I. Notice and Comment
II. Background
III. Specifics of the Interim Final Rule
A. Learn and Serve America
School-Based Service-Learning Programs
Higher Education Innovative Programs for Community Service
B. AmeriCorps State and National
Prohibited Member Activities
Criminal History Check Requirements
Length of and Extension to a Term of Service
Release From a Term of Service for Compelling Personal Circumstances
Tutoring Requirements
State Commission Composition Requirements
State Plan Requirements
State Commission Administrative Grants
C. Senior Corps
D. General Provisions
Parental Involvement
IV. Effective Dates
V. Rulemaking Analyses and Notices
I. Notice and Comment This interim final rule makes amendments to Chapter 25 of Title 45 of the Code of Federal Regulations to align the regulations with the National and Community Service Act of 1990 and the Domestic Volunteer Service Act, as amended by the Edward M. Kennedy Serve America Act, Public Law 111-13. This rule implements only those provisions in the Serve America Act that are time-sensitive and that will have actual programmatic impact beginning October 1, 2009; subsequent rulemakings to implement other provisions in the Serve America Act will follow. This interim final rule will become effective without prior notice and comment. Notice and comment procedures are not required under the Administrative Procedure Act (APA) when the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). The Corporation has determined that prior notice and comment would be impracticable under the circumstances. The APA's legislative history defines the term “impracticable” as a situation in which the due and required execution of the agency functions would be unavoidably prevented by its undertaking public rulemaking proceedings ( See S. Rep. No. 752, 79th Cong., 1st Sess. at 16 (1945)). The Corporation finds that public notice and comment before the issuance of this interim final rule would have been impracticable. The Serve America Act was enacted on April 21, 2009, with an effective date for most purposes of Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946496 October 1, 2009. Immediately upon enactment the Corporation began the process of evaluating the impact that the Serve America Act would have on existing regulations and programs. This required the Corporation to determine which amendments to the NCSA and DVSA required regulatory changes by the effective date in order for programs to comply with the law and which changes could be implemented at a later time. The regulatory changes in this interim final rule are those that are necessary for compliance with the law on the effective date. The process of analyzing the need for immediate changes to the regulations and preparing and publishing the interim final rule for timely implementation did not provide sufficient time for prior notice and comment. The Corporation invites all interested persons to submit written views, or other information on this interim final rule. Even though this interim final rule takes effect before the comment period closes, comments submitted in response to this notice will be given full consideration and will be addressed when the Corporation publishes final regulations for these interim regulations. To ensure that your comments have maximum value in helping us develop final regulations, we urge you to identify clearly the specific section or sections of the interim final regulations that each comment addresses and to arrange your comments in the same order as the interim final regulations. During and after the comment period, you may inspect all public comments about these interim final regulations by contacting the Docket Manager listed in this notice. For more information about commenting please visit our Web site at http://www.nationalservice.gov/ServeAct . Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT . II. Background On April 21, 2009, President Obama signed into law the Edward M. Kennedy Serve America Act (Serve America Act). The Serve America Act reauthorizes and expands national service programs administered by the Corporation by amending the NCSA and DVSA. The Corporation engages four million Americans in service each year, including approximately 75,000 AmeriCorps members, 492,000 Senior Corps Volunteers, 1.1 million Learn and Serve America students, and 2.2 million additional community volunteers mobilized and managed through agency programs. This interim final rule is being published to implement time-sensitive changes to the Corporation's AmeriCorps State/National, Senior Corps, and Learn and Serve America program regulations. The changes are required as a result of amendments to the NCSA and DVSA by the Serve America Act, which takes effect for most purposes on October 1, 2009. Section 6101 of the Serve America Act authorizes the Chief Executive Officer of the Corporation to issue such regulations as may be necessary to carry out the amendments required under the act. This action is intended to fulfill that responsibility. Amendments mandated by the Serve America Act that do not require immediate regulatory action will be implemented through other means including future proposed rulemaking with notice and the opportunity for comment. Among other things, the interim final rule renumbers certain parts of the existing regulations, removes regulations for programs that will no longer be authorized, and expands the construction and use of defined terms as required by the Serve America Act amendments. An overview of specific changes for each program is set out below. III. Specifics of the Interim Final Rule (A) Learn and Serve America School-Based Service-Learning Programs Section 1201 of the Serve America Act makes amendments to the Corporation's service-learning programs under Subtitle B (Learn and Serve America) of Title I of the NCSA, as reflected below. References to section numbers of Subtitle B in the following discussion are to the revised section numbers reflected in the Serve America Act. References to the regulations are to the appropriate sections of 45 CFR Part 2516. Definitions (§ 2510.20) Section 1102 of the Serve America Act amends the NCSA at § 101 to add a definition for community-based entity, which is now an eligible entity for certain types of direct and subgrant school-based funding. The interim final rule adds this definition to 45 CFR 2510.20. Purpose for School-Based Service-Learning Programs (§ 2516.100) The Serve America Act amends the NCSA at section 111 by including, for the first time, a purpose provision for school-based service-learning programs. This purpose provision is incorporated into the regulations verbatim. This change reassigns § 2516.100 to the new purpose provision and reassigns prior §§ 2616.100 through 110 as §§ 2616.110-120. Eligible Applicants for Direct Grants (§ 2516.110) The Serve America Act amends the NCSA at section 112 by revising the types of entities that are eligible applicants for a direct school-based grant from the Corporation. Accordingly, paragraph (a)(1) is amended to reflect that for funding eligibility purposes an SEA means a State Educational Agency (SEA) or SEA-designated statewide entity (which may be a community-based entity). Paragraph (a)(3) is amended to remove grantmaking entity as an eligible direct recipient; and to reflect that a community-based entity is now eligible for funding to conduct activities in a nonparticipating State or Indian Tribe. Note, however, that a grantmaking entity meeting the definition of a community-based entity may qualify as an SEA-designated statewide entity. Previous paragraph (a)(4) regarding the eligibility that a local educational agencies (LEA) or LEA partnerships may apply for direct funding has been removed. Eligible Applicants for Subgrants (§ 2516.120) Under the Serve America Act amendments (NCSA § 112(a), 113(b)), the list of entities for eligible to receive distributions of school-based funds from a direct grantee was changed in several ways. Most notably, in addition to LEAs and qualified organizations, for-profit businesses, private elementary and secondary schools, and institutions of higher education are eligible for support from a State or Indian Tribe for planning and capacity building. Additionally, a community-based entity will be eligible to make subgrants when it is a direct grantee of the Corporation. Since grantmaking entities no longer are eligible for direct funding, the reference to them as a distributor of subgrants in § 2516.120 (formerly § 2516.110) is amended to reflect this change. Another change made by the Serve America Act amendment of the NCSA at Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946497 section 112(a)(2)(B)(ii) is the provision that when an Indian Tribe, as a direct recipient, distributes school-based funds to support a local partnership's costs for implementing, operating or expanding school-based service learning projects, that Tribe is not eligible to be part of the partnership operating that project. Similarly, under section 112(a)(4) when an Indian Tribe is a direct recipient, it is not eligible to receive funds it distributes to support the implementation, operation or expansion of an adult volunteer service-learning program. Finally, the Serve America Act permits States and Indian Tribes to support eligible entities in carrying out civic engagement activities, so this is now reflected in § 2516.120. Use of Grant Funds (§ 2516.200) Section 112(a) of NCSA as amended by the Serve America Act authorizes school-based funds to be used to support five types of service-learning programs: (1) Planning and capacity-building for States and Indian Tribes; (2) implementing, operating, and expanding school-based service-learning programs; (3) planning of school-based service-leaning programs through distributions to LEAs and Indian Tribes; (4) implementing, operating, or expanding adult volunteer programs; and (5) developing civic engagement service-learning programs. The amendments expand the authorized use of school-based fund in several ways. In addition to the authorized activities set out in the previous version of this rule, the interim final rule under § 2516.200(a)(2)(vi) permits recipients to use funds for planning and capacity building activities associated with establishing effective outreach and dissemination to ensure the broadest possible participation of schools throughout a State, with special emphasis on schools that are not making adequate progress under section 111 of the Elementary and Secondary Education Act of 1965. Under the same subsection at (a)(2)(ii), the development of service-learning curricula must be consistent with State or local academic content standards. LEA planning grant authority under § 2516.200(c)(3)(ii) is expanded to now permit recipients to pay the cost of recruiting, training, supervising, and placing service-learning coordinators who may be, but are not required to be, AmeriCorps VISTA members or participants in a Youthbuild program. The prior rule only allowed such support for AmeriCorps State/National members serving as service-learning coordinators. Consistent with the Serve America Act, grantees may use funds to support civic engagement programs as described in § 2516.200(f). Waiver for Private School Participants (§ 2516.310) Section 115(a) of the NCSA as amended by the Serve America Act requires school-based State, territory, and Indian Tribe grantees to provide for the inclusion of services and arrangements for the equitable participation of private school students and private school teachers in supported programs. Under § 115(b), the Corporation's Chief Executive Officer may waive the requirement to include private school participants if a grantee is prohibited by law from providing for their participation. Essentially the same waiver provision existed under the NCSA at § 115A(b) prior to passage of the Serve America Act. However, the Serve America Act removes the requirement that waiver procedures be consistent with “the consultation, withholding, notice and judicial review requirements” [of the Elementary and Secondary Act of 1965]. Therefore, the regulation is amended to remove the quoted waiver procedure language by removing subsection (b)(2). Contents of a Direct Grant Application From a State or Indian Tribe (§ 2516.400) Section 1612 of the Serve America Act, adds section 189D to the NCSA. The criminal history check requirement of section 189D applies to all individuals receiving a living allowance, stipend, national service educational award, or salary through a program receiving assistance under the national service laws, regardless of the type of service the individual is performing or the individual's access to vulnerable populations. Section 189D also provides that an individual convicted of murder, as described in section 1111 of title 18, United States Code, is ineligible to serve in a national service position. The criminal history check standards are set out in the regulations at 45 CFR Part 2540. Thus, in addition to the other assurances that applicants must make, compliance with the criminal history check requirements under Part 2540, which take effect October 1, 2009, has been added to § 2516.400(c)(2) and 2516.410(c)(4). For more information on criminal history checks, please visit the Corporation's Web site at http://www.nationalservice.gov/for_organizations/manage/history_checks.asp. Contents of a Direct Grant Application From a Community-Based Entity (§ 2516.410) Consistent with amendments to the NCSA at section 113, this section of the regulation is amended to replace grantmaking entity with community-based entity and to remove references to LEAs and local partnerships, which may no longer apply for grants directly from the Corporation except as an SEA-designated entity in lieu of an SEA. Additionally, as discussed in the previous paragraph, § 2516.410(c)(4) is amended to require applicants for direct funding as a community-based entity to make as assurance that it will comply with the criminal history check requirements of 45 CFR Part 2540. Contents of a Subgrant (§ 2516.420) Like § 2516.410, this section is amended by replacing the term grantmaking entity with community-based entity, thereby making it consistent with the Serve America Act's NCSA amendments regarding the type of entities now eligible for direct funding, which in turn will make subgrants. Application Review Criteria for Direct Grants (§ 2516.500) As is the case in other sections of Part 2516, this section replaces the term grantmaking entity with community-based entity at (a)(3)(i). In that same paragraph a technical amendment is made by changing the reference to the State Plan from § 2550.80(a) to section 2513. Added to the list of priorities in reviewing proposals is the phrase serving economically disadvantaged youth at (b)(2), thereby making this priority consistent with the amendment to the priorities set out in the Serve America Act's NCSA amendment at section 114. Application Review Criteria for Subgrants (§ 2516.520) Consistent with the Serve America Act, this section is amended by replacing the term grantmaking entity with community-based entity. Distribution of Funds (§ 2516.600) The Serve America Act makes several major changes to the NCSA at section 112A that affect this section of the regulations. For the first time, the Corporation is required to reserve a minimum of school-based funding for Indian Tribes and U.S. Territories. Previously, the Corporation was required to reserve “not more than 3 percent,” but there was no minimum amount that had to be reserved. The Serve America Act amendments now Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946498 require that “not less than 2 percent and not more than 3 percent” be reserved for Indian Tribes and U.S. territories. This change is now reflected in paragraph (a) of the regulation. The competitive school-based program has been eliminated. Therefore reference to the 25 percent set-aside for the program has been deleted from paragraph (b)(1). Paragraph (b)(1) has been reassigned to the formula allotments to the States. The allotment percentage has been raised in the NCSA amendments from 37.5 percent to 50 percent for the number of school-age youth in a State that bears to the total number of school-age youth in all States and for the amount a State will receive based on the ratio of the State's prior fiscal year allocation under Chapter 1 of Title I of the Elementary and Secondary Education Act of 1965. The Serve America Act amendments provide that if Learn and Serve America funding exceeds $50 million in any fiscal year, the minimum allotted to each State will be $75,000. The prior minimum funding amount was based on fiscal year 1993 funding, supplemented by State competitive funds. These minimum funding changes are reflected in (b)(iii). Paragraph (c) is amended to add community-based entity in place of local partnerships or LEAs for the type of entity eligible for funding in a nonparticipating State, as provided in the Serve America Act. Lastly, paragraph (d) of the regulation referencing competitive funding if less than $20 million is appropriated has been removed in conformity with the Serve America Act. Match Requirements (§ 2516.700) The amendments to the NCSA at section 116 lower the Corporation's share available for school-based programs. The Corporation's share in the first year is decreased to 80 percent. In the second year it is decreased to sixty-five percent and for the third and any subsequent years, it is set at fifty percent. These changes are now reflected in paragraph (a) of the regulation. The Serve America Act amendments preclude the use as match of funding from Title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311 et seq. ) or the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq. ), unless waived by the Corporation based on lack of available resources at the local level. This change is reflected in paragraph (b). Limits on Administrative Costs & Capacity (§ 2516.710) The amendments to the NCSA at section 117 raise the amount of funding that may be used to pay for administrative costs from five percent to a maximum of six percent. This change is reflected in paragraph (a), where appropriate. The amendments also remove the requirement that recipients spend 10 to 15 percent of funding on capacity building. Therefore, this requirement has been removed from the regulation. Higher Education Innovative Programs for Community Service Section 1202 of the Serve America Act makes amendments to the Corporation's Higher Education program. References to section numbers of Subtitle B of the NCSA in the following discussion are to the revised section numbers reflected in the Serve America Act. References to the regulations are to the appropriate sections of 45 CFR Part 2519. Federal Work-Study Requirement (§ 2519.120) The interim final rule adds § 2519.120, which requires recipients to meet minimum Federal Work-Study standards as provided in section 119(g) of the NCSA as amended by the Serve America Act. Specifically, the Serve America Act amendments provide that an institution of higher education, to be eligible for NCSA funding, must demonstrate that it meets the minimum requirements under the Higher Education Act of 1965 (443(b)(2)(A); 42 U.S.C. 2753(b)(2)(A)) relating to the participation of Federal Work-Study students employed under part C of title IV of the Higher Education Act of 1965 (42 U.S.C. 2751 et seq. ) in community service activities or has received a waiver of those requirements from the Secretary of Education. The current minimum requirement under section 443(b)(2)(A) of the Higher Education Act provides that an institution must use at least 7 percent of the total amount of funds granted to it under the Federal Work-Study program to support students engaged in community service. Contents of a Grant Application (§ 2519.400) As is the case with all other Corporation national service programs, the Serve America Act amendments now apply the criminal history check provisions of section 189D of the NCSA to the Higher Education Program. The criminal history check standards are set out in 45 CFR Part 2540. Thus, in addition to the other assurances that applicants must make, compliance with the criminal history check requirements under Part 2540, which take effect October 1, 2009, has been added to § 2519.400(b)(2). Application Review Criteria (§ 2519.500) The Serve America Act amendments (NCSA section 119(f)) include several revised or additional application review criteria that are reflected in paragraphs (b)(4), (5), (6), (7), and (10) of this section. These include consideration of an applicant's description of a partnership that will participate in, among previously acceptable activities, providing service in or involving low-income communities and a department of the institution, or a group of faculty comprised of different departments, schools, or colleges at an institution. Other new review criteria include demonstrating the extent to which a proposal will contribute to the goals of involved community members and a commitment to performing projects in underserved communities, methods for improving service, and a description of needs that proposed projects are intended to address. Acceptable Match (§ 2519.700) The interim final rule, in accordance with the Serve America Act amendments (NCSA § 119(c)(1)), adds a descriptive phrase regarding match by clarifying that private funds or donated services are acceptable as local match. Limits on Administrative Costs (§ 2519.710) Amendments to the NCSA at § 117 increase the amount of funding that may be used to pay for administrative costs from five percent to a maximum of six percent for school-based programs. A similar amendment for the Higher Education Program is reflected in this section. (B) AmeriCorps State and National The Serve America Act lists as an effective date October 1, 2009. For this rule, we have identified those provisions in that Act that will require grantees to amend their practices beginning October 1, 2009 that conflict with a provision in current AmeriCorps regulations. The rule includes amendments to the list of prohibited member activities, criminal history check requirements, definitions for terms of service, documentation requirements for a release for compelling personal circumstances, requirements for tutors and tutoring programs, and State Commission administrative grant range and match Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946499 requirements, composition requirements, and State Plan requirements. There are many provisions in the Act that will be implemented in later rulemakings; this rule is primarily to eliminate conflict between the law and the regulations for those provisions that will have an immediate impact on grantee operations. Prohibited Member Activities (§ 2520.65) The Serve America Act adds a new section 132A to the NCSA, codifying the Corporation's longstanding list of activities in which AmeriCorps members may not engage during AmeriCorps service hours. In addition to those activities the Corporation already prohibits (found in current § 2520.65) the SAA prohibits AmeriCorps members from “[p]roviding abortion services or referrals for receipt of such services.” This interim final rule amends § 2520.65 to include a prohibition on providing abortion services or referrals for receipt of such services during AmeriCorps member service hours. No member, including currently serving members, may engage in this newly added prohibited activity during AmeriCorps service hours on or after October 1, 2009. Criminal History Check Requirements (§§ 2522.205-207, 2540.200-207) Section 1612 of the Serve America Act, adds a new section 189D to the NCSA, codifying existing AmeriCorps criminal history check requirements, with two significant changes. First, section 189D expands coverage to all individuals receiving “a living allowance, stipend, national service educational award, or salary through a program receiving assistance under the national service laws”—regardless of the type of service the individual is performing or the individual's access to vulnerable populations. Previously, the criminal history check outlined in our regulations in Part 2540 was required only for individuals with recurring access to vulnerable populations. Second, section 189D states that an “individual shall be ineligible to serve in a [covered position] if such individual * * * has been convicted of murder, as described in section 1111 of title 18, United States Code.” This is in addition to the current suitability criteria rendering ineligible individuals who are registered, or required to be registered, on a State sex offender registry. This interim rule amends §§ 2522.205-207 and §§ 2540.200-201 to align with these changes to the statute. Programs must amend their criminal history check practices to comply with these changes for any individual who will receive a living allowance, stipend, education award, or salary through the program hired or enrolled in a program on or after October 1, 2009. Programs are not required to apply these changes to individuals hired or enrolled prior to that date. For more information on criminal history check requirements, please visit the Corporation's Web site at http://www.nationalservice.gov/for_organizations/manage/history_checks.asp. The Serve America Act also includes a provision which would require FBI fingerprint checks for individuals working with vulnerable populations. This provision goes into effect two years after the date of enactment of the Serve America Act, and will be implemented in a later rulemaking. Length of and Extension to a Term of Service (§§ 2522.220, 2522.240) The Serve America Act amends section 139 of the NCSA by making two significant changes to the definition of terms of service: (1) It removes the limitation that a full-time term of service must be served over a period of at least nine months; and (2) it sets the maximum length of a part-time term of service at two years, conforming with current practice. This rule amends § 2522.220(a) to align the definitions of full-time and part-time terms of service with the new statutory definitions. Under this rule, a full-time term of service is defined as 1,700 hours of service over a period of not more than one year, and a part-time term of service is defined as 900 hours of service during a period of not more than two years. While it is no longer necessary for a full-time term to cover a period of at least nine months, our grant provisions still require that grantees “ensure that each member has sufficient opportunity to complete the required number of hours to qualify for their education award.” (2009 AmeriCorps Grant Provisions, IV.C.5). Further, “[in] planning for the member's term of service, the grantee must account for holidays and other time off, and must provide each member with sufficient opportunity to make up missed hours.” (2009 AmeriCorps Grant Provisions, IV.D.1). A grantee that imposes unreasonable service hour requirements on an AmeriCorps member may be considered to be non-compliant with these provisions. The new definitions for terms of service will go into effect for any member enrolling on or after October 1, 2009. The Serve America Act also amends section 139 to provide an exception to the limit on the length of a term of service for disaster purposes. The Act states that “an individual in an approved national service position performing service directly related to disaster relief efforts may continue in a term of service for a period of 90 days beyond the period otherwise specified.” The Act specifies that “a period of service performed by an individual in an originally-agreed to term of service and service performed [during an extension for disaster purposes] shall constitute a single term of service.” Further, while the Act permits a program to continue to provide a member with a living allowance and other benefits during an extension for disaster purposes, the member would not be eligible for any additional education award beyond what would be received for the originally agreed-upon term of service. In other words, an AmeriCorps member serving in a full-time position whose term of service was extended to respond to a natural disaster would be eligible for an education award of equivalent value to a member whose term was not extended. This rule amends § 2522.220 to provide for an extension to a term of service for disaster purposes, and amends § 2522.240 to provide for the receipt of a living allowance and other benefits during an extension. Any program wishing to extend a member's term of service for disaster relief purposes must first obtain permission from the Corporation. Release From a Term of Service for Compelling Personal Circumstances (§ 2522.230) The amendments to the NCSA at section 139 include a change to how a release for compelling personal circumstances is documented. Under the amended section, the program has the responsibility for determining whether an individual should be released for compelling personal circumstances, and is responsible for certifying the individual's eligibility for a pro-rated educational award; the program is no longer required to obtain or maintain documentation of the member's demonstration of compelling personal circumstances. This interim rule amends § 2522.230 to align with the changes to the statute. Programs will still be required to keep documentation of the basis for their determination that compelling personal circumstances prevented the participant from completing a term of service (§ 2522.230(a)(4)). Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946500 To be released for compelling personal circumstances under the amended section, the individual must have “otherwise performed satisfactorily and [have] completed at least 15 percent of the term of service”. While the Serve America Act changes current practice by limiting releases for compelling personal circumstances to those members who have served at least 15 percent of a term of service, this change in characterization of the release will not impact an individual's eligibility to serve an additional term or to receive an education award. Under current rules, an individual's eligibility for a subsequent term of service is not affected by release for cause so long as the individual received a satisfactory end-of-term performance review (§ 2522.230(b)(6)). Further, under current rules an individual released for compelling personal circumstances must have served at least 15 percent of a term of service to be eligible to receive a pro-rated education award (§ 2526.20(a)). To illustrate, the following table shows the impact of releases prior to serving 15% under current rules: For Cause—For reasons of misconduct No No. For Cause—For reasons other than misconduct No Yes. For Compelling Personal Circumstances No Yes.Reason for release prior to serving 15% | Eligible for education award? | Eligible for subsequent term of service? |
---|---|---|
For Cause—For reasons of misconduct | No | No. |
For Cause—For reasons other than misconduct | No | Yes. |
For Compelling Personal Circumstances | No | Yes. |
Grant amount | Match requirement |
---|---|
(1) First $100,000 | No match requirement. |
(2) Amounts above $100,000 but less than $250,000 | $1 of non-Federal funds for every $2 provided by the Corporation in excess of $100,000. |
(3) Amounts greater than $250,000 | $1 of non-Federal funds for every $1 provided by the Corporation in excess of $250,000. |
$0 | (for the first $100,000). |
+ $75,000 | (for the amount between $101,000 and $250,000 (or .5 × $150,000)). |
+ $50,000 | (for the amount between $251,000 and $300,000 (or 1 × $50,000)). |
$125,000 |
If the tutor is: | Then the tutor must meet the following qualifications: |
---|---|
* * * * * | |
(b) * * | (1) High School diploma or its equivalent, or a higher degree; and |
* * * * * |
Grant amount | Match requirement |
---|---|
(1) First $100,000 | No match requirement. |
(2) Amounts above $100,000 but less than $250,000 | $1 of non-Federal funds for every $2 provided by the Corporation in excess of $100,000. |
(3) Amounts greater than $250,000 | $1 of non-Federal funds for every $1 provided by the Corporation in excess of $250,000. |
The petitioners support their claims with examples of two cases that they believe illustrate the problem of the blanket exemption in 10 CFR 40.22(b).
Public Comments on the Petition The notice of receipt of the petition for rulemaking invited interested persons to submit comments. The comment period closed on September 20, 1999. The NRC received ten comment letters. Comment letters were submitted by two members of the public, one private company, and seven Agreement States. All of the commenters supported the petition. In addition, one comment letter was also considered as a separate petition for rulemaking (PRM-40-28) on depleted uranium counterweights and subsequently resolved separately from this petition. Most of the commenters reiterated the claims presented in the original petition. One commenter suggested that persons distributing source material should notify the recipients of the hazards of the material and the Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946513 distributor should report shipments of “larger” quantities to appropriate regulatory agencies. The same commenter also suggested that the 15-pound limit should potentially be reduced to a lower limit that was more appropriate for use under a general license. Two commenters provided additional examples of cases when the use of source material under the general license could have resulted in exposures in excess of the limits specified in 10 CFR Part 20. Reasons for Closure of the Petition Although the NRC is not aware of widespread issues with the current general license requirements in 10 CFR 40.22, the NRC has collected and evaluated data on practices allowed under the general license which indicate that it may be possible in certain situations for exposures to occur when the requirements in 10 CFR Parts 19 and 20 would normally apply. The NRC concluded that the underlying issue of re-evaluating the safety significance of granting exemption for source material general licenses from 10 CFR Parts 19 and 20 is an important one and merits further consideration through rulemaking. The NRC will continue consideration of this issue as part of a proposed rulemaking on “Distribution of Source Material to Exempt Persons and General Licensees and Revision of 10 CFR 40.22 General License (Part 40),” RIN 3150-AH15. Further information on the rulemaking may be tracked through http://www.regulations.gov under Docket ID NRC-2009-0084. Although the NRC will continue to consider the issues raised by the petition in the rulemaking process, the petitioners' concerns may not be addressed exactly as the petitioners have requested. During the rulemaking process, the NRC will solicit comments from the public and will consider all comments before finalizing the rule. For the reasons cited in this document, the NRC closes the docket for PRM-40-27. Dated at Rockville, Maryland, this 20th day of August 2009. For the Nuclear Regulatory Commission. Bruce S. Mallett, Acting Executive Director for Operations. [FR Doc. E9-21860 Filed 9-9-09; 8:45 am] BILLING CODE 7590-01-PAltus AFB, OK
(Lat. 34°39′59″ N., long. 99°16′05″ W.)
Altus VORTAC
(Lat. 34°39′46″ N., long. 99°16′16″ W.)
Altus/Quartz Mountain Regional Airport, OK
(Lat. 34°41′56″ N., long. 99°20′19″ W.)
Tipton Municipal Airport, OK
(Lat. 34°27′31″ N., long. 99°10′17″ W.)
Frederick Municipal Airport, OK
(Lat. 34°21′08″ N., long. 98°59′02″ W.)
Altus AFB ILS Runway 17R Localizer
(Lat. 34°38′32″ N., long. 99°16′26″ W.)
That airspace extending upward from 700 feet above the surface within a 9.1-mile radius of Altus AFB and within 1.6 miles each side of the 185° radial of the Altus VORTAC extending from the 9.1-mile radius to 11.9 miles south of Altus AFB and within 3 miles west and 2 miles east of the Altus AFB ILS Runway 17R Localizer north course extending from the 9.1-mile radius to 15 miles north of Altus AFB; and within a 6.5-mile radius of Altus/Quartz Mountain Regional Airport; and within 2 miles each side of the 000° bearing from Altus/Quartz Mountain Regional Airport extending from the 6.5-mile radius to 11.4 miles north of Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946515 Altus/Quartz Mountain Regional Airport; and within a 5.4-mile radius of Tipton Municipal Airport; and within a 7.2-mile radius of Frederick Municipal Airport; and within 2.5 miles each side of the 180° bearing from the Frederick Municipal Airport extending from the 7.2-mile radius to 7.7 miles south of Frederick Municipal Airport; and within a 12-mile radius of Altus AFB beginning at a point 3 miles west of the Altus VORTAC 019° radial, thence clockwise along the 12-mile radius of Altus AFB, ending at a point 3 miles west of the Altus VORTAC 185° radial. * * * * * Issued in Fort Worth, TX, on August 27, 2009. Ronnie L. Uhlenhaker, Manager, Operations Support Group, ATO Central Service Center. [FR Doc. E9-21767 Filed 9-9-09; 8:45 am] BILLING CODE 4910-13-PI. Introduction, Background, and Purpose
A. Introduction
B. Background
C. Purpose of This ANPRM
II. Applicability
A. Fixed Guideway Capital Project
B. Major Capital Project
C. Questions
III. Principles and Requirements for Fixed Guideway Capital Projects
A. Fixed Guideway Capital Projects
1. Technical Capacity and Capability
2. Satisfactory Continuing Control
3. Maintenance of Facilities and Equipment
4. Financial Plan
5. Grant Project Description, Budget and Milestones
B. Major Capital Projects
1. Technical Capacity and Capability
2. Project Management Plan (PMP)
3. Project Implementation
4. Performance Requirements
5. Reporting
6. Exceptions for Past Performance
C. Questions
IV. FTA Oversight of Fixed Guideway and Major Capital Projects
A. Fixed Guideway Capital Projects
B. Major Capital Projects
1. Roles and Responsibilities
2. Risk-Informed Project Management Oversight Approach
C. Questions
I. Introduction, Background, and Purpose A. Introduction In this Advance Notice of Proposed Rulemaking (ANPRM), and to ensure integrity in its public investments through transparency and accountability, FTA begins the process of revising its Project Management Oversight rule at 49 CFR Part 633. The end result would be a Project Management rule governing all FTA-funded fixed guideway capital projects as well as additional requirements for major capital projects, emphasizing a set of standards and principles for sound project management. Specifically, FTA seeks to restructure the current Part 633 to incorporate the best practices in the transit industry with respect to reasonable project performance measures. When final, this project management rule should articulate the criteria and skills expectations necessary to assure a project sponsor's successful implementation of a fixed guideway capital project, including a major capital project. The new Part 633 also would be updated to reflect Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946516 oversight tools and methodologies that have been developed since the original rule went into effect. Updating its project management rule at this time will aid FTA as it also considers streamlining its discretionary capital construction program. FTA seeks to establish methods that help ensure integrity and accountability in its capital grant programs before simplifying its competitive construction grant programs. As a first step in this rulemaking process, and in the spirit of openness and transparency, FTA is publishing this ANPRM to get as broad input as possible before developing a Notice of Proposed Rulemaking. This ANPRM presents ideas and concepts and solicits comments and suggestions on FTA's proposed requirements that are meant to help ensure that grantees deliver capital projects on time, within budget, and with the promised scope, while assuring a quality product and the safety and security of the riding public. This ANPRM does not seek to alter existing New Starts guidance previously published by FTA but instead to enhance engineering and project management aspects of all major capital projects. Through this ANPRM FTA seeks to obtain the views of its project sponsors, the industry, other stakeholders, and the public on a number of subjects related to project management and project management oversight. B. Background FTA awards over $10 billion annually for the purchase of all sizes and types of public transportation rolling stock, as well as the construction, rehabilitation, maintenance, and improvement of public transportation facilities and systems throughout the United States. Fixed guideway capital projects, including those traditionally defined as major capital projects, reflect significant investments by FTA, and typically are the largest and most challenging projects sponsored by FTA grantees. FTA (as the Urban Mass Transit Administration (UMTA)) issued the original Project Management Oversight (PMO) rule on September 1, 1989, 49 CFR Part 633 (54 FR 36708). This rule prescribed the standards necessary at that time to carry out the responsibilities of UMTA's Project Management Oversight Contractors (PMOCs) program; set forth basic requirements for project management plans for major capital projects; and implemented section 324 of the Surface Transportation and Uniform Relocation Assistance Act of 1987, that permitted UMTA to use up to 1/2 of 1 percent of the funds available in each fiscal year for the agency's capital programs for project management oversight of major capital projects. At the time the original rule was published, FTA's annual program was less than $3 billion, and the PMO program had in effect 25 task orders for Project Management Oversight Contractors. The basic oversight framework at 49 CFR Part 633 has served the agency well, focusing on the assignment of project management oversight contractors to major capital projects and requiring project sponsors to develop a comprehensive project management plan (PMP) to guide the planning and implementation of their major capital projects. The PMPs, combined with the PMOC deliverables have been critical to FTA for evaluating whether a project sponsor has the technical capacity and capability to execute a major capital project, verifying that projects proceed within schedule, scope, and budget, and mitigating problems as they arise. Today, the dollar value of the Federal transit program has tripled, and the number of active PMOC task orders has doubled, indicating several things. First, there has been a significant increase in local decisions to invest in public transportation. Second, there has been a proliferation of project sponsors of major capital projects and an emerging need for more specific and systematic expectations for the industry in executing these types of projects. Third, FTA is participating in a larger number of “mega projects”—projects of a total cost of $1,000,000,000 or more—which entail unique challenges to the agency as the steward of Federal tax dollars. Further, FTA research into the factors contributing to cost escalation in capital projects indicates that in many instances cost increases resulted from lack of management capabilities or project controls at the sponsor level. Given the growth of the program, as well as the increasing number of relatively inexperienced transit agencies now seeking to execute complex infrastructure construction projects, FTA seeks to broaden the scope of its project management rule to include performance expectations for project sponsors seeking financial assistance in building major capital projects with significant FTA investment. C. Purpose of This ANPRM The purpose of this ANPRM is to provide general information about the direction, scope, and content of a possible revision to FTA's project management oversight rule contained in Part 633 of its regulations, and to seek answers to questions that will help the agency make decisions about the appropriate direction to take in its future rulemaking. Ultimately, this rulemaking will help improve grantees' project delivery success rate by establishing an effective regulatory framework for the management of project scope, schedule, cost, and quality for all fixed guideway projects. The overriding goals of this ANPRM and any subsequent rulemaking are to encourage grantees to apply more effective means of project management and for FTA to provide more effective oversight to its grantees and guidance to its PMOCs. With this ANPRM, FTA seeks comment and suggestions for alternative approaches on the specific topics discussed below that may be the subject of a proposed and final rule, including its applicability, the definition of “major capital project,” the technical capacity and capability of project sponsors, the use of project management plans, requirements for successful implementation of fixed guideway capital projects, and FTA's project management oversight process. II. Applicability Anticipating a new project management rule generates several questions pertaining to the scope and applicability of the rule—i.e., what types of projects or project sponsors should the rule apply to and what aspects of project management should be subject to the more rigid requirements of a rule. FTA seeks comments on the approach described below. This approach would define two categories of projects—fixed guideway capital projects and major capital projects—with greater oversight being applied to major capital projects. We would apply ‘baseline’ competencies/skills requirements to all fixed guideway capital projects funded under the discretionary and formula programs at 49 U.S.C. 5309(b)(1) and (b)(2), based principally on the statutory requirements, with some focus on non-statutory areas that agency experience has identified as impediments to timely execution of fixed guideway grants. More extensive demonstrations of technical skills and project management expertise would be required for projects categorized as major capital projects under the new regulation. A. Fixed Guideway Capital Project A fixed guideway capital project would include any project funded with section 5309(b)(1) or (b)(2) funds. This would include all New Starts projects, Small Starts Projects (including Very Small Starts), and Fixed Guideway Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946517 Modernization formula projects. However, projects that also fall within the category of a major capital project would be subject to the more detailed requirements outlined below. The fundamental distinction between a fixed guideway capital project and a major capital project are complexity, scale, and experience of the project sponsor. For example, some grants, despite exceeding $100 million, may only be for a single purpose, such as running rail and rail ties. Thus, even though this grant may have a very large dollar value, the necessary elements of a high risk capital project (i.e., interdependent parts, schedules, resources, and finances) do not exist. On the other hand, there are circumstances in which a series of fixed guideway modernization improvements, which individually might be under $100 million, would be managed together as a single investment with interdependent parts, thus falling within the definition of a major capital project. Conversely, another project might qualify as a major capital project but be treated simply as a fixed guideway capital project because of certain characteristics that indicate lower risk. For instance, a small starts project or extension of a small start, executed by an experienced grantee, using the same technology and veteran in-house staff that had completed a previous project on time and on budget would represent a higher probability that it already has the requisite management skills to complete the new project on time and on budget. Regardless of the project specifics, a defined baseline of technical skills and products would apply to all fixed guideway capital projects, and are discussed in more detail below. In particular, FTA seeks comments and suggestions on exactly what baseline products and skills demonstration should be applied to all of these projects. B. Major Capital Project A major capital project would include the following types of fixed guideway capital projects: (1) New fixed guideway construction or extension of an existing fixed guideway at any cost, but for which the project sponsor seeks $75 million or more in Section 5309 New Starts funds; or (2) fixed guideway construction, reconstruction, rehabilitation or modernization with a total project cost of $100 million or more, using funds under 49 USC section 5309(b), that identifies a set of activities and tasks that are interdependent to accomplish a specific objective with specific time, cost, and performance constraints; or (3) a project that the Administrator finds would benefit from the FTA project management oversight program, or presents certain characteristics that indicate the project would benefit from enhanced project management, engineering, and documentation of plans and processes. FTA seeks comment on what criteria it should use to determine whether a fixed guideway project should also be classified as a major capital project. C. Questions 1. Is the distinction between a fixed guideway capital project and a major capital project clear enough? Please provide detail about how you would define any of the terms differently. Please explain your rationale. 2. Are there other characteristics—for either project category above—you believe should be called out? What are they and why? 3. Should a Project Management rule contain provisions that apply to non-fixed guideway capital projects, for example, bus projects under section 5309(b)(3)? Should the rule apply to projects above a certain dollar threshold only? 4. Under consideration is an expanded list of circumstances under which the Administrator could designate a project a “major capital project”, triggering additional skills demonstration and process planning and project implementation documentation. A list of examples follows. Please provide your opinion and regarding whether FTA should consider the following criteria for designating a project as a major capital project: • The project sponsor has limited experience in design, construction, rehabilitation, or modernization of fixed guideways; • The project sponsor has a history of exceeding project budget or schedule targets on other fixed guideway capital projects; • The project involves acquisition, maintenance, or rehabilitation of vehicles or rolling stock that is not routine for the sponsor; • The project is of significant expense or unique complexity for the sponsor; • The success of the project will depend upon the sponsor's timely transaction of third-party agreements; • The project involves new technology, design or construction elements that increase risk to the project cost or schedule. III. Principles and Requirements for Fixed Guideway Capital Projects A. Fixed Guideway Capital Projects Following is a description of the existing baseline requirements for fixed guideway capital projects and how FTA proposes to modify the requirements. 1. Technical Capacity and Capability By law, before FTA can award grant funds for a capital fixed guideway grant, the project sponsor must certify, consistent with 49 U.S.C. 5309(c)(1)(B), that it “has or will have the legal, financial, and technical capacity to carry out its proposed program of projects, including safety and security aspects of that program” throughout the life of the project. In many cases, FTA accepts the annual certification of the project sponsor as sufficient evidence that it possesses adequate technical capacity and capability. In some instances, however, FTA has reason to question the sponsor's technical capacity to manage the scale, expense, or complexity of the proposed project, thus, FTA must make an independent assessment of the sponsor. Through this rulemaking, FTA expects to set specific performance standards for technical capacity and capability. When assessing technical capacity, FTA may consider the results of its routine oversight reviews. Recurring and specialized reviews give FTA an opportunity to verify the grantee's Certifications and Assurances (see Circular C 5010.1D, Chapter II.3, Responsibilities of Grant Management). In cases where FTA finds that a project sponsor's certifications are inaccurate, FTA may withhold grant approval until it can verify the accuracy of the sponsor's certifications. Technical capacity and capability is interpreted to mean evidence of an effective management approach, appropriate organizational structure, sufficient experienced staff, adequate internal and external controls and other resources (project partners, consultant support, and other non-sponsor agency) to administer the complexities of the capital project. FTA is seeking comment on what is the appropriate minimum demonstration of capacity and capability and whether there are times when FTA should seek more information to demonstrate capacity. 2. Satisfactory Continuing Control A statutory requirement contained in 49 U.S.C. 5309(c)(1)(B) is that FTA must assure itself that the project sponsor will have satisfactory continuing control over the use of the equipment or facilities. In short, this means that the project sponsor must own the assets, Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946518 have a long-term lease, or otherwise be able to ensure that the federal investment will endure for the useful life of the investment. FTA's circulars contain guidance on satisfactory continuing control. 3. Maintenance of Facilities and Equipment The section 5309(c)(1)(B) requirement concerning this provision requires not only that the project sponsor have the capability to maintain the equipment or facilities, but that the project sponsor demonstrates the willingness to do so. Again, the FTA has typically relied on a certification for this requirement, except in the case of New Starts, where there is a statutory requirement that the sponsor demonstrate adequate financial resources to maintain and operate the existing system while expanding its capacity. We are considering requiring project sponsors to develop and apply an asset management plan for all fixed guideway capital projects. FTA proposes to use its current state of good repair (SGR) initiative to further refine its definition of asset management plan. However, FTA believes that an asset management plan would assist grantees in project identification and prioritization by showing the condition of existing facilities, equipment, and rolling stock, and by producing schedules for major maintenance or replacement along with estimated replacement, rehabilitation, and repair costs. 4. Financial Plan The statute currently requires an annual financial plan for all projects exceeding $1 billion. FTA is considering whether to require some type of financial plan for all fixed guideway capital projects. Such a plan may include the identification of all Federal, State, and local resources anticipated to be used for the project. FTA invites comment on what should be the minimum expectations for financial plans of fixed guideway capital projects. 5. Grant Project Description, Budget and Milestones. FTA Circulars require that a grant application contain sufficient project description, budget and milestones for both the sponsor and FTA to know what is included in the project and the timeframe for implementation. However, there is considerable disparity in the kind of information submitted and this can often cause delay in grant approvals. In order to assure consistency and transparency, FTA is considering enhancing the current grant project description, budget and milestone information it collects for fixed guideway capital projects. The agency is further considering the best way to elicit adequate detail to provide valuable oversight of project planning and implementation. FTA has found that project implementation delays are often caused by poor or incomplete planning, which means issues get addressed during implementation usually with both a time and cost impact. By including a more detailed description of the planning aspects of the project, FTA could assure appropriate oversight of these activities and that the project experiences fewer implementation delays. B. Major Capital Projects The design and construction of a major capital project is a challenging undertaking from a variety of perspectives, including the large number of organizations involved in delivering the project, the diverse interests of the organizations and individuals that have a stake in the project, the potential imbalance between the quantity of human resources with the right skill sets required to deliver a project and the current organizational resources of the project sponsor, and the timing and cost of procuring goods and services in a competitive market. Additional challenges include integrated work flow processes and controls that are internal and external to the owner's organization, and management of the people, processes, physical and financial resources needed to successfully complete the project. Based on FTA's experience, projects that exceeded their budget or schedule forecast typically encountered problems obtaining experienced staff in a timely manner or failed to properly manage cost increases that were within their control, including contract change orders. Therefore, FTA proposes to strengthen its requirements for major capital project sponsors by requiring them to demonstrate that they have sufficient staff in place to demonstrate the capacity and capabilities to successfully implement their proposed projects, as opposed to simply relying on a plan to acquire the needed personnel. Other changes would be aimed toward improving the effectiveness of the FTA-required project management plan by requiring processes to be in place, as described below, and proposing criteria to be used to measure grantees' success in achieving desired outcomes or output and reporting the results to FTA. 1. Technical Capacity and Capability FTA's minimum expectations for a sponsor to demonstrate technical capacity and capability include a set of policies and procedures inclusive of resources and authority, defined, implemented, and maintained by the sponsor's project management organization that demonstrates its ability to: (1) Manage the project at each stage of development, including the transitions between stages of development and implementation; (2) conform to grant agreements, applicable statutes, codes, ordinances, and safety and security standards; (3) comply with FTA requirements on the part of agencies, consultants, contractors, and subcontractors working under approved third party contracts or inter-agency agreements; (4) maintain the project work schedule agreed to by FTA and the sponsor and constantly monitor grant activities to assure that schedules are met and other performance goals are being achieved; (5) keep expenditures within the latest approved project budget; (6) select and implement appropriate project delivery methods; (7) implement an effective communications program to assure that all project functions work effectively towards project delivery; (8) demonstrate continuous in-house administrative and management direction of project implementation; and (9) conduct adequate technical inspection and supervision by qualified professionals of all work in progress. FTA would expect most, if not all, of the matters identified above to be addressed in the project management plan, or alternatively in a separate document that is clearly identified in the PMP and incorporated by reference. 2. Project Management Plan (PMP) The project sponsor must submit a formal and documented management approach that embodies the agency's policies, practices and procedures. Ideally, the PMP should outline in detail the sponsor's plan for developing and implementing the project, including the monitoring that will take place to ensure that each major phase or stage in the project development process will be duly executed. The PMP should basically define what the project is, the person responsible for implementation, and when the work will be performed. The plans required should not be interpreted as “procedures.” Procedures define how the work or functions are to be implemented in conformance to a plan that sets out the underlying philosophy and approach to each process. While the procedures might Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946519 identify who does something and when, the plan would describe why and what the action means. FTA is considering placing additional emphasis on the PMP as a primary tool in the sponsor's management of the project. The PMP should demonstrate that the sponsor has thoroughly considered all phases of the project, giving careful thought, in particular, both to the methods used to execute the project and the interfaces between various participants. The PMP should explicitly define the objectives of the project and the methods and resources needed to meet those objectives. It should lay out the overall management strategy, including project controls, and the responsibilities, authorities, and measures of performance for all parties involved. Additionally, the PMP should reflect the unique characteristics of each project, such as the exact scope of work and specific resources, budget, and schedule. The PMP may be a compilation of associated plans or “sub” plans. Each sub plan should be incorporated into the PMP by reference and a copy appended, if practical, or as a minimum the signature page of the sub plan should be provided. Additionally, FTA may require that the PMP and associated sub plans packaged in a single or separate volume be supported by individual procedures or references to existing procedures. For example, a Test and Inspection Plan would be supported by detailed test procedures and QA/QC procedures, but the procedures would be made available to FTA on request instead of being submitted with the PMP. FTA envisions that project sponsors will submit a core PMP document for all major capital projects, tailored for the type of project for which it is used, and including, at a minimum, the following sections or stand-alone volumes or references to existing plans that serve the same purpose: (1) General Project Overview (description, objectives, performance measures, management approach, etc.); (2) Defined Scope, Budget and Project Master Schedule; (3) Quality Assurance/Quality Control (QA/QC) Plan; (4) Procurement Plan; (5) Safety and Security Management Plan; (6) Risk and Contingency Management Plan; (7) Staffing Plan (organizational chart, staff roles and responsibilities); and (8) Project Controls and Systems. FTA expects the project sponsor's responsible office supervisor/manager would approve the plan for his/her respective office prior to submittal to FTA for approval. For example, the head of QA/QC would approve the QA/QC Plan for the proposed major capital project. This allows an integrated approach to developing the PMP and is expected to result in a more effective and efficient document. FTA would require each associated sub plan and the overall PMP to be updated as needed and resubmitted for FTA's approval. In addition to the above core PMP and associated plans, the following sub plans are examples of what a project sponsor would develop and integrate into the PMP: (1) Real Estate Management Plan; (2) Fleet Management Plan; (3) Noise and Vibration Control Plan; (4) Rail Activation Plan; and (5) Geotechnical Risk Management Plan. In the forthcoming Notice of Proposed Rulemaking (NPRM), FTA will provide further guidelines on when each plan within the PMP should be submitted for approval. Currently for New Starts projects the sponsor establishes a PMP before entry into Preliminary Engineering and updates the PMP before advancing into the Final Design, construction, and start-up phases of a major capital project. FTA seeks comment on whether the requirement for Small Starts projects that are designated as major capital projects should establish a less detailed PMP than for New Starts projects. A less detailed PMP would be required before entry into project development and would be updated before advancing into construction. FTA is also seeking comment on whether all or portions of the project management plan should apply to some or all fixed guideway capital projects or whether you would suggest a different approach to project management, keeping in mind that FTA must ensure that project sponsors manage their projects effectively and deliver projects on time and within budget, while at the same time achieving projected benefits and meeting quality standards. 3. Project Implementation FTA may require project sponsors to demonstrate readiness to advance their projects to the next phase or stage in the project development process by successfully implementing the prerequisite requirements. Currently, a typical New Starts project moves through six major phases—Alternative Analysis, Preliminary Engineering, Final Design, Full Funding Grant Agreement, Construction, and Revenue Service Operations. A typical Small Starts project moves through five major phases, with Preliminary Engineering and Final Design being collapsed into a single phase called Project Development. FTA has developed checklists for grantees to use as a quick reference guide and to evaluate readiness to move into the next phase of project implementation. To view existing checklists for Preliminary Engineering, Final Design, and Full Funding Grant Agreements (FFGA) go to: http://www.fta.dot.gov/planning/newstarts/planning_environment_218.html. If the proposals outlined in this ANPRM are implemented, FTA would create new checklists for all major capital projects as a guide to project implementation. FTA seeks your comments on whether this would be useful. 4. Performance Requirements FTA would like project sponsors to use the PMP as a tool to create a series of performance measures that they could report against. FTA would use this information to report on the success of major capital projects. 5. Reporting FTA intends to propose specific reporting requirements for recipients of federal funding for major capital projects, including but not limited to, value engineering reports, safety and security management reports, monthly progress reports, and cost updates for FTA's cost databases. We seek comments both as to the appropriateness of these reporting requirements as well as the potential content of such reporting requirements. Please make your comments specific to each of the suggested reports. 6. Exceptions for Past Performance FTA is considering relaxing requirements for project sponsors who have successfully completed other major capital projects within the past 7 to 10 years if, for example, it can be demonstrated that the organization has retained critical resources like the project manager, the organization's business processes and procedures have not been significantly altered, and the project involves the same or similar technology. In the above context, determining the successful completion of a major capital project would be based on FTA-established criteria such as cost and schedule performance contained within a percentage of the baseline cost estimate or revenue service date. We seek comment on whether you agree with this approach. Are there other factors that might justify relaxing FTA's requirements? C. Questions 1. If a project budget is under $100 million, what is the appropriate demonstration of capacity and capability? Are there circumstances under which FTA should seek Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946520 additional demonstration of the project sponsor's technical capacity and capability for a project categorized as a fixed guideway capital project beyond what is described in this document? 2. What plans or requirements should FTA consider for a single purpose grant like a fixed guideway major capital project? Should a portion of the PMP apply? 3. Should the requirement for demonstrating satisfactory continuing control be different for a fixed guideway capital project than the regular FTA formula grant? 4. Are more detailed milestones and budget detail in a TEAM grant a feasible mechanism for managing and providing oversight to a fixed guideway capital grant? What other tools should be considered? 5. What minimum requirements should be contained in an asset management plan? 6. Would checklists for all fixed guideway capital projects be useful? 7. Should all or portions of the project management plan apply to some or all fixed guideway capital projects? What portions would apply to what specific types of fixed guideway capital projects? Please be as specific as possible. 8. Would you suggest a different approach to project management, keeping in mind that FTA must ensure that project sponsors manage their projects effectively and deliver projects on time and within budget, while at the same time achieving projected benefits and meeting quality standards? 9. Please comment on FTA's integrated project management plan approach discussed above. Do you think the integrated approach is more practical? If not, how would you structure the PMP to facilitate its usefulness? 10. Do you agree with FTA's plan to relax technical capacity and capability requirements for more experienced project sponsors that meet certain criteria? If you agree, are there other factors that FTA should consider? 11. Should FTA require all sponsors of major capital projects to develop and update PMPs for every project at corresponding stages in project development? 12. Other than the statutory evaluation process that applies to New Starts and Small Starts, should financial plans for all major capital projects meet the same minimum standards? 13. For major capital projects other than Section 5309 New Starts, should FTA specify a minimum number of years that a grantee's financial plan should cover? For example, is a financial plan covering three to five years of sufficient length to determine a grantee's financial capacity? Or should FTA require that the financial plan extend through the time period required for completion of the major capital project? IV. FTA Oversight of Fixed Guideway and Major Capital Projects A. Fixed Guideway Capital Projects Not all fixed guideway projects are major capital projects. Consequently, the oversight of many Fixed Guideway Capital Projects is performed primarily by FTA staff in its regional offices. PMOCs are currently utilized to assist FTA in providing oversight of Major Capital Projects only. B. Major Capital Projects In the early 1980's several FTA-funded transit projects suffered major setbacks due to problems with quality, cost overruns, and delays in schedules. Thus, FTA received its project management oversight program mandate and funding from Congress in the Surface Transportation and Uniform Relocation Act of 1987. Congress directed FTA (then UMTA) to establish the Project Management Oversight (PMO) Program. This program has grown correspondingly with the growth of the overall FTA program. 1. Roles and Responsibilities Since the inception of its Project Management Oversight program in 1989, FTA has supplemented its own staff with Project Management Oversight Contractors (PMOCs) to provide oversight for major capital projects. The primary role and responsibility of the PMOC is to help FTA ensure that such projects are on time, within budget, and in conformance with Federal requirements; are constructed to grantees' approved plans and design specifications; and are efficiently and effectively implemented. An initial, important role of the PMOC is to review the project sponsor's project management plan on behalf of FTA, and to make recommendations concerning its adequacy. During the design, construction, start-up and operational phases of a project, on behalf of FTA, the PMOC monitors and reports on the project's development and implementation, consistent with its approved project management plan and accepted engineering and project management practices. The PMOC performs routine project management oversight monitoring through on-site reviews and off-site document reviews. FTA uses these reviews to oversee the project and to conduct quarterly review meetings with the project sponsor. Periodic reports are submitted to FTA documenting project status, activities, and open issues including, but not limited to, the following: • Timely management decisions. • Delegations of authority. • Management of project scope. • Internal controls. • Schedule analysis. • Cost estimates and trends, including forecasting. • Delivery of a quality product. • Project security/safety. • Continuing technical capacity. • Risk assessment and contingency management. FTA's primary objectives for providing Project Management Oversight of major capital projects are to assess grantees' technical capacity and capability and project management experience to successfully implement major capital projects and to monitor projects to ensure that they are progressing on time, within budget, and in accordance with the grantees' approved plans. While FTA's program has grown significantly since 1989, its staff size has stayed the same. The PMOCs help to fill this resource gap as well as to provide specialized expertise when needed. While the oversight program has grown based on its percentage takedown of an expanding program, the need for oversight has increased even faster than the available funding because the larger program has generated both higher demand and more complex projects. FTA seeks comment on how it should best use its PMOCs to supplement its limited staff resources. 2. Risk-Informed Project Management Oversight Approach Over the last five years, FTA has refined its approach to oversight to integrate risk analyses and transit specific databases to help the grantee deliver a successful project. By means of a Full Funding Grant Agreement (FFGA) for New Starts, or Project Construction Grant Agreement (PCGA) for Small Starts, both FTA and a grantee mutually agree on the scope, cost and schedule of a particular project. Management of the project to ensure that all three are delivered successfully begins early in the project development phase. FTA has increased its use of risk assessment, management and mitigation strategies to ensure that Major Capital projects are constructed on-time and within budget. FTA relies on a portfolio of risk management tools to prevent project costs from escalating, to assess Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946521 the magnitude of risks in a project, and to help the project sponsor predict and establish a project budget and schedule. The most important objective of risk assessment and management protocols is to help the project sponsor predict the budget and schedule and to ensure that the sponsor can complete the project within the budget and schedule identified in the FTA grant award. Project risks track the project development process. In general terms, they can be described as follows: • Requirements Risk. The first step in project development is to identify the requirements—risks associated with definition of basic project needs and transit system requirements to meet those needs; • Design Risk. The second step is project design—risks involving the adequacy of the information available at each stage of design and engineering, geotechnical conditions in particular, and the impact of redesign; • Market Risks. The third step is to identify market risks—risks associated with both the procurement approach and the market conditions that can affect the cost of materials and the availability of bidders for construction services, materials, real estate, and manufactured products like vehicles; and • Construction Risks. The final step is to identify construction risks—those risks associated with the actual construction and start-up of the system. Once risks are identified, FTA and project sponsors must determine the best method for managing those risks. The preferred methods for managing risk are avoidance, reduction, and mitigation. Because they are really only ways of providing more up-front funding or reducing overall costs but do not reduce risk, less preferred risk management techniques include increasing contingency, reducing project scope, or reducing the level of service. FTA works with each project sponsor to determine the most feasible strategy for each project. Project sponsors document this risk-informed management process in the project management plan. Including these strategies can help ensure that the project sponsor has the requisite technical capacity and capability to deliver the project on time and within budget by ensuring that the project sponsor understands methods for addressing risks and that it implements strategies to avoid future delays. FTA can tailor these risk assessment and management tools to take into account the unique circumstances of a project, such as sponsor organization and technical capacity and capability, and the project complexity or status. C. Questions 1. Should FTA assign PMOCs to oversee projects other than Major Capital Projects? Please provide the rationale for your recommendations including how oversight of these projects should alternatively be provided if PMOCs are not utilized. 2. At what stage in the development process should FTA assign PMOCs to New Starts projects? Explain the basis for your recommendation. 3. Other than a detailed review of a grantee's financial plan, what other methods might FTA utilize to ensure a grantee has the financial capacity to construct and operate a major capital project? 4. Please comment on FTA's Risk Management approach. If you do not agree with FTA's approach, please recommend an alternative and provide a basis for your recommendation. Following the close of the comment period on this ANRPM, FTA will summarize and respond to the comments and issue a Notice of Proposed Rulemaking that posits explicit text for a rewrite of the regulation at 49 CFR Part 633. We expect to publish such a Notice of Proposed Rulemaking in 2009. Issued this 4th day of September, 2009. Peter M. Rogoff, Administrator, Federal Transit Administration. [FR Doc. E9-21849 Filed 9-9-09; 8:45 am] BILLING CODE PYear | Site 1 | Site 2 | Site 3 | ||
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Seedlings | Seedlings | Adults | Seedlings | Adults | |
2004 | 10 seedlings | 8 seedlings | 7 adults | 12 seedlings | 10 adults |
2005 | 4 dead, 2 small seedlings (15 leaves each), 4 small adult plants with pods | 6 dead, 1 small seedling (12 leaves), 1 young adult | 1 dead, 6 alive | 1 stake missing, 5 dead, 6 small adults (3 with pods) | 1 dead, 9 with desiccated leaves and numerous pods |
2006 | All 6 remaining plants swept away by water in a wash | Of the 7 remaining adult plants, 2 dead and 5 alive | Of the 6 remaining stakes: 1 stake missing, 4 dead, 1 adult | 7 dead, 3 stakes missing |
Year | Big Site 1 | Big Site 7 |
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2004 | 123 total (2 dead, 73 seedlings, 48 adults) | 138 total (42 seedlings, 96 adults) |
2005 | 136 total (8 dead, 13 seedlings, 115 adults) | 67 total (3 dead, 6 seedlings, 58 adults) |
2006 | 88 total | 135 total |
2007 | 73 total | 69 total |
FOR FURTHER INFORMATION ON-LINE: http://web.ita.doc.gov/tacgi/CaftaReqTrack.nsf under “Approved Requests,” Reference number: 129.2009.08.10.Fabric.SoriniSamet forBWA
SUPPLEMENTARYINFORMATION: Authority: The CAFTA-DR Agreement; Section 203(o)(4) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (CAFTA-DR Implementation Act), Pub. Law 109-53; the Statement of Administrative Action (SAA), accompanying the CAFTA-DR Implementation Act; and Presidential Proclamations 7987 (February 28, 2006) and 7996 (March 31, 2006); Modifications to Procedures for Considering Requests Under the Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement, 73 FR 53200 (Sept. 15, 2008) (“procedures”). BACKGROUND: The CAFTA-DR Agreement provides a list in Annex 3.25 for fabrics, yarns, and fibers that the Parties to the CAFTA-DR Agreement have determined are not available in commercial quantities in a timely manner in the territory of any Party. The CAFTA-DR Agreement provides that this list may be modified pursuant to Article 3.25(4)-(5), when the President of the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party. See Annex 3.25 of the CAFTA-DR Agreement; see also section 203(o)(4)(C) of the CAFTA-DR Implementation Act. The CAFTA-DR Implementation Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamations 7987 and 7996, the President delegated to CITA the authority under section 203(o)(4) of CAFTA-DR Implementation Act for modifying the Annex 3.25 list. Pursuant to this authority, on September 15, 2008, CITA published modified procedures it would follow in considering requests to modify the Annex 3.25 list of products determined to be not commercially available in the territory of any Party to CAFTA-DR. See CITA procedures. On August 10, 2009, the Chairman of CITA received a Request for a Commercial Availability Determination (“Request”) from Sorini Samet & Associates, LLC, on behalf of BWA, for certain woven modal-polyester apparel fabric, as specified below. On August 11, 2009, in accordance with CITA's procedures, CITA notified interested parties of the Request, which was posted on the dedicated website for CAFTA-DR Commercial Availability Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946563 proceedings. In its notification, CITA advised that any Response with an Offer to Supply (“Response”) must be submitted by August 24, 2009, and any Rebuttal Comments to a Response must be submitted by August 28, 2009 in accordance with CITA's procedures at Sections 6 and 7. No interested entity submitted a Response to the Request advising CITA of an objection to the Request and an ability to supply the subject product. In accordance with section 203(o)(4)(C) of the CAFTA-DR Implementation Act, and Section 8(c)(2) of CITA's procedures, as no interested entity submitted a Response objecting to the Request and demonstrating its ability to supply the subject product, CITA has determined to add the specified fabric to the list in Annex 3.25 of the CAFTA-DR Agreement. Therefore, the subject product has been added to the list in Annex 3.25 of the CAFTA-DR Agreement in unrestricted quantities. A revised list has been posted on the dedicated website for CAFTA-DR Commercial Availability proceedings. Specifications: Woven Modal-Polyester Apparel Fabric HTSUS: 5516.12; 5516.13; 5516.22; 5516.23 NOTE: In the finishing process, in the event that the polyester filament content breaks and turns into a fiber, the classification would be a woven fabric of 100% polyester synthetic staple fiber (HTS 5516.92; 5516.93) Fiber Content: 52 to 95% spun modal rayon; 5 to 48% filament polyester Yarn Size: Spun modal rayon 44/1 to 88/1 metric; filament polyester 59 to 92 metric Thread Count: 31 to 53 warp ends per centimeter; 27 to 36 filling picks per centimeter. Weave Type: Twill or dobby or jacquard or oxford or satin Weight: 100 to 300 grams per square meter Width: 137 to 153 centimeters Coloration: (Piece) dyed or yarns of different colors Finishing Process: Wicked, UV blocker, peached, sanded wash, stain-resistant and teflon finish.Specifications: Woven Modal-Polyester Apparel Fabric |
HTSUS: 5516.12; 5516.13; 5516.22; 5516.23 |
NOTE: In the finishing process, in the event that the polyester filament content breaks and turns into a fiber, the classification would be a woven fabric of 100% polyester synthetic staple fiber (HTS 5516.92; 5516.93) |
Fiber Content: 52 to 95% spun modal rayon; 5 to 48% filament polyester |
Yarn Size: Spun modal rayon 44/1 to 88/1 metric; filament polyester 59 to 92 metric |
Thread Count: 31 to 53 warp ends per centimeter; 27 to 36 filling picks per centimeter. |
Weave Type: Twill or dobby or jacquard or oxford or satin |
Weight: 100 to 300 grams per square meter |
Width: 137 to 153 centimeters |
Coloration: (Piece) dyed or yarns of different colors |
Finishing Process: Wicked, UV blocker, peached, sanded wash, stain-resistant and teflon finish. |
Exporter | Weighted-average margin (percent) |
---|---|
Regal | 9.08 |
Shantou Longsheng | 9.08 |
PRC-Wide Entity 16 | 112.81 |
16 The PRC-wide entity includes the 464 companies currently under review that have not established their entitlement to a separate rate, including Zhanjiang Go-Harvest Aquatic Products Co., Ltd. and Shantou Yuexing Enterprise Company. |
Comment 1: Surrogate Country
Comment 2: Zeroing
Comment 3: Surrogate Values
a. Purchased Ice
b. Ocean Water
c. Shrimp Feed
d. Salt
e. By-products
f. Fertilizer
g. Shrimp Larvae
Comment 4: Calculation of Surrogate Financial Ratios
a. Interest
b. Labor
c. Depreciation
Comment 5: Calculation of Diesel Oil Consumption
Comment 6: Self-Made Ice
Comment 7: Assessment Rates to Account for Misclassified Entries
Comment 8: Selection of Respondents
[FR Doc. E9-21904 Filed 9-9-09; 8:45 am] BILLING CODE 3510-DS-PHill Sportswear, Inc.
Dated: August 6, 2009.By:
Young Min Park, President,
Hill Sportswear, Inc.,
16250 Gundry Avenue,
Paramount, CA 90723.
Dated: August 10, 2009.By:
Michael D. McCaffrey, Esq.,
Law Offices of Michael D. McCaffrey,
2030 Main Street, Suite 1200,
Irvine, CA 92614-7256,
Counsel for Hill Sportswear, Inc.
U.S. Consumer Product Safety Commission Staff
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: August 12, 2009.By:
Seth B. Popkin,
Lead Trial Attorney,
Renee K. Haslett,
Trial Attorney, Division of Compliance, Office of the General Counsel.
Order Upon consideration of the Settlement Agreement entered into between Hill Sportswear, Inc. (“Hill”) and the U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over Hill, and it appearing that the Settlement Agreement and the Order are in the public interest, it is Ordered, that the Settlement Agreement be, and hereby is, accepted; and it is Further ordered, that Hill shall pay a civil penalty in the amount of one hundred thousand dollars ($100,000.00). The civil penalty shall be paid in four (4) installments as follows: $25,000.00 shall be paid within twenty (20) calendar days of service of the Commission's final Order accepting the Agreement; $25,000.00 shall be paid within one hundred twenty (120) calendar days of service of the Commission's final Order accepting the Agreement; $25,000.00 shall be paid within two hundred forty (240) calendar days of service of the Commission's final Order accepting the Agreement; and $25,000.00 shall be paid within three hundred sixty-five (365) calendar days of service of the Commission's final Order accepting the Agreement. Each payment shall be made by check payable to the order of the United States Treasury. Upon the failure of Hill to make any of the foregoing payments when due, the total amount of the civil penalty shall become immediately due and payable, and interest on the unpaid amount shall accrue and be paid by Hill at the Federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b). Provisionally accepted and provisional Order issued on the 3rd day of September 2009. By Order of the Commission: Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission. [FR Doc. E9-21763 Filed 9-9-09; 8:45 am] BILLING CODE 6355-01-PDated: July 29, 2009.
Jeff Manby,
Executive VP, GMM—Men's/YMen's/Children's, Kohl's Department Stores, Inc., N56 W17000 Ridgewood Drive, Menomonee Falls, WI 53051.
Dated: August 3, 2009.
Paul Izzo, Esq.,
One Post Office Square, Sharon, MA 02067. Counsel for Kohl's Department Stores, Inc.
U.S. Consumer Product Safety Commission Staff.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: August 11, 2009.
Seth B. Popkin,
Lead Trial Attorney, Division of Compliance, Office of the General Counsel.
Order Upon consideration of the Settlement Agreement entered into between Kohl's Department Stores, Inc. (“Kohl's”) and the U.S. Consumer Product Safety Commission (“Commission”) staff, and the Commission having jurisdiction over the subject matter and over Kohl's, and it appearing that the Settlement Agreement and the Order are in the public interest, it is Ordered, that the Settlement Agreement be, and hereby is, accepted; and it is Further Ordered, that Kohl's shall pay a civil penalty in the amount of four hundred twenty-five thousand dollars ($425,000.00) within twenty (20) calendar days of service of the Commission's final Order accepting the Agreement. The payment shall be made by check payable to the order of the United States Treasury. Upon the failure of Kohl's to make the foregoing payment when due, interest on the unpaid amount shall accrue and be paid by Kohl's at the Federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b). Provisionally accepted and provisional Order issued on the 2nd day of September, 2009. By Order of the Commission. Todd A. Stevenson, Secretary, U.S. Consumer Product Safety Commission. [FR Doc. E9-21764 Filed 9-9-09; 8:45 am] BILLING CODE 6355-01-P9:15 a.m.-12 p.m. (Open Session).
12 p.m.-1:30 p.m. (Closed Administrative Working Meeting).
1:30 p.m.-5 p.m. (Open Session).
October 15, 2009 The Panel will review, refine, and approve the contents of the Mild Traumatic Brain Injury Patient Education Tool and will discuss a dissemination plan.9:15 a.m.-12 p.m. (Open Session).
12:00 p.m.-1 p.m. (Closed Administrative Working Meeting).
1 p.m.-2:30 p.m. (Open Session).
Written Statements Anyone wishing to provide input to the Defense Health Board should submit a written statement in accordance with 41 CFR 102-3.140(c) and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice. Written statements should be not longer than two type-written pages and must address the following detail: The issue, discussion, and a recommended course of action. Supporting documentation may also be included as needed to establish the appropriate historical context and to provide any necessary background information. Individuals desiring to submit a written statement may do so through the Board's Designated Federal Officer ( see FOR FURTHER INFORMATION CONTACT ) at any point. However, if the written statement is not received at least 10 calendar days prior to the meeting, which is subject to this notice, then it may not be provided to or considered by the Panel until the next open meeting. The Designated Federal Officer will review all timely submissions with the Traumatic Brain Injury Family Caregiver Panel Chairperson, and ensure they are provided to members of the Panel before the meeting that is subject to this notice. After reviewing the written comments, the Chairperson and the Designated Federal Officer may choose to invite the submitter of the comments to orally present their issue during an open portion of this meeting or at a future meeting. The Designated Federal Officer, in consultation with the Panel Chairperson, may, if desired, allot a specific amount of time for members of the public to present their issues for review and discussion by the Panel. Registration The public is encouraged to register for the meeting. Special Accommodations If special accommodations are required to attend (sign language, wheelchair accessibility) please contact Ms. Lisa Jarrett at (703) 681-8448 ext. 1280 by October 4, 2009. Dated: September 4, 2009. Mitchell S. Bryman, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E9-21855 Filed 9-9-09; 8:45 am] BILLING CODE 5001-06-PTime | Topic |
---|---|
8 a.m | Administrative Remarks. |
8:15 a.m | Review and Discussion. |
10:15 a.m | Break. |
10:45 a.m | Review and Discussion. |
12 p.m | Lunch. |
1 p.m | Review and Discussion. |
3:15 p.m | Break. |
3:30 p.m | Deliberations and Guidance. |
4 p.m. | Adjourn. |
Responses: 54.
Burden Hours: 810.
Abstract: Section 1202 of the Elementary and Secondary Education Act describes information to be included in the annual performance report required of Reading First grantees. Submission of the annual performance report (APR) via the data collection site has been taking place since 2004 and will continue to occur between October 15 and November 30 of each year. If APR data submitted during this time frame are incomplete or inaccurate or if re-submission of data is requested by State education agencies (SEAs), additional data collection may occur at other times throughout the year. The Government Performance Results Act (GPRA) report provides national-level achievement data for all comprehension and fluency outcome measures for each year of program implementation. The national-level information includes an average of the percentage of proficient students in SEAs administering the Dynamic Indicators of Basic Early Literacy Skills (DIBELS) Oral Reading Fluency measure Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946584 and the number of SEAs showing improvement in proficiency rates on each SEA's comprehension measure from the previous year to the current year. All schools are included in the GPRA report, regardless of when schools began implementation of the Reading First program. Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov, by selecting the “Browse Pending Collections” link and by clicking on link number 4124. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to ICDocketMgr@ed.gov or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to ICDocketMgr@ed.gov . Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339. [FR Doc. E9-21699 Filed 9-9-09; 8:45 am] BILLING CODE 4000-01-PZeny Magos, Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-8244, zeny.magos@ferc.gov.
John Yakobitis, Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-8512, john.yakobitis@ferc.gov.
Kimberly D. Bose, Secretary. [FR Doc. E9-21735 Filed 9-9-09; 8:45 am] BILLING CODE 6717-01-PImproving Health Care Performance :
Setting Priorities and Enhancing Measurement Capacity
Report to Congress and the Secretary of the U.S. Department of Health and Human Services
Covering the Period of January 14, 2009 to February 28, 2009
The mission of the National Quality Forum is to improve the quality of American health care by setting national priorities and goals for performance improvement, endorsing national consensus standards for measuring and publicly reporting on performance, and promoting the attainment of national goals through education and outreach programs. Section 183 of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) mandates a Department of Health and Human Services (HHS) contract with a consensus-based entity regarding performance measurement (Section 1890 of the Social Security Act (the Act)). The National Quality Forum (NQF) was awarded the HHS contract through a competitive contracting mechanism to serve as the consensus-based entity. The statute mandates the submission of an annual report to both Congress and the Secretary of Health and Human Services by the consensus-based entity awarded the HHS contract (Section 1890(b)(5)(A) of the Act). The statute specifically requires the Secretarial review of such report upon receipt and the publication of such report in the Federal Register together with any Secretarial comments not later than 6 months after receiving the report (Section 1890(b)(5)(B) of the Act). This report was prepared by NQF. The report does not necessarily reflect the views of HHS. All HHS comments on this report will be provided at the time of its publication in the Federal Register . This report is part of contract number HHSM-500-2009-00010C. National Quality Forum, 601 Thirteenth Street, NW., Suite 500 North, Washington, DC 20005, Fax 202-783-3434, http://www.qualityforum.org . Executive Summary There is widespread and growing awareness from all levels of government that health care reform is a critical component of economic recovery—and that reform must address health care quality, safety, costs, access, and disparities in care. Truly better quality of care—care that is more effective, safe, and efficient—is an imperative for aiding our nation's economic recovery and making good on our commitment to cover the uninsured. Numerous efforts are under way to advance the quality improvement agenda. These include the pay-for-performance and pay-for-reporting initiatives being undertaken by public and private sector purchasers; public reporting of performance information by the Centers for Medicare & Medicaid Services (CMS), State governments, and others; quality oversight by regulatory, accreditation, and professional certification bodies; and quality improvement activities being conducted by CMS' quality improvement organizations (QIOs), End-Stage Renal Disease Network Organizations, health care providers, practitioners, and others. The overarching goal of all of our work is to improve the quality and affordability of health care by providing information to consumers and others to assist them in making more informed health care decisions, and to providers and practitioners to drive quality improvement. Measuring health care performance and then sharing those results with those who provide services and those who purchase and receive them are the cornerstones of a system that fosters not just incremental gains, but continued large-scale quality improvement. Performance information is needed to support quality improvement, reform payment programs to promote value, and engage patients in making better choices and managing their health conditions. Performance measurement is a key building block for improving the quality of care. Recognizing the need to strengthen the nation's performance measurement capacity, Congress included a provision within the Medicare Improvements for Patients and Providers Act of 2008 (PL 110-275), directing the Secretary of the Department of Health and Human Services (DHHS) to contract with a “consensus-based entity, such as the National Quality Forum.” The entity shall: • Synthesize evidence and convene key stakeholders to make recommendations, with respect to activities conducted under this Act, on an integrated national strategy and priorities for health care performance measurement in all applicable settings. • Provide for the endorsement of standardized health care performance measures. • Establish and implement a process to ensure that measures endorsed are updated (or retired if obsolete) as new evidence is developed. • Promote the development and use of electronic health records that contain the functionality for automated collection, aggregation, and transmission of performance measurement information. • Submit an annual report to Congress and the Secretary. Under the contract, DHHS has asked that measures focus on “outcomes and efficiencies that matter to patients, align with electronic collection at the front end of care, encompass episodes of care when possible, and be attributable to providers where possible. A premium must be placed on developing measures in key areas that will have the greatest impact in improving quality and value, rather than focusing on developing a large number of measures that may be easiest to produce, such as process measures.” On January 14, 2009, the National Quality Forum (NQF) was awarded a contract that addresses and is responsive to Section 183 of the Medicare Improvements for Patients and Providers Act of 2008. The contract, which has a period of performance of four years, is being incrementally funded on a yearly basis. As a part of its work under the contract, NQF is required to produce an Annual Report to Congress by March 1 each year. Because this contract only recently commenced on January 14, 2009, this initial report to Congress provides a “look forward.” More specifically, it focuses on two areas: • Recent accomplishments that provide a foundation for work under this contract, and • Strategic direction and key challenges that lie ahead. Foundation for Work: Background and Recent Accomplishments NQF is a not-for-profit, multi-stakeholder membership organization whose mission is to improve the quality of American health care by: • Setting national priorities and goals for performance improvement; • Endorsing national consensus standards for measuring and publicly reporting on performance, and on promoting the attainment of national goals through education and outreach programs. Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946596 NQF's membership includes more than 375 organizations representing virtually every sector of the health care system. The work to be conducted under this DHHS contract will directly relate to NQF's core competencies and recent accomplishments in three areas: • Setting National Priorities and Goals. NQF has convened leaders from major stakeholder groups and through this process has identified National Priorities and Goals for Performance Improvement. This work provides a foundation for the priority-setting efforts under this contract which focus on clinical conditions. • Endorsing performance measures. NQF's consensus development process has resulted in more than 400 endorsed measures. • Facilitating the development of electronic health records to support measurement and improvement. NQF has worked to identify the types of information that need to be included in an EHR to enable reporting on quality metrics. Setting National Priorities and Goals The National Priorities Partnership, convened by NQF, is a collaborative effort of 28 major national organizations representing multiple stakeholders, including consumer groups, employers, government, health plans, health care organizations, health care professionals, accrediting and certifying bodies, and quality alliances. The Partnership set National Priorities and Goals intended to focus performance improvement efforts on high-leverage areas—those with the most potential in the near term to result in substantial improvements in health and health care—and thus accelerate fundamental change in our health care delivery system. Taking action on the high-leverage Priorities and Goals, the Partners, individually and collectively, have the capacity to significantly advance health care reform. In November 2008, the Partnership released the results of its initial work in a report: National Priorities and Goals: Aligning our Efforts to Transform America's Health Care (see Appendix A for the executive summary). The National Priorities and Goals were selected because they address four major challenges: Eliminating harm, eradicating disparities, reducing disease burden, and eliminating waste. The National Priorities fall into six areas: • Engage patients and families in managing their health and making decisions about their care. • Improve the health of the population. • Improve the safety and reliability of America's health care system. • Ensure patients receive well-coordinated care within and across all health care organizations, settings, and levels of care. • Guarantee appropriate and compassionate care for patients with life-limiting illnesses. • Eliminate overuse while ensuring the delivery of appropriate care. The Partners are now developing action plans to achieve the National Priorities and Goals, which will entail alignment of key environmental drivers, such as public reporting, payment, and accreditation and certification programs. Learn more at http://www.nationalprioritiespartnership.org . Endorsing Performance Measures Advancing quality improvements requires valid, meaningful measurement. Simply put, you cannot improve what you cannot measure. Measures make it possible to more effectively focus our quality improvement efforts by helping identify what is working and what needs additional improvement. NQF is a private sector, standard-setting organization, and one of its roles is to evaluate measures and select the “best in class.” Use of NQF-endorsed® measures facilitates making apples-to-apples comparisons. NQF is a voluntary consensus standard-setting organization as defined by the National Technology Transfer and Advancement Act of 1995 (NTTAA) and the Office of Management and Budget Circular A-119. Standard-setting organizations recognized under NTTAA must comply with strict requirements pertaining to multi-stakeholder involvement, transparency of decisionmaking, and due process. The consensus development process (CDP) is the formal process by which NQF achieves consensus and endorses measures. There are seven steps in the endorsement process: Formation of a steering committee, calls for measures, measure evaluation, public comment, member voting, review by the consensus standards approval committee and board of directors, and appeals. The CDP reflects a careful process designed to produce consensus from disparate groups across the health care industry, including consumers, purchasers, providers, public and community health, suppliers, quality improvement and measurement organizations, and health plans. Using this process, NQF has endorsed more than 400 quality measures for a variety of health care settings. In 2008, NQF conducted consensus development projects in the following areas: • Perinatal Care; • Home Health Care; • Ambulatory Care; • Emergency Care; • Health Information Technology; • Hospital Care; • Immunization; • Outpatient Imaging. Much of the support for these projects was provided by CMS and the Agency for Health care Research and Quality (AHRQ), as well as private foundations. Facilitating the Development of Electronic Health Records To Support Measurement and Improvement NQF also serves as an important “bridge” between the quality and health information technology communities to facilitate the development of electronic health records (EHRs) and personal health records (PHRs) that are capable of supporting performance measurement, reporting, and improvement. That work has two objectives. First, performance measures need to have turnkey measurement specifications that allow ready incorporation directly into EHRs and PHRs. Second, EHRs and PHRs must be able to capture the necessary data and possess the necessary functionality to calculate and report the performance information and provide the associated clinical decision-support to practitioners to improve performance. NQF's Health Information Technology Expert Panel (HITEP), funded with support from AHRQ, produced its first report in January 2009 Recommended Common Data Types and Prioritized Performance Measures for Electronic Health Care Information Systems (see Appendix B for the executive summary). This report identifies the types of data that must be captured in EHRs to calculate the performance measures that are currently used by Medicare for public reporting purposes. Through its measure endorsement process, NQF is working with measure developers to encourage the adoption of common conventions for specifying measures that will make it easier for vendors to build EHRs and PHRs capable of calculating the measures and providing the associated clinical decision-support to assist providers in improving their performance. HITEP is now working closely with the DHHS Office of the National Coordinator to ensure that the “Quality Data Set”—the types of data that need to be captured in EHRs and PHRs to support quality measurement and performance improvement—gets translated into health information technology standards, which in turn Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946597 become requirements for EHR certification by the Certification Commission for Health Information Technology. Strategic Direction and Challenges Ahead NQF has for many years received federal support, primarily in the form of grants and contracts for very specific projects ( e.g. , a project to review physician-level measures related to cancer care). This new DHHS contract supports development and execution of a comprehensive, multi-year work plan for performance measurement. This contract will bolster, very significantly, six key functions of the quality measurement infrastructure. Further Enhance the National Priorities and Goals. The current set of National Priorities and Goals represents cross-cutting areas that apply to all or many patients and conditions, like safety and care coordination. Over the coming year, a prioritized list will be developed of the top 20 conditions that account for 90 percent of Medicare costs, based on various criteria, including health and cost burden and opportunity for improvement. This two-dimensional framework—cross-cutting areas and conditions—will be used to focus the work of both NQF and other key players to achieve rapid improvement. Building Measure Sets for Patient-Focused Episodes. Over the coming two to three years, measure sets will be identified for each of the top 20 conditions that include measures of the health care process ( e.g. , effectiveness and safety measures), patient engagement, in decision making, patient outcomes, and cost. This framework moves the measurement field from a focus on the provision of individual services provided in one setting to an “episode” view that fosters patient engagement care coordination, efficiency, and accountability for outcomes. Identify Critical Gaps in Measures. Measures will be needed to gauge progress in meeting the National Priorities and Goals, and efforts are now under way to identify gaps in the portfolio of NQF-endorsed measures. The mapping of available measures to conditions/patient-focused episodes will also reveal gaps. Identify Areas for New Measure Development. Based on the “gap analysis” discussed above, an environmental scan will be conducted to determine if measures are available for endorsement or whether new ones need to be developed and which measures may be of most importance to the Medicare, Medicaid, or CHIP populations. There is also a significant need to identify where composite measures (combinations of two or more individual measures to produce an overall score) should be developed to provide an overall indication of performance in particular areas ( e.g. , preventive services, safety). Measure Maintenance and Retooling. The ability to examine measures on an ongoing basis with built-in requirements for regular measure maintenance helps ensure that the best measures are available for public reporting, health care performance assessment, and quality improvement. Performance measures must be maintained to reflect new clinical evidence, as well as “lessons learned” from their use in the field. NQF requires that measures undergo maintenance on a three-year cycle, or sooner if necessary. There is also a critical need to retool measures to run off of electronic data sources ( e.g. , EHRs, administrative data, registries). Further Strengthen Relationships Between the Quality Community and the Health Information Technology Community. NQF will foster ongoing communication and collaboration between the performance measurement community and the health information technology community, and ensure proper coordination of standard-setting activities that occur in the quality community ( e.g. , standards related to clinical concepts, performance measure logic, and performance measure specifications) and standard-setting activities that occur in the HIT community ( e.g. , EHR standards for data capture, data transmission protocols). The goals of this contract will also support key HHS work outlined in the recently enacted American Recovery and Reinvestment Act of 2009 (ARRA) in three important ways. • Work will support the health information technology (HIT) provisions of the ARRA by facilitating communications between the HIT and quality communities to ensure that electronic health records (EHRs) and personal health records (PHRs) possess the necessary capabilities to support performance measurement, reporting and improvement. NQF's work will be of relevance to both of the HIT Policy and Standards Committees that will be established under this law. • The prevention provisions of ARRA call for strategies to reduce health care-associated infections and to enhance chronic disease outcomes. Through the priority-setting process, the NQF contract will focus performance improvement activities on these areas, and will identify standardized performance measures that can be used for public reporting and to assess the effectiveness of these programs. • The comparative effectiveness research program of ARRA will provide new evidence on what treatments work and do not work to inform providers and consumers to use the best care available. Through its priority-setting and endorsement processes, NQF will likely identify key gaps in the evidence base, and this information will be shared with the comparative effectiveness program to help guide its agenda-setting activities. Conclusion Health care is going through a period of extraordinary change with efforts aimed at major reform of the health system. NQF is working closely with DHHS to ensure that the work under this contract provides the greatest value and support for health care reform that will give more people access to high quality, affordable health care. This new contract will produce tangible benefits that are critical to establishing the measurement and reporting infrastructure necessary to achieve broader health reform objectives. Identifying national priorities for performance improvement, and measuring and reporting on the performance of health plans, health care providers, and practitioners against robust uniform national standards, will provide the needed foundation for achieving better patient outcomes, improved patient experience, and more affordable health care. This contract will help establish a comprehensive portfolio of quality and efficiency measures that will allow the federal government to more clearly see how and whether health care spending is achieving the best results for patients and taxpayers, strengthening a core building block of the nation's capacity to provide high-value health care. Appendix A—Report of the National Priorities Partnership National Priorities and Goals: Aligning our Efforts To Transform America's Health care (Executive Summary) The Partners & AcknowledgementsThe Partners
Donald Berwick, Co-chair President and CEO, Institute for Health Care Improvement
Margaret O'Kane, Co-chair President, National Committee for Quality Assurance
Leah Binder, Chief Executive Officer, Leapfrog Group
Christine Cassel, President and CEO, American Board of Internal Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946598 Medicine Representing the American Board of Medical Specialties
Mark Chassin, President, The Joint Commission
Carolyn Clancy, Director, Agency for Health Care Research and Quality
Janet M. Corrigan, President and CEO, National Quality Forum
Helen Darling, President, National Business Group on Health
Steven Findlay, Managing Editor, Consumer Reports Best Buy Drugs, Consumers Union
Roger Herdman, Director, National Cancer Policy Forum and Board on Health Care Services, Institute of Medicine
Julie Gerberding, Director, Centers for Disease Control and Prevention
George Isham, Medical Director and Chief Health Officer, HealthPartners Representing America's Health Insurance Plans
Peter V. Lee, Executive Director, National Health Policy, Pacific Business Group on Health
Marlene Miller, Vice Chair, Quality and Safety, Johns Hopkins Children's Center Representing the Alliance for Pediatric Quality
Mark McClellan, Director, Engelberg Center for Health Care Reform, Brookings Institution
Elizabeth Nabel, Director, National Heart, Lung, and Blood Institute, National Institutes of Health
Debra L. Ness, President, National Partnership for Women & Families
Frank Opelka, Vice-Chancellor of Clinical Affairs, Health Sciences Center, Louisiana State University Representing AQA
Alisa Ray, Executive Director, Certification Commission for Health Care Information Technology
Bernard Rosof, Chair, Physician Consortium for Performance Improvement
John Rother, Executive Vice President, Policy and Strategy, AARP
Raymond Scheppach, Executive Director, National Governors Association
Gerald Shea, Assistant to the President for External Affairs, AFL-CIO
David M. Stevens, Director, Quality Center, National Association of Community Health Centers
Linda J. Stierle, Chief Executive Officer, American Nurses Association
Barry Straube, Director and Chief Medical Officer, Centers for Medicare & Medicaid Services
Richard J. Umbdenstock, President and CEO, American Hospital Association Representing the Hospital Quality Alliance
Anthony Wisniewski, Executive Director, Health Care Policy, U.S. Chamber of Commerce
Key Staff
Karen Adams, Vice President, National Priorities
Alicia Aebersold, Vice President, Communications
Nadine Allen, Administrative Assistant
Anisha Dharshi, Program Director
Rebecca Fleischauer, Media Campaign Coordinator
Amy Stern, Senior Director, National Priorities Outreach Efforts
Wendy Vernon, Senior Program Director, National Priorities
Acknowledgements An undertaking as complex and visionary as setting National Priorities and Goals for the nation clearly requires much thought, much expertise, much knowledge, and much work. The Partners first wish to acknowledge all of the reports and research and all of the efforts of the commissions and study groups that preceded and informed our work, many of which the reader can find in the references. We humbly recognize that our work stands on the shoulders of hundreds of brilliant people, both from within and outside of the health care arena, who are working every day to improve the way we deliver care. They cannot possibly all be listed, but their contributions are more than significant. The Partners divided into a number of working groups to accomplish the work of the Partnership. We wish to thank the following experts who contributed significantly to our deliberations: Stephanie Alexander (Premier, Inc.), Carmella Bocchino (America's Health Insurance Plans), Kent Bottles (Institute for Clinical Systems Improvement), Maureen Corry (Childbirth Connection), Jay Crosson (Council of Accountable Physician Practices), Rita Munley Gallagher (American Nurses Association), Lea Anne Gardner (American College of Physicians), Paul Gitman (North Shore Long Island Jewish Health System), Trent Haywood (VHA, Inc.), Richard Hellman (American Association of Clinical Endocrinologists), Ronald A. Henrichs (American Academy of Dermatology), Michelle Johnston-Fleece (American Board of Internal Medicine), Norman Kahn (Council of Medical Specialty Societies), David Kindig (University of Wisconsin-Madison, School of Medicine), Jerod Loed (The Joint Commission), Michael Maciosek (HealthPartners Research Foundation), John Mastrojohn III (National Hospice and Palliative Care Organization), Kristen McNiff (American Society of Clinical Oncology), Diane Meier (Center To Advance Palliative Care), David Meyers (Agency for Health Care Research and Quality), Sean Morrison (National Palliative Care Research Center), Naomi Naierman (American Hospice Foundation), Harvey Neiman (American College of Radiology), Marsha Nelson (American Hospice Foundation), Lee Partridge (National Partnership for Women and Families), Robert Plovnick (American Psychiatric Association), Leif Solberg (HealthPartners Research Foundation), James Tulsky (Duke University, Center for Palliative Care), Margaret Van Amringe (The Joint Commission), and W. Douglas Weaver (American College of Cardiology). We wish to thank Michael Lauer (National Institutes of Health), Brad Perkins (Centers for Disease Control and Prevention), and Ed Sondik (Centers for Disease Control and Prevention) for their many contributions to this effort in support of their respective primary representatives on the Partnership. We also would like to acknowledge the contributions of National Quality Forum Members for their input on the determination of the priorities and their concerted efforts to improve care coordination. Special thanks go to the chairs of the National Quality Forum Member Councils, including Paul Convery (Baylor Health Care System), Louis Diamond (Thomson Reuters), David Domann (Johnson and Johnson Health Care Systems), David Gifford (Rhode Island Department of Health), Robert Haralson (American Academy of Orthopaedic Surgeons), Christine Izui (BlueCross BlueShield Association), Brian Lindberg (Consumer Coalition for Quality Health Care), and Andrew Webber (National Business Coalition on Health). Dwight McNeill, Vice President for Education and Outreach, deserves recognition for his leadership of these efforts. We wish to acknowledge the input from the following NQF member nursing associations as well as the broader nursing community: American Nurses Association (ANA), American Association of Nurse Anesthetists, American Academy of Nursing, American Association of Colleges of Nursing, Hartford Institute for Geriatric Nursing, Infusion Nurses Society, American Organization of Nurse Executives, Hospice and Palliative Nurses Association, AORN (the Association of periOperative Nurses), Academy of Medical-Surgical Nurses, American College of Nurse-Midwives, Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946599 Association of Women's Health, Obstetric and Neonatal Nurses, National Council of State Boards of Nursing, and the American Psychiatric Nurses Association. The National Quality Forum staff teams contributed tirelessly to this effort, led by Karen Adams, Vice President of National Priorities, and Alicia C. Aebersold, Vice President of Communications. We wish to recognize the hard work of Nadine Allen, Ciarra Day, Stacy Fiedler, Sands Hakimi, Sara Maddox, Jeff Patyk, Bryan Pruitt, Dan Rafter, Mariam Rauf, Leslie Reeder-Thompson, Amy Stern, and Katharine Torrey. Special thanks to Wendy Vernon and Rebecca Fleischauer, who did a remarkable job drafting and editing significant sections of the report. And to Anisha Dharshi for her support of the working groups and her meticulous proofing of the final report. We wish to thank Helen Burstin, Senior Vice President of Performance Measurement for her guidance throughout this process, her service to the working groups, and her many contributions to the content and editing of this report. Thanks also to Suzanne Benoit, Gregg Roby Burrage, Susan Guyre, and Marjorie Tucker-Pfeiffer at Rings Leighton for their patience and skill in producing the report, and to the teams at GYMR and MS&L for their support in the overall effort. Finally, the National Priorities Partnership acknowledges the generous support from the Robert Wood Johnson Foundation, whose vision for the future of America's health care gave us the freedom to imagine a destination for our nation that is both aspirational and achievable. We wish to thank Anne Weiss for her invaluable guidance and support for this initiative and Minna Jung, a communications strategist and guide of the highest caliber. Executive Summary National Priorities and Goals: Aligning Our Efforts To Transform America's Health Care The promise of our health care system is to provide all Americans with access to health care that is safe, effective, and affordable. But our system as it is today is not delivering on that promise. In recent years, we have seen remarkable efforts that demonstrate how well health care organizations can do in delivering on this promise, but these examples stand out because they are the exception, not the norm. To improve our results, we must fundamentally change the ways in which we deliver care, and this will require focused and combined efforts by patients, health care organizations, health care professionals, community members, payers, suppliers, government organizations, and other stakeholders. The National Priorities Partnership—a collaborative effort of 28 major national organizations that collectively influence every part of the heath care system—is doing just that. The Partners, convened by the National Quality Forum to address the challenges of our health care system, represent multiple stakeholders drawn from the public and private sectors. These organizations believe that it will require the work of many to achieve the transformational change that is needed for the United States to have a high-performing, high-value health care system. Recent economic events, including instability of the U.S. economy and what appears to be a wide and deep recession, make addressing our health care problems even more urgent. Many Americans have seen their retirement savings decline markedly, and millions of others have lost their homes and jobs. It is clear that the health care status quo is unsustainable. Health care spending accounts for 16 percent of the GDP (gross domestic product) and is increasing at an average annual rate of around 7 percent. Americans spend more per capita on health care than any other industrialized country, yet our results on many important indicators of quality fall significantly below those of similar nations. The time for serious and transformational change is now. As a first step, the Partners have identified a set of National Priorities and Goals to help focus performance improvement efforts on high-leverage areas—those with the most potential to result in substantial improvements in health and he alth care—and thus accelerate fundamental change in our health care delivery system. The National Priorities and Goals The National Priorities and Goals were selected because they collectively and individually address four major challenges—eliminating harm, eradicating disparities, reducing disease burden, and removing waste—that are important to every American. Six Priority areas have been identified in which the Partners believe our combined and collective efforts can have the most impact. While the Goals are aspirational, the success of many small scale improvement projects offers direction on how we might proceed to bring this to scale nationally. Engage Patients and Families in Managing Their Health and Making Decisions About Their Care We envision health care that honors each individual patient and family, offering voice, control, choice, skills in self-care, and total transparency, and that can and does adapt readily to individual and family circumstances, and differing cultures, languages and social backgrounds. The Partners will work together to ensure that: All patients will be asked for feedback on their experience of care, which health care organizations and their staff will then use to improve care. All patients will have access to tools and support systems that enable them to effectively navigate and manage their care. All patients will have access to information and assistance that enables them to make informed decisions about their treatment options. Improve the Health of the Population We envision communities that foster health and wellness as well as national, state, and local systems of care fully invested in the prevention of disease, injury, and disability—reliable, effective, and proactive in helping all people reduce the risk and burden of disease. The Partners will work together to ensure that: All Americans will receive the most effective preventive services recommended by the U.S. Preventive Services Task Force. All Americans will adopt the most important healthy lifestyle behaviors known to promote health. The health of American communities will be improved according to a national index of health. Improve the Safety and Reliability of America's Health Care System We envision a health care system that is relentless in continually reducing the risks of injury from care, aiming for “zero” harm wherever and whenever possible—a system that can promise absolutely reliable care, guaranteeing that every patient, every time, receives the benefits of care based solidly in science. We envision health care leaders and health care professionals intolerant of defects or errors in care, and who constantly seek to improve, regardless of their current levels of safety and reliability. The Partners will work together to ensure that: All health care organizations and their staff will strive to ensure a culture of safety while driving to lower the incidence of health care-induced harm, disability, or death toward zero. They will focus relentlessly on continually reducing and seeking to eliminate all Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946600 health care-associated infections (HAI) and serious adverse events. Health care-associated infections include, but are not limited to:Catheter-associated blood stream infections
Catheter-associated urinary tract infections
Surgical site infections
Ventilator-associated pneumonia
(See the Centers for Disease Control and Prevention's Infectious Diseases in Health Care Settings for a more inclusive list.) Serious adverse events include, but are not limited to:Pressure ulcers
Wrong site surgeries
Falls Air embolisms
Blood product injuries
Foreign objects retained after surgery
Adverse drug events associated with high alert medications (See the National Quality Forum's Serious Reportable Events for a more inclusive list.) All hospitals will reduce preventable and premature hospital-level mortality rates to best-in-class. All hospitals and their community partners will improve 30-day mortality rates following hospitalization for select conditions (acute myocardial infarction, heart failure, pneumonia) to best-in-class. Ensure Patients Receive Well-Coordinated Care Within and Across All Health Care Organizations, Settings, and Levels of Care We envision a health care system that guides patients and families through their health care experience, while respecting patient choice, offering physical and psychological supports, and encouraging strong relationships between patients and the health care professionals accountable for their care. The Partners will work together to ensure that: Health care organizations and their staff will continually strive to improve care by soliciting and carefully considering feedback from all patients (and their families when appropriate) regarding coordination of their care during transitions. Medication information will be clearly communicated to patients, family members, and the next health care professional and/or organization of care, and medications will be reconfirmed each time a patient experiences a transition in care. All health care organizations and their staff will work collaboratively with patients to reduce 30-day readmission rates. All health care organizations and their staff will work collaboratively with patients to reduce preventable emergency department visits. Guarantee Appropriate and Compassionate Care for Patients With Life-Limiting Illnesses We envision health care capable of promising dignity, comfort, companionship, and spiritual support to patients and families facing advanced illness or dying, fully in synchrony with all of the resources that community, friends, and family can bring to bear at the end of life. The Partners will work together to ensure that: All patients with life-limiting illnesses will have access to effective treatment for relief of suffering from symptoms such as pain, shortness of breath, weight loss, weakness, nausea, serious bowel problems, delirium, and depression. All patients with life-limiting illnesses and their families will have access to help with psychological, social, and spiritual needs. All patients with life-limiting illnesses will receive effective communication from health care professionals about their options for treatment; realistic information about their prognosis; timely, clear, and honest answers to their questions; advance directives; and a commitment not to abandon them regardless of their choices over the course of their illness. All patients with life-limiting illnesses will receive high-quality palliative care and hospice services. Eliminate Overuse While Ensuring the Delivery of Appropriate Care We envision health care that promotes better health and more affordable care by continually and safely reducing the burden of unscientific, inappropriate, and excessive care, including tests, drugs, procedures, visits, and hospital stays. The Partners will work together to ensure that: All health care organizations will continually strive to improve the delivery of appropriate patient care, and substantially and measurably reduce extraneous service(s) and/or treatment(s). The recommended areas of concentration are as follows:Inappropriate medication use, targeting:
Antibiotic use
Poly pharmacy (for multiple chronic conditions; of antipsychotics)
Unnecessary laboratory tests, targeting:
Panels ( e.g., thyroid, SMA 20)
Special testing ( e.g., Lyme Disease with regional considerations)
Unwarranted maternity care interventions, targeting:
Cesarean section
Unwarranted diagnostic procedures, targeting:
Cardiac computed tomography (noninvasive coronary angiography and coronary calcium scoring)
Lumbar spine magnetic resonance imaging prior to conservative therapy, without red flags
Uncomplicated chest/thorax computed tomography screening Bone or joint x-ray prior to conservative therapy, without red flags Chest x-ray, preoperative, on admission, or routine monitoring Endoscopy
Inappropriate non-palliative services at end of life, targeting:
Chemotherapy in the last 14 days of life
Aggressive interventional procedures
More than one emergency department visit in the last 30 days of life
Unwarranted procedures, targeting:
Spine surgery
Percutaneous transluminal
coronary angioplasty (PTCA)/Stent
Knee/hip replacement Coronary artery bypass graft (CABG)
Hysterectomy
Prostatectomy
Unnecessary consultations Preventable emergency department visits and hospitalizations, targeting:
Potentially preventable emergency department visits
Hospital admissions lasting less than 24 hours
Ambulatory care sensitive conditions
Potentially harmful preventive services with no benefit, targeting:
BRCA mutation testing for breast and ovarian cancer—female, low risk
Coronary heart disease (CHD): Screening using electrocardiography, exercise treadmill test, electron beam computed tomography—adults, low risk
Carotid artery stenosis screening—general adult population
Cervical cancer screening—female over 65, average risk and female, post-hysterectomy
Prostate cancer screening—male over 75 (From the U.S. Preventive Services Task Force D Recommendations List)vi
The Path Forward Identifying a starter set of National Priorities and Goals is a major accomplishment, but it is only the first step in what must be a more expansive and ongoing implementation aimed at achieving the performance goals. Over the next year and beyond, we hope the National Priorities and Goals will spur action and innovation, because without coordinated actions, these goals will not be reached. The Partners have agreed to work with each other and with Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946601 policymakers, health care leaders, and the community at large, to build on the framework provided in this report, and to develop actions in each of the major areas that will drive improvements needed: Performance measurement, public reporting, payment systems, research and knowledge dissemination, professional development, and system capacity. Health care reform is well under way and the current economic crisis makes solving the puzzles of quality, equity, and value not just an ideal, but an imperative. The National Priorities Partnership is encouraging everyone to join not in calling for reform, but in enacting it nationally and in local communities across the country. The mere existence of a shared sense of responsibility to meet specific goals can transform health care quality. Acting to meet them can revolutionize it. i. Catlin A, Cowan C, Heffler S, et al., National health spending in 2005: The slowdown continues. Health Aff, 2007;26(1):142-153. ii. The Commonwealth Fund, “Why Not the Best? Results from the National Scorecard on U.S. Health System Performance, 2008”. iii. Centers for Disease Control and Prevention, Infectious Disease in Health care Settings. Available at http://www.cdc.gov/ncidod/dhqp/id.htm. iv. National Quality Forum, Serious Reportable Events. Available at http://www.qualityforum.org/projects/completed/srz/fact-sheet.asp . v. “Best-in-class” may be determined by using an accepted methodology, such as Achievable Benchmarks in Care (ABC) TM . vi. Agency for Health care Research and Quality, U.S. Preventive Services Task Force (USPSTF). Available at http://www.ahrq.gov/clinic/prevenix.htm . The time for serious and transformational change is now.—The National Priorities Partnership Appendix B—Report of the Health Information Technology Expert Panel: Recommended Common Data Types and Prioritized Performance Measures for Electronic Health Care Information Systems (Executive Summary) As described in the Institute of Medicine's (IOM's) Crossing the Quality Chasm report, the quality of health care in the United States is substantially lacking in many pivotal areas. Complex care is typically uncoordinated, and important information is frequently unavailable when needed by providers. Consequently, unexplained variations in the delivery of health care and the underuse, overuse, and misuse of health care products and services pervade the system, compromising the quality of American medicine and jeopardizing the health of its recipients. Measuring quality is a first step toward improving American health care. Currently, however, collecting and reporting accurate, comparative health care performance data is complex and largely a time-consuming, manual process. Quality improvement leaders have long recognized that the widespread adoption of health information technology (HIT) will automate and simplify these processes by providing electronic information. Yet, to date, most of the electronic health information readily available for quality measurement has been administrative, claims-based data, which include only limited clinical information. Electronic health record (EHR) systems have been identified as a fundamental HIT tool for collecting high-quality electronic clinical information. The federal government and private sector leaders have increased efforts to expedite and encourage the widespread adoption of HIT by health care providers; yet significant barriers prevent the collection of needed quality information within the EHR. To compare performance nationally, all quality indicators need to measure the same concepts and speak the same language in order to consistently and reliably measure quality. Although there is no dearth of HIT standards, such standards do not exist when defining quality metrics ( e.g., the definition of diabetes may be interpreted differently by different institutions). This lack of a set of precisely defined, universally adopted clinical definitions is an obstacle to measuring and comparing quality. To address the need for standardization of health care quality measurement, the American Health Information Community (AHIC), an advisory committee to the Secretary of the Department of Health and Human Services (DHHS), established a Quality Workgroup to define how HIT can evolve to effectively support performance measurement. The workgroup recommended that an HIT expert panel be convened in order to accelerate ongoing efforts in this standardization process. The National Quality Forum (NQF) was commissioned by the Agency for Health care Research and Quality (AHRQ) to assemble and convene the expert panel and to provide a detailed account of its conclusions and recommendations. The NQF Health Information Technology Expert Panel (HITEP) members (Appendix A) were selected to ensure broad representation across the fields of quality measurement and HIT and of EHR vendors, health systems, and government organizations. With the goal of achieving automated quality measurement, the panel was charged with the following tasks: 1. Establish a priority order for the current sets of AQA Alliance—and Hospital Quality Alliance—approved measures; 2. Identify common data types from the subset of highest priority measures to be standardized for automation in EHRs and health information exchanges; and 3. Develop an overarching quality measure development framework to facilitate developing, using, and reporting on quality measures from EHR systems. To prioritize measures for immediate attention, the panel used the IOM's priority conditions. Next, the panel identified the common data types ( e.g., outpatient diagnosis, laboratory result, medication order) required by these high-priority measures. The panel then developed a set of criteria ( e.g., level of data standardization, accuracy of data source) to assess the quality of each data type as it currently exists in EHRs. Each data type received a summary quality score from these criteria. Because measures are composed of numerous data types, the panel calculated overall scores for each measure as the average quality of its individual data types. This overall measure score can be used to assess a measure's readiness for EHR implementation and to focus efforts to improve (or replace) low-scoring measures and low-scoring data types. Although the work of HITEP was to establish an initial prioritization of measures and their associated data types, further data types should be identified as additional priorities and measures are developed. A key product of the HITEP meetings, a list of common data types ( i.e., diagnoses, laboratories, medications), was submitted to the Health Information Technology Standards Panel (HITSP) for the selection of standard terminologies, or code sets ( i.e., ICD-9, LOINC, SNOMED), to express these data types. These computerized terminologies, identified in the HITSP Quality Interoperability Specification version 1.0, will support efforts for universal adoption of standardized performance measures in EHRs. Active engagement of standard development organizations by HITSP will aid in closing the gap between the quality and information technology enterprises. Additional Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946602 recommendations for EHR functionality will be submitted to the Certification Commission for Health Care Information Technology (CCHIT) for consideration in future certification criteria. HITEP identified three broad requirements to improve the quality measurement information technology enterprise and suggested recommendations to CCHIT, HITSP, measure development organizations (MDOs), NQF, EHR vendors, and the HL7 EHR Technical Committee. First, quality measures should be designed to leverage the capabilities of EHRs. MDOs and NQF should work together to reinforce the use of high-quality data types during measure development and endorsement of measures into consensus national standards. Second, standard terminologies should be identified to code the common data types used in quality measure definitions. Finally, quality measure clinical information should be accurately captured in EHRs. Quality and information technology stakeholders should work with EHR vendors to develop functional criteria for software needed to capture the common data required for quality measurement. Appendix C—Overview of the Tasks of the Contract The contract consists of twelve tasks. The first five tasks involve overall contract management and include the development of a work plan and an internal quality assurance evaluation plan. A detailed work plan for the first year of the contract activities is under way. Tasks six through twelve represent the work of the contract. A brief synopsis of each task is provided below. Task 6: Formulation of National Strategy and Priorities for Health Care Performance Measurement NQF will synthesize evidence and convene key stakeholders to make recommendations on an integrated national strategy and priorities for health care performance measurement in all applicable settings. NQF will develop a framework for measure prioritization that will take into account the cost and prevalence of the conditions and the likelihood and ease of measurement to improve the quality, value and transparency of the performance of the health care system. This framework will identify those areas where no measures currently exist and will assist key stakeholders with the prioritization of those areas in which measure development may be required. NQF is currently developing a request for proposal to select a subcontractor, and under the guidance of NQF, will develop the framework and other documents that will assist with identifying critical measurement gap areas as well as prioritize those areas through endorsement of measures, reworking existing measures and/or measure development. This prioritization framework will help guide the future work of this contract and measurement priorities. Task 7: Implementation of a Consensus Process for Endorsement of Health Care Quality Measures NQF is a voluntary consensus standards-setting organization and has an established multi-stakeholder consensus development process to endorse measures appropriate for public reporting and quality improvement. The process involves seven steps specifically designed to develop consensus among diverse stakeholders: Formation of a steering committee, calls for measures, measure evaluation, public comment, member voting, review by the consensus standards approval committee and board of directors, and appeals. This process has been streamlined to better meet the needs of the health care industry. Using this process, NQF has endorsed more than 400 quality measures for a variety of health care settings. As part of this contract with DHHS, NQF will endorse measures and measure sets. These measures will focus on specific conditions and settings as well as across episodes of care. Task 8: Maintenance of Consensus Endorsed Measures As an endorsing body, NQF is responsible for maintaining endorsement of the consensus standards. Due to evolving research and implementation issues, measure maintenance is required by NQF every three years. This established process along with annual updates of the measure specifications ensures the relevancy of the endorsed measures to current health care practice. The ability to critically examine the measures on an ongoing basis with built-in requirements for regular measure maintenance provides a critical avenue to ensure that the best measures are available for public reporting health care performance and quality improvement. Task 9: Promotion of the Electronic Health Records (EHRs) EHRs have significant potential to improve the quality, coordination, and efficiency of patient care. In the context of performance measurement and improvement, they also have a critical role to play in collecting chart level clinical patient data, which may be reliably used in performance evaluation. The objective of this task is for performance measures to have turnkey measurement specifications that allow for ready incorporation directly into EHRs; and for EHRs to capture the necessary data and possess the necessary functionality to calculate and report the performance information and to provide the associated clinical decision-support to practitioners to improve performance. To achieve these goals, there needs to be ongoing communication and collaboration between the performance measurement community and the health information technology community. NQF is planning to convene these groups to streamline the performance measurement enterprise and to promote the use of EHRs to achieve the quality improvement goals of DHHS. Task 10: Annual Report to Congress and the Secretary of the U.S. Department of Health and Human Services This report will provide an update as to the progress of the tasks associated with the contract. NQF will use a structured system for data gathering and reporting, and on a monthly basis, will gather information for inclusion in the final report. The annual report will be available on the NQF Web site for public viewing after copies are submitted to the Secretary and to Congress. Task 11: Development of a Public Web Site for Project Documents NQF will provide electronic access on a public website to all of the project's final and revised reports, standard operating procedures for consensus-building and maintenance procedures, and working documents deemed necessary as part of their consensus-building processes for any and all tasks issued under this contract. Planning is underway for Web site layout and the Web site will “go live” in June 2009. Task 12: Focused Measure Development, Harmonization, and Endorsement Efforts To Fill Critical Gaps in Performance NQF is prepared to address measurement gaps identified in Task 6 of this contract in a timely, efficient, and effective manner. NQF will respond to up to ten requests annually to fill critical gap areas through measure endorsement, measure harmonization, measure restructuring, and measure development. NQF will subcontract with established measure developers to develop new measures, including composite measures and/or re-working Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946603 existing measures to fill critical gaps in measures of health care performance. National Quality Forum, 601 Thirteenth Street, NW., Suite 500 North, Washington, DC 20005, Fax 202-783-3434, http://www.qualityforum.org. III. Secretarial Comments on the Annual Report to Congress The Secretary is pleased with the scope and vision of NQF's March 2009 annual report. The contract with this consensus-based entity, NQF, provides a unique opportunity to further enhance HHS' efforts to foster a collaborative, multi-stakeholder approach to increase the availability of national voluntary consensus standards for quality and efficiency measures to ensure broad transparency in achieving value in health care delivery. An internal multidisciplinary cross-component HHS team is working collaboratively with NQF to ensure a clear multi-year vision to ensure the most efficient and effective utilization of the HHS contract. HHS looks forward to the ongoing opportunity to collaborate with the broader health care community as part of this NQF contract to ensure a consensus-based national strategy and priority setting process for health care measurement focusing on high-quality, patient-centered, efficient health care delivery. IV. Future Steps The consensus based contract with NQF is a four year contract. During the first year of the contract, NQF shall complete deliverables for each task. HHS will task NQF with single year and multi-year projects. Formulation of National Strategy and Priorities for Health Care Performance Measurement During the first year of the HHS contract, NQF will create a framework for measurement prioritization by conducting an environmental scan of at a minimum, the 20 patient conditions that account for over 95% of costs to the Medicare program. NQF is establishing a steering committee to oversee the prioritization process. Maintenance of Consensus Endorsed Measures During the first year of the HHS contract, NQF is maintaining endorsed measures relevant to HHS-wide programs and will be maintaining consensus-based endorsed measures as developed under the priority process. Promotion of Electronic Health Records During the first year of the HHS contract, NQF is supporting the promotion of electronic health records and quality measurement incorporation as part of HHS-wide efforts. Focused Measure Development, Harmonization, and Endorsement Efforts to Fill Critical Gaps in Performance Measurement During the first year of the HHS contract NQF is supporting a variety of performance measurement efforts including, but not limited to, the areas of efficiency, harmonization, outcomes, patient safety, care coordination, ICD-10, palliative care, and nursing home quality metrics. The public is encouraged to give input through the NQF process and will be able to track the progress on work related to this contract on the NQF Web site located at: http://www.qualityforum.org/projects/ongoing/hhs/ . V. Collection of Information Requirements This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35). Dated: September 3, 2009. Kathleen Sebelius, Secretary, Department of Health and Human Services. [FR Doc. E9-21783 Filed 9-4-09; 4:15 pm] BILLING CODE PInstrument | Number of respondents | Number of responses per respondent | Average burden hours per response | Total burden hours |
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Rule | 20 | 1 | 26 | 520 |
(Catalogue of Federal Domestic Assistance Program Nos. 93.864, Population Research; 93.865, Research for Mothers and Children; 93.929, Center for Medical Rehabilitation Research; 93.209, Contraception and Infertility Loan Repayment Program, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21771 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.864, Population Research; 93.865, Research for Mothers and Children; 93.929, Center for Medical Rehabilitation Research; 93.209, Contraception and Infertility Loan Repayment Program, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21776 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.172, Human Genome Research, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21773 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.866, Aging Research, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21789 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, Microbiology and Infectious Diseases Research, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21791 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.866, Aging Research, National Institutes of Health, HHS)
Dated: September 1, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21790 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.173, Biological Research Related to Deafness and Communicative Disorders, National Institutes of Health, HHS)
Dated: August 28, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21788 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-P(Catalogue of Federal Domestic Assistance Program Nos. 93.306, Comparative Medicine; 93.333, Clinical Research, 93.306, 93.333, 93.337, 93.393-93.396, 93.837-93.844, 93.846-93.878, 93.892, 93.893, National Institutes of Health, HHS)
Dated: August 31, 2009. Jennifer Spaeth, Director, Office of Federal Advisory Committee Policy. [FR Doc. E9-21780 Filed 9-9-09; 8:45 am] BILLING CODE 4140-01-MType of respondent | Form name/form number | Number of respondents | Number of responses per respondent | Total number of responses | Avg. burden per response (in hours) | Total annual burden (in hours) | Avg. hourly wage rate* | Total annual respondent cost |
---|---|---|---|---|---|---|---|---|
State, Local or Tribal Government | FEMA Form 146-0/MNUSS Data Worksheet | 460 | 1 | 460 | 2.5 | 1,150 | $47.75 | $54,913 |
Total | 460 | 1,150 | 54,913 | |||||
* Note: The “Avg. Hourly Wage Rate” for each respondent includes a 1.4 multiplier to reflect a fully-loaded wage rate. |
1. Approval of Minutes.
2. Chairman's Report.
3. Executive Director's Report.
4. Financial Budget.
5. Public Input.
It is anticipated that about thirty people will be able to attend the session in addition to the Commission members. Interested persons may make oral or written presentations to the Commission or file written statements. Such requests should be made prior to the meeting to:Jan H. Reitsma, Executive Director, John H. Chafee, Blackstone River Valley National Heritage Corridor Commission, One Depot Square, Woonsocket, RI 02895, Tel.: (401) 762-0250.
Further information concerning this meeting may be obtained from Jan H. Reitsma, Executive Director of the Commission at the aforementioned address. Jan H. Reitsma, Executive Director, BRVNHCC. [FR Doc. E9-18936 Filed 9-9-09; 8:45 am] BILLING CODE 4310-RK-P—Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
—Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
—Enhance the quality, utility, and clarity of the information to be collected; and
—Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Overview of This Information Collection (1) Type of Information Collection: Extension of a currently approved collection. (2) Title of the Form/Collection: Annual Reporting Requirement for Manufacturers of Listed Chemicals. (3) Agency form number, if any and the applicable component of the Department sponsoring the collection: Form number: None. Office of Diversion Control, Drug Enforcement Administration, U.S. Department of Justice. (4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Business or other for-profit. Other: None. Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946619 Abstract: This information collection permits the Drug Enforcement Administration to monitor the volume and availability of domestically manufactured listed chemicals. These listed chemicals may be subject to diversion for the illicit production of controlled substances. This information collection is required by law. (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: It is estimated that there are one hundred (100) total respondents for this information collection. One hundred (100) persons respond annually at 4 hours per response. (6) An estimate of the total public burden (in hours) associated with the collection: It is estimated that there are 400 annual burden hours associated with this collection. If additional information is required contact: Lynn Bryant, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Patrick Henry Building, Suite 1600, 601 D Street, NW., Washington, DC 20530. Dated: September 3, 2009. Lynn Bryant, Department Clearance Officer, PRA, U.S. Department of Justice. [FR Doc. E9-21781 Filed 9-9-09; 8:45 am] BILLING CODE 4410-09-P1. Applicant: Daniel P. Costa, Department of Ecology and Evolutionary Biology, University of California Santa Cruz, Long Marine Lab, 100 Shaffer Road, Santa Cruz, CA 95060.
Activity for Which Permit Is Requested Take and Enter Antarctic Specially Protected Areas. The applicant plans to enter Cape Crozier (ASPA 124), Beaufort Island (ASPA 105), New College Valley, Caughley Beach, Cape Bird (ASPA 116), Cape Royds (ASPA 121), Northwest White Island (ASPA 137), Botany Bay (ASPA 154), Cape Evans (ASPA 155), Backdoor Bay, Cape Royds (ASPA 157), Terra Nova Bay (ASPA 161), and Edmonson Point, Wood Bay (ASPA 165) to locate seals. Up to 40 Weddell, Crabeater, Ross, Leopard and Elephant seal pups will be captured annually and will be instrumented with Sea Mammal Research Units (SMRU) Conductivity-Temperature-Depth Satellite Relay Data Logger (CTD-SRDL) tags to monitor overwinter dive behaviors and oceanography. The tags will be applied with epoxy. In addition, the seals will be flipper tagged, dye marked, blood, tissue and whisker samples collected, weighed, length and girth measured, and body condition determined by morphometric measurements. Location Cape Crozier (ASPA 124), Beaufort Island (ASPA 105), New College Valley, Caughley Beach, Cape Bird (ASPA 116), Cape Royds (ASPA 121), Northwest White Island (ASPA 137), Botany Bay (ASPA 154), Cape Evans (ASPA 155), Backdoor Bay, Cape Royds (ASPA 157), Terra Nova Bay (ASPA 161), and Edmonson Point, Wood Bay (ASPA 165). Dates January 1, 2010 to December 31, 2012. Nadene G. Kennedy, Permit Officer, Office of Polar Programs. [FR Doc. E9-21795 Filed 9-9-09; 8:45 am] BILLING CODE 7555-01-PDay | Event/activity |
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0 | Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with instructions for access requests. |
10 | Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) and/or Safeguards Information (SGI) with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaningfully in an adjudicatory proceeding; demonstrating that access should be granted ( e.g., showing technical competence for access to SGI); and, for SGI, including application fee for fingerprint/background check. |
20 | Nuclear Regulatory Commission (NRC) staff informs the requester of the staff's determination whether the request for access provides a reasonable basis to believe standing can be established and shows (1) need for SUNSI or (2) need to know for SGI. (For SUNSI, NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents). If NRC staff makes the finding of need to know for SGI and likelihood of standing, NRC staff begins background check (including fingerprinting for a criminal history records check), information processing (preparation of redactions or review of redacted documents), and readiness inspections. |
25 | If NRC staff finds no “need,” no “need to know,” or no likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff's denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds “need” for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff's grant of access. |
30 | Deadline for NRC staff reply to motions to reverse NRC staff determination(s). |
40 | (Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI. |
60 | Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI and/or SGI (+25 Answers to petition for intervention; +7 petitioner/requestor reply). |
190 | (Receipt +180) If NRC staff finds standing, need to know for SGI, and trustworthiness and reliability, deadline for NRC staff to file motion for Protective Order and draft Non-disclosure Affidavit (or to make a determination that the proposed recipient of SGI is not trustworthy or reliable). Note: Before the Office of Administration makes an adverse determination regarding access to SGI, the proposed recipient must be provided an opportunity to correct or explain information. |
205 | Deadline for petitioner to seek reversal of a final adverse NRC staff determination either before the presiding officer or another designated officer. |
A | If access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff. |
A + 3 | Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI and/or SGI consistent with decision issuing the protective order. |
A + 28 | Deadline for submission of contentions whose development depends upon access to SUNSI and/or SGI. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI or SGI contentions by that later deadline. |
A + 53 | (Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI and/or SGI. |
A + 60 | (Answer receipt +7) Petitioner/Intervenor reply to answers. |
>A + 60 | Decision on contention admission. |
NRG South Texas LP (NRG South Texas) Units:
South Texas Project (STP), Units 1 and 2, Facility Operating License Nos. NPF-76 and NPF-80.
Exelon Generation Company, LLC (Exelon Generation Company) Units:
Braidwood Station, Units 1 and 2, Facility Operating License Nos. NPF-72 and NPF-77; Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946631
Byron Station, Units 1 and 2, Facility Operating License Nos. NPF-37 and NPF-66;
Clinton Power Station, Facility Operating License No. NPF-62;
Dresden Nuclear Power Station, Units 1, 2 and 3, Facility Operating License No. DPR-2 and Renewed Facility Operating License Nos. DPR-19 and DPR-25;
LaSalle County Station, Units 1 and 2, Facility Operating License Nos. NPF-11 and NPF-18;
Limerick Generating Station, Units 1 and 2, Facility Operating License Nos. NPF-39 and NPF-85;
Oyster Creek Generating Station, Facility Operating License No. DPR-16;
Peach Bottom Atomic Power Station, Units 1, 2 and 3, Facility Operating License No. DPR-12 and Renewed Facility Operating License Nos. DPR-44 and DPR-56;
Quad Cities Nuclear Power Station, Units 1 and 2, Renewed Facility Operating License Nos. DPR-29 and DPR-30;
Salem Generating Station, Units 1 and 2, Facility Operating License Nos. DPR-70 and DPR-75;
Three Mile Island Nuclear Station, Unit 1, Facility Operating License No. DPR-50; and
Zion Nuclear Power Station, Units 1 and 2, Facility Operating License Nos. DPR-39 and DPR-48.
The application sought NRC's consent to the indirect transfer of control of the NRC licenses for NRG South Texas' 44 percent ownership interest in STP, Units 1 and 2, and to the extent required, the Exelon Generation Company facilities' licenses as described in Exelon's January 29, 2009, application and supplemental letter dated March 18, 2009. As described in the application, the indirect transfer of STP would have occurred in connection with Exelon's plan to acquire control of NRG South Texas' parent, NRG Energy, Inc. (NRG), through a tender offer. A Notice of Hearing has not been issued subject to the application. This action relates to application for indirect transfer of control of licenses of STP, Units 1 and 2. The action related to Exelon's application for indirect transfer of Exelon Generation Company's units listed above is addressed in a separate action. The Commission had previously issued Notice of Consideration of Approval of Application regarding proposed merger of NRG Energy, Inc. and Exelon Corporation published in the Federal Register on July 9, 2009 (74 FR 32967). However, by letter dated July 30, 2009, the applicant withdrew its application. For further details with respect to this action, see the application dated January 29, 2009, as supplemented by letter dated March 18, 2009, the licensee's letter dated July 30, 2009, which withdrew the application, and the Commission's separate action for Exelon Generation Company's units, which is being published in the Federal Register in parallel with this action. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site, http://www.nrc.gov/reading-rm/adams.html . Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC PDR Reference staff by telephone at 1-800-397-4209, or 301-415-4737 or by e-mail to pdr.resource@nrc.gov . Dated at Rockville, Maryland, this 1st day of September 2009. For the Nuclear Regulatory Commission. Mohan C. Thadani, Senior Project Manager, Plant Licensing Branch IV, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation. [FR Doc. E9-21857 Filed 9-9-09; 8:45 am] BILLING CODE 7590-01-P—Route 2,500 shares to DBK @ $19.99, execute 500 shares leaving 2,000 shares.
—Execute 500 shares in NYBX @ $19.99 leaving 1,500 shares.
—Route 1,500 shares to DBK @ $20.00, execute 1,100 shares leaving 400 shares.
—Execute 400 shares in NYBX @ $20.00 thereby exhausting the order.
As the example shows, orders will first attempt to execute with contra side liquidity in the DBK when the price is equal to or better than the price in the NYBX. When the NYBX facility has available contra side liquidity at a price within the NBBO and at a price that is better than all liquidity in the DBK, or when there is no available contra side liquidity in the DBK, the order will attempt to execute in the NYBX facility at that price. Example No. 1A: Using the same scenario in Example No. 1 above, a buy limit order of 2,500 shares @ $20.00, with an unrestricted MTV of 2,500 shares, enters the NYBX facility. The NYBX facility routes and executes the order in the following sequence:—Route 2,500 shares to DBK @ $19.99, execute 500 shares leaving 2,000 shares.
—Upon presentation of the order in the DBK, the DMM Capital Commitment Schedule algorithm (“CCS”) determines to execute 1,000 additional shares @ $19.99 leaving 1,000 shares.
—Execute 500 shares in NYBX @ $19.99 leaving 500 shares.
—Route 500 shares to DBK @ $20.00, execute 500 shares in DBK thereby exhausting the order.
As the example shows, when NYBX orders are routed to the DBK, such NYBX orders will have an opportunity to attempt to execute with CCS interest. If a residual NYBX order remains after partial execution in the DBK at a particular price point, the residual order will be sent back to the NYBX facility for further execution in the NYBX facility, the DBK or with protected quotations of automated trading centers. Thus, if the DBK acquires additional contra side liquidity, displayed or non-displayed, that is eligible for execution against the NYBX order, the NYBX facility will route the residual order to the DBK. This NYBX residual order, for all intents and purposes, appears as a new order to the DBK, and such NYBX order will have another opportunity to attempt to execute with available contra side liquidity in the DBK and with available contra side CCS interest. Therefore, each time an NYBX order, original or residual, is routed to the DBK at a particular price point, such order will have an opportunity to attempt to execute with displayed and non-displayed contra side liquidity in the DBK and with available contra side CCS interest. Example No. 2: A buy limit order for 3,000 shares @ $20.00, with an unrestricted MTV of 3,000 shares, enters the NYBX. The MTV is not met because the aggregate of available contra side liquidity in the DBK and in the NYBX only adds up to 2,600 shares (1,000 @ $19.99 and 1,600 at $20.00). Because there will be no trade through at the PHLX in this example, the 400 PHLX shares will not be counted in the MTV calculation. Therefore, the MTV is not met and because the MTV is not met, there will be no execution of the NYBX order. Example No. 3: A buy limit order for 3,500 shares @ $20.01, with an unrestricted MTV of 3,500 shares, enters the NYBX facility. In this example, the MTV is met by the aggregate liquidity at $19.99, $20.00 and $20.01 on the DBK, the NYBX and the PHLX (1000 + 2000 + 800 = 3,800). The NYBX routes and executes the order in the following sequence:—Route 400 shares to PHLX @ $20.00, execute 400 shares leaving 3,100 shares.
—Route 3,100 shares to DBK @ $19.99, execute 500 shares leaving 2,600 shares.
—Execute 500 shares in NYBX @ $19.99 leaving 2,100 shares.
—Route 2,100 shares to DBK @ $20.00, execute 1,100 shares leaving 1,000 shares.
—Execute 500 shares in NYBX @ $20.00 leaving 500 shares.
—Route 500 shares to DBK @ $20.01, execute 300 shares leaving 200 shares.
—Execute 200 shares in NYBX @ $20.01 thereby exhausting the order.
The liquidity in the PHLX is included in the MTV calculation because, as the example demonstrates, the execution of the order may potentially trade through the protected quotations. The NYBX facility is programmed to route the applicable volume to automated trading centers whenever one or more successive price points of NYBX and DBK contra side liquidity, included in the MTV calculation, are inferior to prices of protected quotations in the automated trading center(s), thereby avoiding a potential trade through of any protected quotations. The NYBX snapshot of the entire market enables the NYBX facility to determine if there is a potential trade through of a protected quotation, and if so, the facility immediately routes the applicable shares to the automated trading center(s) in compliance with Regulation NMS. This is done even if the price of the shares routed to the automated trading center(s) is inferior to other successive price points in the NYBX facility and in the DBK. As discussed above, the facility will not wait for price improvement opportunities when routing out shares in compliance with Regulation NMS as any routing delay may cause an inadvertent trade through of protected quotations. In Example No. 3 the NYBX routed 400 shares to the PHLX at $20.00 to comply with Regulation NMS. This routing to PHLX occurred almost simultaneously with the routing of 3,100 shares to DBK at $19.99, executing 500 shares and leaving 2,600 shares. As the order sequencing in Example No. 3 demonstrates, the remaining 2,600 shares then executes with all better priced contra side liquidity in the DBK and the NYBX facility. This example also demonstrates how the NYBX facility attempts to execute available contra side liquidity at each successive price point in the DBK and in the NYBX facility ( i.e., “walking the book”). Example No. 3A: In the same example as Example No. 3 above, if the MTV calculation was “restricted” to include only the available contra side liquidity in the DBK and the NYBX and not contra side liquidity in the PHLX (1000 + 1600 + 800 = 3,400), the MTV would not be met and the order would not be executed. Example No. 4: A buy limit order of 4,500 shares @ $20.05, with no MTV, enters the NYBX facility. The NYBX routes and executes the order in the following sequence:—Route 400 shares to PHLX @ $20.00, execute 400 shares leaving 4,100 shares.
—Route 4,100 shares to DBK @ $19.99, execute 500 shares leaving 3,600 shares.
—Execute 500 shares in NYBX @ $19.99 leaving 3,100 shares.
—Route 3,100 shares to DBK @ $20.00, execute 1,100 shares leaving 2,000 shares.
—Execute 500 shares in NYBX @ $20.00 leaving 1,500 shares.
—Route 1,500 shares to DBK @ $20.01, execute 300 shares leaving 1,200 shares.
—Execute 500 shares in NYBX @ $20.01 leaving 700 shares.
—Route 700 shares to DBK @ $20.04, execute 0 leaving 700 shares.
—Execute 500 shares in NYBX @ $20.04 leaving 200 shares.
—Route 200 shares to DBK @ $20.05, execute 200 shares thereby exhausting the order.
As explained earlier in Example No. 3, when there is a potential trade through of a protected quotation, the facility immediately routes the applicable volume to the automated trading center(s) in compliance with Regulation NMS. In Example No. 4 the NYBX routed 400 shares to the PHLX at $20.00 to comply with Regulation NMS. This routing to PHLX occurred almost simultaneously with the routing of 4,100 shares to DBK at $19.99, executing 500 shares and leaving 3,600 shares. The facility does not provide price improvement to the shares that are routed to the automated trading center(s) as latency and interaction with hidden CCS interest could compromise the facility's ability to comply with Regulation NMS. Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946635 As Example No. 4 demonstrates, provided the MTV of the order is met, the NYBX facility is programmed to route orders to the DBK and attempt to execute with available contra side liquidity in the DBK even if an order's limit price is not matched in the DBK's displayed or non-displayed contra side liquidity. Also, provided the MTV is met, the NYBX facility will route orders to the DBK and attempt to execute with better priced available contra side liquidity in the DBK, which will include an opportunity to execute with CCS interest. This occurs in Example No. 4 when the NYBX facility routes 700 shares at $20.04 to the DBK even though the DBK does not have contra side liquidity priced at $20.04, but has such liquidity priced at $20.05. When the facility routes 700 shares at $20.04 to the DBK, the order has an opportunity to execute with CCS interest, but no shares are executed at that price. Then the 700 shares are sent back to the NYBX facility to attempt to execute against the 500 shares in the NYBX at $20.04. The 700 shares then execute against the 500 shares at $20.04 leaving 200 shares. Because the DBK has 300 shares of contra side liquidity at $20.05, the NYBX facility then sends the residual order consisting of 200 shares at $20.05 back to the DBK where it executes against the 300 shares at $20.05 thereby exhausting the NYBX order and leaving 100 shares at $20.05 in the DBK. As the example also demonstrates, the NYBX facility is programmed to attempt to execute orders at each successive price point available in the NYBX facility and in the DBK. The proposed amendment adds definitions of terms in subsection (b)(2) (Definitions), which are defined in Regulation NMS and corrects the numbering of provisions in subsection (h) (Limitations on the Use of the New York Block Exchange). The proposed amendment also clarifies the manner in which the NYBX orders are processed and how such orders interact with the DBK, including interaction with available contra side CCS interest. Additionally, the proposed amendment clarifies that the MTV calculation does not include the protected quotations in the automated trading centers unless the execution of the NYBX order may potentially trade through a protected quotation. 2. Statutory Basis The basis under the Act 11 for this proposed rule change is the requirement under Section 6(b)(5) 12 that an Exchange have rules that are designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest. The proposed amendment aligns the Rule with the technology and functionality of the NYBX facility in relation to an NYBX order's ability to attempt to execute with contra side liquidity in the DBK and with the DMM's CCS interest. The amendment also clarifies that the unrestricted MTV calculation will not include the available contra side liquidity in the automated trading centers unless the execution of the NYBX order may otherwise trade through a protected quotation in the NYBX facility or in the DBK. Additionally, the amendment clarifies how NYBX orders are processed and at what price point orders are routed from the NYBX facility to the DBK and attempt to execute in the DBK. The proposed amendment adds definitions of terms in subsection (b)(2) (Definitions), which are defined in Regulation NMS. Therefore, the Exchange believes that because the proposed amendment will clarify how the NYBX facility operates, investors and the public interest will be best served as the amendment will provide transparency of the facility's functionality for all users. 11 15 U.S.C. 78a et seq. 12 15 U.S.C. 78f(b)(5). B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative prior to 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act 13 and Rule 19b-4(f)(6) thereunder. 14 13 15 U.S.C. 78s(b)(3)(A). 14 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) requires a self-regulatory organization to give the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change, or such shorter time as designated by the Commission. NYSE has satisfied this requirement. A proposed rule change filed under Rule 19b-4(f)(6) 15 normally does not become operative prior to 30 days after the date of the filing. However, pursuant to Rule 19b-4(f)(6)(iii), 16 the Commission may designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative immediately upon filing. The Exchange believes the waiver of this period will allow it to align Rule 1600 with the technology and functionality of the NYBX facility as it currently operates, providing greater transparency and certainty to market participants. The Exchange also asserts that waiving the operative delay will enable its customers to better manage their order flow and make strategic trading decisions. 15 17 CFR 240.19b-4(f)(6). 16 17 CFR 240.19b-4(f)(6)(iii). The Commission has determined that waiving the 30-day operative delay of the Exchange's proposal is consistent with the protection of investors and the public interest because such waiver will allow the Exchange to promptly conform its rules to manner in which the NYBX Facility currently operates. 17 Therefore, the Commission designates the proposal as operative upon filing. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. 18 17 For purposes only of waiving the 30-day operative delay, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). 18 For purposes of calculating the 60-day period within which the Commission may summarily abrogate the proposed rule change under Section 19(b)(3)(C) of the Act, the Commission considers the period to commence on September 1, 2009, the date on which NYSE submitted Amendment No. 1. See 15 U.S.C. 78s(b)(3)(C). IV. Solicitation of Comments Interested persons are invited to submit written data, views, and Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946636 arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments • Use the Commission's Internet comment form ( http://www.sec.gov/rules/sro.shtml ); or • Send an e-mail to rule-comments@sec.gov. Please include File Number SR-NYSE-2009-82 on the subject line. Paper Comments • Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.All submissions should refer to File Number SR-NYSE-2009-82. This file number should be included on the subject line if e-mail is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site ( http://www.sec.gov/rules/sro.shtml ). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Section, 100 F Street, NE., Washington, DC 20549-1090. Copies of the filing will also be available for inspection and copying at the NYSE's principal office and on its Internet Web site at http://www.nyse.com. All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-NYSE-2009-82 and should be submitted on or before October 1, 2009.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority. 19 19 17 CFR 200.30-3(a)(12). Florence E. Harmon, Deputy Secretary. [FR Doc. E9-21711 Filed 9-9-09; 8:45 am] BILLING CODE 8010-01-PGenerator's Name & Address
Manifest Document Number
MCR 851 § 8(A) (as amended effective June 12, 2008). (c) The transporter must obtain a license from MDEP and meet additional conditions including maintaining (i) at least $500,000 in liability insurance, and (ii) “a plan for the cleanup of discharges” in the possession of the vehicle operator. MCR 853 sections 4(A)(1), 5(B)(9), 8(B) & (F). In its application for an administrative preemption determination, the Electronic Industries Alliance (Alliance) contends that MDEP's classification, shipping paper, and marking or labeling requirements are not “substantively the same as” requirements in the HMR, and that both these requirements and the additional requirements on transporters “cause confusion, interfere with the flow of trade, and otherwise serve as an obstacle to the purposes of the Federal hazmat law.” On May 6, 2008, PHMSA published a notice in the Federal Register inviting interested persons to submit comments on the Alliance's application. 73 FR 25079. In response to this notice, comments were submitted by MDEP, environmental agencies of eight States (Connecticut, Illinois, Maryland, Massachusetts, New Hampshire, North Carolina, South Carolina, and Washington), the New Hampshire Attorney General, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), Ecomaine, the Electronics TakeBack Coalition, the Maine Pulp and Paper Association (MPPA), the Natural Resources Council of Maine, and the Utility Solid Waste Activities Group (USWAG). The Alliance and MDEP submitted rebuttal comments. B. Federal Regulation of CRTs and CRT Glass A CRT is “a vacuum tube, composed primarily of glass, which is the visual or video display component of an electronic device.” 40 CFR 260.10. Examples are televisions, computer monitors, medical, automotive, and oscilloscope devices. CRTs are built of a specialized glass that often contains lead. Under regulations of the U.S. Environmental Protection Agency (EPA), solid waste containing lead is considered toxic if “the extract from a representative sample of the waste” contains greater than 5 mg lead per liter, “using the Toxicity Characteristic Leaching Procedure, test Method 1311 in `Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,' EPA Publication SW-846.” 40 CFR 261.24. In general, black and white monitors (or “monochrome CRTs”) do not have sufficient lead to meet the toxicity characteristic for a hazardous waste under EPA's regulations, but the more significant quantities of lead used to make color cathode ray tubes exceed the “toxicity characteristic regulatory level of 5 milligrams per liter that is used to classify lead-containing wastes as hazardous (40 CFR 261.24(b)).” EPA Notice of Proposed Rulemaking (NPRM), “Modification of the Hazardous Waste Program; Cathode Ray Tubes,” 67 FR 40508, 40510 (June 12, 2002). A note to MCR 850 section 3(A)(13)(a)(ii) states that, according to information in a 1996 Tufts University masters thesis, “CRTs are believed to represent 75% of the lead in the solid waste stream. Lead, which is used to shield harmful radiation in the CRT, comprises more than 10 percent of a CRT's mass.” Until recently, some used CRTs were potentially subject to regulation as EPA hazardous wastes unless covered by the exclusions for household waste and conditionally exempt small quantity generators (a person who generates less than 100 kg of non “acute” hazardous waste in a calendar month). See 40 CFR 261.4(b)(1), 261.5, as discussed at 67 FR at 40511 and in EPA's final rule, 71 FR 42928, 42929 (July 28, 2006). Accordingly, used CRTs not covered by the exclusions for household waste and conditionally exempt small quantity generators might be subject to regulation in transportation as a hazardous material because they were a hazardous waste “subject to the Hazardous Waste Manifest Requirements of the U.S. Environmental Protection Agency specified in 40 CFR part 262.” See 49 Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946646 CFR 171.8 (definitions of “hazardous material” and “hazardous waste”). However, in its July 28, 2006 final rule, which became effective January 29, 2007, EPA addressed the “mounting volumes of outdated computer and electronics equipment” and the concern that there has been “a barrier to CRT recycling created by some existing hazardous waste management regulations.” 71 FR at 42931. First, EPA explained in the preamble to that final rule that its hazardous waste management regulations, including the Uniform Hazardous Waste Manifest requirements in 40 CFR part 262, do not apply to unused CRTs, because “EPA does not regulate unused chemical products that are reclaimed,” and that the existing exemptions from Federal hazardous waste management requirements for household waste and small quantity generators remained applicable. 71 FR at 42929. Second, EPA adopted a “conditional exclusion” from its waste management regulations for the following categories of CRTs and CRT glass because they are not “solid wastes”: 3 3 This exclusion does not apply to CRT materials that are sent for disposal or that are speculatively accumulated. 40 CFR 261.1(c)(8). Additional notification and consent requirements apply when used, intact CRTs or broken CRTs are exported for reuse or recycling. 40 CFR 261.39(a)(5), 261.40, 261.41. See 71 FR at 42948-49. (a) Used intact CRTs sent for recycling (40 CFR 261.4(a)(22)(i)); (b) Broken CRTs sent for recycling that are transported in a container (including a vehicle) constructed, filled, and closed to minimize releases of CRT glass to the environment and labeled “Do not mix with other glass materials” and one of the following: “Used cathode ray tube(s)-contains leaded glass” or “Leaded glass from televisions or computers” (40 CFR 261.4(a)(22)(iii), 261.39(a)(1)-(4)). See 71 FR at 42929, 42948. (c) CRT glass destined for recycling at a CRT glass manufacturer or a lead smelter after processing (40 CFR 261.4(a)(22)(iv), 261.39(c)). See 71 FR at 42829, 42948. Accordingly, since January 29, 2007, used CRTs, broken CRTs, and CRT glass that are not subject to EPA's hazardous waste management regulations, including the Uniform Hazardous Waste Manifest requirements in 40 CFR part 262, are not hazardous materials for purposes of the HMR. As the Alliance notes, these items are not hazardous substances, marine pollutants, elevated temperature materials, designated as hazardous in the Hazardous Materials Table (49 CFR 172.101), or materials that meet “the defining criteria for hazard classes” in the HMR. See 49 CFR 171.8 (definition of a “hazardous material”). 4 The primary risk during transportation of used CRTs appears to be “the risk of injury to personnel [from] breakage of the items,” according to an exchange of emails among MDEP staff, provided with MPPA's comments. 4 USWAG also states that the HMR do not classify the lead in CRTs as a hazardous material but notes that the HMR do “classify several other forms of lead as hazardous materials including specific lead compounds ( e.g., lead azide, lead cyanide and lead nitrate), other lead compounds when soluble in water, and lead having a diameter less than 100 micrometers. See 49 CFR 172.101 Table & Appendix A, Table 1.” C. Related Proceedings The Alliance participated in EPA's CRT rulemaking. In its comments on the June 12, 2002 NPRM (which have been placed in the public docket of this preemption determination), the Alliance endorsed and proposed expanding “the proposed conditional exclusions for” used CRTs, broken CRTs, and CRT glass. Under the heading “Transportation Issues,” the Alliance stated that it:believes that the benefits of the proposed rules for * * * CRTs * * * can be enhanced significantly by noting that, once finalized, they will preempt more stringent state rules regarding transportation of these items. Although the RCRA regulatory scheme generally allows state programs to be more stringent than the federal program, EPA and the courts have long recognized that there is an exception in the case of transportation-related requirements ( e.g., manifesting, packaging, labeling, and transportation registration requirements), unless preemption is explicitly waived by the federal government. In the present case, preemption would be an important step forward in ensuring uniform nationwide rules that could facilitate development of a recycling infrastructure.
In the preamble to the July 28, 2006 final rule, EPA stated that “authorized states” which “administer and enforce a hazardous waste program within the state in lieu of the federal program” under 42 U.S.C. 6926 “are not required to adopt federal regulations * * * that are considered less stringent than previous federal regulations.” 71 FR at 42943. Accordingly, “States currently regulating CRTs as hazardous waste, including under the universal waste rule, would not have to amend their programs, since their programs are more stringent than the federal requirements.” Id. at 42944. EPA discussed scenarios “when used CRTs or processed CRT glass [are] transported to and from states with different regulations governing these wastes” and stated that, “for the portion of the trip through * * * states that do not consider the waste to be excluded, the transporter must have a manifest, except as provided by the universal waste rules, and must move the waste in compliance with 40 CFR Part 263.” Id. In a separate document in the public docket responding to comments, EPA stated that issues of preemption of state transportation requirements were outside the scope of the EPA rulemaking. On October 25, 2006, the Alliance petitioned the United States Court of Appeals for the District of Columbia for review of EPA's July 28, 2006 final rule. Electronic Industries Alliance v. U.S. Environmental Protection Agency, Case No. 06-1359. In its Preliminary and Non-Binding Statement of Issues (which has been placed in the public docket), the Alliance stated that the issues to be raised in the judicial review proceeding include “[w]hether EPA's determination on transport of CRTs and CRT glass within and between states was contrary to the Hazardous Materials Transportation Act (`HMTA') and its implementing regulations, which provide that federal requirements for transport of hazardous materials, including hazardous wastes, generally preempt state requirements that differ.” On May 18, 2007, that Court granted the Alliance's motion to hold the petition for review in abeyance pending further order of the Court and directed the parties “to file motions to govern future proceedings in this case within 30 days of the completion of the Department of Transportation's proceedings” on the Alliance's application for a preemption determination. II. Federal Preemption PHMSA's May 6, 2008 notice discussed the express preemption provisions in 49 U.S.C. 5125 that are relevant to this proceeding. 73 FR at 25081-82. As amended by Section 1711(b) of the Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2320), 49 U.S.C. 5125(a) provides that—in the absence of a waiver of preemption by DOT under § 5125(e) or specific authorization in another Federal law—a requirement of a State, political subdivision of a State, or Indian tribe is preempted if (1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or (2) the requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946647 issued by the Secretary of Homeland Security. These two paragraphs set forth the “dual compliance” and “obstacle” criteria that PHMSA had applied in issuing inconsistency rulings (IRs) prior to 1990, under the original preemption provision in the Hazardous Materials Transportation Act (HMTA). Public Law 93-633 section 112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria are based on U.S. Supreme Court decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978). In addition, subsection (b)(1) of 49 U.S.C. 5125, as slightly revised in 2005, 5 provides that a non-Federal requirement concerning any of the following subjects is preempted—unless authorized by another Federal law or DOT grants a waiver of preemption—when the non-Federal requirement is not “substantively the same as” a provision of Federal hazardous material transportation law, a regulation prescribed under that law, or a hazardous materials security regulation or directive issued by the Secretary of Homeland Security: 5 These revisions are contained in the Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, which is Title VII of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1891 (Aug. 10, 2005). (A) the designation, description, and classification of hazardous material. (B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material. (C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents. (D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material. (E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing of a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material.To be “substantively the same,” the non-Federal requirement must conform “in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted.” 49 CFR 107.202(d).
The 2002 and 2005 amendments to the preemption provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view that a single body of uniform Federal regulations promotes safety (including security) in the transportation of hazardous materials. More than thirty years ago, when it was considering the HMTA, the Senate Commerce Committee “endorse[d] the principle of preemption in order to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation.” S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). When Congress expanded the preemption provisions in 1990, it specifically found that: (3) many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements, (4) because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable, (5) in order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable.Pub. L. 101-615 section 2, 104 Stat. 3244. A United States Court of Appeals has found that uniformity was the “linchpin” in the design of the Federal laws governing the transportation of hazardous materials. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).
III. Preemption Determinations Under 49 U.S.C. 5125(d)(1), any person (including a State, political subdivision of a State, or Indian tribe) directly affected by a requirement of a State, political subdivision or tribe may apply to the Secretary of Transportation for a determination whether the requirement is preempted. The Secretary of Transportation has delegated authority to PHMSA to make determinations of preemption, except for those that concern highway routing (which have been delegated to FMCSA). 49 CFR 1.53(b). Section 5125(d)(1) requires notice of an application for a preemption determination to be published in the Federal Register. Following the receipt and consideration of written comments, PHMSA publishes its determination in the Federal Register. See 49 CFR 107.209. A short period of time is allowed for filing petitions for reconsideration. 49 CFR 107.211. A petition for judicial review of a final preemption determination must be filed in the United States Court of Appeals for the District of Columbia or in the Court of Appeals for the United States for the circuit in which the petitioner resides or has its principal place of business, within 60 days after the determination becomes final. 49 U.S.C. 5127(a). Preemption determinations do not address issues of preemption arising under the Commerce Clause, the Fifth Amendment or other provisions of the Constitution, or statutes other than the Federal hazardous material transportation law unless it is necessary to do so in order to determine whether a requirement is authorized by another Federal law, or whether a fee is “fair” within the meaning of 49 U.S.C. 5125(f)(1). For purposes of determining whether there is preemption under Federal hazardous material transportation law, a State, local or Indian tribe requirement is not “authorized” by another Federal law merely because it is not preempted by another Federal statute. Colorado Pub. Util. Comm'n v. Harmo n, above, 951 F.2d at 1581 n.10. In making preemption determinations under 49 U.S.C. 5125(d), PHMSA is guided by the principles and policies set forth in Executive Order No. 13132, entitled “Federalism” (64 FR 43255 (Aug. 10, 1999)), and the President's May 20, 2009 memorandum on “Preemption” (74 FR 24693 (May 22, 2009)). Section 4(a) of Executive Order 13132 authorizes preemption of State laws only when a statute contains an express preemption provision, there is other clear evidence that Congress intended to preempt State law, or the exercise of State authority directly conflicts with the exercise of Federal authority. The President's May 20, 2009 memorandum sets forth the policy “that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Section 5125 contains express preemption provisions, which PHMSA has implemented through its regulations and which PHMSA applies in making administrative preemption determinations. IV. Standing of the Alliance To Apply for a Preemption Determination At the time of its May 8, 2007 application, the Alliance was “a non- Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946648 profit trade association consisting of both associations and individual companies in the electronics and `high technology' industries.” It stated that the activities of its “member companies include[d] manufacturing, sale, and distribution of CRTs, use of CRTs, and collection and recycling of used CRTs and CRT glass,” and that its Environmental Issues Council “is specifically designed to address the electronics industry's environmental and related regulatory concerns and to actively work to reduce the environmental impacts of the electronic industry's products through their entire life cycle, from design, through use, to end of life.” According to its comments, MDEP performed “background research” which indicates that the Alliance is now “a very different organization than the one which existed at the time of [its] application.” In response to MDEP's request “for an explanation,” the Alliance wrote PHMSA on May 19, 2008, to advise that it had “undergone a realignment” so that “under the current structure, EIA's only direct members are the four constituent trade associations; through its representation of them, EIA continues to represent the interests of member companies of the associations on relevant issues, such as the Maine CRT transport rules.” The Alliance also stated that its Environmental Issues Council had been dissolved, but asserted that it “continues to be involved in environmental issues (e.g., those raised by the Maine rule requiring used CRTs to be transported as hazardous wastes), as necessary and appropriate to represent the four constituent trade associations and their members.” MDEP argues that the Alliance's application should be dismissed on the grounds that (1) the Alliance failed to identify any specific members directly affected the MDEP requirements it challenges, and (2) following the Alliance's “realignment,” its only members are trade associations. The Alliance replies that MDEP “does not actually dispute that EIA represents the interests of electronic companies that are directly affected by the Maine rules for CRT transport” and the “Maine `takeback' program for CRTs [which] explicitly requires manufacturers to transport, and/or pay for transport of the CRTs they produced (when they reach the end of life) as well as a pro rata share of `orphan' CRTs.” To the extent that 49 U.S.C. 5125(d)(1) contains a “standing” requirement for applying for a preemption determination, PHMSA has interpreted that requirement broadly and found that an industry association may raise issues of preemption when the association's members are “directly affected” by a non-Federal requirement. PD-6(R), “Michigan Marking Requirements for Vehicles Transporting Hazardous and Liquid Industrial Wastes,” 59 FR 6186, 6189 (Feb. 9, 1994). PHMSA has also noted the “all parties engaged in hazardous materials transportation or the regulation of that transportation will be served by [PHMSA] addressing [preemption] issues.” PD-2(R), “Illinois Environmental Protection Agency's Uniform Hazardous Waste Manifest,” 58 FR 11176, 11181 (Feb. 23, 1993), quoting from IR-32, “City of Montevallo, Alabama Ordinance on Hazardous Waste Transportation,” 55 FR 36736, 36741 (Sept. 6, 1990). Accordingly, when an administrative proceeding has been initiated in response to a proper application, PHMSA has declined to terminate the proceeding because of a change in circumstances. In PD-25(R), “Missouri Prohibition against Recontainerization of Hazardous Waste at a Transfer Facility,” 66 FR 37089, 37090 (July 16, 2001), the applicant for a preemption determination purported to “withdraw” its application, but PHMSA stated that itbelieves that the value in deciding whether a non-Federal requirement is inconsistent with (or preempted by) Federal hazardous material transportation law “goes beyond the resolution of an individual controversy. At a time when hazardous materials transportation is receiving a great deal of public attention, the forum provides [PHMSA] an opportunity to express its views on the proper role of State and local vis-a-vis Federal regulatory activity in this area.” IR-2, Rhode Island Rules and Regulations Governing the Transportation of Liquefied Natural Gas, etc., decision on appeal, 45 FR 71881, 71882 (Oct. 30, 1980).
This same important purpose exists when State or local requirements apply to individual companies that are members of one or more associations that, in turn, belong to an overall association. In actual practice, an industry association is just as “directly affected” by a State or local requirement on its “second-level” members, and DOT has not hesitated to consider issues of preemption raised in those circumstances. See, most recently, PD-31(F), “District of Columbia Requirements for Routing of Certain Hazardous Materials,” 71 FR 18137 (April 10, 2006); and Docket No. FMCSA-2008-0204 [PDA-33(F)], “City of Boston's Hazardous Materials Routing Designation,” 73 FR 46349 (Aug. 8, 2008), 51335 (Sept. 2, 2008). For purposes of this administrative proceeding, PHMSA finds that the Alliance had “standing” to submit its May 8, 2007 application for a determination whether Federal hazardous material transportation law preempts the MDEP requirements on used CRT's and CRT glass, and it did not lose that standing because of its “realignment” following submission of its application. V. Requirements on “State-Only” Waste The ultimate question to be decided in this proceeding is the extent to which Federal hazardous material transportation law precludes a State from imposing transportation-related requirements on materials that are regulated as “hazardous waste” by a State, but not regulated as “hazardous materials” under the HMR. This requires consideration of the statutory and regulatory differences (and overlaps) between (a) hazardous materials, as defined in Federal hazardous material transportation law and designated in the HMR, because they pose “risks to life, property and the environment * * * in transportation * * * in intrastate, interstate, and foreign commerce,” 49 U.S.C. 5101, and (b) hazardous wastes, to which RCRA and EPA's regulations apply, which pose a “present and future threat to human health and the environment” when disposed. 42 U.S.C. 6902(b). A. Application and Comments in Support of Preemption In its application, the Alliance repeatedly emphasizes that CRTs and CRT glass destined for reuse or recycling are not “hazardous materials” for purposes of the HMR. From this predicate, it argues that State or local requirements that apply to more or different materials than covered by the HMR are preempted. It quotes from PD-18(R), “Broward County, Florida's Requirements on the Transportation of Certain Hazardous Materials,” 65 FR 81950, 81953-54 (Dec. 27, 2000), that “non-Federal definitions and classifications that result in regulating the transportation * * * of more, fewer or different hazardous materials than the HMR * * * are preempted”; and IR-32, 55 FR at 36743, that a non-Federal “definition of `hazardous waste' that includes not only those materials regulated under the HMR but also other materials not regulated under the HMR * * * is inconsistent with the HMR, and, therefore, preempted.” The Alliance argues that MDEP may not impose any requirement for shipping documentation with respect to materials that “are not subject to any shipping paper requirements under the Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946649 HMR.” It asserts that “state requirements regarding shipping documents are preempted if they are not `substantively the same' as the corresponding requirements in the HMR” and that, “under this standard, state shipping documents must `conform[] in every significant respect to the Federal requirement. See 49 CFR 107.202(d).” The Alliance points out that the MDEP requirements for a manifest, bill of lading, or log “include a number of data elements that are not required in HMR shipping papers.” It refers to prior determinations in which PHMSA has found that:—“the shipping paper requirements of the HMR are exclusive and * * * any additional [state] shipping paper requirements are inconsistent under the [Federal hazmat law],” IR-5, “City of New York Administrative Code Governing Definition of Certain Hazardous Materials,” 47 FR 51991, 51994 (Nov. 18, 1982);
—state requirements are preempted which “instruct the preparer of the * * * Manifest to enter the total quantity of each hazardous waste * * * in a different manner than the HMR,” PD-2(R), 58 FR at 11182;
—state requirements “to use a hazardous waste manifest [for] materials that are not hazardous wastes” are preempted, PD-23(RF), “Morrisville, PA Requirements for Transportation of `Dangerous Waste,' ” 66 FR 37260, 37265 (July 17, 2001); and
—a state may not require additional information to be included on the manifest, PD-29(R), “Massachusetts Requirements on the Storage and Disposal of Infectious or Physically Dangerous Medical or Biological Waste,” 69 FR 34715, 34719 (June 22, 2004).
In its responsive comments, the Alliance states that the alternative to use a bill of lading, log, or other form approved by MDEP for intact CRTs is “nothing but an illusion,” and MDEP is able to track shipments without requiring “that certain information and shipping papers accompany CRT shipments, when there is no such requirement under federal law.” It asserts that, with respect to broken CRTs and CRT glass, “[t]he question at issue is not whether a state may allow state-regulated wastes to be included on a manifest [or] how such state-regulated wastes should be indicated on the manifest,” but rather, “whether MDEP has the authority to require use of a uniform hazardous waste manifest for non-HMR materials.” The Alliance quotes from PHMSA's determination in PD-23(RF), that “additional requirements by States (or localities) for the use of a specific form beyond what is required in Federal regulations create a `substantial burden for both generator and transporters.' ” 66 FR at 37265. The Alliance asserts that the MDEP marking and labeling requirements are preempted because “the HMR does not impose any labeling/marking requirements on intact CRTs,” or on broken CRTs and CRT glass “assuming they are handled consistent with the requirements of EPA's conditional exclusions.” And it states that MDEP may not call broken CRTs or CRT glass “hazardous waste,” or intact CRTs “universal waste” (a “special subset of hazardous wastes eligible for management under reduced regulatory requirements”), because these “materials do not meet the HMR definition of `hazardous waste.' ” The Alliance disputes MDEP's “claim that its `labeling and marking requirements primarily apply to the Maine generator, not to the transporter, and thus are not a transportation issue.” It compares the MDEP marking and labeling requirements to the requirements for marking “liquid industrial waste” and “hazardous waste” that PHMSA found to be preempted in PD-6(R). It contends that the “newly established label,” which omits any reference to Federal law, “still does not save the state marking/labeling requirements from preemption” because these requirements “are still substantively different than federal marking/labeling requirements.” The Alliance further contends that all the MDEP requirements “serve as an obstacle” to accomplishing and carrying out the Federal hazardous materials transportation law and the HMR “by creating substantial regulatory confusion” and “inhibit[ing] the free flow of commerce in CRTs for recycling.” It states that “shippers and carriers will undoubtedly be confused when broken CRTs and CRT glass are classified and regulated during transportation as `hazardous wastes' by MDEP, but are not similarly classified or regulated by DOT.” For example, it attributes confusion to MDEP's requirements that broken CRTs and CRT glass (1) must be “shipped with a `Uniform Hazardous Waste Manifest,' which * * * requires a `Certification of receipt of hazardous materials' ”; (2) “must be marked during transportation with the words `HAZARDOUS WASTE' and a reference to federal law”; and (3) may not be offered “to a transporter who is not licensed as a hazardous waste transporter.” The Alliance states that “the added burdens imposed by the Maine regulations” are a factor that led one of its members to refuse to provide recycling “services for used CRTs generated in Maine.” The Alliance also states that differences between the MDEP requirements and those in different States illustrate the “substantial confusion” when shipments travel through more than one State. It also argues that a finding of preemption would not “undermine” the ability of States “to regulate hazardous wastes that are not regulated by EPA, to streamline requirements for wastes that have not been designated as federal universal wastes, and to develop collection and recycling programs for CRTs and other electronic wastes.” Two other industry associations, MPPA and USWAG, submitted comments in agreement with the Alliance's position that Federal hazardous material transportation law preempts the MDEP requirements on CRTs and CRT glass. MPPA states that “its member mills regularly generate CRTs and arrange for reuse, recycling, or disposal of CRTs, using transporters, and * * * [u]nder some circumstances, MPPA members also transport used and unused CRTs.” MPPA represents that, in regulating intact CRTs as “universal waste,” MDEP has gonebeyond the federal Universal Waste rules and indeed beyond its own hazardous waste rules in several regards, including transportation requirements. * * * Among the requirements which are “broader in scope” than federal Universal Waste regulations are the DEP rules covering employee training, weekly inspections, storage and aisle space, shipment tracking documents, the Maine “Uniform Hazardous Materials Bill of Lading,” and Universal Waste transporter operating standards. Maine requires that all used, unused, or unwanted CRTS generated and shipped from Maine facilities ultimately be transported to a recycling facility, whether they are intact or broken. MPPA believes that the DEP attempted in some cases to address the overlap of the HMR and its new scheme, but the DEP adopted an overbroad approach that ultimately conflicts with and frustrates a uniform HMR transportation program.
MPPA attributes “confusion that the regulated public faces when attempting to wrestle with the DEP's transportation requirements” to the differences “from the federal HMR regulations and EPA's regulations.” It states that this results from Maine's failure to adopt “the EPA's conditional exclusion for Universal Wastes,” Maine's classification of broken CRTs and CRT glass as fully regulated State “hazardous wastes,” rather than universal wastes, and the “alternate shipping paper” requirements for intact CRTs. MPPA emphasizes that, “to the extent that MPPA or its members Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946650 do not understand the requirements, that underscores the confusion generated by these different requirements.” It attached to its comments an email exchange among MDEP staff during 2003 considering, but not deciding in the absence of any proposal “submitted for review and approval,” whether shrink wrapping CRTs for shipment would be acceptable, and states that “some individuals and companies no longer transport Universal Waste due to an inability or unwillingness to meet the additional requirements adopted by the DEP.” MPPA also states that it “believes that the Maine Universal Waste rules, and the transportation rules in particular, provide a `De Facto' scheme that regulates Universal Waste as it if were hazardous material under the HMR.” MPPA states that its “members are also subject to enforcement action by the DEP, which has a vigorous enforcement program including notices of violation and regular assessment of penalties for violations of the DEP hazardous waste regulations.” While MPPA “is not aware of enforcement actions taken against its members as transporters or shippers of CRTs,” it refers to “DEP enforcement action on [other] Universal Wastes,” and states it has “no doubt that DEP would enforce its Universal Waste rules on CRTs if it learned of violations.” USWAG (an intervenor in the litigation pending in the Court of Appeals for review of EPA's July 28, 2006 final rule) states that “preemption of Maine's CRT regulations [is] both necessary and critical to ensuring national uniformity in transportation safety.” It asserts that a finding that State requirements are not preempted because they affect the transportation of “materials that are not regulated by the HMR/HMTA (i.e., lead in CRTs and CRT glass)” would “ignore[] the HMTA statutory scheme whereby DOT is provided with the authority for designating `hazardous materials.' ” USWAG further contends that If DOT's preemption authority is limited to those substances that it has determined pose unreasonable risks, it allows for the development of non-federal transportation standards for all other substances rather than a uniform national set of transportation safety regulations. DOT's conclusions on substances that it determines do not pose an unreasonable risk are rendered meaningless if states can expand this list on their own. Congress' intent will be frustrated if every state (and even every locality) may promulgate transportation standards for any substance in various amounts and forms provided the state's list does not explicitly overlap with DOT-regulated hazardous materials. USWAG states that “[a]ll of Maine's particular transportation requirements should be preempted because the state has used a classification system for the materials to be regulated that is inconsistent with the HMR.” It also refers to PHMSA's prior findings of preemption in cases including:—PD-23(RF), when a state had “create[d] a scheme for designating and classifying hazardous material that is not substantively the same as in the HMR” (66 FR at 38624);
—PD-6(R), where the “liquid industrial waste” marking was “tantamount to the creation of an additional class of hazardous materials with its own marking requirements” (59 FR at 6192); and
—IR-32, in which PHMSA referred to the statements in prior decisions “that it considers the Federal rule in definition of hazard classes to be exclusive” (55 FR at 36742).
B. Comments in Opposition to Preemption MDEP agrees with the Alliance that, following EPA's CRT rulemaking, intact and broken CRTs destined for recycling are not a “hazardous material.” It emphasizes that it “regulates CRTs and CRT glass as a state-only waste,” and it does not attempt “to regulate CRTs as federal hazardous material.” It states that both “DOT and EPA have agreed that States have the right to regulate state-only waste, and EIA's assertions to the contrary are baffling.” MDEP quotes from Massachusetts v. U.S. Department of Transportation, 93 F.3d 890, 894 (D.C. Cir. 1996), that “the regulation of how waste may be picked up or dropped off in a state must be thought an area of traditional state control.” It also refers to PHMSA's 1996 letter (discussed in the May 6, 2008 Federal Register notice, 73 FR at 25083) that waste regulated by the State of Utah, which is not subject to the HMR, may be described on the manifest as “Utah Regulated Only,” “non-RCRA waste,” “Utah only waste,” or “Utah Hazardous waste, liquid or solid, n.o.s.” MDEP states that it has been authorized by EPA “to implement the RCRA hazardous waste program,” and that, in 2004,EPA determined that MDEP's inclusion of CRTs in the State's universal waste rule was different from, but equivalent to the Federal regulations. 69 FR at 64864. Both EPA and MDEP's universal waste rules established streamlined hazardous waste management regulations which were intended to encourage the recycling of certain widely generated wastes. * * * EPA's recent adoption of the final CRT rule in July 2006 changed the federal CRT requirements but reconfirmed MDEP authority, and even specifically addressed how interstate-transportation of state-only regulated materials through States adopting EPA's new conditional exclusion should be handled. 71 FR 42927, 42944. DOT preemption was clearly not contemplated by EPA.
MDEP also argues that its requirements for “tracking of state-only hazardous waste, whether broken CRTs as hazardous waste or intact CRTs as universal waste, do not create a new classification of federal hazardous materials.” In its rebuttal comments, it states that, “to preclude any suggestion or misimpression that MDEP has ever attempted, or is presently attempting, to create a de facto DOT hazardous materials classification of this portion of its state-only hazardous waste program, MDEP has recently provided new clarifications and guidance in a number of its materials—e.g., its website, its regulations, and its forms.” It emphasizes that, “even prior to such guidance, transporters have understood that, in Maine, broken CRTs, similar to other state-only hazardous wastes, are part of the MDEP's state-only hazardous waste program, and may not be identified or treated as DOT hazardous materials unless they are defined as such by DOT.” MDEP notes that it has excluded the word “hazardous” from the “Maine Recyclable Material Uniform Bill of Lading” form. It states that the alternative tracking documents allowed “to be utilized for universal wastes * * * make even clearer than before that Maine is not attempting to regulate CRTs as federal hazardous materials.” MDEP contends that its “labeling and marking requirements apply to the Maine generator, not to the transporter, and thus are not a transportation issue” because they concern “non-transportation operations at fixed facilities.” It also states that “under both federal and MDEP universal waste rules the word `waste' may be placed on a package and under both federal and MDEP rules this syntax does not mean that it is a DOT hazardous material.” It asserts that its marking and labeling requirements do not create confusion because there is no indication that either intact or broken CRTs are federal hazardous materials, stating “the MDEP approach to state-only universal waste is the antithesis of confusing; rather, in conformance with the practices nationwide for the movement of universal wastes, it carefully delineates a bright line between DOT hazardous materials and universal wastes, including state-only universal waste.” MDEP argues that its requirements on transporters of intact or broken CRTs are Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946651 not obstacles to the goals of Federal hazardous material transportation law or the HMR because “Maine has not in any way made a de facto classification of CRTs as federal hazardous material.” It states that the Alliance's arguments about possible confusion, hypothetical noncompliance, and risks to transportation safety are “unsubstantiated and fl[y] in the face of the reality of years of successful state and federal co-operation with state-only hazardous waste programs, including universal waste.” MDEP states that the preemption determination cases cited by the Alliance and USWAG “fall into four general fact patterns.” The first is that in PD-7(R) in which PHMSA found that: “Operator requirements for the transport of oils that are not hazardous materials are not subject to preemption by the HMTA.” 59 FR at 28914. According to MDEP, “operation of the MDEP program” resembles the circumstances considered in PD-7(R), where an extensive analysis was not required in that determination (as USWAG argues), “because Maryland's definitions of covered oils were, as here, sufficiently transparent to prevent anyone from incorrectly believing that the vegetable oils were DOT hazardous materials.” MDEP distinguishes the second fact pattern of PD-6(R) on the ground that there is nothing in the MDEP marking or labeling requirements comparable to the Michigan requirement which was “sufficiently similar to HMR markings that it appears to be a hazard warning, but that does not conform to HMR markings, [so that] the purposes of the HMR are undermined.” MDEP states the third and fourth fact patterns involve “cases where the challenged non-Federal requirements contained language that effectively blurred the definition of items on DOT's designated hazardous materials list” with items regulated under the non-Federal requirements or “a non-Federal requirement” was applied to the same material “in a different manner,” including:—the definitions of gases “under pressure” and gases and mixtures considered “combustible” or “flammable,” IR-5, 47 FR at 51993;
—“a system of classifying hazardous materials which is totally at variance with the system of hazard class definitions on which the Federal hazardous materials regulatory system is based,” IR-6, “City of Covington Ordinance Governing Transportation of Hazardous Materials,” 48 FR 760, 763 (Jan. 6, 1983);
—the definition of “radioactive materials,” IR-12, “St. Lawrence County, New York; Local Law Regulating the Transportation of Radioactive Materials,” 49 FR 46632, 46651 (Nov. 27, 1984);
—State Police regulations which include “materials listed in the SARA [Title III] table which are not listed in the HMR Table” but omit some “materials listed in the HMR Table but not in the SARA Table” IR-29, “State of Maine Statutes and Regulations on Transportation of Hazardous Materials,” 55 FR 9304, 9308;
—a local definition of “hazardous waste” as including “radioactive waste” with a lower threshold of activity than subject to the HMR as a “hazardous material,” IR-32, 55 FR at 36742;
—the definitions of “hazardous materials,” “combustible liquid,” “flammable liquid,” “biomedical waste,” “discarded hazardous materials,” and “sludge” which were being “used to regulate a material as a hazardous material,” but “were not ‘substantively the same as’ their counterparts in the HMR or did not have counterparts in the HMR,” PD-18(R), 67 FR at 35195;
—the definitions of “infectious waste,” “hospital waste,” and “dangerous waste” that “create a scheme for designating and classifying hazardous material” that is not substantively the same as the regulation of “regulated medical waste” as a hazardous material in the HMR, PD-23 (RF), 66 FR at 37264; and
—“extensive [additional] information and documentation requirements [for the transportation of nuclear materials] * * * are likely to confound the transporters of hazardous materials, thereby increasing the potential for unreasonable hazards throughout the county,” Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1583.
Eight States, ASTSWMO, Ecomaine, and the Natural Resources Council of Maine submitted comments opposing the Alliance's application. The Connecticut Department of Environmental Protection, Illinois Environmental Protection Agency, Maryland Department of the Environment, New Hampshire Department of Environmental Services, South Carolina Department of Health and Environmental Control, the Washington Department of Ecology, and ASTSWMO all quote the finding in PD-7(R) that wastes that are “not hazardous materials are not subject to preemption by the HMTA.” 59 FR at 28914. These eight states assert that finding that the MDEP requirements are preempted would essentially prevent states from developing state-only regulated wastes or managing state-only universal waste in accordance with their universal waste requirements. Most of them specifically mention that this result would be directly contrary to EPA's March 4, 2005 final rule (70 FR 10789) revising requirements for the Uniform Hazardous Waste Manifest, “which clearly provides for states to include state only wastes and additional state waste codes (to convey specific state information) providing it does not duplicate information contained in federal codes.” Five of these states assert that “the existence of state only hazardous waste has not caused substantial problems or confusion.” They allege that the Alliance “is targeting Maine CRT requirements” because “Maine has one of the first in the nation manufacturer takeback programs for electronic waste, specifically CRTs. * * * Other states are looking at developing similar programs” which should “not be thwarted by a DOT preemption determination.” The New Hampshire Attorney General's Office submitted a separate comment that there is a “presumption against preemption in areas of traditional state control, including the regulation of waste and environmental protection” and, unless the “dual compliance” and “obstacle” criteria in 49 U.S.C. 5125 apply, “a state requirement is not preempted merely because the federal scheme has left a substance unregulated in certain respects.” ASTSWMO states that a finding that the MDEP requirements on intact and broken CRTs are preempted would (1) “undermine long established legal authorities for States to regulate additional wastes as hazardous beyond those regulated by the U.S. Environmental Protection Agency (EPA) under federal hazardous waste regulations”; (2) “contradict explicit authority granted to the states by EPA to include additional wastes in the category of ‘universal waste’ under State regulations”; and (3) “hinder States' abilities to tailor their regulations to local problems and conditions.” ASTSWMO asserts that, “when EPA modifies the federal hazardous waste regulatory program to make it less stringent, States are not required to adopt the changes,” as discussed in EPA's July 28, 2007 final rule (71 FR at 42944). The fact that “States may regulate additional categories of wastes as State-only universal waste * * * Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946652 provid[es] further evidence that variation among the States' universal waste programs is to be expected,” which ASTSWMO finds expressed in the preamble to EPA's “Universal Waste Rule.” 60 FR 25492 (May 11, 1995). Ecomaine is “a quasi-municipal organization owned by 21 municipalities in southern Maine, encompassing a waste-to-energy renewable power plant, single-sort recycling center and an ashfill/landfill.” It states that “Maine's eWaste Law” requires “that CRTs be recycled” rather than being disposed at landfills and waste facilities and that MDEP's “efficient and desirable tracking system * * * is crucial to the effectiveness of their program.” Ecomaine says it “shares the strategy that manufacturers take responsibility for their products,” and states that the Alliance's application for a preemption determination “seems counterproductive toward a sustainable future.” The Electronics TakeBack Coalition is “a national coalition of environmental and consumer groups, who promote green design and responsible recycling of electronics in the U.S.” It states that the Alliance's application “is simply a ploy to undermine recently enacted state e-waste recycling legislation that requires EIA's (former) members to participate in the electronics recycling program.” It compares the MDEP requirements with “the California e-waste law, which also places several restrictions on the handling and transportation of CRTs in California,” and notes that the Alliance has not challenged the California law which “does not require the industry to take any responsibility for recycling.” It states that “Maine does not regulate or classify these as hazardous materials, as claimed in the EIA petition,” and is acting within its authority to designate “state only hazardous wastes” and “universal wastes.” The Natural Resources Council of Maine, the “largest environmental advocacy group” in Maine, states that a finding of preemption “would eviscerate a highly successful law that is helping to protect Maine's citizens and wildlife from the toxic materials in electronic waste.” It cites the “accomplishments” of Maine's “electronic waste law” and states that Maine's regulation of intact CRTs and CRT glass is fully authorized under EPA's CRT regulation and the guidance in EPA's universal waste program. C. Decision Ever since enactment of RCRA in 1976, the year following the HMTA, DOT and EPA have worked together to coordinate their respective requirements on the transportation of hazardous waste and to reconcile:—the authority in 42 U.S.C. 6926 for a State to “administer and enforce a hazardous waste * * * program” that is “equivalent to the Federal program under” RCRA;
—the authority recognized by EPA and DOT for a State program to include in its hazardous waste management program additional wastes which are not regulated by EPA, under the provision in 42 U.S.C. 6929 that nothing in RCRA “shall be construed to prohibit any State or political subdivision thereof from imposing any requirements * * * which are more stringent than” EPA's hazardous waste management regulations;
—the requirement in 42 U.S.C. 6923(b) that, with respect to “any hazardous waste identified or listed” by EPA that is subject to Federal hazardous materials transportation law, “the regulations promulgated by [EPA] shall be consistent with the requirements of such Act and the regulations thereunder”; and
—the original provision in Section 112 of the HMTA that, unless a waiver of preemption is granted, “any requirement of a State or political subdivision thereof, which is inconsistent with any requirements set forth in this title, or in a regulation issued under this title, is preempted.”
In May 1980, when DOT adopted its initial regulations on the transportation of hazardous waste materials, it noted that “six EPA-DOT joint public hearings were held in various parts of the United States” and that PHMSA's predecessor agency (the Materials Transportation Bureau [MTB]) “worked closely with EPA in the joint development of appropriate transportation requirements.” 45 FR 34560, 34566, 34567 (May 22, 1980). “MTB explained that the primary focus of its requirements was to ensure that hazardous wastes are properly identified to carriers and that they are delivered to predetermined designated facilities. Proper identification of wastes is essential in order to implement the transportation aspects of a ‘cradle to grave’ hazardous waste tracking system.” 45 FR at 34567. Accordingly, the scope of “hazardous waste” covered by the HMR is limited to “any material that is subject to the hazardous waste manifest requirements of the EPA specified in 40 CFR Part 262.” 49 CFR 171.8. 6 PHMSA's May 22, 1980 final rule also added a new Section 171.3(c) which specifically stated that a State or local requirement that applied to a “hazardous waste subject to this subchapter” (emphasis added) was preempted if it “applies differently or in addition to the requirements in [the HMR] concerning: 6 As originally adopted in 1980, the definition of “hazardous waste” included any material that would be subject to EPA's hazardous waste manifest requirements “absent an interim authorization to a state under 40 CFR Part 123, Subpart F.” 45 FR at 34587. This additional language was deleted in PHMSA's February 18, 1986 final rule, 51 FR 5968, because it was “no longer necessary due to the change in the applicability of the HMR for hazardous wastes adopted in the final rule under HM-145D (49 FR 10507, Mar. 20, 1984).” 50 FR 288, 290 (Jan. 3, 1985). “(1) Packaging, marking, labeling, or placarding; 7 7 In its separate final rule adopting a hazardous waste manifest system (45 FR 12737, 12740 [Feb. 26, 1980]), EPA stated that DOT's labeling, marking, and placarding requirements have been in use for several years [and are] widely understood by persons in the transportation industry and by State and local officials in charge of responding to discharges of hazardous materials. Therefore, in developing its regulatory system for transporters of hazardous waste, EPA decided to rely upon DOT's existing system to the fullest extent possible consistent with [RCRA's] statutory mandate to protect human health and the environment during the transportation of hazardous waste. This effort to coordinate the transportation regulations was facilitated by DOT's proposal to extend the applicability of its hazardous materials regulations to transporters of hazardous waste. Upon adoption of DOT's regulations, these two sets of regulations will be fully interlocked, and a transporter of hazardous waste will be required to comply with both DOT and EPA regulations. EPA's requirements to package, label, mark, and placard shipments of hazardous waste are set forth at 40 CFR 262.30-262.33. “(2) Format or contents of discharge reports (except immediate reports for emergency response); 8 and 8 EPA also adopted at 40 CFR 263.30, “the DOT requirements for reporting of discharges,” and provided at 49 CFR 263.31 that a “transporter must clean up any hazardous waste discharge that occurs during transportation or take such action as may be required or approved by Federal, State, or local officials so that the hazardous waste discharge no longer presents a hazard to human health or the environment.” 45 FR at 12744, 33152. “(3) Format or contents of shipping papers, including hazardous waste manifests.” Id. 9 9 Four years later, EPA and DOT issued coordinated final rules adopting a uniform hazardous waste manifest ( see 49 FR 10490 (EPA); 49 FR at 10510 (DOT) [Mar. 20, 1984]). EPA explained that it and DOT “modified the Uniform Manifest form to allow the entry of certain optional State information items in addition to the federally-regulated items,” and specifically that the “Uniform Hazardous Waste Manifest form has been designed to allow the listing of both federally-regulated wastes and wastes regulated solely by the States,” so long as there is a clear distinction “between federally-regulated wastes and other wastes, as required by DOT regulations (49 CFR 172.201(a)(1)).” 49 FR at 10492, 10495. DOT similarly noted that the amendments adopted by it and EPA did not “prohibit States from requiring additional information from the generator or the treatment, storage or disposal facility concerning a hazardous waste shipment,” but that this information could be submitted “directly to the appropriate agency of that State.” 49 FR 10508. Thus, “while these amendments do not prohibit the transporter from voluntarily carrying such information, they do preclude States from requiring the transporter from doing so.” Id. See also 40 CFR 271.10. Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946653 This provision, specific to hazardous waste, was consistent with PHMSA's original regulations which set forth procedures for “a State or a political subdivision of a State having a requirement pertaining to the transportation of hazardous materials or any person affected by the requirement [to] obtain an administrative ruling as to whether the requirement is inconsistent with the [Hazardous Materials Transportation] Act or regulations issued under the Act.” Former 49 CFR 107.201(a), adopted at 41 FR 38167, 38171 (Sept. 9, 1976) (emphasis supplied). Accordingly, both the general and specific preemption provisions in PHMSA's regulations were clear that non-Federal requirements that do not “pertain” to the transportation of a hazardous material subject to the HMTA are not preempted by the HMTA. As discussed in Part II, above, the HMTA was amended in 1990 to (1) specifically set forth the “dual compliance” and “obstacle” standards that PHMSA had applied in issuing administrative rulings on preemption prior to that date; (2) specify that non-Federal requirements in five “covered subject” areas must be “substantively the same as” requirements in the Federal hazardous material transportation law and the regulations issued under that law; and (3) statutorily authorize PHMSA's administrative process for making preemption determinations. Public Law 101-615 section 105(a)(4), 104 Stat. 3247 (Nov. 16, 1990). Thereafter, PHMSA revised its procedural regulations in subpart C of 49 CFR part 107 (56 FR 8616, 8622 [Feb. 28, 1991]), and deleted former § 171.3(c) as part of the President's Regulatory Reinvention Initiative to eliminate unnecessary provisions because, “for preemption purposes, [PHMSA] looks as hazardous waste issues together with issues covering all other hazardous materials. RCRA's directive that EPA's hazardous waste requirements be consistent with the Federal hazmat law does not mandate that [PHMSA] establish a separate preemption provision for hazardous waste.” 61 FR 21084, 21093 (May 9, 1996). See also 61 FR 51235, 51236 (Oct. 1, 1996), that “utilization of the ‘covered subjects’ preemption authority in the Federal hazardous materials transportation law facilitates harmonization of non-Federal requirements with Federal law” and “goes far beyond the limited provisions of 49 CFR 171.3(c). * * * [T]he preemption provisions of the Federal hazardous materials transportation law address all issues pertaining to transportation of hazardous materials, including hazardous waste.” These amendments to the HMTA and revisions to PHMSA's regulations have not changed the general principle, as expressed in the preamble to a final rule on “Infectious Substances,” that the “HMR do not, however, preempt non-Federal requirements imposed on the transportation of materials that are not hazardous materials as defined in the HMR.” 60 FR 48780, 48784 (Sept. 20, 1995). As PHMSA explained at that time, there can be exceptions to this general principle, such as the situation in PD-6(R), “where a non-Federal law or regulation requires a method of hazard communication for non-hazardous materials sufficiently similar to that prescribed by the HMR for a hazardous material that the regulation is ‘tantamount to the creation of an additional class of hazardous materials with its own marking requirements.’ ” Id. As noted by MDEP, another exception to this general principle is where the non-Federal requirement purports to broaden the category of hazardous materials to include materials that are not regulated under the HMR and, thereby, create “a system of classifying hazardous materials which is totally at variance with the system of hazard class definitions” in the HMR. IR-6, 48 FR at 763. See also, e.g., IR-5, 47 FR at 51993 (additional materials included within the definitions of gases “under pressure” and “combustible” and “flammable” gases and mixtures); IR-32, 55 FR at 36742 (using a lower threshold of activity for regulating waste radioactive material as a “radioactive waste”); PD-18(R), 65 FR at 81953 (“state and local hazard class and hazardous materials definitions differing from those in the HMR and used to regulate in areas regulated by DOT are preempted) (emphasis supplied); PD-23(RF), 66 FR at 37263 (the term “hospital waste” in a local ordinance encompasses both (1) items that are within the definition of ‘regulated medical waste’ in the HMR and (2) other items that may not contain any infectious substance and, therefore, are not regulated under the HMR”). These exceptions do not apply here. As the Alliances itself stresses, MDEP regulates used CRTs and CRT glass solely as a “State-only” hazardous or universal waste. There is no evidence that these requirements—pertain to the “designation, description, and classification of hazardous material,” the “labeling, marking, and placarding of hazardous material,” or the “preparation, execution, and use of shipping documents related to hazardous material,” as the term “hazardous material” is used in the Federal hazardous material transportation law and the regulations issued under that law;
—otherwise create any “obstacle to accomplishing and carrying out” the Federal hazardous material transportation law and the regulations issued under that law; or
—prevent compliance with any requirement of the Federal hazardous material transportation law and the regulations issued under that law.
Rather, Maine's regulation of intact CRTs as a State-only universal waste, and broken CRTs and CRT glass as a State-only hazardous waste, is done in a manner that does not create any regulatory confusion or jeopardize transportation safety. Maine's approach is consistent with DOT's guidance regarding how to describe State-only hazardous wastes, as set forth in PHMSA's 1996 letter addressing State-only hazardous waste regulated by Utah. Maine's requirements for the manifesting of broken CRTs and CRT glass follow the regulations developed by EPA (in coordination with DOT) for the manifesting of State-only hazardous waste. VI. Ruling Federal hazardous material transportation law does not preempt MDEP's regulations on classification of used CRTs as “universal waste” and broken CRTs and CRT glass as a State “hazardous waste” and the marking, labeling, shipping documentation, and transporter requirements, because these requirements do not apply or pertain to materials regulated under Federal hazardous materials transportation law and the HMR or otherwise constitute an obstacle to accomplishing and carrying out Federal hazardous materials transportation law and the regulations issued under that law. VII. Petition for Reconsideration/Judicial Review In accordance with 49 CFR 107.211(a), any person aggrieved by this decision may file a petition for reconsideration within 20 days of publication of this decision in the Federal Register. A petition for judicial review of a final preemption Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946654 determination must be filed in the United States Court of Appeals for the District of Columbia or in the Court of Appeals for the United States for the circuit in which the petitioner resides or has its principal place of business, within 60 days after the determination becomes final. 49 U.S.C. 5127(a). This decision will become PHMSA's final decision 20 days after publication in the Federal Register if no petition for reconsideration is filed within that time. The filing of a petition for reconsideration is not a prerequisite to seeking judicial review of this decision under 49 U.S.C. 5127(a). If a petition for reconsideration is filed within 20 days of publication in the Federal Register, the action by PHMSA's Chief Counsel on the petition for reconsideration will be PHMSA's final action. 49 CFR 107.211(d). Issued in Washington, DC, on September 2, 2009. Sherri L. Pappas, Acting Chief Counsel. [FR Doc. E9-21768 Filed 9-9-09; 8:45 am] BILLING CODE 4910-60-P—the Committee's work on a White Paper entitled DoD Impact on U.S. Commercial Launch Services Competitiveness ;
—the Committee's work on the National Space Policy Review;
—the Augustine Panel and the implications for the U.S. commercial space transportation industry; and
—orbital debris mitigation, industry impact, costs, and the role of the FAA.
Interested members of the public may submit relevant written statements for the COMSTAC members to consider under the advisory process. Statements may be concerning the issues and agenda items mentioned above and/or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact Brenda Parker, DFO, (the Contact Person listed below) in writing (mail or e-mail) by October 2, 2009, so that the information can be made available to COMSTAC members for their review and consideration prior to the October 29th meeting. Written statements should be supplied in the following formats: one hard copy with original signature and/or one electronic copy via e-mail. Subject to approval, a portion of the October 29th meeting will be closed to the public (starting at 3:45 pm). An agenda will be posted on the FAA Web site at http://ast.faa.gov . For specific information concerning the times and locations of the COMSTAC working group meetings, contact the Contact Person listed below. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should inform the Contact Person listed below in advance of the meeting. FOR FURTHER INFORMATION CONTACT: Brenda Parker (AST-100), Office of Commercial Space Transportation (AST), 800 Independence Avenue, SW., Room 331, Washington, DC 20591, telephone (202) 267-3674; E-mail brenda.parker@faa.gov . Complete information regarding COMSTAC is available on the FAA Web site at: http://www.faa.gov/about/office_org/headquarters_offices/ast/advisory_committee/ . Issued in Washington, DC, September 4, 2009. George C. Nield, Associate Administrator for Commercial Space Transportation. [FR Doc. E9-21905 Filed 9-9-09; 8:45 am] BILLING CODE P• Welcome/Agenda Overview.
• Review and approve previous plenary minutes.
• Report out from July PMC meeting—Sherif Ali.
• Report from WG1—MOPS: Status, schedule, issues—Review MS Project schedule.
• Report from WG2—Part 23 Installation Guidance: Status, schedule, issues—Review MS Project schedule.
• Report from WG3—Parts 27/29 Installation Guidance: Status, schedule, issues—Review MS Project schedule.
• Common issues discussion including breadth & level of participation, scope with respect to TORs.
• Breakout into individual WGs.
• Report out from each WG: Status, schedule, issues.
• Establish Dates, Location, Agenda for Next Meeting, Other Business.
Attendance is open to the interested public but limited to space availability. With the approval of the chairmen, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Members of the public may present a written statement to the committee at any time. Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946655 Issued in Washington, DC, on September 3, 2009. Francisco Estrada C., RTCA Advisory Committee. [FR Doc. E9-21853 Filed 9-9-09; 8:45 am] BILLING CODE 4910-13-PPrimary Members:
Anita Shandor, Deputy Commissioner, Office of the Commissioner, BPD;
Kimberly A. McCoy, Assistant Commissioner, Office of Information Technology, BPD;
Cynthia Z. Springer, Executive Director, Administrative Resource Center, BPD.
Alternate Members:
Dara Seaman, Assistant Commissioner, Office of Financing, BPD.
Van Zeck, Commissioner. [FR Doc. E9-21858 Filed 9-9-09; 8:45 am] BILLING CODE 4810-39-P Vol. 74, No. 174 Thursday, September 10, 2009Since our Nation's founding, working Americans have carried us through times of challenge and uncertainty and propelled America through eras of peace and prosperity. They have long formed the backbone of our Nation's economy, and they will continue to lead our Nation to new heights in the years to come.
Working Americans helped lay the foundation for our Nation's progress over the generations. Brick by brick, they built the infrastructure that powered the engine of our economy. With firm resolve and commitment, they constructed our cities and towns, and with unparalleled skill they manufactured the goods and provided the services needed by Americans and people around the world. They have prepared our children for the challenges ahead and cared for the sick and the elderly. Today, we commemorate the many contributions labor has made to our Nation.
Throughout its history, the labor movement has given voice to the aspirations and concerns of millions of men and women. By fighting for decent working conditions, as well as fair wages and benefits, organized labor has stood for the rights of everyday Americans. With determination and commitment, labor has advocated for all working families and all have benefited from the fruits of their struggles.
Today, we find ourselves in an era of great challenges. The economic crisis we face is vast and complex. Americans understand the consequences: dwindling savings for young families, a daunting choice between prescriptions and groceries for our seniors, and fading hopes for a college education for our young people. Just as they have so many times in our history, working Americans will help our Nation emerge from this crisis and lead us into a new era of prosperity and progress.
This Labor Day, as we honor our workers, and we renew our commitment to uphold the American Dream and the founding promise of our Nation: in America, we can make of our lives what we will, and all things are possible for all people.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim September 7, 2009, as Labor Day. I call upon public officials and all the people of the United States to observe this day with appropriate programs, ceremonies, and activities that acknowledge the tremendous contributions of working Americans and their families.
Federal Register / Vol. 74, No. 174 / Thursday, September 10, 200946662IN WITNESS WHEREOF, I have hereunto set my hand this fourth day of September, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.
[Please see PDF for image: OB#1.EPS] [FR Doc. E9-21988 Filed 9-9-09; 11:15 am] Billing code 3195-W9-P