Cooperative State Research, Education, and Extension Service
Economic Research Service
Forest Service
Committee for Purchase From People Who Are Blind or Severely Disabled
Census Bureau
Export Administration Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Navy Department
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
National Institutes of Health
Fish and Wildlife Service
Land Management Bureau
Minerals Management Service
National Park Service
Antitrust Division
Employment Standards Administration
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
National Institutes of Health
Coast Guard
Federal Aviation Administration
Maritime Administration
Surface Transportation Board
Alcohol, Tobacco and Firearms Bureau
Customs Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
National Credit Union Administration.
Interim final rule with request for comments.
The National Credit Union Administration (NCUA) is adopting a rule clarifying that as conservator or liquidating agent of a federally-insured credit union, the NCUA Board (Board) will honor a claim for prepayment fees by a Federal Home Loan Bank under the circumstances set forth in the rule.
Effective February 23, 2001. NCUA welcomes comments on this interim final rule. Comments must be received on or before April 24, 2001.
Comments should be directed to Becky Baker, Secretary of the Board. Mail or hand-deliver comments to: National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428. You may also fax comments to (703) 518-6319 or e-mail comments to regcomments@ncua.gov.
Chrisanthy J. Loizos, Staff Attorney, Division of Operations, Office of General Counsel, at the above address or telephone: (703) 518-6540.
Federally-insured credit unions (FICUs) are eligible for membership at the Federal Home Loan Bank in their district provided they meet certain statutory requirements. 12 U.S.C. 1422(12)(B), 1424. As members of a Federal Home Loan Bank, FICUs may receive long term, secured advances for the purpose of providing funds for residential loans.
The Board, when acting as conservator or liquidating agent of any FICU, has the power to disaffirm or repudiate contracts or leases (i) to which the credit union is a party; (ii) the performance of which the conservator or liquidating agent, in the conservator's or liquidating agent's discretion, determines to be burdensome; and (iii) the disaffirmance or repudiation of which the conservator or liquidating agent determines, in the conservator's or liquidating agent's discretion, will promote the orderly administration of the credit union's affairs. 12 U.S.C. 1787(c)(1). Repudiation of a contract relieves the Board from performing any unperformed obligations remaining under the contract. Repudiation also entitles the other party to the contract to a claim for damages, which are limited by statute to actual direct compensatory damages determined as of the date of the appointment of the liquidating agent or conservator.
The Federal Credit Union Act establishes an exception to the Board's authority to repudiate contracts entered into by an FICU before the Board is appointed the FICU's conservator or liquidating agent. The Board may not repudiate a contract regarding an extension of credit from any Federal Home Loan Bank to an FICU. 12 U.S.C. 1787(c)(13).
This rule, § 709.12, sets forth the circumstances under which the Board, as conservator or liquidating agent, will honor a claim for prepayment fees by a Federal Home Loan Bank (Bank) when an FICU in conservatorship or liquidation has an outstanding extension of credit with the Bank. The rule tracks one used by the Federal Deposit Insurance Corporation (FDIC) when federally-insured banks with extensions of credit from a Federal Home Loan Bank are conserved or placed in receivership.
Prepayment fees are an integral part of the operations of Federal Home Loan Banks because they issue long term obligations in order to make prudent long term advances to members. The prepayment of long term advances can result in losses to a Bank, depending upon reinvestment opportunities available at the time of such prepayment. 54 FR 19155, May 4, 1989. The rule allows the payment of a prepayment fee to the Bank if set forth in a written contract, provided: (1) That the fee does not exceed the present value of any economic loss suffered by the Bank; and, (2) the collateral is sufficient to pay in full the principal and interest due on secured advances and the applicable prepayment fee.
The NCUA Board is issuing this rule as an interim final rule because there is a strong public interest in assuring that FICUs are in the same position as other depository institutions that obtain advances from Federal Home Loan Banks as soon as possible. This interim rule benefits FICUs with no additional burden by giving them the opportunity to receive advances from Federal Home Loan Banks at a lower cost of funds than may be available from alternative sources. Accordingly, for good cause,
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any regulation may have on a substantial number of small entities. For purposes of this analysis, credit unions under $1 million in assets will be considered small entities.
The NCUA Board has determined and certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule allows FICUs that are members of Federal Home Loan Banks to receive advances at lower rates of interest for the benefit of their members without any additional regulatory burden or expense to credit unions. Accordingly, the NCUA has determined that a Regulatory Flexibility Analysis is not required.
NCUA has determined that this rule does not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this is not a major rule.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will apply to some state-chartered credit unions, but it will not have substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether this rule is understandable and minimally intrusive.
Credit unions, Liquidations.
By the National Credit Union Administration Board, on February 15, 2001.
12 U.S.C. 1757, 1766, 1767, 1786, 1787, 1788, 1789, 1789a.
The rules and procedures in this part apply to charter revocations of federal credit unions under 12 U.S.C. 1787(a)(1)(A), (B), the involuntary liquidation and adjudication of creditor claims in all cases involving federally-insured credit unions, the treatment by the Board as conservator or liquidating agent of financial assets transferred in connection with a securitization or participation or of public funds held by a federally-insured credit union, and the allowance of prepayment fees to Federal Home Loan Banks under specified conditions. * * *
The Board as conservator or liquidating agent of a federally-insured credit union in receipt of any extension of credit from a Federal Home Loan Bank will allow a claim for a prepayment fee by the Bank if:
(a) The claim is made pursuant to a written contract that provides for a prepayment fee but the prepayment fee allowed by the Board will not exceed the present value of the loss attributable to the difference between the contract rate of the secured borrowing and the reinvestment rate then available to the Bank; and
(b) The indebtedness owed to the Bank is secured by sufficient collateral in which a perfected security interest in favor of the Bank exists or as to which the Bank's security interest is entitled to priority under section 306(d) of the Competitive Equality Banking Act of 1987, 12 U.S.C. 1430(e) footnote (1), or otherwise so that the aggregate of the outstanding principal on the advances secured by the collateral, the accrued but unpaid interest on the outstanding principal and the prepayment fee applicable to the advances can be paid in full from the amounts realized from the collateral. For purposes of this paragraph, the adequacy of the collateral will be determined as of the date the prepayment fees are due and payable under the terms of the written contract.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends the legal descriptions of three Federal airways that use the Douglas, WY, Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) in their route structure. Currently, the Douglas VOR/DME and the Converse County, WY, Airport share the same location identifier. The fact that the VOR/DME and the airport are not collocated has led to confusion among users. To eliminate this confusion, the Douglas VOR/DME will be renamed the “Hipsher VOR/DME,” and all the airways with “Douglas VOR/DME” included in their legal descriptions will be amended, concurrent with the
0901 UTC, May 17, 2001.
Ken McElroy, Airspace and Rules Division, ATA-400, Office of Air Traffic Airspace Management, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: (202) 267-8783.
This action amends 14 CFR part 71 (part 71) by changing the legal descriptions of three Federal airways that have “Douglas VOR/DME” included as part of their route structure. Currently, the Douglas VOR/DME and the Converse County, WY Airport share the same location identifier. The fact that the VOR/DME and the airport are not collocated has led to confusion among users. To eliminate this confusion, the Douglas VOR/DME will be renamed the “Hipsher VOR/DME,” and all the airways with “Douglas VOR/DME” included in their legal descriptions will be amended to reflect the name change. The name change of the VOR/DME will coincide with the effective date of this rulemaking action.
Since this action merely involves editorial changes in the legal description of three Federal airways, and does not involve a change in the dimensions or operating requirements of that airspace, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9H, dated September 1, 2000, and effective September 16, 2000, which is incorporated by reference in 14 CFR 71.1. The airways listed in this document would be published subsequently in the order.
Airspace, Incorporation by reference, Navigation (air).
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Department of Commerce.
Final rule.
The Secretary of Commerce is issuing a final rule to revoke a delegation of authority to the Director of the Census. By that delegation the Secretary authorized the Director of the Census to make a determination regarding the methodology to be used in calculating the tabulations of population to be reported to States and localities pursuant to 13 U.S.C. 141(c). This final rule will require that this determination be made by the Secretary, and establishes an open and fair decision-making process.
This rule is effective February 23, 2001.
Alden F. Abbott, Acting General Counsel, U.S. Department of Commerce, (202) 482-1328.
Through the Census Act, which is codified in title 13 of the United States Code, Congress has delegated to the Secretary of Commerce its broad constitutional authority over the decennial census (see U.S. Constitution Art. I, Sec. 2, Cl.3). On October 6, 2000, the Commerce Department issued a final rule that set forth how the Bureau of the Census will carry out its responsibilities to report tabulations of population to States and localities pursuant to the Census Act.
The October 6, 2000, final rule delegated the methodological determination to the Census Director. Reflecting the character of its
The October 6, 2000, rule further established a process for the release of data to the States to meet the requirements of 13 U.S.C. 141(c). The process in the regulation envisioned two scenarios. First, where the decision was made to use sampling to produce the tabulations of population to report to States and localities after a recommendation by the Census Bureau committee to do so, the October 6, 2000, rule incorporated the requirement of section 209(j) of Public Law 105-119 to also release simultaneously data prepared without the use of such statistical method. Second, the October 6, 2000, rule adopted a new requirement (not mandated by section 209(j)) that, if the decision was made to produce tabulations of population without the use of statistical adjustment notwithstanding a recommendation by the Census Bureau committee to do so, data prepared with the use of such method would be made available to the public simultaneously with the release of data prepared without the use of statistical adjustment. Not discussed in the October 6, 2000, rule was the release of data when the Census Bureau committee recommended statistical adjustment not be used and that recommendation was adopted. Because the Department can not rule out situations in which the release of data produced by statistical adjustment might be inappropriate (for instance the release of statistics with material error), the Secretary has decided to remove this section of the regulation for further study.
This final rule has been determined to be not significant under section 3(f) of Executive Order 12866.
Pursuant to authority at 5 U.S.C. 553(b)(A), this rule of agency organization, procedure and practice is not subject to the requirement to provide prior notice and an opportunity for public comment. This rule of agency organization, procedure and practice is not a substantive rule subject to the requirement, in 5 U.S.C. 553(d), for a 30-day delay in effective date.
This final rule contains no new information collection requests subject to the Paperwork Reduction Act.
Because this rule is not subject to the requirement to provide prior notice and an opportunity for public comment under 5 U.S.C. 553, or any other law, it is not subject to the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule contains no Federal mandates, as that term is defined in the Unfunded Mandates Reform Act, on State, local and tribal governments or the private sector.
This rule does not contain policies that have takings implications.
Administrative practice and procedure, Census data.
5 U.S.C. 301; 13 U.S.C. 4, 141, 195; 15 U.S.C. 1512.
(a)(1) The Secretary of Commerce shall make the final determination regarding the methodology to be used in calculating the tabulations of population reported to States and localities pursuant to 13 U.S.C. 141(c). The determination of the Secretary will be published in the
(2) The Secretary shall not make the determination specified in paragraph (a)(1) of this section until after he or she receives the recommendation of the Director of the Census, together with the report of the Executive Steering Committee for A.C.E. Policy, in accordance with paragraph (b)(1) of this section.
(b)(1) The Executive Steering Committee for A.C.E. Policy shall prepare a written report to the Director of the Census analyzing the methodologies that may be used in making the tabulations of population reported to States and localities pursuant to 13 U.S.C. 141(c), and the factors relevant to the possible choices of methodology. The Director of the Census will forward the Executive Steering Committee for A.C.E. Policy report and his or her recommendation on methodology, if any, to the Secretary of Commerce.
(2) The recommendation of the Director of the Census, together with report of the Executive Steering Committee for A.C.E. Policy described in paragraph (b)(1) of this section, shall be released to the public at the same time it is delivered to the Secretary. This release to the public shall include, but is not limited to, posting of the report on the Bureau of the Census website and publication of the report in the
(3) The Executive Steering Committee for A.C.E. Policy is composed of the following employees of the Bureau of the Census:
(i) Deputy Director and Chief Operating Officer;
(ii) Principal Associate Director and Chief Financial Officer;
(iii) Principal Associate Director for Programs;
(iv) Associate Director for Decennial Census (Chair);
(v) Assistant Director for Decennial Census;
(vi) Associate Director for Demographic Programs;
(vii) Associate Director for Methodology and Standards;
(viii) Chief; Planning, Research, and Evaluation Division;
(ix) Chief; Decennial Management Division;
(x) Chief; Decennial Statistical Studies Division;
(xi) Chief; Population Division; and
(xii) Senior Mathematical Statistician.
Coast Guard, DOT.
Notice of temporary deviation from regulations.
The Commander, Seventh Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Siesta Key Bridge (SR 758) across the Gulf Intracoastal Waterway, mile 71.6, Sarasota County, Sarasota, Florida. This deviation allows the drawbridge owner or operator to only open one leaf of the drawbridge, from 8 a.m. until 5 p.m., on March 5, 2001 and March 6, 2001. This temporary deviation is required to allow the bridge owner to safely complete maintenance on the bridge.
This deviation is effective from 8 a.m. on March 5, 2001 until 5 p.m. on March 6, 2001.
Mr. Barry Dragon, Chief, Operations Section, Seventh Coast Guard District, Bridge Section at (305) 415-6743.
The Siesta Key Bridge across the Gulf Intracoastal Waterway at Sarasota County, Sarasota, is a double leaf bridge with a vertical clearance of 21 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 90 feet. On January 24, 2001, the Florida Department of Transportation, the drawbridge owner, requested a deviation from the current operating regulations in 33 CFR 117.287(b-1). These regulations require the draw to open on signal, except from 11 a.m. to 6 p.m. daily, the draw need only open on the hour, 20 minutes past the hour, and 40 minutes past the hour. This temporary deviation was requested to allow necessary maintenance to the drawbridge in a critical time sensitive manner.
The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.287(b-1) for the purpose of maintenance on the drawbridge. Under this deviation, the Siesta Key Bridge need only open one leaf from 8 a.m. until 5 p.m., March 5, 2001 and March 6, 2001.
Coast Guard, DOT.
Notice of temporary deviation from regulations.
The Commander, Seventh Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Cortez Bridge across the Gulf Intracoastal Waterway, mile 87.4, Sarasota County, Cortez, Florida. This deviation allows the drawbridge owner or operator to only open one leaf of the drawbridge, from 8 a.m. until 5 p.m., on March 12, 2001 and March 13, 2001. This temporary deviation is required to allow the bridge owner to safely complete maintenance on the bridge.
This deviation is effective from 8 a.m. on March 12, 2001 until 5 p.m. on March 13, 2001.
Mr. Barry Dragon, Chief, Operations Section, Seventh Coast Guard District, Bridge Section at (305) 415-6743.
The Cortez Bridge across the Gulf Intracoastal Waterway at Sarasota County, Cortez, FL is a double leaf bridge with a vertical clearance of 25.5 feet above mean high water (MHW) measured at the fenders in the closed position with a horizontal clearance of 90 feet. On January 24, 2001, the Florida Department of Transportation, the drawbridge owner, requested a deviation from the current operating regulations in 33 CFR 117.287(d)(1). Those regulations require the draw to open on signal, except from 7 a.m. to 6 p.m., the draw need only open on the hour, twenty minutes past the hour, and forty minutes past the hour. This temporary deviation was requested to allow necessary maintenance to the drawbridge in a critical time sensitive manner.
The District Commander has granted a temporary deviation from the operating requirements listed in 33 CFR 117.287(d)(1) for the purpose of maintenance on the drawbridge. Under this deviation, the Cortez Bridge need only open one leaf from 8 a.m. until 5 p.m. on March 12, 2001 and March 13, 2001.
Environmental Protection Agency (EPA).
Final rule; amendment.
The EPA is issuing this final rule amendment to indefinitely stay the current compliance date of February 27, 2001, for the provisions pertaining to process contact cooling towers (PCCT) for existing affected sources producing poly (ethylene terephthalate) (PET) using the continuous terephthalic acid (TPA) high viscosity multiple end finisher process. On August 29, 2000, the EPA issued a direct final rule (65 FR 52319) and a parallel proposal (65 FR 52392) to stay the compliance date indefinitely because the EPA is in the process of responding to a request to reconsider relevant portions of the rule which may result in changes to the emission limitation applying to PCCT in this subcategory.
On September 20, 2000, the EPA received an adverse comment on the direct final rule for an indefinite stay of compliance. Therefore, the EPA withdrew the direct final rule (65 FR 64161; October 26, 2000). After considering the comments received, the EPA is promulgating the indefinite stay of compliance through this amendment.
February 23, 2001.
A docket, No. A-92-45, containing information considered by the EPA in the development of the standards for the Group IV Polymers and Resins, is available for public inspection and copying between 8 a.m. and 5 p.m., Monday through Friday, at the EPA's Air and Radiation Docket and Information Center, Waterside Mall, Room M-1500, first floor, 401 M Street, SW, Washington, DC 20460.
Mr. Robert E. Rosensteel, US EPA, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711, telephone (919) 541-5608, fax (919) 541-3470, and electronic mail: rosensteel.bob@epa.gov.
This table is not intended to be exhaustive but, rather, provides a guide for readers likely to be interested in this action. To determine whether your facility is affected by this action, you should carefully examine all of the applicability criteria in 40 CFR part 63, subpart JJJ. If you have any questions regarding the applicability of this final rule amendment to a particular entity, consult the person listed in the preceding
On August 29, 2000, we proposed to indefinitely stay the compliance date specified in 40 CFR 63.1311(c) for the provisions contained in 40 CFR 63.1329 for existing affected sources producing PET using the continuous TPA high viscosity multiple end finisher process. The proposed indefinite stay applied only to the PCCT emission limitation at existing affected sources. It did not affect any other provisions of the rule applying to this subcategory or any other subcategories.
We proposed this indefinite stay of the compliance date because the EPA is in the process of responding to a request to reconsider relevant portions of the rule which may result in changes to the emission limitation applying to PCCT in this subcategory, and it is unlikely that the reconsideration process will be complete before actions are necessary to comply with the current PCCT standard. We intend to complete our reconsideration of the rule and take appropriate action as expeditiously as practical. Following our reconsideration of the rule, we will establish a new compliance date for the provisions contained in 40 CFR 63.1329. For these reasons, we are providing an indefinite stay of the compliance date.
We received one adverse comment letter on the proposed indefinite stay, a follow-up letter from the same commenter, and one favorable comment letter. On August 29, 2000, we also issued a parallel direct final rule (65 FR 52319). Because we received an adverse comment, we withdrew the direct final rule on October 26, 2000 (65 FR 64161). In this final amendment, we are addressing the adverse comment and promulgating the proposed rule as presented in the August 29, 2000,
We are issuing an indefinite stay of the existing source compliance date associated with the PCCT standard for the Group IV Polymers and Resins National Emission Standards for Hazardous Air Pollutant (NESHAP) Emissions (40 CFR 63.1311(c), subpart JJJ) for existing affected sources producing PET using the continuous TPA high viscosity multiple end finisher process.
We received one adverse comment which objected to the “open-ended” aspect of the stay. The commenter stated that the EPA must establish a “firm” date for the indefinite stay and the completion of its consideration of KoSa's petition for reconsideration.
After receiving the adverse comment, we discussed with the commenter their concerns regarding the “open-ended” nature of the stay. We explained, as we had stated in the proposal, that we could not set a firm date at this time because it was unclear when our reconsideration of the pending administrative petitions would conclude. We stated that we planned to set a firm date once we completed the reconsideration. The commenter submitted a second comment letter withdrawing its objection to the proposed stay. We also received one comment supporting an indefinite stay.
No changes have been made to the proposed indefinite stay (65 FR 52392). Thus, this final rule amendment is identical to that presented in the proposed rule.
This indefinite stay affects a single facility. We do not believe that this stay will, as a practical matter, affect the overall effectiveness of the Group IV Polymers and Resins NESHAP.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) on the basis of the requirements of the Executive Order in addition to its normal review requirements. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Today's action does not fall within any of the four categories described above and, therefore, does not constitute a “significant regulatory action” within the meaning of Executive Order 12866 and was not required to be reviewed by OMB.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final rule amendment does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This is because the final action applies to affected sources in the PET facilities, not to States or local governments. Nor will State law be preempted, or any mandates be imposed on States or local governments. Thus, the requirements of section 6 of the Executive Order do not apply to this final action.
Under Executive Order 13084, we may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or we consult with those governments. If we comply by consulting, we are required by Executive Order 13084 to provide to the OMB in a separately identified section of the preamble to the rule, a description of the extent of our prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires us to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
Today's final action does not significantly or uniquely affect the communities of Indian tribal governments because they do not own or operate any of the sources affected by this rule. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this action.
Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action as defined in Executive Order 12866, and it is based on technology performance and not on health or safety risks.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, we must generally prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least-costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
The EPA has determined that today's action does not contain a Federal
We also have determined that this action contains no regulatory requirements that might significantly or uniquely affect small governments. This rule does not impose any enforceable duties on small governments, i.e., they own or operate no sources subject to this rule and, therefore, are not required to purchase control systems to meet the requirements of this rule.
The EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule amendment. The EPA also has determined that this rule amendment will not have a significant impact on a substantial number of small entities. Only one entity is subject to the PCCT standard, and it is not a small entity. In addition, this rule amendment will relieve regulatory burden for the entity subject to the PCCT standard.
For the Group IV Polymers and Resins NESHAP, the information collection requirements were submitted to the OMB under the Paperwork Reduction Act. The OMB approved the information collection requirements and assigned OMB control number 2060-0351. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. The EPA has amended 40 CFR part 9, section 9.1, to indicate the information collection requirements contained in the Group IV Polymers and Resins NESHAP.
Today's action has no impact on the information collection burden estimates made previously. Therefore, the Information Collection Request has not been revised.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note), directs all Federal agencies to use voluntary consensus standards instead of government-unique standards in their regulatory activities unless to do so would be inconsistent with applicable law or would be otherwise impractical. Voluntary consensus standards are technical standards (e.g., material specifications, test method, sampling and analytical procedures, business practices, etc.) that are developed or adopted by one or more voluntary consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials, the National Fire Protection Association, and the Society of Automotive Engineers. The NTTAA requires Federal agencies like the EPA to provide Congress, through OMB, with explanations when the EPA decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.
Title 40 of the Code of Federal Regulations, chapter I, part 63, subpart JJJ is being amended as follows:
42 U.S.C. 7401
(c) Existing affected sources shall be in compliance with this subpart (except for § 63.1331 for which compliance is covered by paragraph (d) of this section) no later than June 19, 2001, as provided in § 63.6(c), unless an extension has been granted as specified in paragraph (e) of this section, except that the compliance date for the provisions contained in § 63.1329 is extended to February 27, 2001, for existing affected sources whose primary product, as determined using the procedures specified in § 63.1310(f), is PET using a continuous terephthalic acid high viscosity multiple end finisher process.
The compliance date of February 27, 2001 for the provisions of § 63.1329 for existing affected sources whose primary product, as determined using the procedures specified in 63.1310(f), is PET using a continuous terephthalic acid high viscosity multiple end finisher process is stayed indefinitely. The EPA will publish a document in the
Federal Communications Commission.
Final rule; announcement of effective date.
The Federal Communications Commission (FCC or Commission)
The amendments to 47 CFR 52.15, which contain information collection requirements, are published at 66 FR 9528 (Feb. 8, 2001) and became effective on January 25, 2001.
Sanford Williams, (202) 418-2320 or email at
On December 7, 2001, the Commission adopted a report and order to implement strategies designed to improve the efficient use of numbering resources in the NANP, a summary of which was published in the
Communications common carriers, Telecommunications.
Federal Communications Commission.
Final rule; announcement of effective date.
The Commission revised the children's educational television reporting requirements of commercial broadcast television licensees, which involved a number of revisions to FCC Form 398, the Children's Television Programming Report. Certain of these rule and form revisions contained new and modified information collection requirements and were published in the
The revisions to § 73.3526(e)(11)(iii), published at 65 FR 67283 (November 9, 2000), became effective on January 1, 2001. The revised Form 398 will be used for the quarterly Children's Television Programming Reports due to be filed by April 10, 2001.
Kim Matthews, Mass Media Bureau, Policy and Rules Division, (202) 418-2130.
On December 15, 2000, the Office of Management and Budget (OMB) approved the information collection requirements contained in the revised 47 CFR 73.3526(e)(11)(iii) and FCC Form 398 pursuant to OMB Control Nos. 3060-0754. Accordingly, the information collection requirements contained in this rule became effective on January 1, 2001, and the revised form will be used for the quarterly Children's Television Programming Report due to be filed by April 10, 2001.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Trip limit reduction.
NMFS reduces the trip limit in the commercial hook-and-line fishery for king mackerel in the southern Florida west coast subzone to 500 lb (227 kg) of king mackerel per day in or from the exclusive economic zone (EEZ). This trip limit reduction is necessary to protect the overfished Gulf king mackerel resource.
This rule is effective 12:01 a.m., local time, February 20, 2001, through June 30, 2001, unless changed by further notification in the
Mark Godcharles, telephone: 727-570-5305, fax: 727-570-5583, e-mail: Mark.Godcharles@noaa.gov.
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on February 19, 1998 (63 FR 8353) NMFS implemented a commercial quota of 2.34 million lb (1.06 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. On April 27, 2000, NMFS divided the Florida west coast subzone of the eastern zone into northern and southern subzones and established a separate quota for the southern Florida west coast subzone of 1,082,250 lb (490,900 kg) (65 FR 16336, March 28, 2000). That quota was further divided into two equal quotas of 541,125 lb (245,450 kg) for vessels in each of two groups fishing with hook-and-line gear and run-around gillnets (50 CFR 622.42(c)(1)(i)(A)(
In accordance with 50 CFR 622.44(a)(2)(ii)(B)(
NMFS has determined that 75 percent of the quota for Gulf group king mackerel for vessels using hook-and-line gear in the southern Florida west coast subzone will be reached by
The Florida west coast subzone is that part of the eastern zone south and west of 25°20.4′ N . lat., which is a line directly east from the Miami-Dade County, FL, boundary. The Florida west coast subzone is further divided into northern and southern subzones. The southern subzone is that part of the Florida west coast subzone which from November 1 through March 31 extends south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat.(a line directly west from the Lee/Collier County, FL, boundary), i.e., the area off Collier and Monroe Counties. From April 1 through October 31, the southern subzone is that part of the Florida west coast subzone which is between 26°19.8′ N. lat. and 25°48′ N. lat.(a line directly west from the Monroe/Collier County, FL, boundary), i.e., the area off Collier County.
This action responds to the best available information recently obtained from the fishery. The reduced trip limit must be implemented immediately because 75 percent of the quota has been harvested. Any delay in implementing this action would be impractical and contradictory to the Magnuson-Stevens Act, the FMP, and the public interest. NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived.
This action is taken under 50 CFR 622.44(a)(2)(iii) and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Credit Union Administration (NCUA).
Proposed rule.
NCUA proposes to revise its regulation establishing standards for vital record preservation. The proposal clarifies that a credit union may preserve records in electronic form, as authorized by the Electronic Signatures in Global and National Commerce Act. By eliminating the requirement that a credit union's financial officer be responsible for storing vital records, the revision permits a credit union's board of directors to determine which employee will be responsible for storing vital records under the record preservation program. It also incorporates an appendix to provide suggested guidelines to credit unions on retention periods for various types of records.
Comments must be received on or before April 24, 2001.
Direct comments to Becky Baker, Secretary of the Board. Mail or hand-deliver comments to: National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. Fax comments to (703) 518-6319. E-mail comments to regcomments@ncua.gov.
Dianne M. Salva, Staff Attorney, Division of Operations, Office of General Counsel, at the above address or telephone: (703) 518-6540.
NCUA is proposing a revision of its regulation governing the preservation of vital records. The revision simplifies the regulation by converting it to a question and answer format. It also updates and clarifies the provision of the regulation that currently permits a credit union to store records in any format that can be used to reconstruct the credit union's files. By implementing the record retention provisions of the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001, the revision clarifies that credit unions may store records in any electronic format that is accurate, accessible and capable of being reproduced by printing, transmittal or other methods.
The current regulation designates that the credit union's financial officer is responsible for vital records preservation duties. The Board finds that the credit union's board of directors may reasonably assign the duties to another staff member. The revision permits a credit union's board of directors to determine which employee will be responsible for carrying out the vital record preservation duties.
Section 749.2 of the proposal restates the provision in the existing regulation that credit unions whose records are retained by off-site data processors are deemed to be in compliance for those records. The Board notes that credit unions should exercise care in the selection of an off-site data processor to ensure that it is capable of producing the records if requested.
There is a need for guidance in the area of record retention based on the frequency of requests for assistance from credit unions. Although similar guidance is available in the NCUA Accounting Manual for Credit Unions, it will be more accessible as an appendix to the regulation. For those reasons, the revision incorporates an appendix that offers guidance on recommended retention periods for various types of credit union records.
NCUA has determined that the proposed regulation does not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This proposed rule, if adopted, will apply only to all federally insured credit unions. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that the proposed rule does not constitute a policy that has federalism implications for purposes of the executive order.
The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families.
The NCUA has determined that this proposed rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).
NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the proposed rule is understandable and minimally intrusive if implemented as proposed.
Archives and records, Credit unions, Reporting and recordkeeping requirements.
By the National Credit Union Administration Board on February 15, 2001.
For the reasons set forth in the preamble, it is proposed that 12 CFR Part 749 is revised to read as follows:
12 U.S.C. 1766, 1783 and 1789, 15 U.S.C. 7001(d).
This part describes the obligations of all federally insured credit unions to maintain a records preservation program to identify, store and reconstruct vital records in the event that the credit union's records are destroyed. It establishes flexibility in the format credit unions may use for maintaining writings, records or information required by other NCUA regulations. The appendix also provides guidance concerning the appropriate length of time credit unions should retain various types of operational records.
Vital records include at least the following records, as of the most recent month-end:
(a) A list of share, deposit, and loan balances for each member's account which:
(1) Shows each balance individually identified by a name or number;
(2) Lists multiple loans of one account separately; and
(3) Contains information sufficient to enable the credit union to locate each member, such as address and telephone number, unless the board of directors determines that the information is readily available from another source.
(b) A financial report, which lists all of the credit union's asset and liability accounts and bank reconcilements.
(c) A list of the credit union's financial institutions, insurance policies, and investments. This information may be marked “permanent” and stored separately, to be updated only when changes are made.
The board of directors of a credit union is responsible for establishing a vital records preservation program within 6 months after its insurance certificate is issued. The vital records preservation program must contain procedures for storing duplicate vital records at a vital records center and must designate the staff member responsible for carrying out the vital records duties. Records must be stored every 3 months, within 30 days after the end of the 3-month period. Previously stored records may be destroyed when the current records are stored. The credit union must also maintain a records preservation log showing what records were stored, where the records were stored, when the records were stored, and who sent the records for storage. Credit unions, which have some or all of their records maintained by an off-site data processor, are considered to be in compliance for the storage of those records.
A vital records center is defined as a storage facility at any location far enough from the credit union's offices to avoid the simultaneous loss of both sets of records in the event of disaster.
Preserved records may be in any format that can be used to reconstruct the credit union's records. Formats include paper originals, machine copies, micro-film or fiche, magnetic tape, or any electronic format that accurately reflects the information in the record, remains accessible to all persons who are entitled to access by statute, regulation or rule of law, and is capable of being reproduced by transmission, printing or otherwise.
Various NCUA regulations require credit unions to maintain certain writings, records or information. Credit unions may use any format, electronic or other, for maintaining the writings, records or information that accurately reflects the information, remains accessible to all persons who are entitled to access by statute, regulation or rule of law, and is capable of being reproduced by transmission, printing or otherwise. The credit union must maintain the necessary equipment or software to permit an examiner access to the records during the examination process.
Credit unions often look to NCUA for guidance on the appropriate length of time to retain various types of operational records. NCUA does not regulate in this area, but as an aid to credit unions it is publishing this appendix of suggested guidelines for record retention. NCUA recognizes that credit unions must strike a balance between the competing demands of space, resource allocation and the desire to retain all the records that they may need to conduct their business successfully. Efficiency requires that all records that are no longer useful be discarded, just as both efficiency and safety require that useful records be preserved and kept readily available.
NCUA does not recommend a particular format for record retention. If the credit union stores records on microfilm, microfiche, or in an electronic format, the stored records must be accurate, reproducible and accessible to an NCUA examiner. If records are stored on the credit union premises, they should be immediately accessible upon the examiner's request; if records are stored by a third party or off-site, then they should be made available to the examiner within a reasonable time after the examiner's request. The credit union must maintain the necessary equipment or software to permit an examiner to review and reproduce stored records upon request. The credit union should also ensure that the reproduction is acceptable for submission as evidence in a legal proceeding.
The credit union's board of directors may approve a schedule authorizing the disposal of certain records on a continuing basis upon expiration of specified retention periods. A schedule provides a system for disposal of records and eliminates the need for board approval each time the credit union wants to dispose of the same types of records created at different times.
The credit union should prepare an index of any records destroyed and retain the index permanently. Destruction of records should ordinarily be carried out by at least two persons whose signatures, attesting to the fact that records were actually destroyed, should be affixed to the listing.
Record destruction may impact the credit union's legal standing to collect on loans or defend itself in court. Since each state can impose its own rules, it is prudent for a credit union to consider consulting with local counsel when setting minimum retention periods. A record pertaining to a member's account that is not considered a vital record may be destroyed once it is verified by the supervisory committee. Individual Share and Loan Ledgers should be
(1) Official records of the credit union that should be retained permanently are:
(a) Charter, bylaws, and amendments.
(b) Certificates or licenses to operate under programs of various government agencies, such as a certificate to act as issuing agent for the sale of U. S. savings bonds.
(c) Current manuals, circular letters and other official instructions of a permanent character received from the NCUA and other governmental agencies.
(2) Key operational records that should be retained permanently are:
(a) Minutes of meetings of the membership, board of directors, credit committee, and supervisory committee.
(b) One copy of each semiannual and annual (June 30 and December 31) financial report NCUA 5300 or their equivalents.
(c) One copy of each supervisory committee comprehensive annual audit report and attachments.
(d) Supervisory committee records of account verification.
(e) Applications for membership and joint share account agreements.
(f) Journal and cash record.
(g) General ledger.
(h) Copies of the periodic statements of members, or the individual share and loan ledger. (A complete record of the account should be kept permanently.)
(i) Bank reconcilements.
(j) Listing of records destroyed.
Any record not described above is appropriate for periodic destruction unless it must be retained to comply with the requirements of consumer protection regulations. Periodic destruction should be scheduled so that the most recent of the following records are available for the annual supervisory committee audit and the NCUA examination. Records that may be periodically destroyed include:
(a) Applications of paid off loans.
(b) Paid notes.
(c) Various consumer disclosure forms, unless retention is required by law.
(d) Cash received vouchers.
(e) Journal vouchers.
(f) Canceled checks.
(g) Bank statements.
(h) Outdated manuals, canceled instructions, and nonpayment correspondence from the NCUA and other governmental agencies.
Minerals Management Service, Interior.
Extension of comment period.
The Minerals Management Service (MMS) hereby gives notice that it is extending the public comment period on a document reviewing our existing regulations, which was published in the
Written comments must be received by March 28, 2001.
Mail written comments to Department of the Interior; Minerals Management Service; Mail Stop 4230; 1849 C Street NW; Washington DC 20240; Attention: Elizabeth Montgomery, MMS Regulatory Coordinator, Policy and Management Improvement.
Elizabeth Montgomery, Policy and Management Improvement, telephone: (202) 208-3976; Fax: (202) 208-4891; and E-Mail:
MMS was asked to extend the deadline for submitting comments on the document, “Review of Existing Regulations, Request for Comment.” The requester indicated that more time was needed to comment due to the change of Administration. We believe the extension of time until March 28, 2001, will give the public sufficient time to comment on our existing regulations and on the actions we have taken in response to past comments and enacted legislation.
Coast Guard, DOT.
Extension of comment period.
In response to public requests, the Coast Guard is extending the comment period on its supplemental notice of proposed rulemaking (SNPRM) on Fire-Suppression Systems and Voyage Planning for Towing Vessels. Extending the comment period gives the public and the Towing Safety Advisory Committee (TSAC) more time to submit comments and recommendations on the issues raised in our SNPRM. These proposed rules would improve the safety of towing vessels by requiring the installation of fixed fire-extinguishing systems in their engine rooms, and by requiring their owners or operators, and their masters, to ensure that voyage plans are complete before they commence their trips with any barge in tow.
Comments on the SNPRM must reach the Coast Guard on or before May 8, 2001.
You may mail written comments to the Docket Management Facility [USCG-2000-6931], U.S. Department of Transportation (DOT), room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or deliver them to room PL-401, located on the Plaza Level of the Nassif Building at the same address between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329. You may also E-mail comments using the Marine Safety and Environmental Protection Regulations Web Page at
The Docket Management Facility maintains the public docket for the rulemaking. Comments will become part of this docket and will be available for inspection or copying at room PL-401, located on the Plaza Level of the Nassif Building at the same address between 10 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may electronically access the public docket on the Internet at
For questions on viewing, or submitting material to, the docket, call Ms. Dorothy Beard, Chief, Dockets, Department of Transportation, telephone 202-366-9329. For information on the SNPRM provisions contact (for fire suppression) Mr. Randall Eberly, P.E., Project Manager, Office of Design and Engineering Standards (G-MSE), telephone 202-267-1861, or contact (for voyage planning) Mr. Robert S. Spears, Project Manager, Office of Standards Evaluation and Development (G-MSR), telephone 202-267-1099.
The Coast Guard encourages you to submit written data, views, or arguments. If you submit comments, you should include your name and address, identify the SNPRM [USCG-2000-6931; published in the
The Coast Guard will consider all comments received during the comment period. It may change the proposed rules in view of the comments.
Postal Rate Commission.
Notice of proposed rulemaking.
The Commission proposes eliminating an ethics provision on procedures for reviewing employees' security holdings for conflicts of interest. These procedures have been overtaken by government-wide ethical standards and new screening procedures. Eliminating this provision will prevent confusion in the administration of the Commission's ethics program.
Submit comments on or before March 26, 2001.
Send comments to Margaret P. Crenshaw, Secretary, Postal Rate Commission, 1333 H Street NW., Suite 300, Washington, DC 20268-0001.
Stephen L. Sharfman, 202-789-6820.
Currently, the Commission's standards of conduct [39 CFR part 3000] contain a de minimis rule. The de minimis rule provides that security interests held by a Commission employee that are valued below a certain amount will receive a different level of scrutiny for conflicts of interest than security interests valued above the specified amount. The Commission invites the public to comment on its proposal to delete its de minimis rule.
Currently, rule 103(b) of the Commission's standards of conduct [39 CFR 3000.735-103(b)] requires the chairman of the Commission to determine an appropriate maximum limit on the value of an interest that a Commission employee may have in stocks, bonds, or other form of securities in any one entity. It authorizes the chairman to specifically approve maintaining a security interest above the maximum limit, if he determines that the interest is not so substantial as to be likely to affect the integrity of the service that the employee provides to the Commission.
The Commission finds that this procedure for screening security holdings for potential conflicts of interest has become redundant under the Commission's current screening procedures. Furthermore, 5 CFR part 2640 contains de minimis exemptions from the conflict of interest rules that are intended to govern federal agencies generally. This regulation was promulgated by the Office of Government Ethics (OGE) subsequent to the Commission's adoption of rule 103(b). The OGE has advised the Commission that its generally applicable de minimis exemptions supercede rule 103(b).
The Commission's standards of conduct prohibit its employees from having a financial interest in companies “whose interests may be significantly affected by rates of postage, fees for postal services, the classification of mail, or the operation of the Postal Service.” Conversely, they allow Commission employees to have a financial interest in companies “whose use of the mail is merely an incidental or minor factor in the general conduct of its business.” See 39 CFR 3000.735-103(a).
More than 25 years ago, the Commission's general counsel set up internal guidelines for applying rule 103 that used a three-part test to analyze financial conflicts of interest. Some interests were categorized as conflicts per se, others were categorized as non-conflicts per se, and those that remained required specific approval by the chairman. See memo of general counsel Crutchfield to the Commission staff dated December 26, 1973.
The rigorous financial reporting required by the OGE since 1989, as a practical matter, supercedes this three-part test involving per se categories. The OGE's rules now require that every agency individually analyze every asset held by a policy-making employee that is worth over $1,000 for potential conflicts with that employee's official duties. For that reason, grouping assets into those that are regarded as conflicts per se, those that are regarded as non-conflicts per se, and those that require individual analysis, no longer simplifies the evaluation of financial conflicts that the Commission must perform.
In ethics practice, assuming that financial interests do not present a potentially significant conflict if they are below a certain market value is known as a de minimis rule. Under current rule 103(b), the chairman must select the market value of financial interests that are to be considered de minimis for purposes of conflicts analysis.
The original rationale for the de minimis rule was that most companies are affected to some degree by postal services. Therefore, even where the Commission had already determined that postal activity is a minor part of a particular company's business, the Commission feared that a conflict could arise if an employee were to concentrate investments in a few such companies. See memo to the Commission from David Ruderman, dated July 13, 1993, at 3. Because the Commission now screens all investments worth more than $1,000 for per se conflicts, it has routinely approved the holding of security interests that are above the de minimis amount. Accordingly, the screening procedure required by rule 103(b) has become redundant.
Because the conflicts analysis that current rule 103(b) requires has become redundant, and because it has been superceded by the de minimis rules of
Any public comment directed toward this proposal should be submitted within 30 days of the publication of this notice in the
1. Public comment on the Commission's proposal to delete paragraph (b) from current rule 103 of its standards of conduct should be submitted within 30 days of the publication of this notice in the
2. The Secretary is directed to cause this notice of proposed rulemaking to appear in the
Administrative practice and procedure, Postal Service.
For the reasons stated in the preamble, the Postal Rate Commission proposes to amend 39 CFR part 3000 as follows:
1. The authority citation for part 3000 continues to read as follows:
39 U.S.C. 3603; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 56 FR 42547, 3 CFR, 1990 Comp., p. 306; 5 CFR parts 2634 and 2636.
2. Revise § 3000.735-103 to read as follows:
An employee shall not, either directly or indirectly, have any financial interest (whether by ownership of any stock, bond, security, or otherwise) in any entity or person whose interests may be significantly affected by rates of postage, fees for postal services, the classification of mail, or the operation of the Postal Service. This paragraph does not proscribe interests in an entity or person whose use of the mail is merely an incidental or a minor factor in the general conduct of its business.
Environmental Protection Agency (EPA).
Proposed rule; notice of public meeting.
The Environmental Protection Agency (EPA) will conduct a public meeting on the proposed significant new use rule (SNUR) on PFOS published in the
The public meeting will be held from 9 a.m. to 4 p.m. on March 27, 2001. Interested parties are requested to contact the technical person on or before Friday, March 16, 2001, to schedule presentations at the meeting.
The meeting will be held at the Sheraton Crystal City Hotel, 1800 Jefferson Davis Hwy., Arlington, VA.
-This action is directed to the public in general. This action may be of particular interest to anyone who filed written comments on the proposed SNUR for PFOS (65 FR 62319, October 18, 2000) (FRL-6745-5), or who uses products containing any of the 90 PFOS chemicals identified in the proposed SNUR. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
-For additional information on the scheduled meeting, including the meeting agenda, contact the technical person listed under
-The meeting on the proposed PFOS SNUR will be open to the public. Interested parties are requested to contact the technical person on or before Friday, March 16, 2001, to schedule presentations at the meeting. Since seating for outside observers may be limited, those wishing to attend the meeting as observers are also encouraged to contact the technical person at the earliest possible date to
-Environmental protection, Chemicals, Hazardous materials, Recordkeeping and reporting requirements.
Fish and Wildlife Service, Interior.
Notice of 90-day petition finding.
The Fish and Wildlife Service (Service) announces a 90-day finding for a petition to list the Yellowstone cutthroat trout (
The finding announced in this document was made on February 15, 2001.
Requests for copies of the petition, its accompanying attachments, or other information pertaining to this petition finding should be submitted to Chief, Branch of Native Fishes Management, U.S. Fish and Wildlife Service, 4052 Bridger Canyon Road, Bozeman, Montana 59715. The petition and information used in support of the petition finding are available for inspection, during normal business hours and by appointment, at that address. The petition, as well as the complete list of references for the finding announced in the present document, also may be obtained at our Internet web site
Lynn R. Kaeding at the above address, or telephone 406/582-0717.
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
On August 18, 1998, we received a formal petition to list the Yellowstone cutthroat trout (
The Yellowstone cutthroat trout (YCT) is one of 13 subspecies of cutthroat trout recognized by Behnke (1992) that are native to interior regions of western North America. Cutthroat trout owe their common name to the distinctive red slash that occurs just below both sides of the lower jaw. Also among those 13 cutthroat trout subspecies is the finespotted Snake River cutthroat trout (
In their petition, the petitioners considered the finespotted Snake River cutthroat trout a morphological form of YCT. Such merging of taxons is supported by biochemical-genetic studies (cited by Behnke 1992) that revealed almost no differences between the YCT and finespotted cutthroat trout at the several gene loci examined. Nonetheless, the YCT and finespotted cutthroat trout are readily separated on the basis of the sizes and patterns of spots on the sides of the fish's body. The YCT has pronounced, medium to large spots that are round in outline and moderate in number, whereas the spots of the finespotted cutthroat trout are the smallest of any native trout in western North America and so profuse they resemble “a heavy sprinkling of ground pepper” (Behnke 1992).
Although Behnke (1992) considers the YCT and finespotted Snake River cutthroat trout distinct taxonomic entities, for the purposes of the finding described in this notice we will follow the position taken in the petition and consider the YCT and finespotted Snake River cutthroat trout to be a single taxonomic entity, the YCT. However, that position should not be considered the opinion of the Federal government with regard to the taxonomic validity of the finespotted Snake River cutthroat trout. Validation of such taxonomic classifications remains altogether within the domain of taxonomists, geneticists, and other qualified scientists. Furthermore, that position should not be interpreted as our criticism of, or lack of support for, ongoing management actions that treat the finespotted Snake River cutthroat trout as a unique taxonomic entity (e.g., Wichers 2000a).
The historic range of YCT generally consists of the waters of the Snake River drainage (Columbia River basin) upstream from Shoshone Falls, Idaho, and those of the Yellowstone River drainage (Missouri River basin) upstream from and including the Tongue River, in eastern Montana (Behnke 1992). Historic range in the Yellowstone River drainage thus includes large regions of Wyoming and Montana, whereas that of the Snake River drainage includes large regions of Wyoming and Idaho and small parts of Utah and Nevada (Behnke 1992). During their evolutionary history, YCT diverged genetically and morphologically from the other subspecies of cutthroat trout while YCT inhabited only the waters of the Columbia River basin. Soon after the ice of the last glacial period (i.e., the Pleistocene Epoch) receded, about 8,000 years ago, YCT from the Snake River drainage gained entry into the Yellowstone River drainage via connected headwater streams in Two Ocean Pass, south of present-day Yellowstone National Park (Behnke 1992; Trotter 1987). Subsequently, YCT spread downstream in the Yellowstone River drainage. Today, various YCT stocks remain in each of those major river drainages in Montana, Wyoming, Idaho, Utah, and Nevada.
On September 18, 1998, we notified the petitioners that our Listing Priority Guidance, published in the
On January 12, 1999, we received Notice of Intent from Earthlaw, legal representatives for the petitioners, alleging that we had violated the Act by failing to make a finding as to whether or not the petition to list the YCT presented substantial information indicating that listing may be warranted. We responded to Earthlaw on February 8, 1999, reiterating that we would not be able to begin an evaluation of the YCT petition until the work on the higher-priority activities was completed. On November 12, 1999, plaintiffs filed a formal complaint in Federal District Court alleging that we had violated the Act by failing to publish a 90-day finding for their petition to list the YCT. On August 29, 2000, we reached a settlement agreement with plaintiffs stating that, among other things, we shall submit to the
Soon after we received the YCT petition, we provided it to natural resources agencies and Indian tribes whose responsibilities included management of YCT and their habitats. We informed those agencies and tribes of our inability to work on the petition at that time but also requested from them information on the present status of YCT, measures then underway to protect the subspecies, and comments and technical critiques pertaining to the petition. The comments that we received in response to that and subsequent requests, along with other information that was available to us, were used in arriving at the conclusions that we describe in the present document.
In their petition, the petitioners assert that the range of YCT has been reduced substantially from historic levels and the subspecies faces serious, ongoing threats to its continued survival. The petitioners further assert that seven types of threats jeopardize the continued persistence of YCT. They highlighted four major threats: (1) The continuing negative effects of legal and illegal introductions and stocking of nonnative fishes that subsequently hybridize or compete with YCT, eliminate YCT through competition, or prey upon YCT; (2) excessive harvest by anglers; (3) habitat degradation and fragmentation; and (4) whirling disease (caused by a nonnative parasite).
The three additional threats to YCT identified by the petitioners are: (5) invasion of some YCT habitats by the nonnative New Zealand mud snail; (6) that contemporary management of YCT is fraught with severe deficiencies, including a general lack of emphasis on protecting and restoring habitat necessary for viable, self-sustaining YCT stocks and management programs biased toward protecting only those YCT stocks that are genetically pure; and (7) that effective, coordinated management actions directed toward protection and restoration of YCT and their habitats across the subspecies' range, as well as the mandate needed to apply more of the budgets and personnel of natural resource agencies to those activities, can only be achieved by listing the YCT as threatened under the Act. Although the petitioners acknowledge that several current management programs attempt to reduce some of the alleged threats, they assert that the majority of those threats remain inadequately addressed or entirely unaddressed.
In response to our requests, we received information pertaining to YCT from State game and fish departments, the U.S. Forest Service, National Park Service, U.S. Fish and Wildlife Service, and tribal governments (see “References Cited”). State game and fish departments in Montana, Wyoming, and Idaho provided detailed information on the status of YCT in their respective states, as did Yellowstone National Park. We also reviewed information on YCT obtained from scientific journal articles, agency reports, and file documents.
We evaluated whether the information provided or cited in the petition to list YCT as a threatened species met the Act's standard for “substantial information.” Substantial information is defined (50 CFR 424.14(b)) as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” Consequently, we will respond to each of the major assertions made in the petition and designated by parenthetical numerals in “Petitioners' Assertions”.
(1) The scientific and commercial information available to us does not support the assertion that continuing negative effects of legal and illegal introductions and stocking of nonnative fishes pose a significant threat to the continued existence of YCT. Present-day stocking of fish by management agencies does not pose a threat to extant YCT stocks. In Montana and in Yellowstone National Park, stocking of fishes in waters inhabited by YCT no longer occurs (Graham 1999; Varley 1999). In Idaho, only Henry's Lake, Palisades Reservoir, and Tin Cup Creek are stocked with hatchery cutthroat trout (Moore 2000a), in contrast with the petitioner's allegations. Moreover, during 2000, those few Idaho streams in which the stocking of rainbow trout (
Nonetheless, many nonnative fishes formerly stocked by management agencies have established self-sustaining stocks within the historic range of YCT. In some instances those nonnative fishes are now a concern to fisheries managers (e.g., Moore 2000a; Varley 1999) because the fish may prey upon or compete with YCT, particularly if the nonnative species move into and colonize new areas. But evidence from Montana, Idaho, and Wyoming indicates the presence of introduced, nonnative fishes does not necessarily portend the imminent decline or elimination of YCT stocks in streams (McDonald 2000; Moore 2000a; Wichers 2000a). Illegal
Interbreeding of YCT and introduced, nonnative fishes is a concern to resource management agencies because it can lead to genetic introgression and the loss of genetically pure YCT. There are many examples of such interbreeding throughout the range of YCT (McDonald 2000; Moore 2000a; Wichers 2000a). However, the presence of nonnative fishes in a drainage inhabited by YCT does not always lead to such interbreeding. For example, YCT in the upper region of the Lamar River in Yellowstone National Park have remained genetically pure even though that region is accessible to nonnative, potentially interbreeding rainbow trout that have inhabited lower river areas for 60 years (Varley 1999). Even in the Yellowstone River, Montana, where nonnative rainbow trout are common, large numbers of genetically pure YCT have recently been found (Montana Department of Fish, Wildlife and Parks 2000). Similarly, analyses now underway have revealed numerous, genetically pure YCT stocks in Idaho, and several stocks formerly assumed to be genetically introgressed with rainbow trout have proven to be genetically pure (Moore 2000a).
(2) The scientific and commercial information available to us does not support the assertion that angler harvest poses a significant threat to the continued existence of YCT. Restrictive angling regulations preclude significant negative effects of angler harvest on YCT stocks throughout the subspecies' historic range (Graham 1999; Moore 1998, 2000a; Varley 1999; Wichers 2000a). For example, in Yellowstone National Park, virtually no YCT may be legally harvested by anglers (Varley 1999); the same is true for YCT in their natural habitats in Montana (Montana Department of Fish, Wildlife and Parks 2000).
(3) The scientific and commercial information available to us does not support the assertion that habitat degradation and fragmentation pose significant threats to the continued existence of YCT. The petitioners generally fail to recognize any of the efforts that are ongoing to address the impacts on YCT habitat of various management activities (Graham 1999). For example, the U.S. Forest Service, Targhee National Forest, treats YCT as a Sensitive Species. The Revised Forest Plan incorporates the standards and guidelines from the interagency Inland Native Fish (INFISH) Strategy in managing YCT stocks and their habitats. Biological evaluations are prepared for proposed activities that may affect YCT habitat; those activities must not result in loss of species viability or increase the likelihood of Federal listing of the species under the Act (Reese 1998a). Similarly, the Caribou National Forest applies INFISH or more stringent standards on all forest waters containing native fish, including YCT (Reese 1998b). The YCT is designated a Sensitive Species by the Northern, Intermountain, and Rocky Mountain Regions of the U.S. Forest Service; with that designation comes specific direction applicable to YCT management and conservation on National Forest System lands (Bosworth 2000). That direction includes assisting States in achieving their conservation goals for the subspecies; National Environmental Policy Act compliance is required for all proposed management actions; and management decisions must not result in loss of species viability or create significant trends toward listing under the Act. It is important to recognize that, outside of Yellowstone National Park, most extant YCT stocks inhabit waters on National Forest System lands (Bosworth 2000). During Fiscal Year 1999, 22 projects or activities that benefitted YCT were initiated or completed on those National Forest System lands (Bosworth 2000). Each of the seven National Forests that contains historic YCT habitat is expected to have specific direction associated with conservation of YCT in their forthcoming, revised Land Resource Management Plans (Bosworth 2000). In Montana, there are numerous, ongoing projects to protect and restore habitats for YCT or in other ways benefit the subspecies (McDonald 2000; Montana Department of Fish, Wildlife and Parks 2000). In Idaho, at least 125 actions have been or are being directed at improving YCT stocks and their habitats (Moore 2000a), and many similar actions are being or have been undertaken in Wyoming (Wichers 2000a). Degradation of YCT habitat as the result of land-management activities is rare in Yellowstone National Park, where there has been no livestock grazing or timber harvest, water-quality in the Soda Butte Creek drainage, which includes important habitats for YCT, has been and is being improved as a result of efforts to clean up historic mine wastes (Varley 1999). Habitat fragmentation is a consequence of habitat degradation. Thus management actions directed toward the prevention of habitat degradation, such as those just described, also will reduce the likelihood of habitat fragmentation.
(4) The scientific and commercial information available to us does not support the assertion that whirling disease poses a significant threat to the continued existence of YCT. The presence of the whirling disease parasite,
Factors that affect the intensity of infection by
(5) The scientific and commercial information available to us does not support the assertion that the nonnative New Zealand mud snail poses a significant threat to the continued existence of YCT. Within the historic range of YCT, the New Zealand mud snail has been found in the Yellowstone River in and near Yellowstone National Park and in the Snake River drainage in the park, Wyoming, and Idaho (Gangloff 1998; Richards et al. In press). However, the petitioners provide no evidence that YCT stocks in those or other areas face important threats from New Zealand mud snail, nor that those threats are equally applicable to other YCT stocks across the range of the subspecies. Whether the form of New Zealand mud snail that occurs in those waters has the potential to spread widely throughout the region, and the types of aquatic habitats that may be most vulnerable to such invasion, are presently unknown (Gangloff et al. 1998). Gangloff et al. (1998) cite evidence suggesting New Zealand mud snail may not be a nutritious food for YCT. Although the effects that New Zealand mud snail may have on YCT in Yellowstone National Park also are presently unknown, the National Park Service is actively monitoring the snail in the park and imposing measures to prevent its spread (Varley 1999). Similarly, elsewhere in Wyoming, monitoring for the presence of New Zealand mud snail is ongoing (Wichers 2000a).
(6) The scientific and commercial information available to us does not support the assertion that contemporary management of YCT does not emphasize protecting and restoring habitat and is biased toward protecting only those YCT stocks that are genetically pure. This assertion is addressed under items 1 and 3 above and elsewhere in this document. According to Graham (2000), the petitioners falsely state that the U.S. Forest Service is facilitating hatchery and stocking programs in lieu of habitat management in Montana. Similarly, Wyoming's management program for YCT is not solely or chiefly based on fish hatcheries; moreover, Wyoming protects all YCT stocks regardless of their genetic characteristics, including those stocks for which no detailed genetics information is available (Stone 1998; Wichers 2000a).
(7) The scientific and commercial information available to us does not support the assertion that only by listing the YCT as threatened under the Act will effective, coordinated management actions directed toward protection and restoration of YCT and their habitats be achieved across the subspecies' range. Each of the items addressed above describes management actions directed toward protection of YCT and their habitats that are being accomplished without the YCT being listed under the Act. Moreover, the petition fails to mention additional, important, and ongoing management and conservation actions directed toward YCT. In Montana, for example, an important conservation agreement involves YCT and their habitats on National Forest System lands (Bosworth 2000; Graham 1999; Montana Department of Fish, Wildlife and Parks 2000), and the State legislature has appropriated substantial funding directed specifically toward management of native trout such as YCT (Montana Department of Fish, Wildlife and Parks 2000). A Memorandum of Agreement for conservation and management of YCT across the historic range of the subspecies was recently signed by the States of Montana, Idaho, Wyoming, Nevada, and Utah, the U.S. Forest Service, and Yellowstone and Grand Teton National Parks (Bosworth 2000; Montana Department of Fish, Wildlife and Parks 2000; Wichers 2000a). The principal goal of that agreement is to ensure the persistence of YCT within the subspecies' historic range. In Yellowstone National Park, National Park Service management policies state that native species like YCT are to be protected and given priority status over nonnative species; the park continues to dedicate the majority of its aquatic resources program to preserving YCT (Varley 1999). Numerous, additional examples of ongoing, progressive management of YCT and their habitats are found in the major documents in “References Cited”.
There is agreement among the principal resource-management agencies that the distribution of YCT has declined from historic levels (Graham 1999; Moore 1998, 2000a; Moser 1998; Varley 1999; Wichers 2000a), although the extent of YCT historic range is largely assumed and the subspecies may not have formerly occurred in all areas (Moore 1998; Wichers 2000a). Nevertheless, those agencies also reported that viable YCT stocks remain in each of the major watersheds occupied historically in the Snake and Yellowstone River drainages. In Montana, 40 genetically pure YCT stocks are known to inhabit at least 433 linear miles of stream (estimated as at least 10 percent of the total stream miles that may have been historically occupied by the fish); YCT in an additional 71 miles of stream are between 90.0 and 99.9 percent pure, and 56 stream miles are inhabited by YCT less than 90.0 percent pure (Montana Department of Fish, Wildlife and Parks 2000). In Idaho, YCT presently inhabit 209 streams or stream segments (totaling 1,629 linear miles) distributed among 13 watersheds in the historic range of the subspecies (Moore 2000a). Moreover, data collected over the past two decades demonstrate YCT stocks in Idaho are stable or increasing in individual size (Moore 2000a, b). In Yellowstone National Park, genetically pure YCT are known to occupy 586 miles of stream; YCT in 212 miles of stream are genetically introgressed with other fishes, primarily rainbow trout; and YCT may also occur in many additional, small streams that have not yet been surveyed (Lutch 2001). Nonetheless, all of those YCT stocks are highly protected by National Park Service policies. In Wyoming exclusive of the park, genetically pure YCT occur in 2,507 miles of stream; an additional 631 miles of stream sustain YCT and nonnative rainbow trout, with which YCT may interbreed (Wiley 2000). In addition, stocking of YCT has resulted in establishment of numerous YCT stocks outside the probable historic range of the subspecies in Wyoming (Wichers 2000a). In the small portion of historic YCT range that lies in Nevada, survey
Our review of the available information also revealed that most of the habitat for extant YCT stocks lies on lands administered by Federal agencies, particularly the U.S. Forest Service and National Park Service. Many of those YCT stocks occur within roadless or wilderness areas or national parks, all of which afford considerable protection to YCT. In addition, there are numerous Federal and State regulatory mechanisms and agency policies and guidelines that, if properly administered and implemented, protect YCT and their habitats throughout the range of the subspecies. The petitioners provide no important evidence that YCT stocks are generally threatened due to an inadequacy of regulatory mechanisms or that such threats, where they may exist, are equally applicable to other YCT stocks across the range of the subspecies. Finally, each of the principal State and Federal agencies responsible for YCT management has a long history of working to conserve the subspecies (Graham 1999; Moore 2000a; Stone 1998; Wichers 2000a; Varley 1999).
In the context of the Act, the term “threatened species” means any species (or subspecies for vertebrate organisms) which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The term “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range. The Act does not indicate threshold levels of historic population size at which (as the population of a species declines) listing as either “threatened” or “endangered” becomes warranted. Instead, the principal considerations in the determination of whether or not a species warrants listing as a threatened or endangered species under the Act are the threats that currently confront the species and the likelihood that the species will persist in “the foreseeable future.” Thus the Act clearly implies that the rate of decline in the population, at the time listing is being considered, is particularly important.
In their petition, the petitioners provide no evidence that the YCT population as a whole is declining toward extinction in the foreseeable future, nor do they present data or models that suggest the extinction probability for the YCT population is high. Although the petitioners provide evidence that YCT stocks in some areas of the subspecies' current range are confronted by important threats, as described in the preceding section of the present notice, they provide no evidence that those threats are not being effectively countered by ongoing management actions or that the threats are equally applicable to other YCT stocks across the range of the subspecies.
Although the petitioners assert that there is widespread genetic variation among YCT stocks, studies have in fact revealed such variation is small (Allendorf and Leary 1988; Leary et al. 1988). The petitioners further assert, either directly or indirectly, that each YCT stock should be evaluated as if it constituted a Distinct Population Segment (DPS), but they provide no evidence that indicates any individual stock or aggregate of stocks is distinct according to established DPS guidelines (61 FR 4722). Although several YCT life-history forms are recognized and occur in many stocks across the subspecies' range, it is not known whether those forms represent genetic differences among forms or simply opportunistic behaviors.
In conclusion, based on the scientific and commercial information available to us, we find that the petition failed to present substantial information indicating that listing the YCT as threatened under the Act may be warranted at this time. Although the petition includes a long list of references, its justification for listing YCT is based on only a few references that often no longer provide current information on YCT (Bosworth 2000; Brassfield 1998; Graham 1999; Stone 1998; Wichers 2000a). Much information on YCT has been gathered during the past decade, and more is being gathered presently (Bosworth 2000; Graham 1999; Montana Department of Fish, Wildlife and Parks 2000; Moore 1998, 2000a,b; Stone 1998; Wichers 2000a). In addition we found the petition to list YCT as a threatened subspecies under the Act contains numerous erroneous or contradictory statements (Bosworth 2000; Brassfield 1998; Moore 1998, 2000a; Reese 1998b; Stone 1998; Varley 1999; Wichers 2000a). At least two of the key State game and fish departments were not even consulted by the petitioners regarding the current distribution or status of YCT in their States (Graham 1999; Moore 2000a). Finally, the petitioners generally discount important, ongoing management actions directed toward the protection of YCT and their habitats.
Allendorf, F. W., and R. F. Leary. 1988. Conservation and distribution of genetic variation in a polytypic species, the cutthroat trout. Conservation Biology. 2:170-184.
Behnke, R. J. 1992. Native trout of western North America. American Fisheries Society Monograph 6.
Bosworth, D. N. 2000. Letter dated September 26, 2000, from Dale N. Bosworth, Regional Forester, Region 1, U.S. Forest Service, Missoula, Montana. 3 pages plus 5 attachments.
Brassfield, R. 1998. Memorandum dated September 24, 1998, from Rob Brassfield, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Pocatello, Idaho. 9 pages.
Gangloff, M. M., M. F. Dybdahl, and B. L. Kerans. 1998. The invasion of the New Zealand mud snail (
Graham, P. J. 1999. Letter dated April 26, 1999, from Patrick J. Graham, Director, Montana Department of Fish, Wildlife and Parks, Helena. 4 pages plus 4 attachments.
Haskins II, R. L. 1999. Letter dated September 15, 1999, from Richard L. Haskins II, Supervising Biologist, Nevada Division of Wildlife, Elko. 2 pages.
Leary, R. F., F. W. Allendorf and S. R. Phelps. 1988. Population genetic structure of westslope cutthroat trout: genetic variation within and among populations. Proceedings of the Montana Academy of Sciences 48:57-70.
Lutch, J. 2001. E-mail dated February 1, 2001, from Jeff Lutch, Fisheries Technician, National Park Service, Yellowstone National Park. 3 pages.
May, B. 1996. Yellowstone cutthroat trout,
McDonald, K. 2000. Letter dated September 21, 2000, from Ken McDonald, Native Species Coordinator, Montana Department of Fish, Wildlife and Parks, Helena. 2 pages plus 16 attachments.
Montana Department of Fish, Wildlife and Parks. 2000. Yellowstone cutthroat trout in Montana: distribution, status, conservation, and research efforts. A compendium dated August 2, 2000 that includes 19 attachments. Montana Department of Fish, Wildlife and Parks, Helena.
Moore, V. K. 1998. Letter dated October 2, 1998, from Virgil K. Moore, Chief of Fisheries, Idaho Fish and Game Department, Boise. 9 pages (includes 1 attachment).
Moore, V. K. 2000a. Letter dated October 16, 2000, from Virgil K. Moore, Chief of Fisheries, Idaho Fish and Game Department, Boise. 1 page plus 3 attachments (2 are maps).
Moore, V. K. 2000b. Letter dated November 14, 2000, from Virgil K. Moore, Chief of Fisheries, Idaho Fish and Game Department, Boise. 2 pages plus 3 attachments.
Moser, D. C. 1998. Letter dated October 2, 1998, from David C. Moser, Tribal Fisheries Biologist, The Shoshone-Bannock Tribes, Fort Hall, Idaho. 2 pages.
Reese, J. B. 1998a. Letter dated September 30, 1998, from Jerry B. Reese, Forest Supervisor, Targhee National Forest, St. Anthony, Idaho. 3 pages.
Reese, J. B. 1998b. Letter dated October 2, 1998, from Jerry B. Reese, Forest Supervisor, Caribou National Forest, Pocatello, Idaho. 4 pages.
Richards, D. C., L. D. Cazier, and G. T. Lester. In press. Spatial distribution of three snail species, including the biological invader
Stone, M. D. 1995. Fish stocking programs in Wyoming: a balanced perspective. American Fisheries Society Symposium 15:47-51.
Stone, M. D. 1998. Letter dated October 7, 1998, from Michael D. Stone, Chief of Fisheries, Wyoming Game and Fish Department, Cheyenne. 3 pages.
Stone, M. D. 2000. E-mail dated October 31, 2000, from Michael D. Stone, Chief of Fisheries, Wyoming Game and Fish Department, Cheyenne. 1 page plus 1 attachment.
Trotter, P. C. 1987. Cutthroat: native trout of the West. Colorado University Associated Press, Boulder, Colorado. 219 pages.
Varley, J. D. 1999. Undated letter received February 1, 1999, from John D. Varley, Director, Center for Resources, Yellowstone National Park. 9 pages.
Vincent, E. R. 2001. The relationship between water temperature and whirling disease intensities. Poster display presented at the Whirling Disease Symposium, February 2001, Salt Lake City.
Wichers, B. 2000a. Letter dated October 3, 2000, from Bill Wichers, Deputy Director, Wyoming Game and Fish Department, Cheyenne. 5 pages plus 4 attachments.
Wichers, B. 2000b. Letter dated October 20, 2000, from Bill Wichers, Deputy Director, Wyoming Game and Fish Department, Cheyenne. 1 page plus 2 attachments.
Wiley, R.W. 1995. A common sense protocol for the use of hatchery-reared trout. American Fisheries Society Symposium 15:465-471.
Wiley, R. W. 2000. E-mail dated November 29, 2000, from Robert W. Wiley, Chief of Fisheries Research, Wyoming Game and Fish Department, Cheyenne. 1 page.
The primary author of this document is Lynn R. Kaeding (see
The authority for this action is the Endangered Species Act (16 U.S.C. 1531
Pursuant to the Agricultural Trade Development and Assistance Act of 1954 (Pub. L. 480, as amended), notice is hereby given that the Draft Guidelines for Title II Development Activity Programs are being made available to interested parties for the required thirty (30) day comment period.
Individuals who wish to receive a copy of these draft guidelines should contact: Office of Food for Peace, Agency for International Development, RRB 7.06-120, 1300 Pennsylvania Avenue, Washington, DC 20523-0809. Individuals who have questions or comments on the draft guidelines should contact Richard Newberg at the above address or at (202) 712-1828.
The thirty-day comment period will begin on the date that this announcement is published in the
Economic Research Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and Office of Management and Budget (OMB) regulations at 5 CFR 1320 (60 FR 44978, August 29, 1995), this notice announces the Economic Research Service's (ERS) intention to request approval for a new information collection from Food Stamp Program (FSP) officials in State agencies; from officials of the Special Supplementary Nutrition Program for Women, Infants and Children (WIC) in State agencies; from officials of the National School Lunch Program (NSLP) in State Departments of Education; and from NSLP officials in local school food authorities (SFAs). The purpose of the data collection is to obtain information on the program information systems maintained at the State and local level by these programs.
Written comments on this notice must be received by April 30, 2001 to be assured of consideration.
Requests for additional information should be directed to Parke Wilde, Food Assistance and Rural Economy Branch, Food and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture, 1800 M. St., NW., S2092, Washington, DC 20036-5831. For further information contact: Parke Wilde, 202-694-5633. Submit electronic comments to
This project will conduct a survey to determine the capabilities of information systems maintaining client records for the food assistance programs. The survey will collect information about system architecture, organization of client records, maintenance of historical records, numbers and types of client identifiers, and data sharing arrangements among programs. The survey will be conducted in 26 States. Interviews will be conducted with program officials in State food stamp agencies and State WIC agencies; with officials in the Child Nutrition branch of State Departments of Education; and with officials in three School Food Authorities within each State. Information from the survey will be used to determine the consistency, across States, of information maintained by each food assistance program and the consistency, within States, of information maintained by different programs. Findings from the survey will be presented in tabular format facilitating comparison across both States and food assistance programs.
Information from the survey of food assistance programs will be used to assess the potential for matching client records across major food assistance programs (FSP, WIC, NSLP) within a State for the purpose of estimating rates of shared clientele. This information will be used to recruit four sites into a second phase of the project. The second phase will test the feasibility and accuracy of linking data from different nutrition assistance programs within a site (defined as either an area served by a single SFA or an entire State,
Copies of the information to be collected can be obtained from Parke Wilde, Food Assistance and Rural Economy Branch, Food and Rural Economics Division, Economic Research Service, U.S. Department of Agriculture, 1800 M. St., NW, S2092, Washington, D.C. 20036-5831, 202-694-5633.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (b) 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; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) additional uses of data on multiple program participation; (e) ways to minimize the burden of the collection of information on those who are to respond, such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments should be sent to the address stated in the preamble. All responses to this notice will be considered and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Cancellation of notice of intent to prepare an environmental impact statement.
The Southwestern Region of the Forest Service planned to prepare an environmental impact statement on a proposal to amend National Forest land and resource management plans to incorporate standards and guidelines for management of habitat for American peregrine falcon, Little Colorado River spinedace, loach minnow, spikedace, Apache trout, Chihuahua chub, Gila trout, Gila top minnow, razorback sucker, southwest willow flycatcher, cactus ferruginous pygmy owl, Sonora tiger salamander, New Mexico ridgenose rattlesnake, and Pima pineapple cactus. The amendment would have added new standards and guidelines to existing direction for the protection of federally listed threatened and endangered species.
The Notice of Intent to Prepare an Environmental Impact Statement was published in the
For these reasons, I hereby cancel the referenced Notices of Intent to Prepare an Environmental Impact Statement.
Director of Ecosystem Analysis and Planning, 517 Gold Ave. SW, Albuquerque, New Mexico 87102, (505) 842-3251.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds to the Procurement List commodities and services to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
March 26, 2001.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Louis R. Bartalot (703) 603-7740.
On November 13, December 8, and
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the commodities and services to the Government.
2. The action will not have a severe economic impact on current contractors for the commodities and services.
3. The action will result in authorizing small entities to furnish the commodities and services to the Government.
4. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the commodities and services proposed for addition to the Procurement List.
Accordingly, the following commodities and services are hereby added to the Procurement List:
This action does not affect current contracts awarded prior to the effective date of this addition or options that may be exercised under those contracts.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed addition to Procurement List.
The Committee is proposing to add to the Procurement List a service to be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
March 26, 2001.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia 22202-3259.
Louis R. Bartalot (703) 603-7740.
This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the possible impact of the proposed actions.
If the Committee approves the proposed addition, all entities of the Federal Government (except as otherwise indicated) will be required to procure the service listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the service to the Government.
2. The action will result in authorizing small entities to furnish the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the service proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following service has been proposed for addition to Procurement List for production by the nonprofit agencies listed:
Transcription Services, Federal Bureau of Prisons, Washington, DC, NPA: New Vision Enterprises, Inc., Louisville, Kentucky.
In the document appearing on page 8776, FR Doc 01-2894, in the issue of February 2, 2001, in the third column the Committee published an addition to the Procurement List for Holder, Label w/Slit, 9905-01-365-2125. The addition notice is amended to indicate that 50% of the Governments Requirement is being added to the Procurement List.
The Materials Technical Advisory Committee will meet on March 15, 2001, 10:30 a.m., Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials and related technology.
1. Opening remarks and introductions.
2. Presentation of papers and comments by the public.
3. Update on status of Biological Weapons Convention protocol negotiations.
4. Discussion of matters properly classified under Executive Order 12958, dealing with U.S. export control programs and strategic criteria related thereto.
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the materials should be forwarded prior to the meeting to the address below: Ms. Lee Ann Carpenter, OSIES/EA/BXA MS: 3876, U.S. Department of Commerce, 14 St. & Constitution Ave., NW., Washington, DC, 20230.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on March 7, 2000, pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, that the series of meetings or portions of meetings of the Committee and of any Subcommittee thereof dealing with the classified materials listed in 5 U.S.C. 552(c)(1) shall be exempt from the provisions relating to public meetings found in section 10(a)(1) and (a)(3) of the Federal Advisory Committee Act. The remaining series of meetings or portions thereof will be open to the public.
A copy of the Notice of Determination to close meetings or portions of meetings of the Committee is available for public inspection and copying in the Central Reference and Records Inspection Facility, Room 6020, U.S. Department of Commerce, Washington, DC. For more information or copies of the minutes call Ms. Lee Ann Carpenter at (202) 482-2583.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final court decision and amended final results of administrative reviews.
February 23, 2001.
Thomas Schauer or Richard Rimlinger, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-4733.
On December 28, 2000, the Department of Commerce (the Department) published in the
The Department has discovered that the margins it published for Koyo were not correct. The margins the Department published were 14.90 percent and 6.53 percent for BBs and CRBs, respectively. The correct margins are 12.15 percent and 3.43 percent for ball bearings and cylindrical roller bearings, respectively.
Pursuant to section 516A(e) of the Tariff Act, we are amending the final results of administrative reviews of the antidumping duty orders on antifriction bearings (other than tapered roller bearings) and parts thereof from Japan and the period May 1, 1992, through April 30, 1993 with respect to Koyo. The revised weighted-average margins are as follows:
The Department will determine and the U.S. Customs Service will assess appropriate antidumping duties on entries of the subject merchandise made by firms covered by these reviews. Individual differences between United States price and foreign market value may vary from the percentages listed above. The Department will issue appraisement instructions with regard to Koyo to the U.S. Customs Service after publication of these amended final results of reviews.
This notice is published pursuant to section 751(a) of the Tariff Act. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties of the Assistant Secretary for Import Administration.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review.
On November 3, 2000, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on extruded rubber thread from Malaysia (65 FR 66232). This review covers three manufacturers/exporters of the subject merchandise to the United States (Filati Lastex Sdn. Bhd., Heveafil Sdn. Bhd./Filmax Sdn. Bhd, and Rubberflex Sdn. Bhd.). The period of review is October 1, 1998, through September 30, 1999.
Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”
February 23, 2001.
Irina Itkin, Office of AD/CVD Enforcement, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-0656.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to 19 CFR Part 351 (2000).
On November 3, 2000, the Department published in the
In response to the Department's invitation to comment on the preliminary results of these reviews, Heveafil Sdn. Bhd./Filmax Sdn. Bhd. (Heveafil) and Filati Lastex Sdn. Bhd. (Filati) filed case briefs on November 28, 2000. We did not receive comments from Rubberflex Sdn. Bhd. (Rubberflex) or the petitioner. The Department has conducted this administrative review in accordance with section 751 of the Act.
The product covered by this review is extruded rubber thread. Extruded rubber thread is defined as vulcanized rubber thread obtained by extrusion of stable or concentrated natural rubber latex of any cross sectional shape, measuring from 0.18 mm, which is 0.007 inch or 140 gauge, to 1.42 mm, which is 0.056 inch or 18 gauge, in diameter. Extruded rubber thread is currently classifiable under subheading 4007.00.00 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of this review is dispositive.
The period of review (POR) is October 1, 1998, through September 30, 1999.
All issues raised in the case briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (Decision Memo) from Richard W. Moreland, Deputy Assistant Secretary, Import Administration, to Bernard Carreau, fulfilling the duties of Assistant Secretary for Import Administration, dated February 16, 2001, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memo, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Department building.
In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision Memo are identical in content.
Based on our analysis of comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.
We determine that the following weighted-average margins exist for the period October 1, 1998, through September 30, 1999:
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated importer-specific assessment rates. For Filati and Heveafil, we divided the total dumping margins for the reviewed sales by their total entered value for each importer. We will direct Customs to assess the resulting percentage margins against the entered values for the subject merchandise on each of that importer's entries. However, we will instruct Customs to liquidate without regard to antidumping duties all entries for any importer for whom the assessment rate is
For Rubberflex, we divided the total dumping margins by the entered quantity for each importer. We will direct Customs to assess these per-unit amounts on all entries by these importers.
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of extruded rubber thread from Malaysia entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed firms will be the rates shown above, except if the rate is less than 0.50 percent and, therefore,
These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Continuation of Antidumping Duty Orders on Helical Spring Lock Washers from China and Taiwan.
On June 5, 2000, the Department of Commerce (“the Department”), pursuant to sections 751(c) and 752 of the Tariff Act of 1930, as amended (“the Act”), determined that revocation of the antidumping duty orders on helical spring lock washers from China and Taiwan is likely to lead to continuation or recurrence of dumping (65 FR 35605). On January 31, 2001, the International Trade Commission (“the Commission”), pursuant to section 751(c) of the Act, determined that revocation of the antidumping duty orders on helical spring lock washers from China and Taiwan would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time (66 FR 8424). Therefore, pursuant to 19 CFR 351.218(f)(4), the Department is publishing notice of the continuation of the antidumping duty orders on helical spring lock washers from China and Taiwan.
February 23, 2001.
Martha V. Douthit or James P. Maeder, Office of Policy for Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW, Washington, D.C. 20230; telephone: (202) 482-5050 or (202) 482-3330, respectively.
On November 2, 1999, the Department initiated (64 FR 59160) and the Commission instituted (64 FR 59204) sunset reviews of the antidumping duty orders on helical spring lock washers from China and Taiwan pursuant to section 751(c) of the Act. As a result of its reviews, the Department found that revocation of the antidumping duty orders on helical spring lock washers from China and Taiwan is likely to lead to continuation or recurrence of dumping and notified the Commission of the magnitude of the margin likely to prevail were the orders revoked.
On January 31, 2001, the Commission determined, pursuant to section 751(c) of the Act, that revocation of the antidumping duty orders on helical spring lock washers from China and Taiwan would be likely to lead to continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time.
The products subject to these antidumping duty orders include helical spring lock washers of carbon steel, of carbon alloy steel, or of stainless steel, heat-treated or non-heat-treated, plated or non-plated, with ends that are off-line. Helical spring lock washers are designed to: (1) Function as a spring to compensate for developed looseness between the component parts of a fastened assembly; (2) distribute the load over a larger area for screws or bolts; and, (3) provide a hardened bearing surface. The scope does not include internal or external tooth washers, nor does it include spring lock washers made of other metals, such as copper. Helical spring lock washers subject to these orders are currently classifiable under subheading 7318.21.0030 of the Harmonized Tariff Schedule (“HTS”). Although the HTS subheading is provided for convenience and customs purposes, the written description of the scope remains dispositive.
As a result of the determinations by the Department and the Commission that revocation of the antidumping duty orders would be likely to lead to continuation or recurrence of dumping and material injury to an industry in the United States, pursuant to section 751(d)(2) of the Act, the Department hereby orders the continuation of the antidumping duty orders on helical spring lock washers from China and Taiwan. The Department will instruct the Customs Service to continue to collect antidumping duty deposits at the rates in effect at the time of entry for all imports of subject merchandise. The effective date of continuation of these
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty administrative review.
On August 4, 2000, the Department of Commerce (the “Department”) published the preliminary results of administrative review of the antidumping duty order on silicon metal from Brazil. The merchandise covered by this order is silicon metal from Brazil. The review covers five manufacturers/exporters: Rima Industrial SA (“RIMA”), Companhia Ferroligas Minas Gerais—Minasligas (“Minasligas”), Ligas de Aluminia S.A. (“LIASA”), Companhia Carbureto de Calcio (“CBCC”), Eletrosilex S.A. (“Eletrosilex”). The period of review (“POR”) is July 1, 1998, through June 30, 1999.
Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled
February 23, 2001.
Maisha Cryor (RIMA), telephone: (202) 482-5831; Nova Daly (Eletrosilex and Minasligas), 482-0989; Mark Manning (LIASA), 482-3936, and Zev Primor (CBCC), 482-4114; AD/CVD Enforcement, Office IV, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the “Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (2000).
On August 4, 2000, the Department published the preliminary results of administrative review of the antidumping duty order on silicon metal from Brazil.
The merchandise covered by this administrative review is silicon metal from Brazil containing at least 96.00 percent but less than 99.99 percent silicon by weight. Also covered by this administrative review is silicon metal from Brazil containing between 89.00 and 96.00 percent silicon by weight but which contains more aluminum than the silicon metal containing at least 96.00 percent but less than 99.99 percent silicon by weight. Silicon metal is currently provided for under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule (“HTS”) as a chemical product, but is commonly referred to as a metal. Semiconductor grade silicon (silicon metal containing by weight not less than 99.99 percent silicon and provided for in subheading 2804.61.00 of the HTS) is not subject to the order. Although the HTS item numbers are provided for convenience and for U.S. Customs purposes, the written description remains dispositive.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the “Issues and Decision Memorandum” (“Decision Memorandum”), dated January 31, 2001, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an Appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099 (“B-099”) of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at www.ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.
After review of the criteria outlined at sections 351.222(b) and 351.222(d) of the Department's regulations, the Department's practice, the comments of the parties, and the evidence on the record, we have determined that the requirements for revocation have not been met. For the reasons outlined in the Decision Memorandum, we have determined not to revoke the antidumping duty order with respect to subject merchandise produced and also exported by LIASA because its sales were not made in commercial quantities in accordance with 19 CFR 351.222(e).
After review of the record, the Department determines that although CBCC has had zero or
Based on our analysis of comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memorandum, accessible in B-099 and on the Web at www.ia.ita.doc.gov.
We determine that the following percentage weighted-average margins exist for the period July 1, 1998, through June 30, 1999:
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we have calculated exporter/importer-specific assessment rates. With respect to export price, we divided the total dumping margins for the reviewed sales by the total entered value of those reviewed sales for each importer. We will direct Customs to liquidate without regard to antidumping duties any entries for which the assessment rate is
The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of silicon metal from Brazil entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rate shown above, except if the rate is less than 0.5 percent, and therefore
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.
1. Requirements for Revocation with Respect to LIASA
2. Calculation of Home Market Imputed Credit Expenses for RIMA
3. Total Adverse Facts Available (“FA”) for Eletrosilex
4. Calculation of Home Market Imputed Credit Expenses for CBCC
5. Circumstance of Sale Adjustment (“COS”) for CBCC
6. Calculation of Financial Expense Ratio for CBCC
7. CBCC's Consolidated Financial Statement
8. CBCC's Short-Term Income Offset
9. Allocation of CBCC's Indirect Labor Costs
10. Determination Not To Revoke CBCC and LIASA
Import Administration, International Trade Administration, Department of Commerce.
Notice of antidumping duty orders.
February 23, 2001.
Helen Kramer (Italy) at (202) 482-0405, Juanita Chen (Malaysia) at (202) 482-0409, or Fred Baker (Philippines) at (202) 482-2924, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Tariff Act) are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all references to the Department of Commerce's (the Department's) regulations are to 19 CFR Part 351 (1999).
For purposes of these orders, the product covered is certain stainless steel butt-weld pipe fittings (butt-weld fittings). Butt-weld pipe fittings are under 14 inches in outside diameter (based on nominal pipe size), whether finished or unfinished. The product encompasses all grades of stainless steel and “commodity” and “specialty” fittings. Specifically excluded from the
The butt-weld fittings subject to these orders are generally designated under specification ASTM A403/A403M, the standard specification for Wrought Austenitic Stainless Steel Piping Fittings, or its foreign equivalents (
These orders do not apply to cast fittings. Cast austenitic stainless steel pipe fittings are covered by specifications A351/A351M, A743/743M, and A744/A744M.
The butt-weld fittings subject to these orders are currently classifiable under subheading 7307.23.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.
In accordance with section 735(a) of the Tariff Act, the Department made its final determinations that stainless steel butt-weld pipe fittings from Italy, Malaysia, and the Philippines are being sold at less than fair value. (
This notice constitutes the antidumping duty orders with respect to stainless steel butt-weld pipe fittings from Italy, Malaysia, and the Philippines. Interested parties may contact the Department's Central Records Unit, room B-099 of the main Commerce building, for copies of an updated list of antidumping duty orders currently in effect.
These orders are published in accordance with section 736(a) of the Tariff Act of 1930, as amended. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties of the Assistant Secretary for Import Administration.
Import Administration, International Trade Administration, Department of Commerce.
Notice of final results of antidumping duty new shipper review.
This review covers one manufacturer/exporter, Bhansali Ferromet Pvt. Ltd. (Bhansali) and sales of the subject merchandise to the United States during the period August 1, 1998 through July 31, 1999. The final results do not differ from the preliminary results of review, in which we found that the respondent made sales in the United States at prices below normal value.
February 23, 2001.
Thomas Killiam or Robert James, AD/CVD Enforcement Group III, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230, telephone: (202) 482-5222 or (202) 482-0649, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce's (“the Department's”) regulations are to 19 CFR Part 351 (1999).
On September 15, 2000, the Department published in the
Bhansali submitted a change in its data on November 4, 2000, but this change had no effect on our analysis. On December 5, 2000, the Department published in the
The products under review are certain forged stainless steel flanges (hereafter, “flanges”) from India, both finished and not finished, generally manufactured to specification ASTM A-182, and made in alloys such as 304, 304L, 316, and 316L. The scope includes five general types of flanges. They are weld neck, used for butt-weld line connection; threaded, used for threaded line connections; slip-on and lap joint, used with stub-ends/butt-weld line connections; socket weld, used to fit pipe into a machined recession; and blind, used to seal off a line. The sizes of the flanges within the scope range generally from one to six inches; however, all sizes of the above-described merchandise are included in the scope. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A-351. The flanges subject to this order are currently classifiable under subheadings 7307.21.1000 and 7307.21.5000 of the HTSUS. Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under review is dispositive of whether or not the merchandise is covered by the review.
On December 7, 2000 the Department conducted a verification of the antidumping responses submitted by Bhansali Ferromet Pvt. Ltd. See memorandum to the file from Thomas Killiam, “Sales Verification of Bhansali Ferromet Pvt. LtD.-Stainless Steel Flanges from India,” December 20, 2000. No changes in the data or analysis were indicated as a result of the verification.
No changes to our analysis in the preliminary results are warranted for purposes of these final results. Accordingly, the weighted-average dumping margin for Bhansali for the period August 1, 1998 through July 31, 1999, is as follows:
The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries, on a per kilogram basis. The Department will issue appropriate instructions directly to the U.S. Customs Service. Furthermore, the following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final results of administrative review, as provided by section 751(a) of the Act: (1) For Bhansali, the cash deposit rate will be the rate listed above, (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a previous segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published in the most recent final results in which that manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review or in any previous segment of this proceeding, but the manufacturer is, the cash deposit rate will be that established for the manufacturer of the merchandise in these final results of review or in the most recent segment of the proceeding in which that manufacturer participated; and (4) if neither the exporter nor the manufacturer is a firm covered in this review or in any previous segment of this proceeding, the cash deposit rate will be 162.14 percent, the all others rate established in the less-than-fair-value investigation. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred, and in the subsequent assessment of double antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.214.
Import Administration, International Trade Administration, Department of Commerce.
Notice of preliminary results and rescission, in part, of antidumping duty administrative review.
In response to a request by the Stainless Steel Cookware Committee (the Committee), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on top-of-the-stove stainless steel cooking ware from Korea. The period of review (POR) is January 1, 1999, through December 31, 1999.
We preliminarily determine that certain manufacturers/exporters sold subject merchandise at less than normal value (NV) during the POR. If these preliminary results are adopted in the final results of this administrative review, we will instruct Customs to assess antidumping duties on all appropriate entries. We invite interested parties to comment on the preliminary results. Parties who submit comments in this proceeding should also submit with the argument: (1) a statement of the
February 23, 2001.
Nova Daly (Dong Won) and John Conniff (Daelim), AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; (202) 482-0989 and (202) 482-1009, respectively.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations at 19 CFR Part 351 (2000).
The Department published an antidumping duty order on top-of-the-stove stainless steel cooking ware (cookware) from Korea on January 20, 1987 (52 FR 2139). On January 13, 2000, the Department published a notice of “Opportunity to Request an Administrative Review” of the antidumping duty order on cookware from Korea (65 FR 2114) covering the period January 1, 1999, through December 31, 1999.
On January 31, 2000, in accordance with 19 CFR 351.213(b), the Committee (the petitioner), whose members are Regal Ware, Inc., All-Clad Metalcrafters, LLC, and Vita-Craft Corporation, requested that we conduct an administrative review of twenty-seven specific manufacturers/exporters of cookware from Korea: Daelim Trading Co., Ltd. (Daelim), Dong Won Metal Co., Ltd. (Dong Won), Chefline Corporation (Chefline), Sam Yeung Ind. Co., Ltd. (Samyeung), Namyang Kitchenflower Co., Ltd., Kyung-Dong Industrial Co., Ltd., Ssang Yong Ind. Co., Ltd. (Ssangyong), O. Bok Stainless Steel Co., Ltd., Dong Hwa Stainless Steel Co., Ltd., Il Shin Co., Ltd., Hai Dong Stainless Steel Ind. Co., Ltd., Han Il Stainless Steel Ind. Co., Ltd., Bae Chin Metal Ind. Co., East One Co., Ltd., Charming Art Co., Ltd., Poong Kang Ind. Co., Ltd., Won Jin Ind. Co., Ltd., Wonkwang Inc., Sungjin International Inc., Sae Kwang Aluminum Co., Ltd., Woosung Co., Ltd., (Woosung), Hanil Stainless Steel Ind. Co., Ltd.,
On March 3, 2000, we issued Section A antidumping questionnaires to each of the twenty-seven manufacturers/exporters listed above. In response to our request for information, Sugjin International, Inc., O. Bok Stainless Steel Co., Ltd., Won Jin Ind. Co., Ltd., Hai Dong Stainless Co., Ltd., Pionix Corporation, Seshin Co., Ltd., Dong Hwa Stainless Steel Co., Ltd., Wonkwang Inc., and Charming Art Co., Ltd., reported that they had no sales or shipments during the POR. Our review of Customs import data indicated that there were no entries of subject merchandise made by these manufacturers/exporters during the POR. Accordingly, we are preliminarily rescinding the review with respect to the above nine manufacturers/exporters of cookware.
The following companies failed to respond to the Department's Section A questionnaire: B.Y. Enterprise, Ltd., Clad Co., Ltd., Sae Kwang Aluminum Co., Ltd., East One Co., Ltd., East West Trading Korea, Ltd., Bae Chin Metal Ind. Co., Han I1 Stainless Steel Ind. Co., Ltd., I1 Shin Co., Ltd., Kyung-Dong Industrial Co., Ltd., Poong Kang Ind. Co., Ltd., and Namyang Kitchen Flower Co., Ltd. On March 28, 2000, we informed each of these companies that because they failed to respond to the Department's questionnaire, we may use facts available (FA) to determine their dumping margins.
On March 17, 2000, counsel for Chefline requested that the Department rescind the review with respect to Woosung. Woosung is Chefline's original corporate name which was changed to Chefline in March 1996. Since Chefline submitted uncontested evidence on the record to support their claim and petitioner did not object to Chefline's request for rescission, we are rescinding the review with respect to Woosung. In addition, on April 3, 2000, Chefline informed the Department that it would not be responding to the Department's Section A questionnaire.
On April 3, 2000, Daelim, Dong Won, Samyeung, and Ssangyong responded to Section A of the antidumping questionnaire. On June 29, 2000, the Department issued Sections B, C and D of the Department's questionnaire to these four companies. Daelim, Dong Won, and Samyeung filed responses to Sections B and C on August 23, 2000. On August 23, 2000, Ssangyong notified the Department that it would no longer participate in this review.
On August 24, 2000, the Department issued Section A supplemental questionnaires to Daelim, Dong Won, and Samyeung. The responses to these supplemental questionnaires were received on September 15, 2000. We issued Section B and C supplemental questionnaires to these companies on September 11, 2000. The responses to the supplemental questionnaires were submitted by the companies on October 2, 2000.
On September 20, 2000, the Department initiated a cost of production (COP) investigation with respect to Dong Won and Samyeung and requested that they respond to Section D of the Department's questionnaire. On September 25, 2000, the Department initiated a COP investigation with respect to Daelim and issued the Section D questionnaire, in accordance with section 773(b) of the Act. We initiated the COP investigations as a result of the petitioner's COP allegations, which are company-specific, employ a reasonable methodology, provide evidence of below cost sales, and include models which are representative of the broader range of cookware products sold by Dong Won, Samyeung, and Daelim in accordance with section 773(b) of the Act. For further discussion on the initiation of the COP investigations,
Dong Won's response to the Section D questionnaire was received by the Department on October 18, 2000. On October 25, 2000, Samyeung notified the Department that it would no longer participate in this review. On November 1, 2000, the Department issued a Section D supplemental questionnaire
Daelim's response to this section of the questionnaire was received on October 31, 2000. On November 26, 2000, the Department issued a Section D supplemental questionnaire to Daelim. The response to this supplemental questionnaire was received on November 30, 2000.
Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for issuing a preliminary determination in an administrative review if it determines that it is not practicable to complete the preliminary review within the statutory time limit of 245 days. On August 15, 2000, the Department published a notice of extension of the time limit for the preliminary results in this case to January 30, 2001.
The merchandise subject to this antidumping order is top-of-the-stove stainless steel cookware from Korea. The subject merchandise is all non-electric cooking ware of stainless steel which may have one or more layers of aluminum, copper or carbon steel for more even heat distribution. The subject merchandise includes skillets, frying pans, omelette pans, saucepans, double boilers, stock pots, dutch ovens, casseroles, steamers, and other stainless steel vessels, all for cooking on stove top burners, except tea kettles and fish poachers. Excluded from the scope of the order are stainless steel oven ware and stainless steel kitchen ware. The subject merchandise is currently classifiable under Harmonized Tariff Schedule (HTS) item numbers 7323.93.00 and 9604.00.00. The HTS item numbers are provided for convenience and Customs purposes only. The written description remains dispositive.
The Department has issued several scope clarifications for this order. The Department found that certain stainless steel pasta and steamer inserts (63 FR 41545, August 4, 1998), certain stainless steel eight-cup coffee percolators (58 FR 11209, February 24, 1993), and certain stainless steel stock pots and covers are within the scope of the order (57 FR 57420, December 4, 1992). Moreover, as a result of a changed circumstances review, the Department revoked the order on Korea in part with respect to certain stainless steel camping ware (1) made of single-ply stainless steel having a thickness no greater than 6.0 millimeters; and (2) consisting of 1.0, 1.5, and 2.0 quart saucepans without handles and with lids that also serve as fry pans (62 FR 3662, January 24, 1997).
As provided in section 782(i) of the Act, from December 4, 2000, to December 22, 2000, we verified sales and cost information provided by Daelim and Dong Won, using standard verification procedures, including an examination of relevant sales and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report and are on file in the Central Records Unit (CRU) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW, Washington, DC.
Section 776(a)(2) of the Act provides that if any interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information by the deadlines for submission of the information or in the form or manner requested; (C) significantly impedes an antidumping investigation; or (D) provides such information but the information cannot be verified, the Department shall, subject to section 782(d) of the Act, use facts otherwise available in making its determination.
Section 782(e) of the Act provides that the Department shall not decline to consider information deemed “deficient” under section 782(d) of the Act if: (1) The information is submitted by the deadline established for its submission; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the Department with respect to the information; and (5) the information can be used without undue difficulties.
As stated above, on March 3, 2000, we issued Section A questionnaires to twenty-seven manufacturers/exporters of the subject merchandise. The following companies failed to respond to the Department's Section A questionnaire: B.Y. Enterprise, Ltd., Clad Co., Ltd., Sae Kwang Aluminum Co., Ltd., East One Co., Ltd., East West Trading Korea, Ltd., Bae Chin Metal Ind. Co., Han Il Stainless Steel Ind. Co., Ltd., Il Shin Co., Ltd., Kyung-Dong Industrial Co., Ltd., Poong Kang Ind. Co., Ltd., and Namyang Kitchen Flower Co., Ltd. On March 28, 2000, we informed each of these companies that because they failed to respond to the Department's questionnaire, we may use FA to determine their dumping margins. On April 3, 2000, Chefline informed the Department that it would not be responding to the Department's Section A questionnaire. Because these companies wholly failed to respond to our questionnaire, pursuant to section 776(a)(2)(A) of the Act, we have applied FA to calculate their dumping margins. Further, based on the facts in this review, described below, the Department has preliminarily determined that the use of FA is warranted for Ssangyong and Samyeung.
First, Ssangyong and Samyeung did not respond to Sections B and C of the questionnaire. On April 3, 2000, Ssangyong responded to the Section A questionnaire. On June 29, the Department issued Sections B and C of the questionnaire to Ssangyong. On July 18, 2000, Ssangyong requested an extension to respond to Sections B and C due to its claimed lack of experience in answering the Department's questionnaires. On July 24, 2000, the Department granted Ssangyong an extension until August 18, 2000 to respond to Sections B and C. On August 14, 2000, the Department granted Ssangyong an additional extension until August 23, 2000, for Ssangyong to respond to Sections B and C.
On September 20, 2000, the Department initiated a COP investigation and issued a Section D questionnaire to Samyeung. On October 5, 2000, Samyeung requested an
Second, in addition to their failure to respond to the Department's questionnaire, the information provided by these two respondents is so incomplete that it cannot serve as a reliable basis for reaching the applicable determination. Ssangyong's failure to respond to Sections B and C of the questionnaire is a critical omission. Without U.S. and home market sales data, the Department cannot calculate a dumping margin for Ssangyong. Likewise, Samyeung's failure to provide cost data is significant. Without cost data, we are unable to determine whether foreign market sales were made below COP and, thus, we are prevented from calculating an accurate normal value and dumping margin for Samyeung. Therefore, we find that the information on the record for Ssangyong and Samyeung is so incomplete that it cannot serve as a reliable basis for reaching the applicable determination and thus, Ssangyong and Samyeung have not satisfied the third criterion under section 782(e) of the Act.
In addition, the Department finds, pursuant to section 776(b) of the Act, that Ssangyong and Samyeung did not act to the best of their ability to comply with requests for information. In its August 23, 2000 letter, Ssangyong stated that “faced with the substantial amount of detailed information that the Department has requested to be submitted in a very short time period, Ssangyong has concluded that it lacks the administrative resources to prepare and submit responses to Sections B and C of the questionnaire and otherwise to continue participating further in the proceeding.” Samyeung, in its October 25, 2000 letter, stated that the short time period given to answer the Section D questionnaire was too burdensome for the company to comply. However, we note that Ssangyong was granted two extensions totaling 23 days to respond to the Section B and C questionnaire and Samyeung was granted a two-week extension to respond to the cost questionnaire. Also, neither Ssangyong nor Samyeung requested an additional extension of time to respond to the questionnaire. Further, neither company suggested alternative methods for providing the requested information. We note that it was Ssangyong and Samyeung's responsibility to provide a “full explanation and suggested alternative forms” of responding to the questionnaire under section 782(c) of the Act. The Department considers Ssangyong and Samyeung's refusal to submit their respective questionnaire responses, despite the fact the Department granted extensions of time for filing the responses, and their refusal to participate further in the review, as a failure to cooperate to the best of their ability with respect to our requests for information. Thus, Ssangyong and Samyeung have failed to satisfy the fourth criterion of section 782(c) of the Act.
Lastly, the information cannot be used without undue difficulties. As a result of Ssangyong and Samyeung's failure to provide the necessary information requested, the information provided by Ssangyong and Samyeung is not complete enough to calculate a margin based upon the statutory and regulatory criteria. For example, as discussed above, Ssangyong did not respond to Sections B and C of the Department's questionnaire and Samyeung did not respond to Section D of the Department's questionnaire. Thus, Ssangyong and Samyeung have also failed to satisfy the fifth criterion of section 782(e) of the Act.
Given the above analysis, the Department determines that Ssangyong and Samyeung have not met all five factors enumerated in section 782(e) of the Act. Therefore, for the reasons stated above, the use of FA is warranted for these companies.
In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information.
Because B.Y. Enterprise, Ltd., Clad Co., Ltd., Sae Kwang Aluminum Co., Ltd., East One Co., Ltd., East West Trading Korea, Ltd., Bae Chin Metal Ind. Co., Han Il Stainless Steel Ind. Co., Ltd., Il Shin Co., Ltd., Kyung-Dong Industrial Co., Ltd., Poong Kang Ind. Co., Ltd., Namyang Kitchen Flower Co., Ltd., and Chefline did not cooperate by wholly failing to respond to the Department's questionnaire response, and in order to ensure that they do not benefit from that lack of cooperation, we are employing an adverse inference in selecting from facts otherwise available.
Further, because Ssangyong failed completely to respond to Sections B and C of the questionnaire and Samyeung failed completely to respond to Section D of the questionnaire, the Department was prevented from making critical decisions involving the calculation of Sangyong and Samyeung's dumping margins. In addition, as required by section 782(d) of the Act, Sangyong and Samyeung were put on notice, via Department extension letters and other correspondence, that failure to respond to the Department's requests for information constituted a deficiency which could result in the use of FA.
Pursuant to section 776(b) of the Act, we are basing the margin for the 14 companies listed above on adverse FA for purposes of these preliminary results. As adverse FA, we have used the highest rate calculated for any respondent in any segment of this proceeding. This rate is 31.23 percent.
Section 776(b) of the Act authorizes the Department to use as adverse FA information derived from the petition, the final determination from the less
Section 776(c) of the Act requires the Department to corroborate, to the extent practicable, secondary information used as FA. Secondary information is defined as “[i]nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.”
The SAA further provides that the term “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value (
The rate selected was calculated using verified information in the investigation.
As to the relevance of the margin used for adverse FA, the courts have stated that “[b]y requiring corroboration of adverse inference rates, Congress clearly intended that such rates should be reasonable and have some basis in reality.”
In determining a relevant and reasonable adverse FA rate, the Department notes that the FA rate selected is the highest calculated margin for any respondent in this proceeding.
To determine whether sales of cookware from South Korea to the United States were made at less than NV, we compared the export price (EP) to the NV for both Dong Won and Daelim, as specified in the
For Dong Won and Daelim, we used the Department's EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold by each producer outside the United States directly to the first unaffiliated purchaser in the United States prior to importation (or to unaffiliated trading companies for export to the United States) and CEP methodology was not otherwise warranted. We made deductions from the starting price for movement expenses in accordance with section 772(c) of the Act. Movement expenses included, where appropriate, brokerage and handling, international freight, and marine insurance, in accordance with section 772(c)(2)(A) of the Act. For Dong Won, we disallowed a duty drawback adjustment to the starting price.
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
Based on the cost allegations submitted by petitioners on September 20, 2000, and in accordance with section 773(b)(2)(A)(i) of the Act, the Department found reasonable grounds to believe or suspect that Dong Won and Daelim had made sales in the foreign market at prices below the cost of producing the merchandise, in accordance with section 773(b)(1) of the Act.
In accordance with section 773(b)(3) of the Act, we calculated, respectively, COP based on the sum of Daelim and Dong Won's cost of materials and fabrication (COM) for the foreign like product, plus amounts for SG&A, financial expense, and packing costs. Daelim was unable to segregate between its long-term and short-term investment income in its calculation of net interest expense. Therefore, we did not grant Daelim an interest income offset.
We compared COP to foreign market sale prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard foreign market sales made at prices below the COP, we examined whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Act. On a product-specific basis, we compared the COP to foreign market prices, less any applicable movement charges, discounts and rebates, and selling expenses.
Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product were at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the POR were at prices less than the COP, we determined such sales to have been made in substantial quantities within an extended period of time, within the meaning of section 773(b)(2)(B) of the Act. Because we compared prices to POR or fiscal year average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found, looking at Dong Won's third country market sales and Daelim's home market sales, that both made sales at below COP prices within an extended period of time in substantial quantities. Further, we found that these sales prices did not permit for the recovery of costs within a reasonable period of time. Therefore, we excluded these sales from our analysis and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
In accordance with section 771(16) of the Act, we considered all products sold in the foreign markets as described in the “Scope of the Review” section of this notice, above, that were in the ordinary course of trade for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the foreign markets made in the ordinary course of trade (
In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same LOT as the US transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive selling, general and administrative (SG&A) expenses and profit. For EP sales, the U.S. LOT is also the level of the starting-price sale, which is usually from the exporter to the importer.
To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and the export transaction, we make a LOT adjustment under section 773(a)(7)(A) of the Act.
In determining whether separate LOTs actually existed in the home and U.S. markets for each respondent, we examined whether the respondent's sales involved different marketing stages (or their equivalent) based on the channel of distribution, customer categories, and selling functions (or services offered) to each customer or customer category, in both markets.
Dong Won reported sales through one LOT, consisting of two channels of distribution for its Canadian sales. The first channel of distribution was direct sales with two customer categories (
In analyzing Dong Won's selling activities for the third country and U.S. market, we determined that essentially the same services were provided for both markets. These selling activities in both markets were minimal in nature and limited to some low levels of technical service, warranty, ocean freight, and advertising expenses, with high levels of inland freight expenses. No other services were rendered for either third country or EP sales. Therefore, based upon this information, we have preliminarily determined that the LOT for all EP sales is the same as the LOT for all sales in the third country market. Accordingly, because we find the U.S. sales and third country market sales to be at the same LOT, no LOT adjustment under section 773(a)(7)(A) of the Act is warranted for Dong Won.
Daelim reported sales through one LOT, consisting of two channels of distribution for its home market sales. The first channel of distribution was sales through its affiliate in the home market, Living Star. The second channel of distribution was direct sales on a very sporadic basis to its employees or, in extremely limited circumstances, to home market customers. We have preliminarily determined that these direct sales are outside the ordinary course of trade, and therefore have not considered them in the calculation of NV.
In analyzing Daelim's selling activities for the home market, we determined that the selling activities were minimal in nature and limited to some low levels of technical service, warranty, ocean freight, and advertising expenses, with high levels of inland freight expenses. No selling activities or services were rendered for EP sales. Therefore, based upon this information, we have preliminarily determined that there are differences in the number, type, and degree of selling functions performed in the home market as compared to EP sales.
Section 773(a)(7)(A)(ii) of the Act states that the Department will grant a LOT adjustment only “if the difference in the level of trade is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined.” As discussed above, we find that the U.S. market LOT (EP sales) is different from the home market LOT. However, since we have determined that there is only one LOT in the home market, we are unable to calculate “a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined.” Thus, in this instance, we have not granted Daelim a LOT adjustment to NV.
For both foreign market and U.S. transactions, Daelim and Dong Won reported the date of the contract (
In accordance with section 773(e) of the Act, we calculated CV based on the respondents' respective cost of materials and fabrication employed in producing the subject merchandise, SG&A expenses, the profit incurred and realized in connection with the production and sale of the foreign like product, and U.S. packing costs. We used the cost of materials, fabrication, and G&A expenses as reported in the CV portion of the questionnaire response, adjusted for Daelim as discussed in the COP section above. We used the U.S. packing costs as reported in the U.S. sales portion of the respondents' questionnaire responses. For selling expenses, we used the average of the selling expenses reported for home market sales that survived the cost test, weighted by the total quantity of those sales. For actual profit, we first calculated, based on the home market sales that survived the cost test, the difference between the home market sales value and home market COP, and divided the difference by the home market COP. We then multiplied this percentage by the COP for each U.S. model to derive an actual profit.
For those comparison products for which there were sales that passed the cost test, we based the respondents' NV on the price at which the foreign like product is first sold for consumption in Korea (Daelim) or Canada (Dong Won), in the usual commercial quantities, in the ordinary course of trade in accordance with section 773(a)(1)(B)(i) of the Act. We based NV on sales at the same LOT as the EP sales.
In accordance with section 773(a)(6) of the Act, we made adjustments to the foreign market price, where appropriate, for discounts, movement expenses (inland freight, brokerage and handling, and international freight). To account for differences in circumstances of sale between the foreign market and the United States, where appropriate, we adjusted the foreign market price by deducting foreign market direct selling expenses (including credit) and commissions and by adding U.S. direct selling expenses (including U.S. credit expenses). Because Dong Won could not substantiate the payment of duties for goods purchased, we disallowed a duty drawback adjustment to the starting price. For a further discussion,
With respect to both CV and home market prices, we made adjustments, where appropriate, for inland freight, inland insurance, and discounts. We also reduced CV and home market prices by packing costs incurred in the home market, in accordance with section 773(a)(6)(B)(i) of the Act. In addition, we increased CV and home market prices for U.S. packing costs, in accordance with section 773(a)(6)(A) of the Act. We made further adjustments to home market prices, when applicable, to account for differences in physical characteristics of the merchandise, in accordance with section 773(a)(6)(C)(ii) of the Act. Finally, pursuant to section 773(a)(6)(C)(iii) of the Act, we made an adjustment for differences in circumstances of sale by deducting home market direct selling expenses and adding any direct selling expenses associated with U.S. sales not deducted under the provisions of section 772(d)(1) of the Act.
As a result of our review, we preliminarily determine that the following weighted-average dumping margins exist for the period January 1, 1999, through December 31, 1999:
Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within 5 days of the date of publication of this notice. Any interested party may request a hearing within 30 days of the date of publication of this notice. Parties who submit arguments in this proceeding are requested to submit with each argument: (1) A statement of the issue and (2) a brief summary of the argument. All case briefs must be submitted within 30 days of the date of publication of this notice. Rebuttal briefs, which are limited to issues raised in the case briefs, may be filed not later than seven days after the case briefs are filed. Further, we would appreciate it if parties submitting written comments would provide the Department with an additional copy of the public version of any such comments on diskette. A hearing, if requested, will be held two days after the date the rebuttal briefs are filed or the first business day thereafter.
The Department will publish a notice of the final results of this administrative review, which will include the results of its analysis of the issues raised in any written comments, within 120 days from the publication of these preliminary results.
The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to Customs. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the determination and for future deposits of estimated duties. We have calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of dumping margins calculated for the examined sales to the entered value of sales used to calculate those duties. We will direct Customs to liquidate without regard to antidumping duties any entries for which the assessment rate is
Furthermore, the following deposit requirements will be effective upon completion of the final results of these administrative reviews for all shipments of top-of-stove stainless steel cooking ware from Korea entered, or withdrawn from warehouse, for consumption on or after publication date of the final results of these administrative reviews, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rate established in the final results of this administrative review, except if the rate is less than 0.5 percent
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and this notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties of the Assistant Secretary for Import Administration.
Import Administration, International Trade Administration, Department of Commerce.
Initiation of antidumping duty investigations.
February 23, 2001.
Rick Johnson (Mexico) or Nancy Decker (Japan) at (202) 482-3818 and (202) 482-0196, respectively; Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department's regulations are references to the provisions codified at 19 CFR Part 351 (2000).
On January 10, 2001, the Department of Commerce (the Department) received petitions filed in proper form by the following parties: Berg Steel Pipe Corp., American Steel Pipe Division of American Cast Iron Pipe Company, and Stupp Corporation (collectively “petitioners”). Additionally, one other domestic producer, although a non-petitioner, issued a statement supporting the petition. The Department received information from the petitioners supplementing the petition on January 22, January 24, January 26, and January 29, 2001.
In accordance with section 732(b) of the Act, the petitioners allege that imports of welded large diameter line pipes (hereafter referred to as LDLP)
The Department finds that the petitioners filed these petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and have demonstrated sufficient industry support with respect to each of the antidumping investigations that they are requesting the Department to initiate (
The product covered by this investigation is welded carbon and alloy line pipe, of circular cross section and with an outside diameter greater than 16 inches in diameter, whether or not stencilled. This product is normally produced according to American Petroleum Institute (API) specifications, including Grades A25, A, B, and X grades ranging from X42 to X80, but can also be produced to other specifications. The product currently is classified under U.S. Harmonized Tariff Schedule (HTSUS) item numbers 7305.11.10.30, 7305.11.10.60, 7305.11.50.00, 7305.12.10.30, 7305.12.10.60, 7305.12.50.00, 7305.19.10.30. 7305.19.10.60, and 7305.19.50.00. Although the HTSUS item numbers are provided for convenience and customs purposes, the written description of the scope is dispositive. Specifically not included within the scope of this investigation is American Water Works Association (AWWA) specification water and sewage pipe.
As discussed in the preamble to the Department's regulations (62 FR 27323), we are setting aside a period for parties to raise issues regarding product coverage. The Department encourages all parties to submit such comments by February 20, 2001. Comments should be addressed to Import Administration's Central Records Unit at Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and consult with parties prior to the issuance of the preliminary determinations.
Section 771(4)(A) of the Act defines the “industry” as the producers of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (section 771(10) of the Act), they do so for different purposes and pursuant to separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to the law.
Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,”
Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (1) At least 25 percent of the total production of the domestic like product; and (2) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Finally, section 732(c)(4)(D) of the Act provides that if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the administering agency shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition as required by subparagraph (A), or (ii) determine industry support using a statistically valid sampling method.
For Mexico and Japan, the petitioners established industry support representing over 50 percent of total production of the domestic like product. Therefore, the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product, and the requirements of section 732(c)(4)(A)(i) are met. Furthermore, because the Department received no opposition to the petition, the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. Thus, the requirements of section 732(c)(4)(A)(ii) are also met.
Accordingly, the Department determines that the petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.
The Mexican producers named in the petition are Procarsa SA de CV, Productora Mexicana de Tuberia SA de SV, Tubacero SA, Tuberia Laguna SA de CV, and Tubesa SA de CV. In order to calculate normal value (NV), the petitioners provided an affidavit and supporting documentation listing home market price quotes from one Mexican producer for merchandise which falls within the scope of the petition. These quotes were obtained by a foreign market researcher during the period of investigation. Based on the terms of the price quotes, petitioners made no adjustments to normal value.
The petitioners based export price (EP) on average unit value (AUV) data gathered from IM-145 import statistics. Using the month of September 2000, they compared the one HTSUS ten-digit category which corresponds to the products described in the calculation of NV. Petitioners maintain that this methodology is appropriate because the NV was based on price quotes which would be most contemporaneous with September entries. For the purposes of initiation, the Department has based EP on the weighted-average AUVs for the HTSUS category corresponding to the HTSUS category used as the basis for NV using all available data for the calendar year 2000 (
Petitioners then deducted an amount for foreign inland freight, which was a simple average of the separate freight quotes from a Mexican producer, to arrive at a net EP. However, for the purposes of initiation, the Department has adjusted petitioners' foreign inland freight calculation. Specifically, we have adjusted for the difference in distances between: (1) The rate supplied by petitioners; and (2) the distance between the Mexican producer from which the rates were obtained and the presumed ports of export for the merchandise, based on the actual U.S. ports of entry.
Based upon the comparison of EP to NV, the petitioners' estimated dumping margin, as adjusted by the Department, is 49.86 percent.
Pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, the petitioners based NV for sales in Japan on CV because they could not obtain corresponding home market prices. The petitioners calculated CV by using publicly available cost information from a Japanese producer, information from a U.S. surrogate, and other sources. The amount calculated for CV consisted of COM and SG&A expenses. Consistent with 773(e)(2) of the Act, the petitioners added to CV an amount for profit which was based upon a Japanese producer's financial statements.
The petitioners were unable to obtain specific sales or offers for sale of subject merchandise in the United States. Therefore, the petitioners based EP on the average unit values (“AUV”) for one ten-digit category of the HTSUS accounting for approximately 40 percent of in-scope imports for consumption from Japan. The petitioners calculated the import AUV using the reported quantity and customs value for imports as recorded in the U.S. Census Bureau's official IM-145 import statistics. In their calculation of estimated dumping margins, the petitioners based EP on import statistics covering the first three quarters of 2000. For the purposes of initiation, the Department has based EP on the weighted-average AUVs for the HTSUS category corresponding to the HTSUS category used as the basis for NV using all available data for the calendar year 2000 (
Based upon the comparison of EP to CV, the petitioners calculated an estimated dumping margin of 30.80 percent.
Based on the data provided by the petitioners, there is reason to believe that imports of LDLP from Mexico and Japan are being, or are likely to be, sold at less than fair value.
The petitions allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the individual and cumulated imports of the subject merchandise sold at less than NV. The petitioners contend that the industry's injured condition is evident in the significant increases in imports of LDLP from Mexico and Japan, a shrinking portion of market share, and declining volumes in production, shipment, and capacity utilization. The allegations of injury and causation are supported by relevant evidence including U.S. Customs import data, lost sales, and pricing information. We have assessed the allegations and supporting evidence regarding material injury and causation, and have determined that these allegations are properly supported by accurate and adequate evidence and meet the statutory requirements for initiation (
Based upon our examination of the petitions on LDLP, and the petitioners' responses to our supplemental questionnaire clarifying the petitions, we have found that they meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of LDLP from Mexico and Japan are being, or are likely to be, sold in the United States at less than fair value. Unless this deadline is extended, we will make our preliminary determinations no later than 140 days after the date of this initiation.
In accordance with section 732(b)(3)(A) of the Act, a copy of the public version of each petition has been provided to the representatives of the governments of Mexico and Japan. We will attempt to provide a copy of the public version of each petition to each exporter named in the petition, as appropriate.
We have notified the ITC of our initiations, as required by section 732(d) of the Act.
The ITC will determine, no later than February 24, 2001, whether there is a reasonable indication that imports of LDLP from Mexico and Japan are causing material injury, or threatening to cause material injury, to a U.S. industry. A negative ITC determination for any country will result in the investigation being terminated with respect to that country; otherwise, these investigations will proceed according to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of the Act. Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties of the Assistant Secretary for Import Administration.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Final Results of Countervailing Duty Administrative Review.
On August 8, 2000, the Department of Commerce published in the
Based on our analysis of the comments received, and the decision of the Court of Appeals for the Federal Circuit in
February 23, 2001.
Craig Matney, Annika O'Hara, Sally Hastings or Andrew Covington, AD/CVD Enforcement, Group I, Office 1, Import Administration, U.S. Department of Commerce, Room 1780, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-1778, 482-3798, 482-3464 or 482-3534, respectively.
Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (“URAA”), effective January 1, 1995 (“the Act”). The Department is conducting this administrative review in accordance with section 751(a) of the Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR 351 (1998).
On July 24, 1996, the Department of Commerce (“the Department”) published in the
In accordance with 19 CFR 351.213(b), this review of the order covers the following producers or exporters of the subject merchandise for which a review was specifically requested: Delverde S.p.A. (“Delverde”); Tamma Industrie Alimentari S.r.L. (“Tamma”); Rummo S.p.A. Molino e Pastaficio (“Rummo”); and Pastificio Riscossa F.lli Mastromauro S.r.L. (“Riscossa”). La Molisana, which had requested to be included in this review, withdrew its request on October 14, 1999. Consequently, the Department rescinded this review with respect to La Molisana. (See
Since the publication of the
On October 5, 2000, we issued a questionnaire to Delverde regarding its change in ownership; we received Delverde's response to this questionnaire on October 23, 2000. On October 13, 2000, we published in the
On December 27, 2000, the Department placed on the record of the instant case a copy of Delverde's response to a supplemental questionnaire regarding its change of ownership that it had submitted in the remand proceeding pursuant to the September 27, 2000 order from the U.S. Court of International Trade (“CIT”) in
Imports covered by this review are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white. The pasta covered by this scope is typically sold in the retail market, in fiberboard or cardboard cartons, or polyethylene or polypropylene bags, of varying dimensions.
Excluded from the scope of this review are refrigerated, frozen, or canned pastas, as well as all forms of egg pasta, with the exception of non-egg dry pasta containing up to two percent egg white. Also excluded are imports of organic pasta from Italy that are accompanied by the appropriate certificate issued by the Instituto Mediterraneo Di Certificazione (“IMC”), by Bioagricoop Scrl, by QC&I International Services, by Ecocert Italia, or by the Conzorzio per il Controllo dei Prodotti Biologici.
The merchandise subject to review is currently classifiable under item 1902.19.20 of the
The Department has issued the following scope rulings to date:
(1) On August 25, 1997, the Department issued a scope ruling that multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the countervailing duty order. (
(2) On July 30, 1998, the Department issued a scope ruling, finding that multipacks consisting of six one-pound packages of pasta that are shrink-wrapped into a single package are within the scope of the countervailing duty order. (
(3) On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of
The period of review (POR) for which we are measuring subsidies is from January 1 through December 31, 1998.
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the February 5, 2001
Based on our analysis of comments received, and the Department's revised change-in-ownership approach based on the Court's ruling in
In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter subject to this administrative review. For the period January 1 through December 31, 1998, we determine the net subsidy rates for producers/exporters under review to be those specified in the chart shown below.
We will instruct the U.S. Customs Service (“Customs”) to assess countervailing duties as indicated above. The Department will also instruct Customs to collect cash deposits of estimated countervailing duties in the percentage detailed above of the f.o.b. invoice prices on all shipments of the subject merchandise from the producers/exporters under review, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this administrative review.
The cash deposit rates for all companies not covered by this review are not changed by the results of this review. Thus, we will instruct Customs to continue to collect cash deposits for non-reviewed companies, except Barilla G. e R. F.lli S.p.A. (“Barilla”) and Gruppo Agricoltura Sana S.r.L. (“Gruppo”) (which were excluded from the order during the investigation), at the most recent rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the
This notice serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.301. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This administrative review and notice are in accordance with section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)).
International Trade Administration, Commerce.
Notice of initiation of process to revoke export trade certificate of review No. 97-00001.
The Secretary of Commerce issued an export trade certificate of review to Dairy Marketing Information Association. Because this certificate holder has failed to file an annual report as required by law, the Department is initiating proceedings to revoke the certificate. This notice summarizes the notification letter sent to Dairy Marketing Information Association.
Vanessa Bachman, Acting Director, Office of Export Trading Company Affairs, International Trade Administration, (202) 482-5131. This is not a toll-free number.
Title III of the Export Trading Company Act of 1982 (“the Act”) [15 U.S.C. 4011-21] authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. The regulations implementing Title III (“the Regulations”) are found at 15 CFR part 325. Pursuant to this authority, a certificate of review was issued on April 17, 1997 to Dairy Marketing Information Association.
A certificate holder is required by law (section 308 of the Act, 15 U.S.C. 4018) to submit to the Department of Commerce annual reports that update financial and other information relating to business activities covered by its certificate. The annual report is due within 45 days after the anniversary date of the issuance of the certificate of review (sections 325.14(a) and (b) of the Regulations). Failure to submit a complete annual report may be the basis for revocation. (Sections 325.10(a) and 325.14(c) of the Regulations.)
The Department of Commerce sent to Dairy Marketing Information Association, on April 7, 2000, a letter containing annual report questions with a reminder that its annual report was due on June 1, 2000. Additional reminders were sent on December 1, 2000 and on December 12, 2000. The Department has received no written response to any of these letters.
On February 16, 2001, and in accordance with section 325.10(c)(1) of the Regulations, a letter was sent by certified mail to notify Dairy Marketing Information Association that the Department was formally initiating the process to revoke its certificate. The letter stated that this action is being taken because of the certificate holder's failure to file an annual report.
In accordance with section 325.10(c)(2) of the Regulations, each certificate holder has thirty days from the day after its receipt of the notification letter in which to respond. The certificate holder is deemed to have received this letter as of the date on which this notice is published in the
If the certificate holder decides to respond, it must specifically address the Department's statement in the notification letter that it has failed to file an annual report. It should state in detail why the facts, conduct, or circumstances described in the notification letter are not true, or if they are, why they do not warrant revoking the certificate. If the certificate holder does not respond within the specified period, it will be considered an admission of the statements contained in the notification letter (section 325.10(c)(2) of the Regulations).
If the answer demonstrates that the material facts are in dispute, the Department of Commerce and the Department of Justice shall, upon request, meet informally with the certificate holder. Either Department may require the certificate holder to provide the documents or information that are necessary to support its contentions (section 325.10(c)(3) of the Regulations).
The Department shall publish a notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The South Atlantic Fishery Management Council (Council) will hold meetings of its Snapper Grouper Committee, Spiny Lobster Committee, Marine Reserves Committee, Advisory Panel Selection Committee (Closed Session), Highly Migratory Species Committee, and Shrimp Committee. The Council will also hold joint meetings of the Snapper Grouper Committee and the Wreckfish Advisory Panel, Controlled Access Committee and the Rock Shrimp Advisory Panel, and a joint meeting of the Executive and Finance Committees. There will also be a full Council Session. Public comment periods will be held during some of the meetings.
The meetings will be held in March 2001. See
The meetings will be held at the Jekyll Island Club Hotel, 371 Riverview Drive, Jekyll Island, GA 31527; Telephone: 800-535-9547 or 912-635-2600, Fax: 912-635-2818.
Copies of the documents are available from Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, One Southpark Circle, Suite 306, Charleston, SC 29407-4699.
Kim Iverson, Public Information Officer; telephone: 843-571-4366; fax: 843-769-4520; email: kim.iverson@noaa.gov.
1.
A public scoping meeting on Amendment 13 to the Snapper Grouper FMP addressing permit transfers, SFA provisions, and Section 7 consultation will be held beginning at 1:30 p.m. A document regarding this issue is available from the Council office (see
Immediately following the public comment period, the Snapper Grouper Committee will meet to review public hearing comments on the use of powerhead gear; develop recommendations for framework measures on the use of powerheads as appropriate; review the status of the peer review concerning red porgy assessment and projections, the stock status for snowy grouper and golden tilefish, and SFA issues; review the Snapper Grouper Assessment Group report and recommendations; and develop preliminary directions to staff as appropriate.
2.
The Snapper Grouper Committee will meet jointly with the Wreckfish Advisory Panel to develop recommendations for wreckfish TAC and wreckfish framework actions as needed.
3.
A public scoping meeting will address issues in Amendment 7 including tailing permits and management structure. The Spiny Lobster Committee will meet to review a draft options paper for Amendment 7 to the Spiny Lobster FMP and develop recommendations. A document regarding this issue is available from the Council office (see
4.
The Marine Reserves Committee will meet to hear a report on Marine Protected Areas; the status of the Council's Memorandum of Understanding (MOU) with Gray's Reef National Marine Sanctuary; discuss any necessary updates to the NMFS White Paper on marine reserves; review a marine reserves pre-scoping document; and hear an update on the Gulf closed area lawsuit from NOAA General Counsel.
5.
The Advisory Panel Selection Committee will meet to review membership applications and develop recommendations.
6.
The Highly Migratory Species Committee will meet to hear a presentation on NMFS' Highly Migratory Species (HMS) activities, review the status of the HMS and Billfish Advisory Panels, and discuss Council interaction with the NMFS's HMS program.
7.
A Public Scoping Meeting on Amendment 6 to the Shrimp FMP will be held beginning at 10:30 a.m. Items under consideration include permits, night time closures and trawl size restrictions. A scoping document is available from the Council office (see
Beginning at 1:30 p.m., the Committee will discuss options for Amendment 6 and provide directions to staff. The Committee will also review the status of NMFS observer coverage for the rock shrimp fishery and the condition of over-wintering shrimp stocks and take action as appropriate.
8.
At the March 7 meeting, the Controlled Access Committee will meet jointly with the Rock Shrimp Advisory Panel (AP) to review the rock shrimp limited access options paper and develop advisory panel recommendations. A scoping document is available from the Council office (see
At the March 8 meeting, the Committee and the AP will develop recommendations for a draft amendment addressing limited entry and approve them for public hearing.
9.
The Executive Committee will meet jointly with the Finance Committee to hear a report on the Chairmen's and Executive Director's budget meeting with NMFS, discuss staff proposals for additional funding, approve amending $65,000 into the current budget and discuss NMFS response on the Operations Plan.
10.
From 1:30 p.m. to 1:45 p.m., the Council will have a Call to Order, introductions and roll call, adoption of the agenda, and approval of the November/December 2000 meeting minutes.
From 1:45 p.m. to 2:30 p.m., the Council will hear a report from the Snapper Grouper Committee. Beginning at 1:45 p.m., a public comment period will be held to (1) address any proposed framework changes to the Snapper Grouper FMP addressing the use of powerhead gear by divers off the East Coast of Florida and (2) set the annual wreckfish TAC or other wreckfish framework actions. The Council will then make a decision on the framework actions. A framework document addressing these issues is available from the Council office (see
From 2:30 p.m. to 3:00 p.m., the Council will hear a report from the Shrimp Committee. Beginning at 2:30, a public comment period will be held on any proposed framework changes to the Shrimp FMP as a result of over-wintering shrimp mortalities. Following
From 3:00 p.m. to 4:00 p.m., a Public Scoping Meeting will be held beginning at 3:00 p.m. to address (1) a coral framework action to establish additional Habitat Areas of Particular Concern and (2) the development of a comprehensive FMP amendment addressing permit renewal timeframes, operator permits, a consolidated controlled access system and the Atlantic Coast Cooperative Statistics Program's (ACCSP) permits and reporting. A scoping document addressing these issues is available from the Council office (see
From 4:00 p.m. to 4:15 p.m., the Council will hear a report from the Spiny Lobster Committee.
From 4:15 p.m. to 4:30 p.m., the Council will hear a report from the Marine Reserves Committee and make any required modifications to the MOU between the Council and Gray's Reef National Marine Sanctuary.
From 4:30 p.m. to 4:45 p.m., the Council will hear a report from the Highly Migratory Species Committee.
From 4:45 p.m. to 5:00 p.m., the Council will hear a report from the Controlled Access Committee and approve draft Amendment 5 to the Shrimp FMP, addressing rock shrimp limited access, for the public hearing.
From 5:00 p.m. to 5:30 p.m., the Council will hear a report on the joint meeting of the South Atlantic Fishery Management Council, Gulf of Mexico Fishery Management Council and the Caribbean Fishery Management Council regarding the Dolphin/Wahoo FMP and take any action required.
11.
From 8:30 a.m. to 9:00 a.m., the Council will hear a report from the Advisory Panel Selection Committee and appoint new advisory panel members (closed session).
From 9:00 a.m. to 9:15 a.m., the Council will hear a report from the joint Executive and Finance Committee and approve amending the $65,000 into the current budget.
From 9:15 a.m. to 10:15 a.m., the Council will discuss and make recommendations on potential changes to NMFS final rule regarding allowable gear.
From 10:15 a.m. to 10:30 a.m., the Council will hear an update on economic activities and issues.
From 10:30 a.m. to 10:45 a.m., the Council will hear an update on social activities and issues.
From 10:45 a.m. to 11:00 a.m., the Council will hear an update on the ACCSP.
From 11:00 a.m. to 11:15 a.m., the Council will hear a report on the Ecosystem Management Workshop.
From 11:15 a.m. to 11:30 a.m., the Council will hear status reports from NMFS on the: 2000/2001 Mackerel Framework, resubmitted Calico Scallop FMP, resubmitted Sargassum FMP, Golden Crab Amendment 3, and Dolphin Emergency Rule request. The Council will also hear NMFS status reports on landings for Atlantic king mackerel, Gulf king mackerel, Atlantic Spanish mackerel, snowy grouper & golden tilefish, wreckfish, greater amberjack and south Atlantic octocorals.
From 11:30 a.m. to 12:00 noon, the Council will hear agency and liaison reports, and discuss other business and upcoming meetings.
Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subjects of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305 (c) of the Magnuson-Stevens Act, provided the public has been notified of the Council’s intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit amendment.
Notice is hereby given that Southeast Fisheries Science Center, National Marine Fisheries Service, 75 Virginia Beach Drive, Miami, FL 33149 (Principal Investigator: Dr. Keith D. Mullin) has been issued an amendment to scientific research Permit No. 779-1339-02.
The amendment and related documents are available for review upon written request or by appointment in the following office(s): -
Permits and Documentation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910 (301/713-2289); -
Regional Administrator, Southeast Region, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702-2432 (813/570-5312); and -
Regional Administrator, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930, (978/281-9250).
Ruth Johnson or Tammy Adams, 301/713-2289.
On September 13, 2000, notice was published in the Federal Register (65 FR 55224) that an amendment of Permit No. 779-1339, issued July 8, 1997 (62 FR 38069), had been granted to the above-named organization. The requested amendment was been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and the Regulations Governing the Taking and Importing of Marine Mammals (50 CFR part 216)but did not include an increase in takes for endangered species. This amendment is granted under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1361
Permit 779-1339 authorized the Holder to: (1) harass cetaceans for the purpose of estimating abundance, collecting behavioral data, photography and biopsy sampling, and (2) collect and import biopsy tissue samples taken with a projectile dart from cetaceans. This amendment increased the number of humpback whale biopsy samples that could be taken annually.
Issuance of this amendment, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit amendment.
Notice is hereby given that Permit No. 473-1433-01, issued to Janice Straley, University of Southeast Alaska, 1332 Seward Avenue, Sitka, Alaska 99835-9498, was amended.
The amendment and related documents are available for review upon written request or by appointment in the following offices: -Permits and Documentation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13130, Silver Spring, MD 20910 (301/713-2289); and Regional Administrator, Alaska Region, NMFS, 709 West 9th Street, 4
Jill Lewandowski, 301/713-2289.
On August 15, 2000, notice was published in the
The permit has been amended to authorize: (1) 100 sperm whale takes (
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of the endangered species which is the subject of this permit, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force Precision Targeting will meet in closed session March 29-30, 2001; April 19-20, 2001; May 10-11, 2001; June 14-15, 2001; and July 26-27, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA 22201. The Task Force will examine the full range of the precision weapons targeting in tactical military operations, from target execution, location, and identification through mission execution and damage assessment. Target types will include fixed installations and both transportable and mobile military force elements.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. The Task Force will review: All planned precision weapons programs and procurements to determine the degree to which these weapons are compatible with targeting requirements for different target classes; the degree to which existing and planned reconnaissance and surveillance assets are used to effectively develop target sets, real time targeting data and perform battle damage assessment under varied degrees of cover, concealment and deception; our ability to identify and precisely locate targets while minimizing false alarms using automatic target recognition techniques and precision location technologies; and our ability to attack moving targets.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board meetings, concern matters listed in 5 U.S.C. 552b(c) (1), and that accordingly these meetings will be closed to the public.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Managed Information Dissemination Follow-On Initiative will meet in closed session on February 22-23, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA. The Task Force will review the need and feasibility of a coordinated information dissemination capability within the U.S. Government encompassing tactical, operational, and strategic information. Specifically, they will investigate: detailed and actionable recommendations with respect to enabling “channels” and establishing appropriate “brand identity”; DoD's role in a U.S. strategic information dissemination capability; policy, legal, and economic issues hindering U.S. capabilities; and identify new and emerging technologies capable of enhancing U.S. capabilities.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will review and evaluate the Department's ability to provide information.
In accordance with Section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that this Defense Science Board meeting, concerns matters listed in 5 U.S.C. 552b(c) (1), and that accordingly
Due to critical mission requirements and the limited timeframe to accomplish this review, there is insufficient time to provide timely notice required by section 10(c)(2) of the Federal Advisory Committee Act and Subsection 101-6.1015(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR Part 101-6, which further requires publication at least 15 calendar days prior to this meeting.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Chemical Warfare Defense will meet in closed session on April 10, 2001, and April 24, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA 22201. The Task Force will assess the possibility of controlling the risk and consequences of a chemical warfare (CW) attack to acceptable national security levels within the next five years.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will assess current national security and military objectives with respect to CW attacks; CW threats that significantly challenge these objectives today and in the future; the basis elements (R&D, materiel, acquisition, personnel, training, leadership) required to control risk and consequences to acceptable levels, including counter-proliferation; intelligence, warning, disruption; tactical detection and protection (active and passive); consequence management; attribution and deterrence; and policy. The Task Force will also assess the testing and evaluation necessary to demonstrate and maintain the required capability and any significant impediments to accomplishing this goal.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board meetings, concern matters listed in 5 U.S.C. 552b(c)(1), and that accordingly these meetings will be closed to the public.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Intelligence Needs for Homeland Defense—Follow-On Initiative will meet in closed session on February 27-28, 2001; March 27-28, 2001; and April 24-25, 2001, at Strategic Analysis, Inc., 3601 Wilson Boulevard, Arlington, VA 22201. This Task Force will explore the intelligence ramifications posed by a changing spectrum of threat regimes, including biological, chemical, information, nuclear, and radiological weapons.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will: consider the broad spectrum of intelligence issues from early threat detection to deterrence, through response—including attribution; evaluate the collection and analysis of target-related information and weapon unique information; examine the role of HUMINT against these missions as well as the technology that the HUMINT collectors need to be equipped with; consider strategic indications and warning and tactical warning dissemination and how the two need to be merged; analyze methodology to correlate large data flows spatially temporally and functionally (Low SNR); and assess the robustness of today's intelligence apparatus for coping with these challenges.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board meetings, concern matters listed in 5 U.S.C. 552(c)(1), and that accordingly these meetings will be closed to the public.
Due to critical mission requirements and scheduling conflicts, there is insufficient time to provide timely notice required by section 10(a)(2) of the Federal Advisory Committee Act and Subsection 101-6.1015(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR Part 101-6, which further requires publication at least 15 calendar days prior to the meeting of the Task Force.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Training for Future Conflicts will meet in closed session on February 28, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA 22201. This Task Force will focus on identifying and characterizing what education and training are demanded by Joint Vision 2010/2020, and will address the development and demonstration time phasing over the next two decades for the combined triad of technology modernization, operational concepts, and training.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will also identify those approaches and techniques that potential enemies might take that could prepare them to revolutionize their warfare capabilities, thereby achieving a training surprise against the U.S. or its allies. This review will include, but not be limited to, unique training/education developments which might be spawned by allies or an adversary, training techniques and methodologies which might be transferred from the U.S. or
In accordance with section 10(d) of the Federal Advisory Committee Act, Pub. L. 92-463, as amended (5 U.S.C. App. II), it has been determined that this Defense Science Board meeting, concerns matters listed in 5 U.S.C. 552b(c)(1), and that accordingly this meeting will be closed to the public.
Due to critical mission requirements and scheduling conflicts, there is insufficient time to provide timely notice required by section 10(a)(2) of the Federal Advisory Committee Act and subsection 101-6.1015(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR part 101-6, which further requires publication at least 15 calendar days prior to the meeting of the Task Force.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Defense Science & Technology (S&T) will meet in closed session on March 1-2, 2001; March 29-30, 2001; May 3-4, 2001; June 7-8, 2001; June 28-29, 2001; and July 26-27, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA. The Task Force will address the issues involved in assuring that the U.S. continues to gain access to and develop technology from which to gain military advantage.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will consider: future technologies that should be developed and exploited for military applications, particularly potential technologies that provide the U.S. military an asymmetric advantage in conflict, in deployment, and at home; the appropriate mix of in-house, contractor, university and commercial providers of basic and applied research and of advanced development; how DoD can leverage technology that is under development and produced globally in commercial industry, as well as that which is being discovered and demonstrated in the S&T programs funded by both other U.S. agencies and other nations; the situation of and the contribution of the DoD laboratories in this changing world; and how to maintain excellence in in-house S&T endeavors.
In accordance with section 10(d) of the Federal Advisory Committee Act, Pub. Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Board meetings, concern matters listed in 5 U.S.C. 552b(c)(1), and that accordingly these meetings will be closed to the public.
Due to critical mission requirements and scheduling conflicts, there is insufficient time to provide timely notice required by section 10(a)(2) of the Federal Advisory Committee Act and subsection 101-6.1015(b) of the GSA Final rule on Federal Advisory Committee Management, 41 CFR part 101-6, which further requires publication at least 15 calendar days prior to the meeting of the Task Force.
Notice of Advisory Committee meetings.
The Defense Science Board (DSB) Task Force on Defense Science & Technology (S&T) will meet in closed session on March 1-2, 2001; March 29-30, 2001; May 3-4, 2001; June 7-8, 2001; June 28-29, 2001; and July 26-27, 2001, at SAIC, 4001 N. Fairfax Drive, Arlington, VA. The Task Force will address the issues involved in assuring that the U.S. continues to gain access to and develop technology from which to gain military advantage.
The mission of the Defense Science Board is to advise the Secretary of Defense and the Under Secretary of Defense for Acquisition, Technology & Logistics on scientific and technical matters as they affect the perceived needs of the Department of Defense. At these meetings, the Defense Science Board Task Force will consider: future technologies that should be developed and exploited for military applications, particularly potential technologies that provide the U.S. military an asymmetric advantage in conflict, in deployment, and at home; the appropriate mix of in-house, contractor, university and commercial providers of basic and applied research and of advanced development; how DoD can leverage technology that is under development and produced globally in commercial industry, as well as that which is being discovered and demonstrated in the S&T programs funded by both other U.S. agencies and other nations; the situation of and the contribution of the DoD laboratories in this changing world; and how to maintain excellence in in-house S&T endeavors.
In accordance with section 10(d) of the Federal Advisory Committee Act, Public Law 92-463, as amended (5 U.S.C. App. II), it has been determined that these Defense Science Board meetings, concern matters listed in 5 U.S.C. 552b(c)(1), and that accordingly these meetings will be closed to the public.
Due to critical mission requirements and scheduling conflicts, there is insufficient time to provide timely notice required by section 10(a)(2) of the Federal Advisory Committee Act and subsection 101-6.1015(b) of the GSA Final Rule on Federal Advisory Committee Management, 41 CFR part 101-6, which further requires publication at least 15 calendar days prior to the meeting of the Task Force.
National Reconnaissance Office.
Notice to add a system of records.
The National Reconnaissance Office is adding a system of records notice to its inventory of record systems subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended.
This proposed action will be effective without further notice on March 26, 2001 unless comments are
National Reconnaissance Office, 14675 Lee Road Chantilly, VA 20151-1715.
Ms. Barbara Freimann at (703) 808-5029.
The National Reconnaissance Office systems of records notices subject to the Privacy Act of 1974, (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on February 14, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About Individuals,’ dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Facility Security Files.
Management Services and Operations, Customer Security Services/Headquarters Security Services Group National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
National Reconnaissance Office (NRO) civilian, military, and contractor personnel who have been issued an NRO badge for entry onto the gated compound and into the facility; all other visitors who do not possess an NRO recognized badge but have been granted access to the NRO compound and facility; and any individuals who make unsolicited contact with the NRO.
For badged personnel information includes: Name, Social Security Number, grade or rank, employer, organization, office location, work telephone number, vehicle license plate number, auto emissions compliance (yes or no), date and place of birth, home address and telephone number, point of contact and emergency phone number, badge status, type, number, and issue date, government sponsor, start and expiration dates, approving officer, access and access status, access approval identification, access request date and approval date, access briefing and debriefing dates, investigation and re-indoctrination dates, polygraph date and status, communication message designator and tracking number;
For visit requests information includes: Name, Social Security Number, organization (affiliation), employer of visitor, cleared or uncleared status, the visit point of contact's name and telephone number, visit date, type of badge to be issued, person issuing badge, date issued, location of visit, visit message, visit group identifier, access or certification access date, and any special accommodation or needs, such as handicap parking or wheelchair access;
For unsolicited contacts information may include: Name, Social Security Number, date and place of birth, home address and telephone number, vehicle license plate number, the correspondence received, and occasionally comments on the contact; information may be limited to that which the person making contact is willing to offer; and
For access control information includes: Name, Social Security Number, employment status, access expiration date, picture of employee, work telephone number, vehicle license plate number, date of visit, point of contact, and the times and locations of access to the secure areas of the facility; fields of information for an NRO employee may differ from those for a visitor.
National Security Act of 1947 as amended, 50 U.S.C. 401 et seq.; 5 U.S.C. 301, Departmental Regulations; E.O. 12333; E.O. 12958; and E.O. 9397 (SSN).
The NRO collects and maintains the records (a) To maintain and provide reports for and on personnel and badge information of the current tenants of authorized facilities; also to create and track the status of visit requests and the issuance of visitor badges; (b) To identify employees and visitors at the entrances of the gated facility; tracking inside the NRO facility the NRO employee and visitor badges as they are used to pass through turnstiles and access office suites and other work areas; (c) To track any unsolicited contacts with the NRO, whether by correspondence or personal contact; to provide a threat assessment program for the Facility Security Services; and to track the investigation and determination of any wrongdoing or criminal activities by NRO employees or facility visitors.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
The DoD “Blanket Routines Uses” published at the beginning of the NRO compilation of systems of records notices apply to this system.
Paper files and automated information systems, maintained in computers and computer output products.
Name, organization (or affiliation), dates of visit, type of badge issued, and active or inactive badge status, Social Security Number, badge expiration date, vehicle license plate number, home address and phone number, date and place of birth, and work address and telephone number.
Records are stored in a secure, gated facility, guard, badge, and password access protected. Access to and use of these files are limited to security staff whose official duties require such access. The automated systems in some cases are partitioned and users of the systems may access only those records for which they have access privileges.
Records are temporary, retained for 3 months to 5 years depending on the type of record; unsolicited contact records are retained for 25 years before being destroyed.
Chief, Customer Security Services/Headquarters Security Services Group, Management Services and Operations, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). Signature.
If executed within the United States, its territories, possessions, or commonwealths: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). Signature.
Individuals seeking to access information about themselves contained in this system should address written inquiries to the National Reconnaissance Office, Information Access and Release Center, 14675 Lee Road, Chantilly, VA 20151-1715.
Request should include the individual's full name and any aliases or nicknames, address, Social Security Number, current citizenship status, date and place of birth, and other information identifiable from the record.
In addition, the requester must provide a notarized statement or an unsworn declaration made in accordance with 28 U.S.C. 1746, in the following format:
If executed without the United States: I declare (or certify, verify, or state under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). Signature.
If executed within the United States, its territories, possessions, or commonwealths: I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). Signature.
The NRO rules for accessing records, for contesting contents and appealing initial agency determinations are published in NRO Directive 110-3A and NRO Instruction 110-5A; 32 CFR part 326; or may be obtained from the Privacy Act Coordinator, National Reconnaissance Office, 14675 Lee Road, Chantilly, VA 20151-1715.
Information is supplied by the individuals (NRO employee, visitor, or person making the unsolicited contact) and by the security staff.
Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment, military service, federal contracts, or access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such material would reveal the identity of a confidential source.
An exemption rule for this exemption has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 326. For additional information contact the system manager.
Department of the Navy, DoD.
Notice to amend record system.
The Department of the Navy proposes to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended.
The amendments will be effective on March 26, 2001 unless comments are received that would result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (N09B10), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545 or DSN 325-6545.
The Department of the Navy's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The Department of the Navy proposes to amend a system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The changes to the system of records are not within the purview of subsection (r) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended, which requires the submission of new or altered systems reports. The records system being amended is set forth below, as amended, published in its entirety.
Navy Child Development Services Program (April 28, 1999, 64 FR 22840).
Add ‘payment records’ to entry.
Navy Child Development Services Program.
Navy Child Development or Family Service Centers located at various Navy and Marine Corps activities both in CONUS and overseas. Official mailing addresses of Navy and Marine Corps activities are published as an appendix to the Department of the Navy's compilation of systems of records notices.
Navy and Marine Corps service members and their families or dependents. In certain locations, DOD civilian employees may be eligible for services.
Name; Social Security Number; case number; home address and telephone number; insurance coverage; names of parents and children; payment records; performance rating; complaints; background information, including medical, educational references, and prior work experience, information from the Naval Criminal Investigative Service
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 5013, Secretary of the Navy; and E.O. 9397 (SSN).
To develop child care programs that meet the needs of children and families, provide child and family program eligibility and background information; verify health status of children and verify immunizations, note special program requirements; consent for access to emergency medical care; data required by USDA programs.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To Federal officials involved in Child Care Services, including child abuse for the purpose of investigation and litigation.
To State and local officials involved with Child Care Services if required in the performance of their official duties relating to investigations.
The DoD ‘Blanket Routine Uses’ that appear at the beginning of the Navy's compilation of systems of records notices apply to this system.
Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:
Paper and automated records.
By last name of member and Social Security Number.
Records are maintained in monitored or controlled areas accessible only to authorized personnel. Building or rooms are locked outside regular working hours. Computer files are protected by software programs that are password protected.
Records are kept for two years after individual is no longer in the Child Development Program and then destroyed.
Policy Official: Commander, Navy Personnel Command (Pers-659), 5720 Integrity Drive, Millington, TN 38055-6590.
Record Holder: Navy Child Development or Family Service Centers located at various Navy and Marine Corps activities both in CONUS and overseas. Official mailing addresses of Navy and Marine Corps activities are published as an appendix to the Department of the Navy's compilation of systems of records notices.
Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the appropriate Navy or Marine Corps activity concerned. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices.
Individuals should provide proof of identity and full name.
Individuals seeking access to information about themselves contained in this system should address written inquiries to the appropriate Navy or Marine Corps activity concerned. Official mailing addresses are published as an appendix to the Navy's compilation of systems of records notices. Individuals should provide proof of identity and full name.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
Information in this system comes from individuals either applying as child care providers or participant of the Family Child Care program; background checks from State and local authorities; housing officers; information from the Family Advocacy program; base security officers and base fire, safety and health officers; and local family child care monitors and parents of children enrolled.
Investigatory material compiled for law enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any right, privilege, or benefit for which he would otherwise be entitled by Federal law or for which he would otherwise be eligible, as a result of the maintenance of such information, the individual will be provided access to such information except to the extent that disclosure would reveal the identity of a confidential source.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c) and (e) and published in 32 CFR part 701, subpart G. For additional information contact the system manager.
Department of the Navy, DoD.
Notice to alter a system of records.
The Department of the Navy proposes to alter a system of records notice in its inventory of record systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended. The routine uses being added will permit the collection of debts owed to the U.S. Government.
This action will be effective on March 26, 2001 unless comments are received that would result in a contrary determination.
Send comments to the Department of the Navy, PA/FOIA Policy Branch, Chief of Naval Operations (N09B30), 2000 Navy Pentagon, Washington, DC 20350-2000.
Mrs. Doris Lama at (202) 685-6545 or DSN 325-6545.
The Department of the Navy's record system notices for records systems subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act was submitted on February 14, 2001, to the House Committee on Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, ‘Federal Agency Responsibilities for Maintaining Records About
Bad Checks and Indebtedness Lists (May 22, 1996, 61 FR 25637).
Delete entry and replace with “Copy of application, monthly statements, dunning notices, DD139s, correspondence from both AAFES and the collection contractor; Bad Check System (including: Returned Check Ledger; Returned Check Report; copies of returned checks; bank advice relative to the returned check(s); correspondence relative to attempt by the Navy exchange to locate the patron and/or obtain payment; a printed report of names of those persons who have not made full restitution promptly, or who have had one or more checks returned through their own fault or negligence); Accounts Receivable Ledger, detailed by patron; C.O.D. Sales Ledger; NEXCARD data base; MILSTAR, the all-service credit card; and TOP (Treasury Offset program) accounts.”
Delete entry and replace with “5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 6011; 31 CFR 285.11, Administrative Wage Garnishment; Federal Claims Collection Act of 1966 (Pub.L. 89-508) and Debt Collection Act of 1982 (Pub.L. 97-365) as amended by the Debt Collection Improvement Act of 1996 (Pub.L. 104-134, section 31001; and E.O. 9397 (SSN).”
At the end of the first paragraph, add “and to collect indebtedness.” Add a new paragraph “Records may also be used by the Army and Air Force Exchange Service (AAFES) or its contractor for the purpose of recouping fees.”
Add two new paragraphs “To any State and local governmental agency that employs the services of others and that pays their wages or salaries, where the employee owes a delinquent non-tax debt to the United States for the purpose of garnishment.
To the Department of the Treasury, Financial Management Service, for the purpose of collecting delinquent debts owed to the U.S. Government via administrative offset.”
Delete entry and replace with “Records are kept for ten years and then destroyed. NEXCARD customer master records are saved daily for one month after which they become part of the monthly master files which are saved for a year. The administrator of the NEXCARD retains and stores the year-end master files indefinitely.”
Delete entry and replace with “The individual; the bank involved; activity sales records; Internal Revenue Service; credit bureaus; AAFES and/or their contractor; and the Defense Manpower Data Center.”
Bad Checks and Indebtedness Lists.
Navy Exchange Service Command, 3280 Virginia Beach Boulevard, Virginia Beach, VA 23452-5724 (for all Navy exchanges).
Patrons of Navy exchanges who have passed bad checks; recruits who have open accounts with Navy exchanges; patrons who have made C.O.D. mail order transactions and those patrons who make authorized charge or credit purchases where their accounts are maintained on the basis of an identifying particular such as name and/or Social Security Number; includes all holders of NEXCARDs.
Copy of application, monthly statements, dunning notices, DD139s, correspondence from both AAFES and the collection contractor; Bad Check System (including: Returned Check Ledger; Returned Check Report; copies of returned checks; bank advice relative to the returned check(s); correspondence relative to attempt by the Navy exchange to locate the patron and/or obtain payment; a printed report of names of those persons who have not made full restitution promptly, or who have had one or more checks returned through their own fault or negligence); Accounts Receivable Ledger, detailed by patron; C.O.D. Sales Ledger; NEXCARD data base; MILSTAR, the all-service credit card; and TOP (Treasury Offset program) accounts.
5 U.S.C. 301, Departmental Regulations; 10 U.S.C. 6011; 31 CFR 285.11, Administrative Wage Garnishment; Federal Claims Collection Act of 1966 (Pub.L. 89-508) and Debt Collection Act of 1982 (Pub.L. 97-365); and E.O. 9397 (SSN).
To maintain an automated tracking and accounting system for individuals indebted to the Department of the Navy and to collect indebtedness.
Records in this system are subject to use in approved computer matching programs authorized under the Privacy Act of 1974, as amended, for debt collection purposes.
Records may also be used by the Army and Air Force Exchange Service (AAFES) or its contractor for the purpose of recouping fees.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, these records or information contained therein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To a commercial credit reporting agency for the purpose of either adding to a credit history file or obtaining a credit history file for use in the administration of debt collection.
To a debt collection agency for the purpose of collection services to recover indebtedness owed to the Department of the Navy.
To the Internal Revenue Service (IRS) to obtain the mailing address of a taxpayer for the purpose of locating such taxpayer to collect or to compromise a Federal claim by Navy against the tax payer pursuant to 26 U.S.C. 6103(m)(2) and in accordance with 31 U.S.C. 3711, 3217, and 3718.
To any State and local governmental agency that employs the services of others and that pays their wages or salaries, where the employee owes a delinquent non-tax debt to the United States for the purpose of garnishment.
To the Department of the Treasury, Financial Management Service, for the purpose of collecting delinquent debts owed to the U.S. Government via administrative offset.
Redisclosure of a mailing address from the IRS may be made only for the purpose of debt collection, including to a debt collection agency in order to facilitate the collection or compromise of a Federal
The DoD ‘Blanket Routine Uses’ that appear at the beginning of the Navy's compilation of systems notices also apply to this system.
Disclosure pursuant to 5 U.S.C. 552a(b)(12) may be made from this system to consumer reporting agencies as defined in the Fair Credit Reporting Act of 1966 (15 U.S.C. 1681a(f)) or the Federal Claims Collection Act of 1966 (31 U.S.C. 3701(a)(3)).
The disclosure is limited to information necessary to establish the identity of the individual, including name, address, and taxpayer identification number (Social Security Number); the amount, status, and history of the claim; and the agency or program under which the claim arose for the sole purpose of allowing the consumer reporting agency to prepare a commercial credit report.
Mainframe magnetic tapes, disk drives, printed reports, file folders, and PC hard and floppy disks.
Name and Social Security Number.
Locked file cabinets, supervised office space, supervised computer tape library which is accessible only through the data center, entry to which is controlled by a ‘cardpad’ security system, for which only authorized personnel are given the access code. PC entry into the system may only be made through individual passwords.
Records are kept for ten years and then destroyed. NEXCARD customer master records are saved daily for one month after which they become part of the monthly master files which are saved for a year. The administrator of the NEXCARD retains and stores the year-end master files indefinitely.
Policy Official: Commander, Navy Exchange Service Command, 3280 Virginia Beach Boulevard, Virginia Beach, VA 23452-5724. Record Holder: Treasurer, Navy Exchange Service Command, 3280 Virginia Beach Boulevard, Virginia Beach, VA 23452-5724 (for Navy exchanges).
Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the Commander, Navy Exchange Service Command, 3280 Virginia Beach Boulevard, Virginia Beach, VA 23452-5724.
In the initial inquiry, the requester must provide full name, Social Security Number, and the activity where they had their dealings. A list of other offices the requester may visit will be provided after initial contact is made at the office listed above. At the time of a personal visit, requesters must provide proof of identity containing the requester's signature.
Individuals seeking access to records about themselves should address written inquiries to the Commander, Navy Exchange Service Command, 3280 Virginia Beach Boulevard, Virginia Beach, VA 23452-5724.
In the initial inquiry, the requester must provide full name, Social Security Number, and the activity where they had their dealings. A list of other offices the requester may visit will be provided after initial contact is made at the office listed above. At the time of a personal visit, requesters must provide proof of identity containing the requester's signature.
The Navy's rules for accessing records, and for contesting contents and appealing initial agency determinations are published in Secretary of the Navy Instruction 5211.5; 32 CFR part 701; or may be obtained from the system manager.
The individual; the bank involved; activity sales records; Internal Revenue Service; credit bureaus; and the Defense Manpower Data Center.
None.
Notice is hereby given that the Delaware River Basin Commission will hold an informal conference followed by a public hearing on Wednesday, February 28, 2001. The hearing will be part of the Commission's regular business meeting. Both the conference session and business meeting are open to the public and will be held at the Commission offices at 25 State Police Drive, West Trenton, New Jersey.
The conference among the Commissioners and staff will begin at 10 a.m. Topics of discussion will include a progress report on the Commission's Comprehensive Plan; the status of a proposed rulemaking to amend the Comprehensive Plan with respect to water usage reporting requirements; issues relating to development of the PCB TMDL for the Delaware Estuary; a preliminary issues paper for the Flow Management Study; a proposal to institute project review upon retirement of entitlements; and creation of a Delaware Estuary Program office at the Commission. Summaries of the following meetings will be presented: the Toxics Advisory Committee meetings of January 11 and February 26 and the inaugural meeting of the Information Management Advisory Committee on February 1.
The subjects of the public hearing to be held during the 1:30 p.m. business meeting include the dockets listed below:
1.
2.
3.
4.
5.
6.
7.
8.
In addition to the public hearing, the Commission will address the following at its 1:30 p.m. business meeting: minutes of the January 9, 2001 business meeting; announcements; report on hydrologic conditions in the basin; report by the Executive Director; public dialogue; and resolutions: (1) Authorizing the Executive Director to proceed with a facilitated two-day meeting of the Watershed Advisory Council including a consensus-building workshop; (2) authorizing the Executive Director to contract with the Delaware Department of Natural Resources and Environmental Control to implement elements of the Comprehensive Conservation and Management Plan for the Delaware Estuary; and (3) establishing a Delaware Estuary Program office to be housed at the Commission.
Documents relating to the dockets and other items may be examined at the Commission's offices. Preliminary dockets are available in single copies upon request. Please contact Thomas L. Brand at (609) 883-9500 ext. 221 with any docket-related questions. Persons wishing to testify at this hearing are requested to register in advance with the Secretary at (609) 883-9500 ext. 203.
Individuals in need of an accommodation as provided for in the Americans With Disabilities Act who wish to attend the hearing should contact the Commission Secretary, Pamela M. Bush, directly at (609) 883-9500 ext. 203 or through the New Jersey Relay Service at 1-800-852-7899 (TTY) to discuss how the Commission may accommodate your needs. Driving directions to the meeting location are posted on the Commission's web site, at
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Fernald. The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Saturday, March 10, 2001, 8:30 a.m.-12 noon.
Fernald Environmental Management Project Site, Services Building Conference Room, 7400 Willey Road, Hamilton, OH 45219.
Lois Yasutis, Phoenix Environmental, 6186 Old Franconia Road, Alexandria, VA 22310, at (703) 971-0030 or (513) 648-6478, or e-mail;
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada Test Site. The Federal Advisory Committee Act (Pub. L. No. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Wednesday, March 7, 2001; 6 p.m.-9 p.m.
Desert Research Institute, 755 East Flamingo Road, Las Vegas, Nevada.
Kevin Rohrer, U.S. Department of Energy, Office of Environmental Management, P.O. Box 98518, Las Vegas, Nevada 89193-8513, phone: 702-295-0197, fax: 702-295-5300.
1. Discussion of the DOE Budget Prioritization process
Copies of the final agenda will be available at the meeting.
Take notice that, on February 14, 2001, Allegheny Energy Supply Conemaugh, LLC filed a supplement to its Application for Determination of Exempt Wholesale Generator Status pursuant to section 32(a)(1) of the Public Utility Holding Company Act of 1935.
Any person desiring to be heard concerning the amended application for exempt wholesale generator status should file a motion to intervene or comments with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). The Commission will limit its consideration of comments to those that concern the adequacy or accuracy of the amended application. All such motions and comments should be filed on or before March 8, 2001 and must be served on the applicant. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection or on the Internet at http://www.ferc.fed.us/online/rims.htm (please call (202)208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 13, 2001 Eastern Shore Natural Gas Company (ESNG) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, certain revised tariff sheets listed on Appendix A to the filing, with an effective date of February 1, 2001.
ESNG states that the purpose of this instant filing is to track rate changes attributable to storage services purchased from Transcontinental Gas Pipe Line Corporation (Transco) under its Rate Schedules GSS and LSS. The costs of the above referenced storage services comprise the rates and charges payable under ESNG's respective Rate Schedules GSS and LSS. This tracking filing is being made pursuant to Section 3 of ESNG's Rate Schedules GSS and LSS.
ESNG states that copies of the filing have been served upon its jurisdictional
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 12, 2001, Egan Hub Partners, L.P. (Egan Hub) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets, to be effective on March 15, 2001:
Egan Hub states that the purpose of this filing is to revise Section 22 of the General Terms and Conditions of its FERC Gas Tariff to remove provisions no longer applicable, to revise the phone number of the person to whom complaints should be directed regarding Egan Hub's compliance with the Commission's gas marketing affiliate rules and to provide for the posting on Egan Hub's Internet Web site of information regarding shared operating employees and shared facilities, as well as any physical office space barriers and card key protections that may be necessitated by virtue of shared office space, consistent with Commission precedent.
Egan Hub states that copies of its filing have been mailed to all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the interent in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 9, 2001, Northern Border Pipeline Company (Northern Border) tendered for filing to become part of its FERC Gas Tariff, First Revised Volume No. 1, the tariff sheets listed on the filing, to become effective March 12, 2001.
Northern Border proposes to make housekeeping changes in its tariff to reflect cross-references to the applicable GISB standards and conform language in a few certain areas of Northern Border's tariff to conform to the GISB standards. The proposed housekeeping tariff changes, when approved will make it easier for the user of Northern Border's tariff to track the GISB standards.
Northern Border copies of this filing have been sent to all of Northern Border's contracted shippers and interested state regulatory commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 9, 2001, Tennessee Gas Pipeline Company (Tennessee), tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, Third Revised Sheet No. 95B, with an effective date of April 1, 2001.
Tennessee states that the revised tariff sheets are being filed in compliance with the “Order on Complaint” issued by the Commission in the captioned proceeding on January 10, 2001.
Tennessee states that copies of the filing have been mailed to each of the parties that have intervened in this proceeding.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 6, 2001, Transwestern Pipeline Company (Transwestern) tendered for filing to become part of Transwestern's FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheet, proposed to become effective on February 6, 2001:
Transwestern states that the above sheet is being filed to amend a negotiated rate agreement with Sempra Energy Trading Corporation in accordance with the Commission's Policy Statement on Alternatives to Traditional Cost-of-Service Ratemaking for Natural Gas Pipelines.
Transwestern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
Take notice that on February 13, 2001, Trunkline LNG Company (TLNG) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1-A, the tariff sheets listed on Appendix A attached to the filing to become effective March 15, 2001.
TLNG states that the purpose of this filing, made in accordance with the provisions of Section 154.204 of the Commission's Regulations, is to establish the flexibility under TLNG's tariff to negotiate rates in accordance with the Commission's Statement of Policy on Alternatives to Traditional Cost-of-Service Rate making for Natural Gas Pipelines, Docket No. RM95-6-000 and Regulation of Negotiated Transportation Services of Natural Gas Pipelines, Docket No. RM96-7-000 issued January 31, 1996 (Policy Statement). This filing establishes a negotiated/recourse rate program applicable to TLNG's Rate Schedule FTS consistent with the Policy Statement as well as other Commission pronouncements respecting negotiated rate filings.
TLNG states that copies of this filing are being served on all jurisdictional customers and applicable state regulatory agencies.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
Take notice that on February 9, 2001 Wyoming Interstate Company, Ltd. (WIC) filed a refund report in Docket No. RP99-381-000, et al.
WIC states that the filing and refunds were made to comply with the Federal Energy Regulatory Commission's (Commission) Order of September 27, 2000. These amounts were paid by WIC on December 11, 2000.
WIC states that the refund report summarizes transportation refund
WIC states that the copies of WIC's filing are being mailed to all holders of the tariff and to public bodies and that the filing is available for public inspection at WIC's offices in Colorado Springs, Colorado.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before February 23, 2001. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance). Comments and protests may be filed electronically via the internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at http://www.ferc.fed.us/efi/doorbell.htm.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Cove Point LNG Project involving the reactivation of offshore facilities, and the construction and operation of onshore facilities by Cove Point LNG Limited Partnership (Cove Point LNG) in Calvert County, Maryland.
Cove Point LNG proposes to provide open access LNG tanker unloading services of up to 750,000 dekatherms per day for three customers importing LNG. Cove Point LNG seeks authorization to reactivate, repair or replace the following existing facilities:
• refurbish five LNG unloading arms, and replace five LNG unloading arms with powered emergency release couplings;
• refurbish or replace offshore instrumentation and control systems;
• remove offshore LNG booster pumps and elevated pulpits from piers;
• refurbish and upgrade offshore fire water systems;
• renovate offshore offices and relocate control room to upper level;
• refurbish and upgrade hazard detection, fire protection, and electrical systems;
• refurbish the third gas-turbine electrical generator;
• replace the ten LNG vaporizers within the existing concrete tanks;
• refurbish the third first-stage LNG pump and four cold vapor blowers;
• restage the ten second-stage LNG sendout pumps;
• replace glycol-water heaters for the boiloff gas and fuel gas heater system;
• install nitrogen fire suppressant systems on all LNG storage tank relief vales; and
• decommission the existing 15 million cubic feet per day liquefaction system upon resumption of LNG imports.
Cove Point LNG also seeks authorization to construct and operate the following new facilities at its existing site:
• 850,000-barrel (2.8 billion cubic feet of gas equivalent) double-wall LNG storage tank with spill containment dike;
• 485,000 standard cubic feet per hour nitrogen separation plant to be used for Btu reduction of sendout gas;
• meter station on the 36-inch-diameter transmission pipeline; and
• addition to the administration building.
The location of the project facilities is shown in appendix 1.
In a related application filed under Docket No. CP01-77-000, Cove Point LNG seeks authorization to construct, site and modify the import terminal facilities at the terminal under Section 3(a) of the Natural Gas Act and Part 153 of the Commission's regulations.
Enhancements are also planned for the existing 87-mile-long Cove Point Pipeline, from Calvert County, Maryland to Loudon County, Virginia, pursuant to the Commission's blanket certificate authority and prior notice requirements in Part 157 Subpart F. Cove Point LNG plans to install pig
The Cove Point LNG terminal property consists of 1,017 acres on the western shore of the Chesapeake Bay, of which 108 acres are developed for onshore terminal operations. The proposed new onshore facilities would occupy about 6.0 acres within the developed site. Contractor staging and storage would temporarily affect an additional 18.2 acres of land in areas that were used during the initial construction of the facility.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
• geology and soils
• water resources, fisheries, and wetlands
• land use
• cultural resources
• vegetation and wildlife
• endangered and threatened species
• air quality and noise
• public safety
We will also evaluate possible alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Our independent analysis of the issues will be presented in the EA. Depending on the comments received during the scoping process, the EA may be published and mailed to Federal, state, and local agencies, public interest groups, interested individuals, affected landowners, newspapers, libraries, and the Commission's official service list for this proceeding. A comment period will be allotted for review if the EA is published. We will consider all comments on the EA before we make our recommendations to the Commission.
To ensure your comments are considered, please carefully follow the instructions in the public participation section on page 5.
We have already identified several environmental issues that we think deserve attention based on a preliminary review of the proposed facilities and the environmental information provided by Cove Point LNG. This preliminary list of issues may be changed based on your comments and our analysis.
• Up to 90 LNG tankers per year would transit the Chesapeake Bay to the terminal by the year 2004.
• A safety exclusion zone, to be established around the offshore pier whenever an LNG tanker is moored, would restrict use around the pier by recreational and commercial fisherman.
• Environmental and technical issues associated with the construction and operation of a new 850,000 barrel LNG storage tank on the site.
You can make a difference by providing us with your specific comments or concerns about the project. By becoming a commentor, your concerns will be addressed in the EA and considered by the Commission. You should focus on the potential environmental effects of the proposal, alternatives to the proposal, and measures to avoid or lessen environmental impact. The more specific your comments, the more useful they will be. Please carefully follow these instructions to ensure that your comments are received in time and properly recorded:
• Send an original and two copies of your letter to:
• David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First St., N.E., Room 1A, Washington, DC 20426.
• Label one copy of the comments for the attention of Gas 1, PJ 11.1.
• Reference Docket No. CP01-76-000.
• Mail your comments so that they will be received in Washington, DC on or before March 23, 2001.
comments may also be filed electronically via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's web site at
In addition to asking for written comments, we invite you to attend a public scoping meeting that we will conduct in the project area. The purpose of the scoping meeting is to provide state and local agencies, interested groups, affected landowners, and the general public with an opportunity to learn more about the project and another chance to present us with environmental issues or concerns they believe should be addressed in the EA. A transcript of the meeting will be made so that your comments will be accurately recorded. The location and time is listed below: Thursday, March 15, 2001, 7:00 pm, Holiday Inn, Solomons, MD.
Earlier in the day on March 15, 2001, we will also be conducting a site visit of the Cove Point LNG terminal. Anyone interested in participating in the site visit may contact the FERC's Office of External Affairs identified at the end of this notice for more details. The purpose of the scoping meeting and site visit is limited to environmental issues only. Technical meetings associated with the engineering and cyrogenic design of the facility will be conducted at a later date. Tariff issues and natural gas quality concerns will not be entertained at the scoping meeting and site visit.
In addition to involvement in the EA scoping process, you may want to become an official party to the proceeding known as an “intervenor”. Intervenors play a more formal role in the process. Among other things, intervenors have the right to receive copies of case-related Commission documents and filings by other intervenors. Likewise, each intervenor must provide 14 copies of its filings to the Secretary of the Commission and must send a copy of its filings to all other parties on the Commission's service list for this proceeding. If you want to become an intervenor you must file a motion to intervene according to Rule 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214) (see appendix 2). Only intervenors have the right to seek rehearing of the Commission's decision.
Affected landowners and parties with environmental concerns may be granted intervenor status upon showing good cause by stating that they have a clear and direct interest in this proceeding which would not be adequately represented by any other parties. You do not need intervenor status to have your environmental comments considered.
Additional information about the proposed project is available from the Commission's Office of External Affairs at (202) 208-1088 or on the FERC website (www.ferc.fed.us) using the “RIMS” link to information in this docket number. Click on the “RIMS” link, select “Docket #” from the RIMS Menu, and follow the instructions. For assistance with access to RIMS, the RIMS helpline can be reached at (202) 208-2222.
Similarly, the “CIPS” link on the FERC Internet website provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rulemakings. From the FERC Internet website, click on the “CIPS” link, select “Docket #” from the
Availability of EPA comments prepared January 29, 2001 Through February 02, 2001 pursuant to the Environmental Review Process (ERP), under Section 309 of the Clean Air Act and Section 102(2)(c) of the National Environmental Policy Act as amended. Requests for copies of EPA comments can be directed to the Office of Federal Activities at (202) 564-7167. An explanation of the ratings assigned to draft environmental impact statements (EISs) was published in FR dated April 14, 2000 (65 FR 20157).
Rating LO, Lemhi Pass National Historic Landmark Management Plan, Implementation, Beaverhead-Deerlodge National Forest, Beaverhead County, MT and Salmon-Challis National Forest, Lemhi County, ID.
Rating EC2, Mill Creek Timber Sales and Related Activities, To Implement Ecosystem Management Activities, Prospect Ranger District, Rogue River National Forest, Jackson County, OR.
Rating EC2, US Route 15 Improvement Project, from PA-6015, Section G-20 and G-22 Tioga County, Pennsylvania and PIN 6008.22.123 Steuben County, New York, (US Route 15 between PA Route 287 and Presho, New York, Funding and COE Section 404 Permit, Tioga County, PA and Steuben County, NY.
Texas Blowdown Reforestation Project, Implementation, National Forests and Grasslands in Texas, Angeline and Sabine National Forests, San Augustine and Shelby Counties, TX.
Sierra Nevada Forest Plan Amendment Project, Implementation, several counties, CA and NV.
Colville Indian Reservation Integrated Resource Management Plan, Implementation, Colville Indian Reservation, Okanogan and Ferry Counties, WA.
TH-23 Reconstruction, MN-TH-22 in Richmond extending through the Cities of Richmond, Cold Spring and Rockville to I-94, Funding, Stearns County, MN.
Dry Tortugas National Park General Management Plan, Implementation, Monroe County, FL.
Legislative EIS—Timbisha Shoshone Tribal Homeland, To Establish a Permanent Tribal Land Base and Related Cooperative Activities, The Transfer of Federal Land and Acquisition of Private Land, Death Valley National Park, Saline Valley, CA and Lida Ranch near Lida, NV.
Office of Federal Activities, General Information (202) 564-7167 or www.epa.gov/oeca/ofa
Environmental Protection Agency (EPA)
Notice.
EPA is soliciting grant proposals under the Environmental Justice Through Pollution Prevention (EJP2) grant program. EPA anticipates that approximately $750,000 will be available for Fiscal Year (FY) 2001. This program promotes pollution prevention approaches that address environmental justice concerns in affected communities. Eligible recipients of the grant funds include incorporated non-profit environmental Organizations, environmental justice organizations, community grassroots organizations, including religious and civic groups, local governments, and federally recognized tribal governments.
All applications must be received by the EPA contractor, Eastern Research Group (ERG), on or before 5 p.m., e.s.t., April 20, 2001. You must submit your application in accordance with the instructions and requirements laid out in Units I., III., and IV. of the
This action is directed to the public in general. The Agency has not attempted to specifically describe the entities potentially affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
1.
2.
Please submit one original grant application packet and one copy by mail, by person, or by courier to: EJP2 Grant Program, c/o ERG, 2200 Wilson Blvd., Suite 400, Arlington VA 22201.
All applications must be received by the EPA contractor, Eastern Research Group (ERG), on or before April 20, 2001. You must submit your application in accordance with the instructions and requirements laid out in Units I., III., IV. of the
1. Scope and Purpose of the Environmental Justice Through Pollution Prevention Grant Guidance
2. Eligible Applicants and Activities
3. Application Requirements
4. Evaluation of Proposals
5. Process for Awarding Grants
6. Expected Time-frame for Reviewing and Awarding Grants
7. Project Period and Final Reports
8. Definitions
9. Regional Contacts
10. Information Regarding Definition of Small Business
Since 1995, the EJP2 grant program has funded projects which have sought to encourage innovative, non-regulatory pollution prevention techniques in environmental justice communities.
This year, EPA will limit eligibility to projects involving:
1.
2.
3.
4.
This year, EPA will not fund projects primarily involving:
1.
2.
3.
4. Projects from previous years that fit these various categories are described in more detail in EPA's publication on Promoting Environmental Justice through Pollution Prevention (EPA742K-00-001) and in EPA's Assessment of the Environmental Justice through Pollution Prevention grants program, available in Adobe Acrobat Reader .pdf format on EPA's EJP2 Internet Home Page at: http://www.epa.gov/opptintr/ejp2. Copies of the Assessment are also available by calling (703) 841-0483.
In 1990, Congress enacted the Pollution Prevention Act, which established a national policy to prevent or reduce pollution at the source whenever possible. EPA has increasingly devoted its attention to actively ensuring fair environmental protection for all communities while trying to empower those most often disenfranchised from the decision-making process, namely the poor and people of color. In its 1992 report, Environmental Equity: Reducing Risk for All Communities, EPA concluded that people of color and low-income communities are subject to higher levels of toxic pollutant exposure than the general population. Recognizing the disproportionate environmental impacts that many minority and low-income communities face, EPA's Office of Pollution Prevention and Toxics (OPPT) is devising ways to aid these communities solve environmental problems through pollution prevention, which is any practice that reduces or eliminates a pollutant prior to recycling, treatment or disposal. EJP2 grants are meant to aid in the approach toward environmental protection by playing a central role in reducing environmental risks while promoting public involvement and increasing economic benefits.
Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.
EPA has defined pollution prevention as source reduction, which is any practice that reduces or eliminates a pollutant prior to recycling, treatment, or disposal. EPA further defines pollution prevention as the use of other practices that reduce or eliminate the creation of pollutants through:
1. Increased efficiency in the use of raw materials, energy, water, or other resources, and
2. Protection of natural resources by conservation.
To help the public better understand pollution prevention, EPA has established a hierarchy of environmental management practices. In order of preference, these practices include: Pollution prevention and source reduction, recycling, treatment, and safe disposal.
This grant program is focused on applying pollution prevention and source reduction techniques to bring about better environmental protection.
EPA grant programs have traditionally focused on preventing pollution through reactive means, usually by way of treatment, cleanup, recycling, and/or disposal. EJP2 grants, however, use pollution prevention methods as a preferable approach toward reducing pollution at the source, thereby lessening the need to treat, recycle, and dispose of contaminants. By using proven pollution prevention approaches contaminants have less of a chance to enter the environment and potentially cause adverse environmental health and safety side-effects.
EPA, along with other Federal agencies, may have other grant funds available to address your particular needs. For example, EPA's Environmental Justice Small Grants Program, managed by the Office of Environmental Justice, provides grant funding for projects that address
The EJP2 grant program is targeted at nonprofit and community organizations, and therefore benefits small entities. We have informed potential grantees by
The Congressional Review Act, 5 U.S.C. 801
Any incorporated non-profit community organization, local government, or federally recognized tribal government may submit an application upon publication of this solicitation. “Non-profit” organization means any corporation, trust, association, cooperative, or the organization that:
1. Is operated primarily for scientific, education, service, charitable, or similar purposes in the public interest;
2. Is not organized primarily for profit; and
3. Uses its net proceeds to maintain, improve, and/or expand its operations.
While state and local governments and academic institutions are eligible to receive grants, preference will be given to non-profit, community-based/grassroots organizations and state and federally recognized tribal organizations. Organizations must be incorporated by Friday, April 20, 2001 in order to be eligible to receive EJP2 grant funds. For-profit organizations, federal agencies, and individuals are not eligible for this grant. Organizations excluded from applying directly, as well as those inexperienced in grant-writing, are encouraged to develop partnerships and prepare joint proposals with organizations that are eligible for funding. No applicant can receive two grants for the same project at one time. EPA will consider only one proposal per project. Applicants may submit more than one application as long as the applications are for separate and distinct projects.
In past years EPA has encouraged a variety of innovative approaches to pollution prevention through the EJP2 program. The program recently conducted an assessment of previous EJP2 grants. The Assessment includes details on previous grant projects, and factors that contributed to project success. Based on the Assessment, and the fact that the EJP2 program has less money to award in FY 2001, EPA is narrowing the types of projects that will be funded under this program. In past years, this program has been extremely competitive. In the most recent competition, EPA was able to fund fewer than one out of every six applications.
This year, the EJP2 program will only fund projects in four categories:
1. Helping Small Businesses Prevent Pollution in Communities;
2. Fostering Partnerships Between Industrial Facilities and Communities;
3. Demonstrating Agricultural Pollution Prevention;
4. Improving Tribal Environments.
More detail on the types of projects that have been funded is available in the Assessment, and in the EPA Brochure entitled Promoting Environmental Justice Through Pollution Prevention. In the past, EPA has funded grants involving:
1. Fostering Youth Education and Involvement,
2. Educating Communities about Pollution Prevention; and
3. Promoting Efficient Resource Use within Communities.
EPA strongly encourages cooperative efforts between communities, business, industry, and government to address common pollution prevention goals. In addition to narrowing the focus, EPA is encouraging applicants to use already existing information and material rather than use scarce resources to research and develop new initiatives to satisfy a project's goal. EPA urges all applicants to consult the Assessment of EPA's EJP2 Grant Program. The EJP2 Assessment is available by calling: (703) 841-0483, or one can obtain a downloadable version in Adobe Acrobat Reader .pdf format via EPA's EJP2 Internet Home Page at: http://www.epa.gov/opptintr/ejp2.
Organizations seeking funds from the EJP2 grant program can request up to $75,000 for projects. EPA no longer requires cost sharing or matching for this grant program from institutions of higher education, hospitals, and other non-profit organizations, unless otherwise required by statute, regulation, Executive Order or official Agency policy. Applicants that are governmental entities, such as state and local governments are subject to a 25% matching or cost-sharing requirement. Matching or cost-sharing requirements may be satisfied through either cash or in-kind contributions.
Yes. EPA grant funds can only be used for the purposes set forth in the grant agreement. Grant funds from this program cannot be used for matching funds for other federal grants, construction, personal gifts (e.g., t-shirts, buttons, and hats), purchasing furniture, litigation, lobbying, or intervention in federal regulatory or adjudicatory proceedings. In addition, the recipient may not use these federal assistance funds to sue the federal government or any other government entities. For more information, refer to 40 CFR 30.27, “ Allowable Costs.”
Proposals from eligible organizations must include the information listed below. To save paper, please provide
Grant Application:
The total number of pages per application may not exceed 25 double-sided pages. Pages must be letter size (8 1/2 ″ x 11″), with normal type size (11 CPI), and have at least 1″ margins.
1. One page summary cover sheet must include:
(a) Name of applicant;
(b) Address of applicant;
(c) Phone number + e-mail address for contact;
(d) Project name;
(e) Dollar amount requested from EPA;
(f) Identification of what category the project will address (e.g. helping small businesses prevent pollution in communities, fostering partnerships between industrial facilities and communities, demonstrating agriculturalpollution prevention, or improving tribal environments);
(g) Brief description of the environmental justice issue(s) to be addressed by the project;
(h) Brief description and explanation of the parties contributing to the concern (e.g. small business, an industrial/agricultural facility or farm);
(i) Brief description of what type of pollution prevention approach will be utilized to address the environmental justice issues in the project proposal; and
(j) Brief description of the purpose of the grant proposal.
2. Narrative (no more than 5 pages in length). The narrative should include a:
(a) Description of the affected communities;
(b) Identification of what category the project will address (e.g. helping small businesses prevent pollution in communities, fostering partnerships between industrial facilities and communities, demonstrating agricultural pollution prevention, or improving tribal environments);
(c) Description of the environmental justice issue(s) to be addressed by the project;
(d) Description of the pollution prevention approach that will be utilized in the project;
(e) Description of the involvement of community and partner organizations in developing and implementing the project;
(f) Description of the anticipated environmental results and other benefits for the community;
(g) Description of the approach used to evaluate the project.
3. Letters of commitment, memoranda of understanding, or other documents that highlight significant involvement of other partners in your grant application.
4. Resumes or biographical information regarding the lead and other key personnel in the grant application.
5. Any additional information (e.g., history of the organization(s) and success stories).
6. Key contacts information sheet.
7. Application for Federal Assistance, SF 424, the official form required for all federal grants that requests basic information about the grantee and the proposed project.
8. The Federal Standard Form SF 424A, which provides information on budget and match.
9. Detailed, itemized budget.
10. Certification of Non-Construction, SF 424B
11. Certification Regarding Debarment, Suspension, and Other Responsibility Matters Form.
12. Certification Regarding Lobbying Form.
13. Disclosure of Lobbying Activities Form.
Please note: Your application may be subject to your state's intergovernmental review process, or the consultation requirements of section 204, Demonstration Cities and Metropolitan Development Act. Check with your state's Single Point of Contact to determine your requirements. Applicants from American Samoa, Guam, Puerto Rico, and the U.S. Virgin Islands should also check with their Single Point of Contact. If you do not know who your Single Point of Contact is, please call your EPA regional contact (see Unit X) or EPA Headquarters Grants Policy, Information and Training Branch at (202) 564-5325. Federally recognized tribal governments are not required to comply with this procedure.
Applicants must submit one signed original grant application and one copy by mail, by person, or by courier on or before 5 p.m. e.s.t., April 20, 2001 to the following address: EJP2 Grant Program, c/o ERG, 2200 Wilson Boulevard, Suite 400, Arlington VA, 22201. To request additional copies of the grant application, or for any questions please call (703) 841-0483.
All proposals must meet three requirements in order to be considered for funding by this program:
1. Would the project benefit a minority and/or low-income community?
2. Would the project use a pollution prevention approach to address the environmental problems of the community?
3. Does the project address one or more of the priority funding areas identified for this program in section II of this guidance?
Proposals will be evaluated and scored by the reviewers on the basis of the following four criteria:
1. Is the proposed approach likely to successfully address the community's environmental concerns?
2. Does the project seem cost-effective?
3. Does the project identify a method for measuring and documenting the project's environmental results and other benefits for the community, either quantitatively or qualitatively?
4. Were the affected community, business or other institutions, and other partners and potential participants effectively involved in the development of the proposal?
Each EPA Regional office will form a review panel that will review and evaluate all grant applications from communities within that Region. Applications will be screened to ensure that they meet eligibility requirements of this guidance. Postcards of acknowledgment confirming the receipt of a grant package application will be sent to all applicants by April 27, 2001. Official letters notifying grant applicants of the status of their application will be sent out by November 15, 2001.
After individual projects are reviewed and ranked according to the criteria in Unit V., EPA Regional offices will compare the best applications and make final selections. Additional factors that EPA may take into account include geographic and socioeconomic balance, diverse nature of the projects, cost, and projects whose benefits can be sustained after the grant is completed.
The EJP2 grant program has historically been an extremely
Funding decisions for the EJP2 grant program's FY 2001 cycle will be publicly announced by October 31, 2001. Official letters informing all applicants of the status of their application will be sent out not later than November 15, 2001.
Activities must be completed and funds spent within the time frame specified in the grant award, usually two years. An additional third year may be allowed if a grant extension is extended. Project start dates will depend upon the grant award date (most projects begin in August or September). The recipient organization is responsible for the successful completion of the project. The recipient project manager is subject to approval by the EPA project officer, but EPA may not designate a particular person as the project manager.
All recipients must submit final reports for EPA approval within sixty (60) days of the end of the project period. Specific report requirements (e.g., Final Technical Report and Financial Status Report) will be described in the award agreement. EPA will collect, review, and disseminate grantees' final reports to serve as model programs.
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Small business regulations are contained in Title 13 CFR Part 121, and the Federal Acquisition Regulation 48 CFR part 19.
For the small business definition of the applicable size standard and for size standard questions, you may contact the SBA located in one of the Area Offices of the office of Government Contracting or in Washington, D.C. A downloadable file with a table of the size standards is also available on “SBA ONLINE” under both the financial assistance and government contracting sections. You may reach SBA ONLINE via your computer at (800) 697-4636; or in the Washington Metropolitan Area at (202) 401-9600. The SBA ONLINE home page is on the Internet at: http:// www.sbaonline.sba.gov.
Each of the six area offices of the SBA's Office of Government Contracting, and two offices in the Washington, D.C. area, have an employee designated as a Size Specialist. Their addresses and telephone numbers are as follows:
1. Office of Government Contracting, New York Area Office, U.S. Small Business Administration, 26 Federal Plaza, Suite 3108, New York, NY 10278; Phone: (212) 264-7756.
2. Office of Government Contracting, Philadelphia Area Office, U.S. Small Business Administration, 475 Allendale Road, Suite 201, King of Prussia, PA 19406; Phone: (610) 962-3723.
3. Office of Government Contracting, Atlanta Area Office, U.S. Small Business Administration, 1720 Peachtree Road, NW., Suite 318 North, Atlanta, GA 30309; Phone: (404) 347-7587.
4. Office of Government Contracting, Chicago Area Office, U.S. Small Business Administration, 300 South Riverside Plaza, Suite 1975, Chicago, IL 60606-6617; Phone: (312) 353-7674.
5. Office of Government Contracting, Dallas Area Office, U.S. Small Business Administration, 8625 King George Drive, Building C, Dallas, TX 75235-3391; Phone: (214) 767-7639.
6. Office of Government Contracting, San Francisco Area Office, U.S. Small Business Administration, 71 Stevenson Street, 20th Floor, San Francisco, CA 94105-2939; Phone: (415) 975-4853.
7. Office of Size Standards, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416; Phone: (202) 205-6618.
8. Office of Industrial Assistance, U.S. Small Business Administration, 409 3rd Street, SW., Washington, DC 20416; Phone: (202) 205-6475.
Environmental protection, grants, pollution prevention, environmental justice.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10 a.m. on Tuesday, February 20, 2001, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters relating to the Corporation's supervisory and resolution activities.
In calling the meeting, the Board determined, on motion of Director Ellen S. Seidman (Director, Office of Thrift Supervision), seconded by Director John M. Reich, concurred in by Director John D. Hawke, Jr. (Comptroller of the Currency), and Chairman Donna Tanoue, that Corporation business required its consideration of the matters on less than seven days' notice to the public; that no notice earlier than February 14, 2001, of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B) of the “Government in the Sunshine Act” (5 U.S.C 552b(c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B)).
The meeting was held in the Board Room of the FDIC Building located at 550—17th Street, NW., Washington, DC.
Federal Deposit Insurance Corporation.
Federal Election Commission.
Thursday, March 1, 2001, at 10 A.M.
999 E Street, NW., Washington, DC.
This meeting will be open to the public.
Correction and Approval of Minutes.
Advance Notice of Proposed Rulemaking on the Definition of “Political Committee.”
Administrative Matters.
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 8, 2001.
Board of Governors of the Federal Reserve System, February 16, 2001.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 19, 2001.
Board of Governors of the Federal Reserve System, February 16, 2001.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 8, 2001.
Board of Governors of the Federal Reserve System, February 16, 2001.
Board of Governors of the Federal Reserve System.
10 a.m., Wednesday, February 28, 2001.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, N.W., Washington, DC 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions)
2. Any items carried forward from a previously announced meeting.
Lynn S. Fox, Assistant to the Board; 202-452-3204.
You may call 202-452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at http://www.federalreserve.gov for an electronic announcement that not only lists applications, but also indicates procedural and other information about the meeting.
Agency for Healthcare Research and Quality (AHRQ), DHHS.
Notice.
AHRQ is exploring the feasibility of leading a significant research initiative (Initiative) that will examine the relationships between care management processes (including health systems and clinical care) and children's health outcomes to produce information that can be incorporated into practice and policy. Consistent with research previously funded by AHRQ, outcomes are defined as important dimensions of health attributable to health care, including health perceptions, ability to function, and satisfaction with care. Interventions of interest are broadly defined to include both clinical interventions, organizational characteristics and strategies, and the intersection or combination of both. The purpose of this announcement is to solicit broad input from clinical and social scientists, researchers, clinicians, health systems leaders and others regarding priorities for focusing the Initiative. Recommendations received will be compiled and discussed at an expert meeting convened to discuss the initiative and plan a possible research strategy. This request for suggestions and the expert meeting are preparatory steps of the Initiative, which may lead to a study (or family of studies) commencing in FY 2002.
AHRQ requests written suggestions as to the priority issues in children's health care that the Initiative should address. Issues should be considered priorities because their impact has not been adequately studied in other research or because their impact can only be evaluated in a large study such as this. Supporting rationale and suggestions for research strategies should be included. Suggestions should address one or more of the following categories:
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Submit comments on or before March 26, 2001.
Submissions should be brief (no more than three pages per recommendation) and may be in the form of a letter or e-mail, preferably with an electronic file in a standard word processing format on 3
In order to facilitate the handling of submissions, please include full information about the person submitting the recommendation: (a) Name, (b) title, (c) organization, (d) mailing address, (e) telephone number, and (f) e-mail address. Please do not use acronyms. Electronic submissions are encouraged to HBauchne@AHRQ.gov.
Howard Bauchner (301) 594-5420. All responses will be available for public inspection at AHRQ's Center for Outcomes and Effectiveness Research weekdays between 8:30 a.m. and 5 p.m. Arrangements for reviewing the submissions may be made by calling (301) 594-5420.
Under authorization of Title IX of the Public Health Service Act (42 U.S.C. 299-299c-7) as amended by Public Law 106-129 (1999), the Agency for Healthcare Research and Quality (formerly the Agency for Health Care Policy and Research) is charged with enhancing the quality, appropriateness, and effectiveness of health care services and access to such services. AHRQ accomplishes these goals through scientific research; promotion of improvements in clinical and health systems practices including the prevention of diseases and other health conditions; and improvements in the organization, financing and delivery of health care services. Section 1142 of the Social Security Act (42 USC 1320b-12) enhances and elaborates on AHRQ's program of outcomes and effectiveness research which constitutes a major portion of AHRQ's health services research agenda.
This Initiative would combine AHRQ's commitment to health services research on one of its priority populations: children, and two of its strategic goals: to support improvements in health outcomes and identify strategies to improve access, foster appropriate use, and reduce unnecessary expenditures.
AHRQ has made a commitment to focus its health services research on certain priority populations: racial and ethnic minorities, women, children, the elderly, low-income populations, people living in rural areas and inner-city, and people living with chronic illnesses and/or disabilities. These are all groups for whom public policy struggles to find effective solutions to improve health care. Health services research has consistently documented the persistent, and at times great, disparities in health status and access to appropriate health care services for certain groups, notably racial and ethnic minorities and low income families and children. Despite the dramatic changes occurring in the organization and financing of children's health services, the knowledge base for guiding these changes or assessing their impact is less well developed than that for adults. Health care issues that exist for people with chronic illnesses and disabilities also require attention. Health services research should do a better job of bringing science-based information to bear on these disparities so that the health of these groups is enhanced.
AHRQ has enunciated three strategic goals which will contribute to improving the quality of health care for all Americans. These goals are to (1) support improvements in health outcomes; (2) strengthen quality measurement and improvement; and (3) identify strategies to improve access, foster appropriate use, and reduce unnecessary expenditures. This Initiative would focus on the first and third.
The field of health outcomes research studies the end results of the structure and processes of health care on the health and well-being of patients and populations. (Institute of Medicine, 1996.) A unique characteristic of this research is the incorporation of the consumer's or patient's perspective in the assessment of effectiveness. Policymakers in the public and private sectors are also concerned with the end results of their investments in health care, whether at the individual, community, or population level.
A high priority for AHRQ's outcomes research will be conditions that are common, expensive, and/or for which significant variations in subpopulations, practice or opportunities for improvement have been demonstrated. Also of importance for research will be the type of delivery system or processes by which care is provided and their effects on outcomes, as well as, research on clinical preventive services that lead to the prevention of premature death and disability in the United States.
The outcomes and effectiveness research program grew out of the awareness of significant unexplained variations in clinical practice and the inadequacy of scientific evidence to support many common treatments and procedures. Outcomes and effectiveness research encompasses three main areas of emphasis for the prevention, diagnosis, treatment, and management of illness: (1) Determination of the clinical interventions that are most effective, cost effective, and appropriate; (2) development of methods and data to advance effectiveness research; and (3) dissemination and evaluation of the impact of research findings on clinical practice and outcomes. Other distinctive characteristics of outcomes and effectiveness research include its multi-disciplinary nature; use of a variety of research designs (
Adequate access to health care services continues to be a challenge for many Americans. This is particularly so for the poor, the uninsured, members of minority groups, rural residents, and other vulnerable populations. In addition, the changing organization and financing of care has raised new questions about access to a range of health services, including emergency and specialty care. At the same time, examples of inappropriate use of care, including overutilization and misuse of services, continue to be documented.
The increasing portion of our Nation's resources devoted to health care expenditures remains a concern, with some indicators suggesting that the rate of increase may accelerate once again. The continued growth in public spending for Medicare and Medicaid, in particular, raises important questions about the care delivered to the elderly, poor, and people with disabilities. Together, these factors require concerted attention to the determinants of access, use, and expenditures as well as effective strategies to improve access, contain costs, and assure appropriate and timely use of effective services.
This gives notice under the Federal Advisory Committee Act (Pub. L. 92-463) of October 6, 1972, that the Board of Scientific Counselors, National Institute for Occupational Safety and Health (BSC, NIOSH), of the Department of Health and Human Services, has been renewed for a 2-year period through February 3, 2003.
For information, contact Kathleen Rest, Ph.D., Executive Secretary, Board of Scientific Counselors, National Institute for Occupational Safety and Health, 200 Independence Ave., SW., Room 715H, Washington, DC 20201—telephone 202/401-3735 or fax 202/260-4464.
The Director, Management Analysis and Services Office has been delegated the authority to sign
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following committee meeting.
Members of the public who wish to make a brief oral presentation at the meeting should contact Ms. Tamikio Bohler (770-488-3199) or Ms. Regina Seider (770/488-3078) by 4:00 p.m. on March 1, 2001, to have time reserved on the agenda. Each individual or group making an oral presentation will be limited to 5 minutes. The request should identify the name of the individual who will make the presentation and an outline of the issues to be addressed. At least 25 copies of the presentation and 25 copies of the visual aids used at the meeting are to be given to Ms. Bohler no later than the time of the presentation for distribution to the Committee and the interested public.
The Director, Management Analysis and Services office has been delegated the authority to sign
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institute on Deafness and Other Communication Disorders (NIDCD), the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Written comments and/or suggestions from the public and affected agencies
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact Dr. Marin Allen, Chief, Office of Health Communication and Public Liaison (OHCPL), or Shirley LaBella, Deputy Chief, OHCPL, OD, NIDCD, NIH, Blg. 31, Room 3C-35, 9000 Rockville Pike, Bethesda, MD 20892, or call non-toll-free number (301) 496-7243 or E-mail your request, including your address to: nidcdinfo@nidcd.nih.gov
Comments regarding this information collection are best assured of having their full effect if received on or before April 24, 2001.
Under the provisions of section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Center for Research Resources (NCRR), the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below. This proposed information collection was previously published in the
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the National Institute of Nursing Research Special Emphasis Panel, February 22, 2001, 8:00 a.m. to February 23, 2001, 5:00 p.m., Doubletree Hotel, 1750 Rockville Pike, Rockville, MD 20852, which was published in the
The meeting will be held March 22-23, 2001 at the Holiday Inn Bethesda, 8120 Wisconsin Ave., Maryland Room, Bethesda, MD 20892. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy:
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the PubMed Central National Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of a meeting of the Recombinant DNA Advisory Committee (RAC) and a Safety Symposium on Gene Transfer Research.
The Safety Symposium on Gene Transfer Research will be held from 8 a.m. to 6 p.m. on March 7, 2001 at the Doubletree Hotel, 1750 Rockville Pike, Rockville, MD 20852. The symposium will explore safety considerations in the Use of Adeno-Associated Virus Vectors in Gene Transfer Clinical Trials.
The RAC meeting will be held from 8:30 a.m. to 5:30 p.m. on March 8, 2001 at the National Institutes of Health (NIH), Building 31, C Wing, Conference Room 10, 9000 Rockville Pike, Bethesda, MD 20892. The Committee will review selected human gene transfer protocols; a proposed action to amend the NIH Guidelines with regard to NIH policy on serious adverse event reporting; data management activities related to human gene transfer clinical trials; and other matters to be considered by the Committee.
Both meetings are open to the public with attendance limited to space available. Draft meeting agendas and other information will be posted at the Office of Biotechnology Activities' website:
Individuals who wish to provide public comments or who plan to attend the meeting and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify Kelly Fennington, Program Analyst, Office of Biotechnology Activities by telephone at 301 496-9838 or E-mail at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Notice is hereby given of a change in the meeting of the Reproductive Biology Study Section, February 26, 2001, 8:30 am to February 27, 2001, 5:00 pm, Double Tree Hotel, 1750 Rockville Pike, Rockville, MD 20852 which was published in the
The meeting will be held at the Hyatt Regency Hotel in Bethesda. The dates and time remain the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Part N, National Institutes of Health, of the Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services (40 FR 22859, May 27, 1975, as amended most recently at 65 FR 38848, June 22, 2000, and redesignated from Part HN as Part N at 60 FR 56606, November 9, 1995) is amended as set forth below to reflect the establishment of the Office of the Ombudsman/Center for Cooperative Resolution within the Office of the Director, NIH.
Section N-B, Organization and Functions, under the heading Office of the Director (NA, formerly HNA) is amended by inserting immediately after the paragraph for the Office of Bioengineering and Bioimaging (HNAC) the following:
Office of the Ombudsman/Center for Cooperative Resolution (NAS, formerly HNAS). (1) Provides overall leadership, direction, and oversight on alternative dispute resolution (ADR) policies, programs, and activities at NIH; (2) acts as the focal point for information and activity relating to conflict management and ADR; (3) advises the NIH Director and staff on matters relating to dispute resolution and conflict management, generally, and to the specific application of ADR throughout NIH; (4) assists managers and employees in a confidential, informal, impartial, and independent way in resolving work-related issues and disputes, including receiving and inquiring into workplace disputes brought to the Ombudsman by any NIH staff member, initiating independent inquiries, identifying and analyzing systemic issues that foster workplace disputes, and making recommendations to the appropriate responsible agency official(s) for changes in policies and procedures; (5) develops and implements ADR policies and procedures and administers ADR programs to facilitate the resolution of workplace disputes; (6) develops and provides conflict prevention services including training and education; and (7) works cooperatively and collaborates with NIH components that administer formal dispute resolution mechanisms.
All delegations and redelegations of authority to offices and employees of NIH that were in effect immediately prior to the effective date of this reorganization and are consistent with this reorganization shall continue in effect, pending further redelegation.
The purpose of this notice is to solicit public nominations for the Bureau of Land Management's National Petroleum Reserve—Alaska (NPR-A) Research and Monitoring Advisory Team (RMT). The RMT will provide advice and recommendations to the BLM's Northern Field Office Manager on issues pertaining to the adequacy and appropriateness of mitigative stipulations established in the Northeast NPR-A Integrated Activity Plan/Environment Impact Statement, Record of Decision (ROD), 1998.
The ROD directs the BLM to charter the RMT in accordance with the Federal Advisory Committee Act, which requires that membership to the RMT be designed to achieve balanced representation of the various interests relevant to surface resource protection in the NPR-A. The Secretary of the Interior will appoint representatives to the RMT from federal, state and North Slope Borough agencies; oil & gas or related industry; nationally or regionally recognized environmental or resource conservation organizations; academicians employed in natural resource management or the natural sciences; and the public at large. Appointees will serve three-year terms. Members will serve without salary, but will be reimbursed travel expenses according to government travel regulations.
This notice is a call for nominations from the nongovernment categories listed above. One member will be selected from each of four categories:
Individuals may nominate themselves or others. Nominees will be evaluated on their demonstrated professional or personal qualifications and expertise, such as in arctic biology and the scientific process, relevant to the functions and tasks to be performed by the RMT. Nominees should have a demonstrated commitment to collaborative decisionmaking. All nominations must be accompanied by
Herb Brownell, Bureau of Land Management, Northern Field Office, 1150 University Avenue, Fairbanks, AK 99709-3844; tel: 907-474-2333.
Bureau of Land Management, Interior.
Notice of availability of Draft Environmental Impact Statement.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, a Draft Environmental Impact Statement (DEIS) has been prepared by the Bureau of Land Management (BLM), Utah State Office. The DEIS was prepared to analyze the impacts of proposed transportation of refined petroleum products and natural gas through pipelines located on public lands administered by BLM, National Forest System lands and State and private lands in northwest New Mexico, southwest Colorado, and southeast to north-central Utah. In addition, the draft EIS analyzes utility corridors across the Manti-LaSal and Uinta National Forests which may or may not expand the existing designated corridors and/or identify other corridors. This analysis may result in Forest Plan amendments to the Manti-LaSal and Uinta National Forest Land and Resource Management Plans. The Federal Energy Regulatory Commission (FERC) and United States Forest Service, Manti-LaSal, San Juan and Uinta National Forests, are Cooperating Agencies in accordance with Title 40, Code of Federal Regulations, Section 1501.6. Public reading copies of the DEIS will be available for review at the following locations:
• Salt Lake City, Utah—209 East 500 South
• West Valley City, Utah—2880 West 3650 South
• Payson, Utah—439 West Utah Ave
• Nephi, Utah—22 East 100 North
• Price, Utah—159 East Main
• Moab, Utah—Grand Co. Library, 25 South 100 East
• Durango, Colorado—Durango Public Library, 1188 Second Avenue
• Dolores, Colorado—Dolores Public Library, PO Box 847, Dolores, CO
• Farmington, New Mexico—Farmington Public Library, 100 West Broadway.
In addition, a limited number of copies of the document will be available at the following BLM and Forest Service Offices:
• Bureau of Land Management, Utah State Office, 324 South State, Salt Lake City, Utah
• Uinta National Forest, 88 West 100 North, Provo, Utah
• Filmore Field Office, 35 East 500 North, Filmore, Utah
• Bureau of Land Management, Price Field Office, 125 South, 600 West, Price, Utah
• Manti La-Sal National Forest, 599 West Price River Drive, Price, Utah
• Bureau of Land Management, Moab Field Office, 82 East Dogwood Road, Moab, Utah
• Bureau of Land Management, Monticello Field Office, 435 North Main Street, Monticello, Utah
• Bureau of Land Management, Durango Field Office, 15 Burnett Court, Durango, Colorado
• San Juan National Forest, 100 North Sixth Street, Dolores, Colorado
• Bureau of Land Management, Farmington Field Office, 1235 La Plata Highway.
Written comments must be post marked on or before April 16, 2001, or
Public meetings will be held at the following locations and dates:
• March 14, 2001, West Valley City, Family Fitness Center, Community Room A, 5415 West, 3100 South, West Valley City, Utah
• March 19, 2001, Senior Citizens Center, 450 East, 100 North, Moab, Utah
• March 20, 2001, Double Tree Inn, 501 Camino Del Rio, Durango, Colorado, and Anasazi Heritage Center, 27501 Highway 184, Delores, Colorado
• March 22, 2001, Farmington Civic Center, (Room B) 200 West Arrington, Farmington, New Mexico
• March 27, 2001, Juab County High School, 802 North 650 East, Nephi, Utah
• March 28, 2001, Payson City Hall, 439 West Utah Ave, Payson, Utah
• March 29, 2001, Association of Governments and Small Business Development Center, 375 South Carbon Ave., Price, Utah
All meetings will begin at 7:00 pm. BLM reserves the right to limit presentations based on public attendance. Only written comments will be made part of the official record. Written comments may be submitted at the meetings or may be mailed to the address below prior to the end of the comment period.
Comments, including names and street addresses of respondents will be available for public review at the BLM Utah State Office and will be subject to disclosure under the Freedom of Information Act (FOIA). They may be published as part of the final EIS and other related documents. Individual respondents may request confidentiality. If you wish to withhold your name or street address from public review and disclosure under the FOIA, you must state this prominently at the beginning of your written comment. Such requests will be honored to the extent allowed by law. All submissions from organizations or businesses, will be made available for public inspection in their entirety.
Written comments should be sent to LaVerne Steah, Project Manager, Bureau of Land Management, Utah State Office, P.O. Box 45155, Salt Lake City, UT 84145-0155 or at the project website: QWK-EIS.ORG. Copies of the DEIS can be obtained through the project web site, or by written request to the above address (hard copy or CD). An executive summary including maps will be mailed to all individuals and organizations on the project mailing list.
Please contact Ms. LaVerne Steah at the above address or phone: (801) 539-4114 or e-mail: LaVerne_steah@ut.blm.gov.
Three proponents (Williams Pipeline Company, Questar Pipeline Company and Kerne River Gas Transmission Company) filed right-of-way
The BLM and the USFS examined alternative natural gas and petroleum transportation methods and several alternative pipeline route segments to address concerns about (1) potential petroleum products leaks and spill effects on natural resources, water and people; (2) natural gas leaks and failure effects on natural resources and people, and; (3) effects on the character of USFS inventoried roadless and unroaded areas. Two major (30 miles or longer) route alternatives, and two short (5 miles or less) route variations were carried forward in the analysis in addition to the proposed action and the no action alternative. Also, as part of the proposed action is a proposal to amend one or more forest plans following the 1982 regulations (36 CFR, part 219). Public scoping for these projects was completed in two phases. An Initial Notice of Intent to prepare an EIS for these projects was published in the
Bureau of Land Management, Spokane District.
Notice of the meeting of the Eastern Washington Advisory Council; March 22, 2001, in Spokane, Washington.
A meeting of the Eastern Washington Resource Advisory Council will be held on March 22, 2001. The meeting will convene at 9 a.m., at the Spokane District Office, Bureau of Land Management, 1103 North Fancher Road, Spokane, Washington 99212-1275. The meeting will adjourn upon conclusion of business, but no later than 4 p.m. Public comments will be heard from 10 a.m. until 10:30 a.m. If necessary, to accommodate all wishing to make public comments, a time limit may be placed upon each speaker. At an appropriate time, the meeting will adjourn for approximately one hour for lunch. Topics to be discussed include Election of Chair, Interior Columbia Basin Ecosystem Management Project Status Report, BLM Work Plan for FY 2001, BLM/Forest Service Fire Program, Charter Renewal and Next Meeting Scheduling.
Bureau of Land Management, Spokane District Office, 1103 N. Fancher Road, Spokane, Washington 99212; or call 509-536-1200.
Minerals Management Service, Interior.
Notice of vacancies and request for nominations.
The MMS is seeking interested and qualified individuals to serve on its Minerals Management Advisory Board OCS SC during the period of October 1, 2001, through September 30, 2003. The initial 2-year term may be renewable for up to an additional 4 years. The OCS SC is chartered under the Federal Advisory Committee Act to advise the Director of the MMS on the appropriateness, feasibility, and scientific value of the OCS Environmental Studies Program (ESP) and environmental aspects of the offshore oil and gas program. The ESP, which was authorized by the OCS Lands Act as amended (Section 20), is administered by the MMS and covers a wide range of field and laboratory studies in biology, chemistry, and physical oceanography, as well as studies of the social and economic impacts of OCS oil and gas development. Currently, the work is conducted through award of competitive contracts and interagency and cooperative agreements. The OCS SC reviews the relevance of the information being produced by the ESP and may recommend changes in its scope, direction, and emphasis. The OCS SC comprises distinguished scientists in appropriate disciplines of the biological, physical, chemical, and socieoeconomic sciences. Vacancies, which need to be filled, exist in the biological, physical oceanography, and a new requirement, offshore sand and gravel mining disciplines. The selection is based on maintaining disciplinary expertise in all areas of research, as well as geographic balance. Demonstrated knowledge of the scientific issues related to OCS oil and gas development is essential. Selection is made by the Department of the Interior on the basis of these factors; appointments to the Committee are made by the Secretary of the Interior. For more information regarding the Committee, please visit our website at http://www.mms.gov/mmab/ocssc.htm.
Interested individuals should send a letter of interest and resume within 60 days to: Julie Reynolds, Program Planner, Minerals Management Service, 381 Elden Street, Mail Stop 4001, Herndon, Virginia 20170. She may be reached by telephone on (703) 787-12 11, or e-mailed at Julie.Reynolds@mms.gov.
Notice is hereby given in accordance with the Federal Advisory Committee Act that the meeting of the Golden Gate National Recreation Area and Point Reyes National Seashore Advisory Commission previously scheduled for Tuesday, February 27, 2001 in San Francisco, California will be cancelled.
The Advisory Commission was established by Public Law 92-589 to provide for the free exchange of ideas between the National Park Service and the public and to facilitate the solicitation of advice or other counsel from members of the public on problems pertinent to the National Park Service systems in Marin, San Francisco and San Mateo Counties. Members of the Commission are as follows:
Nominations for the following properties being considered for listing in the National Register were received by the National Park Service before February 10, 2001. Pursuant to § 60.13 of 36 CFR part 60 written comments concerning the significance of these properties under the National Register criteria for evaluation may be forwarded to the National Register, National Park Service, 1849 C St. NW, NC400, Washington, DC 20240. Written comments should be submitted by March 12, 2001.
A request for REMOVAL has been made for the following resources:
On the basis of the record
Except as specified above, the term does not include stainless steel semi-finished products, cut length flat-rolled products (i.e., cut length rolled products which if less than 4.75 mm in thickness have a width measuring at least 10 times the thickness, or if 4.75 mm or more in thickness having a width which exceeds 150 mm and measures at least twice the thickness), products that have been cut from stainless steel sheet, strip, or plate, wire (i.e., cold-formed products in coils, of any uniform solid cross section along their whole length, which do not conform to the definition of flat-rolled products), and angles, shapes and sections.
The Commission also determines,
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling which will be published in the
The Commission instituted these investigations effective December 28, 2000, following receipt of a petition filed with the Commission and the Department of Commerce by Carpenter Technology Corp. (Wyomissing, PA); Crucible Specialty Metals (Syracuse, NY); Electralloy Corp. (Oil City, PA); Empire Specialty Steel, Inc. (Dunkirk, NY); Slater Steels Corp., Specialty Alloys Division (Fort Wayne, IN); and the United Steelworkers of America, AFL-CIO/CLC (Pittsburgh, PA), alleging that an industry in the United States is materially injured and threatened with material injury by reason of imports of stainless steel bar from France, Germany, Italy, Korea, Taiwan, and the United Kingdom, that are alleged to be sold in the United States at LTFV, and by reason of imports of stainless steel bar from Italy that are alleged to be subsidized by the Government of Italy. Accordingly, effective December 28, 2000, the Commission instituted countervailing duty investigation No. 701-TA-413 (Preliminary) and antidumping investigations Nos. 731-TA-913-918 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission transmitted its determinations in these investigations to the Secretary of Commerce on February 12, 2001. The views of the Commission are contained in USITC Publication 3395 (February 2001), entitled Stainless Steel Bar From France, Germany, Italy, Korea, Taiwan, and the United Kingdom: Investigations Nos. 701-TA 413 and 731-TA-913-918 (Preliminary).
United States International Trade Commission.
Institution of investigation, scheduling of public hearing, and request for public comments.
February 12, 2001.
Following receipt of a request from the United States Trade Representative (USTR) on January 22, 2001, the Commission instituted Investigation No. 332-427, U.S. Market Conditions for Certain Wool Articles, under section 332(g) of the Tariff Act of 1930 (19 U.S.C. 1332(g)) to monitor U.S. market conditions for certain wool articles.
For general information, contact Kim Freund (202-708-5402; freund@usitc.gov) of the Office of Industries; for information on legal aspects, contact William Gearhart (202-205-3091; wgearhart@usitc.gov) of the Office of the General Counsel. The media should contact Margaret O'Laughlin, Public Affairs Officer (202-205-1819). Hearing impaired individuals may obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information about the Commission may be obtained by accessing its Internet server (http://www.usitc.gov).
As requested by the USTR, the Commission will provide information on U.S. market conditions, including domestic demand, domestic supply, and domestic production for men's and boys' worsted wool suits, suit-type jackets, and trousers; worsted wool fabric and yarn used in the manufacture of such clothing; and wool fibers used in the manufacture of such fabrics and yarn. Also as requested by the USTR, the Commission will provide, to the extent possible, data on:
(1) Increases or decreases in sales and production of the subject domestically-produced worsted wool fabrics;
(2) Increases or decreases in domestic production and consumption of the subject apparel items;
(3) The ability of domestic producers of the subject worsted wool fabrics to meet the needs of domestic manufacturers of the subject apparel items in terms of quantity and ability to meet market demands for the apparel items;
(4) Sales of the subject worsted wool fabrics lost by domestic manufacturers to imports benefiting from the temporary duty reductions on certain worsted wool fabrics under the tariff-rate quotas (TRQs) provided for in headings 9902.51.11 and 9902.51.12 of the Harmonized Tariff Schedule of the United States (HTS);
(5) Loss of sales by domestic manufacturers of the subject apparel items related to the inability to purchase adequate supplies of the subject worsted wool fabrics on a cost competitive basis; and
(6) The price per square meter of imports and domestic sales of the subject worsted wool fabrics.
The USTR requested that the Commission submit two “annual reports” and an “interim letter” under this investigation. The first annual report, providing data for 1999, 2000, and year-to-date 2000-01, was requested by September 17, 2001, and the second annual report, providing data for 2001 and year-to-date 2001-02, was requested by September 16, 2002. In the interim, the USTR requested that the Commission provide by letter (interim letter) the most comprehensive information available on the factors described above for the period from January 1, 1999, to the present. The Commission was requested to submit this interim letter to USTR within 45 days after the U.S. Department of Commerce publishes a notice in the
In the request letter, the USTR referred to Title V of the Trade and Development Act of 2000 (the Act),
A public hearing in connection with preparation of the first annual report, as identified above, will be held at the U.S. International Trade Commission Building, 500 E Street SW, Washington, DC, beginning at 9:30 a.m. on May 31, 2001. The Commission has not scheduled any other public hearing in connection with this investigation at this time. All persons shall have the right to appear, by counsel or in person, to present information and to be heard. Requests to appear at the public hearing should be filed with the Secretary, United States International Trade Commission, 500 E Street SW, Washington, DC 20436, no later than 5:15 p.m., May 17, 2001. Any prehearing briefs (original and 14 copies) should be filed not later than 5:15 p.m., May 21, 2001. The deadline for filing post-hearing briefs or statements is 5:15 p.m., June 7, 2001. In the event that, as of the close of business on May 17, 2001, no witnesses are scheduled to appear at the hearing, the hearing will be canceled. Any person interested in attending the hearing as an observer or non-participant may call the Secretary of the Commission (202-205-1806) after May 17, 2001, to determine whether the hearing will be held.
In connection with preparation of the interim letter for USTR, interested parties are invited to submit written statements (original and 14 copies) concerning the matters to be addressed by the Commission. To be assured of consideration by the Commission, written statements in connection with the interim letter should be submitted to the Commission at the earliest practical date and should be received no later than the close of business on March 7, 2001. Regarding the first annual report, in lieu of or in addition to participating in the above-referenced hearing, interested parties are invited to submit written statements (original and 14 copies) concerning the matters to be addressed by the Commission by no later than the close of business on June 7, 2001.
Commercial or financial information that a person desires the Commission to treat as confidential must be submitted on separate sheets of paper, each marked “Confidential Business Information” at the top. All submissions requesting confidential treatment must conform with the requirements of section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). The Commission's Rules do not authorize filing of submissions with the Secretary by facsimile or electronic means. All written submissions, except for confidential business information, will be made available in the Office of the Secretary of the Commission for inspection by interested parties. The Commission may include confidential business information submitted in the course of this investigation in its reports to the USTR. In the public version of these reports, however, the Commission will not publish confidential business information in a manner that would reveal the individual operations of the firm supplying the information. All submissions should be addressed to the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Tariffs, imports, wool, fabric, and suits.
By order of the Commission.
Notice is hereby given that on February 8, 2001, a proposed consent decree in
In this action, the United States sought injunctive relief and the payment of civil penalties for Forsch Polymer's alleged violations of the Stratospheric Ozone Protection Requirements set forth at Subchapter VI of the Clean Air Act, and EPA's implementing regulations. Under the proposed decree, the defendant Forsch Polymer Corporation will pay the sum of $32,000 over a one year period. The settlement sum is based upon the financial inability of Forsch Polymer Corporation to pay more. The proposed decree does not require that Forsch Polymer Corporation take any injunctive measures because Forsch Polymer Corporation has certified that it no longer uses the ozone depleting substance that formed the basis of the United States' action.
The Department of Justice will receive for a period of thirty (30) days from the date of this publication comments relating to the proposed consent decree. Comments should be addressed to the Assistant Attorney General of the Environment and Natural Resources Division, Department of Justice, Washington, DC 20530, and should refer to
The proposed consent decree may be examined at the Office of the United States Attorney, 1225 17th Street, Suite 700, Denver, CO 80202; and at U.S. EPA Region VIII, 999 18th Street, Denver, Colorado 80202. A copy of the proposed consent decree may be obtained by mail from the Consent Decree Library, P.O. Box 7611, Washington, DC 20044. In requesting a copy, please enclose a check in the amount of $3.25 (25 cents per page reproduction cost) payable to the Consent Decree Library.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed consent decree in
The proposed Consent Decree requires the Defendant to pay a civil penalty for his unauthorized discharges. Under the proposed Consent Decree, the Defendant shall also undertake a supplemental environmental project (“SEP”) consisting of the conservation and management of wetlands in Tobyhanna Township, Monroe County, Pennsylvania. The proposed Consent Decree permanently enjoins the Defendant, or any successor of the Defendant, from discharging pollutants into any water of the United States at the Site, except in compliance any permits required to be obtained by federal, state and local laws, rules or regulations.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this notice. Please address comments to the Acting Assistant Attorney General, Environment and Natural Resources Division, Department of Justice, Attention: Joshua M. Levin, P.O. Box 23986, Washington, DC 20026-3986 and should refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Middle District of Pennsylvania, 228 Walnut Street, Harrisburg, PA 17108. In addition, the proposed Consent Decree may be viewed on the World Wide Web at http://www.usdoj.gov/enrd/enrd-home.html.
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. Sections 16(b) through (h), that a Complaint, Hold Separate Stipulation and Order, proposed Final Judgment, and Competitive Impact Statement were filed with the United States District Court for the District of Columbia in
Public comment is invited within the statutory 60-day comment period. Such comments and response thereto, will be published in the
It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:
As used in this Hold Separate Stipulation and Order:
A. “Purchaser” means the entity to whom defendants divest either the VTNA LCOE Truck Business or the Mack LCOE Truck Business.
B. “AB Volvo” means defendant Aktiebolaget Volvo, a Swedish corporation with its headquarters in Gotenborg, Sweden, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “VTNA” means defendant Volvo Trucks North America, Inc., a Delaware corporation and a wholly owned subsidiary of AB Volvo with its headquarters in Greensboro, North Carolina, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
D. “Renault” means defendant Renault S.A., a French corporation with its headquarters in Boulogne-Billancourt, France, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Renault V.I.” means defendant Renault V.I.S.A., a French corporation and a wholly owned subsidiary of Renault with its headquarters in Lyon, France, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
F. “Mack” means defendant Mack Trucks, Inc., a Pennsylvania corporation and a wholly owned subsidiary of Renault V.I. with its headquarters in Allentown, Pennsylvania, and includes its successors and assigns, and its subsidiaries, division, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
G. “LCOE Truck” means a class 8 low cab over entire straight truck with a cab
H. “VTNA LCOE Truck Business” means VTNA's line of LCOE Trucks (which consists of the WX and WXLL) including:
(1) All tangible assets that comprise the VTNA LCOE Truck Business, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, and other tangible property and all other assets used exclusively in connection with the VTNA LCOE Truck Business; all components, parts, and designs used in LCOE Trucks comprising the VTNA LCOE Truck Business; all licenses, permits and authorizations issued by any governmental organization relating to the VTNA LCOE Truck Business; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings relating to the VTNA LCOE Truck Business, including supply agreements; all lists, contracts, accounts, and credit record of customers; all repair, performance, and VTNA LCOE Truck Business records and all other records relating to the VTNA LCOE Truck Business. The VTNA Truck Business does not include the sale of the VTNA New River Valley, Virginia, plant; and
(2) any and all intangible assets used in the development, production, servicing and sale of the VTNA LCOE Truck Business, including, but not limited to: (a) the Xpeditor, WX, and WXLL brand names and all other intellectual property rights used exclusively in connection with the VTNA LCOE Truck Business; (b) with respect to all other intellectual property rights used in connection with both the VTNA LCOE Truck Business and other nondivested AB Volvo assets (other than intellectual property regarding use of the word “Volvo”), a transferable, license, exclusive in the VTNA LCOE Truck Business field of use; (c) all existing licenses and sublicenses relating exclusively to the VTNA LCOE Truck Business; (d) a transferable, sublicense, exclusive in the VTNA LCOE Truck Business field of use, to all other existing licenses and sublicenses relating to the VTNA LCOE Truck Business; and (e) all research, market evaluations or information relating to plans for improvements or updates to, or product line extensions of the WX or WXLL. Intellectual property rights comprise, but are not limited to, patents, licenses and sublicenses, copyrights, technical information, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided to employees, customers, suppliers, agents, or licensees, and all research data concerning historic and current research and development efforts relating to the VTNA LCOE Truck Business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments.
I. “Mack LCOE Truck Business” means Mack's line of LCOE Trucks (which includes the MR and LE) including:
(1) All tangible assets that comprise the Mack LCOE Truck Business, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, and other tangible property and all other assets used exclusively in connection with the Mack LCOE Truck Business; all components, parts, and designs used in LCOE Trucks comprising the Mack LCOE Truck Business; all licenses, permits and authorizations issued by any governmental organization relating to the Mack LCOE Truck Business; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings relating to the Mack LCOE Truck Business, including supply agreements; all lists, contracts, accounts, and credit records of customers; all repair, performance, and Mack LCOE Truck Business records and all other records relating to the Mack LCOE Truck Business. The Mack LCOE Truck Business does not include the sale of the Mack Macungie, Pennsylvania, plant; and
(2) any and all intangible assets used in the development, production, servicing and sale of the Mack LCOE Truck Business, including, but not limited to: (a) The MR and LE brand names and all other intellectual property rights used exclusively in connection with the Mack LCOE Truck Business; (b) with respect to all other intellectual property rights used in connection with both the Mack LCOE Truck Business and other nondivested Renault assets (other than intellectual property regarding use of the word “Mack” or the word “Renault”), a transferable, license, exclusive in the Mack LCOE Truck Business field of use; (c) all existing licenses and sublicenses relating exclusively to the Mack LCOE Truck Business; (d) a transferable, sublicense, exclusive in the Mack LCOE Truck Business field of use, to all other existing licenses and sublicenses relating to the Mack LCOE Truck Business; and (e) all research, market evaluations or information relating to plans for, improvements or updates to, or product line extensions of the MR or LE. Intellectual property rights comprise, but are not limited to patents, licenses and sublicenses, technical information, copyrights, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided to employees, customers, suppliers, agents, or licensees, and all research data concerning historic and current research and development efforts relating to the Mack LCOE Truck Business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments.
The Final Judgment filed in this case is meant to ensure defendants' prompt divestiture of the VTNA LCOE Truck Business or, pursuant to the decision of a trustee, the Mack LCOE Truck Business, for the purpose of assuring the establishment of one or more viable competitors in the LCOE Truck industry capable of competing effectively to supply LCOE Trucks in North America and to remedy the anticompetitive effects that the United States alleges would otherwise result from AB Volvo's acquisition of Renault V.I. This Hold Separate Stipulation and Order ensures, prior to such divestitures, that the VTNA and Mack LCOE Truck Businesses operate as competitively independent, economically viable, and ongoing business concerns that will remain independent and uninfluenced by the consummation of AB Volvo's acquisition of Renault V.I., and that competition is maintained during the pendency of the ordered divestitures.
The Court has jurisdiction over the subject matter of this action and over each of the parties hereto, and venue of this action is proper in the Untied States District Court for the District of Columbia.
A. The parties stipulate that a Final Judgment in the form attached hereto as Exhibit A may be filed with an entered by the Court, upon the motion of any party or upon the Court's own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (15 U.S.C. 16), and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on defendants and by filing that notice with the Court.
B. Defendants shall abide by and comply with the provisions of the proposed Final Judgment, pending the Judgment's entry by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Final Judgment, and shall, from the date of the signing of this Stipulation by the parties, comply with all the terms and provisions of the proposed Final Judgment as though the same were in full force and effect as an order of the Court.
C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has singed this Hold Separate Stipulation and Order.
D. This Stipulation shall apply with equal force and effect to any amended proposed Final Judgment agreed upon in writing by the parties and submitted to the Court.
E. In the event (1) the United States has withdrawn its consent, as provided in Section IV(A) above, or (2) the proposed Final Judgment is not entered pursuant to this Stipulation, the time has expired for all appeals of any Court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then the parties are released from all further obligations under this Stipulation, and the making of this Stipulation shall be without prejudice to any party in this or any other proceeding.
F. Defendants represent that the divestiture ordered in the proposed Final Judgment can and will be made, and that defendants will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.
Until the divestitures required by the Final Judgment have been accomplished:
A. Defendants shall preserve, maintain, and continue to operate the VTNA and Mack LCOE Truck Businesses as competitively independent, economically viable parts of ongoing competitive businesses, with management, research, design, development, promotions, marketing, sales and operations of such assets held entirely separate, distinct and apart from those of the defendants' other operations. Except as provided in this paragraph, AB Volvo shall not coordinate the research and development, promotions, production, marketing or terms of sale of any products produced by or sold by or through the VTNA LCOE Truck Business with those produced or sold by or through the Mack LCOE Truck Business. Notwithstanding the foregoing provisions, AB Volvo is not prohibited from continuing the historical, regular course of business, system-wide production and sales of VTNA and Mack LCOE Trucks, provided that defendants continue to support and maintain the VTNA and Mack LCOE Truck Businesses as independent, ongoing, economically viable and active competitors in the LCOE Truck industry as required by this Hold Separate Stipulation and Order (including efforts to maintain and increase the sales revenue of the VTNA and Mack LCOE Truck Businesses required under Section V.(C)). Within twenty (20) days after the entry of this Hold Separate Stipulation and Order, defendants will inform the United States of the steps defendants have taken to comply with this Hold Separate Stipulation and Order.
B. Defendants shall take all steps necessary to ensure that (1) the VTNA and Mack LCOE Truck Businesses will be maintained and operated as an independent, ongoing, economically viable and active competitors in the LCOE Truck industry; (2) management of the VTNA and Mack LCOE Truck Businesses (designated in Section V.(J)) will not be influenced by defendants; and (3) the books, records, competitively sensitive sales, marketing and pricing information, and decision-making concerning research, development, marketing, production, distribution or sales of products by or under any of the VTNA and Mack LCOE Truck Businesses will be kept separate and apart from defendants' other operations.
C. Defendants shall use all reasonable efforts to maintain and increase the research, development, sales, and revenues of the products produced by or sold under the VTNA and Mack LCOE Truck Businesses, and shall maintain at 2000 levels or previously approved levels for 2001, whichever are higher, all research, development, product improvement, promotional, advertising, sales, technical assistance, marketing and merchandising support for the VTNA and Mack LCOE Truck Businesses.
D. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain the VTNA and Mack LCOE Businesses as economically viable and competitive, ongoing businesses, consistent with the requirements of Sections V(A) and V(B).
E. Defendants shall take all steps necessary to ensure that all the assets of the VTNA and Mack LCOE Truck Businesses are fully maintained in operable condition at no less than current capacity and sales, and shall maintain and adhere to normal product improvement and upgrade and repair and maintenance schedules for those assets.
F. Defendants shall not, except as part of a divestiture approved by the United States in accordance with the terms of the proposed Final Judgment, remove, sell, lease, assign, transfer, pledge or otherwise dispose of any of the VTNA and Mack LCOE Truck Businesses.
G. Defendants shall maintain, in accordance with sound accounting principles, separate, accurate and complete financial ledgers, books and records that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues and income of the VTNA and Mack LCOE Truck Businesses.
H. Defendants shall take no action that would jeopardize, delay, or impede the sale of the VTNA and Mack LCOE Truck Businesses.
I. Defendants' employees with primary responsibility for the research, design, development, promotion, distribution, sale, and operation of the VTNA and Mack LCOE Truck Businesses shall not be transferred or reassigned to other areas within the company except for transfer bids initiated by employees pursuant to defendants' regular, established job posting policy. Defendants shall provide the United States with ten (10) calendar days notice of such transfer.
J. Prior to consummation of their transaction, defendants shall appoint Stanley C. Ellspermann to oversee the VTNA LCOE Truck Business and Denis
K. Defendants shall take no action that would interfere with the ability of any trustee appointed pursuant to the Final Judgment to monitor and complete the divestiture pursuant to the Final Judgment to a purchaser acceptable to the United States.
L. This Hold Separate Stipulation and Order shall remain in effect until consummation of the divestiture required by the proposed Final Judgment or until further order of the Court.
Dated: December 18, 2000.
This Court has jurisdiction over each of the parties hereto and over the subject matter of this action. The Complaint states a claim upon which relief may be granted against defendants under Section 7 of the Clayton Act, as amended (15 U.S.C. 18).
As used in this Final Judgment:
A. “AB Volvo” means defendant Aktiebolaget Volvo, a Swedish corporation with its headquarters in Gotenborg, Sweden, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
B. “VTNA” means defendant Volvo Trucks North America, Inc., a Delaware corporation and a wholly owned subsidiary of AB Volvo with its headquarters in Greensboro, North Carolina, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
C. “Renault” means defendant Renault S.A., a French corporation with its headquarters in Boulogne-Billancourt, France, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
D. “Renault V.I.” means defendant Renault V.I. S.A., a French corporation and a wholly owned subsidiary of Renault with its headquarters in Lyon, France, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
E. “Mack” means defendant Mack Trucks, Inc., a Pennsylvania corporation and a wholly owned subsidiary of Renault V.I. with its headquarters in Allentown, Pennsylvania, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, and joint ventures, and their directors, officers, managers, agents, and employees.
F. “LCOE Truck” means a class 8 low cab over engine straight truck with a cab placed over or in front of the engine and the capability to accept an attached vocational body.
G. “VTNA LCOE Truck Business” means VTNA's line of LCOE Trucks (which consists of the WX and WXLL) including:
(1) All tangible assets that comprise the VTNA LCOE Truck Business, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, and other tangible property and all other assets used exclusively in connection with the VTNA LCOE Truck Business; all components, parts, and designs used in LCOE Trucks comprising the VTNA LCOE Truck Business; all licenses, permits and authorizations issued by any governmental organization relating to the VTNA LCOE Truck Business; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings relating to the VTNA LCOE Truck Business, including supply agreements; all lists, contracts, accounts, and credit records of customers; all repair, performance, and VTNA LCOE Truck Business records and all other records relating to the VTNA LCOE Truck Business. The VTNA Truck Business does not include the sale of the VTNA New River Valley, Virginia, plant; and
(2) any and all intangible assets used in the development, production, servicing and sale of the VTNA LCOE Truck Business, including, but not limited to: (a) The Xpeditor, WX, and WXLL brand names and all other
H. “Mack LCOE Truck Business” means Mack's line of LCOE Trucks (which includes the MR and LE) including:
(1) All tangible assets that comprise the Mack LCOE Truck Business, including research and development activities, all manufacturing equipment, tooling and fixed assets, personal property, inventory, materials, supplies, and other tangible property and all other assets used exclusively in connection with the Mack LCOE Truck Business; all components, parts, and designs used in LCOE Trucks comprising the Mack LCOE Truck Business; all licenses, permits and authorizations issued by any governmental organization relating to the Mack LCOE Truck Business; all contracts, teaming arrangements, agreements, leases, commitments, certifications, and understandings relating to the Mack LCOE Truck Business, including supply agreements; all lists, contracts, accounts, and credit records of customers; all repair, performance, and Mack LCOE Truck Business records and all other records relating to the Mack LCOE Truck Business. The Mack LCOE Truck Business does not include the sale of the Mack Macungie, Pennsylvania, plant; and
(2) any and all intangible assets used in the development, production, servicing and sale of the Mack LCOE Truck Business, including, but not limited to: (a) The MR and LE brand names and all other intellectual property rights used exclusively in connection with the Mack LCOE Truck Business; (b) with respect to all other intellectual property rights used in connection with both the Mack LCOE Truck Business and other nondivested Renault assets (other than intellectual property regarding use of the word “Mack” or the word “Renault”), a transferable license, exclusive in the Mack LCOE Truck Business field of use; (c) all existing licenses and sublicenses relating exclusively to the Mack LCOE Truck Business; (d) a transferable sublicense, exclusive in the Mack LCOE Truck Business field of use, to all other existing licenses and sublicenses relating to the Mack LCOE Truck Business; and (e) all research, market evaluations or information relating to plans for, improvements or updates to, or product line extensions of the MR or LE. Intellectual property rights comprise, but are not limited to, patents, licenses and sublicenses, technical information, copyrights, trademarks, trade names, service marks, service names, computer software and related documentation, know-how, trade secrets, drawings, blueprints, designs, design protocols, specifications for parts and devices, safety procedures for the handling of materials and substances, quality assurance and control procedures, design tools and simulation capability, all manuals and technical information provided to employees, customers, suppliers, agents, or licensees, and all research data concerning historic and current research and development efforts relating to the Mack LCOE Truck Business including, but not limited to, designs of experiments and the results of successful and unsuccessful designs and experiments.
A. This Final Judgment applies to AB Volvo, VTNA, Renault, Renault V.I., and Mack, as defined above, and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. Defendents shall require, as a condition of the sale or other disposition of all or substantially all of their assets, or of lesser business units that include the VTNA LCOE Truck Business, that the purchaser agrees to be bound by the provisions of this Final Judgment, provided, however, that defendants need not obtain such an agreement from the purchaser of the VTNA LCOE Truck Business or Mack LCOE Truck Business pursuant to this Final Judgment.
A. Defendants are ordered and directed, within ninety (90) calendar days after the filing of the Complaint in this matter, or five (5) days after notice of the entry of this Final Judgment by this Court, whichever is later, to
(1) Divest the VTNA LCOE Truck Business in a manner consistent with this Final Judgment as a viable ongoing business to a purchaser acceptable to the United States in its sole discretion;
(2) enter into an agreement with the purchaser of the VTNA LCOE Truck Business whereby defendants guarantee that the VTNA LCOE Truck Business will be able to use engines which meet United States Environmental Protection Agency 2002 emissions requirements; and
(3) at the option of the purchaser of the VTNA LCOE Truck Business, enter into an agreement to supply reasonable levels of transitional and manufacturing start-up support for a maximum period of 2 years that will enable the purchaser or purchasers to produce VTNA LCOE Trucks.
B. Defendants agree to use their best efforts to divest the VTNA LCOE Truck Business as expeditiously as possible. The United States, in its sole discretion, may extend the time period for the divestiture two additional periods of time, not to exceed thirty (30) calendar days each, and shall notify this Court in such circumstances.
C. In accomplishing the divestiture ordered by this Final Judgment, defendants promptly shall make known, by usual and customary means, the availability of the VTNA LCOE Truck Business. Defendants shall inform any person making inquiry regarding a possible purchase of the VTNA LCOE Truck Business that it is being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective purchasers, subject to customary assurances, all information and documents relating to
D. Defendants shall provide the purchaser and the United States information relating to any AB Volvo or VTNA personnel involved in the research, design, production, operation, development, marketing and sale of the VTNA LCOE Truck Business to enable the purchaser to make offers of employment. Defendants will not interfere with any negotiations by the purchaser to employ any person whose primary responsibility is the research, design, production, operation, development, marketing or sale of the VTNA LCOE Truck Business.
E. Defendants shall permit prospective purchasers of the VTNA LCOE Truck Business to have reasonable access to personnel and to make inspections of the physical facilities of the VTNA business to be divested; access to any and all environmental, zoning, and other permit documents and information; and access to any and all financial, sales, marketing, operational, or other documents and information customarily provided as part of a due diligence process.
F. Defendants shall warrant to the purchaser of the VTNA LCOE Truck Business that each asset of the VTNA LCOE Truck Business will be operational on the date of sale.
G. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the VTNA LCOE Truck Business.
H. Defendants shall not take any action that will in any impede or exclude their dealers from distributing, selling, or servicing LCOE Trucks produced by the purchaser of the VTNA LCOE Truck Business.
I. Defendants shall warrant to the purchaser of the VTNA LCOE Truck Business that there are no material defects in the environment, zoning, or other permits pertaining to the operation of each asset, and that following the sale of the VTNA LCOE Business, defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the VTNA LCOE Truck Business.
J. Unless the United States consents in writing, the divestiture pursuant to Section IV of this Final Judgment, whether by defendants or by a trustee appointed pursuant to Section VI of this Final Judgment, shall include the entire VTNA LCOE Truck Business as defined in Section II. The divestiture of the VTNA LCOE Truck Business shall be accomplished by selling or otherwise conveying the VTNA LCOE Truck Business to a purchaser in such a way as to satisfy the United States, in its sole discretion, that business to be divested can and will be used by the purchaser as part of a viable, ongoing LCOE Truck business. The divestiture of the VTNA LCOE Truck Business, whether pursuant to Section IV or Section VI of this Final Judgment, shall be made to a purchaser in a manner so as to satisfy the United States, in its sole discretion, that it: (1) Has the capability and intent of competing effectively in the development, production and sale of LCOE Trucks; (2) has the managerial, operational, technical and financial capability to compete effectively in the development, production and sale of LCOE Trucks; and (3) is not hindered by the terms of any agreement between the purchaser and defendants that gives either defendant the ability unreasonably to raise the purchaser's costs, to lower the purchaser's efficiency, or otherwise to interfere with the ability of the purchaser to compete effectively.
Within two (2) business days following execution of a definitive agreement, contingent upon compliance with the terms of this Final Judgment, to effect, in whole or in part, any proposed divestiture pursuant to Sections IV or VI of this Final Judgment, defendants or the trustee, whichever is then responsible for effecting the divestiture, shall notify the United States of the proposed divestiture. If the trustee is responsible, it shall similarly notify defendants. The notice shall set forth the details of the proposed divestiture and list the name, address, and telephone number of each person not previously identified who offered to, or expressed an interest in or a desire to, acquire any ownership interest in the VTNA LCOE Business, together with full details of same. Within fifteen (15) calendar days of receipt by the United States of such divestiture notice, the United States may request from defendants, the proposed purchaser, any other third party, or the trustee if applicable, additional information concerning the proposed divestiture, the proposed purchaser, and any other potential purchaser. Defendants and the trustee shall furnish any additional information requested from them within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree. Within thirty (30) calendar days after receipt of the notice, or within twenty (20) calendar days after the United States has been provided the additional information requested from the defendants, the proposed purchaser, any third party, or the trustee, whichever is later, the United States shall each provide written notice to defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice to defendants (and the trustee if applicable) that it does not object, then the divestiture may be consummated, subject only to defendants' limited right to object to the sale under Section VI(B) of this Final Judgment. Absent written notice that the United States does not object to the proposed purchaser or upon objection by the United States, a divestiture proposed under Section IV or Section VI may not be consummated. Upon objection by defendants under the provision in Section VI(C), a divestiture proposed under Section VI shall not be consummated unless approved by the Court.
A. If defendants have not divested the VTNA LCOE Truck Business within the time period specified in Section IV(A), defendants shall notify the United States of that fact in writing. Upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of the VTNA or Mack LCOE Truck Business. The trustee shall have the right, in its sole discretion, to sell either the VTNA LCOE Truck Business or the Mack LCOE Truck Business. The trustee shall also have the right, in its sole discretion, and upon notice to the defendants and upon consultation with the United States, to add such other assets and agreements concerning necessary parts and components, in order to ensure the viability, competitiveness, and marketability of the Mack LCOE Truck Business.
B. After the appointment of a trustee becomes effective, only the trustee shall have the right to sell the VTNA or Mack LCOE Truck Business. The trustee shall have the power and authority to accomplish the divestiture at the earliest possible time to a purchaser acceptable to the United States at such price and on such terms as are then obtainable for the VTNA or Mack LCOE Truck Business, upon a reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final
C. Defendants shall not object to a sale by the trustee on any ground other than the trustee's malfeasance. Any such objections by defendants must be conveyed in writing to the United States and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section V of this Final Judgment.
D. The trustee shall serve at the cost and expense of defendants, on such terms and conditions as approved by the United States. The trustee shall account for all monies derived from the sale of the VTNA or Mack LCOE Truck Business, and all costs and expenses so incurred. After approval by the Court of the trustee's accounting, including fees for its services and those of any professionals and agents retained by the trustee, all remaining money shall be paid to defendants and the trust shall then be terminated. The compensation of the trustee and of any professionals and agents retained by the trustee shall be reasonable in light of the value of the VTNA or Mack LCOE Truck Business and based on a fee arrangement providing the trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestiture pursuant to this Section. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the VTNA and Mack LCOE Truck Business, and defendants shall develop financial or other information relevant to such businesses as the trustee may reasonably request, subject to reasonable protection for trade secrets or other confidential research, development or commercial information. Defendants shall take no action to interfere with or to impede the trustee's accomplishment of the divestiture.
F. After its appointment, the trustee shall file monthly reports with the United States and the Court setting forth the trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry abut acquiring, any interest in the VTNA or Mack LCOE Truck Business, and shall describe in detail each contact with any such person. The trustee shall maintain full records of all efforts made to divest the VTNA or Mack LCOE Truck Business.
G. If the trustee has not accomplished the divestiture of the VTNA or Mack LCOE Truck Business within six (6) months after its appointment, the trustee thereupon shall file promptly with the Court a report setting forth (1) the trustee's efforts to accomplish the required divestiture, (2) the reasons, in the trustee's judgment, why the required divestiture has not been accomplished, and (3) the trustee's recommendations. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the United States, who shall have the right to make additional recommendations consistent with the purpose of the trust. The Court shall enter thereafter such orders as it shall deem appropriate in order to carry out the purpose of this Final Judgment which may, if necessary, include extending the trust and the term of the trustee's appointment by a period requested by the United States.
A. Within twenty (20) calendar days of the filing of the Complaint in this matter and every thirty (30) calendar days thereafter until the divestiture has been completed, whether pursuant to Section IV or Section VI of this Final Judgment, defendants shall deliver to the United States an affidavit as to the fact and manner of their compliance with Sections IV or VI of this Final Judgment. Each such affidavit shall include, inter alia, the name, address, and telephone number of each person who, at any time after the period covered by the last such report, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contracted or made an inquiry about acquiring, any interest in the VTNA LCOE Truck Business, or after appointment of a trustee under Section VI of this Final Judgment, the Mack LCOE Truck Business, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts that defendants have taken to solicit potential purchasers for the VTNA LCOE Truck Business and to provide required information to potential purchasers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by defendants, including limitations on information, shall be made within fourteen (14) days of receipt of such affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint in this matter, defendants shall deliver to the United States an affidavit which describes in reasonable detail all actions defendants have taken and all steps defendants have implemented on an ongoing basis to comply with Section VIII of this Final Judgment and the Hold Separate Stipulation and Order entered by the Court. The affidavit also shall describe, but not be limited to, defendants' efforts to maintain and operate the VTNA LCOE Truck Business as an active competitor, maintain its management, staffing, research and development activities, sales, marketing and pricing, and maintain the business in operable condition at current capacity configurations. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in defendants' earlier affidavit(s) filed pursuant to this Section within fifteen (15) calendar days after the change is implemented.
C. Until one year after the divestiture has been completed, defendants shall preserve all records of all efforts made to preserve the business to be divested and to effect the ordered divestiture.
Until the divestiture required by this Final Judgment has been accomplished, defendants shall take all steps necessary to comply with the Hold Separate Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court.
Defendants are ordered and directed not to finance all or any part of any purchase made pursuant to Sections IV or VI of this Final Judgment.
Defendants may not reacquire any part of the divested assets during the term of this Final Judgment.
For the purposes of determining or securing compliance with this Final Judgment, or of determining whether this Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time:
A. Duly authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, upon written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to defendants made to their principal offices, shall be permitted:
1. Access during office hours of defendants to inspect and copy, or at plaintiff's option, to require defendants to provide copies of, all books, ledgers, accounts, correspondence, memoranda, and other records and documents in the custody or possession or under the control of defendants relating to any matters contained in this Final Judgment and the Hold Separate Stipulation and Order; and
2. to interview, either informally or on the record, defendants' officers, employees, and agents, who may have their individual counsel present, regarding any such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by defendants.
B. upon the written request of a duly authorized representative of the Assistant Attorney General in charge of the Antitrust Division, made to defendants' principal offices, defendants shall submit written reports, under oath if requested, relating to any matter contained in this Final Judgment or the Hold Separate Stipulation and Order as may be requested.
C. no information or documents obtained by the means provided in this Section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. if at the time information or documents are furnished by defendants to the United States, defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then ten (10) calendar days notice shall be given to defendants by the United States prior to divulging such material in any legal proceeding (other than a grand jury proceeding) to which defendants are not a party.
Jurisdiction is retained by this Court for the purpose of enabling any of the parties to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate for the construction or carrying out of this Final Judgment, for the modification of any of the provisions hereof, for the enforcement of compliance herewith, and for the punishment of any violations hereof.
Unless this Court grants an extension, this Final Judgment will expire upon the tenth anniversary of the date of its entry.
Entry of this Final Judgment is in the public interest.
Dated: _____, 2001.
Court approval subject to procedures of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16.
The United States, pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA”), 15 U.S.C. 16(b)-(h), files this Competitive Impact Statement relating to the proposed Final Judgment submitted for entry in this civil antitrust proceeding.
The United States filed a civil antitrust Complaint under Section 15 of the Clayton Act, 15 U.S.C. 25 on December 18, 2000, alleging Aktiebolaget Volvo's (“AB Volvo”) acquisition of Renault V.I.S.A. (“Renault V.I.”), which includes Mack Trucks, Inc. (“Mack”), from Renault S.A. (“Renault”) would substantially lessen competition in violation of Section 7 of the Clayton Act, as amended, 15 U.S.C. 18.
The Complaint alleges the defendants are the two largest producers of heavy duty (class 8), low cab over engine straight trucks (“LCOE Trucks” in the United States. The proposed acquisition would result in AB Volvo accounting for approximately 96 percent of heavy duty LCOE Truck sales in the United States. The Complaint alleges the transaction will substantially lessen competition in the development, production, and sale of heavy duty LCOE Trucks sold in the United States, thereby harming consumers. Accordingly, the prayer for relief in the Complaint seeks: (1) A judgment that the proposed acquisition would violate Section 7 of the Clayton Act; (2) a permanent injunction preventing the defendants from carrying out the acquisition or otherwise combining their businesses or assets; (3) an award to the United States of its costs in bringing the lawsuit; and (4) such other relief as the Court deems proper.
When the Complaint was filed, the United States also filed a proposed settlement permitting AB Volvo to acquire Renault V.I., provided AB Volvo divested its Volvo Trucks North America, Inc. (“VTNA”) LCOE Truck Business (a term defined in the proposed Final Judgment) to preserve competition. The settlement consists of a proposed Final Judgment and a Hold Separate Stipulation and Order.
The proposed Final Judgment orders the defendants to divest the VTNA LCOE Truck Business to an acquirer approved by the United States. The defendants must complete the divestiture within ninety (90) calendar days after the filing of the Complaint, or five days after notice of the entry of the Final Judgment, whichever is later. The United States may extend the time period for divestiture two additional periods, each not to exceed 30 days. If the defendants do not complete the divestiture within the prescribed time, then, under the terms of the proposed Final Judgment, the Court will appoint a trustee to achieve the divestiture. If a trustee is appointed, the trustee shall have the option of divesting either the VTNA LCOE Truck Business or the Mack LCOE Truck Business (a term defined in the proposed Final Judgment).
The United States and defendants have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
AB Volvo is a foreign corporation organized and existing under the laws of Sweden with its corporate headquarters and principal place of business in Gotenburg, Sweden. AB Volvo is an international manufacturer of trucks, construction equipment, and engines. AB Volvo, through its subsidiary, VTNA, is the second largest U.S. manufacturer of heavy duty LCOE Trucks. AB Volvo reported revenue of approximately $14.7 billion in 1999.
VTNA is a corporation organized and existing under the laws of the state of Delaware with its corporate headquarters and principal place of business in Greensboro, North Carolina. VTNA produces trucks in Dublin, Virginia. VTNA's 1999 revenues were approximately $2.39 billion.
Renault is a foreign corporation organized and existing under the laws of France that has its corporate headquarters and principal place of business in Boulogne-Billancourt, France. Renault is an international manufacturer of automobiles, trucks, buses, and engines. Renault reported revenue of approximately $39 billion in 1999.
Renault V.I. is a foreign corporation organized and existing under the laws of France with its corporate headquarters and principal place of business in Lyon, France. Renault V.I. is a subsidiary of Renault and produces trucks and truck engines.
Mack is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania with its corporate headquarters and principal place of business in Allentown, Pennsylvania. Mack, which is a subsidiary of Renault V.I., produces trucks and engines. Mack is the largest United States manufacturer of heavy duty LCOE Trucks. Mack reported revenues of approximately $2.2 billion in 1999.
On or about July 18, 2000, AB Volvo entered into an agreement with Renault to acquire Renault V.I. from Renault in exchange for 15% of AB Volvo's outstanding voting security which has an approximate value of $1.8 billion. The proposed acquisition would substantially lessen competition in the heavy duty LCOE Truck segment of the heavy duty truck industry and precipitated the United States' antitrust suit.
The Complaint alleges the development, production, and sale of heavy duty LCOE Trucks is a line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act. Heavy duty trucks (or “class 8” trucks) are those trucks capable of carrying the heaviest payload capacities or gross vehicle weights, exceeding 33,000 pounds. In addition to payload capacity, heavy duty trucks are distinguished from lighter duty trucks by large powerful diesel engines and other heavy duty components. Heavy duty LCOE Trucks are configured with the cab located over or in front of the engine, and a windshield which is even with the front bumper. The design gives heavy duty LCOE Trucks superior visibility and maneuverability compared to conventional cab, heavy duty, straight trucks which are designed with their engines in front of the cab. Heavy duty LCOE Trucks have a lower entry point to the cab (18 inches), compared to conventional straight trucks (almost four feet).
The design of heavy duty LCOE Trucks makes them uniquely suited to specific applications. Most heavy duty LCOE Trucks are sold to the refuse industry, which requires heavy duty trucks to handle the weight of the waste material being hauled. Refuse companies often attach a mechanical fork lift to heavy duty LCOE Trucks to lift commercial dumpsters over the cab, emptying them into the body of the truck. Such a mechanical fork lift cannot be used with trucks designed with engines in front of the cab because that design has an extended hood which would block the lift's operation. Similarly, the LCOE design provides superior maneuverability and visibility needed in urban and residential streets and alleys. Finally, the low height for entry into the cab makes the LCOE design significantly preferable for refuse use because drivers need to exit and enter the truck often. The ease of cab entry and the superior maneuverability and visibility of heavy duty LCOE Trucks also makes them the truck of choice for various other applications such as home heating oil delivery in the Northeastern United States, concrete pumping, and aircraft refueling.
There are no good substitutes for heavy duty LCOE Trucks. A sufficient number of purchasers of heavy duty LCOE Trucks would not turn to substitutes in response to a small but significant increase in the price of heavy duty LCOE Trucks to make such price increase unprofitable. Accordingly, the development, production, and sale of heavy duty LCOE Trucks is a relevant product market in which to assess the competitive effects of the proposed acquisition.
The Complaint alleges the United States constitutes the relevant geographic market for the purposes of analyzing the transaction. Virtually all heavy duty LCOE Trucks sold in the United States are manufactured in the United States and almost none are imported. The foreign-headquartered truck manufacturers that sell heavy duty LCOE Trucks in the United States manufacture the trucks at facilities located in the United States. Classifications, standards, and customer preferences for heavy duty LCOE Trucks produced for Asia and Europe differ from those produced for the United States. A small but significant increase in the price of heavy duty LCOE Trucks would not cause a sufficient number of purchasers to switch to trucks manufactured outside the United States to make the price increase unprofitable.
The Complaint alleges that AB Volvo's acquisition of Renault will likely have the following anticompetitive effects: (a) Competition generally in the development, production and sale of heavy duty LCOE Trucks would be substantially lessened; (b) the actual and potential competition between Volvo and Renault would be eliminated; and (c) prices for heavy duty LCOE Trucks would likely increase and the quality, level of service, and product improvement of heavy duty LCOE Trucks would likely decline.
VTNA and Mack are the only significant suppliers of heavy duty LCOE Trucks in the United States. In this highly concentrated market, Mack has approximately a 53 percent market share, and VTNA has approximately a 33 percent market share. VTNA and Mack compete directly and aggressively against one another on the development, production, and sale of heavy duty LCOE Trucks which has benefited consumers through lower prices, higher
The proposed acquisition would substantially increase concentration in an already highly concentrated market. After the acquisition, the combined firm would account for approximately 86 percent of heavy duty LCOE Truck sales in the United States. Using the Herfindahl-Hirschman Index (“HHI,” which is defined and explained in Appendix A of the Complaint), the proposed transaction will increase the HHI by more than 4000 points to a post-merger level of about 7508, far in excess of the level which ordinarily raise antitrust concerns.
The proposed acquisition will raise the combined firms' share of industry sales to the level where it will have the ability and incentive to raise prices unilaterally. The heavy duty LCOE Trucks of VTNA and Mack are significantly differentiated from their other competitors' heavy duty LCOE Trucks in terms of their actual and proven track record for reliability, maintenance requirements, and significant components. Mack's and VTNA's heavy duty LCOE Trucks are the closest substitutes for each other and their customers would not divert a sufficient number of their purchases to competing heavy duty LCOE Trucks to defeat a significant price increase by the defendants following a merger.
The Complaint alleges that entry into the production and sale of heavy duty LCOE Trucks in the United States is difficult, time consuming, and expensive, and would not be timely, likely or sufficient to deter the exercise of market power by the combined firm in the readily foreseeable future. Entry, even by an established producer of other types of heavy duty trucks, would require a high sunk capital investment in research and development and equipment and facilities. A new entrant would also need to develop an effective dealer network for selling and servicing heavy duty LCOE Trucks and would need to develop a track record for reliability and maintenance before it would attract significant sales from Mack and VTNA. Even an established producer of other types of heavy duty trucks with a dealer network for those trucks would need in excess of two years to design, produce, and gain customer acceptance of a new heavy duty LCOE Truck.
The proposed Final Judgment is designed to ensure competition otherwise eliminated as a result of the proposed acquisition is preserved, and to prevent AB Volvo from exercising market power in the heavy duty LCOE Truck market after the acquisition. To maintain competition in the heavy duty LCOE Truck market. Section IV of the proposed Final Judgment orders the defendants to sell the VTNA LCOE Truck Business. The proposed Final Judgment also requires the defendants to negotiate agreements with the purchaser guaranteeing the divested business will meet EPA 2002 emissions standards and, at the purchaser's option, to provide start-up support for the divested LCOE Truck Business for a period of up to two years. The defendants are prohibited by the proposed Final Judgment from taking any action that will impede their dealers from distributing, selling or servicing the divested heavy duty LCOE Trucks.
Under the terms of the proposed Final Judgment, defendants must accomplish the divestiture within ninety (90) calendar days after the date the Complaint is filed, or five days after notice of entry of the Final Judgment, whichever is later, to an acquirer that, in the United States's sole judgment, has the intent and capability (including the necessary managerial, operational, technical and financial capability) of competing effectively in the development, production, and sale of heavy duty LCOE Trucks. The United States may extend the time period for divestiture two additional periods, each not to exceed 30 days. Defendants must use their best efforts to divest the VTNA LCOE Truck Business as expeditiously as possible and, until the ordered divestitures take place, the defendants must cooperate with any prospective purchasers.
If defendants do not accomplish the ordered divestitures within the prescribed time period, Section VI(A) of the proposed Final Judgment provides that the Court will appoint a trustee, selected by the United States, to complete the divestiture. The trustee may divest either the VTNA or Mack LCOE Truck Business. The trustee has the right, upon notice to the defendants and upon consultation with the United States, to add such other assets and agreements concerning necessary parts and components, in order to ensure the viability, competitiveness, and marketability of the Mack LCOE Truck Business.
If a trustee is appointed, the proposed Final Judgment provides the defendants must cooperate fully with the trustee and pay all the trustee's costs and expenses. The trustee's compensation will be structured to provide an incentive for the trustee based on the price and terms of the divestiture and the speed with which it is accomplished. After the trustee's appointment becomes effective, the trustee will file monthly reports with the United States and the Court setting forth the trustee's efforts to accomplish the required divestiture. If the divestiture is not accomplished within six months after the trustee's appointment, the trustee and the United States will make recommendations to the Court, which shall enter such orders as appropriate to carry out the purpose of the Final Judgment.
Until the divestiture is accomplished, the terms of the Hold Separate Stipulation and Order require the defendants to preserve, maintain, and continue to operate the VTNA and Mack LCOE Truck Businesses as independent, economically viable parts of ongoing competitive businesses, with the management, sales, and operations held separate from the post-merger company's other operations. The defendants will appoint two designated persons to monitor and ensure their compliance with these requirements.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal district court to recover three times the damages the person has suffered, as well as the costs of bringing a lawsuit and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no effect as prima facie evidence in any subsequent private lawsuit that may be brought against the defendants.
The United States and the defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry of the decree upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final
The proposed Final Judgment provides that the Court retains jurisdiction over this action, and the parties may apply to the Court for any order necessary or appropriate for the modification, interpretation, or enforcement of the Final Judgment.
The United States considered, as an alternative to the proposed Final Judgment, a full trail on the merits against the defendants. The United States is satisfied, however, that the diverstiture of either the VTNA or Mack LCOE Truck Business and other relief contained in the proposed Final Judgment will establish, preserve and ensure a viable competitor in the development, production, and sale of heavy duty LCOE Trucks in the United States. Thus, the United States is convinced that the proposed Final Judgment, once implemented by the Court, will prevent AB Volvo's acquisition of Renault V.I. from having adverse competitive effects.
The APPA requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty (60) day comment period, after which the Court shall determine whether entry of the proposed Final Judgment is “in the public interest.” In making that determination, the Court may consider—
(1) The competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration or relief sought, anticipated effects of alternative remedies actually considered, and any other considerations bearing upon the adequacy of such judgment;
(2) the impact of entry of such judgment upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trail.
In conducting this inquiry, “the Court is nowhere compelled to go to trail or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.”
Accordingly, with respect to the adequacy of the relief secured by the decree, a court may not “engage in unrestricted evaluation of what relief would best serve the public.”
The proposed Final Judgment, therefore, should not be reviewed under a standard of whether it is certain to eliminate every anticompetitive effect of a particular practice or whether it mandates certainty of free competition in the future. Court approval of a final judgment requires a standard more flexible and less strict than the standard required for a finding of liability. A “proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is ‘within the reaches of public interest.’ ”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: February 6, 2001.
I hereby certify under penalty of perjury that a copy of the COMPETITIVE IMPACT STATEMENT has been served upon Aktiebolaget Volvo; Volvo Trucks North America, Inc.; Renault S.A.; Renault V.I.S.A.; and Mack Trucks, Inc., by placing a copy of the aforementioned document in the U.S. Mail, directed to each of the above-named parties at the addresses given below, this 6th day of February, 2001.
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16(b)-(h), the United States of America hereby publishes below the comments received on the proposed Final Judgment in
Copies of the comments and response are available for inspection in Room 215 of the U.S. Department of Justice, Antitrust Division, 325 7th Street, NW., Washington, DC 20530, telephone: (202) 514-2481, and at the office of the Clerk of the United States District Court for the District of Columbia, United States Courthouse, Third Street and Constitution Avenue, NW., Washington, DC 20001. Copies of any of these materials may be obtained upon request and payment of a copying fee.
Pursuant to the requirements of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)-(h), the United States hereby responds to the two public comments received regarding the proposed Final Judgment in this case.
On May 3, 2000, the United States filed a civil antitrust complaint alleging that the proposed acquisition by Alcoa Inc. (“Alcoa”) of Reynolds Metals Company (“Reynolds”) would, if consummated, violate Section 7 of the Clayton Act, 15 U.S.C. 18. The Complaint alleged that the proposed merger would substantially lessen competition in the refining and sale of both smelter grade alumina (“SGA”), which is used to produce aluminum ingots, and chemical grade alumina (“CGA” or “hydrate”), an ingredient used in numerous industrial and consumer products. This competition has benefited consumers through lower prices and higher output. The proposed merger of Alcoa and Reynolds would substantially increase the concentration of the SGA and CGA markets, and the loss of competition would substantially enhance Alcoa's control over the prices of SGA and CGA, while also increasing the likelihood of anticompetitive coordination among the few remaining competitors in the SGA and CGA markets.
Simultaneously with the filing of the Complaint, the United States filed a proposed Final Judgment and Hold Separate Stipulation and Order that would permit Alcoa to complete its acquisition of Reynolds, but would require divestitures to preserve competition in the relevant markets.
Until the required divestitures are completed, the terms of a Hold Separate Stipulation and Order entered into by the parties apply to ensure that the Divestiture Assets shall be maintained and operated as independent, ongoing, economically viable, and active competitors in the manufacture and sale of SGA and CGA.
On December 14, 2000, the United States notified Alcoa, pursuant to Part VI of the proposed Final Judgment, that it had no objection to Alcoa's proposed sale of the Corpus Christi Assets to BPU Reynolds, Inc., and no objection to Alcoa's proposed sale of the Worsley Interest to Billiton plc.
The United States, Alcoa and Reynolds have stipulated that the proposed Final Judgment may be entered after compliance with the APPA. In compliance with the APPA, the United States filed the Competitive Impact Statement (“CIS”) in this docket on June 6, 2000. The Complaint, proposed Final Judgment and CIS were published in the
The Tunney Act directs the Court to determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e). In making that determination, the “court's function is not to determine whether the resulting array of rights and liabilities is one that will best serve society, but only to confirm that the resulting settlement is within the reaches of the public interest.”
The American Antitrust Institute (“AAI”) is “pleased” with the proposed Final Judgment but requests a second round of public comment once specific buyers have been found for the Divestiture Assets. AAI expresses concern that Alcoa will sell the assets to a “weak or otherwise inappropriate buyer” and believes that an additional round of comments “will help us avoid this result.”
The Department objects to AAI's proposed second round of comments for three principal reasons. First, such a procedure would be inconsistent with procedures that courts have routinely applied in reviewing proposed Final Judgments. Second, such a procedure is unnecessary given the incentives and ability that the Department has to assure that divestitures are accomplished in a manner that protects competition. Third, the procedure proposed by AAI would itself create problems that might make divestitures in antitrust cases more difficult to accomplish.
1. The Tunney Act was enacted in 1974. Since that time, the Department has negotiated hundreds of consent decrees in merger cases that call for the divestiture of assets. In each instance, the public has been accorded an opportunity to comment upon the terms of the proposed Final Judgment. Often the court has proceeded to review and then enter the proposed Final Judgment before the purchaser of the to-be-divested assets has been selected, relying upon the Department to monitor the divestiture process. The Department has been unable to identify a single instance in which a court deferred entry of a proposed Final Judgment that was otherwise in the public interest in order to receive a second round of comments regarding the divestiture selection process.
AII has offered no basis for subjecting this case to a different process. Without explanation, AAI contends that the Department is subject to “institutional pressure” to accept “any typically competent buyer” and argues that this is not a “sufficiently high standard.” Yet, the test that the Department will apply to prospective purchasers in this case is no different than it applies in any other case. The Department is no less interested in assuring the preservation of competition in the SGA and CGA markets than is AAI, but AAI has simply provided the Court with no reason to deviate from the procedures that are routinely followed in other cases that are subject to the Tunney Act.
2. The procedures urged upon the Court by AAI are unnecessary because the Department has the incentives and ability to assure that the divestiture process is conducted in a proper manner. After concluding that the proposed transaction between Alcoa and Reynolds would be anticompetitive, the Department agreed to the proposed Final Judgment as a way to preserve the competition that existed prior to Alcoa's acquisition of Reynolds. Accordingly, the proposed Final Judgment is designed to ensure that the buyers of the divested assets will compete effectively against Alcoa and others in the industry, and the Department conducts a thorough investigation, as described below, before approving any particular purchaser.
The proposed Final Judgment contains provisions that (1) give the United States sole approval of the purchaser(s) of all the divested assets, (2) set forth the standards that the United States applies in evaluating proposed purchasers, and (3) require defendants Alcoa and Reynolds to provide information to the United States about the process undertaken by the defendants to select a buyer, as well as requiring information from defendants and the prospective purchaser for evaluation of the purchaser.
With regard to the standards that the proposed buyers must satisfy to be approved by the United States, Section IV.I. of the Proposed Final Judgment states:
The divestitures, whether pursuant to Section IV or Section V of this Final Judgment, shall be made to a purchaser or purchasers with respect to whom it is demonstrated to the United States' sole satisfaction that (a) the purchaser or purchasers have the intent to compete effectively in the refining and sale of SGA or CGA; and (b) the purchaser or purchasers have the managerial, operational, and financial capability to compete effectively in the refining and sale of SGA or CGA.
The proposed Final Judgment also gives the United States the means to obtain information necessary to assess the process by which the buyer or buyers are selected, the capability of the buyers, and the transaction terms. Section VI.A. states that notice shall be given that:
[S]ets forth the details of the proposed transaction and lists the name, address, and telephone number of each person not previously identified who offered to, or expressed an interest in or a desire to, acquire any ownership interest in the business to be divested that is the subject of the binding contract, together with full details of the same.
One the United States receives such notice, Section VI.B. provides that:
The United States, in its sole discretion, may request from Defendants, the trustee, the proposed purchaser or purchasers, or any other third party additional information concerning the proposed divestitures, the proposed purchaser or purchasers, and any other potential purchaser.
The provision also establishes deadlines by which time the information must be provided.
None of the terms of any agreement between the purchaser or purchasers and Defendants, including any joint venture, governance, operation or shareholder agreements, shall give Defendants the ability to limit the purchaser's capacity or output, to raise a purchaser's costs, to lower a purchaser's efficiency, or otherwise to interfere in the ability of the purchaser or purchasers to compete effectively.
After obtaining notice that the defendants have entered into a proposed transaction with a prospective purchaser of the divested assets, the Department begins an investigation into the transaction and prospective purchaser to review the selection process and analyze the managerial and financial ability of each purchaser.
Other provisions permit the United States to review Alcoa's and Reynolds' adherence to the proposed Final Judgment's terms, both before and after the divestitures occur, by imposing obligations on Alcoa and Reynolds to provide information about their compliance with the proposed Final Judgment's divestiture provisions. Section VII.A. requires periodic affidavits “as to the fact and manner of compliance with Section IV or Section V of this Final Judgment.” The affidavits must include specific information about the defendants' attempts to solicit a purchaser or purchasers for the divested assets.
In sum, the proposed Final Judgment's provisions empower the United States to review and approve the proposed purchaser or purchasers of the assets to be divested, and with these provisions, the United States is able to ensure that the purchasers of the assets are capable of competing effectively in the relevant markets. The various factors that AAI suggests are relevant to assessing a proposed purchaser, including “financial strength, operational experience, and management quality of the new owners, as well as their history of competitive (or collusive) behavior,” are examined by the United States under the provisions of the proposed Final Judgment.
3. The procedures proposed by AAI could actually have a counterproductive effect of making divestitures more difficult to accomplish. In conducting its investigation of proposed divestitures, the Department routinely obtains and relies upon highly sensitive competitive and financial information that a proposed purchaser is willing to provide to the Department on a confidential basis but would not be willing to make available publicly. The procedure envisioned by AAI, requiring the Department to provide a public explanation of why it approved a particular purchaser so that the public could comment, would inevitably require the Department to disclose such information, even though disclosure of such information could itself be competitively undesirable.
Moreover, the procedures proposed by AAI would potentially delay the achievement of effective remedies to anticompetitive mergers. A second round of comments could delay entry of the proposed Final Judgment, which would extend the divestiture deadlines contained therein.
Any needless delay in the consummation of the divestitures would deny the public the benefits of the competition contemplated by the proposed Final Judgment.
A second round of public comment would also risk involving the Court in an inquiry that is not envisioned by the Tunney Act. Courts have repeatedly held that it is not within the “public interest” standard of Tunney Act to determine the “best” remedy or buyer.
For all of the foregoing reasons, the Court should reject AAI's proposal for a second round of public comments.
Mr. Stille questions whether Alcoa, as the world's largest aluminum company, is a monopoly and whether there is competition in the aluminum industry in the United States, but does not provide a basis to reject the proposed Final Judgment. In its investigation into what Mr. Stille refers to as the overall “aluminum industry,” the Department determined that the industry consists of numerous separate product markets with varying geographic dimensions—some are local, some are worldwide. The Department then assessed the competitive implications of the loss of an independent Reynolds in those markets in which the merging firms compete with each other. After a thorough investigation, the Department concluded that competition would likely be substantially lessened in two markets, the worldwide for SGA and the North American market for CGA. Accordingly, the Department brought a case alleging that anticompetitive effects would be likely in those markets, and obtained relief in those markets designed to remedy the competitive harms posed by the proposed acquisition. Mr. Stille's comment does not offer any basis to conclude that the relief obtained is inadequate to redress the harm alleged in the complaint.
Because he argues for a case—one focused on the “aluminum industry”—different from the one that the Department brought and does not address the relief ordered by the proposed Final Judgment, Mr. Stille's comment raises issues not relevant to this Tunney Act proceeding. The Tunney Act does not contemplate a judicial reevaluation of the government's determination of which violations to allege in the Complaint. “Constitutional questions * * * would be raised if courts were to subject the government's exercise of its
The legal precedent discussed above holds that the scope of a Tunney Act proceeding is limited to whether entry of this particular proposed Final Judgment, agreed to by the parties as settlement of this case, is in the public interest. Thus, the entry of a governmental antitrust decree forecloses no private party from seeking and obtaining appropriate antitrust remedies for defendants' activities. Defendants will remain liable for any illegal acts, and any private party may challenge such conduct if and when appropriate.
After careful consideration of the comments, the United States concludes that entry of the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violation alleged in the Complaint and is in the public interest. The United States will move the Court to enter the proposed Final Judgment after the public comments and this Response have been published in the Federal Register, as 15 U.S.C. 16(d) requires.
For Plaintiff United States of America:
Dated: January 16th, 2001.
Respectfully submitted,
I hereby certify that I have caused a copy of the foregoing United States' Response to Public Comments to be served on counsel for Defendants in this matter in the manner set forth below:
January 16, 2001.
We are pleased that the proposed Final Judgment (in conjunction with the European Commission's requirement) would have the defendants sell off all of Reynolds' current alumina-refining capacity as a condition of the lawful merger of these two companies. As one can see from the AAI's monograph analyzing the competitive impact of this merger, previously provided to the Antitrust Division of the U.S. Department of Justice (
Whether the proposed settlement of this investigation will preserve competition in the alumina market, however, cannot be determined at this time. The United States chose to condition its approval of the merger only on certain “divestitures” in the abstract, without having first approved particular buyers for the divested assets, as the antitrust agencies have sometimes done in other mergers. Given that decision, we would ask the Justice Department and the Court to allow a second phase of public comment once specific buyers have been found for the divested assets. At this point, the institutional pressure is great for the Justice Department to accept any typically competent buyer of the assets, and in this industry we feel that that may not be a sufficiently high standard. A second—possibly quite brief—public comment period would help insure that a higher standard is reached.
As Federal Trade Commission Chairman Robert Pitofsky noted in a February 17, 2000, speech about restructuring (including divestitures) in the merger-review process, “the Commission in recent years has often insisted on knowing who the buyer or buyers [of divested assets] are likely to be, and on seeing the buyers' business plan,” before entering a consent agreement.
In our view, this is a laudable trend. Consider the conclusions of a 1999 study conducted by the FTC's Bureau of Competition in collaboration with the Bureau of Economics, which Chairman Pitofsky discussed in his February speech. The study reviewed 35 orders entered into between 1990 and 1994 that required the divestiture of assets as a result of FTC action, and determined which ones had succeeded in creating viable operations in the relevant market.
This is precisely our concern in the Alcoa/Reynolds case. We believe the new owners of the divested alumina refineries must be able to run them at least as efficiently as Reynolds has done in the past, and must be at least as well-positioned as Reynolds has been to compete with Alcoa for alumina sales, in order to insure against diminished competition. These determinations must be made on a case-by-case basis, considering the financial strength, operational experience, and management quality of the new owners, as well as their history of competitive (or collusive) behavior. Our research suggests that Alcoa is an unusually well-managed company in an industry where poor, high-cost, tradition-bound management is not uncommon. Thus, many of the potential buyers of the divested assets might have high overhead costs or unsophisticated management practices that would prevent them from competing meaningfully against a newly strengthened Alcoa.
Moreover, a buyer's suitability depends on what it is likely to do with its new alumina
For the above reasons, we once again urge the United States to allow some form of public comment on the proposed Final Judgment after buyers are found for the divested assets, even if the comment period is relatively brief. This is an industry with huge barriers to entry, relatively few large players, highly inelastic demand, and a history of antitrust problems. We cannot afford to tip the scales in an anticompetitive direction by allowing Alcoa to find weak or otherwise inappropriate buyers for the assets it is being asked to divest. A public explanation of the Government's reasons for approving specific buyers and a brief public comment on the buyers will help us avoid this result.
Dear Ms. Reno: One wonders why the federal government will permit the Aluminum Company of America (ALCOA) to take over Reynolds Metals Company (REYNOLDS).
On May 15, 1911, the Supreme Court dissolved Standard Oil Company.
The 13-year-old lawsuit against AT&T by the Justice Department was settled on January 8, 1982.
Now, the Justice Department is trying to break-up Microsoft Corporation.
If the above mentioned companies were and are monopolies, why isn't ALCOA included in that category, since it will become the world's largest aluminum producer? Where is the competition in the aluminum industry in the United States.
The Department of Labor (DOL) has submitted the following public information collection requests (ICRs) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of each individual ICR, with applicable supporting documentation, may be obtained by contacting the Department of Labor. To obtain documentation contact Darrin King at (202) 693-4129 or E-Mail
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503 ((202) 395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• 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;
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• 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.
General wage determination decisions of the Secretary of Labor are issued in accordance with applicable law and are based on the information obtained by the Department of Labor from its study of local wage conditions and data made
The determinations in these decisions of prevailing rates and fringe benefits have been made in accordance with 29 CFR Part 1, by authority of the Secretary of Labor pursuant to the provisions of the Davis-Bacon Act of March 3, 1931, as amended (46 Stat. 1494, as amended, 40 U.S.C. 276a) and of other Federal statutes referred to in 29 CFR Part 1, Appendix, as well as such additional statutes as may from time to time be enacted containing provisions for the payment of wages determined to be prevailing by the Secretary of Labor in accordance with the Davis-Bacon Act. The prevailing rates and fringe benefits determined in these decisions shall, in accordance with the provisions of the foregoing statutes, constitute the minimum wages payable on Federal and federally assisted construction projects to laborers and mechanics of the specified classes engaged on contract work of the character and in the localities described therein.
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The general wage determinations issued under the Davis-Bacon and related Acts are available electronically by subscription to the FedWorld Bulletin Board System of the National Technical Information Service (NTIS) of the U.S. Department of Commerce at 1-800-363-2068.
Hard-copy subscriptions may be purchased from: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402, (202) 512-1800.
When ordering hard-copy subscription(s), be sure to specify the State(s) of interest, since subscriptions may be ordered for any or all of the seven separate volumes, arranged by State. Subscriptions include an annual edition (issued in January or February) which includes all current general wage determinations for the States covered by each volume. Throughout the remainder of the year, regular weekly updates are distributed to subscribers.
National Institute for Literacy (NIFL).
Notice of meeting.
This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the National Institute for Literacy Board (Advisory Board ). This notice also describes the function of the Advisory Board. Notice of this meeting is required under section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public of their opportunity to attend the meeting.
National Institute for Literacy, 1775 I Street, NW, Suite 730, Washington, DC 20006.
Shelly Coles, Executive Assistant, National Institute for Literacy, 1775 I Street, NW, Suite 730, Washington, DC 20006. Telephone number (202) 233-2027, email scoles@nifl.gov.
The Advisory Board is established under the Workforce Investment Act of 1998, Title II of Public Law 105-220, Sec. 242, the National Institute for Literacy. The Advisory Board consists of ten individuals appointed by the President with the advice and consent of the Senate. The Advisory Board is
The U.S. Nuclear Regulatory Commission (the Commission) is considering issuance of amendments to Facility Operating License Nos. NPF-4 and NPF-7 issued to Virginia Electric and Power Company for operation of the North Anna Power Station, Units 1 and 2, located in Louisa County, Virginia.
The proposed amendments would revise Technical Specifications (TS) Figures 3.4-2 and 3.4-3, and associated Bases, by modifying the reactor coolant system (RCS) pressure/temperature (P/T) limit curves. In addition, these amendments would extend the cumulative core burnup applicability limits for the existing Low Temperature Overpressure Protection System (LTOPS) setpoints and LTOPS enable temperature values, and implement American Society of Mechanical Engineers (ASME) Section XI, Code Cases N-514 and N-640. Code Case N-640 utilizes the ASME Section XI, Appendix A critical initiation stress intensity curve instead of the ASME Section XI, Appendix G critical arrest stress intensity curve. Code Case N-514 allows the resetting of the LTOPS power-operated relief valve lift setpoints.
Before issuance of the proposed license amendments, the Commission will have made findings required by the Atomic Energy Act of 1954, as amended (the Act) and the Commission's regulations.
The Commission has made a proposed determination that the amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facilities in accordance with the proposed amendments would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the change involve a significant increase in the probability or consequences of an accident previously evaluated[?]
The proposed changes modify the North Anna Units 1 and 2 RCS P/T limit curves and extend the cumulative core burnup applicability limits for the existing LTOPS setpoints and T
2. Does the change create the possibility of a new or different kind of accident from any accident previously evaluated[?]
The proposed changes modify the North Anna Units 1 and 2 RCS P/T limit curves, and extend the cumulative core burnup applicability of the existing LTOPS setpoints and T
3. Does the change involve a significant reduction in the margin of safety[?]
The proposed revised RCS P/T limit curves, and revised LTOPS setpoint and T
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendments until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
The filing of requests for hearing and petitions for leave to intervene is discussed below.
By March 26, 2001, the licensee may file a request for a hearing with respect to issuance of the amendments to the subject facility operating licenses and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714, which is available at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov). If a request for a hearing or petition for leave to intervene is filed by the above date, the Commission or an Atomic Safety and Licensing Board, designated by the Commission or by the Chairman of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the designated Atomic Safety and Licensing Board will issue a notice of hearing or an appropriate order.
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendments under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment requests involve no significant hazards consideration, the Commission may issue the amendments and make them immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendments.
If the final determination is that the amendment requests involve a significant hazards consideration, any hearing held would take place before the issuance of any amendments.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, or may be delivered to the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. A copy of the petition should also be sent to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and to Mr. Donald P. Irwin, Esq., Hunton and Williams, Riverfront Plaza, East Tower, 951 E. Byrd Street, Richmond, Virginia 23219, attorney for the licensee.
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for hearing will not be entertained absent a determination by the Commission, the presiding officer or the presiding Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of the factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendments dated June 22, 2000, and supplemental letter dated January 4, 2001, which are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, and accessible electronically through the ADAMS Public Electronic Reading Room link at the NRC Web site (http://www.nrc.gov).
For the Nuclear Regulatory Commission.
Office of Personnel Management.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) intends to submit to the Office of Management and Budget a request for review of a revised information collection. OPM 1530, Report of Medical Examination of Person Electing Survivor Benefits Under the Civil Service Retirement System, is used to collect sufficient information from the required medical examination regarding an annuitant's health. This information is used to determine whether the insurable interest survivor benefits election can be allowed.
Comments are particularly invited on: whether this information is necessary for the proper performance of functions of OPM, and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Approximately 500 OPM Forms 1530 will be completed annually. We estimate it takes approximately 90 minutes to complete the form. The annual burden is 750 hours.
For copies of this proposal, contact Mary Beth Smith-Toomey on (202) 606-8358, or E-mail to mbtoomey@opm.gov.
Comments on this proposal should be received on or before April 24, 2001.
Send or deliver comments to: Ronald W. Melton, Chief, Operations Support Division, Retirement and Insurance Service, U.S. Office of Personnel Management, 1900 E Street NW., Room 3349A, Washington, DC 20415.
Donna G. Lease, Team Leader, Forms Analysis and Design, Budget and Administrative Services Division, (202) 606-0623.
The S&P 500 (R) Protected Equity Fund, Inc. (“Issuer”) has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Security is currently listed and registered on the NYSE and designated for quotation on the National Market of the Nasdaq Stock Market (“Nasdaq National Market”). The Issuer believes that the dealer market of the Nasdaq National Market has proven a better trading environment for its Security than the auction market of the NYSE. As a result, the Issuer has determined to continue quotation of its Security on the Nasdaq National Market, while withdrawing it from listing and registration on the NYSE in order to avoid the continuing costs of maintaining such listing.
The Issuer's application relates solely to the withdrawal of its Security from listing on the NYSE and registration under Section 12(b) of the Act
The Issuer has stated in its application that it has complied with the requirements of NYSE Rule 500 governing the voluntary withdrawal of common stock from listing and registration on the exchange.
Any interested person may, on or before March 9, 2001, submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the NYSE and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Securities and Exchange Commission (“SEC” or “Commission”).
Notice of application for an order pursuant to section 26(b) of the Investment Company Act of 1940 (the “1940 Act”).
Secretary, SEC, 450 Fifth Street, N.W. Washington, D.C. 20549-0609. Applicants, c/o Carol Watson, Esq., General Counsel, Lincoln Benefit Life Insurance Company, 2940 South 84th Street, Lincoln, Nebraska 68506. Copies to Jorden Burt Boros Ciccehetti Berenson & Johnson, LLP, 1025 Thomas Jefferson Street, N.W., Suite 400 East, Washington, D.C. 20007-0806, Attention: Joan E. Boros, Esq.
Joyce M. Pickholz, Senior Counsel, or Keith E. Carpenter, Branch Chief, Office of Insurance Products, Division of Investment Management, at (202) 942-0670.
The following is a summary of the application. The complete application is available for a fee from the Public Reference Branch of the SEC, 450 Fifth Street, N.W., Washington, DC 20549 (tel. (202) 942-8090).
1. Lincoln Benefit is a stock life insurance company organized under the laws of the state of Nebraska in 1938. Lincoln Benefit is an indirect wholly-owned subsidiary of the Allstate Corporation.
2. The VA Account and the VL Account are segregated asset accounts of Lincoln Benefit. Lincoln Benefit established the VA Account and the VL Account in 1992, in accordance with the laws of the state of Nebraska. The VA Account and the VL Account are registered as unit investment trusts under the 1940 Act. Lincoln Benefit issues certain variable annuity contracts through the VA Account and variable life insurance policies through the VL Account (together, “Contracts”). The variable interests under the Contracts are registered with the SEC under the Securities Act of 1933 (the “1933 Act”).
3. The IAI Applicant was organized as a Minnesota corporation on September 16, 1993. The IAI Applicant currently issues shares in three investment portfolios: IAI Regional Portfolio, IAI Balanced Portfolio, and IAI Reserve Portfolio (collectively the “Replaced Portfolios”). Shares of each of the Replaced Portfolios were sold only to the Separate Account Applicants for the purpose of funding certain Contracts. The IAI Applicant is registered as an open-end management investment company under the 1940 Act and its shares are registered as securities under the 1933 Act. The Replaced Portfolios are managed by Investment Advisors, Inc. (“IAI”). IAI is not affiliated with Lincoln.
4. Lincoln Benefit, on behalf of the Separate Account Applicants, proposes to substitute Class A shares of the Bond Portfolio of the Scudder Variable Life Investment Fund (“SVLIF”) for shares of the IAI Reserve Portfolio. SVLIF was organized as a Massachusetts business trust on July 16, 1985. It offers its shares in nine series and two classes. Class A Shares, which the Separate Account Applicants purchase, are offered at net asset value and are not subject to Rule 12b-1 fees. SVLIF is registered as an open-end management investment company under the 1940 Act, and its shares are registered as securities under the 1933 Act. Both classes of shares are sold only to insurance company separate accounts to fund variable life insurance policies and variable annuity contracts. Scudder Kempter Investments, Inc. serves as investment adviser to, among others, the SVLIF Bond Portfolio.
5. Lincoln Benefit, on behalf of the Separate Account Applicants, also proposes to substitute Institutional Class shares of the Balanced Portfolio of the Janus Aspen Series (“JAS”) for shares of the IAI Balanced Portfolio, and Institutional Class shares of the JAS Growth Portfolio for shares of the IAI Regional Portfolio. JAS was organized as a Delaware business trust on September 13, 1993. It offers its shares in thirteen portfolios and two or three classes, depending on the portfolio. Institutional Shares, which the Separate Account Applicants purchase, are offered at net asset value and are not subject to Rule 12b-1 fees. Institutional Shares are sold to insurance company separate accounts to fund variable life insurance policies and variable annuity contracts and to certain qualified plans. JAS is registered as an open-end management investment company under the 1940 Act and its shares are registered as a securities under the 1933 Act. Janus Capital serves as investment adviser to, among others, the JAS Balanced Portfolio and the JAS Growth Portfolio. (The SVLIF Bond Portfolio, JAS Balanced Portfolio, and JAS Growth Portfolio, are referred to collectively as the “Replacement Portfolios”.)
6. IAI has announced publicly that a management team led by its president and chief investment officer has agreed in principle to acquire most of the business of IAI from its parent. In connection with this transaction, IAI is exiting the mutual fund business and the IAI Applicant has decided to discontinue making the Replaced Portfolios available as underlying investment options for variable insurance products. The IAI Applicant intends to liquidate the Replaced Portfolios as soon as possible after a substitution order is obtained from the SEC.
7. The IAI Applicant wishes to close the Replaced Portfolios primarily because IAI is exiting the mutual fund business. Because the Replaced Portfolios have not attracted sufficient Contract owner (“Owner”) interest, IAI has suffered annual operating losses on the Replaced Portfolios and has needed to provide continual fee and expense waivers for the IAI Reserve Portfolio since its inception. In addition, the Replaced Portfolios are not attracting meaningful asset growth and IAI does not foresee significant future growth in the Replaced Portfolios. The small size of the Replaced Portfolios also makes it difficult to manage their assets efficiently.
8. Lincoln Benefit has determined that in light of the impending closure of the Replaced Portfolios, it would be best for the company and the Owners to substitute the shares of the Replaced Portfolios with shares of other mutual funds having similar objectives that are currently available under the Contracts. Accordingly, Applicants request the SEC's approval to effect the following substitutions (collectively referred to as the “Substitutions”) :
(a) shares of SVLIF Bond Portfolio (Class A) for shares of IAI Reserve Portfolio;
(b) shares of JAS Balanced Portfolio (Institutional Class) for shares of IAI Balanced Portfolio; and
(c) shares of JAS Growth Portfolio (Institutional Class) for shares of IAI Regional Portfolio. (The SVLIF Bond Portfolio, JAS Balanced Portfolio, and JAS Growth Portfolio are referred to collectively as the “Replacement Portfolios”.)
9. Lincoln Benefit will redeem for cash all of the shares of each Replaced Portfolio that it currently holds on behalf of the Separate Account Applicants at the close of business on the date selected for the Substitutions. Lincoln Benefit, on behalf of each Separate Account Applicant, will
10. The full net asset value of the redeemed shares held by the Separate Account Applicants will be reflected in the Owners' accumulation unit or annuity unit values following the Substitutions. Lincoln Benefit and IAI have undertaken to assume all transaction costs and expenses relating to the Substitutions, including any direct or indirect costs of liquidating the assets of the Replaced Portfolios, so that the full net asset value of redeemed shares of the Replaced Portfolios held by the Separate Account Applicants will be reflected in the Owners' accumulation unit or annuity unit values following the Substitutions.
11. Applicants anticipate that until the Substitutions occur, IAI will conduct the trading of portfolio securities in accordance with the investment objectives and strategies stated in the Replaced Portfolios' prospectuses and in a manner that provides for the anticipated redemptions of shares held by the Separate Account Applicants.
12. As part of the Substitutions, Lincoln Benefit will combine the sub-accounts of the Separate Account Applicants currently invested in the Replaced Portfolios with the sub-accounts currently invested in the corresponding Replacement Portfolios. Applicants state that each of the Contracts gives Lincoln Benefit the right to eliminate or add sub-accounts, combine two or more sub-accounts, or substitute one or more underlying mutual funds or portfolios for others in which one or more sub-accounts are invested. These contractual provisions have also been disclosed in the prospectuses or statements of additional information relating to the contract. Lincoln Benefit will schedule the Substitutions to occur after the issuance of the requested order and any required state insurance department approvals.
13. Applicants represent that affected Owners will not incur any fees or charges as a result of the Substitutions, nor will the rights or obligations of Lincoln Benefit under the Contracts be altered in any way. The proposed Substitutions will not have any adverse tax consequences to Owners. The proposed Substitutions will not cause Contract fees and charges currently being paid by existing Owners to be greater after the proposed Substitutions than before the proposed Substitutions. The proposed Substitutions will not be treated as transfers for the purpose of assessing transfer charges. Lincoln Benefit will not, with respect to shares substituted, exercise any right it may have under the Contracts to impose additional restrictions on transfers for a period of at least 30 days following the proposed Substitutions.
14. Lincoln Benefit has supplemented the prospectuses for the Contracts to reflect the Substitutions. Within five days after the Substitutions, Lincoln Benefit will send to Owners written notice of the Substitutions, identifying the shares of the Replaced Portfolios that have been eliminated and the shares of the Replacement Portfolios that have been substituted. Lincoln Benefit will include in such mailing the applicable prospectus supplement for the Contracts of the Separate Account Applicants describing the Substitutions. Lincoln Benefit does not intend to mail a copy of the prospectus for the Replacement Portfolios to the Owners, because they already will have received a copy of those prospectuses in the ordinary course. Owners will be advised in the Notice that for a period of thirty-one days from the mailing of the Notice (the “Free Transfer Period”), Owners may transfer all assets, as substituted, to any other available subaccount without limitation or charge. In addition, Owners of VA Contracts, who as a result of the Substitutions are receiving variable annuity payments based on the Replacement Portfolios, will be permitted during the Free Transfer Period to transfer the substituted amounts to other sub-accounts, without limitation or charge, notwithstanding any limitation on such transfers in the variable annuity Contracts.
1. Section 26(b) of the 1940 Act provides that “[i]t shall be unlawful for any depositor or trustee of a registered unit investment trust holding the security of a single issuer to substitute another security for such security unless the [SEC] shall have approved such substitution.” Section 26(b) of the 1940 Act was enacted as part of the Investment Company Act Amendments of 1970. Prior to the enactment of these amendments, a depositor of a unit investment trust could substitute new securities for those held by the trust by notifying the trust's security holders of the substitution within five (5) days after the substitution. In 1966, the SEC, concerned with the high sales charges then common to most unit investment trusts and the disadvantageous position in which such charges placed investors who did not want to remain invested in the substituted security, recommended that Section 26 be amended to require that a proposed substitution of the underlying investments of a trust receive prior SEC approval.
2. Applicants' submit that the purposes, terms, and conditions of the Substitution are consistent with the principles and purposes of Section 26(b) and do not entail any of the abuses that Section 26(b) is designed to prevent. Owners will be assessed no charges whatsoever in connection with the Substitutions and their annual fund expense ratios are expected to decrease, in most cases significantly. In addition, to the extent an Owner does not wish to participate in the Substitutions, he or she is free to transfer to any other option available under the relevant Contract prior to the Substitutions and after the Substitutions without any transfer fee. Moreover, as described below, Owners will be substituted into a Replacement Portfolio whose investment objectives, policies and expenses are substantially similar or identical in all material respects to those of the Replaced Portfolio.
3. Applicants submit that the Substitutions do not present the type of costly forced redemption or other harms that Section 26(b) was intended to guard against and is consistent with the protection of investors and the purposes fairly intended by the 1940 Act for the following reasons:
(a) the Substitutions will continue to fulfill Owners' objectives and risk expectations, because the SVLIF Bond Portfolio and JAS Balanced Portfolio have objectives, policies, and restrictions substantially identical in all material respects to the objectives, policies, and restrictions of the corresponding Replaced Portfolios and, of the Portfolios currently available under the Contracts, the JAS Growth Portfolio has investment objectives, policies and restrictions most similar to those of the IAI Regional Portfolio;
(b) after receipt of the Notice informing an Owner of the Substitutions, an Owner may request that his or her assets be reallocated to another sub-account at any time during the Free Transfer Period without any limitation or charges. This right will be granted to Owners of VA Contracts who are receiving variable payments based on the Replaced Portfolios, even though the relevant VA Contracts usually do not permit transfer during the Annuity
(c) the Substitutions will be at net asset value of the respective shares, without the imposition of any transfer or similar charge;
(d) Lincoln Benefit and IAI have undertaken to assume all expenses and transaction costs, including, but not limited to, legal and accounting fees and any brokerage commissions, in connection with the Substitutions;
(e) the Substitutions will in no way alter the contractual obligations of Lincoln Benefit or the rights and privileges of Owners under the Contracts;
(f) the Substitutions will in no way alter the tax benefits to Owners;
(g) the Substitutions are expected to confer certain economic benefits on Owners by virtue of enhanced asset size and lower expenses, as described below; and
(h) at the time of the Substitutions, the aggregate fees and expenses under each Replacement Portfolio are expected to be lower than those of the corresponding Replaced Portfolio. Applicants agree that Lincoln Benefit will not increase the contract charges or the total separate account charges (net of any waiver or reimbursement) of the sub-accounts that invest in the Replacement Portfolios for those Contract Owners affected by the Substitutions for a period of two years from the Substitution Date. Lincoln Benefit further agrees that if the total operating expenses for any Replacement Portfolio (taking into account any expense waiver or reimbursement) for any fiscal quarter for the two-year period following the Substitution Date exceed on an annualized basis the relevant Maximum Portfolio Expense Limit as stated below (which is the net expense ratio for each corresponding Replaced Portfolio for the fiscal year ended December 31, 1999), Lincoln Benefit will make a corresponding reduction (through waiver or reimbursement) in the separate account expenses for that quarter of the sub-account that invests in such Replacement Portfolio for Contract Owners who were affected by the Substitution. The Maximum Portfolio Expense Limits for the Replacement Portfolios are: 1.01% for the SVLIF Bond Sub-account; 0.97% for the JAS Balanced Sub-account; and 0.88% for the JAS Growth Sub-account.
4. Applicants assert that the Replacement Portfolios and the Replaced Portfolios will have investment objectives and policies that are substantially the same or identical in all material respects.
5. IAI Reserve Portfolio's investment objective is to provide high levels of capital stability and liquidity and, to the extent consistent with these primary objectives, a high level of current income. The IAI Reserve Portfolios pursues its objectives by investing primarily in a diversified portfolio of investment grade debt securities. In order to achieve the objectives of capital stability and liquidity, the IAI Reserve Portfolio maintains a dollar weighted average maturity of its investment portfolio of twenty-five (25) months or less.
6. SVLIF Bond Portfolio's investment objective seeks to provide a high level of income consistent with ha high quality portfolio of debt securities. The SVLIF Bond Portfolio pursues its objective by investing at least 65% of its assets in bond. The SVLIF Bond Portfolio is permitted to invest in corporate bonds, U.S. government and agency bonds, mortgage and asset-backed securities and foreign debt securities. Under normal conditions, the SVLIF Bond Portfolio invests at least 65% of its assets in bonds rated in the top three grades of credit quality. While the SVLIF Bond Portfolio may invest in bonds of any maturity, its managers intend to seek to keep the average duration between four to six years.
7. IAI Balanced Portfolio's investment objective is to maximize total return. The IAI Balanced Portfolio pursues its objective by investing in a broadly diversified portfolio of stocks and debt securities. The IAI Balanced Portfolio's investments in common stocks are primarily in large capitalization companies ($1 billion capitalization at the time of purchase) that IAI believes have solid competitive advantages and extremely high financial quality at attractive fundamental valuations. The IAI Balanced Portfolio is also permitted to invest in all types of debt securities, including securities issued by the U.S. government or its agencies, mortgage and asset-backed securities, zero coupon securities, payment-in-kind bonds and high-yield, non-investment grade debt securities commonly referred to as “Junk Bonds.”
8. JAS Balanced Portfolio's investment objective is to seek long-term capital growth, consistent with preservation of capital and balanced by current income. Under normal conditions, JAS Balanced Portfolio pursues its objective by investing 40-60% of its assets in common stocks selected for their growth potential and 40-60% its assets in all types of debt and equity securities which Janus Capital believes have income potential, including investing up to 35% of its assets in Junk Bonds. JAS Balanced Portfolio is also permitted to invest in foreign securities, indexed/structured securities, options, futures, swaps and special situations.
9. IAI Regional Portfolio's investment objective is capital appreciation. The IAI Regional Portfolio pursues its investment objective by investing primarily in the common stocks of issuers headquartered in Minnesota, Wisconsin, Iowa, Illinois, Nebraska, Montana, North Dakota and South Dakota.
10. JAS Growth Portfolios investment objective is to seek long-term capital growth in a manner consistent with the preservation of capital. The JAS Growth Portfolio pursues its investment objective by investing in the common stocks of issuers, of any size, selected by Janus Capital for their growth potential. The LAS Growth Portfolio generally invests in larger more established companies. The JAS Growth Portfolio is also permitted to invest up to 35% of its assets in Junk Bonds as well as foreign equity securities, debt securities, indexed/structured securities, options, futures, swaps and special situations. The JAS Growth Portfolio is also permitted to invest in derivatives for hedging and non-hedging purposes.
11. According to the Applicants, no other investment option currently available under the Contracts has the same regional focus as the IAI Regional Portfolio. Further, Applicants state that they are not aware of any other mutual fund available for purchase by insurance company separate accounts that has that regional focus. From among the current investment options under the Contracts, JAS Growth Portfolio is the nearest math to the IAI Regional Portfolio, because both Portfolios have capital growth as a primary investment objective and both Portfolios use growth potential as a primary criteria in selecting stock in which to invest.
12. Accordingly, Lincoln Benefit has specifically determined that the Replacement Portfolios are appropriate investment vehicles for Owners who have allocated value to the Replaced Portfolios and that the Substitutions will be consistent with Owners' investment objectives and risk expectations.
13. Applicants submit that the fees and expenses of the Replacement Portfolios will be less than the Replaced Portfolios' fees and expenses, even though Lincoln Benefit is entitled to receive a service fee from the investment advisers for each of the
15. As shown in the following table, the total assets currently invested under the Contracts in the sub-accounts investing in the Replacement Portfolios are significantly greater than the total assets in the sub-accounts investing in the Replaced Portfolios.
16. The total returns of the Replacement Portfolios generally have been higher than the returns of corresponding Replaced Portfolios. Applicants submit that while there is no guarantee that past performance will continue, the return data provided support their view that the Substitutions are not expected to give rise to diminution in performance or other adverse effects on Contract values.
For the reasons summarized above, Applicants assert that the requested order meets the standards set forth in section 26(b) of the 1940 Act, and should, therefore, be granted.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The CBOE proposes to amend its rules to allow for $0.50 strike price intervals for options based on certain Index Portfolio Shares (“IPSs”).
The text of the proposed rule change is available at the Office of the Secretary, CBOE and at the Commission.
In its filing with the Commission, the CBOE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CBOE has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange is proposing to establish $0.50 strike price intervals for options based on certain IPSs. More specifically, the Exchange intends to list options on the iShares S&P 100 Index Fund (ticker symbol “OEF”), an IPS which currently trades on the Exchange. OEF is an exchange-traded fund that represents ownership in an open-end management company established to hold a portfolio of stocks replicating the S&P Index (“Index” or “S&P 100”). It holds substantially all of the securities of the Index in approximately the same proportions as reflected in the Index.
The Exchange will list options on OEF pursuant to the criteria set forth in
The Exchange recognizes that adding series of options for trading under the proposed rule change may result in a slight increase in message traffic; however, the Exchange represents that it has the necessary systems capacity to support any additional series of options that may be added under the proposed rule.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The CBOE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change: (1) Does not significantly affect the protection of investors or the public interest; (2) does not impose any significant burden on competition; and (3) does not become operative for 30 days from the date of filing, 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)
A proposed rule change filed under Rule 19b-4(f)(6) may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange seeks to have the proposed rule change become operative on January 31, 2001, to allow
The Commission believes that it is consistent with the protection of investors and the public interest that the proposed rule change become operative immediately as of January 31, 2001.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the CBOE. All submissions should refer to File No. SR-CBOE-01-02 and should be submitted by March 16, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq proposes to amend NASD Rule 7010(g) to create “Nasdaq ACT,” an internet-based means for member firms to report trades to the Automated Confirmation and Transaction (“ACT”) Service. Nasdaq also proposes to establish fees to be assessed for the use of Nasdaq ACT. The text of the proposed rule change is below. Proposed new language is in italics. Proposed deletions are in brackets.
(h)-(p) No Change.
In its filing with the Commission, Nasdaq included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to amend NASD Rule 7010(g) to create Nasdaq ACT, an internet-based ACT service that will permit NASD members to report trades to ACT. Nasdaq ACT will offer functionality that is identical to that offered through the current modes of reporting to ACT, as described below. Nasdaq also proposes to establish fees to be assessed for the use of Nasdaq ACT.
ACT is the Nasdaq system used by members to report and compare trades for clearance and settlement, and to transmit trade reports for regulatory purposes and public dissemination. After members enter trade information into ACT (as required by NASD ACT and trade-reporting rules),
There generally are three methods to report trades to ACT: (1) Ordering a Nasdaq Workstation II service (“NWII”); (2) using the Nasdaq ACT Service Desk; or (3) having another firm that has access to ACT through the NWII trade report (commonly known as a “give-up” relationship). Each mode of trade-report entry accomplishes the same result, but they have different characteristics. The NWII offers the full-range of ACT functionality, including entry of trade reports, ACT trade scan, comparison of trade reports, No/Was trade corrections, trade statistics, risk management requests, risk management scan, risk management alerts, clearing broker scan, and various clearing alerts. NWII is the optional delivery mechanism for large NASD members, many of whom use the wide-ranging functionality that it offers in addition to ACT.
The ACT Service Desk was designed as a cost effective method of trade reporting for firms that effect very few transactions in Nasdaq securities or other securities traded in the over-the-counter market.
In a “give-up” arrangement, a member who reports or accepts a trade in ACT on behalf of another member would identify in the ACT screen give-up box the member on whose behalf the trade was being reported or accepted. Where the executing broker accepts a trade that has been reported by another member, the reporting member would have to report the trade with the executing broker as the contra-side and identify the prime brokerage customer as the contra-side give-up. The executing broker may then accept the trade as presented. This would avoid a second trade report and ensure that the prime brokerage customer is identified to the NASD.
Nasdaq Act will provide the same basic ACT features and functions offered through the NWII service. In the case of Nasdaq ACT, however, clients that use some but not all ACT functionality will have the opportunity to reduce their expenses by purchasing a scaled-back version of the service. Specifically, users will be able to purchase Nasdaq ACT with full ACT functionality for $300 per month per terminal. On the other hand, users that need only the trade entry and trade query function (and not risk management) and who enter an average of 20 or fewer trades per day per month will be assessed $150 per month per terminal.
Nasdaq believes that Nasdaq ACT will be a cost-effective alternative for many users that are currently accessing ACT. For instance, clearing firms use ACT to manage their risk with their clients to ensure that the clients to not extend their trading activity beyond their “cap” limits. Back-office personnel use ACT to compare trades effected on their trading floors. These users do not take advantage of the quote engine or the other execution systems offered on NWII. In addition, some market participants may choose to use Nasdaq ACT to serve as a back-up or redundancy for their NWII terminals.
Nasdaq believes the proposed rule change is consistent with Section 15A(b)(6) of the Act,
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments were neither solicited nor received.
Because the foregoing 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 for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Nasdaq has requested that the Commission accelerate the operative date. The Commission finds good cause to designate the proposal to become immediately operative upon filing, because such designation is consistent with the protection of investors and the public interest. Acceleration of the operative date will allow member firms that wish to report trades to ACT via the internet to access the service immediately. The Commission finds no reason to require NASD members to wait 30 days before participating in a service that is designed to be both efficient and cost-effective. For these reasons, the Commission finds good cause to designate that the proposal become operative upon filing.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-01-05 and should be submitted by March 16, 2001.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On March 8, 2000, the Pacific Exchange, Inc. (“PCX” or “Exchange”) filed with the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Below is the final text of the approved portions of the proposed rule change, as amended. Proposed new language is
Rule 6.87
[(d)] Firms entering orders for execution on Auto-Ex may not divide them up in order to make their parts eligible for entry into Auto-Ex.]
Rule 6.88 (a)-(b)-No change.
In 1990, the Commission approved the Exchange's POETS system on a pilot program basis and, in 1993, POETS was approved permanently.
The Exchange proposes several definitional changes to PCX Rule 6.87 pertaining to Auto-Ex.
In addition, the Exchange proposes to add new PCX Rule 6.87(c) to require Order Entry Firms, as defined in proposed PCX Rule 6.87(a), to register with the Exchange as a condition of having access to Auto-Ex. Such registration will require that an Order Entry Firm execute an Order Entry Firm Application Agreement with the Exchange; comply with all applicable PCX options trading rules and procedures; provide written notice to all Users regarding proper use of Auto-Ex; and maintain adequate procedures and controls that will permit the Order Entry Firm to effectively monitor and supervise the entry of electronic orders by all Users. The Exchange represents that it is proposing these rule changes to safeguard the use of Auto-Ex and to obligate Order Entry Firms to inform and supervise Users to ensure compliance with PCX rules and procedures. The Exchange also represents that these proposed changes will protect investors and the public from changes in options prices or markets caused by uses of Auto-Ex that the Exchange believes are prohibited.
Furthermore, the Exchange proposes to add new PCX Rule 6.87(d) to codify certain practices that otherwise are prohibited on Auto-Ex. Proposed PCX Rule 6.87(d) lists four prohibited uses of Auto-Ex: (1) Entering an order for an account that is ineligible for execution on Auto-Ex; (2) dividing an order involving a single investment decision into multiple smaller lots for the purposes of meeting the order size requirements for Auto-Ex eligibility, which includes entering multiple orders to trade the same option issue that are on the same side of the market (whether short or long) and multiple orders to trade the same series for the account of the same beneficial owner within the same fifteen second period; (3) entering orders via POETS to perform a market making function; and (4) effecting transactions that constitute manipulation as provided in PCX Rule 4.6(a)
First, with regard to the type of orders eligible for execution on Auto-Ex, the Exchange proposes that all orders not eligible under subsection (b) of proposed PCX Rule 6.87 be deemed ineligible orders. The Exchange represents that this proposed rule change will clarify what orders are eligible for execution on Auto-Ex.
Second, the Exchange proposes to replace PCX Rule 6.87(d) with PCX Rule 6.87(d)(2). PCX Rule 6.87(d) states that “firms entering orders for execution on Auto-Ex may not divide them up in order to make their parts eligible for entry into Auto-Ex.” The Exchange proposes to replace PCX Rule 6.87(d) with new PCX Rule 6.87(d)(2), which prohibits dividing an order involving a single investment decision into multiple smaller lots for the purpose of meeting the order size requirements for Auto-Ex eligibility. Under proposed PCX Rule 6.87(d)(2), multiple orders to trade the same option issue that are on the same side of the market (whether short or long) and multiple orders to trade the same series entered within any fifteen second period for the account of the same beneficial owner will be presumed to be based on a single investment decision. Multiple orders to trade the same option issue that are on the same side of the market (whether short or long) and multiple orders to trade the same series entered outside any fifteen second period for the account of the same beneficial owner will be deemed to be separate investment decision; provided, however, that no Order Entry Firm may divide up or permit an existing order to be divided up to make its parts eligible for entry into Auto-Ex.
Third, the Exchange proposes to add PCX Rule 6.88(c) to prohibit Users from using POETS to perform market making functions and to specify in rule 6.87(d) that entering such orders via POETS is a prohibited practice. PCX Rule 6.32 defines a Market Maker as an individual who is registered with the Exchange for the purpose of making transactions as dealer-specialist on the Floor of the Exchange. With regard to entering orders via POETS to perform a market making function, proposed PCX Rule 6.88(c) prohibits a member or associated person of a member from using POETS on a regular and continuous basis to simultaneously execute orders to buy and sell series for the account of the same beneficial holder. In making the determination of whether a member or person is using POETS to perform a market making function, the Exchange will consider the following factors: the simultaneous or near-simultaneous entry of limit orders to buy and sell the same option; and the entry of multiple limit orders at different prices in the same option series. The Exchange proposes this change to prohibit Users from acting as Market Makers through the use of POETS.
PCX Rule 6.90(d)(3) states that “[t]erminals may be used to receive brokerage orders only. Terminals may not be used to perform a market making function. No Member may knowingly use a Terminal on a regular and continuous basis to simultaneously represent orders to buy and sell option contracts in the same series for the account of the same beneficial holder. If the Exchange determines that a person or entity has been sending, on a regular and continuous basis, orders to simultaneously buy and sell option contracts in the same series for the account of the same beneficial holder, the Exchange may prohibit orders for the
Finally, the Exchange proposes to add PCX Rule 6.8(d)(4) to codify, as a prohibited practice, effecting transactions that constitute manipulation as provided in PCX Rule 4.6(a) and SEC Rule 10b-5 under the Act. The Exchange represents that this proposed change will prevent members or Users from using Auto-Ex to violate PCX and SEC anti-manipulation rules and to protect investors and the public.
The Commission received four comment letters regarding the proposed rule change with one commenter supporting, and three commenters opposing, the proposed rule change.
Morrison & Foerster stated that the proposal would “protect investors and promote the public interest by prohibiting certain manipulative practices with respect of the use of * * * AutoEx * * * on the Pacific Exchange and [would] make the rules prohibiting such manipulative practices easier to enforce.”
Interactive Brokers and OutSource International objected to the proposal because, in their view, it imposed restrictions on the customer's investment activities and attempted to determine the customer's subjective intent in placing certain orders. The commenters suggested that the PCX should instead implement an objective systems/software change to Auto-Ex, similar to the SOES system of the National Association of Securities Dealers, Inc. (“NASD”). These software changes would automatically prevent a member from entering an order into Auto-Ex within fifteen seconds after receiving an Auto-Ex execution.
Interactive Brokers stated that the PCX should not be able to “reach past its members and regulate the manner in which customers themselves formulate and express their investment decisions.”
After careful review, the Commission finds that the proposed rule change, as amended, except for the portion of the proposal relating to the execution of broker-dealer orders on Auto-Ex,
The Commission finds that the Exchange's proposed provisions under PCX Rule 6.87(a), codifying and defining the terms “Auto-Ex,” “User,” and “Order Entry Firm,” will help provide Auto-Ex participants with more clarity and guidance and a better understanding of the use of these terms as used in the PCX rules governing Auto-Ex.
The Commission also finds that the Exchange's requirement of registration of all Order Entry Firms may provide safeguards on the use of Auto-Ex. Under proposed PCX Rule 6.87(c), Order Entry Firms must register by entering into an Auto-Ex Order Entry Firm Application Agreement with the Exchange; comply with all PCX options trading rules and procedures; provide written notice to all Users regarding the proper use of Auto-Ex; and maintain adequate procedures and controls to allow Order Entry Firms to monitor and supervise the entry of electronic orders by all Users to prohibit the practices specified in paragraph (d) of the rule.
These prohibited practices are: (1) Entering in ineligible order; (2) dividing an order involving a single investment decision into multiple smaller lots for purposes of meeting the order size requirements; (3) entering orders via POETS to perform a market making function; and (4) effecting manipulative transactions. Commenters mainly raised concerns about the single investment decision presumption of the original proposal. The Exchange revised the proposal to provide an objective safe-harbor rule that would eliminate the subjective single investment decision presumption. Initially, the Exchange
In response to the commenters' concerns, however, the Exchange added an objective safe-harbor provision, PCX Rule 6.87(d)(2)(B), providing that all orders entered outside of any fifteen second time period for the account of the same beneficial owner will be deemed to be separate investment decisions, and therefore will not be presumed to be a part of a single investment decision.
Furthermore, the Exchange responded to commenters' concerns by revising the proposed rule language to reflect that the proposal will only apply to multiple orders to trade the same option issue that are on the same side of the market (whether short or long) and multiple orders to trade the same option series. The Commission believes that this provision is appropriate and will allow Users of Auto-Ex more flexibility in placing their orders.
The Exchange also made several other modifications to respond to the commenters' concerns. The Exchange eliminated its proposed provision relating to the nullification of orders, which would have allowed PCX floor officials to execute only the first of orders equaling or adding up to the Auto-Ex size requirement and nullifying any others orders.
Finally, the Commission recognizes that proposed PCX Rule 6.88(c), prohibiting the use of POETS to perform a market making function, is consistent with other rules adopted by other exchanges to preclude persons from performing a market making function unless they are registered as market makers.
The Commission finds good cause for approving Amendments No. 2 and 3 to the proposed rule change, except for those portions relating to the execution of broker-dealer orders on Auto-Ex, prior to the thirtieth day after the amendments are published for comment in the
Interested persons are invited to submit written data, views, and arguments concerning Amendments No. 2 and 3, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. 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 Room. Copies of such filing will also be available for inspection and copying at the principal office of the PCX. All submissions should refer to File No. SR-PCX-00-05 and should be submitted by March 16, 2001.
For the foregoing reasons, the Commission finds that the proposed rule change, and Amendments No. 2 and 3 thereto, except for portions relating to the execution of broker-dealer orders on Auto-Ex, are consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, and, in particular, with section 6(b)(5).
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Overseas Absentee Ballot Questionnaire.
Department of State.
The Department of State has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995.
The proposed information collection is published to obtain comments from the public and affected agencies. Emergency review and approval of this collection has been requested from OMB by February 16, 2001. If granted, the emergency approval is only valid for 180 days. Comments should be directed to the State Department Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20530, (202) 395-5871.
Public comments, or requests for additional information, regarding the collection listed in this notice should be directed to (Linda Topping, Office of Inspector General, (202) 647-9450, U.S. Department of State, Washington, DC 20520.
The United States Department of State announces an open competition for an assistance award. Nongovernmental organizations may apply to design and manage a multi-faceted program that consists of the following: (1) Azikiwe Professional Fellowships; and, (2) the COMESA (Common Market of East and Southern Africa) Professional Internship Program.
The Azikiwe Professional Fellowship Program seeks to establish linkages between young Nigerians and their American counterparts in various sectors. The program is divided into two groups: the “Digital Divide Internships” and “Gatekeepers for the Free Flow of Information.”
• Digital Divide Internships will consist of six five-week internships for leaders who will play key roles in bringing Internet connectivity to Nigerian government offices and universities. They would spend one week of orientation at a university before going on to month-long internships at university departments or local and state government offices.
• Gatekeepers for the Free Flow of Information will consist of six five-week internships for library professionals involved in overall management and policy-making in key governmental and private libraries and journalists interested in enhancing their professional skills. The program would demonstrate the crucial role of international technology in modern libraries, train the fellows in the use of the Internet and creation of web pages, and demonstrate the best ways to integrate these technologies into Nigerian libraries. Journalistic Interns would focus on improving professional skills (freedom of press, speech), responsible reporting, and constitutional issues. In both cases, Interns would have a two-week orientation program in Washington (at DoS, Library of Congress, Congressional Research Service, media and newspapers, newspaper libraries, universities and communication organizations, etc.). Following the Washington program, the Interns would be placed for three-weeks in an institution with similar interests to their home organization or media or newspapers.
Both sets of professional fellows would be required to develop a plan of short, medium, and long-term goals for their respective institutions before returning home.
The COMESA program will consist of approximately 10-12 internships lasting from 8-12 weeks with corporations, universities, or trade organizations (particularly those involved in NAFTA, CBI, or WTO issues). The program will stress the development of strong management, administrative, finance, negotiation, and organizational skills among select members of the COMESA Secretariat. In addition, the Interns will develop strategies and techniques focused on learning and developing management skills appropriate for a sub-regional organization. The Program will seek to assist the COMESA Secretariat in enhancing its capacity to handle its burgeoning role as a regional organization focused on economic and trade issues. The AF/PD Professional Internship Program seeks to enhance the professional skills and abilities of the participants by developing the Interns' organizational, Internet, and managerial skills. All Interns will be allotted two days in Washington, DC at the end of their internship to discuss and review the program with AF/PD staff and colleagues. An additional multiplier effect of the program will be to develop future linkages between American and African universities and institutions.
A cooperative agreement will be subject to the availability of funds.
The contract agency will be expected to work closely with AF/PD and Public Affairs Sections of U.S. Embassies in Africa in selecting participants, and in developing and implementing this program.
22 U.S.C.-2452(a)(2).
Eligible applicants include all nongovernmental institutions, private organizations, and commercial entities.
The funding level for this Cooperative Agreement shall be no higher than $374,500. The funding is available for one calendar year which begins at the time the Cooperative Agreement is signed.
Continuing awards within the project period will be made on the basis of satisfactory progress and the availability of funds.
Primary objectives for the AF/PD Intern Program are to develop professional skills of a variety of individuals in the areas of Internet connectivity, library science, journalism, business and trade development, and the management and administration of selected sub-regional organizations. Moreover, the program is designed to enhance linkages between American institutions, business, media, entrepreneurs, and universities, with African counterparts working in specific professions.
Reporting requirements will be developed in consultation with AF/PD.
Technically eligible applicants will be competitively reviewed under 9 criteria. The criteria are: (1) Cost effectiveness and cost sharing; (2) Program development, planning, and the ability to achieve objectives and time-lines; (3) Follow-up—Ability to conduct Africa-wide follow-up activities on a minimum biannual basis (4) Institutional capacity; (5) Ability to objectively evaluate program achievements, and provide a final program report; (6) “Multiplier Effect/Impact”—strengthening of bilateral and multilateral linkages and understanding; (7) Ability to coordinate work with AF/PD and Public Affairs Sections at U.S. Embassies; (8) Support for Diversity and gender balance; and (9) Cultural Sensitivity based on country norms.
Projects that involve the collection of information from 10 or more individuals and funded by the cooperative agreement will be subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act.
The original and ten (10) copies of the application (Standard Form 424) must be submitted to the U.S. Department of State, Ms. Joanna Pisciotta Snearly, Grant Specialist, A/LM/AQM/IP, State Annex #44, Room M-22, 301 4th Street SW., Washington, DC 20547 on or before March 26, 2001.
A detailed program description and application package may be obtained from Ms. Joanna Pisciotta Snearly, Grant Specialist, U.S. Department of State, A/LM/AQM/IP, State Annex #44, Room M-22, 301 4th Street SW., Washington, DC 20547, telephone (202) 260-6549, fax (202) 205-5466 email jsnearly@pd.state.gov. Please refer to the “AF/PD Professional Internship Program” when requesting information or sending an application.
Tennessee Valley Authority (TVA).
Notice of meeting.
The Regional Resource Stewardship Council (Regional Council) will hold a meeting to consider various matters. Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. App. 2, (FACA).
The meeting agenda includes the following/briefings:
It is the Regional Council's practice to provide an opportunity for members of the public to make oral public comments at its meetings. Public comment session is scheduled from 1 p.m.-2 p.m. CST. Members of the public who wish to make oral public comments may do so during the Public comments portion of the agenda. Up to one hour will be allotted for the Public comments with participation available on a first-come, first-served basis. Speakers addressing the Council are requested to limit their remarks to no more than 5 minutes. Persons wishing to speak register at the door and are then called on by the Council Chair during the public comment period. Hand-out materials should be limited to one printed page. Written comments are also invited and may be mailed to the Regional Resource Stewardship Council, Tennessee Valley Authority, 400 West Summit Hill Drive, WT 11A, Knoxville, Tennessee 37902.
The meeting will be held on Friday, March 9, 2001, from 8:30 a.m. to 4:30 p.m. CST.
The meeting will be held in Olive Branch, Mississippi, at the Whispering Woods Hotel and Conference Center, 11200 E. Goodman Road, Olive Branch, Mississippi 38654, and will be open to the public. Anyone needing special access or accommodations should let the contact below know at least a week in advance.
Sandra L. Hill, 400 West Summit Hill Drive, WT 11A, Knoxville, Tennessee 37902, (865) 632-2333.
Coast Guard, DOT.
Request for applications.
The Coast Guard seeks applications for membership on the Commercial Fishing Industry Vessel Advisory Committee (CFIVAC). CFIVAC advises and makes recommendations to the Coast Guard on the safety of the commercial fishing industry.
Application forms should reach us on or before July 6, 2001.
You may request an application form by writing to Commandant (G-MOC-3), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001; by calling 202-267-0507; or by faxing 202-267-0506; or by emailing jfwilliams@comdt.uscg.mil. Send your application in written form to the above street address. This notice and the application form are available on the Internet at http://dms.dot.gov.
Captain Jon Sarubbi, Executive Director of CFIVAC, or Lieutenant Jennifer Williams, Assistant to the Executive Director, telephone 202-267-0507, fax 202-267-0506, email: jfwilliams@comdt.uscg.mil.
The Commercial Fishing Industry Vessel Advisory Committee (CFIVAC) is a Federal advisory committee under 5 U.S.C. App. 2. As required by the Commercial Fishing Industry Vessel Safety Act of 1988, the Coast Guard established CFIVAC to provide advice to the Coast Guard on issues related to the safety of commercial fishing vessels regulated under chapter 45 of Title 46, United States Code, which includes uninspected fishing vessels, fish processing vessels, and fish tender vessels. CFIVAC consists of 17 members as follows: Ten members from the commercial fishing industry who reflect
CFIVAC meets at least once a year in different seaport cities nationwide. It may also meet for extraordinary purposes. Its subcommittees and working groups may meet to consider specific problems as required.
We will consider applications for five positions that expire or become vacant in October 2001 in the following categories: (a) Commercial Fishing Industry (two positions); (b) Education/Training (one position); (c) Marine Insurance Underwriter (one position); (d) General Public (one position).
Each member serves for a term of 3 years. A few members may serve consecutive terms. All members serve at their own expense and receive no salary from the Federal Government, although travel reimbursement and per diem are provided.
In support of the policy of the Department of Transportation on gender and ethnic diversity, we encourage qualified women and members of minority groups to apply.
If you are selected as a member who represents the general public, we will require you to complete a Confidential Financial Disclosure Report (OGE Form 450). We may not release the report or the information in it to the public, except under an order issued by a Federal court or as otherwise provided under the Privacy Act (5 U.S.C. 552a).
Coast Guard, DOT.
Notice of charter renewal.
The Secretary of Transportation has renewed the charter for the Commercial Fishing Industry Vessel Advisory Committee (CFIVAC) for 2 years from December 10, 2000 until December 10, 2002. CFIVAC is a Federal advisory committee under 5 U.S.C. App. 2. It advises the Coast Guard on the safety of the commercial fishing industry.
You may request a copy of the charter by writing to Commandant (G-MOC-3), U.S. Coast Guard, 2100 Second Street SW., Washington, DC 20593-0001; by calling 202-267-0507; or by faxing 202-267-0506. This notice and the charter are available on the Internet at http://dms.dot.gov.
Captain Jon Sarubbi, Executive Director of CFIVAC, or Lieutenant Jennifer Williams, Assistant to the Executive Director, telephone 202-267-0507, fax 202-267-0506.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received and of dispositions of prior petitions.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR, dispositions of certain petitions previously received, and corrections. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before March 19, 2001.
Send comments on any petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2000-XXXX at the beginning of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing the petition, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Dockets Office (telephone 1-800-647-5527) is on the plaza level of the NASSIF Building at the Department of Transportation at the above address. Also, you may review public dockets on the Internet at http://dms.dot.gov.
Forest Rawls (202) 267-8033, or Vanessa Wilkins (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received and of dispositions of prior petitions.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR, dispositions of certain petitions previously received, and corrections. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before March 19, 2001.
Send comments on any petition in triplicate to: Federal Aviation Administration, Office of the Chief Counsel, Attn: Rule Docket (AGC-2001), Petition Docket No. ____, 800 Independence Avenue, SW., Washington, DC 20591.
The petition, any comments received, and a copy of any final disposition are filed in the assigned regulatory docket and are available for examination in the Rules Docket (AGC-200), Room 915G, FAA Headquarters Building (FOB 10A), 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-3132.
Forest Rawls (202) 267-8033, or Vanessa Wilkins (202) 267-8029 Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 11.85 and 11.91.
Federal Aviation Administration (FAA), DOT.
Notice of petitions for exemption received and of dispositions of prior petitions; correction.
Pursuant to FAA's rulemaking provisions governing the application, processing, and disposition of petitions for exemption part 11 of Title 14, Code of Federal Regulations (14 CFR), this notice contains a summary of certain petitions seeking relief from specified requirements of 14 CFR, dispositions of certain petitions previously received, and corrections. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of any petition or its final disposition.
Comments on petitions received must identify the petition docket number involved and must be received on or before March 19, 2001.
Send comments on any petition to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2000-XXXX at the beginning of your comments. If you wish to receive confirmation that FAA received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing the petition, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Dockets Office (telephone 1-800-647-5527) is on the plaza level of the NASSIF Building at the Department of Transportation at the above address. Also, you may review public dockets on the Internet at http://dms.dot.gov.
Forest Rawls (202) 267-8033, or Vanessa Wilkins (202) 267-8029, Office of Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85 and 11.91.
On January 30, 2001, the FAA issued Summary Notice No. PE-2001-08 (66 FR 8839; February 2, 2001) which inadvertently includes a request for comments on Boeing's petition for exemption. The original comment period on Boeing's request closed on November 13, 2000, and this notice withdraws the summary of Boeing's petition from Summary Notice No. PE-2001-08.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., Appendix 2), notice is hereby given of a request from the Department of Transportation (DOT) for RTCA to develop appropriate material for DOT consideration in preparing its comments on an FCC Notice of Proposed Rule-Making (NPRM), “In the Matter of Revision of Part 15 of the Commission's Rules Regarding Ultra-Wideband Transmission Systems.”
In response to this request, RTCA's Program management Committee has tasked Special Committee 159, Global Positioning System (GPS), to develop a response. Special Committee 159's next recommended submission, the Second Interim Report titled Ultra-Wideband Technology Radio Frequency Inference Effects to Global Positioning System Receivers and Interference Encounter Scenario Development, is being produced in two phases:
The Program Management Committee will consider the completed Second Interim for approval at its meeting on March 27, 2001, before it is forwarded to DOT.
Persons wishing to obtain information, or have questions/comments, should contact RTCA, Inc., Attn: Mr. Jerry Bryant, at (202) 833-9339 (phone), (202) 833-9424 (facsimile), or
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel CALEDONIA.
As authorized by Public Law 105-383, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a description of the proposed service, is listed below. The vessel is currently operating in Washington's San Juan Islands under a small vessel waiver granted pursuant to actions in Docket MARAD-2000-7075. The current application involves a new owner and new operating area. Interested parties may comment on the effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. If MARAD determines that in accordance with Pub. L. 105-383 and MARAD's regulations at 46 CFR Part 388 (65 FR 6905; February 11, 2000) that the issuance of the waiver will have an unduly adverse effect on a U.S.-vessel builder or a business that uses U.S.-flag vessels, a waiver will not be granted.
Submit comments on or before March 26, 2001.
Comments should refer to docket number MARAD-2001-8932. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at http://dmses.dot.gov/submit/. All comments will become part of this docket and will be available for inspection and copying at the above address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except federal holidays. An electronic version of this document and all documents entered into this docket is available on the World Wide Web at http://dms.dot.gov.
Kathleen Dunn, U.S. Department of Transportation, Maritime Administration, MAR-832 Room 7201, 400 Seventh Street, S.W., Washington, DC 20590. Telephone 202-366-2307.
Title V of Pub. L. 105-383 provides authority to the Secretary of Transportation to administratively waive the U.S.-build requirements of the Jones Act, and other statutes, for small commercial passenger vessels (no more than 12 passengers). This authority has been delegated to the Maritime Administration per 49 CFR 1.66, Delegations to the Maritime Administrator, as amended. By this notice, MARAD is publishing information on a vessel for which a request for a U.S.-build waiver has been received, and for which MARAD requests comments from interested parties. Comments should refer to the docket number of this notice and the vessel name in order for MARAD to properly consider the comments. Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD'S regulations at 46 CFR Part 388.
(1) Name of vessel and owner for which waiver is requested. Name of vessel: CALEDONIA. Owner: California Maritime Academy Foundation, Inc.
(2) Size, capacity and tonnage of vessel. According to the applicant: “84.9′ in length by 8.6′ in width, and 9.4′ in depth; accommodating not more than 12 passengers; 99 gross tons.”
(3) Intended use for vessel, including geographic region of intended operation and trade. According to the applicant: “Vessel's intended use is as a crewed charter vessel [by Alaska and NW Charters, LLC] in S.E. Alaska accommodating not more than 12 passengers. The intended geographic region is from Dixon Entrance on the South to a latitude equal to Skagway, Alaska on the north and to a point 50 miles west of Sitka, Alaska on the west.
(4) Date and Place of construction and (if applicable) rebuilding. Date of construction: 1973. Place of construction: Holland—or Foreign.
(5) A statement on the impact this waiver will have on other commercial passenger vessel operators. According to the applicant: “We feel this will have little impact on existing operators as we ALREADY operate a Crewed Charter Business in S.E. Alaska (FOR THE PAST THREE YEARS) and are in the process of SELLING our existing Crewed Charter Boat “High Scooter” and thus will ONLY be substituting vessels. Thus, the real impact is very marginal.
Our current web page is
(6) A statement on the impact this waiver will have on U.S. shipyards. According to the applicant: “As the vessel was built almost 30 years ago and as new vessels of this size are too expensive to make a profitable charter business out of—the impact will again be nonexistent. Additionally, as we are planning some changes and redecorating of the 30 year old vessel—to bring the vessel into 2001 standards—it will actually bring additional business to the vessel and ship builders in the area.”
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a petition requesting MARAD to issue a determination that the ownership and control requirements and the preferred mortgage requirements of the American Fisheries Act of 1998 and 46 CFR part 356 are in conflict with an international investment agreement.
The Maritime Administration (“MARAD”) is soliciting public comments on a petition from the owners and mortgagees of the vessels FRONTIER SPIRIT—Official Number 951441, FRONTIER MARINER—Official Number 951440, and FRONTIER EXPLORER—Official Number 975015 (hereinafter the “Vessels”). The petition requests that MARAD issue a decision that the American Fisheries Act of 1998 (“AFA”), Division C, Title II, Subtitle I, Public Law 105-277, and our regulations at 46 CFR Part 356 (65 FR 44860 (July 19, 2000)) are in conflict with the U.S.-Japan Treaty and Protocol Regarding Friendship, Commerce and Navigation, 206 UNTS 143, TIAS 2863, 4 UST 2063 (1953) (“U.S.-Japan FCN” or “Treaty”). The petition is submitted pursuant to 46 CFR 356.53 and 213(g) of AFA, which provide that the requirements of the AFA and the implementing regulations will not apply to the owners or mortgagees of a U.S.-flag vessel documented with a fishery endorsement to the extent that the provisions of the AFA conflict with an existing international agreement relating to foreign investment to which the United States is a party. This notice sets forth the provisions of the international agreement that the Petitioner alleges are in conflict with the AFA and 46 CFR Part 356 and the arguments submitted by the Petitioner in support of its request. If MARAD determines that the AFA and MARAD's implementing regulations conflict with the U.S.-Japan FCN, the requirements of 46 CFR Part 356 and the AFA will not apply to the extent of the inconsistency. Accordingly, interested parties are invited to submit their views on this petition and whether there is a conflict between the U.S.-Japan FCN and the requirements of both the AFA and 46 CFR Part 356. In addition to receiving the views of interested parties, MARAD will consult with other Departments and Agencies within the Federal Government that have responsibility or expertise related to the interpretation of or application of international investment agreements.
You should submit your comments early enough to ensure that Docket Management receives them not later than March 26, 2001.
Comments should refer to the docket number that appears at the top of this document. Written comments may be submitted by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, DC 20590-0001. You may also send comments electronically via the Internet at http://dms.dot.gov/submit/. All comments will become part of this docket and will be available for inspection and copying at the above address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except Federal Holidays. An electronic version of this document and all documents entered into this docket are available on the World Wide Web at http://dms.dot.gov.
John T. Marquez, Jr. of the Office of Chief Counsel at (202) 366-5320. You may send mail to John T. Marquez, Jr., Maritime Administration, Office of Chief Counsel, Room 7228, MAR-222, 400 Seventh St., SW., Washington, DC 20590-0001 or you may send e-mail to John.Marquez@marad.dot.gov.
The AFA was enacted in 1998 to give U.S. interests a priority in the harvest of U.S.-fishery resources by increasing the requirements for U.S. Citizen ownership, control and financing of U.S.-flag vessels documented with a fishery endorsement. MARAD was charged with promulgating implementing regulations for fishing vessels of 100 feet or greater in registered length while the Coast Guard retains responsibility for vessels under 100 feet.
Section 202 of the AFA, raises, with some exceptions, the U.S.-Citizen ownership and control standards for U.S.-flag vessels that are documented with a fishery endorsement and operating in U.S.-waters. The ownership and control standard was increased from the controlling interest standard (greater than 50%) of section 2(b) of Shipping Act, 1916 (“1916 Act”), as amended, 46 App. U.S.C. § 802(b), to the standard contained in section 2(c) of the 1916 Act, 46 App. U.S.C. § 802(c), which requires that 75 percent of the ownership and control in a vessel owning entity be vested in U.S. Citizens. In addition, section 204 of the AFA repeals the ownership grandfather “savings provision” in the Anti-Reflagging Act of 1987, Public Law 100-239, section 7(b), 101 Stat 1778 (1988), which permits foreign control of companies owning certain fishing vessels.
Section 202 of the AFA also establishes new requirements to hold a preferred mortgage on a vessel with a fishery endorsement. State or federally chartered financial institutions must now comply with the controlling interest standard of § 2(b) of the 1916 Act in order to hold a preferred mortgage on a vessel with a fishery endorsement. Entities other than state or federally chartered financial institutions must either meet the 75% ownership and control requirements of section 2(c) of the 1916 Act or utilize an approved U.S.-Citizen Trustee that meets the 75% ownership and control requirements to hold the preferred mortgage for the benefit of the non-citizen lender.
Section 213(g) of the AFA provides that if the new ownership and control provisions or the mortgagee provisions are determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party, such provisions of the AFA shall not apply to the owner or mortgagee on October 1, 2001, with respect to the particular vessel and to the extent of the inconsistency. MARAD's regulations at 46 CFR 356.53 set forth a process wherein owners or mortgagees may petition MARAD, with respect to a specific vessel, for a determination that the implementing regulations are in conflict with an international investment agreement. Petitions must be noticed in the
Spirit Limited Partnership, Mariner Limited Partnership and Explorer Limited Partnership (each a “Vessel Owner” and collectively, the “Vessel Owners”) are the owners respectively of the Frontier Spirit, Frontier Mariner and Frontier Explorer. The Vessel Owners, in conjunction with Frontier Spirit Company, Frontier Mariner Company, Frontier Explorer Company, Alaska Frontier Company (“AFCO”), North American Maritime Corporation (“NAMCO”) and North Japan Maritime Corporation (“NOMCO”), the owners of direct or indirect interest in the Vessel Owners and indirect interests in the Vessels, are hereinafter collectively referred to as “Petitioner” or “Petitioners.”
The ownership and financing structures of the Vessels are substantially identical. The Petitioner provided the following information about the ownership, mortgage structure and other contractual obligations of the Vessels:
Spirit Limited Partnership, a Washington limited partnership, is the owner of the Frontier Spirit. The general partner, Frontier Spirit Company, is a Washington corporation that owns 51% of the interest in the partnership. Frontier Spirit Company is wholly owned by AFCO. A majority of AFCO's stock is owned by U.S. Citizens; however, it does not qualify as a U.S. Citizen under the AFA because Japanese entities and individuals own more than 25% of AFCO's capital stock.
The sole limited partner of Spirit Limited Partnership is NAMCO, a Washington corporation owned by an individual Japanese citizen and NOMCO, a Japanese Corporation. NAMCO owns 49% of the interest in the partnership.
The Frontier Mariner is owned by Mariner Limited Partnership, a Washington limited partnership. The general partner, Frontier Mariner Company, is a Washington corporation which owns 51% of the partnership interest. Frontier Mariner Company is also wholly owned by AFCO. NAMCO is the sole limited partner and owns 49% of the partnership interest.
The Frontier Explorer is owned by Explorer Limited Partnership, a Washington limited partnership. The general partner, Frontier Explorer Company, is a Washington corporation which owns 51% of the partnership interest. Frontier Explorer Company is also wholly owned by AFCO. NAMCO is the sole limited partner and owns 49% of the partnership interest.
The Petitioners set forth certain loan and currency swap agreements that the Vessel Owners have entered into with Bank of America, N.A., a U.S. financial institution, to finance the remaining obligations of the Vessel Owners related to the construction of the Vessels. Under these agreements and related loan documents, each of the Vessel Owners is jointly and severally obligated to Bank of America. These agreements are secured by preferred mortgages on each of the Vessels. The Petitioners note that Vessel Owners have also executed security agreements granting UCC security interests in the Vessels, their appurtenances and fishing rights to Bank of America to secure these loans.
In addition to the above, the Petitioners state that the Vessel Owners have entered into a loan agreement with Bank of America pursuant to which Bank of America has agreed to provide them jointly a $1 million line of credit for working capital. Each of the Vessel Owners is jointly and severally obligated to Bank of America under this line of credit loan agreement and related loan documents. The obligations of the Vessel Owners to Bank of America under the line of credit are secured by second preferred mortgages on the Vessels. The Vessel Owners have also executed security agreements granting security interests in the Vessels, their appurtenances and fishing rights to Bank of America to secure these obligations.
Except as described above, Petitioners state that no other mortgages, security interests or other consensual liens affect the assets of the Vessel Owners.
Frontier Spirit Company, Frontier Mariner Company, Frontier Explorer Company, NAMCO, NOMCO, AFCO and AFCO's U.S. Citizen and Non-Citizen shareholders have each guaranteed all of the obligations of the Vessel Owners to Bank of America pursuant to substantially identical Commercial Guaranty agreements in favor of Bank of America.
The Petitioners state that each of the Vessel Owners has entered into a Management Agreement with AFCO. Under the agreement, AFCO provides an extensive array of vessel management services to the Vessel Owners including: identifying and recommending qualified licensed officers and other navigational personnel for employment by the Vessel Owner; performing accounting services, including maintenance of payroll records, preparation of tax returns, keeping the general ledger, managing accounts payable and receivable, reconciling bank records and preparing financial statements; coordinating and directing the victualling, supplying fueling and repairing of the Vessel, including the procurement of bait, outfit, equipment and spare or replacement parts; arranging for the payment of all expenses incident to the Vessel's operation; periodic drydocking of the Vessel; making travel arrangements for the licensed officers
Petitioners state that each of the Vessel Owners has entered into a Vessel Manning Agreement with NAMCO, dated as of January 1, 2001, under which NAMCO identifies, hires and employs unlicensed processing personnel and quality control technicians for service aboard the Vessels and provides certain related services. Licensed officers and other navigational personnel are not covered by the Vessel Manning Agreement according to the Petitioners, as they are employed directly by the Vessel Owner. The Petitioners assert that the Vessel Manning Agreement contains no terms giving NAMCO or any other Non-Citizen the right to manage, control or direct the Vessel's operations.
The Petitioners submit that each of the Vessel Owners has entered into a marketing Agreement with NOMCO, effective January 1, 2000, governing sales and purchases by the parties of Pacific Cod and other groundfish sold by the Vessel Owners to NOMCO. Petitioners state that these marketing Agreements do not require that any quantity or percentage of a Vessel's catch be sold to NOMCO or the Japanese market; however, NOMCO has a right of first refusal on all fish products sold by the Vessel Owners in the Japanese market. Each of these Agreements is for a term of one year, but is renewed annually unless either party gives notice of termination to the other in writing at least 60 days prior to the end or the term, including any renewal term. The Petitions submit that the Agreements contain no terms giving NOMCO or any other Non-Citizen the right to manage, control or direct the operations of the Vessels.
The Petitioners note that each of the Vessel Owners has entered into a Services Agreement with NOMCO, dated as of January 1, 2001, whereby NOMCO has agreed (1) to supply current market information to the Vessel Owners concerning market demand, processing and handling requirements, prices and trends; and (2) to provide an unsecured, subordinated standby line of credit to the Vessel Owners.
The Petitioners have requested a consolidated filing for the Vessels. MARAD's regulations require at 46 CFR 356.53(c) that a separate petition be filed for each vessel for which the owner or mortgagee is requesting an exemption unless the Chief Counsel authorizes a consolidated filing. The Chief Counsel hereby authorizes the consolidated filing by Petitioners relating to the three Vessels.
The Petitioners seek a determination from MARAD under 213(g) of the Act and 46 CFR 356.53 that they are exempt from the requirements of sections 202, 203 and 204 of the AFA and 46 CFR part 356 on the ground that the requirements of the AFA and 46 CFR Part 356, as applied to Petitioners with respect to the Vessels, conflict with U.S. obligations under U.S.-Japan FCN. The Petitioners request a determination that the restrictions placed on foreign ownership, foreign financing and foreign control of U.S.-flag vessels documented with a fishery endorsement contained in 46 CFR part 356 and sections 202, 203 and 204 of the AFA do not apply to Petitioners with respect to:
(1) the existing ownership interests in the Vessels;
(2) the existing exclusive marketing agreements, loan guaranties, financing and other contractual arrangements between or among the Petitions with respect to the Vessels; and
(3) future loan, financing and other contractual arrangements between or among the Petitioners with respect to the Vessels.
MARAD's regulations at 46 CFR § 356.53(b)(3) require Petitioners to submit a detailed description of how the provisions of the international investment agreement or treaty and the implementing regulations are in conflict. The entire text of the FCN Treaty is available on MARAD's internet site at
A. The AFA's Limitations and Restrictions on Foreign Involvement in the U.S. Fishing Industry Are Inconsistent With U.S. Obligations Under the U.S.-Japan FCN.
“1.
“a.
“The AFA's new restrictions on foreign investment in fishing vessels will prohibit the Vessel Owners from employing their Vessels in the U.S. fisheries on and after October 1, 2001, because the extent of the investment by Japanese nationals and Japanese companies in the Vessel Owners exceeds the maximum investment permitted by the AFA to be held by Non-Citizens.
“A vessel cannot be employed lawfully in the fisheries of the United States unless it is documented as a vessel of the United States with a fishery endorsement issued by the U.S. Coast Guard pursuant to 46 U.S.C. Chapter 121. 46 U.S.C. Chapter 121 sets out the requirements which must be met for a vessel to be eligible for documentation with a fishery endorsement, including requirements related to the citizenship of vessel owners.
“The Vessels are fishing vessels, designed and constructed for use in the U.S. fisheries and operated in the U.S. fisheries of the North Pacific Ocean and Bering Sea. The Vessels have no other economically productive uses. Each of the Vessel Owners is eligible to own a vessel with a fishery endorsement under the current standards of 46 U.S.C. Chapter 121 and each of the Vessels is documented as a vessel of the United States with a fishery endorsement. However, the Vessel Owners will be prohibited from owning or operating the Vessels in the U.S. fisheries on and after October 1, 2001 under the new restrictions on foreign investment in fishing vessels imposed by the AFA and MARAD's implementing rules, codified at 46 CFR Part 356 (65 FR 44860
“b.
“The impairment of Petitioners' existing ownership interests in the Vessels violates their right to “national treatment” under Article VII.1 and the grandfather provision of Article VII.2 of the U.S.-Japan FCN.
“The U.S.-Japan FCN was one of a series of similar Friendship, Commerce and Navigation (“FCN”) Treaties entered into by the United States with various countries after World War II, based on a standard State Department treaty text. All of these treaties reflect U.S. post-war policy to encourage and protect international trade and investment. Herman Walker, Jr., the principal author of the standard FCN treaty text and one of the principal State Department negotiators during this period, has described the FCN treaties as “concerned with the protection of persons, natural and juridical, and of the property interests of such persons.”
“The preamble of the U.S.-Japan FCN provides that guaranteeing nationals of each Party “national * * * treatment unconditionally” is one of the two general principles upon which the U.S.-Japan FCN was based. Use of the word “unconditionally” in this context clearly demonstrates the strength of the drafters' general intent. Accordingly, the exceptions to the principle of national treatment stated in the U.S.-Japan FCN must be narrowly construed.
“The AFA's retroactive prohibition of ownership interests acquired by the Japanese Investors in compliance with existing law clearly denies national treatment to them, to the Vessel Owners and to the other Petitioners. The AFA's new limitation on foreign ownership of fishing vessels is thus inconsistent with the most fundamental principle of the U.S.-Japan FCN.
“The first sentence of Article VII.2 of the U.S.-Japan FCN provides a limited exception to the principle of national treatment for enterprises engaged in “the exploitation of land or other natural resources.” Even in that context, however, the second sentence of Article VII.2 (referred to as the “grandfather” provision of Article VII.2) prohibits application of new restrictions and limitations to Japanese nationals or enterprises which have previously “acquired interests” in enterprises owning U.S. fishing vessels or have previously engaged in the business activities now to be restricted. Article VII.2 provides in pertinent part:
Each Party reserves the right to limit the extent to which aliens may within its territories establish, acquire interests in, or carry on * * * enterprises engaged in * * * the exploitation of land or other natural resources.
“A study commissioned by the State Department of its past interpretations of the FCN treaties notes that, under the grandfather provision of Article VII.2, “protection is afforded to any privilege granted * * * prior to a change in national treatment; hence at a minimum these foreign enterprises are guaranteed the maintenance of their existing operations.
The net effect [of the second sentence of Article VII.2] is that, although not obligated to allow alien interests to become established in those fields of activity,
“The second sentence of Article VII(2) is a grandfather clause intended in the interest of fairness to protect legitimately established alien enterprises against retroactive impairment.”
“Both State Parties placed great importance on the grandfather provision of Article VII.2 because they recognized that it would not only protect existing property rights but would entitle foreign-owned enterprises to continue to operate in the same manner as before, notwithstanding later limitations placed on the rights of foreign-owned entities to engage in such business activities. It was a “principal negotiating point” of the U.S. side to ensure that the reservations in Article VII.2 would
“The U.S. negotiators therefore resisted efforts to modify the grandfather provision of Article VII.2, despite strong Japanese efforts to restrict its application. As an indication of the importance the Japanese negotiators attached to the provision, the Japanese Embassy at one point late in the negotiations indicated that the Ministry of Finance might be persuaded to withdraw “all other objections” to the draft treaty if the sentence
“As adopted, the second sentence of Article VII.2 follows the standard treaty text developed by the State Department and used as the basis for more than a dozen FCN treaties. The Sullivan Study notes the breadth of the protection this sentence affords existing companies otherwise subject to VII.2. The Sullivan Study indicates that an enterprise protected by the Article VII.2 grandfather provision is not only protected as to existing property interests or contract rights, but “is able to enjoy what may be considered normal business growth in terms of acquiring new customers and increasing the dollar volume of its business, but it cannot claim expanded privileges. * * * “
“NOMCO and the individual Japanese citizens who have invested in the Vessel Owners are clearly entitled to protection as Japanese nationals which, at the time the AFA was adopted, were “engaged in * * * activities” within the United States which the AFA, but for Section 213(g), would prohibit, limit or restrict. NAMCO, Frontier Spirit Company, Frontier Mariner Company, Frontier Explorer Company, the Vessel Owners and AFCO likewise come within the protection of the Article VII.2 grandfather provision by reason of the direct and indirect ownership interests in them held by the Japanese Investors. Thus, the Article VII.2 grandfather provision protects the ownership interests of NOMCO and the Japanese Investors in AFCO and NAMCO; the ownership interests of AFCO
“However, as noted above, the Article VII.2 grandfather provision not only protects pre-existing rights and interests acquired, directly or indirectly, by Japanese nationals prior to a discriminatory change in the law, but protects
“2.
“a.
“The AFA's restrictions on foreign financing and foreign “control” of fishing vessels imposed by Sections 202 and 203 of the AFA impair the existing rights and interests of Frontier Spirit Company, Frontier Mariner Company, Frontier Explorer Company, NOMCO, NAMCO, AFCO and AFCO's Non-Citizen shareholders (the “Non-Citizen Guarantors”) under their guaranties in favor of Bank of America and impair the ability of the Japanese Investors to protect and further their existing investment and business interests in the Vessels and the Vessel Owners.
“The harm to Petitioners caused by the AFA consists of three types.
“First, the AFA impairs the existing rights and interests of Petitioners as guarantors of the obligations of the Vessel Owners to Bank of America.
“A “preferred mortgage” is a creature of federal statute and gives the mortgagee a lien on the mortgaged vessel, enforceable in U.S. District Court under a priority scheme that protects the mortgagee from most maritime and non-maritime liens.
“Current law permits wholly or partly Japanese-owned lenders, such as the Non-Citizen Guarantors, to hold preferred mortgage interests in U.S. fishing vessels directly.
“The AFA contains a new definition of impermissible Non-Citizen “control”
“The second way in which the AFA's new restrictions on foreign “control” harm the Petitioners is by impairing, prohibiting or restricting their existing contractual arrangements with respect to the Vessels. The Management Agreements between the Vessel Owners and AFCO may be impermissible because of the role played by AFCO, a Non-Citizen, in managing the Vessels. It is similarly uncertain whether the Vessel Manning Agreements between the Vessel Owners and NAMCO and the Marketing Agreements and Services Agreements between the Vessel Owners and NOMCO are permissible. The standards for evaluating such agreements under the AFA and Part 356—individually, in combination with one another and in combination with other factors—are so vague that the permissibility of Petitioners' existing contract arrangements under the AFA cannot be determined except by obtaining an ad hoc decision by MARAD. Accordingly, the AFA requires Petitioners to seek MARAD approval of all of these agreements, unless Petitioners are exempted from the AFA's requirements with respect to these agreements.
“The third way in which the AFA's new restrictions on foreign financing and foreign “control” harm the Petitioners is by restricting the ability of the Japanese Investors and the U.S. companies in which they have invested to enter into future financing and other contractual arrangements with the Vessel Owners in order to protect and further their existing investment and other business interests in the Vessel Owners and the Vessels. The AFA's restrictions on foreign “control” and foreign financing of fishing vessels will limit the ability of the Japanese Investors and the U.S. companies in which they have invested to protect their investments and interests in the Vessels by entering into management agreements, exclusive marketing agreements or by offering the Vessel Owners financing for vessel operations, repairs or improvements. The ability of the Japanese Investors to make loans to support the Vessels' continuing operations or necessary repairs or improvements may be the only means to protect the Vessel Owners from insolvency and default on their loans from Bank of America, potentially jeopardizing Petitioners' investments and triggering the obligations of the Non-Citizen Guarantors on their guaranties. Thus, the AFA's restrictions on the ability of the Japanese Investors to make loans to the Vessel Owners, to take security in the Vessels and to enter into other contractual arrangements related to the Vessels jeopardize the existing financial and business interests of all of the Petitioners.
“The provisions of 46 CFR 356.45 which approve certain loans by Non-Citizens to fishing vessel owners are too restrictive to permit the types of loans which may be necessary to permit Petitioners to protect their ownership and other business interests in the Vessels. Section 356.45(a)(2) permits advances to vessel owners by Non-Citizens “[w]here the basis of the advancement is an agreement between the Non-Citizen and the vessel owner * * * to sell all or a portion of the vessel's catch to the Non-Citizen” but prohibits the lender from taking security in the vessel and limits such loans to the annual “value of the product to be supplied to the [Non-Citizen].” These limitations are not found in existing law and significantly restrict the ability of the Japanese Investors to make loans which business circumstances may require. Section 356.45(b) permits certain types of loans but only if the loan is wholly unsecured and only if the Non-Citizen lender “is not affiliated with any party with whom [the vessel owner] has entered into a mortgage, long-term or exclusive sales or purchase agreement, or other similar contract.” Thus, future financing arrangements between the Vessel Owners and the Japanese Investors are severely limited and restricted under these provisions.
“b.
“The new restrictions on foreign financing and foreign “control” of fishing vessels imposed by the AFA and MARAD's implementing regulations violate Article VII.1's national treatment guaranty by (1) Impairing the existing legal rights and interests of the Non-Citizen Guarantors under Bank of America's existing preferred mortgages and related loan documents; (2) subjecting the rights of the Non-Citizen Guarantors under Bank of America's existing loan documents to a new requirement of administrative review and approval by MARAD under the new “control” standards of the AFA and MARAD's implementing rules; (3) impairing the existing rights and interests of Petitioners under existing contracts ancillary to their ownership and financing arrangements with respect to the Vessels; and (4) restricting the ability of Petitioners and the Japanese Investors to extend credit to the Vessel Owners, take preferred mortgages on the Vessels or enter into other contractual arrangements with respect to the Vessels or the Vessel Owners necessary to further or protect the existing financial and business interests of the Japanese Investors.
“Article VII.1 extends full national treatment protection “with respect to engaging in all types of commercial, industrial, financial and other business activities.” The negotiating history of the U.S.-Japan FCN leaves no doubt that loans and lending by foreign-owned lenders are entitled to full national treatment under the first sentence of Article VII.1. It follows that the rights and interests of Non-Citizen Guarantors who succeed to the rights of the lender under existing loan documentation are also protected.
“At the fourth informal meeting of the U.S. and Japanese negotiators, the Japanese negotiators argued that foreign-owned banks should be denied national treatment, as well as most-favored-nation protection. One reason given was that their loans could result in the foreign-owned bank lender controlling key industries.
“A cable from U.S. State Department headquarters in Washington noted that the Japanese proposal, and in particular its interest in denying national treatment to bank loans, reflected an attitude that creates a “difficulty going to heart of treaty.”
“A Department cable explained why the exception to national treatment provided by the first sentence of the U.S. draft of Article VII.2 was limited to only the depository and fiduciary functions of banks.
“The exception to national treatment for certain banking functions in the first sentence of Article VII.2 is the same as in the standard FCN treaty text. The Sullivan Study notes that “this reservation is stated in terms intended to circumscribe it as much as possible, thereby maximizing the extent to which the banking business remains subject to the rule [of national treatment] set forth in Article VII(1).”
“The provisions of the AFA and MARAD's implementing rules which restrict the right of Japanese-owned entities to make loans secured by mortgages on U.S. vessels, to enter into contracts with the vessel owner or to make loans or enter into contracts with a vessel owner without prior MARAD approval of the loan or contract terms are inconsistent with the guaranty of national treatment in Article VII.1. The rationale that such activities may be restricted on the grounds that they could result in a degree of control over sensitive industries was specifically considered by the U.S. negotiators and rejected as a valid reason for limiting the Treaty's protections for Non-Citizen lending activities. The control argument presented by Japan at that time is the same argument used to justify the restrictions of the AFA. Although the negotiating history deals largely with banking, the language of Article VII.1 extends the protections of national treatment broadly to “all types of commercial * * * financial and other business activities.” Under Article VII.1, neither State Party may restrict loans by nationals of the other to a fishing vessel owner or other contractual arrangements between such foreign nationals and vessel owners.
“The AFA and MARAD's implementing rules impose new restrictions on the ability of the Petitioners and the Japanese Investors, going forward, to protect their existing investments, financial interests and other business interests in the Vessel Owners and the Vessels by,
“For these reasons, Petitioners seek a determination by MARAD that Sections 202 and 203 of the AFA and MARAD's implementing regulations do not apply to Petitioners with respect to (a) existing rights and interests of the Non-Citizen Guarantors under preferred mortgages on the Vessels and associated loan, guaranty and security documents previously executed by the Vessel Owners and the Non-Citizen Guarantors in favor of Bank of America; (b) contracts entered into with respect to the Vessels between or among the Petitioners or the Japanese Investors prior to the effective date of the AFA; and (c) future financing and contractual arrangements between or among the Petitioners or the Japanese Investors with respect to the Vessels.
“3.
“The new restrictions imposed by Sections 202 and 203 of the AFA and MARAD's implementing rules on foreign involvement in the U.S. fishing industry are “unreasonable or discriminatory measures” that impair the legally acquired rights and interests of Petitioners in violation of Article V of the Treaty.
“Article V provides that “[n]either Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established. * * *” The provision follows the standard FCN treaty language, except that the language was moved from Article VI.3 in the standard text to a new Article V and certain additional language, not relevant here, was added. According to the Sullivan Study, the provision “offers a basis in rather general terms for asserting protection against excessive governmental interference in business activities or particular activities not specifically covered by the treaty.”
“The negotiating history confirms that Article V was intended as a general provision prohibiting discrimination against foreign-owned entities not subject to other provisions of the U.S.-Japan FCN. During the negotiations, Japan proposed adding language prohibiting the denial “of opportunities and facilities for the investment of capital.” The proposal was not adopted after the U.S. opposed it on the grounds that Article VII fully addressed investment activities and that the additional language was not appropriate in Article V, which addresses issues not limited to investment.
“Thus, Article V was intended as a general prohibition of discriminatory restrictions not covered by other provisions of the U.S.-Japan FCN and of restrictions that do not rise to the level of a “taking.” Article V prohibits
“The intrusive and discriminatory restrictions imposed by the AFA and MARAD's implementing rules on financing and other business transactions between Non-Citizens, such as the Japanese Investors, and U.S. fishing vessel owners place Non-Citizens and vessel owners in which they have invested at a significant competitive disadvantage. U.S. Citizen investors are free to make loans and to enter into contracts with the fishing vessel owners in which they have invested without restriction. Under 46 CFR 356.45, a Non-Citizen lender is not even permitted to make an unsecured loan to a fishing vessel owner, if (a) the loan exceeds the annual value of the vessel's catch (where an exclusive marketing agreement is involved;
“4.
“The first sentence of Article VI.3 of the Treaty states that “[p]roperty of nationals and companies of either Party shall not be taken within the territories of the other Party except for a public purpose, nor shall it be taken without the prompt payment of just compensation.” This “takings” provision precludes expropriations and other measures that substantially impair a Japanese national's direct and indirect property rights. Applying the AFA's new restrictions to prohibit the Petitioners from holding their pre-existing ownership interests, their rights and interests as guarantors under the Bank of America mortgages and other loan documents and their rights under ancillary contracts with the Vessel Owners would deprive them of their property in violation of Article VI.3.
“The term “property” in Article VI.3 includes not simply direct ownership but also a wide variety of property interests, such as those which the Non-Citizen Petitioners have in the Vessel Owners and in the Vessels. The Protocol to the U.S.-Japan FCN explicitly states that “[t]he provisions of Article VI, paragraph 3 * * * shall extend to interests held directly or indirectly by nationals and companies of either Party in property which is taken within the territories of the other Party.” Protocol, ¶ 2 (emphasis added). As the United States delegates made clear during the negotiation of the Treaty, the phrase “interests held directly or indirectly”
In short, “all property interests are contemplated by the provision.”
“The concept of a taking in this context is broad and “is considered as covering, in addition to physical seizure, a wide variety of whole or partial sequestrations
“Further, a taking is permitted under the Treaty only for a “public purpose,” and it is clear that application of the AFA's ownership restrictions to the Vessel Owners so as to force a divestiture of the interests of the Japanese Investors to a private party which qualifies as a U.S. Citizen would not satisfy the “public purpose” requirement of the U.S.-Japan FCN. Even if such a forced sale to a private party could be characterized as having a “public purpose,” the AFA makes no provision for the “prompt payment of just compensation,” as required by Article VI.3. The fact that the AFA and 46 CFR Part 356 fail to provide any compensation scheme—let alone “adequate provision * * * at or prior to the time of taking for the determination and payment thereof”—is another basis for concluding that the AFA's retroactive limitations on foreign ownership and foreign financing of fishing vessels are inconsistent with Article VI.3 of the U.S.-Japan FCN.
“5.
“Article XIX.6 provides that notwithstanding any other provision of the Treaty, “each Party may reserve exclusive rights and privileges to its own vessels with respect to the * * * national fisheries. * * *.” This provision does not authorize the discriminatory limitations on Japanese investment and financing contained in the AFA and MARAD's implementing rules.
“Even if Article XIX.6 is interpreted as applying to fishing vessels,
“The historical record of the negotiations provides further evidence that Article XIX.6 was not intended to override Article VII's national treatment requirements with respect to foreign investment in or financing of U.S. flag fishing vessels or other dealings between foreign-owned enterprises and fishing vessel owners. At one point, the Japanese negotiators proposed rewriting Article XIX.6 to provide that the national treatment provisions of the Treaty would not extend to “nationals, companies and vessels of the other Party any special privileges reserved to national fisheries.”
“Subsequent practice of the State Department confirms this reading of Article XIX.6. In 1964, the State Department reaffirmed the narrow scope of Article XIX.6 in a letter to the House Committee on Merchant Marine and Fisheries. The letter makes clear that the provision merely permits the United States to reserve the right to catch or land fish to U.S. flag vessels.
“This reading of Article XIX.6 in the U.S.-Japan FCN also comports with the State Department's reading of this same language in other FCN treaties to which the U.S. is a party. The Sullivan Study explicitly states that “[t]he crucial element in Article XIX is that it relates to the treatment of
“6.
“The terms of the U.S.-Japan FCN and the other FCN treaties which share the same language are reciprocal—that is, the principle of “national treatment” applies not only to protect the investments of foreign nationals in the United States but also to protect the investments of U.S. nationals in Japan and other countries. Thus, any interpretation of the U.S.-Japan FCN adopted by MARAD in the present context will also define the rights of U.S. nationals doing business in Japan and other countries, now and in the future. A narrow interpretation of the U.S.-Japan FCN's protections for Japanese enterprises and their investments in the present context will effectively limit the rights of U.S. investors and U.S. businesses in Japan and other countries with which the United States has concluded similar FCN treaties.
“For this reason, the State Department has interpreted the national treatment requirement of the FCN treaties broadly in the past.
“7.
“The United States has agreed in Article XXIV of the Treaty to give “sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the [Government of Japan] may make with respect to any matter affecting the operation of the present Treaty.” The Government of Japan has strongly objected to the application of the AFA's new limitations and restrictions on foreign ownership, foreign financing and foreign control of U.S. fishing vessels to Japanese nationals and companies that have invested in the U.S. fisheries prior to the effective date of the Act on the ground that such application would violate the U.S.-Japan FCN. In a letter to Jo Brooks of the Office of Legal Adviser, U.S. Department of State, dated August 30, 1999, the Minister for Economic Affairs of the Embassy of Japan stated that the AFA's “new U.S. citizen ownership and control requirements” “if applied without exception, would impair the legally acquired rights or interests of Japanese nationals and corporations in the United States of America.”
As an existing international agreement relating to foreign investment, we would like to refer to the Treaty of Friendship, Commerce and Navigation between Japan and the United States of America, hereinafter referred to as “the Treaty.” Paragraph two of Article VII of the Treaty states that “* * * new limitations imposed by either Party upon the extent to which aliens are accorded national treatment, with respect to carrying on such activities within its territories, shall not be applied as against enterprises which are engaged in such activities therein at the time such new limitations are adopted and which are owned or controlled by nationals and companies of the other Party.” The Government of Japan is of the view that since the new requirements under the provisions of Subsection 202(c)
Moreover, paragraph one of Article V of the Treaty states that “Neither Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established, in their capital, in the skills, arts or technology which they have supplied;—” This provision indicates that any U.S. government measure that impairs the legally acquired rights or interests of Japanese nationals and companies should not be permitted under this Treaty. Therefore, the Japanese nationals and companies that have already invested in fisheries in the United States should be exempted from the application of the new requirements under Subparagraph 202(c) of the AFA.
Accordingly, the Government of Japan is of the view that the entities that are engaged in fishing activities and owned or controlled by Japanese nationals and corporations should be exempted from the new requirements set forth in the Section 202(c). * * *
In a subsequent letter to the Department of State, dated January 24, 2000, the Embassy of Japan expressed the “concern” of the Government of Japan about regulations proposed by MARAD to implement the AFA.
The proposed regulations would require a private company to provide interpretations of the Treaty and the AFA as an attached document to the petition for exemption from the AFA, as prescribed in Section 356.53(b)(3). It is rather the obligation of the Government of the United States as party to the Treaty to do so.
The Government of Japan requested “that the Government of the United States fully ensure * * * that all Japanese companies at present engaged in fishery activities be exempted from the new requirements prescribed in Section 202 of the AFA.”
“Thus, the Government of Japan has strongly expressed its view that the AFA's new restrictions on foreign investment, foreign financing and foreign control of U.S. fishing vessels are inconsistent with the U.S.-Japan FCN as applied to companies with existing Japanese investment. In light of the obligation of the United States under Article XXIV of the Treaty to give “sympathetic consideration” to the representations of the Government of Japan concerning the conflict between Section 202 of the AFA and the Treaty and the interest of the United States
“B. AFA Section 213(g) Exempts Japanese Enterprises and U.S. Enterprises With Japanese Investment From the AFA's Limitations and Restrictions on Foreign Ownership, Foreign Financing and Foreign “Control” of U.S. Fishing Vessels.
“Sections 202 and 203 of the AFA and the implementing regulations published by MARAD on July 19, 2000, codified at 46 CFR Part 356, impose a host of new limitations and restrictions on foreign ownership of fishing vessels, foreign financing of fishing vessels and contractual arrangements between foreign enterprises or U.S. companies with substantial foreign ownership and U.S. fishing vessel owners. As demonstrated above, if applied to Petitioners, these new limitations and restrictions would deprive Petitioners of valuable existing ownership, mortgage, contract and other legal rights and interests in violation of the U.S.-Japan FCN. Application of the new restrictions to bar the Japanese Investors or companies in which they have invested from entering into future transactions with the Vessel Owners, particularly financing and ancillary contractual arrangements, would also violate the U.S.-Japan FCN by substantially impairing the ability of the Japanese Investors to protect their existing rights and interests and to carry on their existing lawful business activities in the United States in conformity with existing law and on an equal footing with U.S. Citizens.
“To avoid these results, Congress included a provision in the AFA to ensure that the Act would not contravene U.S. treaty obligations. Section 213(g) provides in pertinent part:
In the event that any provision of section 12102(c) or section 31322(a) of title 46, United States Code, as amended by this Act, is determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party with respect to the owner or mortgagee on October 1, 2001 of a vessel with a fishery endorsement, such provision shall not apply to that owner or mortgagee with respect to such vessel to the extent of any such inconsistency. * * *
Section 213(g) makes clear that its reach is intended to extend to every “owner” or “mortgagee” holding an ownership or mortgage interest on October 1, 2001, when Sections 202 and 203 of the AFA become effective. Section 213(g) provides explicitly that the exemption does not apply to “subsequent owners and mortgagees” who acquire their interests
“Petitioners are “owners” and “mortgagees” who acquired their interests in the Vessels prior to October 1, 2001, and who intend to continue to hold those interests on and after October 1, 2001. The U.S.-Japan FCN is a self-executing treaty which is binding on MARAD as a matter of federal domestic law.
“The exemption provided by Section 213(g) is not limited to existing property rights, mortgage interests or investment interests in existence on October 1, 2001, but rather applies to fully exempt an “owner” or “mortgagee” on October 1, 2001 “to the extent of the inconsistency” between the Act and the Treaty “with respect to” the vessel in which the owner or mortgagee holds an interest. Petitioners qualify as both “owners” and “mortgagees” “with respect to [the Vessels].”
This concludes the analysis submitted by Petitioner for consideration.
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a petition requesting MARAD to issue a determination that the ownership and control requirements and the preferred mortgage requirements of the American Fisheries Act of 1998 and 46 CFR Part 356 are in conflict with an international investment agreement.
The Maritime Administration (MARAD, we, our, or us) is soliciting public comments on a petition from the owners and mortgagees of the vessel GREAT PACIFIC—Official No. 608458 (hereinafter the “Vessel”). The petition requests that MARAD issue a decision that the American Fisheries Act of 1998 (“AFA”), Division C, Title II, Subtitle I, Pub. L. 105-277, and our regulations at 46 CFR Part 356 (65 FR 44860 (July 19, 2000)) are in conflict with the U.S.-Japan Treaty and Protocol Regarding Friendship, Commerce and Navigation, 206 UNTS 143, TIAS 2863, 4 UST 2063 (1953) (“U.S.-Japan FCN” or “Treaty”). The petition is submitted pursuant to 46 CFR 356.53 and section 213(g) of AFA, which provide that the requirements of
You should submit your comments early enough to ensure that Docket Management receives them not later than March 26, 2001.
Comments should refer to the docket number that appears at the top of this document. Written comments may be submitted by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, D.C. 20590-0001. You may also send comments electronically via the Internet at http://dms.dot.gov/submit/. All comments will become part of this docket and will be available for inspection and copying at the above address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except Federal Holidays. An electronic version of this document and all documents entered into this docket are available on the World Wide Web at
John T. Marquez, Jr. of the Office of Chief Counsel at (202) 366-5320. You may send mail to John T. Marquez, Jr., Maritime Administration, Office of Chief Counsel, Room 7228, MAR-222, 400 Seventh St., SW., Washington, D.C., 20590-0001 or you may send e-mail to John.Marquez@marad.dot.gov.
The AFA was enacted in 1998 to give U.S. interests a priority in the harvest of U.S.-fishery resources by increasing the requirements for U.S. Citizen ownership, control and financing of U.S.-flag vessels documented with a fishery endorsement. MARAD was charged with promulgating implementing regulations for fishing vessels of 100 feet or greater in registered length while the Coast Guard retains responsibility for vessels under 100 feet.
Section 202 of the AFA, raises, with some exceptions, the U.S.-Citizen ownership and control standards for U.S.-flag vessels that are documented with a fishery endorsement and operating in U.S.-waters. The ownership and control standard was increased from the controlling interest standard (greater than 50%) of section 2(b) of Shipping Act, 1916 (“1916 Act”), as amended, 46 App. U.S.C. § 802(b), to the standard contained in section 2(c) of the 1916 Act, 46 App. U.S.C. § 802(c), which requires that 75 percent of the ownership and control in a vessel owning entity be vested in U.S. Citizens. In addition, section 204 of the AFA repeals the ownership grandfather “savings provision” in the Anti-Reflagging Act of 1987, Public Law 100-239, § 7(b), 101 Stat 1778 (1988), which permits foreign control of companies owning certain fishing vessels.
Section 202 of the AFA also establishes new requirements to hold a preferred mortgage on a vessel with a fishery endorsement. State or federally chartered financial institutions must now comply with the controlling interest standard of section 2(b) of the 1916 Act in order to hold a preferred mortgage on a vessel with a fishery endorsement. Entities other than state or federally chartered financial institutions must either meet the 75% ownership and control requirements of § 2(c) of the 1916 Act or utilize an approved U.S.-Citizen Mortgage Trustee that meets the 75% ownership and control requirements to hold the preferred mortgage for the benefit of the non-citizen lender.
Section 213(g) of the AFA provides that if the new ownership and control provisions or the mortgagee provisions are determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party, such provisions of the AFA shall not apply to the owner or mortgagee on October 1, 2001, with respect to the particular vessel and to the extent of the inconsistency. MARAD's regulations at 46 CFR § 356.53 set forth a process wherein owners or mortgagees may petition MARAD, with respect to a specific vessel, for a determination that the implementing regulations are in conflict with an international investment agreement. Petitions must be noticed in the
Great Pacific Limited Partnership (the “Vessel Owner” or the “Partnership”), Wards Cove Packing Company (“Wards Cove”), Dall Head, Inc. (“DHI”), Western Alaska Fisheries, Inc. (“WAF”) and Maruha Corporation (“Maruha”) are owners of direct and indirect interests in the Vessel Owner and the Vessel. Alyeska Seafoods, Inc. (“Alyeska”) is a seafood processor that has entered into loans and other contractual arrangements with the Partnership and its partners and that is owned in substantial part by Maruha. (Each of the above identified parties is referred to hereinafter individually as a “Petitioner” and collectively as the “Petitioners.”)
The Petitioner provided the following information about the ownership, mortgage structure and other contractual obligations of the Vessel:
Great Pacific Limited Partnership, a Washington limited partnership formed in 1991 for the purpose of acquiring and operating the GREAT PACIFIC, is the owner of the Vessel. DHI, the sole general partner of Great Pacific Limited Partnership, is a Washington corporation which has a 51% interest in the partnership. All of DHI's officers and directors are individual U.S. Citizens and 100% of the issued and outstanding capital stock of DHI is owned by Wards Cove. Wards Cove, a fish processing company which has been engaged in processing salmon and other fish and shellfish species in Alaska since 1912, is owned entirely by U.S. Citizens.
WAF, an Alaska Corporation, is the sole limited partner of Great Pacific
The purchase of the GREAT PACIFIC by Great Pacific Limited Partnership was financed in part by unsecured loans provided by Alyeska to Wards Cove and WAF. The proceeds of these loans, together with additional equity capital provided separately by WAF and Wards Cove, were ultimately contributed as capital to Great Pacific Limited Partnership in proportion to the partners' resulting ownership interests. Great Pacific Limited Partnership used these capital contributions to purchase the GREAT PACIFIC. There are no mortgages or other security interests encumbering the GREAT PACIFIC.
Alyeska assisted in financing the acquisition of the Vessel by the Vessel Owner with the understanding that the fish harvested by the Vessel would be sold to Alyeska and in reliance on the assured revenue stream which sales to Alyeska would provide to the Vessel Owner and its partners.
Great Pacific Limited Partnership entered into a Commercial Revolving Credit Line Loan and Security Agreement, dated February 10, 1999, with Alyeska under which Alyeska agreed to provide the Partnership an $800,000 working capital revolving line of credit. This line of credit is secured by a security interest in all accounts, contract rights and proceeds arising from the Partnership's sale of fish to Alyeska. The Petitioners state that Alyeska has no right to control the Vessel Owner or the operation, management or harvesting activities of the Vessel under the terms of the Commercial Revolving Credit Line Loan and Security Agreement.
Great Pacific Limited Partnership entered into a Fishing Commitment Agreement with Alyeska, dated April 28, 2000, in which the Partnership agreed that the Vessel will harvest pollock and deliver at least 90% of its total pollock catch each year to Alyeska's processing plant at Dutch Harbor (Unalaska), Alaska. Petitioners note that the terms of the Fishing Commitment Agreement essentially mirror the contractual commitments which Alyeska has made to the other vessel owners delivering to Alyeska under the auspices of the Unalaska Fleet Cooperative. In return for the Partnership's commitment and consistent with Alyeska's arrangements with the other vessel owners who have agreed to deliver fish to its Dutch Harbor processing plant, Alyeska has agreed to pay the Partnership a substantial annual “commitment fee.” The term of the Fishing Commitment Agreement is from January 1, 2000 to December 31, 2004, unless sooner terminated by either party. The Agreement is terminable by either party at any time by written notice to the other, with or without cause. The Petitioners state that the Agreement contains no provisions that convey control of the Partnership or the Vessel's operation, management or harvesting activities to Alyeska or any other Non-Citizen.
The Petitioners seek a determination from MARAD under section 213(g) of the Act and 46 CFR 356.53 that they are exempt from the requirements of sections 202, 203 and 204 of the AFA and 46 CFR Part 356 on the ground that the requirements of the AFA and 46 CFR Part 356, as applied to Petitioners with respect to the Vessels, conflict with U.S. obligations under U.S.-Japan FCN. The Petitioners request a determination that the restrictions placed on foreign ownership, foreign financing and foreign control of U.S.-flag vessels documented with a fishery endorsement contained in 46 CFR Part 356 and sections 202, 203 and 204 of the AFA do not apply to Petitioners with respect to:
(1) the existing ownership interests in the Vessels held, directly or indirectly, by the Vessel Owner, WAF, or Maruha;
(2) Alyeska's loans to the Partnership and to the partners of the Partnership; and
(3) the Fishing Commitment Agreement between Alyeska and the Partnership.
MARAD's regulations at 46 CFR 356.53(b)(3) require Petitioners to submit a detailed description of how the provisions of the international investment agreement or treaty and the implementing regulations are in conflict. The entire text of the FCN Treaty is available on MARAD's internet site at
“A. The AFA's Limitations and Restrictions on Foreign Involvement in the U.S. Fishing Industry are Inconsistent with U.S. Obligations Under the U.S.-Japan FCN.
“1.
“(a)
“The AFA's new restrictions on foreign investment in fishing vessels will prohibit the Partnership from employing the Vessel in the U.S. fisheries on and after October 1, 2001, because the extent of Japanese investment in the Vessel Owners exceeds the maximum permitted by the AFA.
“A vessel cannot lawfully be employed in the fisheries of the United States unless it is documented as a vessel of the United States with a fishery endorsement issued pursuant to 46 U.S.C. Chapter 121. 46 U.S.C. Chapter 121 sets out the requirements which must be met for a vessel to be eligible for documentation with a fishery endorsement, including requirements related to the citizenship of vessel owners and their investors.
“The GREAT PACIFIC is a fishing vessel, designed and constructed or rebuilt for use in the U.S. fisheries and operated in the U.S. fisheries of the North Pacific Ocean and Bering Sea. The Vessel has no other significant economic uses. The Partnership is eligible to own a vessel with a fishery endorsement under the current standards of 46 U.S.C. Chapter 121, since DHI, a U.S. Citizen, is the sole general partner of the Partnership and owns a majority interest in the Partnership.
“However, the Partnership will be prohibited from owning or operating the Vessel in the U.S. fisheries on and after October 1, 2001, under the new restrictions on foreign investment in fishing vessels imposed by the AFA and MARAD's implementing rules, codified at 46 CFR Part 356.
“(b)
“The AFA's impairment of Petitioners' existing ownership interests in the Vessel violates their right to “national treatment” under Article VII.1 and the grandfather provision of Article VII.2 of the U.S.-Japan FCN.
“The U.S.-Japan FCN was one of a series of similar Friendship, Commerce and Navigation (“FCN”) Treaties entered into by the United States with various countries after World War II, based on a standard State Department treaty text. All of these treaties reflect U.S. post-war policy to encourage and protect international trade and investment. Herman Walker, Jr., the principal author of the standard FCN treaty text and one of the principal State Department negotiators during this period, has described the FCN treaties as “concerned with the protection of persons, natural and juridical, and of the property interests of such persons.”
“Article VII.1 of the U.S.-Japan FCN guarantees broad “national treatment” for the nationals and enterprises of the U.S. and Japan when doing business within the jurisdiction of the other country. Article XXII.1 of the U.S.-Japan FCN defines “national treatment” as “treatment accorded within the territories of a Party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such Party.” The principle of national treatment is the central principle of all of the post-war FCN treaties. National treatment requires that each State Party must treat nationals of the other in the same way that it treats its own nationals. The treaties focus on business and investment. “The right of corporations to engage in business on a national-treatment basis may be said to constitute the heart of the treaty as an investment instrument.”
“The Preamble of the U.S.-Japan FCN provides that guaranteeing nationals of each Party “national * * * treatment unconditionally” is one of the two general principles upon which the U.S.-Japan FCN was based. Use of the word “unconditionally” in this context clearly demonstrates the strength of the drafters' general intent. Accordingly, the exceptions to the principle of national treatment stated in the U.S.-Japan FCN must be narrowly construed.
“The AFA's retroactive prohibition of the ownership interest in the Partnership acquired by WAF in compliance with existing law clearly denies national treatment to WAF, Maruha and the Partnership. The AFA's new limitation on foreign ownership of fishing vessels is thus inconsistent with the most fundamental principle of the U.S.-Japan FCN.
“The first sentence of Article VII.2 of the U.S.-Japan FCN provides a limited exception to the principle of national treatment for enterprises engaged in “the exploitation of land or other natural resources.” Even in that context, however, the second sentence of Article VII.2 (referred to as the “grandfather” provision of Article VII.2) prohibits application of new restrictions and limitations to Japanese nationals or enterprises which have previously “acquired interests” in enterprises owning U.S. fishing vessels or have previously engaged in the business activities now to be restricted. Article VII.2 provides in pertinent part:
Each Party reserves the right to limit the extent to which aliens may within its territories establish, acquire interests in, or carry on * * * enterprises engaged in * * * the exploitation of land or other natural resources.
“A study commissioned by the State Department of its past interpretations of the FCN treaties notes that, under the grandfather provision of Article VII.2, “protection is afforded to any privilege granted * * * prior to a change in national treatment; hence at a minimum these foreign enterprises are guaranteed the maintenance of their existing operations.”
The net effect [of the second sentence of Article VII.2] is that, although not obligated to allow alien interests to become established in those fields of activity,
The second sentence of Article VII(2) is a grandfather clause intended in the interest of fairness to protect legitimately established alien enterprises against retroactive impairment.”
“Both State Parties placed great importance on the grandfather provision of Article VII.2 because they recognized that it would not only protect existing property rights but would entitle foreign-owned enterprises to continue to operate in the same manner as before, notwithstanding later limitations placed on the rights of foreign-owned entities to engage in such business activities. It was a “principal negotiating point” of the U.S. side to ensure that the reservations in Article VII.2 would not permit retroactive application of any new limits to companies already engaged in relevant business activities.
“The U.S. negotiators therefore resisted efforts to modify the grandfather provision of Article VII.2, despite strong Japanese efforts to restrict its application. As an indication of the importance the Japanese negotiators attached to the provision, the Japanese Embassy at one point late in the negotiations indicated that the Ministry of Finance might be persuaded to withdraw “all other objections” to the draft treaty if the sentence granting grandfather rights to existing businesses were deleted.
“As adopted, the second sentence of Article VII.2 follows the standard treaty text developed by the State Department and used as the basis for more than a dozen FCN treaties. The Sullivan Study notes the breadth of the protection this sentence affords existing companies otherwise subject to VII.2. The Sullivan Study indicates that an enterprise protected by the Article VII.2 grandfather provision is not only protected as to existing property interests or contract rights, but “is able to enjoy what may be considered normal business growth in terms of acquiring new customers and increasing the dollar volume of its business, but it cannot claim expanded privileges. * * *”
“In short, the protections afforded existing investments and existing businesses by the second sentence of Article VII.2 were seen by the U.S. as a key part of the U.S.-Japan FCN and similar FCN treaties, providing substantial protections to foreign investors and businesses. The provision affords WAF and Maruha the right to continue to hold their direct and indirect investments in the Partnership and the Vessel and, more generally, to continue to transact business with the Partnership on the same basis as permitted prior to passage of the AFA. Similarly, the Article VII.2 grandfather provision guarantees the Partnership the right to own and operate the Vessel in the U.S. fisheries on equal terms with wholly domestic enterprises.
“Maruha is clearly entitled to protection as a Japanese enterprise which, at the time the AFA was adopted, was “engaged in * * * activities” within the United States which the AFA, but for Section 213(g), would prohibit, limit or restrict. WAF, Alyeska and the Partnership likewise come within the protection of the Article VII.2 grandfather provision by reason of the direct and indirect ownership interests in them held by Maruha and, in the case of Alyeska, by Marubeni. Thus, the Article VII.2 grandfather provision protects the rights of Maruha, WAF, Marubeni and Alyeska to invest in or transact business with the Partnership and protects the Partnership's right to continue to own and operate the Vessels in the U.S. fisheries.
“As noted above, the Article VII.2 grandfather provision not only protects pre-existing rights and interests acquired, directly or indirectly, by Japanese nationals prior to a discriminatory change in the law, but protects pre-existing enterprises from such changes. Accordingly, the Article VII.2 grandfather provision, together with Section 213(g) of the AFA, exempts the Petitioners from the restrictions of Sections 202, 203 and 204 of the AFA and 46 CFR Part 356, not only (a) with respect to their existing direct and indirect ownership interests in the Partnership and/or the Vessel, but also (b) with respect to existing loan, financing and other contractual arrangements related to the Vessel and (c) with respect to future dealings between or among the Petitioners related to the Vessel and deemed necessary or appropriate to protect or further the existing interests of the Petitioners in the Vessel.
“2.
“(a)
“The AFA and MARAD's implementing regulations impair the existing loan, working capital financing and other contractual arrangements described above between Alyeska, WAF, Wards Cove and the Partnership by requiring that all such arrangements be reviewed and approved by MARAD prior to October 1, 2001, under the new standards imposed by the AFA and MARAD's implementing rules. Failure to obtain MARAD approval will result in disqualification of the Partnership to own and operate the Vessel in the U.S. fisheries. Application to Petitioners of the AFA's new restrictions on foreign financing and “control” of fishing vessels impairs Petitioners” rights in violation of Article VII.1.
“The AFA and MARAD's implementing rules require that the terms of all loans provided by a Non-Citizen to a fishing vessel owner must be approved by MARAD under the AFA's new “control” standards.
“MARAD has taken the position that loans by a Non-Citizen minority investor to the U.S. Citizen general partner of a vessel-owning limited partnership are likely to involve an impermissible degree of Non-Citizen control.
“Further, the AFA's restrictions on future financing transactions between Alyeska or other Non-Citizen Petitioners and the Partnership or its U.S. Citizen partners will substantially impair the rights and interests of the Non-Citizen Petitioners in violation of Article VII.1. Existing law permits a Non-Citizen to make loans to the owner of a fishing vessel, secured by a preferred mortgage on the vessel.
“The AFA's restrictions on foreign financing of fishing vessels will limit and restrict the ability of Maruha and WAF, directly or through Alyeska, to protect their existing investment in the Vessel Owner by offering future financing for major vessel repairs or improvements which may become necessary to permit the Vessel Owner to operate profitably—or at all. Since financing from a financial institution may be unavailable to the Vessel Owner, the ability of Alyeska, WAF and/or Maruha to make loans to support the Vessel's continuing operations may be the only means available to protect the Vessel Owner from insolvency. Thus, the AFA's restrictions on the ability of the Non-Citizen Petitioners to make loans to the Vessel Owner without MARAD approval or to take security in the Vessel jeopardize the existing financial and business interests of Alyeska, WAF and Maruha in the Vessel Owner and the Vessel.
“Finally, the new restrictions imposed by the AFA and MARAD's regulations on the ability of Alyeska to make loans to the Vessel Owner will disrupt Alyeska's ability to ensure a reliable supply of fish to its processing facility. Alyeska's ability to provide financing for operations and for the repair or improvement of the Vessel is a necessary means to ensure a stable supply of fish to its processing plant. A processor's agreement to provide financing to qualified U.S. vessel owners in return for the vessel owner's agreement to sell the vessel's catch exclusively to the processor is a customary means by which vessel owners finance their working capital needs and the acquisition, repair or improvement of their vessels and by which processors secure a reliable supply of fish to their plants. Such financing arrangements between vessel owners and processors, both wholly domestic and Non-Citizen processors, are common and traditional in the Alaska fishing industry. Further, the continued ability of the Vessel Owner to supply fish to Alyeska may depend on the ongoing availability of financing from Alyeska for operating funds, emergency repairs or improvements for which bank financing is not available or not available on a timely basis. Non-Citizen processors, such as Alyeska, which have invested many millions of dollars in shore-based processing plants in remote locations in Alaska, must have the ability, like their wholly domestic competitors, to secure and protect the supply of fish to their plants by financing the repair, improvement or operation of fishing vessels in return for continuing fish deliveries. Just as the Petitioners' existing ownership and loan arrangements with respect to the Vessel are protected by the Treaty, the Treaty protects the ongoing ability of the Non-Citizen Petitioners to modify and restructure existing loans and security arrangements with the Vessel Owner and Wards Cove or Dall Head and to make new loans to and enter into ancillary contractual arrangements with the Vessel Owner and its general partner to protect or further their existing business interests in the Vessel.
“(b)
“The new restrictions on foreign financing of fishing vessels imposed by the AFA and MARAD's implementing regulations violate Article VII.1's national treatment guaranty by (1) subjecting the terms of existing and future loans provided to the Partnership by Alyeska, WAF or Maruha to a new requirement of administrative review and approval by MARAD under the new foreign “control” restrictions of the AFA and MARAD's implementing rules;
“Article VII.1 extends full national treatment protection “with respect to engaging in all types of commercial, industrial, financial and other business activities.” The negotiating history of the U.S.-Japan FCN leaves no doubt that loans and lending by foreign-owned lenders are entitled to full national treatment under the first sentence of Article VII.1.
“At the fourth informal meeting of the U.S. and Japanese negotiators, the Japanese negotiators argued that foreign-owned banks should be denied national treatment, as well as most-favored-nation protection. One reason given was that their loans could result in the foreign-owned bank lender controlling key industries.
“A cable from U.S. State Department headquarters in Washington noted that the Japanese proposal, and in particular its interest in denying national treatment to bank loans, reflected an attitude that creates a “difficulty going to heart of treaty.”
“A Department cable explained why the exception to national treatment provided by the first sentence of the U.S. draft of Article VII.2 was limited to only the depository and fiduciary functions of banks.
“The exception to national treatment for certain banking functions in the first sentence of Article VII.2 is the same as in the standard FCN treaty text. The Sullivan Study notes that “this reservation is stated in terms intended to circumscribe it as much as possible, thereby maximizing the extent to which the banking business remains subject to the rule [of national treatment] set forth in Article VII(1).”
“It is clear, therefore, that the reference in the first sentence of Article VII.2 to “banking involving depository or fiduciary functions” does not include the lending activities of Alyeska, its shareholders or affiliates. Both the U.S. and Japanese negotiators were in full agreement as to the meaning of this phrase. Thus, the financing activities of banks and other lenders are entitled to the full national treatment under Article VII.1.
“The provisions of the AFA and MARAD's implementing rules which restrict the right of Japanese-owned entities to make loans secured by mortgages on U.S. vessels or to make such loans without prior MARAD approval of the loan terms are inconsistent with the guaranty of national treatment in Article VII.1. The rationale that such loan activities may be restricted on the grounds that they could result in a degree of control over sensitive industries was specifically considered by the U.S. negotiators and rejected as a valid reason for limiting the Treaty's protections for such lending activities. The control argument presented by Japan at that time is the same argument used to justify the restrictions of the AFA. Although the negotiating history deals largely with banking, the language of Article VII.1 extends the protections of national treatment broadly to “all types of * * * financial * * * activities.” Under Article VII.1, neither State Party may restrict loans by foreign-owned entities, whether secured by vessels of their national flag or otherwise.
“The AFA and MARAD's implementing rules impose new restrictions on the ability of Alyeska, Maruha and WAF, going forward, to protect their existing financial interests in the Partnership and the Vessel by,
Application of the AFA's new “control” standards to restrict the ability of Alyeska, its shareholders or affiliates to do business with the fishing vessel owners that supply fish to Alyeska's processing plant, as they have done in the past and on the same terms as Alyeska's U.S. Citizen competitors, would deny national treatment to Alyeska and its Japanese investors. The State Department has recognized that the exception to the requirement of national treatment that may apply with respect to the ownership of fishing vessels under the first sentence of Article VII.2 does not apply to fish processors.
“For these reasons, Petitioners seek a determination by MARAD that Sections 202 and 203 of the AFA and MARAD's implementing regulations do not apply to Petitioners with respect to (a) existing loans, loan documents and security agreements previously executed by the Vessel Owner in favor of Alyeska, including the vessel acquisition loans, the revolving line of credit and the Fishing Commitment Agreement; or (b) future financing, marketing or other contractual arrangements between the Non-Citizen Petitioners and the Vessel Owner with respect to the Vessel, including loans for repair, improvement or replacement of the Vessel, working capital financing and exclusive marketing agreements.
3.
“The first sentence of Article VI.3 of the Treaty states that “[p]roperty of nationals and companies of either Party shall not be taken within the territories of the other Party except for a public purpose, nor shall it be taken without the prompt payment of just compensation.” This “takings” provision precludes expropriations and other measures that substantially impair a Japanese national's direct and indirect property rights. Applying the AFA's new restrictions to prohibit WAF from holding its pre-existing ownership interest in the Vessel Owner or to subject Alyeska's contractual rights under the terms of existing loans to the Vessel Owner and its partners to a new condition of MARAD review and approval—particularly, since MARAD has made clear that it will not approve such loans—would deprive WAF and Alyeska of their property in violation of Article VI.3. Similarly, applying the AFA's new restrictions to prohibit the Vessel Owner from owning and operating the Vessel in the U.S. fisheries would deprive the Vessel Owner and its Japanese investors of their property interests in the Vessel and its fishery endorsement in violation of Article VI.3.
“The term “property” in Article VI.3 includes not simply direct ownership but also a wide variety of property interests, such as those which the Non-Citizen Petitioners have in the Vessel Owners and in the Vessels. The Protocol to the U.S.-Japan FCN explicitly states that “[t]he provisions of Article VI, paragraph 3 * * * shall extend to interests held directly
In short, “all property interests are contemplated by the provision.”
“The concept of a taking in this context is broad and “is considered as covering, in addition to physical seizure, a wide variety of whole or partial sequestrations and other impairments of interests in or uses of property.”
“Further, a taking is permitted under the Treaty only for a “public purpose,” and it is clear that application of the AFA's ownership restrictions to the Vessel Owner so as to force a divestiture by WAF or the Vessel Owner to a private party which qualifies as a U.S. Citizen under the AFA would not satisfy the “public purpose” requirement of the U.S.-Japan FCN. Even if such a forced sale to a private party could be characterized as having a “public purpose,” the AFA makes no provision for the “prompt payment of just compensation,” as required by Article VI.3. The fact that the AFA and 46 CFR Part 356 fail to provide any compensation scheme—let alone “adequate provision * * * at or prior to the time of taking for the determination and payment thereof”—is another basis for concluding that the AFA's retroactive limitations on foreign ownership and foreign financing of fishing vessels are inconsistent with Article VI.3 of the U.S.-Japan FCN.
“4.
“The new restrictions imposed by the AFA and MARAD's implementing rules on foreign involvement in the U.S. fishing industry are “unreasonable or discriminatory measures” that impair the legally acquired rights and interests of Petitioners in violation of Article V of the Treaty.
“Article V provides that “[n]either Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established * * * ” The provision follows the standard FCN treaty language, except that the language was moved from Article VI.3 in the standard text to a new Article V and certain additional language, not relevant here, was added. According to the Sullivan Study, the provision “offers a basis in rather general terms for asserting protection against excessive governmental interference in business activities or particular activities not specifically covered by the treaty.”
“Thus, Article V was intended as a general prohibition of discriminatory restrictions not covered by other provisions of the U.S.-Japan FCN and of restrictions that do not rise to the level of a “taking.” Article V prohibits deprivations of both most-favored nation treatment and national treatment.
“The intrusive and discriminatory restrictions imposed by the AFA and MARAD's implementing rules on transactions between Non-Citizens processors, such as Alyeska, and U.S. fishing vessel owners place Non-Citizen processors at a significant competitive disadvantage. U.S. Citizen processors and other lenders are free to make loans and to enter into contracts with fishing vessel owners without restriction. U.S. Citizen processors remain free to secure a reliable supply of fish by making loans, unrestricted in amount, for fishing vessel acquisitions, conversions and improvements in return for exclusive marketing relationships while Non-Citizen processors are prohibited from making similar arrangements. MARAD has stated that Non-Citizen processors will be flatly prohibited from taking security in fishing vessels to secure loans to vessel owners.
“Under 46 CFR 356.45(a), a Non-Citizen lender is not even permitted to make an unsecured loan to a fishing vessel owner, if the amount of the loan exceeds the annual value of the vessel's catch. Under § 356.45(b), a Non-Citizen lender is not permitted to make an unsecured loan, if the lender is “affiliated with any party with whom the owner * * * has entered into a mortgage, long-term or exclusive sales or purchase agreement, or other similar contract. * * * .” On their face, these provisions severely restrict permissible future loans by Alyeska, WAF or Maruha to the Vessel Owner. Thus, loans by Alyeska, WAF or Maruha to the Vessel Owner, which may be necessary to protect their existing interests, are severely restricted under MARAD's interpretation of the AFA.
“Further, the requirement of MARAD review and approval is itself an unreasonable and discriminatory burden, particularly in the absence of coherent published standards.
“5.
“Article XIX.6 provides that notwithstanding any other provision of the Treaty, “each Party may reserve exclusive rights and privileges to its own vessels with respect to the * * * national fisheries. * * *” This provision does not authorize the discriminatory limitations on Japanese investment, financing and related contractual arrangements contained in the AFA and MARAD's implementing rules.
“Even if Article XIX.6 is interpreted as applying to fishing vessels,
“The historical record of the negotiations provides further evidence that Article XIX.6 was not intended to override Article VII's national treatment requirements with respect to foreign investment in or financing of U.S. flag fishing vessels or other dealings between foreign-owned enterprises and fishing vessel owners. At one point, the Japanese negotiators proposed rewriting Article XIX.6 to provide that the national treatment provisions of the Treaty would not extend to “nationals, companies and vessels of the other Party any special privileges reserved to national fisheries.”
“Subsequent practice of the State Department confirms this reading of Article XIX.6. In 1964, the State Department reaffirmed the narrow scope of Article XIX.6 in a letter to the House Committee on Merchant Marine and Fisheries. The letter makes clear that the provision merely permits the United States to reserve the right to catch or land fish to U.S. flag vessels.
“This reading of Article XIX.6 in the U.S.-Japan FCN also comports with the State Department's reading of this same language in other FCN treaties to which the U.S. is a party. The Sullivan Study explicitly states that “[t]he crucial element in Article XIX is that it relates to the treatment of vessels and to the treatment of their cargoes. It is not concerned with the treatment of the enterprises which own the vessels and the cargoes.”
“6.
“The terms of the U.S.-Japan FCN and the other FCN treaties which share the same language are reciprocal—that is, the principle of “national treatment” applies not only to protect the investments of foreign nationals in the United States but also to protect the investments of U.S. nationals in Japan and other countries. Thus, any interpretation of the U.S.-Japan FCN adopted by MARAD in the present context will also define the rights of U.S. nationals doing business in Japan and other countries, now and in the future. A narrow interpretation of the U.S.-Japan FCN's protections for Japanese enterprises and their investments in the present context will effectively limit the rights of U.S. investors and U.S. businesses in Japan and other countries with which the United States has concluded similar FCN treaties.
“For this reason, the State Department has interpreted the national treatment requirement of the FCN treaties broadly in the past.
“7.
“The United States has agreed in Article XXIV of the Treaty to give “sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the [Government of Japan] may make with respect to any matter affecting the operation of the present Treaty.” The Government of Japan has strongly objected to the application of the AFA's new limitations and restrictions on foreign ownership, foreign financing and foreign control of U.S. fishing vessels to Japanese nationals and companies that have invested in the U.S. fisheries prior to the effective date of the Act on the ground that such application would violate the U.S.-Japan FCN. In a letter to the Office of Legal Adviser, U.S. Department of State, dated August 30, 1999, the Minister for Economic Affairs of the Embassy of Japan stated that the AFA's “new U.S. citizen ownership and control requirements” “if applied without exception, would impair the legally acquired rights or interests of Japanese nationals and corporations in the United States of America.”
As an existing international agreement relating to foreign investment, we would like to refer to the Treaty of Friendship, Commerce and Navigation between Japan and the United States of America, hereinafter referred to as “the Treaty.” Paragraph two of Article VII of the Treaty states that ” * * * new limitations imposed by either Party upon the extent to which aliens are accorded national treatment, with respect to carrying on such activities within its territories, shall not be applied as against enterprises which are engaged in such activities therein at the time such new limitations are adopted and which are owned or controlled by nationals and companies of the other Party.” The Government of Japan is of the view that since the new requirements under the provisions of Subsection 202(c)
Moreover, paragraph one of Article V of the Treaty states that “Neither Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established, in their capital, in the skills, arts or technology which they have supplied;—.” This provision indicates that any U.S. government measure that impairs the legally acquired rights or interests of Japanese nationals and companies should not be permitted under this Treaty. Therefore, the Japanese nationals and companies that have already invested in fisheries in the United States should be exempted from the application of the new requirements under Subparagraph 202(c) of the AFA.
Accordingly, the Government of Japan is of the view that the entities that are engaged in fishing activities and owned or controlled by Japanese nationals and corporations should be exempted from the new requirements set forth in the Section 202(c) * * *
In a subsequent letter to the Department of State, dated January 24, 2000, the Embassy of Japan expressed the “concern” of the Government of Japan about regulations proposed by MARAD to implement the AFA.
The proposed regulations would require a private company to provide interpretations of the Treaty and the AFA as an attached document to the petition for exemption from the AFA, as prescribed in Section 356.53(b)(3). It is rather the obligation of the Government of the United States as party to the Treaty to do so.
The Government of Japan requested “that the Government of the United States fully ensure * * * that all Japanese companies at present engaged in fishery activities be exempted from the new requirements prescribed in Section 202 of the AFA.”
“Thus, the Government of Japan has strongly expressed the view that the AFA's new restrictions on foreign investment, foreign financing and foreign control of U.S. fishing vessels are inconsistent with the U.S.-Japan FCN as applied to companies with existing Japanese investment. In light of the obligation of the United States under Article XXIV of the Treaty to give “sympathetic consideration” to the representations of the Government of Japan concerning the conflict between Section 202 of the AFA and the Treaty and the interest of the United States in the protection of its own enterprises and investors abroad, MARAD should acknowledge the conflict between the AFA and the U.S.-Japan FCN and issue an order holding that Petitioners are exempt from the requirements of Section 202 of the AFA (and the implementing provisions of Section 203 and 46 CFR Part 356) with respect to the Vessels.
“B. AFA Section 213(g) Exempts Japanese Enterprises and U.S. Enterprises With Japanese Investment From the AFA's New Limitations and Restrictions on Foreign Ownership, Foreign Financing and Foreign “Control” of U.S. Fishing Vessels.
“Sections 202, 203 and 204 of the AFA and the implementing regulations published by MARAD on July 19, 2000, codified at 46 CFR Part 356, impose a host of new limitations and restrictions on foreign ownership of fishing vessels, foreign financing of fishing vessels and contractual arrangements between foreign enterprises or U.S. companies with substantial foreign ownership and U.S. fishing vessel owners. As demonstrated above, if applied to Petitioners, these new limitations and restrictions would deprive Petitioners of valuable existing ownership and contract rights and interests in violation of the U.S.-Japan FCN. Application of the new restrictions to bar Petitioners Alyeska, WAF or Maruha from entering into future transactions with the Vessel Owner, particularly financing and ancillary contractual arrangements, such as exclusive marketing agreements, would also violate the U.S.-Japan FCN by substantially impairing the ability of these Non-Citizen Petitioners to protect their existing rights and interests and to carry on their established businesses in the United States in conformity with past practice and on an equal footing with U.S. Citizens.
“To avoid these results, Congress included a provision in the AFA to ensure that the Act would not contravene U.S. treaty obligations. Section 213(g) provides in pertinent part:
In the event that any provision of section 12102(c) or section 31322(a) of title 46, United States Code, as amended by this Act, is determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party with respect to the owner or mortgagee on October 1, 2001 of a vessel with a fishery endorsement, such provision shall not apply to that owner or mortgagee with respect to such vessel to the extent of any such inconsistency. * * *
Section 213(g) makes clear that its reach is intended to extend to every “owner” or “mortgagee” holding an ownership or mortgage interest on October 1, 2001, when Sections 202, 203 and 204 of the AFA become effective. Section 213(g) provides explicitly that the exemption does not apply to “subsequent owners and mortgagees” who acquire their interests
Petitioners WAF, Maruha, Wards Cove and the Vessel Owner are “owners” who acquired their interests in the Vessel prior to October 1, 2001, and who intend to continue to hold those interests on and after October 1, 2001.
“The U.S.-Japan FCN is a self-executing treaty which is binding on MARAD as a matter of federal domestic law.
“The exemption provided by Section 213(g) is not limited to property rights, contract rights, debt interests or investment interests in existence on October 1, 2001, but rather applies to exempt an “owner” from the requirements of the AFA “to the extent of the inconsistency” between the Act and the Treaty. Petitioners qualify as “owners.” Petitioners are, therefore, exempt from the requirements of the AFA “to the extent of the inconsistency” between the AFA and the Treaty. As demonstrated above, the “inconsistency” between the AFA and the Treaty is three-fold: (1) The Treaty protects Petitioners' existing ownership interests in the Vessel, which the AFA would impair, prohibit or restrict; (2) the Treaty protects Petitioners' existing financing arrangements related to the Vessel, including the Alyeska loans to WAF and Wards Cove and Alyeska's Commercial Revolving Credit Line Loan and Security Agreement with the Vessel Owner and ancillary contract rights under the Fishing Commitment Agreement between Alyeska and the Vessel Owner, which the AFA would impair, prohibit or restrict; and (3) the Treaty protects future transactions between or among the Petitioners with respect to the Vessel, which the AFA would prohibit or restrict, including future loans, preferred mortgages and other financing and ancillary contractual arrangements, such as exclusive marketing agreements, which Petitioners may deem necessary or appropriate to protect their existing businesses and their existing financial interests in the Vessel and the Vessel Owner. Thus, Section 213(g) exempts Petitioners entirely from the restrictions and limitations of Sections 202, 203 and 204 of the AFA and MARAD's implementing rules with respect to the Vessel.
“The inconsistency between the provisions of the AFA and MARAD's implementing regulations and the requirements of the U.S.-Japan FCN is demonstrated above. Accordingly, under Section 213(g) of the Act, the provisions of Section 202, 203 and 204 “shall not apply” to Petitioners with respect to the Vessel.”
This concludes the analysis submitted by Petitioner for consideration.
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a petition requesting MARAD to issue a determination that the ownership and control requirements and the preferred mortgage requirements of the American Fisheries Act of 1998 and 46 CFR Part 356 are in conflict with an international investment agreement.
The Maritime Administration (MARAD, we, our, or us) is soliciting public comments on a petition from the owners and mortgagees of the vessel MORNING STAR—Official No. 610393 (hereinafter the “Vessel”). The petition requests that MARAD issue a decision that the American Fisheries Act of 1998 (“AFA”), Division C, Title II, Subtitle I, Public Law 105-277, and our regulations at 46 CFR Part 356 (65 FR 44860 (July 19, 2000)) are in conflict with the U.S.-Japan Treaty and Protocol Regarding Friendship, Commerce and Navigation, 206 UNTS 143, TIAS 2863, 4 UST 2063 (1953) (“U.S.-Japan FCN” or “Treaty”). The petition is submitted pursuant to 46 CFR 356.53 and section 213(g) of AFA, which provide that the requirements of the AFA and the implementing regulations will not apply to the owners or mortgagees of a U.S.-flag vessel documented with a fishery endorsement to the extent that the provisions of the AFA conflict with an existing international agreement relating to foreign investment to which the United States is a party. This notice sets forth the provisions of the international agreement that the Petitioner alleges are in conflict with the AFA and 46 CFR Part 356 and the arguments submitted by the Petitioner in support of its request. If MARAD determines that the AFA and MARAD's implementing regulations conflict with the U.S.-Japan FCN, the requirements of 46 CFR Part 356 and the AFA will not apply to the extent of the inconsistency. Accordingly, interested parties are invited to submit their views on this petition and whether there is a conflict between the U.S.-Japan FCN and the requirements of both the AFA and 46 CFR Part 356. In addition to receiving the views of interested parties, MARAD will consult with other Departments and Agencies within the Federal Government that have responsibility or expertise related to the interpretation of or application of international investment agreements.
You should submit your comments early enough to ensure that Docket Management receives them not later than March 26, 2001.
Comments should refer to the docket number that appears at the top of this document. Written comments may be submitted by mail to the Docket Clerk, U.S. DOT Dockets, Room PL-401, Department of Transportation, 400 7th St., SW., Washington, D.C. 20590-0001. You may also send comments electronically via the Internet at http://dms.dot.gov/submit/. All comments will become part of this docket and will be available for inspection and copying at the above address between 10 a.m. and 5 p.m., E.T., Monday through Friday, except Federal Holidays. An electronic version of this document and all documents entered into this docket are available on the World Wide Web at
John T. Marquez, Jr. of the Office of Chief Counsel at (202) 366-5320. You may send mail to John T. Marquez, Jr., Maritime Administration, Office of Chief Counsel, Room 7228, MAR-222, 400 Seventh St., SW., Washington, D.C. 20590-0001 or you may send e-mail to John.Marquez@marad.dot.gov.
The AFA was enacted in 1998 to give U.S. interests a priority in the harvest of U.S.-fishery resources by increasing the requirements for U.S. Citizen ownership, control and financing of U.S.-flag vessels documented with a fishery endorsement. MARAD was charged with promulgating implementing regulations for fishing vessels of 100 feet or greater in registered length while the Coast Guard retains responsibility for vessels under 100 feet.
Section 202 of the AFA, raises, with some exceptions, the U.S.-Citizen ownership and control standards for U.S.-flag vessels that are documented with a fishery endorsement and operating in U.S.-waters. The ownership and control standard was increased from the controlling interest standard
Section 202 of the AFA also establishes new requirements to hold a preferred mortgage on a vessel with a fishery endorsement. State or federally chartered financial institutions must now comply with the controlling interest standard of section 2(b) of the 1916 Act in order to hold a preferred mortgage on a vessel with a fishery endorsement. Entities other than state or federally chartered financial institutions must either meet the 75% ownership and control requirements of section 2(c) of the 1916 Act or utilize an approved U.S.-Citizen Mortgage Trustee that meets the 75% ownership and control requirements to hold the preferred mortgage for the benefit of the non-citizen lender.
Section 213(g) of the AFA provides that if the new ownership and control provisions or the mortgagee provisions are determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party, such provisions of the AFA shall not apply to the owner or mortgagee on October 1, 2001, with respect to the particular vessel and to the extent of the inconsistency. MARAD's regulations at 46 CFR 356.53 set forth a process wherein owners or mortgagees may petition MARAD, with respect to a specific vessel, for a determination that the implementing regulations are in conflict with an international investment agreement. Petitions must be noticed in the
Alyeska Seafoods, Inc. (“Alyeska”), Wards Cove Packing Company (“Wards Cove”), Maruha Corporation (“Maruha”) and Western Alaska Fisheries, Inc. (“WAF”), are the owners of direct or indirect interests in Morning Star, L.P. (the “Vessel Owner”) and indirect interests in the Vessel. Alyeska is the mortgagee under a preferred mortgage on the Vessel. (Alyeska, Maruha, Wards Cove and WAF are referred to hereinafter as a “Petitioner” and, collectively, as the “Petitioners.”)
The ownership and mortgage structure for the Vessel is as follows:
Morning Star, L.P., a Washington limited partnership (the “Vessel Owner”), is the owner of the Vessel. The Vessel Owner was formed in 1997 for the purpose of allowing Alyeska to acquire an interest in the Vessel. The sole general partner of Morning Star, L.P. is Morning Star Management, LLC, a Washington limited liability company which is owned entirely by individual U.S. Citizens and which owns 75% of the interest in Morning Star, L.P. Alyeska is the limited partner of Morning Star, L.P. and owns the remaining 25% interest in the limited partnership.
Alyeska is an Alaska corporation, formed in 1985 to acquire, construct and operate a large seafood processing facility at Dutch Harbor, Alaska. All of the capital stock of Alyeska is owned by Wards Cove, Maruha, WAF and Marubeni. Maruha and Marubeni are publicly traded Japanese corporations. WAF is a wholly-owned U.S. subsidiary of Maruha. Maruha, WAF and Marubeni collectively own more than 25% of the capital stock of Alyeska. Accordingly, Alyeska does not qualify as a U.S. Citizen under the standards of the AFA and MARAD's implementing rules and is therefore a “Non-Citizen,” as defined in 46 CFR 356.3(o).
Alyeska provided a loan to the Vessel Owner that is secured by a preferred mortgage on the Vessel. This loan remains outstanding and continues to be secured by this preferred mortgage.
Alyeska agreed to invest in the Vessel Owner and to provide a loan to that entity in order to ensure a stable supply of fish to Alyeska's Dutch Harbor facility and in reliance on the assured revenue stream which sales to Alyeska would generate for the Vessel Owner. The Limited Partnership Agreement of Morning Star, L.P. provides that the Vessel will sell its products primarily to Alyeska Seafoods, Inc. and that Alyeska will pay competitive prices for all such products. The only exceptions to the Partnership's obligation to deliver to Alyeska are where Alyeska lacks capacity to process a delivery and where Alyeska and Morning Star Management agree that the Vessel may sell into other markets.
The Petitioners seek a determination from MARAD under section 213(g) of the Act and 46 CFR 356.53 that they are exempt from the requirements of sections 202, 203 and 204 of the AFA and 46 CFR Part 356 on the ground that the requirements of the AFA and 46 CFR Part 356, as applied to Petitioners with respect to the Vessels, conflict with U.S. obligations under U.S.-Japan FCN. The Petitioners request a determination that the restrictions placed on foreign ownership, foreign financing and foreign control of U.S.-flag vessels documented with a fishery endorsement contained in 46 CFR Part 356 and sections 202, 203 and 204 of the AFA do not apply to Petitioners with respect to:
(1) The existing ownership interests in the Vessels held, directly or indirectly, by the Vessel Owner;
(2) the existing exclusive marketing agreement and other contract rights and interests ancillary to Alyeska's ownership interest in and financing arrangements with the Vessel Owner; and
(3) future loans, financing and other contract arrangements between the Petitioners and the Vessel Owner with respect to the Vessel the existing preferred mortgage interests in the Vessel held by Alyeska.
MARAD's regulations at 46 CFR 356.53(b)(3) require Petitioners to submit a detailed description of how the provisions of the international investment agreement or treaty and the implementing regulations are in conflict. The entire text of the FCN Treaty is available on MARAD's internet site at
“A. The AFA's Limitations and Restrictions on Foreign Involvement in the U.S. Fishing Industry Are Inconsistent With U.S. Obligations Under the U.S.-Japan FCN.
“1.
“a.
“The AFA will nullify the preferred mortgage interest in the Vessel currently held by Alyeska, impair Alyeska's rights and interests under existing financing documents, impair Alyeska's rights and interests under the exclusive marketing provision of the limited partnership agreement governing the Vessel Owner and prevent Alyeska and its Japanese shareholders from protecting their established businesses and interests by entering into future financing and contractual arrangements with the Vessel Owner.
“Current law permits wholly or partly Japanese-owned entities, including Alyeska, Maruha and WAF, to finance U.S. fishing vessels and to hold preferred mortgage interests in U.S. fishing vessels to secure their loans.
“The AFA will prohibit Alyeska from continuing to hold its existing preferred mortgage on the Vessel. Section 202(b) of the AFA amends 46 U.S.C. 31322(a) to disqualify Non-Citizens, such as Alyeska, from holding preferred mortgages on fishing vessels over 100 feet in registered length.
“Further, The AFA contains a new definition of impermissible Non-Citizen “control”
“In addition, however, MARAD has made clear that there is no way that Alyeska can preserve its mortgage interest under the AFA. MARAD has interpreted the AFA's requirements to prohibit Non-Citizen fish processors, such as Alyeska, from holding mortgages or other security interests in fishing vessels, even if the mortgage is held by a qualified Mortgage Trustee and the loan and mortgage terms are otherwise acceptable to MARAD.
“Alyeska's rights and interests under the exclusive marketing provision of the limited partnership agreement governing the Vessel Owner are also impaired by the AFA. Because of the injunction of Section 202(c)(2) of the AFA to “rigorously scrutinize” exclusive marketing agreements with Non-Citizens, 46 CFR 356.43(c) requires a fishing vessel owner to obtain prior MARAD approval before entering into such an agreement “if the agreement * * * contains provisions that in any way convey to the [Non-Citizen] purchaser * * * control over the operation, management or harvesting activities of the vessel, [or] vessel owner * * * other than as provided for in paragraph (b)” of that section. Since the Agreement of Limited Partnership of Morning Star, L.P. contains a variety of provisions related to the rights and obligations of Alyeska and Morning Star Management, LLC with respect to the management of the partnership, none of which are referenced in Section 356.43(b), it could be argued that the agreement “contains provisions that in [some] way convey to [Alyeska] control over * * * the vessel owner.” Accordingly, the AFA and Section 356.43(c) render the permissibility of the exclusive marketing provision of the limited partnership agreement and, accordingly, the Vessel Owner's continued eligibility for a fishery endorsement, uncertain.
“Further, even if Alyeska's existing mortgage interest and contract rights were found to be exempt from the requirements of the AFA and MARAD's implementing rules, the AFA's restrictions on future financing
“Finally, the new restrictions imposed by the AFA and MARAD's regulations on the ability of Alyeska to make loans to and to enter into exclusive marketing arrangements with fishing vessel owners will disrupt Alyeska's ability to secure a reliable supply of fish to its processing facility. Alyeska's ability to offer financing for the operation, construction, acquisition, repair or improvement of fishing vessels is a necessary means to secure a stable supply of fish to its processing plant. A processor's agreement to provide financing to qualified vessel owners in return for the vessel owner's agreement to sell the vessel's catch exclusively to the processor is a customary means by which vessel owners finance the operation, acquisition, repair or improvement of their vessels and processors secure a reliable supply of fish to their plants. Such arrangements between vessel owners and processors, both wholly domestic and Non-Citizen processors, are common and traditional in the Alaska fishing industry. Non-Citizen processors, such as Alyeska, which have invested many millions of dollars in shore-based processing plants in remote locations in Alaska, must have the ability, like their wholly domestic competitors, to secure a reliable supply of fish to their plants by financing the operation, acquisition, repair or improvement of fishing vessels in return for fish deliveries. Just as their existing ownership and mortgage interests are protected by the Treaty, Alyeska and its Japanese shareholders must also be able to modify and restructure their loans and related security arrangements with the Vessel Owner and make new loans to the Vessel Owner with respect to the Vessel in order to further and protect Alyeska's existing investment, mortgage and business interests in the Vessel, as circumstances may require.
“b.
“The new restrictions on foreign financing and foreign “control” of fishing vessels imposed by the AFA and MARAD's implementing regulations violate Article VII.1's national treatment guaranty by (1) depriving Alyeska of its existing preferred mortgage interest, securing its existing loan; (2) subjecting the terms of Alyeska's existing loan documents and exclusive marketing agreement with the Vessel Owner to a new requirement of administrative review and approval by MARAD under the new “control” standards of the AFA and MARAD's implementing rules; (3) depriving Alyeska of the value of its collateral and the income stream from operations on which Alyeska relied in making its loan; and (4) preventing Alyeska or its shareholders from refinancing its existing loan, making new loans to the Vessel Owner, taking a new mortgage on the Vessel or entering into other contractual arrangements with respect to the Vessel or the Vessel Owner necessary to further or protect their existing financial and business interests in the Vessel.
“Article VII.1 extends full national treatment protection “with respect to engaging in all types of commercial, industrial, financial and other business activities.” The negotiating history of the U.S.-Japan FCN leaves no doubt that loans and lending by foreign-owned lenders are entitled to full national treatment under the first sentence of Article VII.1.
“At the fourth informal meeting of the U.S. and Japanese negotiators, the Japanese negotiators argued that foreign-owned banks should be denied national treatment, as well as most-favored-nation protection. One reason given was that their loans could result in the foreign-owned bank lender controlling key industries.
“A cable from U.S. State Department headquarters in Washington noted that the Japanese proposal, and in particular its interest in denying national treatment to bank loans, reflected an attitude that creates a “difficulty going to heart of treaty.”
“A Department cable explained why the exception to national treatment provided by the first sentence of the U.S. draft of Article VII.2 was limited to only the depository and fiduciary functions of banks.
“The exception to national treatment for certain banking functions in the first sentence of Article VII.2 is the same as in the standard FCN treaty text. The Sullivan Study notes that “this reservation is stated in terms intended to circumscribe it as much as possible, thereby maximizing the extent to which the banking business remains subject to the rule [of national treatment] set forth in Article VII(1).”
“It is clear, therefore, that the reference in the first sentence of Article VII.2 to “banking involving depository or fiduciary functions” does not include the lending activities of Alyeska. Both the U.S. and Japanese negotiators were in full agreement as to the meaning of this phrase. Thus, the financing activities of banks and other lenders are entitled to the full national treatment under Article VII.1.
“The provisions of the AFA and MARAD's implementing rules which restrict the right of Japanese-owned entities to make loans secured by preferred mortgages on U.S. vessels or to make loans or enter into other commercial contracts with a vessel owner without prior MARAD approval of the loan or contract terms are inconsistent with the guaranty of national treatment in Article VII.1. The rationale that such loan activities may be restricted on the grounds that they could result in a degree of control over sensitive industries was specifically considered by the U.S. negotiators and rejected as a valid reason for limiting the Treaty's protections for such lending activities. The control argument presented by Japan at that time is the same argument used to justify the restrictions of the AFA. Although the negotiating history deals largely with banking, the language of Article VII.1 extends the protections of national treatment broadly to “all types of commercial * * * financial and other business activities.” Under Article VII.1, neither State Party may restrict loans by foreign-owned entities to the owners of fishing vessels of their national flag or commercial contract arrangements between them.
“The AFA and MARAD's implementing rules impose new restrictions on the ability of Alyeska and its shareholders, going forward, to protect their existing financial interests in the Vessel Owner and the Vessel by,
“Application of the AFA's new “control” standards to restrict the ability of Alyeska to do business with the vessel owners that supply fish to its processing plant, as it has done in the past and on the same terms as its U.S. Citizen competitors, would deny national treatment to Alyeska and its Japanese shareholders. The State Department has recognized that the exception to the requirement of national treatment that may apply with respect to the ownership of fishing vessels under the first sentence of Article VII.2 does not apply to fish processors.
“For these reasons, Petitioners seek a determination by MARAD that Sections 202, 203 and 204 of the AFA and MARAD's implementing regulations do not apply to Petitioners with respect to (a) Alyeska's existing preferred mortgage and associated loan documents previously executed by the Vessel Owner in favor of Alyeska; (b) the exclusive marketing agreement contained in the Morning Star Limited Partnership Agreement; or (c) future financing and ancillary contractual arrangements between Alyeska or its Japanese shareholders and the Vessel Owner, including exclusive marketing agreements.
“2.
“The first sentence of Article VI.3 of the Treaty states that “[p]roperty of nationals and companies of either Party shall not be taken within the territories of the other Party except for a public purpose, nor shall it be taken without the prompt payment of just compensation.” This “takings” provision precludes expropriations and other measures that substantially impair a Japanese national's direct and indirect property rights. Applying the AFA's new restrictions to prohibit Alyeska from holding its existing contract rights and preferred mortgage interest in the Vessel would deprive Alyeska of its property in violation of Article VI.3.
“The term “property” in Article VI.3 includes not simply direct ownership but also a wide variety of property interests, such as those which the Non-Citizen Petitioners have in the Vessel Owners and in the Vessels. The Protocol to the U.S.-Japan FCN explicitly states that “[t]he provisions of Article VI, paragraph 3 * * * shall extend to interests held directly or indirectly by nationals and companies of either Party in property which is taken within the territories of the other Party.”
In short, “all property interests are contemplated by the provision.”
“The concept of a taking in this context is broad and “is considered as covering, in addition to physical seizure, a wide variety of whole or partial sequestrations and other impairments of interests in or uses of property.”
“Further, a taking is permitted under the Treaty only for a “public purpose,” and it is clear that application of the AFA's ownership restrictions to the Vessel Owner so as to force a divestiture of Alyeska's loan and preferred mortgage interests or complete divestiture of the Vessel to a private party which qualifies as a U.S. Citizen would not satisfy the “public purpose” requirement of the U.S.-Japan FCN. Even if such a forced sale to a private party could be characterized as having a “public purpose,” the AFA makes no provision for the “prompt payment of just compensation,” as required by Article VI.3. The fact that the AFA and 46 CFR Part 356 fail to provide any compensation scheme—let alone “adequate provision * * * at or prior to the time of taking for the determination and payment thereof,” as required by Article VI.3—is another basis for concluding that the AFA's retroactive limitations on foreign ownership and foreign financing of fishing vessels are inconsistent with Article VI.3 of the U.S.-Japan FCN.
“3.
“The new restrictions imposed by the AFA and MARAD's implementing rules on foreign involvement in the U.S. fishing industry are “unreasonable or discriminatory measures” that impair the legally acquired rights and interests of Petitioners in violation of Article V of the Treaty.
“Article V provides that “[n]either Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established. * * *” The provision follows the standard FCN treaty language, except that the language was moved from Article VI.3 in the standard text to a new Article V and certain additional language, not relevant here, was added. According to the Sullivan Study, the provision “offers a basis in rather general terms for asserting protection against excessive governmental interference in business activities or particular activities not specifically covered by the treaty.”
“The negotiating history confirms that Article V was intended as a general provision prohibiting discrimination against foreign-owned entities not subject to other provisions of the U.S.-Japan FCN. During the negotiations, Japan proposed adding language prohibiting the denial “of opportunities and facilities for the investment of capital.” The proposal was not adopted after the U.S. opposed it on the grounds that Article VII fully addressed investment activities and that the additional language was not appropriate in Article V, which addresses issues not limited to investment.
“Thus, Article V was intended as a general prohibition of discriminatory restrictions not covered by other provisions of the U.S.-Japan FCN and of restrictions that do not rise to the level of a “taking.” Article V prohibits deprivations of both most-favored nation treatment and national treatment.
“The intrusive and discriminatory restrictions imposed by the AFA and MARAD's implementing rules on transactions between Non-Citizen lenders, such as Alyeska, and U.S. fishing vessel owners place the Non-Citizen lenders at a significant competitive disadvantage. U.S. Citizen processors and other lenders are free to make loans and to enter into contracts with fishing vessel owners without restriction. U.S. Citizen processors remain free to obtain a reliable supply of fish by financing fishing vessel acquisitions, conversions, repairs and improvements in return for exclusive marketing relationships while Non-Citizen processors are prohibited from making similar arrangements. As previously noted, MARAD has stated that Non-Citizen processors will be flatly prohibited from taking security in fishing vessels to secure loans to vessel owners. Under 46 CFR 356.45, a Non-Citizen lender is not even permitted to make an unsecured loan to a fishing vessel owner, if (a) the loan exceeds the annual value of the vessel's catch (where an exclusive marketing agreement is involved—
“4. Article XIX.6 Does Not Authorize the Provisions of the AFA and MARAD's Implementing Rules which are Otherwise in Violation of the U.S.-Japan FCN.
“Article XIX.6 provides that notwithstanding any other provision of the Treaty, “each Party may reserve exclusive rights and privileges to its own vessels with respect to the * * * national fisheries * * *.” This provision does not authorize the discriminatory limitations on Japanese investment and financing contained in the AFA and MARAD's implementing rules.
“Even if Article XIX.6 is interpreted as applying to fishing vessels,
“The historical record of the negotiations provides further evidence that Article XIX.6 was not intended to override Article VII's national treatment requirements with respect to foreign investment in or financing of U.S. flag fishing vessels or other dealings between foreign-owned enterprises and fishing vessel owners. At one point, the Japanese negotiators proposed rewriting Article XIX.6 to provide that the national treatment provisions of the Treaty would not extend to “nationals, companies and vessels of the other Party any special privileges reserved to national fisheries.”
“Subsequent practice of the State Department confirms this reading of Article XIX.6. In 1964, the State Department reaffirmed the narrow scope of Article XIX.6 in a letter to the House Committee on Merchant Marine and Fisheries. The letter makes clear that the provision merely permits the United States to reserve the right to catch or land fish to U.S. flag vessels.
“This reading of Article XIX.6 in the U.S.-Japan FCN also comports with the State Department's reading of this same language in other FCN treaties to which the U.S. is a party. The Sullivan Study explicitly states that “[t]he crucial element in Article XIX is that it relates to the treatment of vessels and to the treatment of their cargoes. It is not concerned with the treatment of the enterprises which own the vessels and the cargoes.”
“Thus, the text, negotiating history and subsequent State Department practice and understanding all explicitly confirm that Article XIX.6 is irrelevant to laws restricting foreign ownership and control of fishing vessel owners and thus does not override the other provisions of the U.S.-Japan FCN dealing with foreign investment and business activity. Article XIX.6 does not exempt the AFA's foreign ownership, financing and control restrictions from Articles V, VI.3, VII or IX.2, each of which bars application of those restrictions to Petitioners with respect to the Vessel Owners and the Vessels.
“5.
“The terms of the U.S.-Japan FCN and the other FCN treaties which share the same language are reciprocal—that is, the principle of “national treatment” applies not only to protect the investments of foreign nationals in the United States but also to protect the investments of U.S. nationals in Japan and other countries. Thus, any interpretation of the U.S.-Japan FCN adopted by MARAD in the present context will also define the rights of U.S. nationals doing business in Japan and other countries, now and in the future. A narrow interpretation of the U.S.-Japan FCN's protections for Japanese enterprises and their investments in the present context will effectively limit the rights of U.S. investors and U.S. businesses in Japan and other countries with which the United States has concluded similar FCN treaties.
“For this reason, the State Department has interpreted the national treatment requirement of the FCN treaties broadly in the past.
“6.
“The United States has agreed in Article XXIV of the Treaty to give “sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the [Government of Japan] may make with respect to any matter affecting the operation of the present Treaty.” The Government of Japan has strongly objected to the application of the AFA's new limitations and restrictions on foreign ownership, foreign financing and foreign control of U.S. fishing vessels to Japanese nationals and companies that have invested in the U.S. fisheries prior to the effective date of the Act on the ground that such application would violate the U.S.-Japan FCN. In a letter to Jo Brooks of the Office of Legal Adviser, U.S. Department of State, dated August 30, 1999, the Minister for Economic Affairs of the Embassy of Japan stated that the AFA's “new U.S. citizen ownership and control requirements” “if applied without exception, would impair the legally acquired rights or interests of Japanese nationals and corporations in the United States of
As an existing international agreement relating to foreign investment, we would like to refer to the Treaty of Friendship, Commerce and Navigation between Japan and the United States of America, hereinafter referred to as “the Treaty.” Paragraph two of Article VII of the Treaty states that “* * * new limitations imposed by either Party upon the extent to which aliens are accorded national treatment, with respect to carrying on such activities within its territories, shall not be applied as against enterprises which are engaged in such activities therein at the time such new limitations are adopted and which are owned or controlled by nationals and companies of the other Party.” The Government of Japan is of the view that since the new requirements under the provisions of Subsection 202(c)
Moreover, paragraph one of Article V of the Treaty states that “Neither Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights or interests within its territories of nationals and companies of the other Party in the enterprises which they have established, in their capital, in the skills, arts or technology which they have supplied;—.” This provision indicates that any U.S. government measure that impairs the legally acquired rights or interests of Japanese nationals and companies should not be permitted under this Treaty. Therefore, the Japanese nationals and companies that have already invested in fisheries in the United States should be exempted from the application of the new requirements under Subparagraph 202(c) of the AFA.
Accordingly, the Government of Japan is of the view that the entities that are engaged in fishing activities and owned or controlled by Japanese nationals and corporations should be exempted from the new requirements set forth in the Section 202(c). * * *
“In a subsequent letter to the Department of State, dated January 24, 2000, the Embassy of Japan expressed the “concern” of the Government of Japan about regulations proposed by MARAD to implement the AFA.
The proposed regulations would require a private company to provide interpretations of the Treaty and the AFA as an attached document to the petition for exemption from the AFA, as prescribed in Section 356.53(b)(3). It is rather the obligation of the Government of the United States as party to the Treaty to do so.
The Government of Japan requested “that the Government of the United States fully ensure * * * that all Japanese companies at present engaged in fishery activities be exempted from the new requirements prescribed in Section 202 of the AFA.”
“Thus, the Government of Japan has strongly expressed its view that the AFA's new restrictions on foreign investment, foreign financing and foreign control of U.S. fishing vessels are inconsistent with the U.S.-Japan FCN as applied to companies with existing Japanese investment. In light of the obligation of the United States under Article XXIV of the Treaty to give “sympathetic consideration” to the representations of the Government of Japan concerning the conflict between Section 202 of the AFA and the Treaty and the interest of the United States in the protection of its own enterprises and investors abroad, MARAD should acknowledge the conflict between the AFA and the U.S.-Japan FCN and issue an order holding that Petitioners are exempt from the requirements of Section 202 of the AFA and the implementing provisions of Section 203 and 46 CFR Part 356 with respect to the Vessels.
“B. AFA Section 213(g) Exempts Japanese Enterprises and U.S. Enterprises With Japanese Investment From the AFA's Limitations and Restrictions on Foreign Ownership, Foreign Financing and Foreign “Control” of U.S. Fishing Vessels.
“Sections 202, 203 and 204 of the AFA and the implementing regulations published by MARAD on July 19, 2000, codified at 46 CFR Part 356, impose a host of new limitations and restrictions on foreign ownership of fishing vessels, foreign financing of fishing vessels and contractual arrangements between foreign enterprises or U.S. companies with substantial foreign ownership and U.S. fishing vessel owners. As demonstrated above, if applied to Petitioners, these new limitations and restrictions would deprive Petitioners of valuable existing preferred mortgage interests and contract rights in violation of the U.S.-Japan FCN. Application of the new restrictions to bar Petitioner Alyeska or its Japanese shareholders from entering into future transactions with the Vessel Owner, particularly financing and ancillary contractual arrangements, such as exclusive marketing agreements, would also violate the U.S.-Japan FCN by substantially impairing the ability of Alyeska and its shareholders to protect their existing rights and interests and to carry on their existing lawful businesses in the United States in conformity with past practice and on an equal footing with U.S. Citizens.
“To avoid these results, Congress included a provision in the AFA to ensure that the Act would not contravene U.S. treaty obligations. Section 213(g) provides in pertinent part:
In the event that any provision of section 12102(c) or section 31322(a) of title 46, United States Code, as amended by this Act, is determined to be inconsistent with an existing international agreement relating to foreign investment to which the United States is a party with respect to the owner or mortgagee on October 1, 2001 of a vessel with a fishery endorsement, such provision shall not apply to that owner or mortgagee with respect to such vessel to the extent of any such inconsistency. * * *
Section 213(g) makes clear that its reach is intended to extend to every “owner” or “mortgagee” holding an ownership or mortgage interest on October 1, 2001, when Sections 202, 203 and 204 of the AFA become effective. Section 213(g) provides explicitly that the exemption does not apply to “subsequent owners and mortgagees” who acquire their interests
“Petitioners are “owners” and “mortgagees” who acquired their interests in the Vessels prior to October 1, 2001, and who intend to continue to hold those interests on and after October 1, 2001. The U.S.-Japan FCN is a self-executing treaty which is binding on MARAD as a matter of federal domestic law.
“The exemption provided by Section 213(g) is not limited to ownership or mortgage interests in existence on October 1, 2001, but rather applies to an “owner” or “mortgagee” on October 1, 2001 and extends the exemption “to the extent of the inconsistency” between the Act and the Treaty “with respect to” the vessel in which the “owner” or “mortgagee” holds an interest. Petitioners qualify as “owners” and “mortgagees.” Petitioners are, therefore, exempt from the requirements of the AFA “to the extent of the inconsistency” between the AFA and the Treaty. As demonstrated above, the “inconsistency” between the AFA and the Treaty is two-fold: (1) The Treaty protects the existing ownership and preferred mortgage interests of Petitioners in the Vessel and related contract rights (including the exclusive marketing agreement) which the AFA would impair, prohibit or restrict; and (2) the Treaty protects future transactions between Alyeska or its Japanese shareholders and the Vessel Owner, which the AFA would prohibit or restrict, including future loans, preferred mortgages and other financing and contractual arrangements which Petitioners may deem necessary or appropriate to protect their existing businesses and their existing interests in the Vessel and the Vessel Owner. Thus, Section 213(g) exempts Petitioners entirely from the restrictions and limitations of Sections 202, 203 and 204 of the AFA and MARAD's implementing rules with respect to the Vessel.”
This concludes the analysis submitted by Petitioner for consideration.
By order of the Maritime Administrator.
Peoria and Pekin Union Railway Company (P&PU) has agreed to grant overhead trackage rights to Toledo, Peoria & Western Railway Corporation (TP&W) over P&PU's track between the point of connection between The Burlington Northern and Santa Fe Railway Company and P&PU near Darst Street in Peoria, IL, milepost 2.1, and the point of connection between P&PU and TP&W at North Main Street in East Peoria, IL, commonly known as P&PU Junction, milepost 0.0, a distance of approximately 4 miles.
The transaction is scheduled to be consummated on or shortly after February 16, 2001.
The trackage rights will enable TP&W to enhance competitive service for intermodal traffic and provide more efficient and economical routings and service for this traffic.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. Section 11326(c), however, does not provide for labor protection for transactions under sections 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
This notice is filed under 49 CFR 1180.2(d)(7). If it contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to STB Finance Docket No. 34009 must be filed with the Surface Transportation Board, Office of the Secretary, Case Control Unit, 1925 K Street, N.W., Washington, DC 20423-0001. In addition, one copy of each pleading must be served on Louis E. Gitomer, Esq., Ball Janik LLP, 1455 F Street, N.W., Suite 225, Washington, DC 20005.
Board decisions and notices are available on our website at
By the Board, David M. Konschnik, Director, Office of Proceedings.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995,
Written comments should be received on or before April 24, 2001 to be assured of consideration.
Direct all written comments to Bureau of Alcohol, Tobacco and Firearms, Linda Barnes, 650 Massachusetts Avenue, NW., Washington, DC 20226, (202) 927-8930.
Requests for additional information or copies of the form(s) and instructions should be directed to Majorie D. Ruhf, Regulations Division, 650 Massachusetts Avenue, NW., Washington, DC 20226, (202) 927-8202.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
In notice document 01-3549 beginning on page 9893 in the issue of Monday, February 12, 2001, make the following corrections:
1. On page 9893, at the bottom of the page, in the table, line number “6.” should read “7.”.
2. On the same page, in the same table, line number “7.” should read “8.”.
Office of Personnel Management.
Notice.
As required by the Civil Service Reform Act of 1978, this gives notice of all positions in the Senior Executive Service (SES) that were career reserved during 2000.
Charles Vaughn, Office of Executive Resources Management, (202) 606-1927.
Below is a list of titles of SES positions that were career reserved at any time during calendar year 2000, regardless of whether those positions were career reserved on December 31, 2000. Section 3132(b)(4) of title 5, United States Code, requires that the head of each agency publish such list by March 1 of the following year. OPM is publishing a consolidated list for all agencies.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Clifford Taffet, room 7266, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410; telephone (202) 708-1234; TTY number for the hearing- and speech-impaired (202) 708-2565 (these telephone numbers are not toll-free), or call the toll-free Title V Information line at 1-800-927-7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Brian Rooney, Division of Property Management, Program Support Center, HHS, room 5B-41, 5600 Fishers Lane, Rockville, MD 20857; (301) 443-2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1-800-927-7588 for detailed instructions or write a letter to Clifford Taffet at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Cooperative State Research, Education and Extension Service, Agriculture.
Notice of Request for Proposals and Request for Input.
The Cooperative State Research, Education, and Extension Service (CSREES) announces the availability of grant funds and requests proposals for the Initiative for Future Agriculture and Food Systems Program (IFAFS) for fiscal year (FY) 2001 to support competitively awarded research, extension and education grants addressing key issues of national and regional importance to agriculture, forestry, and related topics. The amount available for support of this program in FY 2001 is approximately $113,400,000.
This notice sets out the objectives for these projects, the eligibility criteria for projects and applicants, the application procedures, and the set of instructions needed to apply for an IFAFS grant under this authority.
By this notice, CSREES additionally solicits stakeholder input from any interested party regarding the FY 2001 IFAFS for use in development of any future requests for proposals for this program.
For the FY 2001 competition, a Letter of Intent is requested and is due by March 23, 2001. Project proposals and proposals for Multidisciplinary Graduate Education Traineeship Grants (MGET) must be received by COB April 23, 2001. Proposals received after this date will not be considered for funding. Critical or Emerging Issues proposals must be received by COB on June 1, 2001. Comments regarding this Request for Proposals are invited for six months from the issuance of this notice. Comments received after that date will be considered to the extent practicable.
Applicants may e-mail the Letter of Intent to Dr. Rodney Foil at rfoil@reeusda.gov or send the letter by mail to IFAFS; Mail Stop 2213; Cooperative State Research, Education and Extension Service; U.S. Department of Agriculture; 1400 Independence Avenue, S.W.; Washington, D.C. 20250-2213; or fax the Letter to IFAFS at (202) 690-3858. The address for hand-delivered proposals or proposals submitted using an express mail or overnight courier service is: Initiative for Future Agriculture and Food Systems; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; Room 1307, Waterfront Centre; 800 9th Street, S.W.; Washington, D.C. 20024.
Proposals sent via the U.S. Postal Service must be sent to the following address: Initiative for Future Agriculture and Food Systems; c/o Proposal Services Unit; Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; STOP 2245; 1400 Independence Avenue, S.W.; Washington, D.C. 20250-2245.
Written user comments should be submitted by mail to: Policy and Program Liaison Staff; Office of Extramural Programs; Cooperative State Research, Education and Extension Service; U.S. Department of Agriculture; STOP 2299; 1400 Independence Avenue, S.W.; Washington, D.C. 20250-2299; or via e-mail to: RFP-OEP@reeusda.gov. In your comments, please include the name of the program and the fiscal year of the request for proposals (RFP) to which you are responding.
Applicants and other interested parties are encouraged to contact the Program Director listed in the program areas found in the Program Area Description section below, or Dr. Rodney Foil, Director IFAFS, Cooperative State Research, Education, and Extension Service; U.S. Department of Agriculture; STOP 2242; 1400 Independence Avenue, S.W. Washington, D.C. 20250-2242; telephone: (202) 720-4423; e-mail: rfoil@reeusda.gov; or Dr. Sally Rockey, Deputy Administrator, CRGAM, Cooperative State Research, Education and Extension Service; U.S. Department of Agriculture; STOP 2240; 1400 Independence Avenue, S.W.; Washington D.C. 20250-2240; telephone: (202) 401-1761 e-mail: srockey@reeusda.gov.
CSREES is requesting comments regarding this RFP from any interested party. These comments will be considered in the development of any future RFP for the program. Such comments will be forwarded to the Secretary or his designee for use in meeting the requirements of section 103(c)(2) of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7613(c)(2). This section requires the Secretary to solicit and consider input on a current RFP from persons who conduct or use agricultural research, education and extension for use in formulating future RFPs for competitive programs. Comments should be submitted as provided for in the “Addresses” and “Dates” portions of this Notice.
This program is listed in the Catalog of Federal Domestic Assistance under 10.302, Initiative for Future Agriculture and Food Systems.
Section 401 of the Agricultural Research, Extension, and Education Reform Act of 1998 (AREERA) (7 U.S.C. 7621) established in the Treasury of the United States an IFAFS account and authorized the Secretary of Agriculture to establish a research, extension, and education competitive grants program to address critical emerging U.S. agricultural issues related to (1) future food production, (2) environmental quality and natural resource management, or (3) farm income. Grants are to be awarded that shall address priority mission areas related to (a) Agricultural genome, (b) Food safety, food technology and human nutrition, (c) New and alternative uses and production of agricultural commodities and products, (d) Agricultural biotechnology, (e) Natural resource management, including precision agriculture, and (f) Farm efficiency and profitability, including the viability and competitiveness of small- and medium-sized dairy, livestock, crop, and other commodity operations. Priority is to be given to projects that are multistate, multi-institutional, or multidisciplinary or projects that integrate agricultural research, extension and education.
Subject to the availability of funds to carry out this program, the Secretary may award grants to a college or university or a research foundation maintained by a college or university. This represents a change from the FY 2000 solicitation. Section 724 of Public Law No. 106-389, as amended by section 101(3) of H.R. 566 which was enacted by section 1(a)(4) of Public Law No. 106-554, removed Federal research agencies, national laboratories, and private research organizations from eligibility for IFAFS awards.
Grants also may be awarded to ensure that faculty of small and mid-sized academic institutions that have not previously been successful in obtaining competitive grants under subsection (b) of the Competitive, Special, and Facilities Research Grant Act (7 U.S.C. 450i(b)) (i.e. the CSREES National Research Initiative Competitive Grants Program) receive a portion of the IFAFS grants. Grants are to be awarded to address priorities in United States agriculture that involve research, extension, and education activities as determined by the Secretary in consultation with the National Agricultural Research, Extension, Education, and Economics Advisory Board; and stakeholders through a public meeting held in July of 1998.
The purpose of the IFAFS is to support research, education and extension grants that address critical emerging U.S. agricultural issues related to (1) future food production, (2) environmental quality and natural resource management, or (3) farm income.
In awarding IFAFS grants, priority will be given to projects that are multistate, multi-institutional, or multidisciplinary or projects that integrate agricultural research, extension and education. Integrated projects hold the greatest potential to produce and transfer knowledge directly to end users, while providing for educational opportunities to assure agricultural expertise in future generations. The IFAFS also holds great opportunity to bring the agricultural knowledge system to bear on issues impacting small and mid-sized producers and land managers, thus enabling improvements in quality of life and community. In support of the agency's goal to enhance the competitiveness of U.S. agriculture, consideration will also be given to projects (with U.S. institutions as the lead) that incorporate an international dimension with demonstrable domestic benefits.
IFAFS is distinct from other CSREES programs because of its priority on integration of research, extension, and education; its consideration of the concerns of small and mid-sized operations; its emphasis of agricultural production issues; and its goal to support relatively large projects that provide more intensive support to the research, extension, and education system.
There is no commitment by USDA to fund any particular proposal or to make a specific number of awards. Approximately $113,400,000 is available in FY 2001 for programs within the IFAFS for the following priority areas: Agriculture Genome and Agricultural Biotechnology ($32,800,000); Food Safety, Food Technology, and Human Nutrition ($21,900,000); New and Alternative Uses and Production of Agricultural Commodities and Products ($10,000,000); Natural Resource Management, including Precision Agriculture ($29,000,000); and Farm Efficiency and Profitability, Including the Viability and Competitiveness of Small and Medium-sized Dairy, Livestock, Crop, and Other Commodity Operations ($19,000,000). Funds available for each priority area are targets. The number and quality of applications, as well as the need to reach programmatic goals, may necessitate the movement of funds between priority areas. CSREES is not committed to funding any specific amount or make any specific number of MGET awards, however, funds in the amount of $2.2 million will be made available from the aforementioned priority areas to support MGET proposals should they be meritorious.
Funds will be made available to small or mid-sized academic institutions that have not been previously successful in obtaining competitive grants under the National Research Initiative Competitive Grants Research Program.
Two additional requests for proposals will be available in FY 2001. These are new collaborative programs between CSREES/IFAFS and other Federal Agencies. These include the USDA/NSF Microbial Genome Sequencing Project (total joint funding of approximately $9 million) and the USDA/NASA Application of Geospatial and Precision Technology Project (total joint funding of $9.5 million).
The program areas described herein were developed within the context of the authorized purposes of both USDA research, extension, and education (7 U.S.C. 3101) and IFAFS (7 U.S.C. 401), within the framework of the CSREES Strategic Plan (Available at www.usda.gov/ocfo/strat/ree.pdf), and based on stakeholder input.
For the purpose of awarding grants under this program, the following definitions are applicable:
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Proposals may be submitted by a college or university or a research foundation maintained by a college or university.
Eligible applicants may subcontract to organizations not eligible under these requirements. For Multidisciplinary Graduate Education Traineeship (MGET) proposals, eligible colleges or universities are those with accredited graduate degree programs in the food and agricultural sciences.
If a grant provides for applied research that is commodity specific and not of national scope, the grant recipient is required to provide funds or in-kind support to match the amount of Federal grant funds provided.
In FY 2001, it is anticipated that projects will be submitted as New or Resubmitted Proposals as described below:
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IFAFS funds may not be used for the renovation or refurbishment of research spaces; the purchase or installation of fixed equipment in such spaces; or the planning, repair, rehabilitation, acquisition, or construction of buildings or facilities.
In accordance with the President's Memorandum of March 4, 1997, regarding the use of Federal funds for the cloning of human beings (33 Weekly Comp. Pres. Doc. 278), IFAFS funds shall not be used to support, fund, or undertake any cloning activity that could lead to the creation of a new human being with genetic material identical to that of another human being, including research related directly thereto. The prohibition on use of grant funds to “support” human cloning activity includes using, or making available for use, grant-funded equipment for use in connection with human cloning. This ban does not restrict research into the cloning of plants, animals, or individual human
1.
Project grants may involve any combinations of institutions and states but may: involve multiple states and/or institutions that conduct research; synthesize previous, ongoing and future research; develop curricula and build educational and research capacity; and transfer information to producers, end users, and the public. The type and number of participating institutions should be appropriate to the project proposed, and should include all participants necessary for successful completion of the project. All IFAFS project grants will be expected to address research, extension and education in a focused project area or through larger endeavors that coalesce around project areas that cannot be addressed through the funding of individual efforts. It is the intent of CSREES to promote collaboration, open communication, exchange of information and resources, and integration of activities among individuals, institutions, states or regions. Larger projects that include many institutions, states or efforts, should minimize isolation and over-competitiveness, reduce duplication of efforts, and provide an accessible source of expert information, technology, and education upon which the public can draw. More focused projects are expected to generate new knowledge and/or apply existing knowledge quickly through outreach and dissemination to specific issues in agriculture where immediate results may be visible.
Dependent on the merits of proposals received, CSREES will ensure that a portion of project grants will be awarded to proposals in which the lead institution (recipient of the Federal funds) is a small- or mid-sized institution (as defined in Part I., C. Definitions). Other institutions or organizations involved in small- and mid-sized institution eligible projects need not meet the criteria described in the definition of a small- and mid-sized institution.
A designated lead institution of each project will administer funds and be responsible for overall management of activities. Larger grant proposals of more than $1 million, or those that are comprised of multifaceted participation by a number of institutions must include how the administration of the grant will be achieved and monitored since proper management of a complex project will influence overall success of the project. Plans for how each project will be maintained and monitored for progress during and beyond the duration of the grant should also be included in the proposal.
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Small- and Mid-Sized Institution means academic institutions having an enrollment of 15,000 or fewer (including part-time students), ranked no higher than the 50th percentile of academic institutions funded by the National Research Initiative Competitive Grants Program in the past three years, and are not within the top 100 Federally funded institutions (see Appendix A). Bridge grants are designed to assist small- and mid-sized academic institutions to sustain and enhance important collaborations and activities that might lead to future program success or success in obtaining IFAFS and/or other grants. Institutions eligible for Bridge grants will be considered for a one-time infusion of up to $100,000 if a submitted Project Grant proposal is considered meritorious but ranks below the funding cutoff during the peer review process. Proposals that meet these criteria will be forwarded from each program area review panel to the IFAFS administration to be considered for funding from a limited pool of funds set aside for Bridge Grants.
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The IFAFS seeks to sponsor integrated research, education and extension programs in plant, animal and microbe genomics and the development of bioinformatic tools and educational resources with specific applications to agricultural challenges.
A more complete understanding of the entire complement of genes in agriculturally relevant plants, animals and microbes is imperative. More knowledge in this area will have a major impact on the ability of the United States to produce nutritious and safe food, while preserving the environment and sustaining the economic stability of the agricultural enterprise. Greater efforts aimed at identifying, mapping and understanding the function and control of genes responsible for traits in agriculturally important species of plants, animals and microbes are needed. These efforts will lead to the development of new genetic technologies for improvements in yield, pest and pathogen resistance, and the composition, quality, and safety of U.S. agricultural products in the global context.
New bioinformatic and computational biology tools are needed to analyze, interpret and utilize the vast amounts of data that will be generated by genomic research in agriculturally important species. CSREES expects that bioinformatics will be an integral component of any project funded under this Agricultural Genomics program. CSREES is also interested in funding integrated projects primarily dedicated
• All agricultural genomics grant recipients are expected to present their project plan at the International Plant, Animal, and Microbial Genome meetings in January in San Diego, CA. Additional information will be made available if an award is made.
• Investigators are expected to explain clearly how the ownership of information and research materials and their public release will be handled. Rapid and unrestricted sharing of genomic sequence data is essential for advancing research on agriculturally important species. Early release of unfinished sequence has already proven useful in accelerating the pace of experimental discovery in non-agricultural fields, such as human health, energy production and bioremediation. At the same time, CSREES recognizes that it also is necessary to allow investigators time to verify the accuracy of their data and to accomplish the goals proposed in their application, which often includes the assembly and annotation of the sequence data.
• In addition to the general data release procedures above, applications for support of genome sequencing projects must include a detailed description of the data release plan. Timely release is strongly encouraged in recognition of the benefits to the broader research community. Release should be accompanied by appropriate information on the reliability of the data (e.g., level of coverage and extent of assembly, extent of contamination with vector and other sequences, statistical measures of accuracy). At a minimum, it is anticipated that sequence data will be released within one month after 3X coverage of the genome (or chromosome for eukaryotic organisms) is achieved. The released data should be provided as assemblies of equal to, or greater than, one kilobase contigs. Subsequent releases of assembled sequences should be provided at least on a monthly basis.
• In the view of some, raw genomic sequences, in the absence of additional demonstrated biological information, lack demonstrated utility and therefore are inappropriate for patent filing. Patent applications on large blocks of primary genomic sequence could stifle future research and the development of future inventions of useful products. However, according to the Bayh-Dole Act, the grantees have the right to elect to retain title to subject inventions and are free to choose to apply for patents should additional biological experiments reveal convincing evidence of utility. CSREES grantees are reminded that the grantee institution is required to disclose each subject invention to CSREES within two months after the inventor discloses it in writing to grantee institution personnel responsible for patent matters. Where appropriate, a plan for apportionment of rights to intellectual property with international partners should be provided.
Research in plant genomics has advanced rapidly in the past few years. The entire genome of Arabidopsis has been sequenced and is being annotated, and the rice genome will be sequenced and annotated in the near future. Knowledge of these sequences will provide basic information on the genes in a flowering plant species. While genomic tools and resources are currently available for plant research, they will need to be improved and expanded. Additionally, genomic resources will need to be developed for other agriculturally important plant species. Furthermore, if genomic information is to be applied to plant improvement, more research is needed to determine the function of gene sequences.
The IFAFS Plant Genome Program sub-area will support integrated projects of research, education and extension that advance our knowledge of the structure, organization and function of agriculturally important plant genomes. Some examples of education and extension components pertinent to this sub-area include training of graduate and undergraduate students, postdoctoral associates, and/or colleagues (through classes, seminars, workshops, sabbaticals) in the use of genomic resources or outreach to the community through informational seminars and classes on the benefits and methods of genomic research. Wherever appropriate, investigators are encouraged to develop national and international collaborations with research groups already working on the species of interest to maximize the use of structural and functional genomic resources. Collaborations with private industry that have made a significant investment in the species are also encouraged to avoid unnecessary duplication of effort.
Proposals must address at least one of the two specific topic areas below:
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Proposals are solicited that address one or more of the following areas in animal genomics: (a) Develop high density comparative gene maps, which include human and mouse, across agricultural animal species (Cattle, sheep, swine, horse, poultry species and
The vast amounts of data being generated by genomic research only will be of use to plant, animal and microbial improvement and protection if technologies are developed to utilize genomic sequence, gene maps and gene function information. In addition, new cadres of scientists must be trained in the use of these technologies. Because of the interdisciplinary nature of genomic science, bioinformatic research provides an ideal opportunity for a range of scientists, including engineers, computer scientists, chemists, and biologists, to work together in a collaborative environment. Bioinformatic tools and personnel will play a vital role in applying genomic data to the improvement of animal, plant and microbial species of agricultural importance. This program sub-area seeks to support proposals to develop or improve bioinformatic tools and to develop training programs in bioinformatics. Projects may involve experts in computer science, software engineering, genomics, genetics, plant, animal, or microbial improvement, or related sciences as well as individuals with an interest in the development of education and training programs in bioinformatics and computational biology.
Proposals must address at least one of two specific topic areas:
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This program area will support research, education, and extension that addresses risks and benefits associated with the use of biotechnology in agriculture. Biotechnology is believed to have great potential for supplying the world's food and fiber needs in a sustainable manner. However, the development of agricultural biotechnology products has resulted in expressions of concern by producers, consumers, media, interest groups, and other stakeholders about possible health, environmental, social, and economic effects. This program area seeks to address those concerns and assist citizens in making informed decisions about the use of this technology in agriculture. Higher priority will be given to proposals that integrate research, education, and extension activities.
The application of biotechnology to agriculture has the potential to provide a number of public benefits. It is expected to increase productivity while reducing the negative environmental effects of traditional production methods by reducing the need for antibiotics, fertilizers, herbicides, hormones, and pesticides. The technology also has the potential to facilitate the development of new food products with improved nutritional benefits, flavor, and shelf-stability, as well as new non-food products, including lubricants, oils and plastics.
Successful application of this technology to food and agriculture is possible only with the approval and acceptance of consumers, environmentalists and other stakeholders. Research, education, and extension focused on identifying and assessing present and predicted benefits and identifying, assessing, and reducing present and predicted risks associated with agricultural biotechnology will aid in addressing the needs and concerns of various stakeholder groups.
Proposals should be submitted to one of the following three areas: Section 11.1 focusing on the impact of agricultural biotechnology on human and animal health; Section 11.2 focusing on social and economic aspects associated with the development and use of biotechnology; or Section 11.3 focusing on the management of potential environmental effects associated with agricultural biotechnology. Proposals that seek to integrate both the biological aspects (Sections 11.1 and 11.3) and social aspects (Section 11.2), should be submitted to the section that best describes the majority emphasis of the proposed project.
Where practicable, graduate training opportunities are encouraged in proposals submitted to this program area. Also, international partnerships are permitted so long as the partnership clearly benefits the understanding of U.S. agricultural biotechnology questions and concerns.
Research, extension, and education activities regarding the effects of genetically modified (GM) organisms and GM food on human and animal health, include but are not limited to: (a) Approaches for anticipating, detecting, and managing allergenicity in food products derived through biotechnology; (b) the role of GM products in the development of antibiotic resistance; (c) secondary metabolite formation and how this may affect food and feed; (d) changes in bioavailability of essential nutrients; (e) development of new and enhanced testing and evaluation methods of biologically modified products that ensure human and animal safety; (f) development of experiential learning opportunities for students, academics, and agricultural professionals to study the effects of GM food and feed on humans and animals; (g) development of outreach programs to explain the risks and benefits of GM food and feed on human and animal health. Where practicable, graduate training opportunities are encouraged in proposals submitted to this program area.
This program area is seeking projects to evaluate or assess the effects of transgenic organisms or food on human and animal health. It will not consider proposals to develop transgenic products of any kind, including those designed to improve human or animal health.
Proposals involving genetically modified functional foods should be directed to section 12.2 (Nutritional Impact of Functional Foods).
This section solicits proposals for research, education and extension activities that deal with the human dimensions associated with agricultural biotechnology. It is concerned with positive and negative economic and social impacts on stakeholders—producers, processors, input manufacturers, consumers, environmentalists, governmental agencies and others; impacts on economic and social institutions, communities, and society; reactions to biotechnology; and people's beliefs and attitudes about biotechnology and the responses of stakeholders, institutions, and communities. “Social and economic” is broadly defined to also include psychological, cultural, ethical, and political aspects of biotechnology. Comparative approaches are invited, including comparisons across geography, culture, history, and technologies. Other approaches are also invited.
The expected outcomes of the program include: (a) objective and complete assessments of perceived and actual benefits and risks associated with agricultural biotechnology; (b) greater stakeholder involvement (civic engagement) in decisions regarding agricultural biotechnology; (c) more informed decisions by public and private decision makers about the development and use of biotechnology; and (d) greater clarity regarding the role of research and educational institutions in helping stakeholders weigh the risks and benefits of alternative approaches and technologies in agriculture.
The following topic areas and their contents are provided as examples and are not intended to be all inclusive:
(a) Business issues—Economic and other impacts of biotechnology on individual firms or groups of firms; firm-level decisions about selling or buying biotechnology products and processes, such as a farmer/farm family decision to plant herbicide-tolerant soybeans; changes in business practices and alliances.
(b) Agriculture and Food System Issues—Impact of biotechnology on the organization, structure and behavior of participants in the agricultural industry from input manufacturers to retailers; changes in economic institutions and government policies; capacity of the food system to segregate genetically modified commodities/products for specific markets; competitiveness of U.S. agriculture in world markets; and impacts of establishing various standards, oversight arrangements and alternative regulations and policies.
(c) Market/Consumer Issues—Needs, desires, and concerns of consumers in domestic and international markets; understanding consumer decisions about the use of biotechnology products, including the influence of culture, product labeling, advertising, scientific information, and recent news events; methods most effective for increasing understanding and improving public and private decision making ability.
(d) Societal Issues—Needs of various publics to gain meaningful information and be involved in decision making processes surrounding the development and use of biotechnology; the role of civic engagement; perceived and actual risks and benefits to consumers and other stakeholder groups or society in general; policy alternatives and analysis; property rights; environmental protection; conflict emergence and resolution; role of ethics.
(e) Institutional Issues—(Economic and social institutions include such things as markets, universities, and the policy-making bodies). Impact of biotechnology on markets; role of public research, education and extension; mechanisms for funding research and disseminating results; role of local, state, federal and international governments.
Research, extension, and education activities regarding the management of risks associated with the release of transgenic organisms into the environment. These include, but are not limited to: (a) Techniques to minimize or eliminate potential negative impacts of transgenic products on non-target species, agricultural systems and the environment; (b) management systems to slow the evolution of resistance to transgenic protection against pests and diseases; (c) techniques or methods to prevent the movement of transgenes from transgenic organisms to others; or to prevent their expression in new or unintended organisms; (d) management systems to control the impact of transgenic plants, especially insect resistant or herbicide tolerant plants, on biodiversity of agro-ecosystems; (e) experiential learning opportunities for students, academics, and agricultural professionals to manage environmental risks associated with agricultural biotechnology; and (f) outreach programs to develop and share techniques or methods to manage ecological risks.
Where practicable, graduate training opportunities are encouraged in proposals submitted to this program area.
This program solicits projects designed to manage or reduce ecological risks associated with the release of transgenic organisms into the environment. Projects to assess risks of transgenic organisms (i.e. identification of an ecological hazard, and determining its probability and impact) will not be considered for funding by this program. Research addressing risk assessment should be directed to USDA's Biotechnology Risk Assessment Research Grants Program (http://
This program area concentrates resources on two critical areas in food technology and nutrition: Factors affecting food and nutrition behavior of consumers and the nutritional impact of functional and designer foods. Future food production will be impacted by consumer food choices, and the health and happiness of Americans is dependent upon diets appropriate to individual lifestyles and physical condition. Understanding consumer behavior and how to increase the beneficial components in food will help inform future food production. A key anticipated benefit of this initiative will be to strengthen the existing links among research, teaching, and extension/outreach activities related to nutrition and food technology. Descriptions of the two program subareas are below.
The most fundamental knowledge gap in nutrition research is in understanding why people choose what they choose to eat and how to effectively intervene to improve diets. Although USDA, together with the Department of Health and Human Services, has formulated Federal nutrition policy in the form of the Dietary Guidelines for Americans for 20 years, we know that many consumers are not following this guidance. According to the Department's 1996 Healthy Eating Index, a measure of how Americans' diets fare in meeting the recommendations of the Dietary Guidelines, only 12 percent of Americans have diets that can be classified as “good;” 71 percent have diets that are considered to “need improvement” and 17 percent are classified as having “poor” diets. Additionally, the prevalence of obesity in the United States increased from 12 percent in 1991 to 18 percent in 1998. In the past decade, the number of U.S. children who are overweight has more than doubled and the incidence of type 2 diabetes in adolescents, once rare, is increasing.
USDA researchers have found that in children the risk of becoming obese increases as family income decreases. The consistent and visible interest of Americans in weight loss diets indicate both an interest in and the difficulties in maintaining desirable weight. Community-based research on food systems has demonstrated limited food choices in low-income communities as insufficient resources limit grocery retail establishments in economically deprived areas. Food intake of low-income individuals is dramatically affected by the availability of food, especially fruits and vegetables. Food stamp recipients sometimes have difficulty stretching food dollars through the month, creating an atmosphere of food insecurity late in the month, affecting food choices.
Food choice behavior is influenced by a variety of factors ranging from available income to physiologic need to societal standards and community resources. Knowledge of how these factors interact to affect food choices is limited. Nutrition experts agree that for nutrition interventions to be successful, they should be behaviorally-based, but the gaps in knowledge of consumer dietary behavior limits development of such interventions. When behaviorally-based nutrition interventions have been implemented, evaluation of the outcomes of such interventions has been limited, primarily due to lack of funds. Research on the strengths and weaknesses of an intervention in relation to its objectives is essential to improving the intervention and in facilitating its application to other situations.
The goal of this program is to fund projects that improve our understanding of factors that affect food and nutrition behavior in consumers, and apply this understanding in the development and evaluation of model nutrition intervention programs that are behaviorally-based. This program invites innovative projects on consumer food and nutrition behavior, including: (a) Research on factors influencing dietary behaviors of at-risk populations, including children and adolescents (at home, in school, and in child care settings), ethnic minorities, low-income individuals, overweight individuals, and older adults; (b) research on behavioral factors that may contribute to the development of obesity; (c) exploration and analysis of the impact of community resources on food choices, including the effect of insecure food systems in low-income communities and prevalence of obesity, unhealthy food choices, and related food behaviors; (d) innovative studies, including longitudinal and non-self-report methods of assessing dietary behavior; (e) multidisciplinary studies to examine current theory-based models of behavior change; (f) development and evaluation of diet regimens and intervention(s) at either the individual or community level; (g) development and evaluation of social marketing approaches to target nutrition and health messages to lead to behavior changes; and (h) development of innovative cross-training programs in nutrition and the social sciences.
Functional foods are fresh or processed foods containing significant levels of biologically active components that might provide health benefits or desirable physiological effects beyond basic nutrition. The national and international market for functional foods is growing rapidly as consumers are increasingly interested in including functional foods in their diets. Considerable scientific information demonstrates that some food components have the potential health benefits. Additional research is necessary to substantiate the claims of health benefits of the food components and functional foods. Advances in food technology through both traditional processing methodologies, and genetic engineering of foods, have provided the consumer with ever increasing food choices that claim to offer increased health benefits due to selection in favor of certain components.
The goal of this program is to foster integrated research, education and outreach activities to design and improve functional foods from agriculturally important materials. Collaborative international activities, which may lead to the discovery, development, and use of new functional foods with clear prospects as U.S. agricultural products will be considered. Activities that fully integrate and encompass the design of commercially feasible functional foods, characterization of bioactive components, measurement of health benefits, and consumer outreach programs will be given priority. Integration should include a holistic approach to developing functional foods, including an analysis of impact on the food system and on health. Applicants are strongly encouraged to seek industry collaboration.
Examples of potential integrated research, extension and education activities include, but are not limited to: (a) Creation of foods that have increased amounts of the beneficial components found in fruits, vegetables, grains and animal products; (b) interactive (synergistic or antagonistic) effects of the bioactive components as consumed
Proposals dealing with genetically modified foods that do not fit under the definition of functional foods described in this section or which deal with risk management of biotechnology derived foods should be directed to Program Area 11.1 (Effects of Agricultural Biotechnology on Human and Animal Health) or 11.2 (Social and Economic Aspects of Agricultural Biotechnology); proposals dealing with consumer choices of functional foods for health should be directed to Program Area 12.1 (Consumer Food Behavior).
(For clarification of this program area, contact the Program Director, Carmela Bailey, at (202) 401-6443; e-mail: cbailey@reeusda.gov.)
The goal of this program area is to provide for research, education and extension activities that enhance the competitive value, find new uses for, or establish entirely new non-food agricultural and forestry products, primarily biomass fuel sources and biobased industrial products that can replace petroleum-based fuels and products. This program area addresses the Biomass Research and Development Act of 2000, which calls for expanded public investment in research and development of economically competitive, environmentally sound bioenergy and biobased products, and to advance their availability and widespread use. Further, these efforts address the issues of resource depletion and environmental degradation, while building new markets for agriculture.
A comprehensive, system-based approach is required to accomplish the goals of this program area, which encompasses: (a) The development of crop varieties or agricultural wastes for biomass fuel uses and for biobased industrial products; (b) processing biomass; (c) product development; (d) test, evaluation and certification for commercial use; (e) demonstration of final product(s); (f) consideration of environmental impacts of material selection in early stages of product development; (g) life cycle cost evaluation of final product(s); and (h) establishing marketing networks. Accordingly, integration of these activities to the maximum extent practicable, are strongly encouraged. A system-based approach is expected to accelerate research and development and to result in measurable outcomes, i.e. increased production and use of biofuels and biobased products. This initiative strongly encourages research, education, and extension activities that explicitly recognize, account for, and enhance the interaction among growers, processors, manufacturers, markets and the community. To increase profitability to the farm and rural business sectors, applicants are encouraged to develop proposals which include post-harvest processing and manufacturing activities that add value at the local level. In considering environmental impacts of material choices, applicants should refer to EPA's Guidance on Environmentally Preferable Purchasing (www.epa.gov/oppt/epp/guidancepage.htm).
In addition, to facilitate technology transfer and marketing of biobased products, the product demonstration phase should be of sufficient size to generate data for a life cycle cost evaluation. The evaluation should clearly articulate the scope or boundary and the product alternative(s) for which the comparison is being made. A full life cycle assessment, though desirable, is beyond the scope of this RFP, both in terms of time and available funds. However, applicants are encouraged to demonstrate how they have integrated a life cycle perspective in their proposed product development.
The education component is expected to be an integral part of the proposal and should include graduate training at either the Master's degree level or the doctoral degree level. The number of research assistants should match the size and scope of the proposal. Graduate training programs that include curriculum development and/or internships at relevant private companies or national laboratories, or other innovative educational models are strongly encouraged.
Proposers are also encouraged to incorporate collaborative international activities which may lead to the discovery of new or alternative uses, or which improve the prospects for those uses through enhanced production or commercialization, thus improving the prospects for U.S. farmers in the global market.
Successful management of natural resources in an agricultural landscape should address environmental integrity, quality of life, and economic viability. The purpose of this program area is to address how best to integrate the needs of production agriculture, the environment, and society, such that an acceptable sustainable system results.
This area will focus on key environmental problems that are best addressed using a holistic systems approach in the below stated program areas. Priority will be given to proposals that explicitly address the interaction among production, the environment, and the well-being of producers and the general public. Preference will also be given to multi-state, multi-institutional, and multi-disciplinary projects. The emerging agricultural and natural resource issues to be addressed include: System-wide management of natural resources, particulary involving small and mid-sized tracts of privately owned land within a defined geographic area (watershed or eco-region); encroachment and subsequent environmental impact of invasive native and non-native species (all taxa); conservation of biodiversity; animal waste management; and development and evaluation of precision technologies for efficient and sustainable production and harvesting of agricultural and natural resources.
As the world's population increases, the demands for delivery of natural resource goods and services will also increase. In addition, there is an increasing demand for diversity in the commodities being produced and an increased recognition that such production changes must be accomplished without adversely impacting our capacity to ensure the delivery of goods, services, and a healthy environment to future generations.
This program will support integrated projects which address methods to maintain environmental integrity, quality of life, and economic viability. The focus of this program is on alternative natural resource management for private lands with emphasis on the development and understanding of integrated natural resources management systems for
This sub-area of the initiative is intended to provide the research, extension and education information needed to support the management needs of the small and mid-sized aquatic, range, wildlife, and forest systems owners and managers. Projects should address management practices and technologies that will increase the opportunities for the small to mid-sized manager to operate profitable enterprises that respond to the demands for: (a) Alternative natural resources production, (b) sustainable forestry certification, (c) agroforestry, (d) invasive species management across multiple ownerships, (e) wildlife control and management, (f) nutrient management, (g) maintaining or enhancing biodiversity and ecosystem integrity, including restoration of species and ecosystems, (h) coping with the demands imposed by environmental and regulatory requirements within the increasingly mixed distribution of urban, rural, and wildlands management systems, and (i) training programs to enhance success and adoption of regionally-appropriate practices.
Proposals submitted to this sub-area will enhance our capacity to integrate regionally appropriate data and information to increase long-term, site-specific, and whole system efficiencies and profitability while both minimizing unintended impacts on natural resources and enhancing environmental integrity. Proposals are encouraged that use a whole systems approach (economic, environmental, social and community development) to evaluate the practices most conducive to sustaining small and mid-sized land management systems in the U.S. Partnerships with existing regional and/or long-term projects (including those associated with public lands) also are strongly encouraged.
Proposals should contain a clear plan for technology transfer and adoption. Proposals should clearly describe the type (size and distribution) of the system being evaluated and should include provisions that demonstrate an interdisciplinary problem-solving approach to maintain natural resources sustainability and profitability.
Proposals focusing on the financial security and quality of life of small to mid-sized family-owned pastures should be submitted to Program Area 15.0 (Farm Efficiency and Profitability).
The spread of non-native invasive species is one of the greatest threats to the long-term health of agricultural environments. The invasion of plant, animal and microbial pests is a global issue and it is of critical importance to the nation's land and water resources. United States agriculture is both losing income and incurring expenses to address this issue.
This program will focus on newly emerging non-native invasive species that threaten, or are already impacting agricultural, forest and rangeland resources and their associated waterways. In this program, non-native invasive species are defined as species (animal, plant and microbial) that are not indigenous to a particular eco-system and that have not become naturalized there. Priority will be given to proposals that: (1) Strongly justify their proposed work in terms of impact on U.S. agriculture, and (2) contain a substantial extension and/or public education component in addition to research.
Proposals will be considered that address five key areas: (1) Prevention of introductions (including pathway analysis), (2) prevention of spread of newly established invasive species (3) early detection of and rapid response to invasion, (4) monitoring of control efforts, and (5) quantification of impact of the invasive species (e.g. economic and/or ecological). The emphasis of this program will be to fund proposals that contain objectives that create a measurable outcome that can be realized within a relatively short period of time. Proposals should clearly indicate the nature of the impact expected to result should the proposal be funded. In addition, proposals should present a rationale for how the results of the work will be integrated into an overall management plan.
There is a great need to prevent the degradation of air, soil, and water resources by food animal production systems and to protect the ecological integrity of forest, rangeland, crop, aquatic, estuarine, and marine systems. Proper management of manure resulting from various production systems is one of the most critical issues facing the food animal industry. Animal feeding operations vary by region, species, size, and management requirements, so that each operation is site-specific and must be managed accordingly. Physical, chemical and/or biological treatment techniques may be used to reduce the pollution potential of animal manure. Regulation of animal feeding operations at the local, state and federal level is undergoing rapid change. An overall goal of this program is to improve American agriculture, environmentally and economically.
Proposals for this section will support integrated research, education and extension on regional or multi-state systems that will ultimately reduce adverse environmental and human health impacts of animal manure. Proposals will be considered that develop and evaluate manure management practices, and treatment systems for the protection of natural resources. Proposals which employ a watershed, landscape-scale approach are encouraged and could include the transport and fate of nutrients and/or pathogens from animal manure through air, water and soil. The incorporation of comprehensive nutrient management planning in educational programs is encouraged, as is the development of partnerships with already established waste management centers.
This sub-program will accept proposals which address the following topical areas: (a) Determination of the effects of animal manure nutrient content and quality, and extension of this knowledge to producers or companies who may in turn modify their feed; (b) resolving community and regulatory concerns about siting, land application, health and economic issues; (c) determination and prediction of odor, gas and particulate matter impacts on the atmosphere and society, and development of management strategies to alleviate such impacts; (d) understanding and predicting source, delivery and fate of pathogens, antibiotics and/or endocrine disruptors (hormones) in the environment and their potential effects of the environment; and (e) development and implementation of alternative waste
Proposals should indicate which of the following animal groups will be addressed: swine, dairy, beef, poultry or aquaculture. If appropriate, the proposal should address the economic aspects of the described process, methodology, practice, etc. as it affects agriculture and the environment.
Proposals focusing on producing and marketing value-added products from manure should be submitted to IFAFS Program Area 13.0 New Uses for Agricultural Products. Proposals that are predominantly water quality or food safety should be submitted to The Integrated Research, Education and Extension Grant Program. This program description can be found at www.reeusda.gov/1700/funding/11_99-406.htm.
(For clarification of this program area, contact the Program Director, Don West, at (202) 720-5633; e-mail: dwest@reeusda.gov; Mark Bailey, at (202) 401-1898; e-mail: mbailey@reeusda.gov; or Denis Ebodaghe, at (202) 401-4385; e-mail: debodaghe@reeusda.gov.)
Dramatic changes in the global agricultural environment and in domestic farm programs have created new challenges for U.S. farmers as they strive to maintain the efficiency and profitability of their operations and the financial viability of their families and communities. This program emphasizes the use of existing data and emerging information to synthesize and deliver knowledge that improves profitability for families operating small and medium-sized farms. Proposals that address the concerns of family-owned farms with limited financial resources will be given priority. Proposals should indicate how target audiences will benefit from the proposed programs/projects. Proposals ideally will address issues using a system-wide approach. For instance, a new crop diversification management scheme should consider potential markets, impact on total farm income and availability of inputs, and risk management tools for the new production plan.
All proposals submitted to this program area will undergo a peer review in which the efficiency and profitability of small and medium-sized farms is the most important criterion. New partnerships and new administrative mechanisms that involve universities, industry, profit/non-profit organizations and/or community colleges are also important criteria. Consideration will be given to system approaches useful in meeting the production, marketing, capital and human resource needs associated with dairy, livestock, crop and other commodity operations. This priority area recognizes linkages with natural resources and environmental issues, and the importance of strengthening the financial viability of farm operations, families, and communities. Such proposals should provide information on the connections between the sustainability of small and medium-sized farms and the viability of their communities.
Projects that utilize a systems approach and are national or regional in scope are encouraged as are those that incorporate research, extension, and educational functions. Proposals that incorporate farmer input in problem identification and have high scientific merit in project design, methodology and analytical procedures will be given priority. Appropriate innovative methodologies are encouraged, including those that make use of electronic technology in delivery of extension and formal education programs. Applicants with a strong track record of working with owners and managers of small and medium-sized farms are encouraged to apply.
Applicants are encouraged to submit research, extension, or education proposals that address one or more of the following areas:
(a) Development of management (e.g., pest, crop, animal, nutrient, economic) systems that improve efficiency and profitability, including the reduction of capital and input costs or the diversification of crop and livestock enterprises;
(b) development of effective marketing programs, including the use of farmers' markets, community-supported agriculture, marketing to restaurants and schools, cooperative approaches to use of inputs and marketing, organic production and marketing, Internet marketing, global markets, and agrotourism;
(c) development of farm-based value-added processing and new high-return production and marketing niches;; and
(d) development of programs/projects that improve access to knowledge and decision-making tools (e.g. production decision tools, formal and informal education in entrepreneurship, business planning and marketing for new or modified enterprises, and farm and family financial planning and management) that allow producers to increase options for farm efficiency and profitability in regional and local economies, including planning and building community support; and (e) development of programs/projects that improve access to and management of financial resources, including physical and production capital, financial services, innovative investment capital strategies, human capital (including availability and effective management of labor), and infrastructure and social capital (community resources and institutions). Projects addressing management of risks faced by farmers and ranchers should be directed to the Risk Management Education Program of CSREES.
(For clarification of this program area, contact the Program Director, Rodney Foil, at (202) 720-7441; e-mail: rfoil@reeusda.gov.) Proposals submitted to this program area (16.0) may not be submitted to any other program area.
IFAFS is offering the opportunity to consider applications based upon critical issues that transcend the specific elements of the individual IFAFS program areas as well as those issues that are of emerging significance.
A number of critical issue areas do not fit clearly within the specified IFAFS program areas announced in this solicitation. Other urgent or unforeseen agricultural problems and opportunities may present themselves after the IFAFS deadline. To permit these two issues areas to be addressed, CSREES is allowing the submission of Critical or Emerging Issues proposals up to six weeks after the IFAFS deadline date. Proposals should relate generally to an area of interest in the IFAFS program but be a critical need that clearly falls outside the boundaries of the existing program areas or be an emerging issue that has recently arisen.
Proposals designated as Critical or Emerging Issues will be judged by a much higher standard of relevance to critical and/or immediate issues than will those projects that address the elements of the program directly. Critical or Emerging Issues grants should make the case for their merit with strong evidence of the uniqueness or urgency of the issue and of the work
Applicants are cautioned to not use the Critical or Emerging proposal category as a way to circumvent the IFAFS deadline date.
(For clarification on this sub-area, please contact the Program Director, Howard Sandberg, at (202) 720-2193, e-mail: hsandberg@reeusda.gov.)
The purpose of the MGET program is to meet the challenges of educating scientists, engineers, and educators with graduate level multidisciplinary backgrounds and the technical, professional, and personal skills needed for the career demands of future agriculture. The program is intended to catalyze a cultural change in graduate education, for students, faculty, and universities, by establishing new, innovative models for graduate education and training in a fertile environment for collaborative research, education, and extension that transcends traditional disciplinary boundaries in agriculture. It is also intended to facilitate greater diversity in student participation and preparation and to contribute to the development of a diverse, globally-aware, agricultural research, education, and extension workforce.
Proposals submitted to the MGET program must be innovative, research-based, graduate education and training activities in priority mission areas of agriculture. At least two academic departments must be represented in each grant application. Submissions from multiple institutions are also encouraged. Proposals must be organized upon a multidisciplinary theme and involve a diverse group of faculty members and other investigators with appropriate expertise in research, education and extension. The multidisciplinary theme provides a framework for integrative, collaborative efforts across departments and institutions. Students should gain various strengths while maintaining competence in a major field by focusing on problem-oriented rather than discipline-oriented education and research. The MGET project should offer experience relevant to both academic and nonacademic careers by linking graduate education and research, through internships and mentoring, with research and extension in industry, national laboratory, or other settings. The globalization of graduate education and career opportunities places importance on an international perspective in graduate education, such as through internships abroad or other experiences appropriate to the agricultural education and research areas. The graduate experience should also equip students to understand and integrate scientific, technical, business, social, and ethical issues to confront the challenging agricultural problems of the future. The coherent multidisciplinary theme may draw upon investigators from two or more academic departments within a single institution or from more than one institution. Because the primary emphasis of the MGET program is on innovative approaches to education and training of graduate students, proposals must make clear what is different from existing programs at the institution. Participation of individuals at the undergraduate, graduate and postdoctoral levels may be included if such participation clearly strengthens the graduate traineeship program. Please bear in mind that all stipend recipients must be citizens or permanent residents of the U.S.
MGET projects are expected to incorporate the following features:
• A comprehensive multidisciplinary theme, appropriate for graduate-level education, to serve as the foundation for traineeship activities;
• Integration of the coherent multidisciplinary theme with innovative graduate education and training mechanisms, curricula, and other educational opportunities that foster strong interactions among participating students and faculty;
• An environment that exposes students to a broad base of state-of-the-art technologies and methodologies in agriculture;
• Provision for developing professional and personal elements such as communication, teamwork, and leadership;
• Integrated instruction in ethics and the responsible development of science policy and the conduct of research, education, and extension;
• Opportunities for career development, such as may be provided by internships in international, industrial, national laboratory, or other settings;
• Fostering of a global perspective for students;
• Formal administrative plan and organizational structure that ensures effective management of the requested resources to achieve the goals of the MGET project;
• Institutional strategy and operational plan for student recruitment, mentoring, and retention efforts aimed at members of groups under-represented in science and engineering (i.e., women, racial and ethnic minorities, and persons with disabilities) to ensure preparation of a diverse science and engineering workforce; and
• Well-defined strategy and methodology for internal, external, and independent assessment of project performance.
The Principal Investigator/Project Director (PI/PD) shall be the director of the MGET project, and is expected to be an essential participant in its education, research, and extension activities. The PI will have overall responsibility for administration of the award, management of the project, and for interactions with CSREES. The PI and the home institution are expected to develop an administrative structure for the MGET project that enables faculty members, students, and others involved to interact effectively in furthering the project's goals.
Program application materials are available at the CSREES website (www.reeusda.gov/IFAFS). If you do not have access to the CSREES web page or have trouble downloading material, you may contact the Proposal Services Unit, Office of Extramural Programs, USDA/CSREES at (202) 401-5048. When calling the Proposal Services Unit, please indicate that you are requesting forms for IFAFS. These materials may also be requested via Internet by sending a message with your name, mailing address (not e-mail) and phone number to psb@reeusda.gov. State that you want a copy of the Program Description and application materials (orange book) for the Fiscal Year 2001 Initiative on Future Agriculture and Food Systems (IFAFS).
Applicants are strongly encouraged to submit a Letter of Intent before submitting a full proposal. Indicate the
2. Project Proposals
a. General. The proposal should follow these guidelines, enabling reviewers to more easily evaluate the merits of each proposal in a systematic, consistent fashion:
(1) The proposal should be prepared on only one side of the page using standard size (8
(2) Each page of the proposal, including the Project Summary, budget pages, required forms, and any appendices, should be numbered sequentially.
(3) The proposal should be stapled in the upper left-hand corner. Do not bind. An original and 14 copies (15 total) must be submitted in one package, along with 10 copies of the “Project Summary” as a separate attachment.
(4) If applicable, proposals should include original illustrations (photographs, color prints, etc.) in all copies of the proposal to prevent loss of meaning through poor quality reproduction.
Each copy of each grant proposal must contain an “Application for Funding”, Form CSREES-661. One copy of the application, preferably the original, must contain the pen-and-ink signature(s) of the proposing principal investigator(s)/project director(s)(PI/PD) and the authorized organizational representative who possesses the necessary authority to commit the organization's time and other relevant resources to the project. Any proposed PI/PD or co-PI/PD whose signature does not appear on Form CSREES-661 will not be listed on any resulting grant award. Complete both signature blocks located at the bottom of the “Application for Funding” form.
Form CSREES-661 serves as a source document for the CSREES grant database; it is therefore important that it be completed accurately. The following items are highlighted as having a high potential for errors or misinterpretations:
(1) Title of Project (Block 6). The title of the project must be brief (80-character maximum), yet represent the major thrust of the effort being proposed. Project titles are read by a variety of nonscientific people; therefore, highly technical words or phraseology should be avoided where possible. In addition, introductory phrases such as “investigation of,” “research on,” “education for,” or “outreach that” should not be used.
(2) Program to Which You Are Applying (Block 7). “IFAFS''.
(3) Program Area and Number (Block 8). The name of the program component, e.g. Plant Genome, 10.1 or Behavior of Food Choice, 12.1. should be inserted in this block.
(4) Type of Award Request (Block 13). Check the block for “new”, “resubmission” or “renewal.”
(5) Principal Investigator(s)/Project Director(s) (PI/PD) (Block 15). The designation of excessive numbers of co-PI/PDs creates problems during final review and award processing. Listing multiple co-PI/PDs, beyond those required for genuine collaboration, is therefore discouraged. Note that providing a Social Security Number is voluntary, but is an integral part of the CSREES information system and will assist in the processing of the proposal.
(6) Type of Performing Organization (Block 18). A check should be placed in the box beside the type of organization which actually will carry out the effort. For example, if the proposal is being submitted by an 1862 Land-Grant institution but the work will be performed in a department, laboratory, or other organizational unit of an agricultural experiment station, box “03” should be checked. If portions of the effort are to be performed in several departments, check the box that applies to the individual listed as PI/PD #1 in Block 15.a.
(7) Other Possible Sponsors (Block 22). List the names or acronyms of all other public or private sponsors including other agencies within USDA and other programs funded by CSREES to whom your application has been or might be sent. In the event you decide to send your application to another organization or agency at a later date, you must inform the identified CSREES Program Director as soon as practicable. Submitting your proposal to other potential sponsors will not prejudice its review by CSREES; however, duplicate support for the same project will not be provided. Complete the “Application for Funding,” Form CSREES-661, in its entirety.
(8) One copy of the “Application for Funding” form must contain the signatures (in ink) of the PI/PDs and authorized organizational representative for the applicant organization.
Each proposal's Project Description should contain the following:
(1) Introduction—A clear statement of the long-term goal(s) and supporting objectives of the proposed activities should be included. Summarize the body of knowledge or other past activities which substantiates the need for the proposed project. Describe ongoing or recently completed significant activities related to the proposed project including the work of key project personnel. Preliminary data/information pertinent to the proposed project should be included;
(2) Relevance and significance—The objectives' specific relationship to the goals of the IFAFS and to the particular program area should be stated. Include a description of the significance of the activity and its value in improving agriculture through research, education and extension. Clearly describe the potential impact of the project. (For Critical or Emerging Issues proposals, see Part III.,B.3.)
(3) Approach—The activities proposed or problems being addressed must be clearly stated and the approaches being applied clearly described. The following should be included: (a) A description of the activities proposed; (b) methods to be used in carrying out the project, including the feasibility of the methods; (c) expected outcomes; (d) means by which results will be analyzed, assessed, or interpreted; and (e) how results or products will be used.
(4) Time Table—Provide an expected time line for completing the project in the requested duration.
(5) Collaborative Arrangements—Identify collaborations and provide a full explanation of the nature of the collaborations.
(6) Management Plan—It is expected that larger more complex projects (usually greater than $1 million) will require more extensive and complicated coordination and collaboration than is typically proposed for more focused projects. Therefore, explain how the project will be managed to ensure efficient administration of the grant and how activities will be integrated most effectively. Place this description after the Project Description.
(7) Evaluation and Monitoring of Project—Provide a plan for assessing and evaluating the accomplishments of the stated proposal objectives during the project and describe ways to determine the effectiveness of the end results during and upon termination of the project. In addition to the evaluation and monitoring of accomplishments associated with the project, evaluation and monitoring of the administration of the project must also be included if the project is complex and requires administrative oversight and extensive management. This description should include how funds and resources will be allocated so that collaborative participation of all parties throughout the duration of the project is ensured. (For special provisions regarding MGET proposals, see Part III., B.4.6.)
(1) The roles and responsibilities of each PI/PD should be described;
(2) An estimate of time commitment for each PI/PD; and
(3) Vitae of each PI/PD, senior associate and other professional personnel. This section should include vitae of all key persons who are expected to work on the project, whether or not CSREES funds are sought for their support. The vitae should be limited to two (2) pages in length, excluding publication lists. A chronological list of all publications in refereed journals during the past four (4) years, including those in press, must be provided for each project member for which a curriculum vitae is provided. Also list those non-refereed technical publications which have relevance to the proposed project. All authors should be listed in the same order as they appear on each paper cited, along with the title and complete reference as these usually appear in journals.
All anticipated subcontractual arrangements also should be explained and justified in this section. A proposed statement of work and a budget for each arrangement involving the transfer of substantive programmatic work or the providing of financial assistance to a third party must be provided. Agreements between departments or other units of your own institution and minor arrangements with entities outside of your institution (e.g., requests for outside laboratory analyses) are excluded from this requirement.
If you expect to enter into subcontractual arrangements, please note that the provisions contained in 7 CFR Part 3019, USDA Uniform Administrative Requirements for Grant and Other Agreements with Institutions
The following guidelines should be used in developing your proposal budget(s):
(A) Salaries and Wages. Salaries and wages are allowable charges and may be requested for personnel who will be working on the project in proportion to the time such personnel will devote to the project. If salary funds are requested, the number of Senior and Other Personnel and the number of CSREES-Funded Work Months must be shown in the spaces provided. Grant funds may not be used to augment the total salary or rate of salary of project personnel or to reimburse them for time in addition to a regular full-time salary covering the same general period of employment. Salary funds requested must be consistent with the normal policies of the institution.
(B) Fringe Benefits. Funds may be requested for fringe benefit costs if the usual accounting practices of your organization provide that organizational contributions to employee benefits (social security, retirement, etc.) be treated as direct costs. Fringe benefit costs may be included only for those personnel whose salaries are charged as a direct cost to the project.
(C) Nonexpendable Equipment. Nonexpendable equipment means tangible nonexpendable personal property including exempt property charged directly to the award having a useful life of more than one year and an acquisition cost of $5,000 (or lower, depending on institutional policy) or more per unit. As such, items of necessary instrumentation or other nonexpendable equipment should be listed individually by description and estimated cost in the Budget Narrative. This applies to revised budgets as well, as the equipment item(s) and amount(s) may change.
(D) Materials and Supplies. The types of expendable materials and supplies which are required to carry out the project should be indicated in general terms with estimated costs in the Budget Narrative.
(E) Travel. The type and extent of travel and its relationship to project objectives should be described briefly and justified. If foreign travel is proposed, the country to be visited, the specific purpose of the travel, a brief itinerary, inclusive dates of travel, and estimated cost must be provided for each trip. Airfare allowances normally will not exceed round-trip jet economy air accommodations. U.S. flag carriers must be used when available. See 7 CFR Part 3015.205(b)(4) for further guidance.
(F) Publication Costs/Page Charges. Include anticipated costs associated with publications in a journal (preparing and publishing results including page charges, necessary illustrations, and the cost of a reasonable number of coverless reprints) and audio-visual materials that will be produced. Photocopying and printing brochure, etc., should be shown in Section I., “All Other Direct Costs” of Form CSREES-55.
(G) Computer (ADPE) Costs. Reimbursement for the costs of using specialized facilities (such as a university-or department-controlled computer mainframe or data processing center) may be requested if such services are required for completion of the work.
(H) All Other Direct Costs. Anticipated direct project charges not included in other budget categories must be itemized with estimated costs and justified in the Budget Narrative. This also applies to revised budgets, as the item(s) and dollar amount(s) may change. Examples may include space rental at remote locations, subcontractual costs, and charges for consulting services, telephone, facsimile, shipping costs, and fees necessary for laboratory analyses. You are encouraged to consult the “Instructions for Completing Form CSREES-55, Budget,” of the Application Kit for detailed guidance relating to this budget category. Form AD-1048 must be completed by each subcontractor or consultant and retained by the grantee.
(I) Indirect Costs—Section 1462 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3310) limits indirect costs for this program to 19 percent of total Federal funds provided under each award. Therefore, the recovery of indirect costs under this program may not exceed the lesser of the institution's official negotiated indirect cost rate or the equivalent of 19 percent of total Federal funds awarded. If no rate has been negotiated, a reasonable dollar amount (equivalent to less than 19 percent of total Federal funds requested) in lieu of indirect costs may be requested, subject to approval by USDA.
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n.
For those grants requiring matching funds as specified in Part I. E., proposals should include written verification of commitments of matching support (including both cash and in-kind contributions) from third parties. Written verification means:
(1) For any third party cash contributions, a separate pledge agreement for each donation, signed by the authorized organizational representatives of the donor organization and the applicant organization, which must include: (a) the name, address, and telephone number of the donor; (b) the name of the applicant organization; (c) the title of the project for which the donation is made; (d) the dollar amount of the cash donation; and (e) a statement that the donor will pay the cash contribution during the grant period; and
(2) For any third party in-kind contributions, a separate pledge
The sources and amount of all matching support from outside the applicant institution should be summarized on a separate page and placed in the proposal immediately following the Budget Narrative. All pledge agreements must be placed in the proposal immediately following the summary of matching support.
The value of applicant contributions to the project shall be established in accordance with applicable cost principles. Applicants should refer to OMB Circulars A-21, Cost Principles for Educational Institutions, A-87, Cost Principles for State, Local, and Tribal Governments, A-122, Cost Principles for Non-Profit Organizations, and for-profit organizations, the cost principles in the Federal Acquisition Regulation at 48 CFR 31.2 (see 7 CFR 3015.194).
o.
(1). Recombinant DNA or RNA Research.
As stated in 7 CFR 3015.205 (b)(3), all key personnel identified in the proposal and all endorsing officials of the proposing organization are required to comply with the guidelines established by the National Institutes of Health entitled, “Guidelines for Research Involving Recombinant DNA Molecules,” as revised. If your project proposes to use recombinant DNA or RNA techniques, you must so indicate by checking the ‘yes’ box in Block 19 of Form CSREES-661 (the Cover Page) and by completing Section A of Form CSREES-662. For applicable proposals recommended for funding, Institutional Biosafety Committee approval is required before CSREES funds will be released.
(2). Animal Care. Responsibility for the humane care and treatment of live vertebrate animals used in any grant project supported with funds provided by CSREES rests with the performing organization. Where a project involves the use of living vertebrate animals for experimental purposes, all key project personnel identified in a proposal and all endorsing officials of the proposing organization are required to comply with the applicable provisions of the Animal Welfare Act of 1966, as amended (7 U.S.C. 2131
(3) Protection of Human Subjects—Responsibility for safeguarding the rights and welfare of human subjects used in any grant project supported with funds provided by CSREES rests with the performing organization. Guidance on this issue is contained in the National Research Act, Pub. L No. 93-348, as amended, and implementing regulations promulgated by the Department under 7 CFR Part 1c. If you propose to use human subjects for experimental purposes in your project, you should check the ‘yes’ box in Block 21 of Form CSREES-661 and complete Section C of Form CSREES-662. In the event a project involving human subjects results in a grant award, funds will be released only after the appropriate Institutional Review Board has approved the project.
q. Certifications. Note that by signing Form CSREES-661 the applicant is providing certifications required by 7 CFR Part 3017, as amended, regarding Debarment and Suspension and Drug Free Workplace, and 7 CFR Part 3018, regarding Lobbying. The certification forms are included in the application package for informational purposes only. These forms should not be submitted with the proposal since by signing form CSREES-661 your organization is providing the required certifications. If the project will involve a subcontractor or consultant, the subcontractor/consultant should submit a form AD-1048 to the grantee organization for retention in their records. This form should not be submitted to USDA.
r. Compliance with the National Environmental Policy Act (NEPA) Form CSREES-1234. As outlined in 7 CFR Part 3407 (the Cooperative State Research, Education, and Extension Service regulations implementing NEPA), the environmental data for any proposed project is to be provided to CSREES so that CSREES may determine whether any further action is needed. In some cases, however, the preparation of environmental data may not be required. Certain categories of actions are excluded from the requirements of NEPA.
In order for CSREES to determine whether any further action is needed with respect to NEPA, pertinent information regarding the possible environmental impacts of a particular project is necessary; therefore, Form CSREES-1234, “NEPA Exclusions Form,” must be included in the proposal indicating whether the applicant is of the opinion that the project falls within a categorical exclusion and the reasons therefore. If it is the applicant's opinion that the proposed project falls within the categorical exclusions, the specific exclusion must be identified. Form CSREES-1234 and supporting documentation should be included as the last page of this proposal.
Even though a project may fall within the categorical exclusions, CSREES may determine that an Environmental Assessment or an Environmental Impact Statement is necessary for an activity, if substantial controversy on environmental grounds exists or if other extraordinary conditions or circumstances are present which may
Proposals submitted to the Critical or Emerging Issues Program Area 16.0 should contain all of the components listed above for a Project grant application. In addition the “Relevance and Significance” section of the proposal should include a statement explaining, with strong evidence, the uniqueness or urgency of the issue and of the work proposed, and an explanation why the proposal could not have fit and been submitted to an existing IFAFS program area at the original deadline.
Proposals submitted to the MGET Program Area 17.0 should contain all of the components listed above for a Project Grant application with the following exceptions:
a. Project Summary—On the Project Summary Page provide a brief description of the traineeship program, including the multidisciplinary education features, objectives, and related theme.
b. Project Description—The project description section should contain the following items:
(1) List of Participants—Include departmental and institutional affiliation of all faculty members and senior level personnel expected to mentor students or otherwise play an important role in the project;
(2) Vision, Goals, and Thematic Basis—Discuss the vision, goals, and anticipated impact of the proposed MGET project. Describe the thematic basis and unifying aspects of the multidisciplinary research, education, and extension activities to be offered. Discuss what is currently missing from graduate education and training or what could be done more effectively, and how the proposed project will address these issues. How will this project meet national needs for placement of the graduates in the workforce? Benefits to be realized from opportunities for cross-disciplinary cooperation in education, research, and extension should be emphasized. What is new and innovative?
(3) Education and Training—Describe the multidisciplinary education and training activities central to the proposed MGET project. Novel aspects should be emphasized to help reviewers judge potential impacts of proposed activities. Indicate how the proposed educational, research, and extension experiences will be integrated into an effective graduate traineeship program. Needs for interdisciplinary courses must be justified. If planned student training includes international, industrial or other internships, potential mentors should be identified. Describe provisions for developing professional and personal elements such as communication, teamwork, leadership, international perspective, and instruction in ethics, policy, and responsible conduct of science, education and extension. Elaborate on the role of diversity, and on the expected time for completing the degree. The role of undergraduate, graduate, and postdoctoral components, when proposed, must be described with sufficient detail to clarify the benefit to the graduate traineeship program and to justify support.
(4) Major Research Efforts—Describe the major research efforts that are intended to serve as the foundation of the MGET project. At most, five (5) research areas may be described. This restriction is to limit the size of the proposal, not the number of participating faculty members or the scope of the project. In describing research areas, emphasize the cutting-edge aspects as well as how the research areas integrate to form the coherent thematic basis for the multidisciplinary project. Each research area must specify faculty members and principal participants and be written in sufficient detail to enable assessment of scientific merit and impact. Be clear about what is different from existing programs. Needs for special materials, shared instruments, or travel must be justified in the context of the research areas for which they are required.
(5) Recruitment and Retention—Describe plans for recruitment, mentoring, and retention of trainees, including provisions for members of groups under-represented in the food and agricultural sciences. Identify the graduate program(s) in which the MGET graduate students may enroll.
(6) Organization and Management—Describe plans and procedures for organization and management of the proposed activity. The plan should be specific and clear, and include a formal mechanism that assures fair and effective allocation of group resources. Procedures for selecting students and others who will receive stipends or share in group funds must be described, as should methods for allocating use of shared equipment to be acquired with MGET funds. Relationships to other faculty and equipment at the institution, and elsewhere if relevant, should be described as should the relationship to existing grants that provide funds for related training and educational activities.
(7) Performance Assessment—Describe a performance plan and methodology that relates the goals of the project to indicators and specific measurements for assessing progress toward goal achievement. This should involve evaluators external to the project, who can render an objective evaluation and whose expertise spans the education, research, and extension objectives of the project.
(8) Recruitment and Retention History—Explain your capacity to host an MGET site, and past performance and ability to attract well-qualified students, including those from under-represented groups. Provide the following information regarding recruitment and retention of students in the participating departments/programs: (a) Total applicants, (b) total applicants accepted, (c) total applicants enrolled, (d) total students currently enrolled in the program indicating part-time and full-time status, (e) total number of masters and doctorates awarded, (f) average time to degree, (g) other relevant measures of student success. Provide separate data for women, under-represented minorities, and persons with disabilities for each of the above categories. A tabular format should be used with separate tables for each participating department/program.
(9) Recent Training Experience—Provide information about any recent experience with other traineeship programs, including a discussion of outcomes. If the MGET program builds on a recent traineeship experience, discuss what would be the new value-added aspects of the project.
(10) Collaborators—To identify potential conflicts of interest in the review process, provide a consolidated alphabetical list of current and past collaborators during the last four (4) years, and their current institutional affiliation, for all personnel in List of Participants. This list must also include former graduate students and postdoctoral fellows who have been associated with the faculty participants over the last four years.
(11) Existing Facilities and Equipment—Include a brief description of available facilities, including major instruments required. If requested equipment or materials duplicate existing items, explain the need for the additional equipment.
c. Budget—Provide a budget for each year of support requested, not to exceed $500,000 each year for up to four years, exclusive of first-year equipment funds discussed below. The major portion of awarded funds must be used for
“Letters of Intent” must be received by March 23, 2001. Proposals must be received by COB (5:00 p.m. EST) on April 23, 2001. Proposals received after this date will not be considered for funding.
For full proposals, an original and 14 copies must be submitted. In addition submit 10 copies of the proposal's Project Summary. All copies of the proposals and the Project Summaries must be submitted in one package.
Applicants should e-mail the “Letter of Intent” to Dr. Rodney Foil at rfoil@reeusda.gov or send the letter by mail to IFAFS; Mail Stop 2213; Cooperative State Research, Education, and Extension Service, U.S. Department of Agriculture; 1400 Independence Avenue, SW.; Washington, D.C. 20250-2213; or fax the letter to IFAFS at (202) 690-3858.
Applicants are strongly encouraged to submit completed proposals via overnight mail or delivery service to ensure timely receipt by the USDA. The address for hand-delivered proposals or proposals submitted using an express mail or overnight courier service is: Initiative for Future Agriculture and Food Systems, c/o Proposal Services Unit, Cooperative State Research, Education, and Extension Service, U.S. Department of Agriculture; Room 1307, Waterfront Centre, 800 9th Street, SW., Washington, D.C. 20024, (202) 401-5048.
Proposals sent via the U.S. Postal Service must be sent to the following address: Initiative for Future Agriculture and Food Systems, c/o Proposal Services Unit, Cooperative State Research, Education, and Extension Service, U.S. Department of Agriculture, STOP 2245, 1400 Independence Avenue, S.W., Washington, D.C. 20250-2245.
The receipt of proposals will be acknowledged by e-mail. Therefore, applicants are encouraged to provide e-mail addresses, where designated, on the Form CSREES-661. If the applicant's e-mail address is not indicated, CSREES will acknowledge receipt of the proposal by letter.
Once the proposal has been assigned an identification number, please cite that number on all future correspondence. If the applicant does not receive an acknowledgment within 60 days of the submission deadline, please contact the Program Director.
All proposals will be reviewed together by a panel in the pertinent program area. Prior to technical examination, a preliminary review will be made for responsiveness to the program area. Proposals that do not fall within the guidelines as stated in the Program Area Description will be eliminated from program competition and will be returned to the applicant.
Individual written comments and in-depth discussions will be provided by a peer review panel prior to recommending applications for funding. Peer review panel members will be selected based upon their training and experience in relevant scientific, extension, or education fields taking into account the following factors: (a) The level of formal scientific, technical education, and extension experience of the individual, as well as the extent to which an individual is engaged in relevant research, education or extension activities; (b) the need to include as peer reviewers experts from various areas of specialization within relevant scientific, education, and extension fields; (c) the need to include as reviewers other experts (producers, range or forest managers/operators, consumers, etc.) who can assess relevance of the proposals to targeted audiences and to program needs; (d) the need to include as peer reviewers experts from a variety of organizational types (e.g., colleges, universities, industry, state and Federal agencies, private profit and non-profit organizations), and geographic locations; (e) the need to maintain a balanced composition of peer review groups with regard to minority and female representation and an equitable age distribution; and (f) the need to include members that can judge the effective usefulness to producers and the general public of each proposal.
Priority will be given to projects that integrate agricultural research, education and extension and projects that have included the appropriate team to achieve the goals of the project, notably teams that are multistate, multi institutional or multidisciplinary.
The following evaluation factors apply to all proposals.
(1) Documentation that the research, extension and education activities are directed towards current or likely future problems or problems identified in this document;
(2) Evident linkage of research, extension and education functions.
(3) Evidence of involvement of stakeholders and/or communities of interest.
(1) Novelty, innovation, uniqueness, and originality;
(2) Conceptual adequacy of the research, extension and education components;
(3) Clarity and delineation of objectives;
(4) Adequacy of the description of the undertaking and suitability and feasibility of methodology;
(5) Demonstration of feasibility;
(6) Probability of success of the project;
(1) Selection of most appropriate and qualified individuals to address the problem;
(2) Training and demonstrated awareness of previous and alternative approaches to the problem identified in the proposal, and performance record or potential for future accomplishments;
(3) Time allocated for systematic attainment of objectives;
(4) Institutional experience and competence in subject area;
(5) Adequacy of available or obtainable support personnel, facilities, and instrumentation;
(6) Adequacy of plans for reporting, assessing and monitoring of results of the project over its duration.
(7) The planned administration of the project and its maintenance, partnerships, collaborative efforts, evaluation and monitoring efforts, and the planned dissemination of information over the duration of the project.
Bridge grants will be judged using the same evaluation factors as Project Grants. In addition the following factor will be applied once a project has been identified for BRIDGE grant consideration:
All proposals under consideration for Bridge grant support will be judged as to the potential that further funding will sustain and enhance important collaborations and activities that might lead to future program success or success in obtaining IFAFS and/or other grants.
Critical or Emerging Issues grants will be judged using the same evaluation factors as Project Grants. In addition the following factor will be applied:
All proposals will be evaluated as to the uniqueness or urgency of the issue and of the work proposed and whether support of the project will likely provide results that are applied to an issue that otherwise would not have been funded through typical IFAFS support.
MGET proposals will be judged using the following criteria:
a. How well the proposal addressed recognized needs for highly trained personnel in the research, education and extension programs supporting the food and agricultural system of the U.S.;
b. Whether attention has been given to opportunities for removal of cultural and technical barriers preventing appropriate growth and development of new disciplines with emerging technologies;
c. How well the proposal integrates disciplines across physical, biological and social sciences to meet integrated agricultural and food science needs as well as meeting needs for supplying future extension personnel and practitioners;
d. The intellectual merit, qualifications of the proposed leadership team and the sufficiency of the proposed resources;
e. How well the proposing institution(s) provide abundant opportunities for individuals to concurrently assume responsibilities as researchers, educators, extensionists, and students where all can engage in joint efforts that infuse education with the excitement of discovery and enrich research and extension through the diversity of learning perspectives;
f. How well the proposal integrates diversity into programs, projects, and activities by broadening opportunities and enabling the participation of all citizens—women and men, under-represented minorities, and persons with disabilities—which is essential to the health and vitality of the food and agricultural sciences. CSREES is committed to this principle of diversity and deems it central to the programs, projects, and activities it considers and supports;
g. Successful proposals should include provisions for developing personal and professional competencies in communications, teamwork, leadership, and ethics with opportunities for internships and other career development opportunities should be provided for as appropriate, and an emphasis on the global dimensions of the subject area as an integral part of the program.
During the peer evaluation process, extreme care will be taken to prevent any actual or perceived conflicts-of-interest that may impact review or evaluation. For the purpose of determining conflicts-of-interest, the academic and administrative autonomy of an institution shall be determined by reference to the January 1998 issue of the Codebook for Compatible Statistical Reporting of Federal Support to Universities, Colleges, and Nonprofit Institutions, prepared by Quantum Research Corporation for the National Science Foundation.
Names of submitting institutions and individuals, as well as proposal content and peer evaluations, will be kept confidential, except to those involved in the review process, to the extent permitted by law. In addition, the identities of peer reviewers will remain confidential throughout the entire review process. Therefore, the names of reviewers will not be released to applicants. At the end of the fiscal year, names of panelists will be made available in such a way that the panelists cannot be identified with the review of any particular proposal.
Copies of summary reviews, not including the identity of reviewers, will be sent to the applicant PI/PD after the review process has been completed.
Within the limit of funds available for such purpose, the awarding official of CSREES shall make grants to those responsible, eligible applicants whose proposals are judged most meritorious under the procedures set forth in this RFP. The date specified by the Administrator as the effective date of the grant shall be no later than September 30. It should be noted that the project need not be initiated on the grant effective date, but as soon thereafter as practical so that project goals may be attained within the funded project period. All funds granted by CSREES under this RFP shall be expended solely for the purpose for which the funds are granted in accordance with the approved application and budget, the regulations, the terms and conditions of the award, the applicable Federal cost principles, and the Department's assistance regulations (parts 3015, 3016, and 3019 of 7 CFR).
Specific management information relating to an applicant shall be submitted on a one-time basis as part of the responsibility determination prior to the award of a grant identified under this RFP, if such information has not been provided previously under this or another CSREES program. CSREES will provide copies of forms recommended for use in fulfilling these requirements as part of the preaward process.
The grant award document shall include at a minimum the following:
(a) Legal name and address of performing organization or institution to whom the Administrator has awarded a grant under the terms of this request for proposals;
(b) Title of project;
(c) Name(s) and address(es) of principal investigator(s) chosen to direct and control approved activities;
(d) Identifying grant number assigned by the Department;
(e) Project period, specifying the amount of time the Department intends to support the project without requiring recompetition for funds;
(f) Total amount of Departmental financial assistance approved by the Administrator during the project period;
(g) Legal authority(ies) under which the grant is awarded;
(h) Approved budget plan for categorizing allocable project funds to accomplish the stated purpose of the grant award; and
(i) Other information or provisions deemed necessary by CSREES to carry out its respective granting activities or to accomplish the purpose of a particular grant.
The notice of grant award, in the form of a letter, will be prepared and will provide pertinent instructions or information to the grantee that is not included in the grant award document.
The two mechanisms by which grants may be awarded are as follows:
1.
2.
Unless the terms and conditions of the grant state otherwise, the grantee may not in whole or in part delegate or transfer to another person, institution, or organization the responsibility for use or expenditure of grant funds.
a. The permissible changes by the grantee, PI/PD(s), or other key project personnel in the approved project grant shall be limited to changes in methodology, techniques, or other aspects of the project to expedite achievement of the project's approved goals. If the grantee and/or the PI/PD(s) are uncertain as to whether a change complies with this provision, the question must be referred to the CSREES Authorized Departmental Officer (ADO) for a final determination.
b. Changes in approved goals or objectives shall be requested by the grantee and approved in writing by the CSREES ADO prior to effecting such changes. In no event shall requests for such changes be approved which are outside the scope of the original approved project.
c. Changes in approved project leadership or the replacement or reassignment of other key project personnel shall be requested by the grantee and approved in writing by the awarding official of CSREES prior to effecting such changes.
d. Transfers of actual performance of the substantive programmatic work in whole or in part and provisions for payment of funds, whether or not Federal funds are involved, shall be requested by the grantee and approved in writing by the ADO prior to effecting such transfers, unless prescribed otherwise in the terms and conditions of the grant.
e. Changes in Project Period: The project period may be extended by CSREES without additional financial support, for such additional period(s) as the ADO determines may be necessary to complete or fulfill the purposes of an approved project. Any extension of time shall be conditioned upon prior request by the grantee and approval in writing by the ADO, unless prescribed otherwise in the terms and conditions of a grant, but in no case shall a grant period of performance exceed 5 years.
f. Changes in Approved Budget: Changes in an approved budget must be requested by the grantee and approved in writing by the ADO prior to instituting such changes if the revision will involve transfers or expenditures of amounts requiring prior approval as set forth in the applicable Federal cost principles, Departmental regulations, or in the grant award.
Several other Federal statutes and regulations apply to grant proposals considered for review and to project grants awarded under this program. These include, but are not limited to:
7 CFR Part 1.1—USDA implementation of the Freedom of Information Act.
7 CFR Part 3—USDA implementation of OMB Circular No. A-129 regarding debt collection.
7 CFR Part 15, subpart A—USDA implementation of Title VI of the Civil Rights Act of 1964, as amended.
7 CFR Part 3015—USDA Uniform Federal Assistance Regulations,
7 CFR Part 3016—Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.
7 CFR Part 3017—USDA implementation of Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants).
7 CFR Part 3018—USDA implementation of Restrictions on Lobbying. Imposes prohibitions and requirements for disclosure and certification related to lobbying on recipients of Federal contracts, grants, cooperative agreements, and loans.
7 CFR Part 3019—USDA implementation of OMB Circular A-110, Uniform Administrative Requirements for Grants and Other Agreements With Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations.
7 CFR Part 3052—USDA implementation of OMB Circular No. A-133, Audits of States, Local Governments, and Non-profit Organizations.
7 CFR Part 3407—CSREES procedures to implement the National Environmental Policy Act of 1969, as amended.
29 U.S.C. 794 (section 504, Rehabilitation Act of 1973) and 7 CFR Part 15d (USDA implementation of statute)—prohibiting discrimination based upon physical or mental handicap in Federally assisted programs.
35 U.S.C. 200
When a proposal results in a grant, it becomes a part of the record of CSREES transactions, available to the public upon specific request. Information that the Secretary determines to be of a confidential, privileged, or proprietary nature will be held in confidence to the extent permitted by law. Therefore, any information that the applicant wishes to have considered as confidential, privileged, or proprietary should be clearly marked within the proposal. The original copy of a proposal that does not result in a grant will be retained by the CSREES for a period of one year. Other copies will be destroyed. Such a proposal will be released only with the consent of the applicant or to the extent required by law. A proposal may be withdrawn at any time prior to the final action thereon.
For the reasons set forth in the final Rule-related Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), this program is excluded from the scope of the Executive Order 12372 which requires intergovernmental consultation with State and local officials. Under the provisions of the Paperwork Reduction Act of 1995, as amended (44 U.S.C. chapter 35), the collection of information requirements contained in this Notice have been approved under OMB Document No. 0524-0022.
Baylor College of Medicine
Boston University
Brown University
California Institute of Technology
Carnegie-Mellon University
Case Western Reserve University
Colorado State University
Columbia University
Cornell University
CUNY Mount Sinai School of Medicine
Dartmouth College
Duke University
Emory University
Florida State University
Georgetown University
Georgia Institute of Technology
Harvard University
Indiana University
Iowa State University of Science and Technology
Johns Hopkins University
*Kansas State University
Massachusetts Institute of Technology
Medical College of Wisconsin
Michigan State University
New York University
North Carolina State University
Northwestern University
Ohio State University
Oregon Health Sciences University
Oregon State University
Pennsylvania State University
Princeton University
Purdue University
Rockefeller University
Rutgers, The State University of New Jersey
Scripps Research Institute
Stanford University
State University of New York at Stony Brook
State University of New York at Buffalo
Texas A&M University, College Park
Thomas Jefferson University
Tufts University
Tulane University
University of Alabama Birmingham
University of Arizona
University of California Berkeley
University of California Davis
University of California Irvine
University of California Los Angeles
*University of California Riverside
University of California San Francisco
University of California Santa Barbara
University of Chicago
University of Cincinnati
University of Colorado
University of Florida
University of Georgia
University of Illinois Urbana-Champaign
University of Illinois Chicago
University of Iowa
University of Kansas
University of Maryland Baltimore Prof Sch
University of Maryland College Park
University of Massachusetts Amherst
University of Massachusetts Medical School Worcester
University of Medicine and Dentistry of New Jersey
University of Miami
University of Michigan Ann Arbor
University of Minnesota Twin Cities
University of Missouri Columbia
*University of Nebraska—Lincoln
University of New Mexico
University of North Carolina Chapel Hill
University of Pennsylvania
University of Pittsburgh
University of Rochester
University of South Carolina
University of Southern California
University of Texas at Austin
University of Texas Health Science Center Houston
University of Texas Health Sci. Center San Antonio
University of Texas MD Anderson Cancer Center
University of Texas Medical Branch Galveston
University of Texas SW Medical Center Dallas
University of Utah
University of Virginia
University of Washington
University of Wisconsin Madison
*Utah State University
Vanderbilt University
Virginia Commonwealth University
Wake Forest University
Washington University
*Washington State University
Wayne State University
Woods Hole Oceanographic Institute
Yale University
Yeshiva University, New York
* Annotated institutions are not in the list for the most successful Federally funded, but were among the top 50th percentile of those funded by the National Research Initiative (Competitive, Special, and Facilities Research Grant Act (7 U.S.C. 450i(b)) over the past three years (1997-1999).
Minerals Management Service (MMS), Interior.
Final rule.
This bidding rule establishes the leasing incentive framework we will use to issue Outer Continental Shelf (OCS) leases after November 2000. It also presents a plain-language revision of the existing rules for bidding systems and joint bidding restrictions. It does not change the current policies on and requirements for bidding systems, joint bidding restrictions, or royalty suspensions for leases issued before December 2000. It does add one minor reporting requirement for all leases issued with royalty suspension and specifies the allocation of royalty relief on a field having leases issued before and after 2000. It also clarifies and rewrites in plain-language the current rental regulations at 30 CFR 218.151 to provide for lessees to pay rental fees during the period of royalty suspension.
This final rule is effective March 26, 2001.
Marshall Rose, Economics Division, at (703) 787-1536.
On September 14, 2000, we published a proposed rule in the
We proposed four primary changes to the way we have been implementing leasing incentives. In the future, we will establish in the notice of sale, instead of in regulation, the size and form of royalty relief and associated parameters, such as the water depth demarcations where royalty suspension (RS) volumes apply and the price thresholds above which we interrupt RS. Unlike eligible leases issued from 1996 through 2000, future deep water leases, even those issued with RS volumes, may apply for supplemental royalty relief under our discretionary authority in 30 CFR 203. We will assign RS volumes to individual leases rather than, as previously, to fields. Finally, lessees will owe rental but no minimum royalties in any full year in which they pay no royalties on production. Currently, lessees owe rentals until discovery and then minimum royalties until production under royalty suspension begins. The intent to change the current rule and provide for rentals during royalty suspension periods was not perfectly captured in the proposed regulation, but was included in the preamble to the proposed rule. The preamble explained that rentals during royalty suspension periods are analogous to a holding fee collected during capital recovery periods when net profit share leases pay rental but no royalty. In the proposed rule we asked for comments on these leasing incentive adjustments.
In conjunction with this rulemaking, on November 16, 2000, we published another proposed rule in the
Thirteen respondents—a joint one from 6 oil and gas industry associations, a separate one from one of those associations, 10 oil and gas companies and the Department of Energy—submitted comments on the leasing incentive and bidding rule. Copies of all the comments we received are available on our website at
Several comments took issue with some of our bidding system rules. As we are not proposing to change the substance of the existing rules, we take those comments as indicative of confusion created by our plain-language rewrite. We clarify in this final rule those confusing portions of the proposed rewrite.
The requirement to notify us when royalty-free production begins is the only change from the current regulation that we proposed to the way royalty suspensions apply to eligible leases issued from 1996 through 2000. No respondents objected to this notification requirement and we finalized that provision without modification. The only other new element that affects existing eligible leases is that a future RS lease may be on the same field. The new regulations in § 260.124 govern royalty suspension in this situation.
Most comments addressed specific questions raised in the introduction to the proposed rule. The following summarizes those comments and our responses in four sections—design of future royalty suspensions, adjustable lease-based royalty suspension, rental payments and relief suspension during high prices, and bidding issues.
Four questions sought guidance on design issues for future lease sales. Responses to the question on what factors we should consider, and how we should consider them, when choosing water depths at which to offer royalty relief focused on four items:
• Shortage of rigs capable of drilling in water depths greater than 1600 meters;
• Lack of infrastructure in water depths greater than 1600 meters;
• The multitude of challenges (reservoir connectivity, reservoir performance, rig price fluctuations, limited production experience, undeveloped and relatively untested technology, distance from support infrastructure, higher development costs, and shallow water flow) to operations in water depths greater than 1500 meters; and
• The relatively lower quality of remaining prospects in the 200 to 1600 meter water depth area.
No one suggested ways to rank or measure the relative significance of these factors or how to relate them to the issue of whether we should provide any RS volumes. Also, the comments seem to argue that a rationale can be made for royalty relief in all deep water.
Responses to the question on what elements other than water depth to consider, and how we should consider them, in deciding on the size of RS volumes also can be categorized into four groups:
• Unusual drilling challenges such as subsalt targets, extreme well depths, and drilling encountering high pressure/high temperature zones;
• Unusual production challenges such as distance to available
• The value of increased competition from greater bidding interest sparked by royalty relief; and
• Shortage of domestic investment alternatives for the offshore oil and gas industry due to the absence of OCS lands available for leasing outside the GOM.
Again, beyond identification of these elements, the comments offered little in the way of guidance on how to evaluate these considerations relative to others such as the need to obtain fair market value for public resources and the desire to use the incentive efficiently. Nonetheless, like those to the previous question, these comments identify elements we will consider in choosing RS parameters. This rule does not establish those parameters, so those comments will be considered more fully as part of future notice of sale processes that will establish these parameters.
The question on the choice between low RS volumes followed by normal royalty rates or high RS volumes followed by above normal royalty rates found a large preference for the former. The principal reasons given included aversion to variable royalty rates, a wish not to confound the bidding and exploration incentive offered by RS volumes with disincentive changes in other lease terms, and a recognition that supplemental relief can reinforce modest RS volumes where truly needed. One comment did note that smaller, riskier prospects may benefit more from the larger RS volumes than a lower eventual royalty rate.
The final design question about the shift in risk associated with RS volumes elicited no responses that smaller companies feel disadvantaged either in bidding or development relative to larger companies.
One comment suggested that we are defining too narrowly this framework for royalty relief by mentioning only suspension of royalty for a volume of production. The Deep Water Royalty Relief Act (the Act) also authorized suspensions for a time or value of production. To keep open that possibility, we refer to a more general royalty suspension rather than a royalty suspension volume in §§ 260.120, 260.121 and 260.124.
Responses generally agreed with our observation that lease-based royalty suspension is preferable to field-based royalty suspension. Many comments voiced the need for certainty and stability in lease sale terms and asserted that field-based RS volumes introduce uncertainties into planning that diminish some of the positive impact of royalty relief on prospect economics. Several comments tentatively supported lease-based relief, but worried that intermixing the lease-based program with the field-based program may create uncertainty. We disagree because the proposed provisions confine uncertainty about realization of RS volumes to eligible leases; i.e., those issued under the field-based system. The current regulation makes it clear that a field's RS volume is to be shared by all the leases in a field entitled to share the royalty suspension volume. The new RS leases are simply a new kind of lease entitled to share this volume. The new element is that, unlike with eligible leases or pre-Act leases that qualify for an RS volume, the field's production timing and magnitude do not affect the royalty relief available to the new RS leases. Also, the proposed provisions do not increase the degree of uncertainty faced by eligible or pre-Act leases, had the field-based system continued. New leases issued with lease-based RS volumes share from a volume sufficient to make the field economic, just as would other eligible leases or pre-Act leases that qualify for a royalty suspension.
In the proposed rule, we inadvertently proposed to change the period allowed for a challenge to a field designation from 15 to 30 days in §§ 260.114 and 260.124. We did not mention this as a change in the preamble to the proposed rule because we did not intend to propose this change. No one commented on the change. To avoid the inevitable confusion and administrative problem of different appeal periods for leases issued at different times, we adjust the proposed rule language to retain the 15-day appeal period to all leases.
Additional steps that some respondents requested to reduce the uncertainty for eligible leases are beyond the scope of this rulemaking. The main step identified was designation of which blocks are on which fields before drilling proves the presence of hydrocarbons. Note that we publish the procedure we use to decide on which field a well on a lease lies, so companies can form their own judgment of what we will decide after the well is drilled. It is our position that to do more and actually preview our likely field decision could risk divulging others' proprietary data and possibly misdirect companies if we subsequently acquire new well or other data.
Some responses to our question about basing uniform RS volumes on the needs of a typical tie-back-sized field pointed out that in doing so we should consider additional factors. Those factors include:
• the expectation that the bigger and better situated tie-back fields already have been leased,
• the uncertainty a resource owner faces about access to another's facilities, and
• the chance that user charges will transfer the benefit of the RS from the reserve owner to the facility owner.
Others simply opposed basing RS volumes on tie-backs at all. Those that opposed using tie-backs as a basis argued that many potential tie-back-sized fields may be developed as stand-alones because they have one or more of the following characteristics. The fields:
(1) Consist of multiple reservoirs that require numerous recompletions;
(2) Involve a large numbers of wells because they lack reservoir continuity; or
(3) Depend on the use of secondary recovery techniques (e.g., water injection). Others noted the current absence of infrastructure to host tie-backs in ultra-deep water.
In general, we view situations with these unusual characteristics as exceptions to be handled by the combination of automatic and supplemental relief. An efficient leasing incentive must focus on a standard volume adequate to encourage bidding and exploration on fields not yet leased and the kind of development most likely to occur on those fields. Should experience indicate, we retain the flexibility under this new rule to offer larger RS in the future. In the meantime, offering larger RS volumes based on stand-alone development would grant excessive royalty relief for the way many of the unleased fields are likely to develop.
On the subject of supplemental relief, we received one comment related to the breadth of our royalty relief authority. One respondent noted that the OCS Lands Act gives the Secretary of the Interior discretionary authority to reduce or eliminate royalties on producing or non-producing leases, and that the Act does not specifically prohibit granting discretionary relief outside the GOM west of 87 degrees, 30 minutes West longitude. We disagree because the OCS Lands Act only authorizes royalty relief to increase production, implying that the lease is already on production. Only the Act authorized relief to promote development, implying that a lease has not yet produced, and the Act limits these authorities to the GOM west of 87 degrees, 30 minutes West longitude.
Several responses to our intention to assume two to three leases per field developed as a tie-back argued that we should make no assumption about field size or makeup. Others advocate adjustment in the lease-based relief for fields that prove to underlie fewer leases. Yet many of the same respondents urged certainty and clarity on future royalty relief provisions. Since we typically estimate the economics of unleased and undiscovered resources on a field basis, lease-based relief requires some transformation from field to lease. Our judgment is that we make relief more certain when we estimate a generic field's financial needs and convert this to a lease size before the lease sale. The most logical and administratively simple way to do the conversion is by using typical numbers of leases per field derived from relevant experience. The alternative of waiting to set the RS volume until a field is discovered and its boundaries determined does not eliminate the uncertainty about the RS volume that a lease ultimately receives. In fact, it would reintroduce some of the uncertainty and contention we currently have with the field as the primary basis of royalty relief.
Two features are likely to help correct any errors in an assumption about the specific number of leases per field. First, the assumption of two to three leases per field is based on our experience to date with fields, most of which we recognize are in shallow water and involve a smaller average field size. Our analysis shows that the deep water fields likely to be leased and discovered over the next few years will tend to cover more leases. In that circumstance, lease specific relief set at
Respondents generally applauded our intention to wait at least 3 years before modifying the initial RS volumes and the other parameters. Benefits cited included easier planning and better decisions because a 3-year commitment allows time for seismic acquisition and interpretation. This time period also affords MMS the opportunity to examine how well the program is working over several lease sales. One comment recommended a 5-year commitment coinciding with our 5-year OCS leasing program. While we recognize the value of a multiyear commitment on lease terms, we do not believe it prudent to include it in a regulation. Rapid changes either in the GOM or in the larger oil and gas market may indicate a change in lease terms that can be accomplished more expeditiously in the sale notice.
Respondents identified three kinds of effects—conflicting message, minimal, and confusion—from our proposal to extend the rental obligation until royalty payments begin. The conflicting message is that rental payments detract from the RS incentive by imposing a payment during the period when we suspend royalties. Others admitted this payment is minimal given the many millions it takes to develop successfully deep water prospects and the value of the royalties saved due to the RS and is consistent with a long tradition of an annual maintenance fee on OCS leases. Confusion could arise because existing lease forms have first a rental then a minimum royalty equivalent to the rental, even before production begins. Future lease forms will impose only a rental during periods when no royalty payments are due and then impose minimum royalties only as a floor for those royalty payments. We do clarify in 30 CFR 218.151 that the due date for rental after a discovery shifts to the end of the lease year.
One comment recommended simply extending minimum royalties to the RS periods, rather than subjecting all future leases to rentals for an extended period. The proposed treatment has a similar effect on future leases sold without an RS, as they would pay no more in fees than they would under the previous rules. While there could be some difference for leases sold with RS, we deem it inadvisable to introduce the administrative burden of making a hypothetical royalty calculation when no royalty is really due. Clarifying the designation of this single holding fee as a rental payment when no royalty is due should help avoid future confusion.
On another rental issue, some respondents expressed concern that we are changing the requirements about collecting rentals from a non-producing part of a partitioned lease. Our requirements on this issue have not changed from what they were before this plain-language rewrite. We do not collect rentals from the non-producing part of a lease. However, when a newly formed lease occurs as a result of segregation, we do collect rental from a non-producing part of a block.
Some respondents opposed having price thresholds set in sale notices and perhaps periodically adjusted, even though any adjustments would apply only to newly issued leases, not those already issued. Price thresholds are oil and gas prices above which lessees owe royalties despite RS. Most comments objected to the reduced predictability amidst all the other uncertainty in deep water development. It is important to reiterate that once set for a given lease, the price threshold will not change. Only future leases would be subject to any new price threshold. One comment opposed adjusting price thresholds in general since oil and gas price increases drive up costs due to increased utilization of rigs, labor, and equipment. We continue to believe it is better to be able to adjust thresholds if necessary for newly issued leases. Otherwise, we could be locked into an inappropriate price threshold. Perceptions about future prices both drive investment decisions and evolve over time, so the option to change price thresholds for new leases benefits the initial threshold choice because it allows for future adjustments.
A related issue drew either no comments or expressions of confusion. Current policy, following the language of the Act, makes royalties due from the whole previous year if that year's average price exceeds the threshold. That fact cannot be known for certain until several months after the end of a year, so lessees could end up at that time owing back royalties for the past year. One alternative is to apply the thresholds on a real time, rather than retrospective basis. The absence of comments on this issue may simply reflect an acceptance of the existing administrative procedures stated in the Act.
Responses to our question about the appropriate magnitude of price thresholds raised a variety of issues. Some wanted no price thresholds, since those willing to take the risks of deep water exploration and production should not be additionally burdened with the risk of losing the RS incentive. Others essentially took the same position by stating that any price thresholds should be so high that they are not breached by historic price fluctuations, since industry bears the brunt of price cycles. We disagree with this position because we design RS terms assuming some price expectations by the lessee, and those terms lose legitimacy when prices diverge too much from those expectations.
Several respondents agreed that the price thresholds with annual inflation adjustments are reasonable but see no reason to change from the levels set in the Act. Absent compelling analysis supporting the Act's choice of price
Several respondents also commented that regardless of the size of the price thresholds, our policy should be that production does not count against any remaining RS volume when it occurs during a period when prices exceed the threshold. But, this is contrary to the reason for having the thresholds in the first place. That is, at sufficiently high prices, the benefits on revenue preclude the need for relief on this production. If this production does not count against the RS volume, the production at high prices and profits that fully replace the royalty relief gets, in effect, a double incentive.
We have clarified the price threshold language to make it more consistent with the application of the price threshold trigger and collection logistics mandated previously by Congress in the Act. The proposed rule intended maximum flexibility in the timing of the threshold and the collection of royalty by leaving the details for inclusion in future notices of sale. The final rule mimics the previous threshold rule except it does not adopt the calendar year as the time period for always calculating the price threshold. Rather, it allows some flexibility for a different time period. We retain the NYMEX as the pricing benchmark and the royalty collection process after the fixed price threshold time period.
We did not ask for comments on our bidding policy rules because we are not proposing to change them. Nevertheless, we received comments on 2 issues—prohibition of agreements after a lease sale and use of multiple bidding systems and variables—that deserve response.
The intent of § 260.303(d) is not to prevent restricted bidders from entering into agreements after we award a lease. Rather, subsection (d) prohibits pre-sale agreements between restricted bidders whereby one restricted bidder would commit to assigning part of a lease to another restricted bidder after the sale is completed. Specifically, subsection (d) prohibits restricted bidders A and B from entering into an agreement
The first sentence in § 260.110 makes it clear that we will apply a single bidding system and variable to each tract in a lease sale. However, we do intend to use multiple systems in a single sale, for instance offering some tracts with a royalty suspension and others with no royalty suspension, as we have for the last 5 years.
According to the criteria in Executive Order 12866, this rule is a significant regulatory action. The Office of Management and Budget (OMB) makes the final determination under Executive Order 12866.
a. This rule will not have an annual economic effect of $100 million or adversely affect an economic sector, jobs, the environment, or other units of government. This action is a plain-language rewrite of current rules and clarification of policies that may be employed for issuing leases with royalty suspensions in lease sales held after November 2000. There is no assurance that the leasing system option provided in this rule will be used in all future offshore sales. For instance, sustained high prices or a shortage of unleased tracts may cause us to discontinue leasing incentives. Even when used, the leasing system option in this rule will not change substantially the net economic value of production from leases eligible for royalty suspension volumes. Royalty suspension should lead to higher bonuses because future production will be more profitable. Also, more tracts should receive bids because royalty relief makes smaller, more remote fields potentially profitable. But, because the government collects the fair market value of a tract in the up-front bid, the risk that the tract will not prove productive is shifted entirely to the bidder. We do not expect bonus bids to offset fully the anticipated royalty savings on a specific tract. Since these offsetting effects on revenue will play out over an extended period and involve uncertainties that will be assessed differently by the different bidders, we cannot predict the ultimate effect on government receipts. Most of the more prospective tracts have been leased already and the incentives we envision for the next several years are smaller than those mandated by the Act. Thus, we don't expect to see the level of bidding activity experienced in the last 5 years, nor the same level of future royalty reduction. At this point we can say that deep water royalty relief will serve primarily to accelerate the timing of production and redistribute realization of fair market value from royalty to bonus collection. As royalty suspension volumes are an incentive to production, they likely encourage timely exploration in hope of finding reserves, since royalty relief has no value unless and until production occurs. This acceleration will have a beneficial effect on offshore oil industry production and jobs in the near term.
b. This rule will not create inconsistencies with other agencies' actions because there are no changes in requirements from the existing rule.
c. This rule is an administrative change that will not affect entitlements, grants, user fees, loan programs, or their recipients. This rule has no effect on these programs or rights of the programs' recipients.
d. This rule will raise novel legal or policy issues. Although this action is basically the rewrite of an existing rule in plain language and sets up a more flexible framework to continue current royalty suspension policies for future sales, it comes at a time when oil and gas prices are unusually high. Some may question the need to continue leasing incentives. We believe royalty suspension remains necessary in a scaled-down and more flexible format because prices can fall as well as rise. Also, a continued program reduces disruptions associated with an abrupt termination of incentives and resultant pressure to continue the rigid, outdated, and expiring terms of the Act.
The Department certifies that this rule would not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601
Companies that extract oil, gas, or natural gas liquids or are otherwise in oil and gas exploration and development activities acquire the vast majority of leases offered at OCS lease sales and will be most affected by this rule. The Small Business Administration (SBA) defines a small business as having:
• Annual revenues of $5 million or less for exploration service and field service companies.
• Fewer than 500 employees for drilling companies and for companies that extract oil, gas, or natural gas liquids.
Under the North American Industry Classification System Code, 211111, Crude Petroleum and Natural Gas Extraction, MMS estimates that a total of 1,380 firms drill oil and gas wells onshore and offshore. The group most affected by this rule is the approximately 130 companies that are offshore lessees/operators. According to SBA criteria, 39 companies qualify as large firms, leaving up to 91 companies that may qualify as small firms with fewer than 500 employees. However, because of the extremely high cost and technical complexity involved in exploration and development in deep water, the vast majority of lessees/operators that will be affected by this rule will be large companies. Nineteen of the 26 lessee/operators that have registered a total of 211 discoveries by mid-year 2000 in deep water (200 meters and greater) are not small and these 19 large firms account for over 91 percent of the total discoveries. The rule envisions limiting incentives to deep water where the presence of large firms is even more prevalent. Virtually all of the prospective tracts in the part of deep water where small firms traditionally operate are already under lease.
This rule would add costs in two areas where there are no costs under the existing rules and the deep water royalty relief terms associated with eligible leases. First, lease terms for eligible leases suspended all payments, including rents and minimum royalties, after start of production on the lease and until the mandated royalty suspension volumes were fully produced. This rule would require that lessees of leases issued in sales after the effective date of this rule must continue to make annual rental payments after a discovery. Rental payments will be due during any year after discovery when no royalty payments are due. Rentals would replace minimum royalties between discovery and start of production for those leases. Experience to date (mid-2000) shows that only four leases are actually producing under the royalty suspension terms set by the Act. Both of the two operators involved happen to be small businesses. If that experience continues for leases issued after this rule, we might expect that perhaps one such lease may produce by 2004, and two more might produce by 2005. Thus, these new leases, irrespective of the size of the lessee, may pay extra rentals ($43,200/lease/year) of $172,800, or an average over the next 5 years of just below $35,000/year. This estimate presumes that these leases will pay rentals instead of “minimum royalties” between discovery and start of production.
Second, the rule would add the requirement that owners of eligible leases notify MMS prior to initiating production on the leases. We estimate it will take an operator one-half hour to draft, finalize, and send such a notification letter. We envision that this letter will be very brief and give only pertinent data such as lease number, area/block, date production is scheduled to commence, and language requesting confirmation of the amount of royalty relief applicable. We currently have six eligible leases with approved Development Operations Coordination Documents (DOCD) and 264 eligible leases with approved Plans of Exploration (POE). For this analysis, we assume that:
(1) All six leases with approved DOCDs will commence production within the first 5 years;
(2) Thirty percent (79) of the 264 leases with approved POEs will drill a discovery well; and
(3) Twenty-five percent (20) of those leases with a discovery well will obtain a DOCD and commence production. Based on these assumptions, we estimate that a total of 26 eligible leases will commence production within the next 5 years.
At an estimated paperwork cost of $50 per hour or $25 per notification, the total estimated cost of the notification requirement for the first 5 years in which the rule is in effect is $650 or $130 per year.
Thus, total estimated incremental costs associated with this rule are slightly below $35,000 per year on average through 2005. The annual cost will be spread among lessees whose eligible leases commence production and eventually among leases issued after this rule becomes effective and that produce with a royalty suspension. Based on the ratios found above, small business may incur one-tenth to one-third of this incremental cost. The annual cost for a small business with a lease producing under royalty suspension but paying rental would be approximately $44,000 per year. Even if a small business has several eligible leases commencing production, it is clear that the magnitude of the costs do not impose a significant economic effect on a substantial number of small business entities engaged in multi-million dollar drilling and development activities.
Further, any costs associated with the rule must be viewed in light of the substantial economic benefits to be gained from the suspension of royalty payments on the established volume of production. While estimated averaged annual costs are just under $35,000 per year through 2005, lessees that produce stand to gain tens of millions of dollars in royalty relief from the rule. For example, the standard royalty portion (
Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.
This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). This rule:
a. Does not have an annual effect on the economy of $100 million or more. This rule rewrites the existing rule and clarifies royalty suspension policies for future sales. This rule does not specify exact royalty suspension parameters, but describes the structure that we will follow in applying sale-specific royalty suspensions to future leases. While royalty suspension volumes for future lease sales are not likely to be as high as the current levels specified in the Act, they will still provide meaningful benefits to large and small business lessees.
In general, royalty suspension redistributes revenues—royalty payments decline during the royalty suspension period, while bonus
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. Oil prices are not based on the production from any one region, but are based on worldwide production and demand at any point in time. While gas prices are more localized, they historically correlate to oil prices. The rule does not change any existing leasing policies, so it should not cause prices to increase.
c. Does not have significant adverse effects on competition, employment, investment, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. Leasing on the United States OCS is limited to entities as specified in 30 CFR 256.35. This rule does not change that requirement, so it does not change the ability of United States firms to compete in any way.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments. The rule describes the existing regulation in plain language and clarifies royalty suspension policies for OCS lease sales held after November 2000. A statement containing additional UMRA (2 U.S.C. 1531
According to Executive Order 12630, the rule does not have significant Takings Implications. A Takings Implication Assessment is not required because the rule would not take away or restrict a bidder's right to acquire OCS leases.
According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State Governments. This rule affects the collection of royalty revenues and rentals from lessees in the deep water GOM, all of which are outside State jurisdiction. States have no role in this activity with or without this rule. This rule does not impose costs on States or localities. States and local governments play no part in the administration of the deep water royalty relief or rental programs.
According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
According to the PRA (44 U.S.C. 3501
The title of the collection of information for this rule is “30 CFR Part 260—Outer Continental Shelf Oil and Gas Leasing.” The requirement to respond is required to obtain or retain a benefit. The information collection requirements and estimated burdens are:
(1) In § 260.114(c), respondents must notify MMS of their intention to begin production, and they must request confirmation of the size of the royalty suspension volume that applies to their eligible lease. We estimate the burden to be one-half hour per notification, and that we would receive five-to-six notices annually.
(2) In §§ 260.114 and 260.124, there is a provision for a lessee or other affected lessees to request reconsideration of MMS's assignment of a lease that has a qualifying well to an existing field or designate a new field. We estimate the burden can range between 80 and 1,000 hours per request for reconsideration. That wide range reflects the fact that fields can underlie from 1 to more than 10 leases, can include from 1 to several dozen reservoirs, or can require simple to complex geological and geophysical interpretations. Because a favorable field assignment can save a lessee tens of millions of dollars in royalties, we may get as many simple as complex appeals. For purposes of estimating burden, we assume that we receive three or four annually, uniformly spread over the simple to complex range with an average burden of 400 hours.
We estimate the total annual reporting “hour” burden for the 30 CFR part 260 regulations to be about 1,600 hours. This includes the time for reviewing instructions, searching existing data sources, and gathering the data. There are no recordkeeping requirements.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required.
According to the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951) and 512 DM 2, we have determined that there are no effects from this action on federally recognized Indian tribes.
Continental shelf, Methods of payment, Mineral royalties, Public lands—Mineral resources, Royalty payments. Net profit share payment, Rental payments.
Administrative practice and procedure, Continental shelf, Environmental protection, Government contracts, Mineral royalties, Oil and gas exploration, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Surety bonds.
Bidding system, Continental shelf, mineral royalties, Oil and gas leasing, Reporting requirements, Restricted joint bidder, Royalty suspension.
25 U.S.C. 396
The annual rental paid in any year is in addition to, and is not credited against, any royalties due from production. The lessee must pay an annual rental as shown in paragraphs (a), (b), and (c) of this section. Discovery means one or more wells on the lease that meet the requirements in 250, subpart A of this title.
(a) This paragraph applies to any lease not covered by paragraph (b) or paragraph (c) of this section.
(b) This paragraph applies to any lease created by segregating a portion of a producing lease when there is no actual or allocated production on the segregated portion. The lessee must pay an annual rental for the segregated portion at the rate specified in the lease. The lessee must pay the rental as shown in the following table.
(c) * * *
42 U.S.C. 6213 and 43 U.S.C. 1331,
The following definitions apply to §§ 256.38 through 256.44 of this part.
43 U.S.C. 1331
Part 260 implements the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331
(a) Implementing alternative bidding systems;
(b) Prohibiting joint bidding for development rights by certain types of joint ventures; and
(c) Establishing diligence requirements for Federal OCS leases.
The Paperwork Reduction Act of 1995 (PRA) requires us to inform you that we may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB approved the information collection requirements in part 260 under 44 U.S.C. 3501
(a) We use the information collected under §§ 260.114(a)(2), (c)(1) and 260.124 (a)(2):
(1) To make decisions on requests for reconsideration of our assignment of a lease that has a qualifying well to an existing field or designate a new field under §§ 260.114(a) and 260.124(a), and
(2) To ensure that the royalty suspension volume is properly allocated among constituent leases in a field under § 260.117.
(b) Respondents are Federal OCS oil and gas lessees and operating rights holders. Responses are required to obtain or retain a benefit. We will protect proprietary information under applicable law and part 250 of this chapter.
(c) You may send comments regarding any aspect of the collection of information under this part, including suggestions for reducing the burden, to the Information Collection Clearance Officer, Minerals Management Service, Mail Stop 4230, 1849 C Street, NW., Washington, DC 20240.
This subpart establishes the bidding systems that we may use to offer and sell Federal leases for the exploration, development, and production of oil and gas resources located on the OCS.
(1) Is issued as part of an OCS lease sale held after November 28, 1995, and before November 28, 2000;
(2) Is located in the Gulf of Mexico in water depths of 200 meters or deeper;
(3) Lies wholly west of 87 degrees, 30 minutes West longitude; and
(4) Is offered subject to a royalty suspension volume.
(1) Is issued as part of an OCS lease sale held before November 28, 1995;
(2) Is located in the Gulf of Mexico in water depths of 200 meters or deeper; and
(3) Lies wholly west of 87 degrees, 30 minutes West longitude. (See part 203 of this title.)
(1) Is issued as part of an OCS lease sale held after November 28, 2000;
(2) Is in locations or planning areas specified in a particular Notice of OCS Lease Sale; and
(3) Is offered subject to a royalty suspension specified in a Notice of OCS Lease Sale published in the
We will apply a single bidding system selected from those listed in this section to each tract included in an OCS lease sale. The following table lists bidding systems, the bid variables, and characteristics.
(a) For each of the bidding systems in § 260.110, we will include an annual rental fee. Other fees and provisions may apply as well. The Notice of OCS Lease Sale published in the
(b) If we use any deferment or schedule of payments for the cash bonus bid, we will specify and include it in the Notice of OCS Lease Sale published in the
(c) For the bidding systems listed in this subpart, if the bid variable is a cash bonus bid, the highest bid by a qualified bidder determines the amount of cash bonus to be paid. We will include the minimum bid level(s) in the Notice of OCS Lease Sale published in the
(d) For the bidding systems listed in this subpart, if the bid variable is the royalty rate, the highest bid by a qualified bidder determines the royalty rate to be paid. We will include the minimum royalty rate(s) in the Notice of OCS Lease Sale published in the
(e) We may, by rule, add to or modify the bidding systems listed in § 260.110, according to the procedural requirements of the OCSLA, 43 U.S.C. 1331
Royalty suspension volumes, as specified in section 304 of the Act, apply to eligible leases that meet the criteria in § 260.113. For purposes of this section and §§ 260.113 through 260.117:
(a) Any volumes of production that are not normally royalty-bearing under the lease or the regulations (e.g., fuel gas) do not count against royalty suspension volumes; and
(b) Production includes volumes allocated to a lease under an approved unit agreement.
(a) Your eligible lease may receive a royalty suspension volume only if it is in a field where no current lease produced oil or gas (other than test production) before November 28, 1995. For eligible leases, the bidding system in § 260.110(g) applies only to leases in fields that meet this condition.
(b) You may receive a royalty suspension volume only if your entire lease is west of 87 degrees, 30 minutes West longitude. A field that lies on both sides of that meridian will receive a royalty suspension volume only for those eligible leases lying entirely west of the meridian.
(a) We will assign your lease that has a qualifying well (under part 250, subpart A of this title) to an existing field or designate a new field and will notify you and other affected lessees and operating rights holders in the field of that assignment.
(1) Within 15 days of that notification, you or any of the other affected lessees or operating rights holders may file a written request with the Director of MMS (Director) for reconsideration accompanied by a “Statement of Reasons.”
(2) The Director will respond in writing either affirming or reversing the assignment decision. The Director's decision is the final action of the Department of the Interior and is not subject to appeal to the Interior Board of Land Appeals under part 290 of this title and 43 CFR part 4.
(b) We have specified the water depth for each eligible lease in the final Notice of OCS Lease Sale. Our determination of water depth for each lease is final once we issue the lease. We have specified in the Notice the royalty suspension volume applicable to each water depth. The minimum royalty suspension volumes for fields in million barrels of oil equivalent (MMBOE) are shown in the following table:
(c) Before commencing production, you must:
(1) Notify the MMS Regional Supervisor for Production and Development of your intention to start production; and
(2) Request confirmation of the size of the royalty suspension volume that applies to your eligible lease.
(d) When production (other than test production) first occurs from any of the eligible leases in a field consisting only of eligible leases, we will determine what royalty suspension volume applies to the lease(s) in that field. We base the determination for eligible lease(s) on the royalty suspension volumes specified in paragraph (b) of this section and § 260.117(a).
(e) Your eligible lease may obtain more than one royalty suspension volume. If a new field is discovered on your eligible lease that already benefits from the royalty suspension volume from another field, production from that new field receives a separate royalty suspension.
A royalty suspension volume for an eligible lease will continue through the end of the month in which cumulative production from the leases in a field entitled to share the royalty suspension volume reaches that volume or the lease period ends.
You must measure natural gas production on your eligible lease subject to the royalty suspension volume as follows: 5.62 thousand cubic feet of natural gas, measured according to part 250, subpart L of this title, equals one barrel of oil equivalent.
In addition to the provisions in §§ 260.111 through 260.116, the provisions in this section apply to royalty suspension volumes on eligible leases.
(a) If a new field consists of eligible leases in different water-depth categories, the royalty suspension volume associated with the eligible lease in the deepest water applies.
(b) If your eligible lease is the only eligible lease in a field, you do not owe royalty on the production from your lease up to the applicable royalty suspension volume.
(c) If a field consists of more than one eligible lease:
(1) Payment of royalties on the eligible leases' initial production is suspended until cumulative production equals the field's established royalty suspension volume;
(2) Only production from leases entitled to share in the field's royalty suspension volume counts as part of this cumulative production; and
(3) The royalty suspension volume for each eligible lease is equal to each lease's actual production (or production allocated under an approved unit agreement) until the field's royalty suspension volume is reached.
(d) This paragraph applies if we add an eligible lease to a field that has an established royalty suspension volume
(1) The field's royalty suspension volume will not change, even if the added lease is in deeper water;
(2) If we granted a royalty suspension volume under part 203 of this title that is larger than the minimum specified for that water depth, the added eligible lease may share in the larger suspension volume;
(3) The eligible lease may receive a royalty suspension volume only to the extent of its production before the cumulative production equals the field's previously established royalty suspension volume; and
(4) Only production from leases entitled to share in the field's previously established royalty suspension volume counts as part of this cumulative production.
(e) A pre-Act lease may receive a royalty suspension volume under part 203 of this title for a field that already has a royalty suspension volume due to eligible leases. If this happens, then:
(1) The eligible and pre-Act leases share a single royalty suspension volume;
(2) The field's royalty suspension volume is the larger of the volume for the eligible leases or the volume MMS grants in response to the pre-Act leases' application; and
(3) The suspension volume for each eligible lease is its actual production from the lease until cumulative production from all leases in the field entitled to share in the field-based suspension volume equals the suspension volume.
(f) If we reassign a well on an eligible lease to another field, the past production from that well:
(1) Will count toward the royalty suspension volume, if any, specified for the field to which it is reassigned; and
(2) Will not count toward the royalty suspension volume, if any, for the field from which it was reassigned.
We may issue leases with suspension of royalties for a period, volume or value of production, as authorized in section 303 of the Act. For purposes of this section and §§ 260.121 through 260.124:
(a) Any volumes of production that are not normally royalty-bearing under the lease or the regulations (e.g., fuel gas) do not count against royalty suspension volumes; and
(b) Production includes volumes allocated to a lease under an approved unit agreement.
(a) We will specify any royalty suspension for your RS lease in the Notice of OCS Lease Sale published in the
(1) Your RS lease may produce royalty-free the royalty suspension we specify for your lease, even if the field to which we assign it is producing.
(2) The royalty suspension we specify in the Notice of OCS Lease Sale for your lease does not apply to any other leases in the field to which we assign your RS lease.
(b) You may apply for a supplemental royalty suspension for a project under part 203 of this title, if your lease lies:
(1) In the Gulf of Mexico,
(2) In water 200 meters or deeper, and
(3) Wholly west of 87 degrees, 30 minutes West longitude.
(c) Your RS lease retains the royalty suspension with which we issued it even if we deny your application for more relief.
(a) The royalty suspension volume for your RS lease will continue through the end of the month in which cumulative production from your lease reaches the applicable royalty suspension volume or the lease period ends.
(b)(1) Notwithstanding any royalty suspension under this subpart, you must pay royalty at the lease stipulated rate on:
(i) Any oil produced for any period stipulated in the lease during which the arithmetic average of the daily closing prices on the New York Mercantile Exchange (NYMEX) for light sweet crude oil exceeds a threshold price stipulated in the lease, or
(ii) Any natural gas produced for any period stipulated in the lease during which the arithmetic average of the daily closing prices on the NYMEX for natural gas exceeds a threshold price stipulated in the lease.
(2) You must pay any royalty due under this paragraph, plus late payment interest under § 218.54 of this title, no later than 90 days after the end of the period for which royalty is owed.
(3) Any production on which you must pay royalty under this paragraph will count toward the production volume determined under §§ 260.120 through 260.124.
(c) If you must pay royalty on any product (either oil or natural gas) for any period under paragraph (b), you must continue to pay royalty on that product during the next succeeding period of the same length until the arithmetic average of the daily closing NYMEX prices for that product for that period can be determined. If the arithmetic average of the daily closing prices for that product for that period is less than the threshold price stipulated in the lease, you are entitled to a credit or refund of royalties paid for that period with interest under applicable law.
(d) MMS will adjust the threshold oil and gas prices referred to in paragraph (b) for any period stipulated in the lease by the percentage, if any, by which the implicit price deflator for the gross domestic product changed during the preceding period.
You must measure natural gas production subject to the royalty suspension volume for your lease as follows: 5.62 thousand cubic feet of natural gas, measured according to part 250, subpart L of this title, equals one barrel of oil equivalent.
(a) We will assign your lease that has a qualifying well (under part 250, subpart A of this title) to an existing field or designate a new field and will notify you and other affected lessees and operating rights holders in the field of that assignment.
(1) Within 15 days of the final notification, you or any of the other affected lessees or operating rights holders may file a written request with the Director for reconsideration, accompanied by a Statement of Reasons.
(2) The Director will respond in writing either affirming or reversing the assignment decision. The Director's decision is the final action of the Department of the Interior and is not subject to appeal to the Interior Board of Land Appeals under part 290 of this title and 43 CFR part 4.
(b) If we establish a royalty suspension volume for a field, either as a result of an approved application for royalty relief submitted for a pre-Act lease under part 203 of this title or as
(1) Royalty-free production from your RS lease shares from and counts as part of any royalty suspension volume remaining for the field to which we assign your lease; and
(2) Your RS lease may continue to produce royalty-free up to the royalty suspension we specified for your lease, even if the field to which we assign your RS lease has produced all of its royalty suspension volume.
(c) Your lease may share in a suspension volume larger than the royalty suspension with which we issued it and to the extent we grant a larger volume in response to an application by a pre-Act lease submitted under part 203 of this title. To share in any larger royalty suspension volume, you must file an application described in §§ 203.71 and 203.83. In no case will royalty-free production for your RS lease be less than the royalty suspension specified for your lease.
In analyzing the application of one of the bidding systems listed in § 260.110 to tracts selected for any OCS lease sale, we may, at our discretion, consider the following purposes and policies. We recognize that each of the purposes and policies may not be specifically applicable to the selection process for a particular bidding system or tract, or may present a conflict that we will have to resolve in the process of bidding system selection. The order of listing does not denote a ranking.
(a) Providing fair return to the Federal Government;
(b) Increasing competition;
(c) Ensuring competent and safe operations;
(d) Avoiding undue speculation;
(e) Avoiding unnecessary delays in exploration, development, and production;
(f) Discovering and recovering oil and gas;
(g) Developing new oil and gas resources in an efficient and timely manner;
(h) Limiting the administrative burdens on Government and industry; and
(i) Providing an opportunity to experiment with various bidding systems to enable us to identify those most appropriate for the satisfaction of the objectives of the United States in OCS lease sales.
The purpose of this subpart is to encourage participation in OCS oil and gas lease sales by limiting the requirement for filing “Statements of Production” to certain joint bidders.
For the purposes of this subpart, all terms used are defined as in § 256.40 of this title.
(a) You must file a Statement of Production with the Director, according to the requirements of §§ 256.38 through 256.44 of this title if:
(1) You submit a joint bid for any OCS oil and gas lease during a 6-month bidding period; and
(2) You were chargeable for the prior production period with an average daily production from all sources in excess of 1.6 million barrels of crude oil, natural gas equivalents, and liquefied petroleum products.
(b) The Statement of Production that you file under paragraph (a) of this section must state that you are chargeable for the prior production period with an average daily production in excess of the quantities listed in paragraph (a) of this section.
(c) If your average daily production in the prior production period met or exceeded the quantities specified in paragraph (a) of this section, you may not submit a joint bid for any OCS oil and gas lease during the applicable 6-month bidding period with any other person similarly chargeable. We will disqualify and reject these bids.
(d) If your average daily production in the prior production period met or exceeded the quantities specified in paragraph (a) of this section, you may not enter into an agreement prior to a lease sale that would result in two or more persons, similarly chargeable, acquiring or holding any interest in the tract for which the bid is submitted. We will disqualify and reject these bids.
Minerals Management Service, Interior.
Final Notice of Sale 178, Part 1.
This Final Notice of Sale 178, Part 1, offers for lease all blocks in the Central Gulf of Mexico except for blocks beyond the United States Exclusive Economic Zone in the area known as the Northern Portion of the Western Gap and certain other deferrals as specified below. A separate offering in late August 2001 of Central Gulf of Mexico blocks in the Western Gap (in the Amery Terrace Area (NG15-09)) is under consideration. If it occurs, it will be known as Sale 178, Part 2.
On March 28, 2001, the Minerals Management Service (MMS) will open and publicly announce bids received for blocks offered in Sale 178, Part 1, Central Gulf of Mexico, pursuant to the Outer Continental Shelf (OCS) Lands Act (43 U.S.C. 1331-1356, as amended) and the regulations issued thereunder (30 CFR Part 256). Bidders can obtain a “Final Notice of Sale 178, Part 1 Package” containing this Notice of Sale and several supporting and essential documents referenced herein, from the MMS Gulf of Mexico Region's Public Information Unit, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123-2394, (504) 736-2519 or (800) 200-GULF, or via the MMS Gulf of Mexico Region's Internet site at http://www.gomr.mms.gov. The MMS also maintains a 24-hour Fax-on-Demand Service at (202) 219-1703. The “Final Notice of Sale 178, Part 1 Package” contains information essential to bidders, and bidders are charged with the knowledge of the documents contained in the package.
The MMS is offering for leasing all blocks and partial blocks listed in the document “Blocks Available for Leasing in Gulf of Mexico OCS Oil and Gas Lease Sale 178, Part 1” included in the Sale Notice Package. All of these blocks are shown on the following Leasing Maps and Official Protraction Diagrams (which may be purchased from the MMS Gulf of Mexico Regional Office Public Information Unit).
A CD-ROM (in ARC/INFO format) containing all of the Gulf of Mexico Leasing Maps and Official Protraction Diagrams, except for those not yet revised to digital format, is available from the MMS Gulf of Mexico Regional Office Public Information Unit for a price of $15.00. Only Amery Terrace (NG15-09) in the Central Gulf is not available on the CD-ROM. The Leasing Maps and Official Protraction Diagrams are also available on our Internet site. See also 65 FR 2191, published on January 13, 2000, and 65 FR 67016, published on November 8, 2000, for the current status of all Gulf of Mexico Leasing Maps and Official Protraction Diagrams.
All blocks are shown on these Leasing Maps and Official Protraction Diagrams. The available Federal acreage of all whole and partial blocks in this sale is shown in the document “List of Blocks
The following blocks in the Central Gulf of Mexico Planning Area are not available for leasing: Blocks currently under lease; Mississippi Canyon Block 474, which is under consideration for use as the host location to develop several existing leases termed the “NaKika Project'; Viosca Knoll Block 69 (lease termination is currently under appeal); and the following blocks which are beyond the United States Exclusive Economic Zone in the area known as the Northern Portion of the Eastern Gap are deferred from leasing in this sale by the Department of the Interior:
Primary lease terms, primary lease term extensions, minimum bids, annual rental rates, royalty rates, and royalty suspension areas are shown on the map “Lease Terms and Economic Conditions, Sale 178, Part 1, Final” for leases resulting from this sale:
The map titled “Stipulations and Deferred Blocks, Sale 178, Part 1, Final” depicts the blocks where four lease stipulations apply: 1. Topographic Features, 2. Live Bottoms, 3. Military Areas, and 4. Blocks South of Baldwin County, Alabama. The texts of the stipulations are contained in the document “Lease Stipulations for Oil and Gas Lease Sale 178, Part 1, Final” included in the Final Sale Notice Package. Also shown on this map are the deferred blocks noted above.
For the minimum bid only, if the calculation results in a decimal figure, round up to the next whole dollar amount (see next paragraph). The minimum bid calculation, including all rounding, is shown in the document “List of Blocks Available for Leasing in Central Gulf of Mexico OCS Oil and Gas Sale 178, Part 1” included in the Sale Notice Package.
The MMS published a list of restricted joint bidders, which applies to this sale, in the
Certain bid submitters (i.e., those that do NOT currently own or operate an OCS mineral lease OR those that have ever defaulted on a