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Code · REGISTER · 2006-10-20 · Federal Aviation Administration (FAA), DOT · Rules and Regulations

Rules and Regulations. Final rule

53,063 words·~241 min read·/register/2006/10/20/06-8818

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

BILLING CODE 4910-13-M DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30518; Amdt. No. 3189] 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 October 20, 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 October 20, 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 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 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 October 6, 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: 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 No. Subject 09/07/06 FL FORT LAUDERDALE FORT LAUDERDALE EXECUTIVE 6/9314 ILS RWY 8, AMDT 4C IN TL 06-22 CANCELLED. 09/11/06 NY PENN YAN PENN YAN 6/9724 THIS NOTAM PUBLISHED IN TL06-22 IS HEREBY RESCINDED IN ITS ENTIRETY. NDB RWY 19, AMDT 6A. 09/22/06 WA RICHLAND RICHLAND 6/0979 NDB RWY 19, AMDT 6. 09/22/06 WA RICHLAND RICHLAND 6/0980 VOR/DME A, AMDT 6. 09/22/06 WA RICHLAND RICHLAND 6/0981 RNAV
(GPS)RWY 19, ORIG. 09/22/06 WA RICHLAND RICHLAND 6/0982 VOR RWY 26, AMDT 7. 09/22/06 WA RICHLAND RICHLAND 6/0983 RNAV
(GPS)RWY 26, ORIG. 09/22/06 WA RICHLAND RICHLAND 6/0984 LOC RWY 19, AMDT 6. 09/22/06 OR NORTH BEND SOUTHWEST OREGON REGIONAL 6/0986 ILS RWY 4, AMDT 6. 09/22/06 OR NORTH BEND SOUTHWEST OREGON REGIONAL 6/0988 NDB OR GPS RWY 4, AMDT 4A. 09/22/06 TX WICHITA FALLS SHEPPARD AFB/WICHITA FALLS MUNI 6/1020 ILS RWY 33L, AMDT 12E. 09/22/06 CA SALINAS SALINAS MUNI 6/0770 ILS RWY 31, AMDT 5A. 09/22/06 MP SAIPAN ISLAND FRANCISCO C. ADA/SAIPAN INTL 6/0729 GPS RWY 7 ORIG. 09/26/06 KS WINFIELD/ARKANSAS CITY STROTHER FIELD 6/1248 ILS RWY 35, AMDT 4. 09/26/06 KS NEWTON NEWTON-CITY-COUNTY 6/1249 ILS OR LOC RWY 17, AMDT 4. 09/26/06 KS TOPEKA FORBES FIELD 6/1250 ILS RWY 31, AMDT 9A. 09/28/06 TX WICHITA FALLS SHEPPARD AFB/WICHITA FALLS MUNI 6/1604 RNAV
(GPS)RWY 33L, AMDT 1. 09/28/06 TX WICHITA FALLS SHEPPARD AFB/WICHITA FALLS MUNI 6/1605 NDB RWY 33L, AMDT 11A. 09/28/06 FL TAMPA TAMPA INTL 6/1671 RNAV
(RNP)Y RWY 18L, ORIG. 09/28/06 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 6/1861 RNAV
(RNP)Z RWY 27R, ORIG. 09/28/06 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 6/1867 RNAV
(RNP)Y RWY 9L, ORIG. 09/28/06 FL FORT LAUDERDALE FORT LAUDERDALE/HOLLYWOOD INTL 6/1868 RNAV
(RNP)Z RWY 9R, ORIG. 09/28/06 NH NASHUA BOIRE FLD 6/1986 ILS RWY 14, AMDT 5A. 10/02/06 FL TAMPA TAMPA INTL 6/2144 RNAV
(GPS)Z RWY 18L, AMDT 1. 10/02/06 NY NEWBURGH STEWART INTL 6/2143 ILS RWY 9, AMDT 10. 10/03/06 VT BENNINGTON WILLIAM H. MORSE STATE 6/2189 VOR RWY 13, ORIG. 10/03/06 VT BENNINGTON WILLIAM H. MORSE STATE 6/2190 RNAV
(GPS)RWY 13, ORIG-A. 10/04/06 NY WHITE PLAINS WESTCHESTER COUNTY 6/2221 RNAV
(GPS)RWY 34, AMDT 1. 10/04/06 NY WHITE PLAINS WESTCHESTER COUNTY 6/2223 ILS RWY 34, AMDT 3B. [FR Doc. E6-17379 Filed 10-19-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30517 Amdt. No. 3188] Standard Instrument Approach Procedures, Weather Takeoff Minimums; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and/or Weather Takeoff Minimums for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, 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 October 20, 2006. The compliance date for each SIAP and/or Weather Takeoff Minimums 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 October 20, 2006. ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* *For Purchase* —Individual SIAP and Weather Takeoff Minimums 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 and Weather Takeoff Minimums 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 of the Code of Federal Regulations, part 97 (14 CFR part 97), establishes, amends, suspends, or revokes SIAPs and/or Weather Takeoff Minimums. The complete regulatory description of each SIAP and/or Weather Takeoff Minimums is contained in official FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are identified as FAA Forms 8260-3, 8260-4, 8260-5 and 8260-15A. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs and/or Weather Takeoff Minimums, 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 and/or Weather Takeoff Minimums but refer to their 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 and/or Weather Takeoff Minimums 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 and/or Weather Takeoff Minimums. 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 and/or Weather Takeoff Minimums as contained in the transmittal. Some SIAP and/or Weather Takeoff Minimums amendments may have been previously issued by the FAA in a Flight Data Center
(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP, and/or Weather Takeoff Minimums amendments may require making them effective in less than 30 days. For the remaining SIAPs and/or Weather Takeoff Minimums, an effective date at least 30 days after publication is provided. Further, the SIAPs and/or Weather Takeoff Minimums contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and/or Weather Takeoff Minimums, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs and/or Weather Takeoff Minimums and safety in air commerce, I find that notice and public procedure before adopting these SIAPs and/or Weather Takeoff Minimums are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs and/or Weather Takeoff Minimums 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 October 6, 2006. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, under Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and Weather Takeoff Minimums 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: * * * Effective 23 November 2006 King Salmon, AK, King Salmon, Takeoff Minimums and Textual DPs, Orig Tok, AK, Tok Junction, RNAV (GPS)-A, Orig Tok, AK, Tok Junction, RNAV
(GPS)RWY 25, Orig, CANCELLED North Little Rock, AR, North Little Rock Muni, LOC/DME RWY 5, Orig Phoenix, AZ, Williams Gateway, RNAV
(GPS)RWY 12C, Amdt 1 Bakersfield, CA, Meadows Field, ILS OR LOC/DME RWY 30R, Amdt 29 Bakersfield, CA, Meadows Field, VOR/DME RWY 30R, Amdt 9 Marysville, CA, Yuba County, ILS OR LOC RWY 14, Amdt 5 Redding, CA, Redding Muni, RNAV
(GPS)RWY 34, Orig Redding, CA, Redding Muni, GPS RWY 34, Orig, CANCELLED Redding, CA, Redding Muni, Takeoff Minimums and Textual DP, Amdt 5 Sacramento, CA, Sacramento Intl, ILS OR LOC RWY 34L, Amdt 7 Sacramento, CA, Sacramento Intl, RNAV
(GPS)RWY 34L, Amdt 1 Sacramento, CA, Sacramento Intl, Takeoff Minimums and Textual DP, Orig Pueblo, CO, Pueblo Memorial, RNAV
(GPS)RWY 26R, Amdt 1 Oxford, CT, Waterbury-Oxford, RNAV
(GPS)RWY 18, Amdt 1 Oxford, CT, Waterbury-Oxford, Takeoff Minimums and Textual DP, Amdt 5 New Smyrna Beach, FL, New Smyrna Beach Muni, RNAV
(GPS)RWY 29, Orig New Smyrna Beach, FL, New Smyrna Beach Muni, RNAV
(GPS)RWY 6, Orig New Smyrna Beach, FL, New Smyrna Beach Muni, RNAV
(GPS)RWY 24, Orig New Smyrna Beach, FL, New Smyrna Beach Muni, RNAV
(GPS)RWY 2, Orig New Smyrna Beach, FL, New Smyrna Beach Muni, NDB RWY 29, Amdt 2 New Smyrna Beach, FL, New Smyrna Beach Muni, Takeoff Minimums and Textual DP, Amdt 2 Orlando, FL, Orlando Intl, RNAV
(GPS)RWY 18L, Amdt 1 St. Petersburg-Clearwater, FL, St. Petersburg-Clearwater Intl, RNAV
(GPS)RWY 35R, Orig St. Petersburg-Clearwater, FL, St. Petersburg-Clearwater Intl, GPS RWY 35R, Orig, CANCELLED Tampa, FL, Peter O. Knight, RNAV
(GPS)RWY 21, Orig Tampa, FL, Peter O. Knight, NDB-A, Amdt 1 Tampa, FL, Peter O. Knight, NDB RWY 3, Amdt 11 Winter Haven, FL, Winter Haven's Gilbert, RNAV
(GPS)RWY 11, Orig Calhoun, GA, Tom B. David Field, RNAV
(GPS)RWY 17, Orig Calhoun, GA, Tom B. David Field, RNAV
(GPS)RWY 35, Orig Calhoun, GA, Tom B. David Field, NDB OR GPS RWY 35, Amdt 1A, CANCELLED Hailey, ID, Friedman Memorial, RNAV
(RNP)Z RWY 31, Orig Hailey, ID, Friedman Memorial, RNAV
(RNP)Y RWY 31, Amdt 1 Hailey, ID, Friedman Memorial, RNAV
(GPS)W RWY 31, Amdt 2 Hailey, ID, Friedman Memorial, Takeoff Minimums and Textual DP, Amdt 1 Nampa, ID, Nampa Muni, RNAV
(GPS)RWY 11, Orig Nampa, ID, Nampa Muni, GPS RWY 11, Orig, CANCELLED Lexington, KY, Blue Grass, ILS OR LOC RWY 22, Amdt 20 Boston, MA, General Edward Lawrence Logan Intl, RNAV
(GPS)RWY 32, Orig Boston, MA, General Edward Lawrence Logan Intl, Takeoff Minimums and Textual DP, Amdt 12 Howell, MI, Livingston County Spencer J. Hardy, ILS OR LOC RWY 13, Orig Duluth, MN, Duluth Intl, RNAV
(GPS)RWY 9, Amdt 1 Duluth, MN, Duluth Intl, RNAV
(GPS)RWY 27, Orig Duluth, MN, Duluth Intl, Takeoff Minimums and Textual DPs, Orig International Falls, MN, Falls Intl, ILS OR LOC/DME RWY 13, Orig International Falls, MN, Falls Intl, LOC BC RWY 13, Amdt 9A Hattiesburg/Laurel, MS, Hattiesburg-Laurel Regional, RNAV
(GPS)RWY 18, Orig Hattiesburg/Laurel, MS, Hattiesburg-Laurel Regional, RNAV
(GPS)RWY 36, Orig Hattiesburg/Laurel, MS, Hattiesburg-Laurel Regional, GPS RWY 18, Orig, CANCELLED Hattiesburg/Laurel, MS, Hattiesburg-Laurel Regional, GPS RWY 36, Orig, CANCELLED David City, NE, David City Muni, RNAV
(GPS)RWY 14, Orig David City, NE, David City Muni, RNAV
(GPS)RWY 32, Orig David City, NE, David City Muni, VOR/DME RWY 32, Orig David City, NE, David City Muni, Takeoff Minimums and Textual DP, Orig Manchester, NH, Manchester, ILS OR LOC RWY 6, Amdt 1 Princeton/Rocky Hill, NJ, Princeton, VOR-A, Amdt 7 Princeton/Rocky Hill, NJ, Princeton, RNAV
(GPS)RWY 10, Orig Princeton/Rocky Hill, NJ, Princeton, RNAV
(GPS)RWY 28, Orig Princeton/Rocky Hill, NJ, Princeton, Takeoff Minimums and Textual DP, Amdt 2 Las Vegas, NV, McCarran Intl, RNAV
(GPS)RWY 1L, Orig, CANCELLED Las Vegas, NV, McCarran Intl, RNAV
(GPS)RWY 19L, Amdt 1 Las Vegas, NV, McCarran Intl, RNAV
(GPS)RWY 19R, Amdt 1 Las Vegas, NV, McCarran Intl, RNAV
(GPS)RWY 25L, Orig, CANCELLED Las Vegas, NV, McCarran Intl, RNAV
(GPS)RWY 25R, Orig, CANCELLED Mooresville, NC, Lake Norman Airpark, RNAV
(GPS)RWY 14, Orig Mooresville, NC, Lake Norman Airpark, Takeoff Minimums and Textual DP, Orig New Bern, NC, Craven County Regional, RNAV
(GPS)RWY 4, Orig New Bern, NC, Craven County Regional, RNAV
(GPS)RWY 22, Orig New Bern, NC, Craven County Regional, VOR RWY 4, Amdt 4 New Bern, NC, Craven County Regional, VOR RWY 22, Amdt 2 Oklahoma City, OK, Will Rogers World, ILS OR LOC/DME RWY 35L, Orig Oklahoma City, OK, Will Rogers World, RNAV
(GPS)Y RWY 17L, Orig-B Oklahoma City, OK, Will Rogers World, RNAV
(RNP)Z RWY 35R, Orig Oklahoma City, OK, Will Rogers World, RNAV
(GPS)Y RWY 35R, Orig-B Oklahoma City, OK, Will Rogers World, RNAV
(RNP)Z RWY 17L, Orig Oklahoma City, OK, Will Rogers World, LOC BC RWY 35L, Amdt 10E CANCELLED Redmond, OR, Roberts Field, ILS OR LOC RWY 22, Amdt 2 Butler, PA, Butler County/K W Scholter Field, ILS OR LOC RWY 8, Amdt 7 Butler, PA, Butler County/K W Scholter Field, RNAV
(GPS)RWY 8, Orig Butler, PA, Butler County/K W Scholter Field, GPS RWY 8, Orig-A, CANCELLED Franklin, PA, Venango Regional, VOR RWY 3, Amdt 5 Lock Haven, PA, William T. Piper Memorial, Takeoff Minimums and Textual DP, Amdt 1 Mifflintown, PA, Mifflintown, Takeoff Minimums and Textual DP, Amdt 1 Wise, VA, Lonesome Pine, RNAV
(GPS)RWY 24, Orig Wise, VA, Lonesome Pine, GPS RWY 24, Orig-A, CANCELLED Green Bay, WI, Austin Straubel International, ILS OR LOC RWY 36, Amdt 8 Evanston, WY, Evanston-Uinta County Burns Field, RNAV
(GPS)RWY 5, Amdt 2 Evanston, WY, Evanston-Uinta County Burns Field, RNAV
(GPS)RWY 23, Amdt 2 Evanston, WY, Evanston-Uinta County Burns Field, VOR/DME RWY 5, Orig Evanston, WY, Evanston-Uinta County Burns Field, VOR/DME RWY 23, Amdt 1 [FR Doc. E6-17373 Filed 10-19-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1308 [Docket No. DEA-277F] RIN 1117-AA98 Schedules of Controlled Substances: Exempt Anabolic Steroid Products AGENCY: Drug Enforcement Administration (DEA), Department of Justice. ACTION: Final rule. SUMMARY: The Drug Enforcement Administration
(DEA)is finalizing an Interim Rule designating two pharmaceutical preparations as exempt anabolic steroid products under the Controlled Substances Act. This action is part of the ongoing implementation of the Anabolic Steroids Control Act of 1990. DATES: *Effective Date:* This final rule is effective October 20, 2006. FOR FURTHER INFORMATION CONTACT: Christine A. Sannerud, Ph.D., Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Telephone:
(202)307-7183. SUPPLEMENTARY INFORMATION: Background The Anabolic Steroids Control Act
(ASCA)of 1990 (Title XIX of Pub. L. 101-647) placed anabolic steroids into Schedule III of the Controlled Substances Act (CSA). Section 1903 of the ASCA provides that the Attorney General may exempt products which contain anabolic steroids from all or any part of the Controlled Substances Act
(CSA)(21 U.S.C. 801 *et seq.* ) if the products have no significant potential for abuse. The authority to exempt these products was delegated from the Attorney General to the Administrator of the Drug Enforcement Administration (28 CFR 0.100(b)), who in turn, redelegated this authority to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration (28 CFR part 0, Appendix to Subpart R, Section 7(g)). The procedure for implementing this section of the ASCA is found in § 1308.33 of Title 21 of the Code of Federal Regulations. An application which was in conformance with § 1308.33 of Title 21 of the Code of Federal Regulations was received and was forwarded to the Secretary of Health and Human Services for evaluation. The purpose of this rule is to finalize an interim rule regarding two products which the Deputy Assistant Administrator, Office of Diversion Control, finds meet the exempt anabolic steroid product criteria. Anabolic Steroid Products Being Added to the List of Products Exempted From Application of the CSA DEA received a letter dated January 12, 2004, written to the DEA on behalf of Pharmaceutics International Inc. (PII), and an application to exempt from control under the CSA two products each containing esterified estrogens and methyltestosterone. In a letter dated April 1, 2004, DEA provided a copy of this application to the Department of Health and Human Services
(DHHS)along with a request for evaluation and a recommendation. In a letter dated September 22, 2005, the Assistant Secretary of Health for DHHS recommended that both Essian TM and Essian TM H.S. be exempted from control under the CSA based on their similarity to the products, Estratest® and Estratest® H.S., respectively, both of which have been exempted from control under the CSA. DEA agreed with DHHS regarding the similarity of these products to products which have already been exempted from the regulatory controls of the Controlled Substances Act. Further, after reviewing several law enforcement databases, DEA did not find evidence of significant abuse or trafficking of these types of products. Therefore, DEA published an Interim rule with request for comments (71 FR 10835, March 3, 2006). Comments Received The DEA received no comments in response to the Interim Rule. Thus, the rule is being finalized without change. Accordingly, the Deputy Assistant Administrator hereby affirms his order that the following anabolic steroid products be added to the list of products excluded from application of certain controls of the Controlled Substances Act and referenced in 21 CFR 1308.34. Exempt Anabolic Steroid Products Trade name Company Form Ingredients Quantity Essian TM H.S Pharmaceutics International Inc Tablets Esterfied Estrogens Methyltestosterone 0.625mg/Tablet. 1.25mg/Tablet. Essian TM Pharmaceutics International Inc Tablets Esterfied Estrogens Methyltestosterone 1.25mg/Tablet. 2.5mg/Tablet. Regulatory Certifications Regulatory Flexibility Act The granting of exemption status relieves persons who handle the exempted products in the course of legitimate business from the registration, recordkeeping, security, and other requirements imposed by the CSA. Accordingly, the Deputy Assistant Administrator certifies that this action will not have a significant economic impact upon a substantial number of small entities whose interests must be considered under the Regulatory Flexibility Act (5 U.S.C. 605(b)). Executive Order 12866 The Deputy Assistant Administrator has determined that this is not a “significant rule,” as that term is used in Executive Order 12866. This final rule exempts the identified steroid products from the regulatory controls that apply to controlled substances. Therefore, this rule has not been reviewed by the Office of Management and Budget. Executive Order 12988 This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform. Executive Order 13132 This final rule does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own law. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132. Unfunded Mandates Reform Act of 1995 This final rule will not result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of $115,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This final rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES Pursuant to the authority vested in the Attorney General by section 1903 of the Anabolic Steroid Control Act of 1990, delegated to the Administrator of the Drug Enforcement Administration pursuant to 21 U.S.C. 871(a) and 28 CFR 0.100, and redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control pursuant to 28 CFR part 0, Appendix to Subpart R, Section 7(g), the Deputy Assistant Administrator hereby adopts as a final rule, without change, the interim rule which was published at 71 FR 10835, on March 3, 2006 amending the list described in 21 CFR 1308.34. Dated: October 10, 2006. Joseph T. Rannazzisi, Deputy Assistant Administrator, Office of Diversion Control. [FR Doc. E6-17522 Filed 10-19-06; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1, 35, and 54 [TD 9294] RIN 1545-BD68 Use of Electronic Media for Providing Employee Benefit Notices and Making Employee Benefit Elections and Consents AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulation. SUMMARY: This document contains final regulations setting forth standards for electronic systems that make use of an electronic medium to provide a notice to a recipient, or to make a participant election or consent, with respect to a retirement plan, an employee benefit arrangement, or an individual retirement plan. These regulations reflect the provisions of the Electronic Signatures in Global and National Commerce Act (E-SIGN). These final regulations generally affect sponsors of, and individuals entitled to benefits under, certain retirement plans, employee benefit arrangements, and individual retirement plans. DATES: *Effective date:* These regulations are effective on October 20, 2006. *Applicability date:* These regulations generally apply to applicable notices provided, and participant elections made, on or after January 1, 2007. See § 1.401(a)-21(g). FOR FURTHER INFORMATION CONTACT: Pamela R. Kinard at
(202)622-6060 (not a toll-free number). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information referenced in these final regulations were previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1632, in conjunction with the Treasury Decision (TD 8873), relating to New Technologies in Retirement Plans, published on February 8, 2000 in the **Federal Register** (65 FR 6001), and control number 1545-1780, in conjunction with the Treasury Decision (TD 9052), relating to Notice of Significant Reduction in the Rate of Future Benefit Accrual, published on April 9, 2003 in the **Federal Register** (68 FR 17277). Responses to these collections of information are mandatory. 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 these collections 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 amendments to 26 CFR parts 1, 35, and 54 under section 401 of the Internal Revenue Code
(Code)and other sections of the Code relating to retirement plans, employee benefit arrangements, and individual retirement plans. This Treasury Decision adds § 1.401(a)-21 to the Treasury regulations, which sets forth standards for the use of an electronic medium to provide applicable notices to recipients, or to make participant elections, with respect to a retirement plan, an employee benefit arrangement, or an individual retirement plan. These final regulations reflect the applicable provisions of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (114 Stat. 464 (2000)) (E-SIGN) as it relates to the electronic delivery of notices. The Code and regulations thereunder, and the parallel provisions of the Employee Retirement Income Security Act of 1974 (ERISA), include a number of rules that require certain notices, elections, or consents to be written or in writing. Examples of notices, elections, or consents required to be written or in writing include a section 402(f) notice (describing rollover rights), a section 411(a)(11) notice (describing a participant's benefit commencement rights), a spousal consent under section 417(a)(2), and a section 204(h) notice (notice to participants of significant reduction in rate of future benefit accrual). For a more in-depth description of retirement plan notices, elections, or consents that are required to be written or in writing, see the background section to the preamble of the 2005 proposed regulations (70 FR 40675). E-SIGN E-SIGN, signed into law on June 30, 2000, generally provides that electronic records and signatures are given the same legal effect as their paper counterparts. Section 101(a) of E-SIGN provides that, with respect to a transaction in or affecting interstate or foreign commerce, notwithstanding any statute, regulation, or rule of law, a signature, contract, or other record may not be denied legal effect, validity, or enforceability solely because it is in electronic form and a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. 1 1 The rules of section 101 of E-SIGN do not apply to certain consumer notices. These include consumer notices that are necessary for the protection of a consumer's health, safety, or shelter (e.g., cancellation of health benefits or life insurance and foreclosure on a credit agreement secured by an individual's primary residence). See section 103(b)(2)(B) and
(C)of E-SIGN. Section 101(b) of E-SIGN provides that E-SIGN does not limit, alter, or otherwise affect any requirement imposed by a statute, regulation, or rule of law relating to a person's rights or obligations under any statute, regulation, or rule of law except with respect to a requirement that contracts or other records be written, signed, or in non-electronic form, and also provides that E-SIGN generally does not require any person to agree to use or accept electronic signatures or records. Section 101(c) of E-SIGN sets forth special protections that apply when a statute, regulation, or other rule of law requires that information relating to a transaction be provided or made available to a consumer 2 in writing. Under section 101(c) of E-SIGN, before the required information can be provided or made available electronically, a consumer must first affirmatively consent to receive the information electronically and the consent must be made in a manner that reasonably demonstrates the consumer's ability to access the information in electronic form (or, if the consent is not provided in such a manner, confirmation of the consent must be made electronically in a manner that reasonably demonstrates the consumer's ability to access the information in electronic form). Prior to consent, the consumer must receive certain specified disclosures. The disclosures must include, among other items, the hardware or software requirements for access to, and retention of, the electronic records, the consumer's right to withdraw his or her consent to receive the information electronically (and the consequences that follow the withdrawal of consent), the procedures for requesting a paper copy of the electronic record, and the cost, if any, of obtaining a paper copy. Section 101(c)(6) of E-SIGN generally provides that, for purposes of the consumer consent rules of section 101(c), an oral communication or a recording of an oral communication does not qualify as an electronic record. 2 Section 106(1) of E-SIGN generally defines a consumer as an individual who obtains products or services used primarily for personal, family, or household purposes. Section 101(e) of E-SIGN provides rules relating to the electronic retention of contracts and other records that are required to be written or in writing. Section 101(e) of E-SIGN provides that if a statute, regulation, or other rule of law requires that a contract or other record relating to a transaction in or affecting interstate or foreign commerce be in writing, the legal effect, validity, or enforceability of an electronic record of the contract or other record may be denied if the contract or other record is not in a form that is capable of being retained and accurately reproduced for later reference by all parties or persons who are entitled to retain the contract or other record. Section 104(b)(1) of E-SIGN generally provides that a Federal regulatory or State regulatory agency that is responsible for rulemaking under any other statute has interpretative authority to issue guidance interpreting section 101 of E-SIGN with respect to that other statute. However, as a limitation on that authority, section 104(b)(2) of E-SIGN prohibits the issuance of any guidance that is not consistent with section 101 or that adds to the requirements of that section. Section 104(b)(2) of E-SIGN also requires that any agency issuing guidance interpreting E-SIGN find that there is a substantial justification for the guidance and that the methods selected to carry out the purpose of the guidance are substantially equivalent to the requirements imposed on records that are not electronic, do not impose unreasonable costs on the acceptance and use of electronic records, and do not require or accord greater legal status to a specific technology. Section 104(d)(1) of E-SIGN authorizes a Federal regulatory agency to exempt, without condition, a specified category or type of record from the consumer consent requirements in section 101(c). The exemption may be issued only if the exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers. In accordance with section 104(b)(2)(C) of E-SIGN, the Treasury Department and IRS find that there is substantial justification for these final regulations, that, for the reasons explained below, the requirements imposed on the use of electronic media under these regulations are substantially equivalent to those imposed on non-electronic records, that the requirements will not impose unreasonable costs on the acceptance and use of electronic records, and that these regulations do not require (or accord greater legal status or effect to) the use of any specific technology. Prior Guidance Relating to Electronic Communications The Treasury Department and IRS have issued several items of guidance relating to the use of electronic media with respect to retirement plans and individual retirement plans. 3 Section 1510 of the Taxpayer Relief Act of 1997, Public Law 105-34 (111 Stat. 788, 1068) (TRA '97), provides for the Secretary of Treasury to issue guidance designed to interpret the notice, election, consent, disclosure, and timing requirements (include related recordkeeping requirements) under the Code and ERISA relating to retirement plans as applied to the use of new technologies by plan sponsors and administrators. Section 1510 of TRA '97 further provides that the guidance should maintain the protection of the rights of participants and beneficiaries. 3 The Treasury Department and IRS have also issued guidance regarding the use of electronic media with respect to tax reporting and other tax requirements with respect to employee benefit plans. For example, Announcement 99-6 (1999-1 C.B. 352) authorizes payers of pensions, annuities, and other employee benefits to establish a system for payees to submit electronically Forms W-4P, Withholding Certificate for Pension or Annuity Payments, W-4S, Request for Federal Income Tax Withholding from Sick Pay, and W-4V, Voluntary Withholding Request, if certain requirements, including signature and recordkeeping requirements, are satisfied. In addition, Notice 2004-10 (2004-1 C.B. 433) authorizes the electronic delivery of certain forms relating to the reporting of contributions and distributions of pensions, simplified employee pensions, traditional IRAs, Roth IRAs, qualified tuition programs, Coverdell education savings accounts, and Archer Medical Savings Accounts. See also §§ 31.6051-1(j) and 1.6039-1(f). Final regulations (TD 8873) relating to the use of electronic media for transmissions of participant notices and consents under sections 402(f), 411(a)(11), and 3405(e)(10)(B) were published in the **Federal Register** (65 FR 6001) on February 8, 2000 (the 2000 regulations). The 2000 regulations set forth standards for the electronic transmission of certain notices and consents that are required in connection with distributions from retirement plans. Those regulations provide that a plan may provide a notice required under section 402(f), 411(a)(11), or 3405(e)(10)(B) either on a written paper document or through an electronic medium that is reasonably accessible to the participant. In addition, the 2000 regulations provide that any electronic system must be reasonably designed to provide the notice in a manner no less understandable to the participant than a written paper document. Furthermore, the participant must be advised of the right to request and receive a paper copy of the written paper document at no charge, and, upon request, the document must be provided to the participant without charge. The 2000 regulations also permit an electronic system to satisfy the requirement of section 411(a)(11) that a participant provide written consent to a distribution if certain requirements are satisfied. First, the electronic medium must be reasonably accessible to the participant. Second, the electronic system must be reasonably designed to preclude anyone other than the participant from giving the consent. Third, the system must provide the participant with a reasonable opportunity to review and to confirm, modify, or rescind the terms of the consent before it becomes effective. Fourth, the system must provide the participant, within a reasonable time after the consent is given, a confirmation of the terms (including the form) of the distribution through either a written paper document or in an electronic format that satisfies the requirements for providing applicable notices. Thus, the participant must be advised of the right to request and to receive a confirmation copy of the consent on a written paper document without charge. The 2000 regulations did not permit the use of electronic media for any notice or election required under section 417 with respect to a waiver of a qualified joint and survivor annuity (QJSA). The Treasury Department and IRS have issued other guidance applying the standards set forth in the 2000 regulations to other retirement plan notices and elections. For example, § 1.7476-2(c)(2) provides that a notice to an interested party is deemed to be provided in a manner that satisfies the delivery requirements of § 1.7476-2(c)(1) if the notice is delivered using an electronic medium under a system that satisfies the requirements of § 1.402(f)-1, Q&A-5. Q&A-7 of Notice 2000-3 (2000-1 C.B. 413) provides that, until the issuance of further guidance, a plan is permitted to use electronic media to provide notices required under sections 401(k)(12) and 401(m)(11) (relating to safe harbors for section 401(k) and section 401(m) plans) if the employee receives the notice through an electronic medium that is reasonably accessible, the system is designed to provide the notice in a manner no less understandable to the employee than a written paper document, and, at the time the notice is provided, the employee is advised that the employee may request and receive the notice on a written paper document at no charge. Similarly, § 1.72(p)-1, Q&A-3(b), requires a loan from a plan to a participant to be set forth in a written paper document, in an electronic medium that satisfies standards that are the same as the standards in the 2000 regulations, or in such other form as may be approved by the Commissioner. In addition, Notice 99-1 (1999-1 C.B. 269) provides guidance relating to qualified retirement plans permitting the use of electronic media for plan participants or beneficiaries conducting account transactions for which there is no specific writing requirement, such as plan enrollments, direct rollover elections, beneficiary designations, investment change allocations, elective and after-tax contribution designations, and general plan or specific account inquiries. In 2003, final regulations (TD 9052) under section 4980F were published in the **Federal Register** (68 FR 17277). Under Q&A-13 of § 54.4980F-1, for a plan to provide a section 204(h) notice electronically, the section 204(h) notice must actually be received by the applicable individual or the plan administrator must take appropriate and necessary measures reasonably calculated to ensure that the method for providing the section 204(h) notice results in actual receipt. Further, the plan administrator must provide the applicable individual with a clear and conspicuous statement that the individual has a right to receive a paper version of the section 204(h) notice without the imposition of fees and, if the individual requests a paper copy of the section 204(h) notice, the paper copy must be provided without charge. The regulations under section 4980F also provide a safe harbor method for delivering a section 204(h) notice electronically, which is substantially the same as the consumer consent rules of E-SIGN. The Department of Labor
(DOL)and the Pension Benefit Guaranty Corporation
(PBGC)have also issued regulations relating to the use of electronic media to furnish notices, reports, statements, disclosures, and other documents to participants, beneficiaries, and other individuals under titles I and IV of ERISA. See 29 CFR 2520.104b-1 and 29 CFR 4000.14. On July 14, 2005, a notice of proposed rulemaking (REG-138362-04) under section 401 of the Code was published in the **Federal Register** (70 FR 40675) (the 2005 proposed regulations). On November 2, 2005, the IRS held a public hearing on the proposed regulations. Written comments responding to the notice of proposed rulemaking were also received. Although commentators raised issues with respect to certain provisions in the 2005 proposed regulations, the comments were generally positive. After consideration of all the comments, the 2005 proposed regulations are adopted, as amended by this Treasury Decision. The significant revisions are discussed below. Explanation of Provisions I. Overview A. In General This Treasury Decision adds § 1.401(a)-21 and modifies a number of existing regulations (including the 2000 regulations and other regulations described above). These regulations set forth the standards by which a retirement plan, an employee benefit arrangement, or an individual retirement plan is permitted to use an electronic medium to provide applicable notices or for individuals in such a plan to make participant elections. For any requirement under the Code or regulations that an employee benefit notice or election be in writing or in written form, the standards set forth in these regulations are generally the exclusive rules for providing such communication through the use of an electronic medium. Thus, for example, a retirement plan providing a section 402(f) notice through the use of an electronic medium must satisfy the rules set forth in these regulations. For any employee benefit notice or election that is not required to be in writing or in written form, the standards set forth in these regulations function as a safe harbor. Thus, a retirement plan, an employee benefit arrangement, or individual retirement plan is permitted to satisfy either these regulations or any other applicable guidance issued by the IRS. For example, with respect to creating an electronic system to accept electronic transmissions of beneficiary designations, a retirement plan is permitted to use the rules under these regulations or continue to follow the standards set forth in Notice 99-1, which is not affected by E-SIGN. B. Application of Standards Like the 2005 proposed regulations, these regulations apply to any notice, election, or similar communication provided to or made by a participant or beneficiary in the following retirement plans: A section 401(a) plan; a section 403(a) plan; a section 403(b) plan; a simplified employee pension
(SEP)under section 408(k); a simple retirement plan under section 408(p); and an eligible governmental plan under section 457(b). In response to a comment, these regulations also provide that they apply to any notice, election, or similar communication provided to or made by an individual entitled to benefits in an individual retirement plan, including a Roth IRA under section 408A or a deemed IRA under section 408(q). In addition, these final regulations apply to any notice, election, or similar communication provided to or made by a participant or beneficiary under the following employee benefit arrangements: an accident or health plan or arrangement under sections 104(a)(3) or 105; a cafeteria plan under section 125; an educational assistance program under section 127; a qualified transportation fringe program under section 132; an Archer MSA under section 220; and a health savings account under section 223. These regulations do not apply to any notice, election, consent, disclosure, or obligation required under the provisions of title I or IV of ERISA over which the DOL or the PBGC has interpretative and enforcement authority. 4 For example, the rules in 29 CFR 2520.104b-1 of the Labor Regulations apply with respect to an employee benefit plan furnishing disclosure documents, such as a summary plan description or a summary annual report. These regulations also do not apply to Code section 411(a)(3)(B) (relating to suspension of benefits), Code section 4980B(f)(6) (relating to an individual's COBRA rights), or any other Code provision over which the DOL or the PBGC has similar interpretative authority. 4 *See generally* Reorganization Plan No. 4 of 1978 (43 FR 47713). Pursuant to section 101(a) of the Reorganization Plan No. 4 of 1978, 29 U.S.C. 1001nt, the Secretary of the Treasury has authority to issue regulations under parts 2 and 3 of subtitle B of title I of ERISA with certain exceptions. Under section 104 of the Reorganization Plan No. 4, the Secretary of Labor retains enforcement authority with respects to parts 2 and 3 of subtitle B of title 1 of ERISA, but, in exercising that authority, is bound by the regulations issued by the Secretary of Treasury. In addition, the rules in these regulations apply only with respect to notices and elections relating to an individual's rights under a retirement plan, an employee benefit arrangement, or an individual retirement plan. Thus, these regulations do not apply with respect to other requirements under the Code, such as requirements relating to tax reporting, tax records, or substantiation of expenses. 5 5 Code section 6001 provides rules relating to the maintenance of records, statements, and special returns. The IRS has issued guidance on electronic recordkeeping under section 6001. This guidance applies to retirement plans, employee benefits plans, and individual retirement plans. Rev. Proc. 98-25 (1998-1 C.B. 689) sets forth standards for a taxpayer maintaining records on an Automated Data Processing system. Under section 3.01 of Rev. Proc. 98-25, those standards apply to employee plans. Rev. Proc. 97-22 (1997-1 C.B. 652) provides guidance to taxpayers using an electronic storage system to maintain books and records required under section 6001. Under section 3.02 of Rev. Proc. 97-22, those requirements apply to employee plans. *See also* footnote 3 above. C. Requirements for Using Electronic Media To Provide Notices and Make Elections These final regulations generally retain from the 2005 proposed regulations the requirement that any communication that is provided using an electronic medium satisfy all the otherwise applicable requirements (including the applicable timing and content rules) relating to that communication. Thus, for example, a section 204(h) notice provided using an electronic medium must be delivered on or before the time period required under Q&A-9 of § 54.4980F-1, must satisfy the content requirements set forth in Q&A-11 of § 54.4980F-1, and must satisfy the delivery requirements under these regulations. These regulations provide that an electronic system used to provide a notice or to make an election must satisfy certain requirements. First, with respect to the content of an applicable notice, the electronic system must be reasonably designed to provide the information to a recipient in a manner no less understandable to the recipient than if provided on a written paper document. For example, a plan delivering a lengthy section 402(f) notice would not satisfy this requirement if the plan chose to provide the notice through a pre-recorded message on an automated phone system. 6 However, a plan with few distribution options is permitted to provide a section 411(a)(11) notice through the use of a pre-recorded message on an automated phone system. Second, the regulations require that the electronic system be reasonably designed to alert the recipient, at the time the applicable notice is provided, to the significance of the information in the notice (including the identification of the subject matter of the notice), and provide any instructions needed to access the notice, in a manner that is as readily understandable and accessible as an applicable notice provided using a written paper document. These requirements are necessary in order for the notice to fulfill their intended purpose, are substantially equivalent to the requirements imposed on nonelectronic notices, and do not impose unreasonable costs on the acceptance or use of electronic records. Moreover, they do not require or accord greater legal status to a particular technology since each technology must satisfy the same standards with respect to each notice. Third, the final regulations clarify that, pursuant to section 101(e) of E-SIGN, if an electronic record of an applicable notice or a participant election is not maintained in a form that is capable of being retained and accurately reproduced for later reference, then the legal effect, validity, or enforceability of such electronic record may be denied. 6 Note that a section 204(h) notice cannot be provided using oral communication or a recording of an oral communication. See § 54.4980F-1, A-13(c)(1). II. Use of an Electronic Medium To Provide an Applicable Notice A. Two Methods for Providing Applicable Notices These regulations provide two methods by which a retirement plan, employee benefit arrangement, or an individual retirement plan is permitted to provide an applicable notice to a recipient through the use of an electronic medium. Under the first method, an applicable notice is permitted to be provided to a recipient using an electronic medium after the recipient consents to the electronic delivery of the notice (the consumer consent method). The rules under the consumer consent method reflect the consumer consent requirements at section 101(c) in E-SIGN. The Treasury Department and IRS continue to believe that an individual entitled to benefits under a retirement plan, an employee benefit arrangement, or an individual retirement plan is generally a consumer, within the meaning of section 106(1) of E-SIGN, when receiving a notice that could affect the individual's benefits or other rights. 7 The second method (the alternative method) provides rules that are intended generally to replicate the requirements in the 2000 regulations that apply to notices required under sections 402(f), 411(a)(11), and 3405, and thereby allow plans to continue to provide these notices electronically using electronic systems that satisfy the standards in the 2000 regulations. 7 See also 12 CFR 202.16, 205.17, 213.6, and 2226.36, treating electronic disclosures in connection with certain credit transactions as consumer information for purposes of E-SIGN. B. Consumer Consent Method for Providing Applicable Notices Under the consumer consent method, before an applicable notice is provided to a recipient using an electronic medium, the participant must consent to receive the communication electronically. The consent generally must be made in a manner that reasonably demonstrates that the participant can access the notice in the electronic form that will be used to provide the notice. Alternatively, the consent may be made using a written paper document, but only if the participant confirms the consent in a manner that reasonably demonstrates that the participant can access the notice in the electronic form to be provided. Prior to consenting, the participant must receive a disclosure statement that outlines the scope of the consent, the participant's right to withdraw his or her consent to receive the communication electronically (including any conditions, consequences, or fees in the event of the withdrawal), and the right to receive the communication using paper and any fees imposed for receiving paper. The disclosure must also specify the hardware and software requirements for accessing the electronic media and the procedures for updating information to contact the participant electronically. In the event the hardware or software requirements change, new consent must be obtained from the participant, generally following the rules of section 101(c) of E-SIGN. In addition, under the consumer consent method, the applicable notice cannot be provided through the use of oral communication or a recording of an oral communication. 8 8 *See* section 101(c)(6) of E-SIGN. Commentators requested several modifications to the rules under the consumer consent method in these regulations, including requiring plans to give recipients the opportunity to review their consumer consent elections every five years and permitting plans to use oral communications or recordings of oral communications when providing applicable notices under the consumer consent rules. Other commentators recommended that the regulations be revised to provide that, under the consumer consent method, if a participant does not have the effective ability to access the electronic medium used to provide an applicable notice or if the participant does not consent to receive the notice through the use of an electronic medium, such participant would have the right to a free paper copy of the notice. The consumer consent method under these regulations interprets the rules of section 101(c) of E-SIGN, and section 104(b)(2) of E-SIGN restricts an agency's ability to interpret E-SIGN in any manner that is inconsistent with section 101 of E-SIGN or that adds to the requirements of that section. Accordingly, the rules under the consumer consent method of these final regulations are retained without substantive change. However, many of the issues raised by the commentators are ameliorated by the availability of the alternative method for providing applicable notices, as discussed below in *Alternative Method for Providing Applicable Notices.* C. *Alternative Method for Providing Applicable Notices* These regulations exempt applicable notices from the consumer consent requirements of E-SIGN and provide an alternative method of complying with the requirement that an applicable notice be in writing or in written form if certain conditions are satisfied. This alternative method of compliance, which is based on the 2000 regulations previously issued under section 1510 of TRA '97, satisfies the requirements of section 104(d)(1) of E-SIGN, including the requirement that any exemption from the consumer consent requirements not increase the material risk of harm to consumers. This exemption is based on the judgment that, if the consumer consent method were the only method available to satisfy the requirements for providing an applicable notice through the use of an electronic medium, it would impose a substantial burden on electronic commerce with respect to retirement plans, employee benefit arrangements, and individual retirement plans, and that the requirements and safeguards in the 2000 regulations provide a less burdensome method without increasing the material risk of harm to recipients. Under the alternative method, at the time the applicable notice is provided, the recipient must be advised that he or she may request and receive the applicable notice in writing on paper at no charge. In addition, any recipient of the notice must be “effectively able” to access the electronic medium used to provide the notice. This is a change in wording from the 2000 regulations, which required that the electronic medium be “reasonably accessible” to the recipient. As explained in the preamble to the 2005 proposed regulations, this change is not intended to reflect a substantive change in the rules, but rather to avoid confusion with Department of Labor Regulations interpreting the words *reasonably accessible* as used in section 101(i)(2)(D) of ERISA, as added by section 306 of the Sarbanes-Oxley Act of 2002, Public Law 107-204 (116 Stat. 745). 9 9 Section 101(i) of ERISA sets forth a requirement for a plan administrator to notify plan participants and beneficiaries of a blackout period with respect to an individual account plan. Section 101(i)(2)(D) provides that the required blackout notice “shall be in writing, except that such notice may be in electronic or other form to the extent that such form is reasonably accessible to the recipient.” Section 2520.101-3(b)(3) of the Labor Regulations interpreting this requirement provides for this notice to be in writing and furnished in any manner consistent with the requirements of section 2520.104b-1 of the Labor Regulations, including the provisions in that section relating to the use of electronic media. Those regulations also deem a notice requirement to be satisfied if certain measures are taken. Section 1.401(a)-21 of these final regulations only provides rules for satisfying, through the use of electronic media, a requirement that a notice or election be in writing. One commentator requested that the regulations provide a rule under which an e-mail sent to the last known e-mail address would be deemed to have been successfully delivered. These regulations do not include such a rule. III. Use of an Electronic Medium To Make a Participant Election A. In General These regulations also set forth the requirements that apply if a consent or election is made by a person using an electronic system. The participant election rules, which are also based on the standards in the 2000 regulations, generally retain the requirements that
(1)The participant be effectively able to access the electronic medium in order to make the participant election,
(2)the electronic system be reasonably designed to preclude any person other than the appropriate individual from making a participant election,
(3)the electronic system provide the participant making a participant election with a reasonable opportunity to review, confirm, modify, or rescind the terms of the election before it becomes effective, and
(4)the individual making a participant election, within a reasonable time period, receive a confirmation of the election through either a written paper document or an electronic medium under a system that satisfies the applicable notice requirements of either the consumer consent delivery method or the alternative delivery method. Section 101(c) of E-SIGN does not apply to participant elections. These regulations require that a participant be effectively able to access the electronic medium under an electronic system used to make a participant election, but, like the 2000 regulations, do not require that a plan also permit the election to be made by paper as an alternative to using an electronic system that is available to the participant. However, these regulations do not apply with respect to a participant who is not effectively able to access the electronic medium or media in order to make a participant election. Accordingly, the plan must offer each such participant the right to make an election in another medium that is accessible to the participant (such as a paper election). A plan that fails to offer paper or an electronic medium that a participant is effectively able to access will fail to comply with the participant election requirements and would likely violate other qualification requirements, such as the requirements that a plan to operate in accordance with its terms (by actually making available all distribution options provided by the plan) and the requirements of § 1.401(a)(4)-4 under which benefits, rights, and features (including the right to early distribution) must be made available in a nondiscriminatory manner. B. Use of Electronic Media for QJSA Notices and Elections The participant election rules in these regulations extend the use of electronic media to the notice and election rules applicable to plans that are subject to the QJSA requirements of section 417. Accordingly, a plan subject to the QJSA requirements is permitted to provide the notice required by section 417 to a participant through the use of electronic media as long as the plan complies with either of the two methods described above for providing electronic notices. Similarly, a participant's consent to a distribution is permitted to be provided through the use of electronic media if the plan complies with the standards described below, subject to obtaining a valid spousal consent. Section 417 requires any spousal consent to a waiver of a QJSA to be witnessed by a plan representative or a notary public. In accordance with section 101(g) of E-SIGN, these regulations authorize the use of an electronic acknowledgment or notarization if the standards of section 101(g) of E-SIGN and State law applicable to notary publics are satisfied. These regulations retain the requirement from the 2005 proposed regulations that the signature of a spouse be witnessed in the physical presence of the plan representative or notary public. Several comments were received on the participant election rules, particularly as they relate to spousal consents. The comments generally fall into two categories:
(1)Commentators who favored retaining the pen-and-ink signature and physical presence requirements for spousal consents; and
(2)commentators who favored extending the use of electronic media to spousal consents, and eliminating the physical presence requirement. Commentators in the first category raised issues with rules in the 2005 proposed regulations relating to the authentication requirement and the requirement that a spousal consent of a waiver of a QJSA be witnessed in the physical presence of a notary public or a plan representative. In general, these commentators recommended that the regulations be revised to provide additional safeguards for spousal consents because, unlike other participant elections, a spousal consent could involve a conflict of interest between the parties involved in the election. With respect to the authentication requirement, these commentators argued that the authentication requirement would be vague and not require an evidentiary record. According to the commentators, requiring a pen-and-ink signature and maintaining the physical presence requirement would provide necessary additional safeguards for spousal consents by creating an evidentiary record for later disputes regarding the validity of the consent and reducing the likelihood of fraud. Commentators who favored extending the use of electronic media for all participant elections, including spousal consents, generally recommended that the final regulations eliminate the physical presence requirement for spousal consents. These commentators argued that protections are already available to protect a spouse making a participant election using electronic media. For example, a retirement plan could require a separate PIN for the spouse to which the participant would not have access. In light of these comments, these regulations clarify that the determination of whether an electronic system used in making participant elections is reasonably designed to preclude any person other than the appropriate individual from making a participant election is based on facts and circumstances, and that a relevant factor is whether the participant election has the potential for a conflict of interest between the individuals involved in the election. See *Example 3* in § 1.401(a)-21(f) of these regulations for an illustration of the participant election rules when a spousal consent is required. These regulations also clarify that if an applicable notice or participant election is recorded electronically, the electronic record must be in a form that is capable of being reproduced for later reference (see discussion of the general rules under the heading *Requirements for Using Electronic Media to Provide Notices and Make Elections* ). The requirement that the signature of a spouse to be witnessed in the physical presence of a plan representative or notary public coordinates with the authentication requirement because the physical presence requirement increases the likelihood that the electronic system is reasonably designed to preclude any person other than the appropriate individual from making the election. In contrast, an electronic system that permits the use of a spousal PIN to sign a spousal consent electronically creates greater risk that the spousal consent may be fraudulently signed. Because of the potential risk that two spouses could share information regarding PINs, the Treasury Department and IRS believe that any electronic system that relies solely on separate PINs would not provide the same level of safeguards as provided by the physical presence requirement and would not be reasonably designed to preclude any person other than the appropriate individual from making the election. Accordingly these regulations do not adopt the suggestion that spousal PINs be permitted in lieu of the physical presence requirement, and instead retain from the 2005 proposed regulations the physical presence requirement for electronic notarization of spousal consents. The Treasury Department and IRS believe that permitting electronic notarization of spousal consents under the participant election rules, in conjunction with the physical presence requirement, reflects the appropriate interpretation of section 417 and properly balances minimizing the burden of plan administration with protecting the rights of spouses. Technology is constantly evolving and, at some point in the future, technology could exist that would provide the same safeguards as the physical presence requirement. Therefore, in light of the comments received, these regulations add a delegation to the Commissioner. Under this delegation, the Commissioner may provide that the use of procedures under an electronic system with respect to an electronic medium is deemed to satisfy the physical presence requirement, but only if those procedures with respect to the electronic system provide the same safeguards for participant elections as provided through the physical presence requirement. C. Conforming Amendments to Other Rules in Law These regulations modify a number of existing regulations (including the 2000 regulations) that have previously provided rules relating to the use of new technologies in providing applicable notices or making participant elections that are required to be in writing or in written form. These modifications, which merely add the consumer consent requirements of E-SIGN, are not expected to affect adversely the existing administrative practices of plan sponsors designed to comply with the 2000 regulations. In addition, these regulations apply to categories of applicable notices that were not previously addressed in the 2000 regulations or subsequent regulations. As such, these regulations apply whenever there is a requirement than an applicable notice under one of the covered sections be provided in written form or in writing, without regard to whether that other requirement specifically cross-references these regulations. Thus, safe harbor notices under sections 401(k)(12)(D) and 401(m)(11), which are required to be in writing, can be provided electronically if the requirements of section 1.401(a)-21 of this chapter are satisfied. Effective Date The rules provided in § 1.401(a)-21 apply to applicable notices provided, and to participant elections made, on or after January 1, 2007. However, a retirement plan, an employee benefit arrangement, or an individual retirement plan that provides an applicable notice or makes a participant election that complies with the requirements set forth in these regulations on or after October 1, 2000, and before January 1, 2007, will not be treated as failing to provide an applicable notice or to make a participant election merely because the notice or election was not in writing or written form. Special Analyses It has been determined that this Treasury Decision 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 the provisions of 5 U.S.C. 553(b) and
(d)do not apply to this Treasury Decision. It is hereby certified that the collection of information in these regulations will not have a significant impact on a substantial number of small entities. This certification is based on the fact that these regulations only provide guidance on how to satisfy existing collection of information requirements through the use of electronic media. Accordingly, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, the NPRM preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Drafting Information The principal author of these regulations is Pamela R. Kinard of the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Internal Revenue Service. However, personnel from other offices of the Internal Revenue Service and Treasury Department participated in their development. List of Subjects 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. 26 CFR Part 35 Employment taxes, Income taxes, Reporting and recordkeeping requirements. 26 CFR Part 54 Excise taxes, Pensions, Reporting and recordkeeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1, 35, and 54 are amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by adding an entry in numerical order to read as follows: Authority: 26 U.S.C. 7805 * * * Section 1.401(a)-21 also issued under 26 U.S.C. 401 and section 104 of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (114 Stat. 464). * * * **Par. 2.** Section 1.72(p)-1, Q&A-3, is amended by revising the text of paragraph
(b)to read as follows: § 1.72(p)-1 Loans treated as distributions. A-3. * * *
(b)* * * A loan does not satisfy the requirements of this paragraph unless the loan is evidenced by a legally enforceable agreement (which may include more than one document) and the terms of the agreement demonstrate compliance with the requirements of section 72(p)(2) and this section. Thus, the agreement must specify the amount and date of the loan and the repayment schedule. The agreement does not have to be signed if the agreement is enforceable under applicable law without being signed. The agreement must be set forth either—
(1)In a written paper document; or
(2)In a document that is delivered through an electronic medium under an electronic system that satisfies the requirements of § 1.401(a)-21 of this chapter. **Par. 3.** Section 1.132-9(b), Q&A-12, is amended by adding a sentence to the end of the text in paragraph
(b)to read as follows: § 1.132-9 Qualified transportation fringes. A-12. * * *
(b)* * * See § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to make participant elections with respect to employee benefit arrangements. **Par. 4.** Section 1.401(a)-21 is added to read as follows: § 1.401(a)-21 Rules relating to the use of an electronic medium to provide applicable notices and to make participant elections.
(a)*Introduction* —(1) *In general* —(i) *Permission to use an electronic medium.* This section provides rules relating to the use of an electronic medium to provide applicable notices and to make participant elections as defined in paragraph (e)(1) and
(6)of this section with respect to retirement plans, employee benefit arrangements, and individual retirement plans described in paragraph (a)(2) of this section. The rules in this section reflect the provisions of the Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (114 Stat. 464
(2000)(E-SIGN)).
(ii)*Notices and elections required to be in writing or in written form* —(A) *In general.* The rules of this section must be satisfied in order to use an electronic medium to provide an applicable notice or to make a participant election if the notice or election is required to be in writing or in written form under the Internal Revenue Code, Department of Treasury regulations, or other guidance issued by the Commissioner.
(B)*Rules relating to applicable notices.* An applicable notice that is provided using an electronic medium is treated as being provided in writing or in written form if and only if the requirements of paragraph (a)(5) of this section are satisfied and either the consumer consent requirements of paragraph
(b)of this section or the requirements for exemption from the consumer consent requirements under paragraph
(c)of this section are satisfied. For example, in order to provide a section 402(f) notice electronically, a qualified plan must satisfy either the consumer consent requirements of paragraph
(b)of this section or the requirements for exemption under paragraph
(c)of this section. If a plan fails to satisfy either of these requirements, the plan must provide the section 402(f) notice using a written paper document in order to satisfy the requirements of section 402(f).
(C)*Rules relating to participant elections.* A participant election that is made using an electronic medium is treated as being provided in writing or in written form if and only if the requirements of paragraphs (a)(5) and
(d)of this section are satisfied.
(iii)*Safe harbor method for applicable notices and participant elections that are not required to be in writing or written form.* For an applicable notice or a participant election that is not required to be in writing or in written form, the rules of this section provide a safe harbor method for using an electronic medium to provide the applicable notice or to make the participant election.
(2)*Application of rules* —(i) *Notices, elections, or consents under retirement plans.* The rules of this section apply to any applicable notice or any participant election relating to the following retirement plans: A qualified retirement plan under section 401(a) or 403(a); a section 403(b) plan; a simplified employee pension
(SEP)under section 408(k); a simple retirement plan under section 408(p); or an eligible governmental plan under section 457(b).
(ii)*Notices, elections, or consents under other employee benefit arrangements.* The rules of this section also apply to any applicable notice or any participant election relating to the following employee benefit arrangements: An accident and health plan or arrangement under sections 104(a)(3) and 105; a cafeteria plan under section 125; an educational assistance program under section 127; a qualified transportation fringe program under section 132; an Archer MSA under section 220; or a health savings account under section 223.
(iii)*Notices, elections, or consents under individual retirement plans.* The rules of this section also apply to any applicable notice or any participant election relating to individual retirement plans, including a Roth IRA under section 408A; or a deemed IRA under a qualified employer plan described in section 408(q).
(3)*Limitation on application of rules* —(i) *In general.* The rules of this section do not apply to any notice, election, consent, disclosure, or obligation required under the provisions of title I or IV of the Employee Retirement Income Security Act of 1974, as amended (ERISA), over which the Department of Labor or the Pension Benefit Guaranty Corporation has interpretative and enforcement authority. For example, the rules in 29 CFR 2520.104b-1 of the Department of Labor Regulations apply with respect to an employee benefit plan providing disclosure documents, such as a summary plan description or a summary annual report. The rules in this section also do not apply to Internal Revenue Code section 411(a)(3)(B) (relating to suspension of benefits), Internal Revenue Code section 4980B(f)(6) (relating to an individual's COBRA rights), or any other Internal Revenue Code provision over which Department of Labor or the Pension Benefit Guaranty Corporation has similar interpretative authority.
(ii)*Recordkeeping and other requirements.* The rules in this section only apply with respect to applicable notices and participant elections relating to an individual's rights under a retirement plan, an employee benefit arrangement, or an individual retirement plan. Thus, the rules in this section do not alter the otherwise applicable requirements under the Internal Revenue Code, such as the requirements relating to tax reporting, tax records, or substantiation of expenses. See section 6001 for rules relating to the maintenance of records, statements, and special returns. See also section 101(e) of E-SIGN, which provides that if an electronic record of an applicable notice or a participant election is not maintained in a form that is capable of being retained and accurately reproduced for later reference, then the legal effect, validity, or enforceability of such electronic record may be denied.
(4)*General requirements related to applicable notices and participant elections* . The rules of this section supplement the general requirements related to each applicable notice and participant election. Thus, in addition to satisfying the rules for timing and content, the rules in this section must be satisfied.
(5)*Requirements related to the design of an electronic system used to deliver applicable notices and to make participant elections* —(i) *The electronic system must take into account the content of a notice* . With respect to the content of an applicable notice, the electronic system must be reasonably designed to provide the information in the notice to a recipient in a manner that is no less understandable to the recipient than a written paper document.
(ii)*Identification of the significance of information in the notice* . The electronic system must be designed to alert the recipient, at the time an applicable notice is provided, to the significance of the information in the notice (including identification of the subject matter of the notice), and provide any instructions needed to access the notice, in a manner that is readily understandable.
(b)*Consumer consent requirements* —(1) *Requirements* . With respect to an applicable notice, the consumer consent requirements of this paragraph
(b)are satisfied if—
(i)The requirements in paragraphs (b)(2) through
(4)of this section are satisfied; and
(ii)In accordance with section 101(c)(6) of E-SIGN, the applicable notice is not provided through the use of oral communication or a recording of an oral communication.
(2)*Consent* —(i) *In general* . The recipient must affirmatively consent to the delivery of the applicable notice using an electronic medium. This consent must be either—
(A)Made electronically in a manner that reasonably demonstrates that the recipient can access the applicable notice in the electronic medium in the form that will be used to provide the notice; or
(B)Made using a written paper document (or using another form not described in paragraph (b)(2)(i)(A) of this section), but only if the recipient confirms the consent electronically in a manner that reasonably demonstrates that the recipient can access the applicable notice in the electronic medium in the form that will be used to provide the notice.
(ii)*Withdrawal of consumer consent* . The consent to receive electronic delivery requirement of this paragraph (b)(2) is not satisfied if the recipient withdraws his or her consent before the applicable notice is delivered.
(3)*Required disclosure statement* . The recipient, prior to consenting under paragraph (b)(2)(i) of this section, must be provided with a clear and conspicuous statement containing the disclosures described in paragraphs (b)(3)(i) through
(v)of this section:
(i)*Right to receive paper document* —(A) *In general* . The statement informs the recipient of any right to have the applicable notice be provided using a written paper document or other nonelectronic form.
(B)*Post-consent request for paper copy* . The statement informs the recipient how, after having provided consent to receive the applicable notice electronically, the recipient may, upon request, obtain a paper copy of the applicable notice and whether any fee will be charged for such copy.
(ii)*Right to withdraw consumer consent* . The statement informs the recipient of the right to withdraw consent to receive electronic delivery of an applicable notice on a prospective basis at any time and explains the procedures for withdrawing that consent and any conditions, consequences, or fees in the event of the withdrawal.
(iii)*Scope of the consumer consent* . The statement informs the recipient whether the consent to receive electronic delivery of an applicable notice applies only to the particular transaction that gave rise to the applicable notice or to other identified transactions that may be provided or made available during the course of the parties' relationship. For example, the statement may provide that a recipient's consent to receive electronic delivery will apply to all future applicable notices of the recipient relating to the employee benefit arrangement until the recipient is no longer a participant in the employee benefit arrangement (or withdraws the consent).
(iv)*Description of the contact procedures* . The statement describes the procedures to update information needed to contact the recipient electronically.
(v)*Hardware or software requirements* . The statement describes the hardware and software requirements needed to access and retain the applicable notice.
(4)*Post-consent change in hardware or software requirements* . If, after a recipient provides consent to receive electronic delivery, there is a change in the hardware or software requirements needed to access or retain the applicable notice and such change creates a material risk that the recipient will not be able to access or retain the applicable notice in electronic format—
(i)The recipient must receive a statement of—
(A)The revised hardware or software requirements for access to and retention of the applicable notice; and
(B)The right to withdraw consent to receive electronic delivery without the imposition of any fees for the withdrawal and without the imposition of any condition or consequence that was not previously disclosed in paragraph (b)(3) of this section; and
(ii)The recipient must reaffirm consent to receive electronic delivery in accordance with the requirements of paragraph (b)(2) of this section.
(c)*Exemption from consumer consent requirements* —(1) *In general* . This paragraph
(c)is satisfied if the conditions in paragraphs (c)(2) and
(3)of this section are satisfied. This paragraph
(c)constitutes an exemption from the consumer consent requirements of section 101(c) of E-SIGN pursuant to the authority granted in section 104(d)(1) of E-SIGN.
(2)*Effective ability to access* . For purposes of this paragraph (c), the electronic medium used to provide an applicable notice must be a medium that the recipient has the effective ability to access.
(3)*Free paper copy of applicable notice* . At the time the applicable notice is provided, the recipient must be advised that he or she may request and receive the applicable notice in writing on paper at no charge, and, upon request, that applicable notice must be provided to the recipient at no charge.
(d)*Special rules for participant elections* —(1) *In general* . This paragraph
(d)is satisfied if the conditions described in the following paragraphs (d)(2) through
(6)are satisfied:
(2)*Effective ability to access* . The electronic medium under an electronic system used to make a participant election must be a medium that the person who is eligible to make the election is effectively able to access. If the appropriate individual is not effectively able to access the electronic medium for making the participant election, the participant election will not be treated as made available to that individual. Thus, for example, the participant election will not be treated as made available to that individual for purposes of the rules under section 401(a)(4).
(3)*Authentication* . The electronic system used in making participant elections is reasonably designed to preclude any person other than the appropriate individual from making the election. Whether this condition is satisfied is based on facts and circumstances, including whether the participant election has the potential for a conflict of interest between the individuals involved in the election. See *Examples 3* , *4* , and *5* of paragraph
(f)of this section for illustrations of electronic systems that satisfy the authentication requirement of this paragraph (d)(3).
(4)*Opportunity to review* . The electronic system used in making participant elections provides the person making the participant election with a reasonable opportunity to review, confirm, modify, or rescind the terms of the election before the election becomes effective.
(5)*Confirmation of action* . The person making the participant election receives, within a reasonable time, a confirmation of the effect of the election under the terms of the plan or arrangement through either a written paper document or an electronic medium under a system that satisfies the requirements of either paragraph
(b)or
(c)of this section (as if the confirmation were an applicable notice).
(6)*Participant elections, including spousal consents, that are required to be witnessed by a plan representative or a notary public* —(i) *In general* . In the case of a participant election which is required to be witnessed by a plan representative or a notary public (such as a spousal consent under section 417), the signature of the individual making the participant election is witnessed in the physical presence of a plan representative or a notary public.
(ii)*Electronic notarization permitted* . If the requirements of paragraph (d)(6)(i) of this section are satisfied, an electronic notarization acknowledging a signature (in accordance with section 101(g) of E-SIGN and State law applicable to notary publics) will not be denied legal effect if the signature of the individual is witnessed in the physical presence of a notary public.
(iii)*Delegation to Commissioner* . In guidance published in the Internal Revenue Bulletin, the Commissioner may provide that the use of procedures under an electronic system is deemed to satisfy the physical presence requirement under paragraph (d)(6)(i) of this section, but only if those procedures with respect to the electronic system provide the same safeguards for participant elections as are provided through the physical presence requirement. See § 601.601(d)(2)(ii)( *b* ) of this chapter.
(e)*Definitions* . The definitions in this paragraph
(e)apply for purposes of this section.
(1)*Applicable notice* . The term *applicable notice* includes any notice, report, statement, or other document required to be provided to a recipient under a retirement plan, employee benefit arrangement, or individual retirement plan as described in paragraph (a)(2) of this section.
(2)*Electronic* . The term *electronic* means technology having electrical, digital, magnetic, wireless, optical, electromagnetic, voice-recording systems, or similar capabilities.
(3)*Electronic medium* . The term *electronic medium* means an electronic method of communication ( *e.g.* , Web site, electronic mail, telephonic system, magnetic disk, and CD-ROM).
(4)*Electronic record* . The term *electronic record* means an applicable notice or a participant election that is created, generated, sent, communicated, received, or stored by electronic media.
(5)*Electronic system* . The term *electronic system* means a system designed for creating, generating, sending, receiving, storing, retrieving, displaying, or processing information that makes use of any electronic medium.
(6)*Participant election* . The term *participant election* includes any consent, election, request, agreement, or similar communication made by or from a participant, beneficiary, alternate payee, or an individual entitled to benefits under a retirement plan, employee benefit arrangement, or individual retirement plan as described in paragraph (a)(2) of this section.
(7)*Recipient* . The term *recipient* means a plan participant, beneficiary, employee, alternate payee, or any other person to whom an applicable notice is to be provided.
(f)*Examples* . The following examples illustrate the rules of this section. *Examples 1* , *2* , *3* , and *6* assume that the requirements of paragraph (a)(4) and
(5)of this section are satisfied. Example 1.
(i)*Facts involving using the consumer consent requirements to deliver a section 402(f) notice via e-mail* . Plan A, a qualified plan, permits participants to request benefit distributions from the plan on Plan A's Internet Web site. Under Plan A's system for such transactions, a participant must enter his or her account number, personal identification number (PIN), and his or her e-mail address to which the notice is to be sent. The participant's PIN and account number must match the information in Plan A's records in order for the transaction to proceed. Participant H requests a distribution from Plan A on Plan A's Web site, and, at the time of the request for distribution, a disclosure statement appears on the computer screen that explains that Participant H can consent to receive the section 402(f) notice electronically. The disclosure statement provides information relating to the consent, including how to receive a paper copy of the notice, how to withdraw consent, the hardware and software requirements, and the procedures for accessing the section 402(f) notice, which is in a file format from a specific spreadsheet program. After reviewing the disclosure statement, which satisfies the requirements of paragraph (b)(3) of this section, Participant H consents to receive the section 402(f) notice via e-mail by selecting the consent button at the end of the disclosure statement. As a part of the consent procedure, an e-mail is sent to Participant H's e-mail address in order to demonstrate that Participant H can access the spreadsheet program. In the e-mail, Participant H is prompted to answer a question from the spreadsheet program, which is in an attachment to the e-mail. Once Participant H correctly answers the question, the section 402(f) notice is then delivered to Participant H via e-mail.
(ii)*Conclusion* . In this *Example 1* , Plan A's delivery of the section 402(f) notice to Participant H satisfies the requirements of paragraph
(b)of this section. Example 2.
(i)*Facts* —(A) *Facts involving using the alternative method to deliver a section 411(a)(11) notice via e-mail.* Plan B, a qualified plan, permits participants to request benefit distributions from the plan on Plan B's Internet Web site. Under Plan B's system for such transactions, a participant must enter his or her account number and personal identification number (PIN), and his or her e-mail address to which the notice is to be sent. The participant's PIN and account number must match the information in Plan B's records in order for the transaction to proceed. After Participant K, a single employee, requests a distribution from Plan B on Plan B's Internet Web site, the plan administrator provides Participant K with a section 411(a)(11) notice in an attachment to an e-mail. Plan B sends the e-mail with a request for a computer generated notification that the message was received and opened. The e-mail instructs Participant K to read the attachment for important information regarding the request for a distribution. In addition, the e-mail also states that Participant K may request the section 411(a)(11) notice on a written paper document and that, if Participant K requests the notice on a written paper document, it will be provided at no charge. Plan B receives notification indicating that the e-mail was received and opened by Participant K.
(B)*Facts involving making a participant's consent to a distribution.* In order to consent to a distribution, Plan B requires a participant to enter the participant's account number and PIN in order to preclude any person other than the participant from making the election. After the authentication process, Participant K completes a distribution request form on the Web site. After completing the request form, the Web site provides a summary of the information entered on the form and gives Participant K an opportunity to review or modify the distribution request form before the transaction is completed. Within a reasonable period of time after Participant K consents to the distribution, the plan administrator, by e-mail, sends confirmation of the terms (including the form) of the distribution to Participant K and advises Participant K that, upon request, the confirmation may be provided to Participant K on a written paper document at no charge. Plan B retains an electronic copy of the consent to the distribution in a form that is capable of being retained and accurately reproduced for later reference by Participant K.
(ii)*Conclusion.* In this *Example 2* , Plan B's delivery of the section 411(a)(11) notice and the electronic system used to make Participant K's consent to a distribution satisfy the requirements of paragraphs (a), (c), and
(d)of this section. Example 3.
(i)*Facts involving the transmission of a spousal consent via electronic notarization.* Plan C, a qualified money purchase pension plan, permits a married participant to request a plan loan through the Plan C's Internet Web site with the notarized consent of the spouse. Under Plan C's system for requesting a plan loan, a participant must enter his or her account number, personal identification number (PIN), and his or her e-mail address. The information entered by the participant must match the information in Plan C's records in order for the transaction to proceed. Participant M, a married participant, is effectively able to access the Web site available to apply for a plan loan. In order to apply for a loan, Plan C requires a participant to enter the participant's account number and PIN in order to preclude any person other than the participant from making the election. Participant M completes the loan application on Plan C's Web site. Within a reasonable period of time after submitting the plan loan application, the plan administrator, by e-mail, sends Participant M the loan application, including all attachments setting forth the terms of the loan agreement and all other required information. In the e-mail, Plan C also notifies Participant M that, upon request, the loan application may be provided to Participant M on a written paper document at no charge. Plan C then instructs Participant M that, in order for the loan application to proceed, Participant M must submit to the plan administrator a notarized spousal consent form. Participant M and M's spouse go to a notary public and the notary witnesses Participant M's spouse signing the spousal consent for the loan agreement on an electronic signature capture pad with adequate security. After witnessing M's spouse signing the spousal consent, the notary public sends an e-mail with an electronic acknowledgement that is attached to or logically associated with the signature of M's spouse to the plan administrator. The electronic acknowledgement is in accordance with section 101(g) of E-SIGN and the relevant State law applicable to notary publics. After the plan receives the e-mail, Plan C sends an e-mail to Participant M, giving M a reasonable period to review and confirm the completed loan application and to determine whether the loan application should be modified or rescinded. In addition, the e-mail to Participant M also provides that M may request the completed loan application on a written paper document and that, if M requests the written paper document, it will be provided at no charge. Plan C retains an electronic copy of the loan agreement, including the spousal consent, in a form that is capable of being retained and accurately reproduced for later reference by all parties.
(ii)*Conclusion.* In this *Example 3* , the transmission of the plan loan agreement satisfies the requirements of paragraphs (a), (c), and
(d)of this section. By requiring that the spouse sign the spousal consent on an electronic signature capture pad in the physical presence of a notary public, the electronic system satisfies the requirement that the system be reasonably designed to preclude any person other than the appropriate individual from making the election. Thus, the electronic notarization of spousal consent satisfies the requirements of paragraphs
(a)and
(d)of this section. Example 4.
(i)*Facts* —(A) *Facts involving using the alternative method of compliance to deliver a section 411(a)(11) notice via an automated telephone system.* A qualified profit-sharing plan (Plan D) permits participants to request distributions through an automated telephone system. Under Plan D's system for such transactions, a participant must enter his or her account number and personal identification number (PIN); this information must match the information in Plan D's records in order for the transaction to proceed. Plan D provides only the following distribution options: single-sum payment; and annual installments over 5, 10, or 20 years. Participant N, a single participant, requests a distribution from Plan D by following the applicable instructions on the automated telephone system. After Participant N has requested the distribution, the automated telephone system recites the section 411(a)(11) notice over the phone. The automated telephone system also advises Participant N that, upon request, the notice may be provided on a written paper document and that, if Participant N so requests, the notice will be provided on a written paper document at no charge.
(B)*Facts involving making a participant's consent to a distribution via an automated telephone system.* In order to consent to a distribution, Plan D requires a participant to enter the participant's account number and PIN in order to preclude any person other than the participant from making the election. Participant N requests a distribution by entering information on the automated telephone system. After completing the request, the automated telephone system provides a oral summary of the information entered and gives Participant N an opportunity to review or modify the distribution request before the transaction is completed. Plan D's automated telephone system confirms the distribution request to Participant N and advises Participant N that, upon request, a confirmation may be provided on a written paper document at no charge. Plan D retains an electronic copy of the consent to the distribution in a form that is capable of being retained and accurately reproduced for later reference by Participant N.
(ii)*Conclusion.* In this *Example 4* , because Plan D has relatively few and simple distribution options, the provision of the section 411(a)(11) notice through the automated telephone system is no less understandable to the participant than a written paper notice for purposes of paragraph (a)(5)(i) of this section. In addition, the automated telephone procedures of Plan D satisfy the applicable requirements of paragraphs (a), (c), and
(d)of this section. Example 5.
(i)*Facts.* Same facts as *Example 4* of this paragraph (f), except that, pursuant to Plan D's system for processing such transactions, a participant who so requests is transferred to a customer service representative whose conversation with the participant is recorded. The customer service representative provides the section 411(a)(11) notice from a prepared text and processes the participant's distribution in accordance with the predetermined instructions from the plan administrator.
(ii)*Conclusion.* As in *Example 4* of this paragraph (f), because Plan D has relatively few and simple distribution options, the provision of the section 411(a)(11) notice through the automated telephone system is no less understandable to the participant than a written paper notice for purposes of paragraph (a)(4) of this section. Further, in this *Example 5* , the customer service telephone procedures of Plan D satisfy the requirements of paragraphs (a), (c), and
(d)of this section. Example 6.
(i)*Facts.* Plan E, a qualified plan, permits participants to request distributions by e-mail on the employer's e-mail system. Under this system, a participant must enter his or her account number, personal identification number (PIN), and e-mail address. This information must match that in Plan E's records in order for the transaction to proceed. If a participant requests a distribution by e-mail, the plan administrator provides the participant with a section 411(a)(11) notice by e-mail. The plan administrator also advises the participant by e-mail that he or she may request the section 411(a)(11) notice on a written paper document and that, if the participant requests the notice on a written paper document, it will be provided at no charge. Participant Q requests a distribution and receives the section 411(a)(11) notice from the plan administrator by reply e-mail. However, before Participant Q elects a distribution, Q terminates employment. Following termination of employment, Participant Q no longer has access to the employer's e-mail system.
(ii)*Conclusion.* In this *Example 6* , Plan E does not satisfy the participant election requirements under paragraph
(d)of this section because Participant Q is not effectively able to access the electronic medium used to make the participant election. Plan E must provide Participant Q with the opportunity to make the participant election through a written paper document or another system that Participant Q is effectively able to access, such as the automated telephone systems described in *Example 4* and *Example 5* of this paragraph (f).
(g)*Effective date.* The rules provided in this section apply to applicable notices provided, and to participant elections made, on or after January 1, 2007. However, a retirement plan, an employee benefit arrangement, or an individual retirement plan that provides an applicable notice or makes a participant election that complies with the requirements set forth in these regulations on or after October 1, 2000, and before January 1, 2007, will not be treated as failing to provide an applicable notice or to make a participant election merely because the notice or election was not in writing or written form. **Par. 5.** Section 1.401(k)-3 is amended by adding a sentence to the end of the text of paragraph (d)(1) to read as follows: § 1.401(k)-3 Safe harbor requirements.
(d)* * *
(1)* * * See § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to retirement plans. **Par. 6.** Section 1.402(f)-1 is amended by:
(1)Revising A-5.
(2)Removing Q&A-6. The revision reads as follows: § 1.402(f)-1 Required explanation of eligible rollover distributions; questions and answers. A-5. Yes. See § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to retirement plans. **Par. 7.** Section 1.411(a)-11 is amended by:
(1)Revising the text of paragraphs (f)(1) and (2).
(2)Removing paragraph (g). The revisions read as follows. § 1.411(a)-11 Restriction and valuation of distributions.
(f)* * *
(1)* * * The notice of a participant's rights described in paragraph (c)(2) of this section or the summary of that notice described in paragraph (c)(2)(iii)(B)(2) of this section must be provided on a written paper document. However, see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to retirement plans.
(2)* * * The consent described in paragraphs (c)(2) and
(3)of this section must be given on a written paper document. However, see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to make participant elections with respect to retirement plans. **Par. 8.** Section 1.417(a)(3)-1 is amended by adding a sentence to the end of the text of paragraph (a)(3) to read as follows: § 1.417(a)(3)-1 Required explanation of qualified joint and survivor annuity and qualified preretirement survivor annuity.
(a)* * *
(3)* * * But see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to retirement plans. **Par. 9.** Section 1.7476-2 is amended by revising paragraph (c)(2) to read as follows: § 1.7476-2 Notice to interested parties.
(c)* * *
(2)If the notice to interested parties is delivered using an electronic medium under an electronic system that satisfies the applicable notice requirements of § 1.401(a)-21 of this chapter, the notice is deemed to be provided in a manner that satisfies the requirements of paragraph (c)(1) of this section. PART 35—EMPLOYMENT TAX AND COLLECTION OF INCOME TAX AT SOURCE REGULATIONS UNDER THE TAX EQUITY AND FISCAL RESPONSIBILITY ACT OF 1982 **Par. 10.** The authority citation for part 35 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 11.** Section 35.3405-1 is amended by:
(1)Revising d-35, A.
(2)Removing d-36, Q&A. The revision reads as follows: § 35.3405-1 Questions and answers relating to withholding on pensions, annuities, and certain other deferred income. d-35. * * * A. A payor may provide the notice required under section 3405 (including the abbreviated notice described in d-27 of § 35.3405-1T and the annual notice described in d-31 of § 35.3405-1T) to a payee on a written paper document. However, see § 1.401(a)-21 of this chapter for rules permitting the use of electronic media to provide applicable notices to recipients with respect to retirement plans and individual retirement plans. PART 54—PENSION EXCISE TAXES **Par. 12.** The authority citation for part 54 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * * **Par. 13.** Section 54.4980F-1, Q&A-13, is amended as follows:
(1)Revising paragraph A-13 (c)(1)(ii) and (iii).
(2)Revising the introductory text to paragraph A-13 (c)(2).
(3)Removing paragraph A-13 (c)(3). The revisions read as follows: § 54.4980F-1 Notice requirements for certain pension plan amendments significantly reducing the rate of future benefit accrual. A-13. * * *
(c)* * *
(1)* * *
(ii)The section 204(h) notice is delivered using an electronic medium (other than an oral communication or a recording of an oral communication) under an electronic system that satisfies the applicable notice requirements of § 1.401(a)-21.
(iii)*Special effective date.* For plan years beginning prior to January 1, 2007, Q&A-13 of this section, as it appeared in the April 1, 2006 edition of 26 CFR part 1, applies.
(2)* * * The following examples illustrate the requirement in paragraph (c)(1)(i) of this Q&A-13. In these examples, it is assumed that the notice satisfies the requirements in paragraphs (c)(1)(ii) of this section. The examples are as follows: Mark E. Matthews, Deputy Commissioner for Services and Enforcement. Approved: October 10, 2006. Eric Solomon, Acting Deputy Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E6-17528 Filed 10-19-06; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9287] RIN-1545-BD00 Attained Age of the Insured Under Section 7702; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to final regulations. SUMMARY: This document corrects the final regulation (TD 9287) that was published in the **Federal Register** on Wednesday, September 13, 2006 (71 FR 53967), explaining how to determine the attained age of an insured for purposes of testing whether a contract qualifies as a life insurance contract for Federal income tax purposes. DATES: *Effective Date:* This correction is effective September 13, 2006. FOR FURTHER INFORMATION CONTACT: Ann H. Logan,
(202)622-3970 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final regulation (TD 9287) that is the subject of this correction is under section 7702 of the Internal Revenue Code. Need for Correction As published, TD 9287 contains an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the publication of the final regulation (TD 9287) that was the subject of FR. Doc. E6-15117, is corrected as follows: On page 53967, column 3, in the heading, the RIN number “RIN 1545-BE53” is corrected to read “RIN 1545-BD00”. Guy R. Traynor, Federal Register Liaison, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E6-17572 Filed 10-19-06; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF DEFENSE Office of the Secretary [DoD-2006-OS-0133] RIN 0790-AI06 32 CFR Part 245 Plan for the Emergency Security Control of Air Traffic (ESCAT) AGENCY: Department of Defense. ACTION: Final rule. SUMMARY: This rule updates the national plan for security control of air traffic during air defense emergencies and has direct relationship with the June 22, 2006, National Security Presidential Directive/NSPD-47 and Homeland Security Presidential Directive/HSPD-16, and is authorized by the Communications Act of 1934, as amended, 5 U.S.C. 301, 552, Executive Order 12656 (“Assignment of Emergency Preparedness Responsibilities”, November 18, 1988), as amended. The national plan defines the responsibilities and actions of agencies and personnel within the Departments of Defense, Transportation and Homeland Security with no effect to the public. DATES: This rule is effective January 18, 2006. FOR FURTHER INFORMATION CONTACT: Mr. Gerald F. Pease, Jr.,
(703)697-6937. SUPPLEMENTARY INFORMATION: This rule updates the national plan for security control of air traffic during air defense emergencies and has direct relationship with the June 22, 2006, National Security Presidential Directive/NSPD-47 and Homeland Security Presidential Directive/HSPD-16, and is authorized by the Communications Act of 1934, as amended, 5 U.S.C. 301, 552, Executive Order 12656 (“Assignment of Emergency Preparedness Responsibilities”, November 18, 1988), as amended. DoD has determined that good cause exists for exemption from public comment as the published change to 32 CFR part 245 is in direct compliance with current Presidential Directives, does not set a precedent in updating the National Plan, and any delay in acting on this request would be detrimental to U.S. aviation security and national commerce. List of Subjects in 32 CFR Part 245 Air traffic control, National defense, Navigation (air), Security measures. Accordingly 32 CFR part 245 is revised to read as follows: PART 245—PLAN FOR THE EMERGENCY SECURITY CONTROL OF AIR TRAFFIC (ESCAT) Sec. Subpart A—General 245.1 Purpose. 245.2 Applicability. 245.3 Responsibilities. Subpart B—Explanation of Terms, Acronyms and Abbreviations 245.5 Terms. 245.6 Abbreviations and acronyms. Subpart C—The ESCAT Plan 245.8 Purpose. 245.9 Authority. 245.10 Scope. 245.11 General description of the ESCAT plan. 245.12 Amplifying instructions. 245.13 Responsibilities. Subpart D—Procedures for Implementation of ESCAT 245.15 Appropriate military authority. 245.16 ATCSCC. 245.17 U.S. civil and military air traffic control facilities. 245.18 Transportation security operations center (TSOC). Subpart E—ESCAT Air Traffic Priority List (EATPL) 245.20 Purpose. 245.21 ESCAT air traffic priority list. 245.22 Policy for application of EATPL. Subpart F—Procedure for Movement of Air Traffic Under ESCAT 245.24 Aircraft assigned an EATPL number 1 or 2. 245.25 Aircraft assigned an EATPL number other than 1 or 2. 245.26 Aircraft being recovered. 245.27 Data entry. Subpart G—Test Procedures 245.29 Purpose. 245.30 ESCAT test procedures restrictions. 245.31 ESCAT test. Subpart H—Authentication 245.33 Approval. Authority: 5 U.S.C. 301, 552. Subpart A—General § 245.1 Purpose. This part:
(a)Is authorized by the Communications Act of 1934, as amended, 5 U.S.C. 301, 552, Executive Order 12656 (“Assignment of Emergency Preparedness Responsibilities”, November 18, 1988), as amended.
(b)Defines the jointly developed and agreed upon responsibilities of the Department of Transportation/Federal Aviation Administration (DOT/FAA), Department of Homeland Security/Transportation Security Administration (DHS/TSA), and Department of Defense
(DoD)authorities for the security control of civil and military air traffic. It implements policy, assigns responsibilities, and prescribes procedures for implementation and performance of the ESCAT Plan. The Emergency Security Control of Air Traffic (ESCAT) is an emergency preparedness plan that prescribes the joint action to be taken by appropriate elements of the DoD, the DOT and the DHS in the interests of national security to control air traffic under emergency conditions. § 245.2 Applicability. This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Combatant Commands, the DOT, the FAA, the DHS, and the TSA. § 245.3 Responsibilities. The Assistant Secretary of Defense for Networks and Information Integration will ensure the responsibilities of the DoD are implemented. The DOT and the DHS shall implement the procedures and actions requested by the Department of Defense. Subpart B—Explanation of Terms, Acronyms and Abbreviations § 245.5 Terms. For the purpose of this part, the words “will” and “shall” denote mandatory action by the affected person(s) or agency(ies). *Air control measures.* Airspace and/or flight restrictions that may be issued in support of National Defense or Homeland Security initiatives. *Air defense.* All defensive measures designed to destroy attacking enemy aircraft or missiles as well as enemy operated aircraft or missiles in the Earth's envelope of atmosphere, or to nullify or reduce the effectiveness of such attack. *Air defense area* (ADA). Airspace of defined dimensions designated by the appropriate agency within which the ready control of airborne vehicles is required in the interest of national security. *Air defense emergency* (ADE). An emergency condition, declared by the appropriate military authority, that exists when attack upon the continental United States, Alaska, Hawaii, other U.S. territories and possessions or Canada by hostile aircraft or missiles is considered probable, is imminent, or is taking place. *Air defense identification zone* (ADIZ). Airspace of defined dimensions within which the ready identification, location, and control of airborne vehicles are required. *Air defense liaison officer* (ADLO). FAA representative at a North American Aerospace Defense Command (NORAD) air defense facility (NORAD Region or NORAD Air Defense Sector). *Air defense region.* A geographical subdivision of an air defense area. *Air defense sector.* A geographical subdivision of an air defense region. *Air traffic control system command center* (ATCSCC). FAA Command Center responsible for the efficient operation of the National Airspace System, ensuring safe and efficient air travel within the United States. *Anchor annex flight.* Classified DoD mission. *Appropriate military authority.* The military commander with the authority to direct the implementation of this part. The appropriate military authorities are designated in part 245.11, (a)(1), (a)(2), (a)(3) and (b)(1), (b)(2), (b)(3). *Chief of the Defense Staff* (CDS). Canada's counterpart to the Chairman, Joint Chiefs of Staff. *Civil reserve air fleet* (CRAF). Those aircraft allocated, or identified for allocation, to the DoD under section 101 of the Defense Production Act of 1950 (50 U.S.C. App. 2071), or made available (or agreed to be made available) for use by the DoD under a contract made under this title, as part of the program developed by the DoD through which the DoD augments its airlift capability by use of civil aircraft. *Combatant Command.* A command with a broad continuing mission under a single commander established and so designated by the President, through the Secretary of Defense and with the advice and assistance of the Chairman of the Joint Chiefs of Staff. The Combatant Commands typically have geographic or functional responsibilities. For the purposes of this part, the term “combatant command” also includes NORAD. *Continental United States* (CONUS). All U.S. territory of the 48 contiguous states (does not include Alaska and Hawaii), including the adjacent territorial waters within 12 miles of the coast of the 48 contiguous states. *Contingency operations.* A military operation that:
(1)Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(2)Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301 (a), 12302, 12304, 12305, or 12406 of title 10 U.S.C., chapter 15, as amended by E.O. 13286, February 28 2003, or any other provision of law during a war or during a national emergency declared by the President or Congress. *Defense emergency.* An emergency condition that exists when:
(1)A major attack is made upon U.S. forces overseas or on allied forces in any theater and is confirmed by either the commander of a command established by the Secretary of Defense or higher authority; or
(2)An overt attack of any type is made upon the United States and is confirmed either by the commander of a command established by the Secretary of Defense or higher authority. *Dispersal.* Relocation of forces for the purpose of increasing survivability. *Diversion.* A change made in a prescribed route or destination for operational or tactical reasons. *Domestic event network* (DEN). A 24/7 FAA sponsored, telephonic conference call network that includes all of the Air Route Traffic Control Centers (ARTCC) in the U.S. It also includes various other governmental agencies that monitor the DEN. The purpose of the DEN is to provide timely notification to the appropriate authorities that there is an emerging air-related problem or incident within the CONUS. *ESCAT air traffic priority list* (EATPL). A list comprised of eight priorities designed to control the volume of air traffic when ESCAT has been implemented. *National Airspace System* (NAS). The NAS consists of the overall environment for the safe operation of aircraft that are subject to the FAA's jurisdiction. It includes: air navigation facilities, equipment and services, airports or landing areas; aeronautical charts, information and services; rules, regulations and procedures, technical information, and manpower and material. Included are system components used by the DoD. *National emergency.* A condition declared by the President or the Congress by virtue of powers previously vested in them that authorize certain emergency actions to be undertaken in the national interest. Actions to be taken may include partial, full, or total mobilization of national resources. *Navigational aids* (NAVAIDs). Aids to navigation, including but are not limited to, Global Positioning System (GPS), Tactical Air Navigation (TACAN), VHF Omnidirectional range (VOR), VHF Omnidirectional range/Tactical Air Navigation (VORTAC), Radar, and Long Range Navigation (LORAN). GPS also includes its Federal government-provided augmentations, *i.e.,* the FAA Wide Area Augmentation System
(WAAS)and Local Area Augmentation System (LAAS), United States Coast Guard
(USCG)Maritime Differential GPS (MDGPS) and USCG Nationwide Differential GPS (NDGPS). *North American Aerospace Defense Command* (NORAD). A combined military command established by the Governments of Canada and the United States responsible for North American aerospace warning and control. Headquartered in Colorado Springs, CO, NORAD is subdivided into three geographic regions: Alaska NORAD Region (ANR), Canadian NORAD Region
(CANR)and the CONUS NORAD Region (CONR). *Security assurance check.* Measures taken by DoD/DHS, as appropriate, to ensure aircraft, cargo and crew security has not been compromised by hostile organizations or individuals who are or may be engaged in espionage, sabotage, subversion, terrorism or other criminal activities. *Security control authorization* (SCA). Authorization for an EATPL category eight aircraft to take off when ESCAT has been implemented, which will be coordinated between DHS and the appropriate military authority. *Special Use Airspace* (SUA). Airspace of defined dimensions identified by an area on the surface of the earth wherein activities must be confined because of their nature, and/or wherein limitation may be imposed upon aircraft operations that are not part of those activities. Types of special use airspace include Military Operations Areas, Prohibited Areas, Restricted Areas and Warning Areas. *State and regional disaster airlift* (SARDA). The plan for using civil aviation resources to support State and regional emergency response operations. § 245.6 Abbreviations and acronyms. AADC—Area Air Defense Commander ADE—Air Defense Emergency ADIZ—Air Defense Identification Zone ADLO—Air Defense Liaison Officer AMC—Air Mobility Command ANR—Alaska NORAD Region AOR—Area of Responsibility ARTCC—Air Route Traffic Control Center ATC—Air Traffic Control ATCSCC—Air Traffic Control System Command Center CARDA—Continental U.S. Airborne Reconnaissance for Damage Assessment CDS—Chief of the Defence Staff (Canada) CERAP—Center-RAPCON CJCS—Chairman, Joint Chiefs of Staff CONR—CONUS NORAD Region CONUS—Continental United States CRAF—Civil Reserve Air Fleet DEN—Domestic Event Network DHS—Department of Homeland Security DND—Department of National Defence (Canada) DoD—Department of Defense DOT—Department of Transportation EATPL—ESCAT Air Traffic Priority List E.O.—Executive Order ESCAT—Emergency Security Control of Air Traffic FAA—Federal Aviation Administration IFR—Instrument Flight Rules LEA—Law Enforcement Agencies LIFEGUARD—Civilian air ambulance flights LNO—Liaison Officer MEDEVAC—Medical air evacuation flight NAS—National Airspace System NEADS—Northeast Air Defense Sector (NORAD) NORAD—North American Aerospace Defense Command PACAF—Pacific Air Forces SARDA—State and Regional Disaster Airlift SCA—Security Control Authorization SEADS—Southeast Air Defense Sector (NORAD) SUA—Special Use Airspace TSA—Transportation Security Administration USNORTHCOM—U.S. Northern Command USPACOM—U.S. Pacific Command VFR—Visual Flight Rules WADS—Western Air Defense Sector (NORAD) Subpart C—The ESCAT Plan § 245.8 Purpose. This part establishes responsibilities, procedures, and instructions for the security control of civil and military air traffic in order to provide effective use of airspace under various emergency conditions. § 245.9 Authority.
(a)E.O. 12656, 18 November 1988, which assigns emergency preparedness functions to Federal departments and agencies.
(b)E.O. 13074, Amendment to E.O. 12656, February 9, 1998.
(c)E.O. 13286, Amendment of E.O. 13276, 13274, 13271, 13260, 13257, 13254, and 13231, and Other Actions, in Connection With the Transfer of Certain Functions to the Secretary of Homeland Security, February 28, 2003.
(d)Title 10 U.S.C.—Armed Forces.
(e)Title 49 U.S.C., Subtitle VII—Aviation Programs.
(f)Communications Act of 1934, as amended.
(g)Aviation and Transportation Security Act of 2001 (Pub. L. 107-71), establishes the TSA and transfers civil aviation security responsibilities from FAA to TSA.
(h)Homeland Security Act of 2002 (Pub. L. 107-296), establishes DHS and transfers the transportation security functions of the DOT and Secretary of Transportation and the TSA to DHS.
(i)DoD Directive 5030.19, 1 “DoD Responsibilities on Federal Aviation and National Airspace System Matters,” outlines DoD/ NORAD responsibilities for the development of plans and policies in concert with the DOT, FAA and USCG for the establishment of a system for identification and emergency security control of air traffic. 1 Copies may be obtained at *http://www.dtic.mil/whs/directives/corres/dir2.html.* § 245.10 Scope. This part applies to all U.S. territorial airspace and other airspace over which the FAA has air traffic control jurisdiction by international agreement. § 245.11 General description of the ESCAT plan. The part defines the authorities, responsibilities, and procedures to identify and control air traffic within a specified air defense area during air defense emergencies, defense emergency, or national emergency conditions.
(a)For the purpose of this part, the appropriate military authorities are as follows:
(1)Contiguous 48 U.S. states, including Washington, DC; Alaska; and Canada—Commander NORAD or individual NORAD Region/Sector commanders.
(2)Hawaii, Guam, Wake Island, other U.S. Pacific Territories, and Pacific oceanic airspace over which FAA has air traffic control jurisdiction by international agreement—Commander, U.S. Pacific Command (USPACOM) or designated AADC.
(3)Puerto Rico and U.S. Virgin Islands—Commander, NORAD.
(b)This part provides for security control of both civil and military air traffic. It is intended to meet threat situations such as:
(1)An emergency resulting in the declaration of an Air Defense Emergency by the appropriate military authority. Under this condition, NORAD and USPACOM Commanders have authority to implement ESCAT and may consider executing this part.
(2)An adjacent Combatant Command is under attack and an Air Defense Emergency has not yet been declared. Under these conditions, NORAD and USPACOM Commanders may direct implementation of ESCAT for their own AORs individually, if airspace control measures are warranted and agreed upon by DoD/DHS/DOT.
(3)Emergency conditions exist that either threaten national security or national interests vital to the U.S., but do not warrant declaration of Defense Emergency or Air Defense Emergency. Under these conditions, NORAD and USPACOM Commanders may direct implementation of ESCAT for their own AORs individually, if airspace control measures are warranted and agreed upon by DoD/DHS/DOT. § 245.12 Amplifying instructions.
(a)Prior to any formal ESCAT implementation, the appropriate military authority will consult with DOT through the FAA Administrator and DHS through the TSA Administrator to discuss the air traffic management, airspace and/or security measures required. Every effort will be made to obtain the approval of the Secretary of Defense prior to ESCAT declaration, time and circumstance permitting. Any ESCAT implementation will be passed as soon as possible through the Chairman of the Joint Chiefs of Staff to the Secretary of Defense.
(b)ESCAT may be implemented in phases to facilitate a smooth transition from normal air traffic identification and control procedures to the more restrictive identification and control procedures specific to the situation.
(c)Once ESCAT is implemented, the appropriate military authority will consult regularly with DOT (through the FAA Administrator) and DHS (through the TSA Administrator) as appropriate, regarding any changes in the air traffic management, airspace, and/or security measures required.
(d)Interference with normal air traffic should be minimized.
(e)The process for implementation of measures for mitigation of hostile use of NAVAID signals, when required, will be subject to separate agreement between DoD and other Departments and Agencies.
(f)Upon the formal declaration of ESCAT, the appropriate military authority has the final authority regarding the extent of measures necessary for successful mission completion.
(g)The rules/procedures governing Special Use Airspace
(SUA)will remain in effect until notified by the appropriate military authority. The appropriate military authority will address SUA use in the ESCAT activation message.
(h)Appropriate Combatant Commanders, in conjunction with their FAA and TSA Liaisons, will prepare supplements to this part for their area of responsibility. These supplements are to consider the special requirement of organized civil defense and disaster relief flights, agricultural and forest fire flights, border patrol flights, and other essential civil air operations so that maximum use of these flights, consistent with air defense requirements, will be made when ESCAT is in effect.
(i)Flight operations vital to national defense, as determined by appropriate military commanders, will be given priority over all other military and civil aircraft.
(j)Prior to or subsequent to the declaration of an Air Defense Emergency, Defense Emergency, or National Emergency, there may be a requirement to disperse military aircraft for their protection. If such dispersal plans are implemented when any part of this part has been placed in effect, operations will be in accordance with the requirements of that portion of the ESCAT plan that is in effect. If any part of the ESCAT plan is ordered while dispersal is in progress, dispersal operations will be revised as required to comply with ESCAT.
(k)Direct communications are authorized between appropriate agencies and units for the purpose of coordinating and implementing the procedures in this part.
(l)To ensure implementation actions can be taken expeditiously, ESCAT tests will be conducted periodically, but at least annually in accordance with § 245.31 of this part.
(m)The area of responsibility of the appropriate military authority does not always align with ARTCC boundaries, especially in the NORAD area where one ARTCC's boundaries may lie within two or more CONUS NORAD Sectors. For NORAD and USPACOM, the FAA ARTCCs/CERAPs are aligned as follows: Command/region/sector ARTCC's CONR South East Air Defense Sector (SEADS) Atlanta, Fort Worth, Houston, Indianapolis, Jacksonville, Kansas City, Memphis, Miami, Washington, San Juan CERAP. CONR North East Air Defense Sector (NEADS) Boston, Chicago, Cleveland, Minneapolis, New York, Indianapolis, Kansas City, Atlanta, Memphis, Washington. CONR Western Air Defense Sector
(WADS)Albuquerque, Denver, Los Angeles, Oakland, Salt Lake City, Seattle, Fort Worth, Houston, Kansas City, Minneapolis. ANR (Alaskan NORAD Region) Anchorage. PACOM Honolulu CERAP, Oakland, Anchorage.
(n)Commander NORAD, acting for the DoD, will process and distribute administrative and organizational changes as they occur; however, this part will be reviewed at least once every two years by DHS/TSA, DOT/FAA, and DoD and reissued or changed as required. Recommended changes should be forwarded to: Headquarters North American Air Defense Command, Commander NORAD/J3, ATTN: NJ33C, 250 Vandenberg Street, Suite B106, Peterson AFB, CO 80914-3818. § 245.13 Responsibilities.
(a)The NORAD and USPACOM Commanders will:
(1)Establish the military requirements for ESCAT.
(2)Implement the plan as appropriate by declaring ESCAT (including the timing and scope) within their AOR.
(3)Terminate the plan as appropriate by discontinuing ESCAT (including the timing and scope) within their AOR.
(4)Coordinate with the Secretary of Defense or his designee, the CJCS, other Combatant Commands, the Department of Transportation, the Department of Homeland Security and the Canadian Minister of National Defence, as appropriate, regarding procedures for ESCAT implementation.
(b)The DOT (through the FAA Administrator) will:
(1)Establish the necessary FAA directives/plans including special ATC procedures to implement this part.
(2)Maintain liaison with Combatant Commands whose AORs include FAA areas of authority through the appropriate LNO, or FAA ADLO offices.
(3)Administer this part in accordance with established requirements.
(4)Ensure authorized FAA ADLO positions at NORAD facilities are staffed.
(5)Publish a common use document describing ESCAT and its purpose for use by civil aviation.
(6)Ensure FAA participation with the Combatant Commands in the testing of this part.
(7)Ensure the FAA Air Traffic Organization Service Units will:
(i)Disseminate information and instructions implementing this part within their AORs.
(ii)Place in effect procedures outlined in this part.
(iii)Assist appropriate military authorities in making supplemental agreements to this part as may be required.
(iv)Ensure each ARTCC/CERAP has a plan for diverting or landing expeditiously all aircraft according to the ESCAT priorities imposed upon implementation of ESCAT. Ensure a review and verification of the diversion plan is accomplished each calendar year.
(8)Ensure the ATCSCC/ARTCC/CERAPs will:
(i)Participate with Combatant Commanders in the training/testing of this part at all operational level.
(ii)Ensure dissemination of information and instructions implementing this part within their AORs.
(iii)Place in effect procedures outlined in this part.
(iv)Develop a plan for diverting or landing expeditiously all aircraft according to the ESCAT priorities imposed upon implementation of ESCAT. Review the diversion plan each calendar year.
(c)The DHS (through the TSA Administrator) will:
(1)Establish the necessary TSA directives/plans including special security procedures to implement this part.
(2)Maintain liaison with Combatant Commands whose AORs include TSA geographic areas of authority through the appropriate Federal Security Directors or other field offices.
(3)Administer this part in accordance with established requirements.
(4)Ensure authorized TSA liaison positions at NORAD facilities are staffed.
(5)Issue security directives describing ESCAT and its purpose for use by airport and aircraft operators.
(6)Ensure TSA participation with the Combatant Commands in the testing of this part.
(7)Ensure TSA Federal Security Directors and field offices:
(i)Disseminate information and instructions implementing this part within their AOR.
(ii)Implement procedures outlined in this part.
(iii)Assist appropriate military authorities in making supplemental agreements to this part, as necessary.
(d)The Commanders of Combatant Commands will:
(1)Ensure that departing North American strategic flights are coordinated with appropriate NORAD and FAA/NAVCANADA authorities.
(2)Ensure training/testing of this part at all levels within their command, as appropriate. Subpart D—Procedures for Implementation of ESCAT § 245.15 Appropriate military authority. Appropriate military authority will take the following actions:
(a)Notify or coordinate, as appropriate, the extent or termination of ESCAT implementation with DOT and DHS.
(b)Disseminate the extent of ESCAT implementation through the Noble Eagle Conferences and the FAA DEN.
(c)Specify what restrictions are to be implemented. Some examples of restrictions to be considered include:
(1)Defining the affected area.
(2)Defining the type of aircraft operations that are authorized.
(3)Defining the routing restrictions on flights entering or operating within appropriate portions of the affected area.
(4)Defining restrictions for the volume of air traffic within the affected area, using the EATPL, paragraph 245.22 of this part) and Security Control Authorizations, as required.
(5)Setting altitude limitations on flight operations in selected areas.
(6)Restricting operations to aircraft operators regulated under specified security programs (e.g., the Aircraft Operator Standard Security Program (AOSSP), and the Domestic Security Integration Program (DSIP).
(d)Revise or remove restrictions on the movement of air traffic as the tactical situation permits. § 245.16 ATCSCC. ATCSCC will direct appropriate ARTCCs/CERAPs to implement ESCAT restrictions as specified by the appropriate military authority. ARTCCs/CERAPs will take the following actions when directed to implement ESCAT:
(a)Provide the appropriate military authority feedback through the ATCSCC on the impact of restrictions and when the restrictions have been imposed.
(b)Impose restrictions on air traffic as directed.
(c)Disseminate ESCAT implementation instructions to U.S. civil and military air traffic control facilities and advise adjacent air traffic control facilities. § 245.17 U.S. civil and military air traffic control facilities. U.S. civil and military air traffic control facilities will:
(a)Maintain current information on the status of restrictions imposed on air traffic.
(b)Process flight plans in accordance with current instructions received from the ARTCC. All flights must comply with the airspace control measures in effect, the EATPL, or must have been granted a Security Control Authorization.
(c)Disseminate instructions and restrictions to air traffic as directed by the ARTCCs. § 245.18 Transportation security operations center (TSOC). TSOC will direct appropriate FSDs and field offices to implement ESCAT restrictions as specified by the appropriate military authority. FSDs and field offices will take the following actions when directed to implement ESCAT:
(a)Provide the appropriate military authority feedback through the TSOC on the impact of restrictions and when the restrictions have been implemented.
(b)Impose restrictions on civil aviation as directed by DOT/DHS.
(c)Disseminate ESCAT implementation instructions to U.S. civil aircraft operators and airports. Subpart E—ESCAT Air Traffic Priority List (EATPL) § 245.20 Purpose. When ESCAT is implemented, a system of traffic priorities may be required to make optimum use of airspace, consistent with air defense requirements. The EATPL is a list of priorities that may be used for the movement of air traffic in a defined area. Priorities shall take precedence in the order listed and subdivisions within priorities are equal. § 245.21 ESCAT air traffic priority list.
(a)*Priority One.*
(1)The President of the United States, Prime Minister of Canada and respective cabinet or staff members essential to national security, and other members as approved or designated by the Secretary of Defense and Chief of the Defence Staff.
(2)Aircraft engaged in active continental defense missions, including anti-submarine aircraft, interceptors, air refueling tanker aircraft, and airborne early-warning and control aircraft (e.g., E-3, E-2, P-3).
(3)Military retaliatory aircraft, including direct tanker support aircraft, executing strategic missions.
(4)Airborne command elements which provide backup to command and control systems for the combat forces.
(5)Anchor annex flights.
(b)*Priority Two.*
(1)Forces being deployed or in direct support of U.S. military offensive and defensive operations including the use of activated Civil Reserve Air Fleet
(CRAF)aircraft as necessary, and/or other U.S. and foreign flag civil air carrier aircraft under mission control of the U.S. military.
(2)Aircraft operating in direct and immediate support of strategic missions.
(3)Search and rescue aircraft operating in direct support of military activities.
(4)Aircraft operating in direct and immediate support of special operations missions.
(5)Federal flight operations in direct support of homeland security, e.g., Law Enforcement Agencies
(LEA)and aircraft performing security for high threat targets such as Nuclear Power Plants, Dams, Chemical Plants, and other areas identified as high threat targets.
(c)*Priority Three.*
(1)Forces being deployed or performing pre-deployment training/workups (e.g., Navy Field Carrier Landing Practice) in support of the emergency condition.
(2)Aircraft deployed in support of CONUS installation/base defense, i.e., aircraft operating in direct/immediate security support, or deploying ground forces for perimeter defense.
(3)Search and rescue aircraft not included in Priority Two.
(4)Flight inspection aircraft flights in connection with emergency restoration of airway and airport facilities in support of immediate emergency conditions.
(5)Continental U.S. Airborne Reconnaissance for Damage Assessment (CARDA) missions in support of immediate emergency conditions.
(d)*Priority Four.*
(1)Dispersal of tactical military aircraft.
(2)Dispersal of U.S. civil air carrier aircraft allocated to the CRAF Program.
(3)Repositioning of FAA/DoD/DND flight inspection aircraft.
(4)Flight inspection activity in connection with airway and airport facilities.
(5)Specific military tactical pilot currency or proficiency in support of homeland defense.
(6)Military tactical aircraft post-maintenance test flights.
(7)Federal aircraft post maintenance check flights in support of homeland security.
(e)*Priority Five.*
(1)Air transport of military commanders, their representatives, DoD/DND-sponsored key civilian personnel, non-DoD/DND or other Federal key civilian personnel who are of importance to national security.
(2)Dispersal of non-tactical military aircraft for their protection.
(3)Aircraft contracted to and/or operated by Federal agencies
(f)*Priority Six.*
(1)State and local LEA directly engaged in law enforcement missions.
(2)Flight operations in accordance with approved Federal and State emergency plans.
(3)LIFEGUARD and MEDEVAC aircraft in direct support of emergency medical services.
(4)Flight operations essential to the development, production, and delivery of equipment, personnel, materials, and supplies essential to national security.
(5)Other essential CARDA missions not covered in Priority Three.
(g)*Priority Seven.* Other military flight operations.
(h)*Priority Eight.* Other flight operations not specifically listed in priorities 1 through 7. § 245.22 Policy for application of EATPL.
(a)The originator of an aircraft flight operation under the EATPL shall be responsible for determining and verifying that the mission meets the appropriate definition and priority in accordance with the list described in § 245.22 of this part , and ensuring a security check of crew, cargo and aircraft has been completed prior to take off.
(b)The individual filing the flight plan will be responsible for including the priority number as determined by the originator of the aircraft flight operation, in the remarks section of the flight plan.
(c)Situations may occur that cannot be controlled by the EATPL. Aircraft emergencies and inbound international flights that have reached the point of no return, including foreign air carrier flights en route to safe haven airports in accordance with specific international agreements are examples of such situations. These events must be treated individually through coordination between ATC and appropriate military authorities in consideration of the urgency of the in-flight situation and existing tactical military conditions.
(d)Priorities for air traffic clearances required under the ESCAT plan are not to be confused with civil priorities assigned to general aviation civil aircraft under the State and Regional Disaster Airlift (SARDA) plan. SARDA priorities are designed to provide for controlled use of civil aircraft capability, and they have secondary significance when the EATPL for the movement of aircraft is in effect.
(e)*Exceptions to EATPL.*
(1)DoD aircraft in priorities three through seven that do not meet EATPL restrictions may request an exemption from the appropriate military authority. For the contiguous 48 U.S. states, Alaska, Puerto Rico, U.S. Virgin Islands and Canada, requests shall be submitted to the appropriate NORAD Sector. For Hawaii, Guam, Wake Island, other U.S. Pacific Territories, and Pacific oceanic airspace over which FAA has air traffic control jurisdiction by international agreement, requests shall be submitted to the designated AADC.
(2)For Federal, State, local government agencies and aircraft in priority eight, a Security Control Authorization may be granted on a case-by-case basis. Requests for SCAs will be coordinated through TSA. TSA will forward those requests that it recommends for approval to the appropriate military authority. Aircraft with a SCA shall have a Security Assurance Check prior to take off. Refer to specific SCA procedures provided in separate agreement between the appropriate military authority and TSA. Subpart F—Procedure for Movement of Air Traffic Under ESCAT § 245.24 Aircraft assigned an EATPL number 1 or 2. Aircraft assigned an EATPL number 1 or 2 will not be delayed, diverted, or rerouted by Combatant Commanders. However, commanders may recommend that this traffic be rerouted to avoid critical or critically threatened areas. § 245.25 Aircraft assigned an EATPL number other than 1 or 2. Aircraft assigned an EATPL number other than 1 or 2 may be delayed, diverted, or rerouted by Combatant Commanders to prevent degradation of the air defense system. § 245.26 Aircraft being recovered. Aircraft being recovered will be expedited to home or an alternate base. Search and Rescue aircraft may be expedited on their missions. Such aircraft may be diverted to avoid critical areas or takeoff may be delayed to prevent saturation of airspace. § 245.27 Data entry. Aircraft will file IFR or VFR flight plans, assigned a discrete transponder code, and must be in direct radio communication with ATC. The appropriate EATPL number will be entered in the remarks section of the flight plan. The EATPL number will be passed with flight plan data from one ATC facility to the next, and to the appropriate air defense control facilities. Subpart G—Test Procedures § 245.29 Purpose. The purpose of establishing training/test procedures is to specify procedures that will allow all participants to determine the time required and assure the capability to notify all agencies/personnel, down to the lowest action level, that ESCAT has been implemented. To ensure the proper level of participation, the appropriate military authority will provide, at a minimum, 30 days notice of a test to the appropriate civil agencies. Testing shall be conducted at least annually. § 245.30 ESCAT test procedures restrictions.
(a)Aircraft will not be grounded or diverted.
(b)Test messages will not be broadcast over air/ground frequencies.
(c)Radio communications will not be interrupted.
(d)Navigation Aids will not be affected. § 245.31 ESCAT test. For ESCAT testing, the responsible military commander will notify the ATCSCC using the following sample statement:
(a)Exercise, Exercise, Exercise, this is CONUS NORAD Region with a NORAD exercise message for ___ (State exercise name) ___. Simulate implementing ESCAT for ___ (Specified Area) ___. The following air control measures are being implemented. (Some examples are: Flight restricted zones, Temporary Flight Restrictions, and/or other specific air control measures for operators.) _____, _____, _____, _____. All aircraft not previously mentioned as exemptions are restricted from flight in the affected area until further notice. and/or EATPL Priorities ____ through ____ are being implemented. ATCSCC will advise the appropriate military commander when the affected FAA ATC facilities have reported simulating ESCAT. This is an exercise message for ___ (State exercise name) ___. Exercise, Exercise, Exercise.
(b)ATCSCC will notify ARTCC(s)/CERAP(s).
(c)ARTCC(s)/CERAP(s) will notify all appropriate U.S. civil and military approach control facilities and FSS. Upon completion of all actions, the implementation completion time will be forwarded to the ATCSCC.
(d)ATCSCC will provide completion times to the appropriate military authority.
(e)Tests should normally be conducted in conjunction with scheduled headquarters NORAD approved exercises. Individual NORAD Regions and Sectors may conduct tests when test objectives are local in nature and prior coordination has been effected with the ATCSCC.
(g)A narrative summary of each test will be prepared by the ATCSCC and copies sent to the appropriate military authority. Each military authority will, in turn, forward copies of the summary to HQ NORAD and DHS. Subpart H—Authentication § 245.33 Approval. Authentication will be accomplished via secure communications means between the appropriate military authority and the ATCSCC for the implementation of ESCAT. Implementation will be validated with a call back via secure communications to the appropriate military authority. Further dissemination of information may be accomplished over non-secure communications. Dated: October 11, 2006. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E6-17179 Filed 10-19-06; 8:45 am] BILLING CODE 5001-06-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-033] RIN 1625-AA09 Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, Queens, NY AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the drawbridge operation regulations governing the operation of the Beach Channel railroad bridge across Jamaica Bay, mile 6.7, at Queens, New York. This final rule requires the Beach Channel bridge to remain in the closed position during the morning and afternoon commuter rush hours from 6:45 a.m. to 8:20 a.m. and 5 p.m. to 6:45 p.m., Monday through Friday, except Federal holidays. In addition, obsolete language shall also be removed from the existing regulatory text. This rule is expected to help facilitate commuter rail traffic while continuing to meet the present and anticipated needs of navigation. DATES: This rule is effective November 20, 2006. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD01-06-033 and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Ms. Judy Leung-Yee, Project Officer, First Coast Guard District,
(212)668-7195. SUPPLEMENTARY INFORMATION: Regulatory Information On May 24, 2006, we published a notice of proposed rulemaking
(NPRM)entitled “Drawbridge Operation Regulations”; Jamaica Bay and Connecting Waterways, New York, in the **Federal Register** (71 FR 29869). We received six comment letters in response to the NPRM. No public hearing was requested and none was held. Background and Purpose The Beach Channel railroad bridge across Jamaica Bay at mile 6.7 has a vertical clearance of 26 feet at mean high water, and 31 feet at mean low water in the closed position. The existing drawbridge operating regulations listed at 33 CFR 117.5 require the bridge to open on signal at all times. Jamaica Bay facilitates both commercial and recreational vessel traffic. The owner of the bridge, New York City Transit, requested a change to the drawbridge operation regulations to help reduce commuter rail traffic delays during the morning and afternoon commuter hours. Under this final rule, the Beach Channel railroad bridge will not open for the passage of vessel traffic from 6:45 a.m. to 8:20 a.m. and from 5 p.m. to 6:45 p.m., Monday through Friday, except Federal holidays. On November 2, 2005, the Coast Guard implemented a 90-day temporary deviation with request for public comment (70 FR 66260), to test the above proposed rule change. The temporary test deviation was in effect from December 1, 2005 through February 28, 2006. No comments or complaints were received in response to the temporary test deviation. Discussion of Comments and Changes The Coast Guard received six comment letters in response to the notice of proposed rulemaking. Two comments voiced no objection, three comments were in favor, and one comment objected to the rule change. Motiva Enterprises, an oil and gasoline distributor, objected to the rule change which would allow the bridge to remain closed during the morning and evening commuter rail rush hours. Motiva stated that keeping the bridge closed at any time would negatively impact their operation. They also stated that they receive approximately six barge deliveries each week and that their barges' transits are made at high tide. The Coast Guard believes that the negative impact Motiva claims is more a matter of inconvenience since the small number of barge transits they receive weekly would still be able to make their deliveries at or near the high tide in most cases. The Coast Guard further believes that the relatively short duration of the scheduled bridge closures Monday through Friday, coupled with the infrequency of high tide occurring during those closures, is unlikely to result in frequent missed deliveries. In addition, the bridge will open on demand on Saturday and Sunday thereby providing two full days with no closures at any time. As a result of the above information, the Coast Guard believes this final rule is reasonable. In addition, we discovered obsolete regulatory text within the existing regulation, which will also be removed under this final rule. The New York City Cross Bay Boulevard Bridge, mile 10.0, and the New York City Transit Authority Bridge, mile 10.6, which are listed under this section, have been subsequently permitted as fixed bridges by Coast Guard Bridge permits, (7-87-1) dated September 3, 1987 and (7-89-1) dated August 30, 1989. The above bridges can no longer open for the passage of vessel traffic and shall be removed from this regulation under this final rule. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3), of that Order. The Office of Management and Budget has not reviewed it under that Order. This conclusion is based on the fact that vessel traffic would not be precluded from transiting through the Beach Channel railroad bridge each day, except for two closures of short duration, one in the morning, and one in the afternoon. Mariners would simply need to plan their daily transits in accordance with drawbridge operation schedule in order to help balance the needs of both rail and marine traffic. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. This rule would affect the following entities, some of which may be small entities, commercial barges and recreational vessels intending to transit the Beach Channel span. The Coast Guard certifies under 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities for the reasons set forth in the Regulatory Evaluation section. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. No small entities requested Coast Guard assistance and none was given. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation considering that it relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e), of the instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. Amend § 117.795, by revising paragraph
(c)to read as follows: § 117.795 Jamaica Bay and Connecting Waterways.
(c)The draw of the Beach Channel railroad bridge shall open on signal; except that, the draw need not open for the passage of vessel traffic, 6:45 a.m. to 8:20 a.m. and 5 p.m. to 6:45 p.m., Monday through Friday, except Federal holidays. Dated: October 3, 2006. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-17577 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-06-036] RIN 1625-AA09 Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Belle Chasse, LA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Commander, Eighth Coast Guard District, has temporarily changed the regulation governing the operation of the State Route 23 vertical lift span drawbridge across the Gulf Intracoastal Waterway (Algiers Alternate Route), mile 3.8, at Belle Chasse, Louisiana. This temporary final rule is issued to facilitate movement of vehicular traffic for the New Orleans Open House 2006 Air Show, to be held at the U.S. Naval Air Station, Joint Reserve Base at Belle Chasse, Louisiana. DATES: This temporary final rule is effective from 3:30 p.m. on Saturday, October 21, 2006 until 7 p.m. on Sunday, October 22, 2006. ADDRESSES: Documents indicated in this preamble as being available referred to in this rule are available for inspection or copying at the office of the Eighth Coast Guard District, Bridge Administration Branch, 500 Poydras Street, New Orleans, Louisiana 70130-3310, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(504)589-2965. The Eighth District Bridge Administration Branch maintains the public docket for this rulemaking. FOR FURTHER INFORMATION CONTACT: David Frank, Bridge Administration Branch,
(504)589-2965. SUPPLEMENTARY INFORMATION: Good Cause for Not Publishing an NPRM We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b) (B), the Coast Guard finds that good cause exists for not publishing an NPRM. The event is an annual event normally held on the last weekend in October. The regulation covering this annual event was subject to notice and comment, therefore further comments due to a one-time date change is unnecessary. A regulation already exists allowing the bridge to remain closed to navigation on that weekend; however, this year's event will be held on a different weekend. The closure will only impact the waterway users for 3.5 hours for two days. The bridge will open for vessels in distress during the closure period if necessary. Good Cause for Making Rule Effective in Less Than 30 Days Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the **Federal Register** . The closure of the bridge to marine traffic for this event has previously been the subject of public notice and comment; however, this year's event will be held one week earlier and requires a Temporary Rule to be issued to allow the bridge to remain closed to navigation. As the event will be held within a time frame of less than 30 days from the date of publication, it would be impracticable to wait 30 days to make the temporary rule effective. Background and Purpose The State Route 23 vertical lift span drawbridge across the Gulf Intracoastal Waterway (Algiers Alternate Route), mile 3.8, at Belle Chasse, Louisiana has a vertical clearance of 40 feet above mean high water in the closed-to-navigation position and 100 feet above mean high water in the open-to-navigation position. Navigation on the waterway consists primarily of tugs with tows, commercial fishing vessels, and occasional recreational craft. The Department of the Navy requested a temporary rule changing the operation of the State Route 23 vertical lift span drawbridge. The change accommodates the additional volume of vehicular traffic that the New Orleans Open House Air Show generates each year. A large amount of the general public are expected to attend the New Orleans Open House Air Show on each day. The change allows for the expeditious dispersal of the heavy volume of vehicular traffic expected to depart the Naval Air Station, Joint Reserve Base following the event. This event has been held annually on the last weekend in October. This year, however, the event is being held on a different weekend. Discussion of Rule The Coast Guard is temporarily changing the regulation in 33 CFR part 117 without publishing a NPRM. The temporary change allows the bridge to remain closed for 3.5 hours per day for two days to facilitate a community activity and will minimally affect waterway users wishing to transit through the bridge on this date. This event is an annual event and waterway users have never expressed any concerns regarding the delays to facilitate this event. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This temporary rule will be only be for only 3.5 hours duration on two consecutive days and is therefore expected to have only a minor affect on the local economy. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit through the SR 23 bridge during the closure period. There is not expected to be a significant impact due to the short duration of the closure and the publicity given to the event. Before the effective period, we will issue maritime advisories widely available to users of the waterway. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in the preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not cause an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g. specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. From 3:30 p.m. on October 21, 2006 until 7 p.m. on October 22, 2006, temporarily suspend § 117.451(b) and temporarily add new paragraph
(f)to read as follows: § 117.451 Gulf Intracoastal Waterway.
(f)The draw of the SR 23 bridge, Algiers Alternate Route, mile 3.8 at Belle Chasse will open on signal; except that on Saturday, October 21, 2006 and Sunday, October 22, 2006, the draw need not open for the passage of vessel from 3:30 p.m. until 7 p.m. The draw shall open at any time for a vessel in distress. Dated: October 3, 2006. Ronald W. Branch, Captain, U.S. Coast Guard, Commander, 8th Coast Guard Dist., Acting. [FR Doc. E6-17646 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-06-128] Drawbridge Operation Regulations; Connecticut River, East Haddam, CT AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Route 82 Bridge across the Connecticut River at mile 16.8, at East Haddam, Connecticut. Under this temporary deviation, the bridge may remain in the closed position for two nights only from 8:30 p.m. to 4:30 a.m. between October 30, 2006 and November 4, 2006. The exact dates to be selected will be determined by favorable weather conditions. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from October 30, 2006 through November 4, 2006. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at
(212)668-7165. SUPPLEMENTARY INFORMATION: The Route 82 Bridge, across the Connecticut River at mile 16.8, at East Haddam, Connecticut, has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.205(c). The owner of the bridge, the State of Connecticut Department of Transportation, requested a temporary deviation to facilitate scheduled bridge maintenance, replacement of the castern drive unit. The bridge will not be able to open while the bridge maintenance is underway. Under this temporary deviation, the Route 82 Bridge may remain in the closed position for two nights only from 8:30 p.m. to 4:30 a.m. from October 30, 2006 through November 4, 2006. The exact dates selected will be determined by favorable weather conditions for that evening. The work to be performed must be done under good weather conditions. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: October 12, 2006. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E6-17609 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-06-116] RIN 1625-AA00 Safety Zone; Channel Closure for Bridge Construction/Rehabilitation, Bayville Bridge at Mile 0.1, Mill Creek, Town of Oyster Bay, Nassau County, NY AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: At the request of the County of Nassau of the State of New York, the Coast Guard is establishing a safety zone that will close the channel at the Bayville Bridge at Mile 0.1, Mill Neck Creek, in the Town of Oyster Bay from 7 a.m. October 2, 2006, through 6 p.m. October 26, 2006, in order for the County to conduct necessary rehabilitation and construction operations on the bridge. The zone will temporarily close all waters within a one hundred
(100)yard radius of the Bayville Bridge. This temporary safety zone is necessary for the safety of life and to protect the maritime community transiting the area from the potential safety hazards associated with the rehabilitation and construction operations on the bridge, which will include barge-mounted crane operations, replacement of the roadway grating, structural steel repair, and repair of the bridge fender system. The channel closure temporarily prohibits passage into or movement within this portion of Mill Neck Creek, unless authorized by the Captain of the Port (COTP), Long Island Sound or the COTP's designated representative. DATES: This rule is effective from 7 a.m. EDT October 2, 2006, through 6 p.m. EDT on October 26, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-06-116 and will be available for inspection or copying at Sector Long Island Sound, New Haven, CT, between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade D. Miller, Chief, Waterways Management Division, Coast Guard Sector Long Island Sound at
(203)468-4596. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the logistics with respect to the rehabilitation and construction operations were not presented to the Coast Guard with sufficient time to draft and publish an NPRM. Any delay encountered in this regulation's effective date would be contrary to the public interest since the closure is needed to prevent traffic from transiting this portion of Mill Neck Creek during the period of these operations and necessary for the safety of life on navigable waters and to protect the public from the potential hazards that would result from transit. For the same reasons, the Coast Guard finds, under 5 U.S.C. 553(d)(3), that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The closure should have a minimal negative impact on the public and navigation as this channel is a relatively lightly used waterway used only by recreational craft, and the closure will be in effect less than a month, during a period of the year that historically features very little traffic. Background and Purpose The Bayville Bridge located in the Town of Oyster Bay, NY is currently in need of extensive rehabilitation and repair. The Bayville Bridge Rehabilitation Project includes: • Removal and replacement of the existing paint system; • Replacement of steel purlins and replacement of steel grating—open roadway, concrete filled, and sidewalk; • Repair of steel stringers, floor beams, and girders; • Repair to the fender system and repairs to improve drainage in the counterweight pits. This temporary safety zone is necessary for the safety of life and to protect the maritime community transiting the area from the potential safety hazards associated with the rehabilitation and construction operations on the bridge, which will include barge-mounted crane operations, replacement of the roadway grating, structural steel repair, and repair of the bridge fender system. Discussion of Rule This regulation will temporarily close the channel on the waters of Mill Neck Creek, in the Town of Oyster Bay, NY, within a 100-yard radius of the Bayville Bridge. This rule will permit rehabilitation and construction operations to be conducted safely. This action is intended to prohibit vessel traffic in a portion of Mill Neck Creek in Oyster Bay, NY and to provide for the protection of life and property of the maritime public. The closure will be enforced for a relatively short period of 25 days, from 7 a.m. October 2, 2006 through 6 p.m. EDT on October 26, 2006. The Captain of the Port anticipates minimal negative impact on vessel traffic as the closure will only be in effect for a 25-day period during a period of the year that historically features very little traffic in this waterway. Public notifications will be made prior to the effective period via the Local Notice to Mariners and Safety Marine Information Broadcasts. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This rule may have some impact on the public, but these potential impacts will be minimized for the following reasons: This zone covers only a small portion of the waters of Mill Neck Creek, and there is no expected impact on commercial vessels. Although this channel closure is in effect for 25 days, it will be during a period of the year that historically features very little recreational vessel traffic. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of recreational vessels intending to transit or anchor in those portions of Mill Neck Creek covered by the closure. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities. Assistance for Small Entities Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant Junior Grade D. Miller, Chief, Waterways Management Division, Sector Long Island Sound, at
(203)468-4596. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of the categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g) since it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1225 and 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T01-116 to read as follows: § 165.T01-116 Channel closure at Mile 0.1, Mill Neck Creek at Bayville Bridge, Town of Oyster Bay, Nassau County, NY.
(a)*Location.* The following area is a safety zone: All waters of Mill Neck Creek, from surface to bottom, within a one hundred
(100)yard radius of the Bayville Bridge.
(b)*Enforcement period.* This section is effective from 7 a.m. EDT October 2, 2006, through 6 p.m. EDT on October 26, 2006.
(c)*Definitions.*
(1)As used in this section, *designated representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).
(2)[Reserved]
(d)*Regulations.*
(1)In accordance with the general regulations in 165.23 of this part, the safety zone described in paragraph
(a)of this section is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.
(2)Vessel operators desiring to enter the safety zone must contact the COTP or the COTP's designated representative to obtain permission to do so. Vessel operators given permission to use the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative. Dated: September 29, 2006. P.J. Boynton, Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound. [FR Doc. E6-17606 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP Sector St. Petersburg 06-175] RIN 1625-AA00 Safety Zone; Albert Witted Air Show, Tampa Bay, FL AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing temporary safety zones on the waters of Tampa Bay, Florida. These safety zones will ensure the safety of mariners during the Albert Whitted Air Show, an event that will include low flying demonstrations over the waters of Tampa Bay, Florida in the vicinity of the Albert Whitted Airport. This regulation is necessary for the safety of life on the navigable waters of the United States. DATES: This rule is effective from 11:30 a.m. on October 20, 2006 through 6 p.m. on October 22, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [COTP Sector St. Petersburg 06-175] and are available for inspection or copying at Coast Guard Sector St. Petersburg, Prevention Department, 155 Columbia Drive, Tampa, Florida 33606-3598 between 7:30 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: LT Ronaydee Marquez at Coast Guard Sector St. Petersburg, Prevention Department,
(813)228-2191, Ext. 8203. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The necessary details for the final date of the air show and the location of the safety zones surrounding it were not provided with sufficient time to publish an NPRM. Publishing an NPRM and delaying its effective date would be contrary to the public interest since immediate action is needed to minimize potential danger to the public and participants during the air show. This safety zone is necessary to ensure the safety of mariners in the vicinity of Albert Whitted Airport due to low-flying aerobatic demonstrations over the waters of Tampa Bay, Florida. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the restriction. Coast Guard assets on scene will also provide notice of the safety zone to mariners. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose The Albert Whitted Airport will host an open house/air show October 20 through October 22, 2006, in Tampa Bay, Florida. The event will include low flying aerobatic demonstrations over the near shore waters of Tampa Bay, Florida. Demonstrations will include F-15 jet aircraft, parachute jumpers, and smaller aircraft flying in formation at altitudes 50 feet off the water. The military jet aircraft demonstrations will require a large aerial demonstration safety zone. This large zone will require Bayboro Harbor to be closed and will be enforced during the military jet aircraft demonstration. A smaller aerial demonstration safety zone will be enforced during all other aerial demonstrations throughout the event. These safety zones are being established to ensure safety of life on the navigable waters of the United States. Discussion of Rule These safety zones encompass all waters of Tampa Bay, Florida in the vicinity of the Albert Whitted Airport within two aerial demonstration areas. The large aerial demonstration safety zone is approximately 1,000 yards wide by 2,180 yards long with a north south orientation, and will accommodate the fast-moving low-flying military jet aircraft. The smaller aerial demonstration safety zone is approximately 500 yards wide by 1,500 yards long with a north south orientation, and will accommodate the smaller aerobatic aircraft. This will minimize the restriction of vessel movement into or out of Bayboro Harbor, St. Petersburg, Florida. Vessels and persons are prohibited from anchoring, mooring, or transiting within these zones, unless authorized by the Captain of the Port Sector St. Petersburg or his designated representative. The large aerial demonstration safety zone will be enforced from 2:30 p.m. until 3:30 p.m., October 20, 21 and 22, 2006; the smaller aerial demonstration safety zone will be enforced from 11:30 a.m. until 6 p.m., October 20, 21 and 22, 2006. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary because these safety zones will only be in effect for a short period of time. Moreover, vessels may enter with the express permission of the Captain of the Port of Sector St. Petersburg or his designated representative. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit Tampa Bay near St. Petersburg Albert Whitted Airport, Florida from 11:30 a.m. to 6 p.m. on October 20, 2006 through October 22, 2006. These safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for a short period of time in an area where vessel traffic is extremely low. Additionally, vessel traffic may be allowed to enter the safety zones with the express permission of the Captain of the Port Sector St. Petersburg or his designated representative. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.l, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add a new temporary § 165.T07-175 to read as follows: § 165.T07-175 Safety Zones; Tampa Bay Florida.
(a)*Location.* The Coast Guard is establishing two temporary safety zones on the waters of Tampa Bay, Florida in the vicinity of the Albert Whitted Airport encompassing all waters, from surface to bottom, located within the following two areas. All coordinates referenced use Datum: NAD 1983.
(1)Large aerial demonstration safety zone: 1: 27°46′16″ N, 82°37′31″ W; 2: 27°45′13″ N, 82°37′31″ W; 3: 27°45′13″ N, 82°36′57″ W; 4: 27°46′16″ N, 82°36′57″ W;
(2)Small aerial demonstration safety zone: 1: 27°46′14″ N, 82°37′33″ W; 2: 27°46′14″ N, 82°37′17″ W; 3: 27°45′35″ N, 82°37′17″ W; 4: 27°45′35″ N, 82°37′33″ W.
(b)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into either of these safety zones is prohibited to all vessels and persons without the prior permission of the Coast Guard Captain of the Port Sector St. Petersburg or his designated representative.
(c)*Enforcement Period.* Enforcement of the safety zone identified in paragraph (a)(1) will be from 2:30 p.m. to 3:30 p.m. on October 20, 21 and 22, 2006. Enforcement of the safety zone identified in paragraph (a)(2) will be from 11:30 a.m. to 6 p.m. on October 20, 21 and 22, 2006.
(d)*Effective Period.* This rule is effective from 11:30 a.m. on October 20, 2006 through 6 p.m. on October 22, 2006. Dated: October 4, 2006. J.A. Servidio, Captain, U.S. Coast Guard, Captain of the Port, Sector St. Petersburg, Florida. [FR Doc. E6-17576 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD13-06-047] RIN 1625-AA00 Safety Zone Regulations; Tacoma Narrows Waterway, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the waters of Puget Sound including the waters of Tacoma Narrows, WA. New power lines are being strung over the Tacoma Narrows Waterway. This may pose a significant threat to public safety, to vessels and their occupants transiting the Tacoma Narrows Waterway. The Coast Guard is establishing this zone to ensure the safety of all persons and vessels transiting the Tacoma Narrows Waterway. Entry into this zone is prohibited unless authorized by the Captain of the Port, Puget Sound or his designated representatives. DATES: This rule is effective from 12:01 a.m. September 22, 2006 to 11:59 p.m.
(PDT)October 22, 2006 during periods in which power line installation work is being conducted above the waters of the Tacoma Narrows or unless sooner cancelled by the Captain of the Port. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD13-06-047 and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA. 98134, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jes Hagen, c/o Captain of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 98134,
(206)217-6200. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM would be contrary to public interest because immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the power line installation on the Tacoma Narrows Waterway, WA. If normal notice and comment procedures were followed, this rule would not become effective until after the installation period. For the same reasons, the Coast Guard finds good cause under 5 U.S.C. 553(d)(3) for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose The Coast Guard is establishing a temporary safety zone to ensure the safety of all persons and vessels transiting the Tacoma Narrows Waterway due to potential falling cable, or other falling objects. The safety zone is needed to protect watercraft and their occupants from the hazards associated with the installation of new power lines over a navigable body of water. Discussion of Rule This rule, for safety reasons, will control vessels, personnel and individual movements in a safety zone including the entire Tacoma Narrows Waterway, 100 yards North and South of the Tacoma Narrows power line project. The safety zone includes all waters within the Tacoma Narrows Waterway, Washington State, 100 yards North and South of a line from point 47°17′04.8″ North, 122°33′03.6″ West to 47°16′ 31.38″ North, 122°31′48.24″ West. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other Federal, State, or local agencies. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation is unnecessary. This expectation is based on the fact that the safety zone would encompass a small area that should not significantly impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit this portion of the Tacoma Narrows Waterway during the time this regulation is in effect. The zone will not have a significant economic impact due to its short duration and small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so they can better evaluate its effects on them and participate in the rulemaking. If you believe the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the ( FOR FURTHER INFORMATION CONTACT ) section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This temporary rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of ccompliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the rights of Native American Tribes under the Stevens Treaties. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that this Temporary Final Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian Tribes that have questions concerning the provisions of this Temporary Final Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add a new § 165.T13-035 to read as follows: § 165.T13-035 Safety Zone: Tacoma Narrows Waterway, 100 yards North and South of the Tacoma Narrows power line project, WA.
(a)*Location.* The following area is a safety zone: All waters, from surface to bottom, within the Tacoma Narrows Waterway, Washington State, 100 yards North and South of a line from point 47°17′04.08″ North, 122°33′03.6″ West to 47°16′31.38″ North, 122°31′48.24″ West.
(b)*Definitions.*
(1)*Designated representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP), Puget Sound, in the enforcement of the safety zone.
(2)[Reserved]
(c)*Regulations.*
(1)Under the general regulations in § 165.23, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the COTP, Puget Sound, or the COTP's designated representative.
(2)The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.
(3)Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative.
(d)*Enforcement Period.* This section is effective from 12:01 a.m.
(PDT)September 22, 2006 to 11:59 p.m.
(PDT)October 22, 2006. The safety zone will be enforced during this period when power line installation work is being conducted above the waters of the Tacoma Narrows. Dated: September 22, 2006. Stephen P. Metruck, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound. [FR Doc. E6-17575 Filed 10-19-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2006-0815; FRL-8098-8] Novaluron; Pesticide Tolerance for Emergency Exemption AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes a time-limited tolerance for residues of novaluron in or on sugarcane. This action is in response to EPA's granting of an emergency exemption under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on sugarcane. This regulation establishes a maximum permissible level for residues of novaluron in this food commodity. The tolerance expires and is revoked on December 31, 2009. DATES: This regulation is effective October 20, 2006. Objections and requests for hearings must be received on or before December 19, 2006, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2006-0815. All documents in the docket are listed on the regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Andrea Conrath, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9356; e-mail address: *conrath.andrea@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0815 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 19, 2006. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2006-0815, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background and Statutory Findings EPA, on its own initiative, in accordance with sections 408(e) and 408(l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for residues of the insecticide novaluron, 1-[3-chloro-4-(1,1,2-trifluoro-2-trifluoromethoxyethoxy) phenyl]-3-[2,6-diflurobenzoyl]urea, in or on sugarcane, cane at 0.15 parts per million (ppm). This tolerance expires and is revoked on December 31, 2009. EPA will publish a document in the **Federal Register** to remove the revoked tolerance from the Code of Federal Regulations (CFR). Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party. Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166. III. Emergency Exemption for Novaluron on Sugarcane and FFDCA Tolerances The Applicant claims that sugarcane borer populations have recently increased and predator arthropod populations have decreased because of tidal surges as a result of Hurricanes Katrina and Rita in 2005. Additionally, the applicant states that the sugarcane borer developed resistance in some locations to the most commonly used insecticide, because of repeated use. Thus the applicant claims that the registered alternatives will not be adequate to provide control of the sugarcane borer in sugarcane, such that significant economic losses will be suffered. EPA has authorized under FIFRA section 18 the use of novaluron on sugarcane for control of the sugarcane borer in Louisiana. After having reviewed the submission, EPA concurs that emergency conditions exist for this State. As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of novaluron in or on sugarcane. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance expires and is revoked on December 31, 2009, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on sugarcane after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether novaluron meets EPA's registration requirements for use on sugarcane or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of novaluron by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than Louisiana to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for novaluron, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT . IV. Aggregate Risk Assessment and Determination of Safety EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of novaluron and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for residues of novaluron in or on sugarcane, cane at 0.15 parts per million (ppm). EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows. A. Toxicological Endpoints EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the toxic effects caused by novaluron as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies can be found at *http://www.epa.gov/EPA-PEST/2004/June/Day-02/p12316.htm* . For hazards that have a threshold below which there is no appreciable risk, the dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological level of concern (LOC). However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor
(UF)is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify non-threshold hazards such as cancer. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk, estimates risk in terms of the probability of occurrence of additional cancer cases. More information can be found on the general principles EPA uses in risk characterization at *http://www.epa.gov/pesticides/health/human.htm* . A summary of the toxicological endpoints for novaluron used for human risk assessment is discussed in Unit III.B. of the final rule published in the **Federal Register** of June 2, 2004 (69 FR 31013) (FRL-7359-2). B. Exposure Assessment 1. *Dietary exposure from food and feed uses.* Tolerances have been established (40 CFR 180.598) for the residues of novaluron in or on the following raw agricultural commodities: Apple, wet pomace at 8.0 ppm; Brassica, head and stem, subgroup 5A at 0.50 ppm; cattle, fat at 11 ppm; cattle, kidney at 1.0 ppm; cattle, liver at 1.0 ppm; cattle, meat at 0.60 ppm; cattle, meat byproducts, except liver and kidney at 0.60 ppm; cotton, gin byproducts at 30 ppm; cotton, undelinted seed at 0.60 ppm; eggs at 0.05 ppm; fruit, pome, group 11 at 2.0 ppm; goat, fat at 11 ppm; goat, kidney at 1.0 ppm; goat, liver at 1.0 ppm; goat, meat at 0.60 ppm; goat, meat byproducts except liver and kidney at 0.60 ppm; hog, fat at 0.05 ppm; hog, meat at 0.01 ppm; hog, meat byproducts at 0.01 ppm; horse, fat at 11 ppm; horse, kidney at 1.0 ppm; horse, liver at 1.0 ppm; horse, meat at 0.60 ppm; horse, meat byproducts, except liver and kidney at 0.60 ppm; milk at 1.0 ppm; milk, fat at 20 ppm; poultry, fat at 0.40 ppm; poultry, meat at 0.03 ppm; poultry, meat byproducts at 0.04 ppm; sheep, fat at 11 ppm; sheep, kidney at 1.0 ppm; sheep, liver at 1.0 ppm; sheep, meat at 0.60 ppm; sheep, meat byproducts, except liver and kidney at 0.60 ppm, and vegetables, tuberous and corn, subgroup 1C at 0.05 ppm. Risk assessments were conducted by EPA to assess dietary exposures from novaluron in food as follows: i. *Acute exposure* . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. No such effects were identified in the toxicological studies for novaluron. Therefore, a quantitative acute dietary exposure assessment is unnecessary. ii. *Chronic exposure* . In conducting this chronic dietary risk assessment the Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: 100% crops treated for all commodities; average field trial residues; empirical processing factors for apple juice (translated to pear juice); and DEEM TM (ver 7.76) default processing factors for the remaining processed commodities. Furthermore, anticipated residues
(ARs)were calculated for meat and milk commodities and the recommended tolerances were used for poultry commodities (partially refined, Tier II analysis). iii. *Cancer* . A cancer dietary exposure assessment was not conducted because novaluron is classified as “not likely to be carcinogenic to humans.” iv. *Anticipated residue and percent crop treated
(PCT)information* . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must pursuant to section 408(f)(1) require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. For the present action, EPA will issue such data call-ins for information relating to anticipated residues as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Such data call-ins will be required to be submitted no later than 5 years from the date of issuance of this tolerance. 2. *Dietary exposure from drinking water* . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for novaluron in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of novaluron. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at *http://www.epa.gov.oppefed1/models/water/index.htm* . The Agency uses the First Index Reservoir Screening Tool (FIRST) and the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to produce estimates of pesticide concentrations in an index reservoir. The Screening Concentration in Ground Water (SCI-GROW) model is used to predict pesticide concentrations in shallow groundwater. For a screening-level assessment for surface water EPA will generally use FIRST (a tier 1 model) before using PRZM/EXAMS (a tier 2 model). The FIRST model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. While both FIRST and PRZM/EXAMS incorporate an index reservoir environment, the PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin. None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern. The highest concentrations of novaluron residues in surface water and groundwater are associated with the use on apple (0.96 lb active ingredient/Acre, the highest registered/proposed use rate). The novaluron application scenario associated with apples is higher than the application scenario associated with sugarcane; therefore, the apple data were used for modeling. In drinking water, EPA concluded that the parent compound and degradates chlorophenyl urea, 1-[3-chloro-4-(1,1,2-trifluoro-2-trifluoromethoxyethoxy)phenyl]urea and chloroaniline, 3-chloro-4-(1,1,2-trifluoro-2-trifluoromethoxyethoxy)aniline are the residues of concern for risk assessment purposes. (Tier 2 PRZM/EXAMS) modeling was used to estimate drinking water concentrations for surface water for novaluron *per se* . The estimated drinking water concentration (EDWC: 1-in-10 year annual mean) for novaluron *per se* is 1.8 micrograms/Liter (μg/L) (parts per billion (ppb)). For groundwater, the SCI-GROW model was used to predict a groundwater concentration for novaluron. The EDWC for novaluron per se is 5.5 x 10 -3 μg/L in drinking water from shallow groundwater sources. A Tier I drinking water analysis was performed using the FQPA FIRST model to obtain surface water estimates for the chlorophenyl urea and chloroaniline degradates. For surface water, the annual average EDWC for chlorophenyl urea is 0.86 μg/L(ppb) and the annual average EDWC for chloroaniline is 2.6 μg/L(ppb). The SCI-GROW model was used to predict groundwater concentrations. The predicted ground water EDWC for chlorophenyl urea is 4.5 x 10 -3 μg/L, and for chloroaniline the EDWC is 9.0 x 10 -3 μg/L. These EDWC values are meant to represent upper-bound estimates of the concentrations that might be found in surface water and groundwater based upon novaluron uses. Of the EDWC values for the three different compounds (novaluron *per se* , and its two degradates, chlorophenyl urea and chloroaniline), the chronic estimate for chloroaniline is the highest (100% conversion from parent to aniline was assumed). This is consistent with the expected degradation pattern for novaluron, so the EDWC value for chloroaniline (2.6 ppb) was used to assess chronic aggregate risk, since it was the highest estimate derived and would represent the most conservative exposure scenario. For chronic dietary risk assessment, the annual average concentration of 2.6 ppb was directly entered into the dietary exposure model (DEEM-FCID TM ). Since an acute dietary risk assessment was not needed, EECs of novaluron for acute exposures to surface water and ground water were not used. 3. *Non-dietary exposure* . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Novaluron is not registered for use on any sites that would result in residential exposure. 4. *Cumulative effects from substances with a common mechanism of toxicity* . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to novaluron and any other substances and novaluron does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that novaluron has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's website at *http://www.epa.gov/pesticides/cumulative/* . C. Safety Factor for Infants and Children 1. *In general* . Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a margin of exposure
(MOE)analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans. 2. *Prenatal and postnatal sensitivity* . There is no quantitative or qualitative evidence of increased susceptibility of rat and rabbit fetuses to *in utero* exposure to novaluron in developmental toxicity studies. There is no quantitative or qualitative evidence of increased susceptibility to novaluron following prenatal/postnatal exposure in a 2-generation reproduction study. EPA determined that the 10X SF to protect infants and children should be reduced to 1X because of the following reasons: • There is no concern for developmental neurotoxicity resulting from exposure to novaluron. A developmental neurotoxicity study
(DNT)study is not required. • The toxicological database is complete for FQPA assessment. • Dietary assessments are estimated based on data that reasonably accounts for potential exposures. The chronic dietary food exposure assessment uses the conservative assumption that 100% of the crops are treated for all commodities. • The dietary drinking water assessment utilizes water concentration values generated by model and associated modeling parameters which are designed to provide conservative, health protective, high-end estimates of water concentrations which will not likely be exceeded. • There are no proposed or existing uses for novaluron which result in residential exposure. D. Aggregate Risks and Determination of Safety The Agency currently has two ways to estimate total aggregate exposure to a pesticide from food, drinking water, and residential uses. First, a screening assessment can be used, in which the Agency calculates drinking water levels of comparison (DWLOCs) which are used as a point of comparison against EDWCs. DWLOC values are not regulatory standards for drinking water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food and residential uses. In calculating a DWLOC, the Agency determines how much of the acceptable exposure (i.e., the PAD) is available for exposure through drinking water [e.g., allowable chronic water exposure (mg/kg/day) = cPAD - (average food + chronic non-dietary, non-occupational exposure)]. This allowable exposure through drinking water is used to calculate a DWLOC. A DWLOC will vary depending on the toxic endpoint, drinking water consumption, and body weights. Default body weights and consumption values as used by the USEPA Office of Water are used to calculate DWLOCs: 2 liter (L)/70 kg (adult male), 2L/60 kg (adult female), and 1L/10 kg (child). Default body weights and drinking water consumption values vary on an individual basis. This variation will be taken into account in more refined screening-level and quantitative drinking water exposure assessments. Different populations will have different DWLOCs. Generally, a DWLOC is calculated for each type of risk assessment used: Acute, short-term, intermediate-term, chronic, and cancer. When EDWCs for surface water and groundwater are less than the calculated DWLOCs, OPP concludes with reasonable certainty that exposures to novaluron in drinking water (when considered along with other sources of exposure for which OPP has reliable data) would not result in unacceptable levels of aggregate human health risk at this time. Because OPP considers the aggregate risk resulting from multiple exposure pathways associated with a pesticide's uses, levels of comparison in drinking water may vary as those uses change. If new uses are added in the future, OPP will reassess the potential impacts of novaluron on drinking water as a part of the aggregate risk assessment process. More recently the Agency has used another approach to estimate aggregate exposure through food, residential and drinking water pathways. In this approach, modeled surfacewater and groundwater EDWCs are directly incorporated into the dietary exposure analysis, along with food. This provides a more realistic estimate of exposure because actual body weights and water consumption from the CSFII are used. The combined food and water exposures are then added to estimated exposure from residential sources to calculate aggregate risks. The resulting exposure and risk estimates are still considered to be high end, due to the assumptions used in developing drinking water modeling inputs. 1. *Acute risk* . Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for novaluron; therefore, novaluron is not expected to pose an acute risk. 2. *Chronic risk* . Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that exposure to novaluron from food and drinking water contributions will utilize 20% of the cPAD for the U.S. population, 72% of the cPAD for children 1 to 2 years old and 34% of the cPAD for infants less than 1 year old. There are no residential uses for novaluron that result in chronic residential exposure to novaluron. Therefore, EPA does not expect the aggregate exposure to exceed 100% of the cPAD. 3. *Short- and intermediate-term risk* . Short-term and intermediate-term aggregate exposure takes into account residential exposure plus chronic exposure to food and water (considered to be background exposure levels.) Novaluron is not registered for use on any sites that would result in residential exposure. Therefore, the aggregate risk is the sum of the risk from food and water, which were previously addressed and do not exceed the Agency's levels of concern. 4. *Aggregate cancer risk for U.S. population* . Novaluron is classified as “not likely to be carcinogenic to humans'' based on the lack of evidence for carcinogenicity in mice and rats. Therefore, novaluron is not expected to pose a cancer risk. 6. *Determination of safety* . Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, nor to infants and children from aggregate exposure to novaluron residues. V. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (gas chromatography with electron capture detection) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits There are currently no established Codex, Canadian, or Mexican maximum residue limits for novaluron, so harmonization is not an issue. VI. Conclusion Therefore, the tolerance is established for residues of novaluron, 1-[3-chloro-4-(1,1,2-trifluoro-2-trifluoromethoxyethoxy)phenyl]-3-[2,6-diflurobenzoyl]urea, in or on sugarcane, cane at 0.15 ppm. VII. Statutory and Executive Order Reviews This final rule establishes a time-limited tolerance under section 408 of the FFDCA. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 exemption under section 408 of the FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. VIII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: October 12, 2006. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.598 is amended by adding text to paragraph
(b)to read as follows: § 180.598 Novaluron; tolerances for residues. *(b) Section 18 emergency exemptions* . A time-limited tolerance is established for residues of the fungicide novaluron, 1-[3-chloro-4-(1,1,2-trifluoro-2-trifluoromethoxyethoxy) phenyl]-3-[2,6-diflurobenzoyl]urea in connection with use of the pesticide under a section 18 emergency exemption granted by EPA. The tolerance will expire and is revoked on the date specified in the following table: Commodity Parts per million Expiration/revocation date Sugarcane, cane 0.15 12/31/09 [FR Doc. E6-17566 Filed 10-19-06; 8:45 am] BILLING CODE 6560-50-S CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Part 2554 RIN 3045-AA42 Program Fraud Civil Remedies Act AGENCY: Corporation for National and Community Service. ACTION: Final rule. SUMMARY: This final rule implements the Program Fraud Civil Remedies Act of 1986 (Act), which authorizes the Corporation for National and Community Service (Corporation) and certain other Federal agencies to impose, through administrative adjudication, civil penalties and assessments against any person who makes, submits, or presents a false, fictitious, or fraudulent claim or written statement to the agency. The regulations establish the procedures the Corporation will follow in implementing the provisions of the Act and specifies the hearing and appeal rights of persons subject to penalties and assessments under the Act. They also designate the Corporation's Chief Financial Officer to act on behalf of the Chief Executive Officer in carrying out certain duties and responsibilities under the regulations. DATES: *Effective Date:* These regulations are effective November 20, 2006. FOR FURTHER INFORMATION CONTACT: Irshad Abdal-Haqq, Office of the General Counsel, Corporation for National and Community Service, 1201 New York Ave. NW., Room 10600, Washington, DC 20525, Telephone: 202-606-6675. SUPPLEMENTARY INFORMATION: Background In October 1986, Congress enacted the Program Fraud Civil Remedies Act, Public Law No. 99-509 (codified at 31 U.S.C. 3801-3812), to establish an administrative remedy against any person who makes a false claim or written statement to any of certain Federal agencies. In brief, it requires the affected Federal agencies to follow certain procedures in recovering penalties (up to $5,000 per claim) and assessments (up to double the amount falsely claimed) against persons who file false claims or statements for which the liability is $150,000 or less. When the Act was enacted, the Corporation for National and Community Service did not exist, and the Act did not apply to the Corporation's predecessor agency, ACTION. However, that Act has since become applicable to the Corporation as a result of amendments to the Inspector General Act, Public Law 103-82, September 21, 1993. Those amendments, inter alia, added the Corporation for National and Community Service as an “establishment” under the Inspector General Act and, by doing so, operated to bring the Corporation within the provisions of the Program Fraud Civil Remedies Act. The Act requires each affected agency to promulgate rules and regulations necessary to implement its provisions. Following the Act's enactment, at the request of the President's Council on Integrity and Efficiency
(PCIE)an interagency task force was established under the leadership of the Department of Health and Human Services to develop model regulations for implementation of the Act by all affected agencies. This action was in keeping with the stated desire of the Senate Governmental Affairs Committee that “the regulations would be substantially uniform throughout the government” (S. Rep. No. 99-212, 99th Cong., 1st Sess. 12 (1985). Upon their completion, the PCIE recommended adoption of the model rules by all affected agencies. It is the policy of the Corporation to use a plain language style when promulgating regulations, and we have done so in this document without making substantive changes to the PCIE model regulations. For the sake of consistency, we relied, to the extent practicable, on plain language regulations issued by the Small Business Administration in 1996. See 61 FR 2691, January 29, 1996. A more detailed discussion of the PCIE's model regulations is found in the promulgations of several of the agencies that adopted them earlier, including those of the Departments of Justice (53 FR 4034; February 11, 1988 and 53 FR 11645; April 8, 1988); Health and Human Services (52 FR 27423; July 21, 1987 and 53 FR 11656, April 8, 1988); and Transportation (52 FR 36968; October 2, 1987 and 53 FR 880, January 14, 1988). Anyone desiring further explanation of the model rules is referred to the cited references. The Corporation published a proposed rule with request for comment in the **Federal Register** on February 1, 2006 (71 FR 5211). Only one comment was received. It expressed general support for the rule as written without any amendments. The commenter believes the rule holds individuals accountable for fraudulent activity and, as such, improves government operations. The commenter also believes the rule's penalty provisions will deter fraud. Finally, the commenter expressed strong support for the use of plain language in drafting the rule and clearly specifying in the rule that due process will be provided under the rule's procedures. Since there were no other comments, the Corporation has decided to issue the final rule as proposed (subject only to minor typographical corrections). Statutory and Regulatory Analysis Under the Act, false claims and statements subject to its provisions are to be investigated by an agency's investigating official. The results of the investigation are then reviewed by an agency reviewing official who determines whether there is adequate evidence to believe that the person named in the report is liable under the Act. Upon an affirmative finding of adequate evidence, the reviewing official sends to the Attorney General a written notice of the official's intent to refer the matter to a presiding officer for an administrative hearing. The agency institutes administrative proceedings against the person only if the Attorney General or the Attorney General's designee approves. Any penalty or assessment imposed under the Act may be collected by the Attorney General through the filing of a civil action, or by offsetting amounts, other than tax refunds, owed the particular party by the Federal government. The regulations designate the Inspector General or his or her designee as the agency's investigating official. They also designate the General Counsel as the reviewing official. Any administrative adjudication under the Act will be presided over by an Administrative Law Judge and any appeals from the Administrative Law Judge's decision will be decided by the Corporation's Chief Executive Officer or Chief Financial Officer. The regulations designate the Corporation's Chief Financial Officer to act on behalf of the Chief Executive Officer in carrying out the duties and responsibilities of the “authority head” under the regulations. Paperwork Reduction Act This rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ). Executive Order 12866 The Corporation has determined that the rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in:
(1)An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities;
(2)the creation of a serious inconsistency or interference with an action taken or planned by another agency;
(3)a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866. However, this is a significant rule and has been reviewed by the Office of Management and Budget. Regulatory Flexibility Act As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Corporation certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in
(1)An annual effect on the economy of $100 million or more;
(2)a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(3)significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The rule establishes the procedural mechanism for investigating and adjudicating allegations of false claims or statements made against affected agencies. The rule, by itself, does not impose any obligations on entities including any entities that may fall within the definition of “small entities” as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of “small business” as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size Standards found in 13 CFR part 121. These obligations would not be created until an order is issued, at which time the person subject to the order would have a right to a hearing in accordance with the regulations. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) for major rules that are expected to have such results. Unfunded Mandates For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector. Executive Order 13132, Federalism Executive Order 13132, *Federalism* , prohibits an agency from publishing any rule that has Federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have any Federalism implications, as described above. List of Subjects in 45 CFR Part 2554 Claims, Fraud, Organization and function (government agencies), Penalties. For the reasons stated in the preamble, the Corporation for National and Community Service adds a new part 2554 to Chapter XXV of Title 45 of the Code of Federal Regulations to read as follows: PART 2554—PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS Sec. Overview and Definitions 2554.1 Overview of regulations. 2554.2 What kind of conduct will result in program fraud enforcement? 2554.3 What is a claim? 2554.4 What is a statement? 2554.5 What is a false claim or statement? 2554.6 What does the phrase “know or have reason to know” mean? Procedures Leading to Issuance of a Complaint 2554.7 Who investigates program fraud? 2554.8 What happens if program fraud is suspected? 2554.9 Who is the Corporation's authority head? 2554.10 When will the Corporation issue a complaint? 2554.11 What is contained in a complaint? 2554.12 How will the complaint be served? Procedures Following Service of a Complaint 2554.13 How does a defendant respond to the complaint? 2554.14 What happens if a defendant fails to file an answer? 2554.15 What happens once an answer is filed? Hearing Provisions 2554.16 What kind of hearing is contemplated? 2554.17 At the hearing, what rights do the parties have? 2554.18 What is the role of the ALJ? 2554.19 Can the reviewing official or ALJ be disqualified? 2554.20 How are issues brought to the attention of the ALJ? 2554.21 How are papers served? 2554.22 How is time computed? 2554.23 What happens during a prehearing conference? 2554.24 What rights are there to review documents? 2554.25 What type of discovery is authorized and how is it conducted? 2554.26 Are there limits on disclosure of documents or discovery? 2554.27 Are witness lists exchanged before the hearing? 2554.28 Can witnesses be subpoenaed? 2554.29 Who pays the costs for a subpoena? 2554.30 Are protective orders available? 2554.31 Where is the hearing held? 2554.32 How will the hearing be conducted and who has the burden of proof? 2554.33 How is evidence presented at the hearing? 2554.34 How is witness testimony presented? 2554.35 Will the hearing proceedings be recorded? 2554.36 Can a party informally discuss the case with the ALJ? 2554.37 Are there sanctions for misconduct? 2554.38 Are post-hearing briefs required? Decisions and Appeals 2554.39 How is the case decided? 2554.40 How are penalty and assessment amounts determined? 2554.41 Can a party request reconsideration of the initial decision? 2554.42 When does the initial decision of the ALJ become final? 2554.43 What are the procedures for appealing the ALJ decision? 2554.44 What happens if an initial decision is appealed? 2554.45 Are there any limitations on the right to appeal to the authority head? 2554.46 How does the authority head dispose of an appeal? 2554.47 What judicial review is available? 2554.48 Can the administrative complaint be settled voluntarily? 2554.49 How are civil penalties and assessments collected? 2554.50 What happens to collections? 2554.51 What if the investigation indicates criminal misconduct? 2554.52 How does the Corporation protect the rights of defendants? Authority: Pub. L. 99-509, Secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); 42 U.S.C. 12651c-12651d. Overview and Definitions § 2554.1 Overview of regulations.
(a)*Statutory basis.* This part implements the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-3812 (“the Act”). The Act provides the Corporation and other federal agencies with an administrative remedy to impose civil penalties and assessments against persons making false claims and statements. The Act also provides due process protections to all persons who are subject to administrative proceedings under this part.
(b)*Possible remedies for program fraud.* In addition to any other penalties that may be prescribed by law, a person who submits, or causes to be submitted, a false claim or a false statement to the Corporation is subject to a civil penalty of not more than $5,000 for each statement or claim, regardless of whether property, services, or money is actually delivered or paid by the Corporation. If the Corporation has made any payment, transferred property, or provided services in reliance on a false claim, the person submitting it also is subject to an assessment of not more than twice the amount of the false claim. This assessment is in lieu of damages sustained by the Corporation because of the false claim. § 2554.2 What kind of conduct will result in program fraud enforcement?
(a)Any person who makes, or causes to be made, a false, fictitious, or fraudulent claim or written statement to the Corporation is subject to program fraud enforcement. A “person” means any individual, partnership, corporation, association, or other legal entity.
(b)If more than one person makes a false claim or statement, each person is liable for a civil penalty. If more than one person makes a false claim which has induced the Corporation to make payment, an assessment is imposed against each person. The liability of each such person to pay the assessment is joint and several, that is, each is responsible for the entire amount.
(c)No proof of specific intent to defraud is required to establish liability under this part. § 2554.3 What is a claim?
(a)Claim means any request, demand, or submission:
(1)Made to the Corporation for property, services, or money;
(2)Made to a recipient of property, services, or money from the Corporation or to a party to a contract with the Corporation for property or services, or for the payment of money. This provision applies only when the claim is related to property, services or money from the Corporation or to a contract with the Corporation; or
(3)Made to the Corporation which decreases an obligation to pay or account for property, services, or money.
(b)A claim can relate to grants, loans, insurance, or other benefits, and includes the Corporation guaranteed loans made by participating lenders. A claim is made when it is received by the Corporation, an agent, fiscal intermediary, or other entity acting for the Corporation, or when it is received by the recipient of property, services, or money, or the party to a contract.
(c)Each voucher, invoice, claim form, or individual request or demand for property, services, or money constitutes a separate claim. § 2554.4 What is a statement? A “statement” means any written representation, certification, affirmation, document, record, or accounting or bookkeeping entry made with respect to a claim or with respect to a contract, bid or proposal for a contract, grant, loan or other benefit from the Corporation. “From the Corporation” means that the Corporation provides some portion of the money or property in connection with the contract, bid, grant, loan, or benefit, or is potentially liable to another party for some portion of the money or property under such contract, bid, grant, loan, or benefit. A statement is made, presented, or submitted to the Corporation when it is received by the Corporation or an agent, fiscal intermediary, or other entity acting for the Corporation. § 2554.5 What is a false claim or statement?
(a)A claim submitted to the Corporation is a “false” claim if the person making the claim, or causing the claim to be made, knows or has reason to know that the claim:
(1)Is false, fictitious or fraudulent;
(2)Includes or is supported by a written statement which asserts or contains a material fact which is false, fictitious, or fraudulent;
(3)Includes or is supported by a written statement which is false, fictitious or fraudulent because it omits a material fact that the person making the statement has a duty to include in the statement; or
(4)Is for payment for the provision of property or services which the person has not provided as claimed.
(b)A statement submitted to the Corporation is a false statement if the person making the statement, or causing the statement to be made, knows or has reason to know that the statement:
(1)Asserts a material fact which is false, fictitious, or fraudulent; or
(2)Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in the statement. In addition, the statement must contain or be accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement. § 2554.6 What does the phrase “know or have reason to know” mean? A person knows or has reason to know (that a claim or statement is false) if the person:
(a)Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; or
(b)Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(c)Acts in reckless disregard of the truth or falsity of the claim or statement. Procedures Leading to Issuance of a Complaint § 2554.7 Who investigates program fraud? The Inspector General, or his designee, is the investigating official responsible for investigating allegations that a false claim or statement has been made. In this regard, the Inspector General has authority under the Program Fraud Civil Remedies Act and the Inspector General Act of 1978 (5 U.S.C. App. 3), as amended, to issue administrative subpoenas for the production of records and documents. § 2554.8 What happens if program fraud is suspected?
(a)If the investigating official concludes that an action under this Part is warranted, the investigating official submits a report containing the findings and conclusions of the investigation to a reviewing official. The reviewing official is the General Counsel or his or her designee. If the reviewing official determines that the report provides adequate evidence that a person submitted a false claim or statement, the reviewing official transmits to the Attorney General written notice of an intention to refer the matter for adjudication, with a request for approval of such referral. This notice will include the reviewing official's statements concerning:
(1)The reasons for the referral;
(2)The claims or statements upon which liability would be based;
(3)The evidence that supports liability;
(4)An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in the false claim or statement;
(5)Any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
(6)A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
(b)If at any time, the Attorney General or his or her designee requests in writing that this administrative process be stayed, the authority head, as identified in § 2554.9 of this Part, must stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General. § 2554.9 Who is the Corporation's authority head? The Corporation's “authority head” is the Chief Executive Officer or his or her designee. For purposes of this Part, the Corporation's Chief Financial Officer is designated to act on behalf of the Chief Executive Officer. § 2554.10 When will the Corporation issue a complaint? The Corporation will issue a complaint:
(a)If the Attorney General (or designee) approves the referral of the allegations for adjudication; and
(b)In a case of submission of false claims, if the amount of money or the value of property or services demanded or requested in a false claim, or a group of related claims submitted at the same time, does not exceed $150,000. “A group of related claims submitted at the same time” includes only those claims arising from the same transaction (such as a grant, loan, application, or contract) which are submitted together as part of a single request, demand, or submission. § 2554.11 What is contained in a complaint?
(a)A complaint is a written statement giving notice to the person alleged to be liable under 31 U.S.C. 3802 of the specific allegations being referred for adjudication and of the person's right to request a hearing with respect to those allegations. The person alleged to have made false statements or to have submitted false claims to the Corporation is referred to as the “defendant.”
(b)The reviewing official may join in a single complaint, false claims or statements that are unrelated, or that were not submitted simultaneously, regardless of the amount of money or the value of property or services demanded or requested.
(c)The complaint will state that the Corporation seeks to impose civil penalties, assessments, or both, against each defendant and will include:
(1)The allegations of liability against each defendant, including the statutory basis for liability, identification of the claims or statements involved, and the reasons liability allegedly arises from such claims or statements;
(2)The maximum amount of penalties and assessments for which each defendant may be held liable;
(3)A statement that each defendant may request a hearing by filing an answer and may be represented by a representative;
(4)Instructions for filing such an answer;
(5)A warning that failure to file an answer within 30 days of service of the complaint will result in imposition of the maximum amount of penalties and assessments.
(d)The reviewing official must serve any complaint on the defendant and, if a hearing is requested by the defendant, provide a copy to the Administrative Law Judge
(ALJ)assigned to the case. § 2554.12 How will the complaint be served?
(a)The complaint must be served on individual defendants directly, a partnership through a general partner, and on corporations or on unincorporated associations through an executive officer or a director, except that service also may be made on any person authorized by appointment or by law to receive process for the defendant.
(b)The complaint may be served either by:
(1)Registered or certified mail (return receipt requested) addressed to the defendant at his or her residence, usual dwelling place, principal office or place of business; or by
(2)Personal delivery by anyone 18 years of age or older.
(c)The date of service is the date of personal delivery or, in the case of service by registered or certified mail, the date of postmark.
(d)Proof of service—
(1)When service is made by registered or certified mail, the return postal receipt will serve as proof of service.
(2)When service is made by personal delivery, an affidavit of the individual serving the complaint, or written acknowledgment of receipt by the defendant or a representative, will serve as proof of service.
(e)When served with the complaint, the defendant also should be served with a copy of this Part 2554 and 31 U.S.C. 3801-3812. Procedures Following Service of a Complaint § 2554.13 How does a defendant respond to the complaint?
(a)A defendant may file an answer with the reviewing official within 30 days of service of the complaint. An answer will be considered a request for an oral hearing.
(b)In the answer, a defendant—
(1)Must admit or deny each of the allegations of liability contained in the complaint (a failure to deny an allegation is considered an admission);
(2)Must state any defense on which the defendant intends to rely;
(3)May state any reasons why he or she believes the penalties, assessments, or both should be less than the statutory maximum; and
(4)Must state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
(c)If the defendant is unable to file an answer which meets the requirements set forth in paragraph
(b)of this section, the defendant may file with the reviewing official a general answer denying liability, requesting a hearing, and requesting an extension of time in which to file a complete answer. A general answer must be filed within 30 days of service of the complaint.
(d)If the defendant initially files a general answer requesting an extension of time, the reviewing official must promptly file with the ALJ the complaint, the general answer, and the request for an extension of time.
(e)For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph
(b)of this section. Such answer must be filed with the ALJ and a copy must be served on the reviewing official. § 2554.14 What happens if a defendant fails to file an answer?
(a)If a defendant does not file any answer within 30 days after service of the complaint, the reviewing official will refer the complaint to the ALJ.
(b)Once the complaint is referred, the ALJ will promptly serve on the defendant a notice that an initial decision will be issued.
(c)The ALJ will assume the facts alleged in the complaint to be true and, if such facts establish liability under the statute, the ALJ will issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d)Except as otherwise provided in this section, when a defendant fails to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed in the initial decision.
(e)The initial decision becomes final 30 days after it is issued.
(f)If, at any time before an initial decision becomes final, a defendant files a motion with the ALJ asking that the case be reopened and describing the extraordinary circumstances that prevented the defendant from filing an answer, the initial decision will be stayed until the ALJ makes a decision on the motion. The reviewing official may respond to the motion.
(g)If, in his motion to reopen, a defendant demonstrates extraordinary circumstances excusing his failure to file a timely answer, the ALJ will withdraw the initial decision, and grant the defendant an opportunity to answer the complaint.
(h)A decision by the ALJ to deny a defendant's motion to reopen a case is not subject to review or reconsideration.
(i)The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
(j)If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
(k)The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant's failure to file a timely answer based solely on the record before the ALJ.
(l)If the authority head decides that extraordinary circumstances excused the defendant's failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
(m)If the authority head decides that the defendant's failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision. § 2554.15 What happens once an answer is filed?
(a)When the reviewing official receives an answer, he must file concurrently, the complaint and the answer with the ALJ, along with a designation of a Corporation representative.
(b)When the ALJ receives the complaint and the answer, the ALJ will promptly serve a notice of oral hearing upon the defendant and the representative for the Corporation, in the same manner as the complaint, service of which is described in § 2554.12. The notice of oral hearing must be served within six years of the date on which the claim or statement is made.
(c)The notice must include:
(1)The tentative time, place and nature of the hearing;
(2)The legal authority and jurisdiction under which the hearing is to be held;
(3)The matters of fact and law to be asserted;
(4)A description of the procedures for the conduct of the hearing;
(5)The name, address, and telephone number of the defendant's representative and the representative for the Corporation; and
(6)Such other matters as the ALJ deems appropriate.
(d)The six-year statute of limitation may be extended by agreement of the parties. Hearing Provisions § 2554.16 What kind of hearing is contemplated? The hearing is a formal proceeding conducted by the ALJ during which a defendant will have the opportunity to cross-examine witnesses, present testimony, and dispute liability. § 2554.17 At the hearing, what rights do the parties have?
(a)The parties to the hearing shall be the defendant and the Corporation. Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff in an action under the False Claims Act may participate in the hearing to the extent authorized by the provisions of that Act.
(b)Each party has the right to:
(1)Be represented by a representative;
(2)Request a pre-hearing conference and participate in any conference held by the ALJ;
(3)Conduct discovery;
(4)Agree to stipulations of fact or law which will be made a part of the record;
(5)Present evidence relevant to the issues at the hearing;
(6)Present and cross-examine witnesses;
(7)Present arguments at the hearing as permitted by the ALJ; and
(8)Submit written briefs and proposed findings of fact and conclusions of law after the hearing, as permitted by the ALJ. § 2554.18 What is the role of the ALJ? An ALJ retained by the Corporation serves as the presiding officer at all hearings.
(a)The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b)The ALJ has the authority to—
(1)Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
(2)Continue or recess the hearing in whole or in part for a reasonable period of time;
(3)Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4)Administer oaths and affirmations;
(5)Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
(6)Rule on motions and other procedural matters;
(7)Regulate the scope and timing of discovery;
(8)Regulate the course of the hearing and the conduct of representatives and parties;
(9)Examine witnesses;
(10)Receive, rule on, exclude, or limit evidence;
(11)Upon motion of a party, take official notice of facts;
(12)Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13)Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14)Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c)The ALJ does not have the authority to find Federal statutes or regulations invalid. § 2554.19 Can the reviewing official or ALJ be disqualified?
(a)A reviewing official or an ALJ may disqualify himself or herself at any time.
(b)Upon motion of any party, the reviewing official or ALJ may be disqualified as follows:
(1)The motion must be supported by an affidavit containing specific facts establishing that personal bias or other reason for disqualification exists, including the time and circumstances of the discovery of such facts;
(2)The motion must be filed promptly after discovery of the grounds for disqualification, or the objection will be deemed waived; and
(3)The party, or representative of record, must certify in writing that the motion is made in good faith.
(c)Once a motion has been filed to disqualify the reviewing official, the ALJ will halt the proceedings until resolving the matter of disqualification. If the ALJ determines that the reviewing official is disqualified, the ALJ will dismiss the complaint without prejudice. If the ALJ disqualifies himself or herself, the case will be promptly reassigned to another ALJ. § 2554.20 How are issues brought to the attention of the ALJ?
(a)All applications to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
(b)Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
(c)Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d)The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
(e)The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing. § 2554.21 How are papers served?
(a)*Form.*
(1)Documents filed with the ALJ shall include an original and two copies.
(2)Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the ALJ, and a designation of the paper (e.g., motion to quash subpoena).
(3)Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(4)Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
(b)*Service.* A party filing a document with the ALJ shall at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than those required to be served as prescribed in § 2554.12 shall be made by delivering a copy or by placing a copy of the document in the United States mail, postage prepaid and addressed, to the party's last known address. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party.
(c)*Proof of service.* A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, shall be proof of service. § 2554.22 How is time computed?
(a)In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal government, in which event it includes the next business day.
(b)When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal government shall be excluded from the computation.
(c)Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response. § 2554.23 What happens during a prehearing conference?
(a)The ALJ may schedule prehearing conferences as appropriate.
(b)Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c)The ALJ may use prehearing conferences to discuss the following:
(1)Simplification of the issues;
(2)The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
(3)Stipulations and admissions of fact or as to the contents and authenticity of documents;
(4)Whether the parties can agree to submission of the case on a stipulated record;
(5)Whether a party chooses to waive appearances at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
(6)Limitation of the number of witnesses;
(7)Scheduling dates for the exchange of witness lists and of proposed exhibits;
(8)Discovery;
(9)The time and place for the hearing; and
(10)Such other matters as may tend to expedite the fair and just disposition of the proceedings.
(d)The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference. § 2554.24 What rights are there to review documents?
(a)Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 2554.8 are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b)Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
(c)The notice sent to the Attorney General from the reviewing official as described in § 2554.8 is not discoverable under any circumstances.
(d)The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 2554.13. § 2554.25 What type of discovery is authorized and how is it conducted?
(a)The following types of discovery are authorized:
(1)Requests for production of documents for inspection and copying;
(2)Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
(3)Written interrogatories; and
(4)Depositions.
(b)For the purpose of this section and §§ 2554.27 and 2554.28, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c)Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
(d)*Motions for discovery.*
(1)A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2)Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 2554.30.
(3)The ALJ may grant a motion for discovery only if he or she finds that the discovery sought—
(i)Is necessary for the expeditious, fair, and reasonable consideration of the issues;
(ii)Is not unduly costly or burdensome;
(iii)Will not unduly delay the proceeding; and
(iv)Does not seek privileged information.
(4)The burden of showing that discovery should be allowed is on the party seeking discovery.
(5)The ALJ may grant discovery subject to a protective order under § 2554.30.
(e)*Depositions.*
(1)If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
(2)The party seeking to depose shall serve the subpoena in the manner prescribed in § 2554.12.
(3)The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
(4)The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f)Each party shall bear its own costs of discovery. § 2554.26 Are there limits on disclosure of documents or discovery?
(a)Upon written request to the reviewing official, the defendant may review all non-privileged, relevant and material documents, records and other material related to the allegations contained in the complaint. After paying the Corporation a reasonable fee for duplication, the defendant may obtain a copy of the records described.
(b)Upon written request to the reviewing official, the defendant may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint. If the document would otherwise be privileged, only the portion of the document containing exculpatory information must be disclosed. As used in this section, the term “information” does not include legal materials such as statutes or case law obtained through legal research.
(c)The notice sent to the Attorney General from the reviewing official is not discoverable under any circumstances.
(d)Other discovery is available only as ordered by the ALJ and includes only those methods of discovery allowed by § 2554.25. § 2554.27 Are witness lists exchanged before the hearing?
(a)At least 15 days before the hearing or at such other time as ordered by the ALJ, the parties must exchange witness lists and copies of proposed hearing exhibits, including copies of any written statements or transcripts of deposition testimony that the party intends to offer in lieu of live testimony.
(b)If a party objects, the ALJ will not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to an opposing party unless the ALJ finds good cause for the omission or concludes that there is no prejudice to the objecting party.
(c)Unless a party objects within the time set by the ALJ, documents exchanged in accordance with this section are deemed to be authentic for the purpose of admissibility at the hearing. § 2554.28 Can witnesses be subpoenaed?
(a)A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
(b)A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c)A party seeking a subpoena shall file a written request therefore not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
(d)The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e)The party seeking the subpoena shall serve it in the manner prescribed in § 2554.12. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
(f)A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service. § 2554.29 Who pays the costs for a subpoena? The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena. § 2554.30 Are protective orders available?
(a)A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b)In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1)That the discovery not be had;
(2)That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3)That the discovery may be had only through a method of discovery other than that requested;
(4)That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5)That discovery be conducted with no one present except persons designated by the ALJ;
(6)That the contents of discovery or evidence be sealed;
(7)That a deposition after being sealed be opened only by order of the ALJ;
(8)That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9)That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ. § 2554.31 Where is the hearing held? The ALJ will hold the hearing in any judicial district of the United States:
(a)In which the defendant resides or transacts business; or
(b)In which the claim or statement on which liability is based was made, presented or submitted to the Corporation; or
(c)As agreed upon by the defendant and the ALJ. § 2554.32 How will the hearing be conducted and who has the burden of proof?
(a)The ALJ conducts a hearing in order to determine whether a defendant is liable for a civil penalty, assessment, or both and, if so, the appropriate amount of the civil penalty and/or assessment. The hearing will be recorded and transcribed, and the transcript of testimony, exhibits admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for a decision by the ALJ.
(b)The Corporation must prove a defendant's liability and any aggravating factors by a preponderance of the evidence.
(c)A defendant must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d)The hearing will be open to the public unless otherwise ordered by the ALJ for good cause shown. § 2554.33 How is evidence presented at the hearing?
(a)The ALJ shall determine the admissibility of evidence.
(b)Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c)The ALJ shall exclude irrelevant and immaterial evidence.
(d)Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e)Although relevant, evidence may be excluded if it is privileged under Federal law.
(f)Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g)The ALJ shall permit the parties to introduce rebuttal witnesses and evidence. § 2554.34 How is witness testimony presented?
(a)Except as provided in paragraph
(b)of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b)At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 2554.27(a).
(c)The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1)Make the interrogation and presentation effective for the ascertainment of the truth;
(2)Avoid needless consumption of time; and
(3)Protect witnesses from harassment or undue embarrassment.
(d)The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e)At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
(f)Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of—
(1)A party who is an individual;
(2)In the case of a party that is not an individual, an officer or employee of the party appearing for the entity pro se or designated by the party's representative; or
(3)An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government. § 2554.35 Will the hearing proceedings be recorded? The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication. The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head. The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 2554.30. § 2554.36 Can a party informally discuss the case with the ALJ? No. Such discussions are forbidden as “ex parte communications” with the ALJ. No party or person (except employees of the ALJ's office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures. § 2554.37 Are there sanctions for misconduct?
(a)The ALJ may sanction a person, including any party or representative for—
(1)Failing to comply with an order, rule, or procedure governing the proceeding;
(2)Failing to prosecute or defend an action; or
(3)Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
(b)Any such sanction, including but not limited to those listed in paragraphs (c), (d), and
(e)of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c)When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may—
(1)Draw an inference in favor of the requesting party with regard to the information sought;
(2)In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3)Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; and
(4)Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d)If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
(e)The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion. § 2554.38 Are post-hearing briefs required? The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs. Decisions and Appeals § 2554.39 How is the case decided?
(a)The ALJ will issue an initial decision based only on the record. It will contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
(b)The ALJ will serve the initial decision on all parties within 90 days after close of the hearing or expiration of any allowed time for submission of post-hearing briefs. If the ALJ fails to meet this deadline, he or she shall promptly notify the parties of the reason for the delay and set a new deadline.
(c)The findings of fact must include a finding on each of the following issues:
(1)Whether any one or more of the claims or statements identified in the complaint violate this part; and
(2)If the defendant is liable for penalties or assessments, the appropriate amount of any such penalties or assessments, considering any mitigating or aggravating factors.
(d)The initial decision will include a description of the right of a defendant found liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. § 2554.40 How are penalty and assessment amounts determined?
(a)In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.
(b)Although not exhaustive, the following factors are among those that may influence that ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint:
(1)The number of false, fictitious, or fraudulent claims or statements;
(2)The time period over which such claims or statements were made;
(3)The degree of the defendant's culpability with respect to the misconduct;
(4)The amount of money or the value of the property, services, or benefit falsely claimed;
(5)The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
(6)The relationship of the amount imposed as civil penalties to the amount of the Government's loss;
(7)The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
(8)Whether the defendant has engaged in a pattern of the same or similar misconduct;
(9)Whether the defendant attempted to conceal the misconduct;
(10)The degree to which the defendant has involved others in the misconduct or in concealing it;
(11)Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct;
(12)Whether the defendant cooperated in or obstructed an investigation of the misconduct;
(13)Whether the defendant assisted in identifying and prosecuting other wrongdoers;
(14)The complexity of the program or transaction, and the degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in similar transactions;
(15)Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly; and
(16)The need to deter the defendant and others from engaging in the same or similar misconduct.
(c)Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed. § 2554.41 Can a party request reconsideration of the initial decision?
(a)Any party may file a motion for reconsideration of the initial decision with the ALJ within 20 days of receipt of the initial decision. If the initial decision was served by mail, there is a rebuttable presumption that the initial decision was received by the party 5 days from the date of mailing.
(b)A motion for reconsideration must be accompanied by a supporting brief and must describe specifically each allegedly erroneous decision.
(c)Any response to a motion for reconsideration will only be allowed if it is requested by the ALJ.
(d)The ALJ will dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(e)If the ALJ issues a revised initial decision upon motion of a party, that party may not file another motion for reconsideration. § 2554.42 When does the initial decision of the ALJ become final?
(a)The initial decision of the ALJ becomes the final decision of the Corporation, and shall be binding on all parties 30 days after it is issued, unless any party timely files a motion for reconsideration or any defendant adjudged to have submitted a false claim or statement timely appeals to the Corporation's authority head, as set forth in § 2554.43.
(b)If the ALJ disposes of a motion for reconsideration by denying it or by issuing a revised initial decision, the ALJ's order on the motion for reconsideration becomes the final decision of the Corporation 30 days after the order is issued, unless a defendant adjudged to have submitted a false claim or statement timely appeals to the authority head, within 30 days of the ALJ's order, as set forth in § 2554.43. § 2554.43 What are the procedures for appealing the ALJ decision?
(a)Any defendant who submits a timely answer and is found liable for a civil penalty or assessment in an initial decision may appeal the decision.
(b)The defendant may file a notice of appeal with the authority head within 30 days following issuance of the initial decision, serving a copy of the notice of appeal on all parties and the ALJ. The authority head may extend this deadline for up to an additional 30 days if an extension request is filed within the initial 30-day period and shows good cause.
(c)The defendant's appeal will not be considered until all timely motions for reconsideration have been resolved.
(d)If a timely motion for reconsideration is denied, a notice of appeal may be filed within 30 days following such denial or issuance of a revised initial decision, whichever applies.
(e)A notice of appeal must be supported by a written brief specifying why the initial decision should be reversed or modified.
(f)The Corporation's representative may file a brief in opposition to the notice of appeal within 30 days of receiving the defendant's notice of appeal and supporting brief.
(g)If a defendant timely files a notice of appeal, and the time for filing motions for reconsideration has expired, the ALJ will forward the record of the proceeding to the authority head. § 2554.44 What happens if an initial decision is appealed?
(a)An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
(b)No administrative stay is available following a final decision of the authority head. § 2554.45 Are there any limitations on the right to appeal to the authority head?
(a)A defendant has no right to appear personally, or through a representative, before the authority head.
(b)There is no right to appeal any interlocutory ruling.
(c)The authority head will not consider any objection or evidence that was not raised before the ALJ unless the defendant demonstrates that the failure to object was caused by extraordinary circumstances. If the appealing defendant demonstrates to the satisfaction of the authority head that extraordinary circumstances prevented the presentation of evidence at the hearing, and that the additional evidence is material, the authority head may remand the matter to the ALJ for consideration of the additional evidence. § 2554.46 How does the authority head dispose of an appeal?
(a)The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment imposed by the ALJ in the initial decision or reconsideration decision.
(b)The authority head will promptly serve each party to the appeal and the ALJ with a copy of his or her decision. This decision must contain a statement describing the right of any person, against whom a penalty or assessment has been made, to seek judicial review. § 2554.47 What judicial review is available? 31 U.S.C. 3805 authorizes judicial review by the appropriate United States District Court of any final Corporation decision imposing penalties or assessments, and specifies the procedures for such review. To obtain judicial review, a defendant must file a petition with the appropriate court in a timely manner. § 2554.48 Can the administrative complaint be settled voluntarily?
(a)Parties may make offers of compromise or settlement at any time. Any compromise or settlement must be in writing.
(b)The reviewing official has the exclusive authority to compromise or settle the case from the date on which the reviewing official is permitted to issue a complaint until the ALJ issues an initial decision.
(c)The authority head has exclusive authority to compromise or settle the case from the date of the ALJ's initial decision until initiation of any judicial review or any action to collect the penalties and assessments.
(d)The Attorney General has exclusive authority to compromise or settle the case while any judicial review or any action to recover penalties and assessments is pending.
(e)The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head or the Attorney General, as appropriate. § 2554.49 How are civil penalties and assessments collected? Section 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this Part and specify the procedures for such actions. § 2554.50 What happens to collections? All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g). § 2554.51 What if the investigation indicates criminal misconduct?
(a)Any investigating official may:
(1)Refer allegations of criminal misconduct directly to the Department of Justice for prosecution or for suit under the False Claims Act or other civil proceeding;
(2)Defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution; or
(3)Issue subpoenas under other statutory authority.
(b)Nothing in this part limits the requirement that the Corporation employees report suspected violations of criminal law to the Corporation's Office of Inspector General or to the Attorney General. § 2554.52 How does the Corporation protect the rights of defendants? These procedures separate the functions of the investigating official, reviewing official, and the ALJ, each of whom report to a separate organizational authority in accordance with 31 U.S.C. 3801. Except for purposes of settlement, or as a witness or a representative in public proceedings, no investigating official, reviewing official, or Corporation employee or agent who helps investigate, prepare, or present a case may (in such case, or a factually related case) participate in the initial decision or the review of the initial decision by the authority head. This separation of functions and organization is designed to assure the independence and impartiality of each government official during every stage of the proceeding. The representative for the Corporation may be employed in the offices of either the investigating official or the reviewing official. Dated: October 13, 2006. Frank R. Trinity, General Counsel. [FR Doc. E6-17545 Filed 10-19-06; 8:45 am] BILLING CODE 6050-28-P 71 203 Friday, October 20, 2006 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-24826; Airspace Docket No. 06-ANM-3] Proposed Establishment of Class E Airspace; Nucla, CO AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to establish Class E airspace at Nucla, CO. Additional controlled airspace is necessary to accommodate aircraft using a new Area Navigation
(RNAV)Global Positioning System
(GPS)Standard Instrument Approach Procedure
(SIAP)at Hopkins Field. The FAA is proposing this action to enhance the safety and management of aircraft operations at Hopkins Field, Nucla, CO. DATES: Comments must be received on or before December 4, 2006. ADDRESSES: Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify FAA Docket No. FAA-2006-24826; Airspace Docket No. 06-ANM-3, at the beginning of your comments. You may also submit comments through the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Ed Haeseker, Federal Aviation Administration, Western Service Area Office, System Support, 1601 Lind Avenue, SW., Renton, WA 98057; telephone
(425)227-2527. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA 2006-24826 and Airspace Docket No. 06-ANM-3) and be submitted in triplicate to the Docket Management System ( *see* ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://dms.dot.gov.* Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2006-24826 and Airspace Docket No. 06-ANM-3”. The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov.* Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the **Federal Register** 's Web page at *http://www.gpoaccess.gov/fr/index.html.* You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office ( *see* the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Area, System Support, 1601 Lind Avenue, SW., Renton, WA 98057. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace at Nucla, CO. Controlled airspace is necessary to accommodate aircraft using the new RNAV
(GPS)SIAP at Hopkins Field. This action would enhance the safety and management of aircraft operations at Hopkins Field, Nucla, CO. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9P, dated September 1, 2006, and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation;
(1)is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would 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 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006 is amended as follows: Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface of the earth. ANM CO, E5 Nucla, CO [New] Hopkins Field, CO (Lat. 38°14′20″ N., long. 108°33′48″ W.) That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of Hopkins Field and within 4 miles each side of the 136.59°T/125.59°M bearing to Hopkins Field extending from 6.0 miles northwest of Hopkins Field to the 6.0-mile radius; that airspace extending upward from 1,200 feet above the surface beginning at lat. 38°45′00″ N., long. 109°00′00″ W.; to lat. 38°30′00″ N., long. 108°30′00″ W.; to CONES VOR/DME; to DOVE CREEK VORTAC; to lat. 38°30′00″ N., long. 109°10′00″ W.; to point of beginning. Issued in Seattle, Washington, on October 5, 2006. Clark Desing, Manager, System Support, Western Service Area. [FR Doc. E6-17579 Filed 10-19-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE International Trade Administration DEPARTMENT OF THE INTERIOR 15 CFR Part 303 [Docket No. 061006261-6261-01] RIN 0625-AA72 Office of Insular Affairs; Insular Possessions Watch, Watch Movement and Jewelry Programs AGENCY: Import Administration, International Trade Administration, Department of Commerce; Office of Insular Affairs, Department of the Interior. ACTION: Advanced Notice of Proposed Rulemaking. SUMMARY: The Departments of Commerce and the Interior jointly administer the Insular Possessions Watch Program. Under this program, insular possessions watch producers may receive duty-free treatment of certain watches imported into the customs territory of the United States. This action invites comments from insular watch producers and interested parties on possible options for revising the maximum total value of watch components per watch and watch movement that are eligible for duty-free entry into the United States under the insular watch program. DATES: Comments must be submitted by November 20, 2006. ADDRESSES: Written comments should be sent to Faye Robinson, Director, Statutory Import Programs Staff, Room 2104, U.S. Department of Commerce, 14th and Constitution Ave., NW., Washington, DC 20230. FOR FURTHER INFORMATION CONTACT: Faye Robinson,
(202)482-3526. SUPPLEMENTARY INFORMATION: The Departments of Commerce and the Interior (the Departments) administer the watch duty-exemption allocations and the watch and jewelry duty-refund benefits for producers in the United States insular possessions (the U.S. Virgin Islands, Guam, American Samoa and the Commonwealth of the Northern Mariana Islands) in accordance with Public Law 97-446, as amended by Public Law 103-465, Public Law 106-36 and Public Law 108-429. Currently, the insular watch program does not allow watch movements and watches assembled from components with a value of more than $35 for watch movements and $800 for watches to receive program duty exemption benefits as set forth in Section 303.14(b)(3) of the Department of Commerce's regulations (15 CFR 303.14(b)(3)) even if the watch movements and watches have met all other program requirements. On July 25, 2006, we received a letter from the U.S. Virgin Islands Watch & Jewelry Manufacturers Association requesting that the Department of Commerce reexamine the current value limits for watches which are assembled in the U.S. Virgin Islands. The Association asserted that the cost of gold has more than doubled in the past year, making it impossible to continue a viable and steady production of gold watches. In light of the foregoing, the Departments would like to receive comment on whether to change the maximum value of watch components per watch and watch movement that are eligible for benefits under the program and, if so, what that value might be. In particular, we are interested in receiving comments on four options: • Leave the maximum value of watch components per watch and watch movement at their current level. • Raise the maximum value of a watch components per watch to $1,250 and watch movement to $50. • Remove any restriction on the value of watch components per watch and watch movement. • Index the maximum value of watch components per watch to the New York spot gold index price per day as reported in the Wall Street Journal and leave the value of the watch movement components at the current level. Persons wishing to comment should submit a signed original copy of comments by the due date. The Departments will consider all comments received by the due date. Comments received after the due date will be considered, if possible, but their consideration cannot be assured. Classification Executive Order 12866: This action has been determined to be not significant under Executive Order 12866. Dated: October 13, 2006. David Spooner, Assistant Secretary for Import Administration, Department of Commerce. Dated: October 13, 2006. Nikolao Pula, Director for Office of Insular Affairs, Department of the Interior. [FR Doc. 06-8818 Filed 10-19-06; 8:45 am]
Connectionstraces to 49
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U.S. Code
54 references not yet in our index
  • 14 CFR 97
  • 1 CFR 51
  • 21 CFR 1308
  • Pub. L. 101-647
  • 28 CFR 0
  • T.D. 9294
  • T.D. 8873
  • T.D. 9052
  • Pub. L. 106-229
  • Pub. L. 105-34
  • 111 Stat. 788
  • 29 CFR 2520.104
  • 29 USC 1001nt
  • Rev. Proc. 98-25
  • Rev. Proc. 97-22
  • Pub. L. 107-204
  • 26 CFR 1
  • 26 CFR 35
  • 26 CFR 54
  • T.D. 9287
  • 32 CFR 245
  • Pub. L. 107-71
  • Pub. L. 107-296
  • 33 CFR 117
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 102-587
  • 106 Stat. 5039
  • 33 CFR 165
  • 33 USC 1225
  • Pub. L. 107-295
  • 40 CFR 180
  • 40 CFR 178
  • 40 CFR 2
  • 40 CFR 166
  • 40 CFR 180.598
  • Pub. L. 104-4
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C.F.R.§ 97.20
U.S.C.§ 801
C.F.R.§ 0.100
C.F.R.§ 1308.34
U.S.C.§ 605
Fed. Reg.Notices
Cite14 CFR 97
Cite1 CFR 51
Cite21 CFR 1308
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