structure. First, as we noted in the proposed rule for this rulemaking, the requirement to amend Section 88.321 was improperly imposed, because anthracite mining performance standards, including 25 Pa. Code 88.321, are exempt from the obligation to comply with SMCRA's performance standards, by virtue of section 529 of SMCRA. See 71 FR 29602. Therefore, we are removing that portion of the required amendment codified at 30 CFR 938.16(ttt). With respect to the requirement to amend 25 Pa. Code 90.133, PADEP explains in their letter of February 7, 2006, that protections are provided throughout the Pennsylvania program prohibiting noncoal materials from being deposited on a coal refuse site or impounding structure. For a full explanation of Pennsylvania's explanation and rationale for requesting removal of this required amendment, see the May 23, 2006, proposed rule notice (71 FR 29602). In our November 7, 1997, final rule, we were concerned that § 90.133 appears to prohibit placement of the listed materials, and other materials with low ignition points, in refuse piles or impoundment structures. The Federal regulation at 30 CFR 816.89(c), on the other hand, expressly prohibits the placement of any noncoal mine waste in these two areas. See 62 FR 60274. PADEP contends that the reference to listed materials, and others with low ignition points, does not imply that other noncoal waste are acceptable for disposal at coal refuse sites. Rather, PADEP asserts that the inclusion of this language was “meant to emphasize the need to restrict the presence of combustible materials that could cause the coal refuse to ignite.” (Id). Furthermore, PADEP asserts that § 90.133 does require that all noncoal wastes be disposed of in accordance with the State's Solid Waste Management Act. That statute, found at 35 P.S. 6018.101 *et seq.* , however, does not expressly prohibit noncoal wastes from being placed in coal refuse piles or impounding structures. Based on the above-stated analysis, OSM has reviewed this proposed amendment and determined that the Pennsylvania program does not include any express prohibitions against placement of any noncoal waste materials in a coal refuse pile or impoundment similar to those found at 30 CFR 816.89(c). Because of this we cannot remove the required amendment at 30 CFR 938.16(ttt) at this time. IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment in a **Federal Register** Notice dated May 23, 2006 (71 FR 29597-29604). We received specific comments from the Citizens for Pennsylvania's Future (Pennfuture) stating that OSM ignored its duty, which they assert was in existence until a regulatory change effective October 20, 2005, to initiate action under 30 CFR part 733 (part 733) after Pennsylvania failed to submit amendments, or at least descriptions thereof, within 60 days of the promulgation of the requirements to submit program amendments to address deficiencies. In support of its contention, Pennfuture cited 30 CFR 732.17(f)(2), State program amendments, which states that: “If the State regulatory authority does not submit the proposed amendment or description and the timetable for enactment within 60 days from the receipt of the notice, or does not subsequently comply with the submitted timetable, or if the amendment is not approved under this section, the Director shall begin proceedings under 30 CFR part 733 to either enforce that part of the State program affected or withdraw approval, in whole or in part, of the State program and implement a Federal program.” In response, we note that the issue of whether OSM should have initiated part 733 proceedings against Pennsylvania for its failure to timely comply with the requirements at 30 CFR 938.16(r), (eee), (ggg), (kkk), (lll), (qqq), and
(ttt)is simply not germane to this rulemaking. Rather, the questions presented to OSM are whether the various rationales put forth by OSM, or the PADEP, to support removal of these requirements are sufficient to justify findings that the Pennsylvania program is consistent with SMCRA and the Federal regulations in the areas addressed by the required amendments intent and language. We make determinations to remove these required amendments where we find that the answer to this question is yes. This finding makes the issue of whether part 733 action should have been taken moot. Where we find that the rationales are not sufficient to justify findings that the Pennsylvania program is consistent with SMCRA and the Federal regulations, we will act in accordance with 30 CFR 732.17, which now allows us some discretion as to whether to initiate action under part 733. Under either outcome, the former provision at 30 CFR 732.17(f)(2) would be inapplicable. Pennfuture also stated that neither Pennsylvania's rationale for removal of some of the requirements, or OSM's rationale supplied on its own initiative to justify the removal of the remaining requirements, were submitted in a timely manner. In support of this argument, Pennfuture cited section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), which requires that any petition for review of an OSM rulemaking decision with respect to a State program must be filed within 60 days, unless “the petition is based solely on grounds arising after the sixtieth day.” Pennfuture contends that OSM is violating this provision because the rationale provided herein by OSM and the PADEP existed, in each instance, at the time OSM imposed the required amendments. Thus, Pennfuture argues, section 526(a)(1) bars both OSM and the PADEP from reconsideration of the rationale that led to the imposition of those required amendments. It asserts that to allow the State “a second bite at the apple” would ignore the doctrine of administrative finality and create a slippery slope. According to Pennfuture, OSM would then be obligated to entertain a request by any party for the “rescission of, or the addition of conditions to, OSM's approval of program amendments, even where those requests are not based solely on grounds that arose after the 60-day deadline for filing a petition for review expired.” We disagree with Pennfuture's interpretation because its argument fails to recognize the distinction between the judicial review opportunity mandated by SMCRA and OSM's discretion to reconsider its previously held position. Section 526(a)(1) prescribes the conditions that must be met in order for an entity to obtain judicial review of a State program amendment decision. If the party meets the criteria of this section, judicial review is mandatory; i.e., OSM has no discretion to prevent review of its decision in this instance. It simply does not follow, however, that this statutory mandate also prevents OSM from electing to reconsider a decision, and its underlying rationale, even where that reconsideration is based on information or argument that existed when the original decision is made. It is a long established precedent that an agency may reverse its position, so long as it provides sufficient rationale for the change. See, e.g., *Pennsylvania Dept. of Public Welfare* v. *United States* , 781 F.2d 334, 339 (3rd Cir. 1986) (“An agency may change course, as long as it supplies a reasoned explanation for the shift; the same ‘arbitrary and capricious’ standard is applied on review of the new action.”). We believe that sufficient rationale is set forth in this rulemaking to justify our removal of each of the subject required amendments. We agree with Pennfuture that our action today may encourage parties to demand rescission of, or additional conditions placed upon, previous State program amendment approvals. Nevertheless, persons have always been free to ask OSM to reconsider a decision. Where OSM receives such a request it will review the information and arguments in support thereof then exercise its discretion to grant or deny it. Such discretion must be employed reasonably, of course, just as it was in each of the instant matters. Pennfuture argues that Pennsylvania's clarification of the approved program required by 30 CFR 938.16(r) must be incorporated into the State's approved program, perhaps in the form of a technical guidance document or written policy explaining how the State assesses ICPs. We disagree, because Pennsylvania's clarifications, and our rationale for removing the required amendment, are based on statutory and regulatory provisions contained in the State's approved program. Pennfuture also asserts that OSM is wrong to state that the required amendment at 938.16(kkk) was rendered moot by the earlier promulgation of OSM's “road rule” in 1988. A matter is generally rendered moot, Pennfuture contends, by subsequent, rather than previous, events. Thus, the 1993 required amendment cannot have been mooted by the 1988 rulemaking. In response, we agree that we could have selected a more appropriate adjective to describe the vitality, or lack thereof, imbued within 30 CFR 938.16(kkk), pertaining to the anthracite regulatory definition of “affected area.” Instead, we might have said that this required amendment was mistakenly imposed, since the Pennsylvania program contains a “road rule” consistent with OSM's 1988 regulation. Indeed, we have set forth this precise rationale in the finding, contained herein, that the required amendment can be removed. Pennfuture contends that OSM correctly imposed the required amendment at 30 CFR 938.16(lll) because Pennsylvania made a deliberate choice to define “access road” differently in its anthracite regulations, since the program also contains “access road” definitions for surface mining and coal refuse disposal operations. Thus, Pennfuture argues, Pennsylvania intended that its anthracite definition of “access road” be different in scope than its counterpart definition for other types of mining. Finally, Pennfuture states that there is no indication that the definition of “road” in § 88.1, which we now rely upon to support removal of the required amendment, differed in any respect when the required amendment was imposed in 1993. At most, the definition of “road” creates an ambiguity about the scope of “access roads” so OSM acted reasonably in 1993 to remove that ambiguity. In response, we note that had we taken the definition of “road” into account in 1993, we would not have imposed the required amendment. That definition, which has no counterpart in Chapter 87 (surface mining) or in Chapter 90 (coal refuse disposal), explicitly includes “access roads”, and expressly includes all roads that are “improved or maintained” for use in coal exploration or surface coal mining activities. Thus, we believe there is no ambiguity with respect to the scope of regulated access roads in Pennsylvania, and have consequently determined that the required amendment at 30 CFR 938.16(lll) is unnecessary. Pennfuture also contends that OSM cannot rely on the rationale from the May 10, 2000, Kentucky program rulemaking (65 FR 29949) to justify removal of the required amendment at 30 CFR 938.16(qqq). We disagree, for the reasons set forth in our finding above. Both Kentucky's and Pennsylvania's programs contain advance filing requirements for permit renewal applications. In Kentucky, we concluded that failure to adhere to its requirement did not bar the issuance of permit renewals. Because we reach the same conclusion today with respect to Pennsylvania, we further conclude that the required amendment creates a superfluous, and therefore unnecessary, obligation. Finally, Pennfuture asserts that the technical guidance document referred to in the proposed rule as a rationale to remove 30 CFR 938.16(qqq), must be made part of the approved program. We disagree with this perspective. Although the document is not part of the Pennsylvania program, it is an extension of how the program is implemented. Moreover, our finding above does not rely upon the technical guidance document, but on the regulation itself. Federal Agency Comments Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies (Administrative Record No. PA 803.40). The Mine Safety and Health Administration (MSHA), District 1 and 2 responded (Administrative Record Nos. PA 803.42 and PA 803.41) with no specific comments to the removal of these required amendments. Environmental Protection Agency
(EPA)Comments Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. PA 802.31). The EPA, Region III, responded that they had determined that OSM's removal of the required amendments would not be inconsistent with the Clean Water Act (Administrative Record No. PA 803.44). V. OSM's Decision Based on the above findings, we are removing the required amendments at 30 CFR 938.16 (r), (eee), (ggg), (kkk), (lll), and (qqq). We are also codifying a disapproval of the word “augmented”, which is contained in the last sentence of 25 Pa. Code 86.151(d). To implement this decision, we are amending the Federal regulations at 30 CFR 938.12, 938.15 and 938.16 which codify decisions concerning the Pennsylvania program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by Section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of Subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Government In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Pennsylvania does not regulate any Native Tribal lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of Section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the Pennsylvania submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the Pennsylvania submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: August 11, 2006. Hugh Vann Weaver, Acting Regional Director, Appalachian Regional Office. For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below: PART 938—PENNSYLVANIA 1. The authority citation for part 938 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 938.12 is amended by adding new paragraph
(d)to read as follows: § 938.12 State statutory, regulatory and proposed program amendment provisions not approved.
(d)We are not approving the word “augmented” in the last sentence of subsection 86.151(d) that we found to be less effective on April 8, 1993 (58 FR 18154). § 938.16 [Amended] 3. Section 938.16 is amended by removing and reserving paragraphs (r), (eee), (ggg), (kkk), (lll), and (qqq). [FR Doc. E6-15445 Filed 9-15-06; 8:45 am] BILLING CODE 4310-05-P 71 180 Monday, September 18, 2006 Proposed Rules GOVERNMENT ACCOUNTABILITY OFFICE 4 CFR Part 81 Public Availability of Government Accountability Office Records AGENCY: Government Accountability Office. ACTION: Proposed rule; request for comments. SUMMARY: These proposed revisions would clarify and broaden the existing exemption regarding the disclosure of congressional correspondence and create a new exemption to allow for the withholding of records of interviews created by GAO in connection with its work. Specifically, the proposed revision to the congressional correspondence exemption would enable GAO to release or withhold congressional correspondence without prior congressional authorization. The proposed new exemption would enhance the open, frank, and honest exchange of information from other agencies, nonfederal organizations, and individuals to GAO during the course of a GAO audit, evaluation, or investigation. DATES: Comments must be received on or before November 2, 2006. ADDRESSES: Comments on these proposed revisions may be mailed or hand-delivered to: Government Accountability Office, Office of the General Counsel, Attn: Legal Services, Room 7838, 441 G Street, NW., Washington, DC 20548. Comments may also be e-mailed to *bielecj@gao.gov* or faxed to 202-512-8501. FOR FURTHER INFORMATION CONTACT: John A. Bielec, Deputy Assistant General Counsel; telephone 202-512-2846; e-mail *bielecj@gao.gov* . SUPPLEMENTARY INFORMATION: Comments Invited GAO is not subject to the Administrative Procedures Act and accordingly is not required by law to seek comments before issuing a final rule. However, GAO has decided to invite interested persons to participate in this rulemaking by submitting written comments regarding the proposed revisions. Application of the Administrative Procedures Act to GAO is not to be inferred from this invitation for comments. GAO will consider all comments received on or before the closing date for comments. GAO may change the proposed revisions based on the comments received. Background While GAO is not subject to the Freedom of Information Act (5 U.S.C. 552), GAO's disclosure policy follows the spirit of the act consistent with its duties, functions, and responsibilities to the Congress. 4 CFR 81.1. Application of the Freedom of Information Act to GAO is not to be inferred from the provisions of these regulations. Id. Under § 81.6(a), GAO is not required to obtain congressional authorization before releasing or withholding congressional contact memoranda. The proposed revision to § 81.6(a) would clarify that GAO is also not required to obtain congressional authorization prior to the release or withholding of congressional correspondence from its records. This proposed revision would thereby ensure consistency in the handling of records that contain information regarding the communications between GAO and congressional members. GAO also is proposing an amendment to § 81.6 that would enable it to protect from disclosure records of interviews created in connection with its audits, evaluations or investigations. In order to carry out its audit, evaluation and investigation functions, GAO frequently needs to interview employees of other agencies and nonfederal organizations. The success of GAO's work requires that employees of these agencies and organizations provide open, frank, and honest opinions during these interviews. Since the terrorist attack on September 11, 2001, employees from certain agencies and organizations have expressed concern and reluctance to share sensitive information with GAO without some assurance that the information will not be disclosed to the public. Of particular concern is that through the audit process and agency-provided access to their employees and officials, a record is being created that would not necessarily otherwise exist that may be unprotected from public disclosure. To enhance the cooperation from other agencies and nonfederal organizations with GAO during the interview process, GAO proposes to add a new exemption to § 81.6. The exemption will provide GAO with the discretion to withhold records of interviews created in connection with its audits, evaluations, and investigations of programs, activities, and funding of government agencies. List of Subjects in 4 CFR Part 81 Administrative practice and procedure, Archives and records, Freedom of information. For the reasons set forth in the preamble, GAO proposes to amend 4 CFR part 81 as follows: PART 81—PUBLIC AVAILABILITY OF GOVERNMENT ACCOUNTABILITY OFFICE RECORDS 1. The authority citation for part 81 continues to read as follows: Authority: 31 U.S.C. 711. 2. In § 81.6, revise paragraph
(a)and add a new paragraph
(n)to read as follows: § 81.6 Records which may be exempt from disclosure.
(a)Records relating to work performed in response to a congressional request (unless authorized by the congressional requester), congressional correspondence, and congressional contact memoranda.
(n)Records of interviews created by GAO in connection with an audit, evaluation, or investigation of a program, activity, or funding of a government agency. Dated: September 11, 2006. Gary L. Kepplinger, General Counsel, Government Accountability Office. [FR Doc. E6-15474 Filed 9-15-06; 8:45 am] BILLING CODE 1610-02-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-105248-04] RIN 1545-BE09 Elimination of Country-by-Country Reporting to Shareholders of Foreign Taxes Paid by Regulated Investment Companies AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. SUMMARY: This document contains proposed regulations that would generally eliminate country-by-country reporting by a regulated investment company
(RIC)to its shareholders of foreign source income that the RIC takes into account and foreign taxes that it pays. RICs will continue to report this information directly to the IRS. The regulations will affect certain RICs that pay foreign taxes and the shareholders of those RICs. DATES: Written or electronic comments and requests for a public hearing must be received by December 18, 2006. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-105248-04), Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be sent electronically via the IRS Internet site at: *http://www.irs.gov/regs* or Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-105248-04). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Susan Thompson Baker,
(202)622-3930; concerning submissions of comments and requests for a public hearing, Kelly Banks,
(202)622-7180 (not toll free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collection of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by November 17, 2006. Comments are specifically requested concerning: The accuracy of the estimated burden associated with the proposed collection of information (see below); Whether the proposed collection of information is necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility; How the quality, utility, and clarity of the information to be collected may be enhanced; How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information. The collection of information in this proposed regulation is in § 1.853-4(c) and (d). A RIC is required to notify the IRS of amounts of income received from sources within foreign countries and possessions of the United States and taxes paid to each such foreign country or possession in order that the IRS may monitor shareholder compliance with the foreign tax credit provisions. The collection of information is required if a RIC elects to pass through the benefits of the foreign tax credit to its shareholders. *Estimated total annual reporting burden:* 80 hours. *Estimated average annual burden hours per respondent:* 2. *Estimated annual frequency of responses:* 1. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103. Background This document contains proposed amendments to 26 CFR part 1 under section 853 of the Internal Revenue Code (Code). Section 853 provides a foreign tax credit or deduction to shareholders of a RIC that makes an election under, and that meets the requirements set forth in, that section. A RIC more than 50 percent of the value of whose total assets at the close of a taxable year consists of stock or securities in foreign corporations may make an election under section 853 (a “foreign tax passthrough election”). If the RIC makes this election for that taxable year, it forgoes a deduction or credit for certain taxes paid to foreign countries and possessions of the United States (collectively, “foreign taxes”) (but the amount of the foreign taxes is allowed as an addition to the RIC's deduction for dividends paid for the year). Instead, the RIC passes through to its shareholders a credit or deduction for the foreign taxes it has paid during its taxable year. If the RIC makes this election, each shareholder includes the shareholder's proportionate share of these foreign taxes in gross income and treats this proportionate share as paid by the shareholder. Each shareholder of an electing RIC further treats as gross income from sources within foreign countries and possessions of the United States the sum of the shareholder's proportionate share of these taxes and the portion of any dividend paid by the RIC that represents income derived from sources within foreign countries and possessions of the United States. Each shareholder may then deduct or claim a credit for the payment of a proportionate share of these taxes. A RIC electing this treatment must provide information to its shareholders and to the IRS. First, under section 853(c) of the Code, the RIC must designate, in a written notice mailed to shareholders not later than 60 days after the close of its taxable year, each shareholder's proportionate share of foreign taxes paid by the RIC and each shareholder's proportionate share of the RIC's gross income derived from sources within any foreign country or possession of the United States. Section 1.853-3(a) of the current Income tax regulations (the regulations) requires that this notice designate the shareholder's portion of foreign taxes paid to each such foreign country or possession of the United States and the portion of the dividend that represents income derived from sources within each foreign country or possession of the United States. Second, under § 1.853-4(a) of the regulations, the RIC must file with Form 1099-DIV, “Dividends and Distributions”, and Form 1096, “Annual Summary and Transmittal of U.S. Information Returns”, a statement as part of its income tax return (Form 1120-RIC or its successor) that sets forth the total amount of income received from sources within foreign countries and possessions of the United States; the total amount of foreign taxes paid; the date, form, and contents of the notice to its shareholders; and the proportionate share of this income received and these taxes paid during the taxable year attributable to one share of its stock. The RIC must also file as part of its return for the taxable year a Form 1118, “Foreign Tax Credit—Corporations”, that has been modified so that it is a statement in support of the RIC's foreign tax passthrough election. The requirement of § 1.853-3(a) of the regulations that an electing RIC provide country-by-country information to its shareholders on foreign-source income received and foreign taxes paid was originally adopted at a time when many shareholders generally needed the information to apply a per-country limitation on the foreign tax credit. Because of changes to the foreign tax credit provisions, shareholders generally no longer need country-by-country information on the amounts of foreign-source income and foreign taxes paid. The Treasury Department and the IRS have received comments suggesting that the section 853 regulations should be amended to eliminate per-country reporting to shareholders and that Form 1116, “Foreign Tax Credit—Individual, Estate or Trust”, should be modified to indicate that distributions from RICs are exempt from per-country shareholder reporting. According to these comments, eliminating the reporting of this information not only would reduce the time and expense required of RICs to compile and disseminate this tax information but also would reduce the confusion that their shareholders experience upon receipt of the extensive tables used to report this per-country information. Even though the section 904 foreign tax credit limitation has been applied on a separate category of income basis, instead of on a per-country basis, since 1976, the Treasury Department and the IRS have continued to require the reporting of per-country information by RICs. This per-country information remains relevant to the IRS's monitoring compliance with the section 901 rules that disallow credits for refundable and noncompulsory payments and for taxes paid to certain countries. See § 1.901-2(e)(2) and (5), providing that credit is not allowed for amounts that are in excess of final liability under foreign law for tax, and section 901(j), denying credit for tax paid to countries described in section 901(j)(2)(A) and subjecting income from sources in those countries to separate foreign tax credit limitations. Although per-country information with respect to foreign income and foreign taxes is needed for the IRS to monitor compliance, the Treasury Department and the IRS believe that taxpayer burden can be reduced by continuing to require this information to be supplied with the RIC's tax return but generally not requiring it to be reported to the RIC's shareholders as well. Accordingly, the proposed regulations would revise §§ 1.853-3 and 1.853-4 to require that a RIC provide aggregate per-country information on a statement filed with its tax return and would require that only summary foreign income and foreign tax amounts be reported to its shareholders. Once this proposed rule becomes final, the instructions to Forms 1116 and 1118 will be modified to permit summary reporting at the shareholder level similar to the summary reporting currently permitted with respect to “section 863(b) income” on Forms 1116 and 1118. Explanation of Provisions Proposed amendments to § 1.853-1 of the regulations would update the regulations to reflect statutory amendments providing that the foreign tax passthrough election is not applicable to taxes for which the RIC would not be allowed a credit by reason of section 901(j) (denying credit for taxes paid to certain countries, including those with which the United States does not have diplomatic relations), section 901(k) and
(l)(denying credit for withholding taxes paid on certain income where certain holding period requirements are not met), or any similar provision. The proposed amendments would change in two ways the regulations that set forth requirements for a RIC seeking to make and to notify shareholders of a foreign tax passthrough election: First, references in § 1.853-3(a) and
(b)of the regulations to required statements to shareholders of dollar amounts of taxes paid to specific countries, and to dollar amounts of income considered as received from specific countries, would be changed to require that a RIC (or a shareholder of record of the RIC who is a nominee acting as a custodian of a unit investment trust) state only the total amount of the shareholder's proportionate share of creditable foreign taxes paid, income from sources within countries described in section 901(j), if any, and income derived from sources within other foreign countries or possessions of the United States. Second, proposed amendments to § 1.853-3(b) extend various deadlines to reflect statutory changes since the regulations were issued. Thus the number of days following the close of its taxable year by which a RIC must notify its shareholders in writing of the making of a foreign tax passthrough election would be increased to 60. References to the number of days following the close of the taxable year by which a nominee acting as a custodian of a unit investment trust must notify holders of interests in the unit investment trust would be increased to 70. Similarly, references to the number of days following the close of a RIC's taxable year by which a statement that holders of interests in unit investment trusts have been directly notified by the RIC (or a statement that the RIC has failed or is unable to notify these holders of interests) must be filed with the IRS and transmitted to a nominee would be increased to 60. Section 1.853-4 of the regulations would be modified to create more flexibility in the references to specific forms. The current regulations require a RIC to file statements with Form 1099 and Form 1096 and to file, as a part of its return for the taxable year, a Form 1118, modified so that it becomes a statement in support of the election made by a RIC to pass through taxes paid to a foreign country or a possession of the United States. The first of these requirements, the requirement to file statements with Forms 1099 and 1096, is proposed to be eliminated. The proposed regulations would retain the general requirement that a RIC must file as part of its return a statement that elects the application of section 853 for the taxable year. Section 1.853-4(a) of the regulations would also require that a RIC agree to provide certain information on foreign-source income received and foreign taxes paid. The information required to be provided is set forth in § 1.853-4(c). Section 1.853-4(d) would provide that this required information is to be provided on or with a modified Form 1118 but would add that it may instead be provided in such other form or manner as may be prescribed by the Commissioner. This change would facilitate future changes in administrative practice if, for example, forms are renumbered or become obsolete. Special Analyses 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 has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Requests for Public Hearing 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 request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be 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 **Federal Register** . The Treasury Department and the IRS invite suggestions regarding any provisions that should be added to the proposed regulations if the reporting of per-country information to shareholders is to be eliminated for calendar year 2006. In addition, the Treasury Department and the IRS invite comments both on the date by which final regulations should be published in order for a change in reporting practice to be practical for 2006 and on any effective date concerns regarding the reporting of per-country information to the IRS. Drafting Information The principal author of this regulation is Susan Thompson Baker of the Office of Associate Chief Counsel (Financial Institutions and Products). List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by adding entries in numerical order to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.853-1 also issued under 26 U.S.C. 901(j). Section 1.853-2 also issued under 26 U.S.C. 901(j). Section 1.853-3 also issued under 26 U.S.C. 901(j). Section 1.853-4 also issued under 26 U.S.C. 901(j) and 26 U.S.C. 6011. * * * **Par. 2.** Section 1.853-1 is amended by adding a sentence at the end of paragraph
(a)to read as follows: § 1.853-1 Foreign tax credit allowed to shareholders.
(a)*In general.* * * * In addition, the election is not applicable to any tax with respect to which the regulated investment company is not allowed a credit by reason of any provision of the Internal Revenue Code other than section 853(b)(1), including, but not limited to, section 901(j), section 901(k), or section 901(l). **Par. 3.** Section 1.853-2 is amended by revising paragraph
(d)to read as follows: § 1.853-2 Effect of election.
(d)*Example.* This section is illustrated by the following example: Example.
(i)*Facts.* X Corporation, a regulated investment company with 250,000 shares of common stock outstanding, has total assets, at the close of the taxable year, of $10 million ($4 million invested in domestic corporations, $3.5 million in Foreign Country A corporations, and $2.5 million in Foreign Country B corporations). X Corporation received dividend income of $800,000 from the following sources: $300,000 from domestic corporations, $250,000 from Country A corporations, and $250,000 from Country B corporations. All dividends from Country A corporations and from Country B corporations were properly characterized as income from sources without the United States. The dividends from Country A corporations were subject to a 10 percent withholding tax ($25,000) and the dividends from Country B corporations were subject to a 20 percent withholding tax ($50,000). X Corporation's only expenses for the taxable year were $80,000 of operation and management expenses related to both its U.S. and foreign investments. In this case, Corporation X properly apportioned the $80,000 expense based on the relative amounts of its U.S. and foreign source gross income. Thus, $50,000 in expense was apportioned to foreign source income ($80,000 × $500,000/$800,000, total expense times the fraction of foreign dividend income over total dividend income) and $30,000 in expense was apportioned to U.S. source income ($80,000 × $300,000/$800,000, total expense times the fraction of U.S. source dividend income over total dividend income). During the taxable year, X Corporation distributes to its shareholders the entire $645,000 income that is available for distribution ($800,000, less $80,000 in expenses, less $75,000 in foreign taxes withheld).
(ii)*Section 853 election.* X Corporation meets the requirements of section 851 to be considered a RIC for the taxable year and the requirements of section 852(a) for part 1 of subchapter M to apply for the taxable year. X Corporation notifies each shareholder by mail, within the time prescribed by section 853(c), that by reason of the election the shareholders are to treat as foreign taxes paid $0.30 per share of stock ($75,000 of foreign taxes paid, divided by the 250,000 shares of stock outstanding). The shareholders must report as income $2.88 per share ($2.58 of dividends actually received plus the $0.30 representing foreign taxes paid). Of the $2.88 per share, $1.80 per share ($450,000 of foreign source taxable income divided by 250,000 shares) is to be considered as received from foreign sources. The $1.80 consists of $0.30, the foreign taxes treated as paid by the shareholder and $1.50, the portion of the dividends received by the shareholder from the RIC that represents income of the RIC treated as derived from foreign sources ($500,000 of foreign source income, less $50,000 of expense apportioned to foreign source income, less $75,000 of foreign tax withheld, which is $375,000, divided by 250,000 shares). **Par. 4.** Section 1. 853-3 is amended by: 1. Revising paragraph (a). 2. Removing the number “55th” and adding the number “70th” in its place in the first sentence of paragraph (b). 3. Revising the second sentence of paragraph (b). 4. Removing the number “45” and adding the number “60” in its place in each place in which it appears in the fifth sentence of paragraph (b). The revisions read as follows: § 1.853-3 Notice to shareholders.
(a)*General rule.* If a regulated investment company makes an election under section 853(a), in the manner provided in § 1.853-4, the regulated investment company is required under section 853(c) to furnish its shareholders with a written notice mailed not later than 60 days after the close of its taxable year. The notice must designate the shareholder's portion of creditable foreign taxes paid to foreign countries or possessions of the United States and the portion of the dividend that represents income derived from sources within each country that is attributable to a period during which section 901(j) applies to such country, if any, and the portion of the dividend that represents income derived from other foreign countries and possessions of the United States. For purposes of section 853(b)(2) and paragraph
(b)of § 1.853-2, the amount that a shareholder may treat as the shareholder's proportionate share of foreign taxes paid and the amount to be included as gross income derived from any foreign country that is attributable to a period during which section 901(j) applies to such country or gross income from sources within other foreign countries or possessions of the United States shall not exceed the amount so designated by the regulated investment company in such written notice. If, however, the amount designated by the regulated investment company in the notice exceeds the shareholder's proper proportionate share of foreign taxes or gross income from sources within foreign countries or possessions of the United States, the shareholder is limited to the amount correctly ascertained.
(b)*Shareholder of record custodian of certain unit investment trusts.* * * * The notice shall designate the holder's proportionate share of the amounts of creditable foreign taxes paid to foreign countries or possessions of the United States and the holder's proportionate share of the dividend that represents income derived from sources within each country that is attributable to a period during which section 901(j) applies to such country, if any, and the holder's proportionate share of the dividend that represents income derived from other foreign countries or possessions of the United States shown on the notice received by the nominee identified as such. * * * **Par. 5.** Section 1.853-4 is amended by: 1. Revising paragraphs
(a)and (b). 2. Adding paragraphs
(c)and (d). The revisions and additions read as follows: § 1.853-4 Manner of making election.
(a)*General rule.* To make an election under section 853 for a taxable year, a regulated investment company must file a statement of election as part of its Federal income tax return for the taxable year. The statement of election must state that the regulated investment company elects the application of section 853 for the taxable year and agrees to provide the information required by paragraph
(c)of this section.
(b)*Irrevocability of the election.* The election shall be made with respect to all foreign taxes described in paragraph (c)(2) of this section, and must be made not later than the time prescribed for filing the return (including extensions). This election, if made, shall be irrevocable with respect to the dividend (or portion) and the foreign taxes paid with respect thereto, to which the election applies.
(c)*Required information.* A regulated investment company making an election under section 853 must provide the following information:
(1)The total amount of taxable income received in the taxable year from sources within foreign countries and possessions of the United States and the amount of taxable income received in the taxable year from sources within each such foreign country or possession.
(2)The total amount of income, war profits, or excess profits taxes (described in section 901(b)(1)) to which the election applies that were paid in the taxable year to such foreign countries or possessions and the amount of such taxes paid to each such foreign country or possession.
(3)The amount of income, war profits, or excess profits taxes paid during the taxable year to which the election does not apply by reason of any provision of the Internal Revenue Code other than section 853(b), including, but not limited to, section 901(j), section 901(k), or section 901(l).
(4)The date, form, and contents of the notice to its shareholders.
(5)The proportionate share of creditable foreign taxes paid to each such foreign country or possession during the taxable year and foreign income received from sources within each such foreign country or possession during the taxable year attributable to one share of stock of the regulated investment company.
(d)*Time and manner of providing information.* The information specified in paragraph
(c)of this section must be provided at the time and in the manner prescribed by the Commissioner and, unless otherwise prescribed, must be provided on or with a modified Form 1118 filed as part of the RIC's timely filed Federal income tax return for the taxable year. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. [FR Doc. 06-7731 Filed 9-15-06; 8:45 am]
Connectionstraces to 78
Traces to 78 documents
U.S. Code
CFR
54 references not yet in our index
  • 5 CFR 334
  • 3 CFR 557
  • 85 Stat. 668
  • 5 USC 3373-3375
  • 5 CFR 630
  • Pub. L. 108-411
  • 5 CFR 630.205(a)
  • 5 CFR 531.211(a)
  • 5 CFR 550
  • 118 Stat. 2312
  • Pub. L. 103-356
  • 108 Stat. 3410
  • Pub. L. 102-484
  • 106 Stat. 2722
  • Pub. L. 103-337
  • 108 Stat. 2663
  • Pub. L. 103-329
  • 108 Stat. 2423
  • Pub. L. 100-566
  • Pub. L. 103-103
  • 107 Stat. 1022
  • Pub. L. 105-18
  • 111 Stat. 158
  • Pub. L. 103-3
  • 107 Stat. 23
  • Pub. L. 102-25
  • 105 Stat. 92
  • 5 CFR 353.102
  • 10 CFR 9
  • 68 Stat. 948
  • 88 Stat. 1242
  • 112 Stat. 2750
  • Pub. L. 99-570
  • 14 CFR 25
  • 14 CFR 34
  • 14 CFR 36
  • 14 CFR 97
  • 1 CFR 51
  • 17 CFR 211
  • 30 CFR 906
+ 14 more
Citation graph
cites case law
Unknown
Final
U.S.C.§ 3371
U.S.C.§ 3376
U.S.C.§ 6303
U.S.C.§ 2302
U.S.C.§ 6311
U.S.C.§ 6133
U.S.C.§ 6304
U.S.C.§ 6305
U.S.C.§ 6326
F. Supp.620 F. Supp. 1519
F. App'x781 F.2d 334
Cite5 CFR 334
Cites 132 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.