Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations 22297

It should be noted that, in the

definition of a ‘‘program,’’ a private

sector practitioner must not only hold

himself or herself out as providing such

treatment, referral or diagnosis, but also

must provide such treatment, referral or

diagnosis. Therefore, even though a

person may hold himself or herself out

as providing substance abuse treatment,

diagnosis or referral, that person would

not constitute a program if he or she

does not provide such treatment,

diagnosis or referral.

It should also be noted that, even if

the regulations do apply, the regulations

do not bar investigative or regulatory

scrutiny of such programs. Law

enforcement agents may obtain a court

order to place an undercover agent in a

program, 42 CFR 2.67, or a court order

directing a program to disclose patient

identifying information for use of

records to investigate or prosecute a

program, 42 CFR 2.66.

This Federal agency also requested

that the Department provide more

guidance to law enforcement on the

phrase ‘‘holds itself out as’’ so as to

enable them to determine whether an

investigation of a particular practitioner

via patient records or undercover

operations would require a court order.

This agency suggested that the

Department require private practitioners

who provide such treatment, diagnosis

or referral to indicate this through, for

example, state licensing procedures,

advertising or the posting of notice in

their offices.

The Department believes that private

practitioners may hold themselves out

as providing substance abuse treatment,

diagnosis or referral by the means

described above. However, the primary

purpose of the statute is to protect the

confidentiality of alcohol and drug

abuse patient records. The Department

does not believe that requiring all

programs to, for example, post notice in

some conspicuous place (stating that

they were subject to these regulations) is

meaningful, since it does not necessarily

mean that the regulations would not be

applicable if such signs were not posted.

Given their questionable value, such

requirements would place an

unnecessary burden on programs.

Furthermore, federally assisted

programs are to inform law enforcement

officials who are seeking records that

they are covered by the regulations and

cannot provide patient records without

a court order, thus placing such officials

on notice.

Finally, although the law and the

implementing regulations require that

law enforcement officials take

additional measures to obtain certain

information (i.e., court orders to obtain

patient records or to place an

undercover agent in a program), the

Department believes that the narrowing

of these regulations to specialized

programs and practitioners should make

it easier for such officials to identify

‘‘programs’’ to who these regulations are

applicable and, thus, to obtain the

relevant court orders.

Economic Impact

This rule does not have cost

implications for the economy of $100

million or otherwise meet the criteria

for a major rule under Executive Order

12291, and therefore do not require a

regulation impact analysis. Further,

these regulations will not have a

significant impact on a substantial

number of small entities, and therefore

do not require a regulatory flexibility

analysis under the Regulatory

Flexibility Act of 1980.

Federal Supremacy

These regulations are not intended to

preempt the field of law which they

cover to the exclusion of all State laws

in that field. However, consistent with

established principles of constitutional

law, the Federal regulations will

supersede State law to the extent that

there is a conflict. See 42 CFR 2.20 for

further discussion of the relationship

between these regulations and State

laws.

Paperwork Reduction Act

There are no new paperwork

requirements subject to the Office of

Management and Budget approval

under the Paperwork Reduction Act of

1980.

List of Subjects in 42 CFR Part 2

Alcohol abuse, alcoholism,

Confidentiality, Drug abuse, Health

records, Privacy.

Dated: February 14, 1995.

Philip R. Lee,

Assistant Secretary for Health.

Approved: March 22, 1995.

Donna E. Shalala,

Secretary.

For the reasons set out in the

preamble, part 2 of title 42, Code of

Federal Regulations, is amended as

follows:

PART 2—[AMENDED]

1. The authority citation for part 2 is

revised to read as follows:

Authority: Sec. 408 of Pub. L. 92–255, 86

Stat. 79, as amended by sec. 303 (a), (b) of

Pub L. 93–282, 83 Stat. 137, 138; sec.

4(c)(5)(A) of Pub. L. 94–237, 90 Stat. 244; sec.

111(c)(3) of Pub. L. 94–581, 90 Stat. 2852;

sec. 509 of Pub. L. 96–88, 93 Stat. 695; sec.

973(d) of Pub. L. 97–35, 95 Stat. 598; and

transferred to sec. 527 of the Public Health

Service Act by sec. 2(b)(16)(B) of Pub. L. 98–

24, 97 Stat. 182 and as amended by sec. 106

of Pub. L. 99–401, 100 Stat. 907 (42 U.S.C.

290ee–3) and sec. 333 of Pub. L. 91–616, 84

Stat. 1853, as amended by sec. 122(a) of Pub.

L. 93–282, 88 Stat. 131; and sec. 111(c)(4) of

Pub. L. 94–581, 90 Stat. 2852 and transferred

to sec. 523 of the Public Health Service Act

by sec. 2(b)(13) of Pub. L. 98–24, 97 Stat. 181

and as amended by sec. 106 of Pub. L. 99–

401, 100 Stat. 907 (42 U.S.C. 290dd–3), as

amended by sec. 131 of Pub. L. 102–321, 106

Stat. 368, (42 U.S.C. 290dd–2).

2. In § 2.11, the definition of Program

is revised to read as follows:

§ 2.11 Definitions.

* * * * *

Program means:

(a) An individual or entity (other than

a general medical care facility) who

holds itself out as providing, and

provides, alcohol or drug abuse

diagnosis, treatment or referral for

treatment; or

(b) An identified unit within a general

medical facility which holds itself out

as providing, and provides, alcohol or

drug abuse diagnosis, treatment or

referral for treatment; or

(c) Medical personnel or other staff in

a general medical care facility whose

primary function is the provision of

alcohol or drug abuse diagnosis,

treatment or referral for treatment and

who are identified as such providers.

(See § 2.12(e)(1) for examples.)

* * * * *

3. Section 2.12(e)(1) is amended by

adding the following sentence at the end

to read as follows:

§ 2.12 Applicability.

* * * * *

(e) * * * (1) * * * However, these

regulations would not apply, for

example, to emergency room personnel

who refer a patient to the intensive care

unit for an apparent overdose, unless

the primary function of such personnel

is the provision of alcohol or drug abuse

diagnosis, treatment or referral and they

are identified as providing such services

or the emergency room has promoted

itself to the community as a provider of

such services.

* * * * *

[FR Doc. 95–10860 Filed 5–4–95; 8:45 am]

BILLING CODE 4120–20–M
22298 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Rules and Regulations

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[MM Docket No. 93–170]

Radio Broadcasting Services; Bemidji

and Red Lake, MN

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This document allots Channel

238C1 to Bemidji, Minnesota, as that

community’s third commercial FM

broadcast service in response to a

petition filed by J. Thomas Lijewski. See

58 FR 35421, July 1, 1993. The

coordinates for Channel 238C1 at

Bemidji are 47–28–29 and 94–52–49. In

response to a counterproposal filed by

Red Lake Band, we will allot Channel

231C1 to Red Lake, Minnesota, on the

Red Lake Reservation. The coordinates

for Red Lake are 47–55–30 and 95–19–

00. Canadian concurrence has been

received for both allotments. With this

action, this proceeding is terminated.

DATES: Effective June 16, 1995. The

window period for filing applications

for Channel 238C1 at Bemidji,

Minnesota, and Channel 231C1 at Red

Lake, Minnesota, will open on June 16,

1995, and close on July 17, 1995.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scheuerle, Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Report

and Order, MM Docket No. 93–170,

adopted April 20, 1995, and released

May 2, 1995. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the Commission’s

Reference Center (Room 239), 1919 M

Street, NW, Washington, D.C. The

complete text of this decision may also

be purchased from the Commission’s

copy contractors, International

Transcription Services, Inc., 2100 M

Street, NW, Suite 140, Washington, D.C.

20037, (202) 857–3800.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: Secs. 303, 48 Stat., as amended,

1082; 47 U.S.C. 154, as amended.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Minnesota, is

amended by adding Channel 238C1 at

Bemidji and Red Lake, Channel 231C1.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 95–11116 Filed 5–4–95; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF ENERGY

48 CFR Parts 926, 952, and 970

RIN 1991–AB11

Acquisition Regulation:

Implementation of Section 3021 of the

Energy Policy Act of 1992

AGENCY: Department of Energy (DOE).

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE) hereby amends the Department of

Energy Acquisition Regulation (DEAR)

to carry out Section 3021 of the Energy

Policy Act of 1992 which requires DOE

to achieve a 10 percent goal for awards

of prime contracts and subcontracts for

specific types of universities and for

small business concerns owned and

controlled by socially and economically

disadvantaged individuals and by

women.

EFFECTIVE DATE: June 5, 1995.

FOR FURTHER INFORMATION CONTACT:

Robert M. Webb, Office of Policy (HR–

51), Office of Procurement and

Assistance Management, U.S.

Department of Energy, Washington, DC

20585, (202) 586–8264.

SUPPLEMENTARY INFORMATION:

I. Background

A. Discussion

B. Disposition of Comments

II. Procedural Requirements

A. Regulatory Review

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility

Act

D. Review Under the Paperwork Reduction

Act

E. Review Under Executive Order 12612

F. National Environmental Policy Act

I. Background

A. Discussion

Section 3021(a) of Energy Policy Act

of 1992 (Pub. L. 102–486) requires that

DOE, to the extent practicable, provide

that the obligation of not less than 10

percent of the total combined amounts

obligated for contracts and subcontracts

pursuant to competitive procedures be

expended with small business concerns

owned and controlled by socially and

economically disadvantaged individuals

or by women; with historically Black

colleges and universities; or with

colleges and universities having a

student body in which more than 20

percent of the students are Hispanic

Americans or Native Americans.

On July 11, 1994, a proposed rule to

amend the DEAR to establish DOE

policies and procedures for

implementing Section 3021 of the

Energy Policy Act was published at 59

FR 35294.

Seven sets of comments were

received. Those comments have been

considered and appropriate changes

have been made as described in the

analysis below.

B. Disposition of Comments

One commenter recommended that

the proposed rule ‘‘be rescinded and

that these rules be redrawn to

incorporate reforms made possible’’ by

the enactment of the Federal

Acquisition Streamlining Act of 1994,

Pub. L. 103–355. We have made

alterations that will be discussed later in

this preamble to the rule to reflect the

Streamlining Act’s effects. Generally, we

have expanded the provisions of the

rule designed to achieve the goals of

Section 3021 by including recognition

of small disadvantaged business setasides as authorized by the Streamlining

Act, the introduction of a simplified

acquisition threshold, and the deletion

of the ‘‘small purchase threshold’’ also

provided by the Streamlining Act.

Another commenter ‘‘strongly urge[s]

implementation’’ of these rules. We are

proceeding with the implementation of

this section of the Energy Policy Act

with the promulgation of this rule.

A commenter states that we have

misinterpreted Section 3021 in that

‘‘[t]he term ‘no less than’ does not

equate with a goal but, rather, with a

specific amount; a set-aside.’’ A second

commenter contends that Section 3021

establishes a goal, but believes that the

provisions and clauses of the proposed

rule were not sufficiently clear that the

10 percent is a goal and not ‘‘a quota.’’

We disagree with the first commenter in

that the statutory language is ‘‘To the

extent practicable, the head of each

agency shall provide that the obligation

of not less than 10 percent * * *’’

(emphasis added.) It is clear that the

percentage sets a target that is

conditioned on the circumstances of the

competitive procurements. We believe

that the promulgation of this final rule

in its present form is the proper

implementation of this statutory

provision. We have reviewed each of the

provisions of the solicitation provisions